It's election time!

Gedion Timothewos Hessebon (SJD) is a constitutional law instructor at Addis Ababa University, School of Law. He got his bachelor’s degree in law from Addis Ababa University. Then he did his LLM and SJD at the Central European University in comparative constitutional law. Gedion published articles in both domestically and internationally reputable journals that evaluate aspects of Ethiopian governance. His research areas include media law, election law and constitutional law. In a recent Panel Discussion on the Ethiopian Electoral Law organized by Ethiopian Lawyers’ Association, and Ethiopian Young Lawyers’ Association Gedion presented a paper entitled ‘Ethiopian Electoral Law in a Comparative Perspective’. Solomon Goshu of The Reporter sat down with Gedion to discuss the issue of elections in light of his presentation, published works and observations. Excerpts:

The Reporter: In your presentation you assert that minimal conditions required for the legitimacy of an election include freedom of expression and freedom of association. How do you evaluate their current status in Ethiopia?

Gedion Timothewos: It is my impression that the extent to which these minimum requirements are fulfilled in Ethiopia leaves much to be desired. Particularly in relation to freedom of association and expression there is a lot of room for improvement. When you see Ethiopia’s track record in relation to respecting freedom of expression, particularly the number of journalists that are being prosecuted and convicted, it is very difficult to say that these conditions have been fully met. This observation is also attested to by various internationally respected democracy indexes like that of The Economist, Freedom House and Mo Ibrahim. They indicate that the extent to which civil and political rights are enjoyed in Ethiopia is not one that would justify an expectation that you would have really democratic and legitimate elections.

Prior to the 2015 general election some of the provisions in the FDRE Constitution and subordinate legislations that deal with election have been challenged by relevant stakeholders. The enforcement of one particular provision that governs the number of candidates for HPR seat has become controversial in recent times. The election law (Proc. 532/2007) stated that the number of candidates in a constituency cannot exceed 12. It also points out that in cases where more than 12 candidates are registered in that particular constituency, a draw of lots will be applied to pick the 12 candidates. You argue that the fact that the law gives priority to political parties in the lots is problematic and unconstitutional. Can you elaborate it?

Because only 12 candidates could be on the ballot if more than 12 candidates show an interest in running in a particular constituency, first priority is given to political parties that have performed relatively well in a previous election. After that other political parties could participate in a lot. Then, finally, if there is any space, private independent candidates could be accommodated. If not, they would not even get to participate in the lot. So the order of priority or privilege seems to be political parties that have participated and performed well in previous elections, then other political parties, and only at the very last you find independent candidates. There is a justification or policy consideration behind this limitation. It is obviously a restriction of the right of individual citizens to participate in the electoral process as candidates and their right to run for office. So whenever there is an interference with the constitutional right, we have to ask: What is the policy consideration?  What is the interest that has been served by this restriction? Is there a reasonable connection between this policy consideration and the interference? Is it proportionate?... and so on. Just because there is interference we cannot conclude that the interference is unconstitutional. In this particular case, I think, there is a legitimate public interest that is being served by restricting the number of candidates to 12.  If you don’t limit the number of candidates it will make the electoral process very difficult to manage. The electorate might be faced with an overwhelming number of candidates. However, the question is how you determine which 12 candidates, get access to the ballot and which candidates you exclude. Currently, the system gives some considerations to previous performance. Partly, it makes the determination based upon luck. Others are completely excluded. In my opinion, this is not really reasonable and you don’t find a reasonable connection between the purpose of the restriction and the manner in which the restriction has been designed. There might be a very popular new political party that has been formed. As the law stands now, it might not be able to get access to the ballot. The fact that your access to the ballot is contingent upon luck makes the whole thing arbitrary. There should be some reasonable way of gauging public support in that constituency. That way, political parties and individual candidates might get access to the ballot depending on the kind of support they enjoy in the locality. That support could be gauged by asking them to collect signatures from electorates in the constituency. As things stand now, privileging only the parties that have participated in previous elections or deciding the whole thing based upon draw of lots has no constitutional basis. And, I think, it disproportionately burdens the rights of independent candidates.

In your studies, you are of the opinion that courts or the judiciary are not playing a pivotal role in protecting the rights of political parties like access to the ballot, access to public finance, and access to media, either by themselves or when they entertain different cases brought to them by relevant stakeholders. What makes you conclude that way?  

As a rule, opposition political parties are very reluctant to take their complaints and grievances to the judiciary. You often hear them complain against the National Electoral Board of Ethiopia (NEBE), and mention abuses by the incumbent or the ruling party. But they are very reluctant to go to the judiciary. They seem to have very little trust in the credibility and independence of the judiciary. It is only in few instances that political parties have sought remedial measures from the courts. And due to the fact that political parties have gone to the courts quite rarely, I don’t think we have a sufficient number of cases to determine in what manner courts behave, what line they are taking, and what jurisprudence they are developing in relation to the electoral process. The public prosecutor presents to courts individuals who have committed certain minor offenses in relation to the election process. But as far as the big and controversial issues are concerned, we don’t see them being taken to court. But ideally the courts should play the role of an arbiter and umpire in the electoral process. To be able to play that kind of role their independence – not just actual independence but the appearance of being independent and impartial – is quite important. But currently because there is a perception and a very strong conviction among the opposition that the courts are not really impartial, the courts are not playing the kinds of role you would expect them to play in a democracy.

  • a few instances where courts adjudicate cases of party splits, including the recent one that dealt with UDJ and AEUP parties, the decision of the judiciary end up to be controversial. What makes these decisions questionable?

The controversy is in a way natural because you have two parties or factions that used to belong to the same party that have been involved in a bitter conflict, each leveling all sorts of accusations against one another. So regardless of which faction wins the court dispute, I would imagine that the other party would complain. At the same time we can observe that after such court decisions are handed down and the court recognizes the legitimacy or legality of one faction over the other, the parties become quite weak. Many of the figures that are normally associated by the public with these parties and perceived to be strong and dynamic leaders of the parties seem to be losers in these court disputes. This also fuels the controversy.

Another trend that is identified by many observers in these decisions is that the ones that start the dispute and winners at the end are the minority suspected to be infiltrated by the ruling party. Do you share this analysis?

I am familiar with the accusations by many who have lost these cases. Many prominent opposition political figures allege that the ruling party deliberately sends infiltrators and causes the split and the NEBE in collusion with the judiciary help the infiltrators hijack the parties. I wouldn’t dismiss these accusations out of hand given that they come from different people at different times. But there is a need to study these cases and look at their backgrounds, the reasoning of the courts and the standards they used, to reach a firm conclusion. At this point, because I have not really looked at these cases, it is difficult for me to give a definite answer regarding the merits of the judgments of the courts. But the persistence of the accusations and the fact that many opposition political leaders have no trust in the independence of the judiciary is something that should give rise to concern. Even if courts were actually independent, the fact that they are perceived to be partial to one group is troubling.

Some associate the source of the controversy to the administrative decisions of the NEBE. Does it have some bearing on the decision of the courts?

When the courts are deciding in most of these cases they are actually reviewing a decision that has been rendered by the NEBE. So they are not addressing the case from scratch.  Many of the facts are supposedly established by the NEBE already. To some extent, the courts are deferential to the factual findings of the NEBE. If the opposition political parties and NEBE have a very good relationship, that would also spill over to the relationship that courts have with political parties. Obviously, the position and attitudes of the NEBE will have a bearing and would influence the position of the courts.

Lack of financial means is identified as one of the major obstacles for the opposition. This problem is claimed to be dire following the introduction of disclosure requirements in the post-2005 election laws. Considering the culture of secrecy in Ethiopian politics, many political parties complain that this provision had curtailed their financial sources in the form of anonymous donations. Is this requirement common in other jurisdictions?

The requirement of financial disclosure is a normal and ordinary trend in the political parties’ regulation in the electoral laws of almost all democratic countries. And there is a reason for this requirement. So the Ethiopian law is not a deviation from comparative international practice. Normally it should not be considered problematic. The problem is in relation to our political culture and context. You live in a country in which everything you do requires you to interact with the government. You are very dependent on the goodwill and positive attitudes of the government. If you offend those in the incumbent like by contributing to the opposition, in all likelihood when the incumbent wins the next election there could be reprisal and other negative consequences. Because of this political culture which is permeated with fear the disclosure requirement might have the effect of significantly diminishing the contributions that the political parties might get from businessmen, sympathizers and supporters. They might fear that if they contribute to political parties and that is known by the ruling political parties they might be subjected to all sorts of unpleasant treatment.

The FDRE Constitution seems to ensure access to the media and equitable treatment in the media owned or controlled by the state to all political parties and candidates on an ongoing basis. However, subordinate laws restrict it to the election period. What do you say to that?

The impression you get from the Constitution is that access to public-owned media by an opposition political party is supposed to be continuous. You might interpret the electoral laws that we have as giving a more direct and enhanced access to political parties during electoral period. It does not necessarily contradict the spirit of the Constitution. At the same time, the laws seem to imply that opposition political parties will have access to the media only during election period and apart from that period they should be excluded from the public media. Then that is a very problematic understanding of the law that would contradict the Constitution. If this is the case, the media would not be seen in any other different manner from the government agencies that are supposed to implement the policies and directives of the government. The intentions of those who adopt the Constitution seems to be that these media outlets will serve the interest of the public rather than being directly subservient to the government. Since the last election there have been some positive developments where the public broadcaster organizes debates on various political and policy issues in which both the ruling party and the opposition parties were invited. That should be more and more institutionalized. The opposition political parties should have access and get fair and equitable coverage of their statements, activities and viewpoints on an ongoing basis. We should not limit democracy to the electoral period.

In one of your works, you have mentioned abuse of state-controlled media and media regulatory organs, abuse of state resources and administrative structures, subversion of electoral management bodies, and abuse of state coercive instruments and security services as the most prevalent forms of abuse of incumbency in Ethiopia. In every system the incumbent has an advantage. How is the Ethiopian case different?

The government should not be a contestant in the election. When the parties compete, the civil service, the security apparatus, the military, and so on should be neutral. Public resources should not be exclusively used by one political party to propagate its own view. In Ethiopia, we have observed practices that are quite divergent from these principles. Operatives of the ruling political party could be on the government payroll even though they are not public servants. There is no limitation to political appointees that do party work. They could get benefits, salaries, cars and so on from the state. This should concern us. It should be rectified. There are long and extended party training sessions wholly financed by the state in which the state compels participants including civil servants and academics using its coercive ability. This is a clear case of abuse of incumbency prevalent in Ethiopia. If this trend continuous, our elections will not be elections in which party X competes against party Y. There would be a contest between the government with all its resources and might against political parties. It will not be an even or fair contest.

Competing opposition political parties complain that media outlets asking them to adjust their campaign messages constitute censorship. What do you say to that?

The Constitution and other relevant legislations clearly prohibit all forms of censorship. In my opinion, media outlets going through the campaign message of political parties and requesting that the political parties make adjustments and changes particularly based on its content clearly constitutes censorship. Therefore, it is unconstitutional. If the message of the political parties is illegal and gives rise to legal responsibility, then the public prosecutor should bring charges against them. But for the media themselves to engage in censorship is a serious violation of the Constitution. Prior restraint is considered to be the worst form of evil. It should be undertaken only in extreme cases. So I am not saying that in all circumstances whatever the campaign message is the broadcaster should broadcast it. When the campaign message calls for inciting violence, has criminal intent and when the threat of something of that sort happening is very high the broadcaster should refrain from broadcasting it. Otherwise, in the ordinary course of things, they should broadcast.   

What are the major election systems in the world? Why is the Ethiopian election system so much criticized?

There are two major electoral systems and there are mixed or hybrid systems in between. One is the proportional electoral system. It is a system in which more or less parties get seats in parliament in proportion to the number of votes that they have secured. For example, if you have secured 20 percent of the votes in the country, more or less you will get 20 percent of the seats in parliament. It is considered to be very fair and equitable. On the other hand, the disadvantage of this electoral system has been that it facilitates the proliferation of political parties. There is no incentive for politicians and the public to aggregate their views and interests and form coalitions before election. In countries with this kind of electoral system like Israel after elections you would have parliament in which no single party would have a majority. The parliament is very fragmented and there would be long negotiations to form coalition governments. The coalition government might not be stable and fringe parties might have an outsized influence and dictate policy. On the other hand, there is a first-past-the-post electoral system which we have in Ethiopia and the classic example is the United Kingdom. In this electoral system, the whole would be divided into constituencies and electoral districts. In each electoral district, the individual candidate or the political party that gets the greatest number of votes would win the seat. The number of votes secured by the winner may be greater than the competitor only by three or a hundred. It may also secure 20 percent of the votes in that district. The problem with this electoral system is and the reason why many people question it and object to it in Ethiopia is that the winner gets everything. Although a political party might have secured less than the majority, a substantial number of votes might be secured without being translated to the parliament seats. For example, in the past election, the ruling party got more than 99 percent of the seats in parliament. But this was not because it won 99 percent of the votes. This electoral system has two strengths, however. It gives rise to a stable government. Another merit is because of its nature, political scientists have empirically proved that it gives rise to two or three major political parties. In such a system, voters will learn that in such an electoral system of voting for small parties is wasting your vote. So they would tend to vote bigger parties they had considered to be a lesser evil even though they really like these small parties. In the 2005 general election, there were three major political parties. Despite the claims that there are more than 75 registered political parties in Ethiopia, if the system is really vibrant the electoral system in place would lead to consolidation of the political parties and at the end two or three political parties would emerge as very strong contenders. Scholars and politicians might disagree as to which system best suits the Ethiopian electoral system. But personally I am predisposed to the first-past-the-post electoral system.

Many constitutional lawyers argue that in a country where diversity is overriding, an electoral system of proportional representation is most preferable and the FDRE Constitution should be amended to accommodate it. Your view is the exact opposite.

The system in place would lead to a stable government and helps us consolidate political parties. Given that we are a very ethnically divided society, I think it is good to have an electoral system that encourages integration as opposed to reinforcing further fragmentation. Theoretically speaking, when it comes to constitutional design in divided societies, there are two major camps. There are accomodationists and there are integrationists. Those in the integrationist camp want to design a constitution and a political order which gives less emphasis to ethnicity and tries to create one common civic identity. On the other hand, in the accomodationist camp, there is a realization that it is nearly impossible and also undesirable to try to do away with ethnic diversity. There is one line of thought called consociationalism advocated most famously by Arent Lijphart. He argues that if you have a divided society, not only your electoral system but how you appoint civil service jobs and the like should be done proportionally. On the other hand, we have Donald Horowitz and his colleagues who are vehemently opposed to this view. Their argument is if you do everything proportionally and institutionalize ethnic diversity with proportional representation, it will freeze the divide as it is, it will never be transformed, and it can’t evolve. They argue that the society will remain divided. In my opinion, the Ethiopian system and even the Constitution have many consociational elements. The one integrative institution and procedure we have is our electoral system. If we reproduce the ethnic distribution of the country through proportional electoral system in the House of Peoples’ Representatives, the parliament will play a similar role to that of the House of Federation without any integrative mechanism. The electoral system we have now encourages various parties even those formed along ethnic lines to form coalitions before elections. If we were to adopt a proportional electoral system in Ethiopia today it would lead to the proliferation of many parties in parliament with their unique demands. It is a danger to the stability of the country.

What are your observations of this year’s pre-election period trends compared to the previous general elections?

I would prefer to look at the whole five years before the election. The integrity, the legitimacy, and democratic quality of the election is contingent upon the freedom enjoyed prior to the election. You could take as an analogy the prospect of a healthy child being born. It is not simply contingent upon which hospital the mother goes to, what kind of medical facilities are available during labor time just before the child is born. Imagine that this mother was drinking, she didn’t have access to potable water and food, she had to work for 18 hours, she had no medical checkups and treatments. So even if you provide her the best doctors and facilities when she is in labor, the chances of that child being born very healthy are quite limited. To ensure that our electoral processes are democratic, we have to ask ourselves what kinds of environment and what level of freedom we did have before the election years. The overall environment that we had in the past ten years in my opinion is one in which the level of fear was very high. We can count how many public demonstrations were held and how difficult it was to hold those demonstrations in the past 5 years. How many hotel owners would be willing to lease their halls for political meetings. How many people would be willing to support or become members of opposition political parties that they sympathize with. The level of civil and political freedoms enjoyed in Ethiopia in the past five or 10 years has been relatively declining when you compare it to the previous 10 years. The environment in which the media, civic associations and non-governmental organizations operated has dramatically shifted and the general atmosphere of fear has been created. As a result, this will have a bearing on the quality of the election. Regardless of what happens during this election, there is a need to improve the overall environment and create a situation in which citizens will feel free to express their opinions on political matters. I think we are far from that kind of stage.