You are on page 1of 33

By Tsegaye R Ararssa

As a response to the comprehensive Oromiya-wide resistance to the Master Plan, the officials of
the Federal and the State governments have, rather inconsistently and half-heartedly, indicated
that the implementation of the Master Plan is now stopped. The Prime Minister, the Speaker of
the Federal Parliament, the Government Spokesperson, the Oromiya State President, and the
Spokesperson of the Oromiya Government have all remarked that the Master Plan is not going to
be implemented without the consent of the people.

In what seems to be the production of consent, the government has now engaged in a
“discussion” with the public to condemn the protests, hunt down the active protestors, and force
a vow of commitment to the government’s “development plans” (which implicitly includes the
Master Plan as well). In the meantime, massive arrest of protestors, even shootings and killings
are still continuing. The resistance is also continuing rather sporadically.

The Command Post chaired by the Prime Minister and the Joint Counter-Terror Task Force are
taking what the Prime Minister and all the officials called a “definitive measure” on the
protestors. In doing so, the federal government has completely rendered the State Government
superfluous. The federal government didn’t, in the first place, try to seek a formal Federal
Intervention Order or Emergency Declaration as per the requirements of the Constitutions, nor
considered the option to use the law as a mode of disavowal of responsibility and
depersonalization of power, which makes it easy targets for those considering to takeits officials
to account before various international tribunals.

While all this is going on, the otherwise invisible Government of Oromiya has issued a statement
that they have established a task force to define the Constitutional Special Interest of Oromiya
over Addis Abeba. This has redirected attention from the Master Plan to exactly what the task
force is going to do in its attempt to enunciate the content of the Special interest. This is not
surprising given the fact that one of the reasons for the resistance to the Master Plan was that it
overwhelms and eliminates the Special Interest, thereby violating the clause in Article 49 of the
FDRE constitution. But the question in the minds of the public and all interested observers
remains: just what is this special interest?
In this piece, I consider this question from a legal point of view. In so doing, I will first try to
offer the context within which this ‘Special Interest’ clause of the constitution came about.

I will then examine the provisions in art 49(5) of the constitution with a view to indicating,
suggestively, what exactly the content could be. I will also try to trace the Special Interest in the
Context of the Master Plan that rendered it invisible and/or irrelevant. Finally, I will reflect on
the fear and the tragedy of the violence in relation to Addis Abeba by linking it to its
genealogical antecedents rooted in its foundational moments, the moments of inaugural violence.
Here, I will make few assertions about the burden of imperial history, the curse of illegitimacy
that was never overcome, the irredeemable failure of state- and nation-building that keeps
bleeding a people whose wounds never healed, whose hopes have always been deferred, and
whose voice is being denied expression and a hearing. Throughout this piece, I argue that the
move to articulate the special interest by the Task Force, while long overdue and therefore an
appropriate political gesture in the right direction, might be just another move to align the
contents of the ‘special interest’ clause with the objectives of the Master Plan and legally water it
down or erase it altogether.

The context

The notion of Oromiya’s ‘Special Interest’ entered the Ethiopian legal universe in 1992 through
the instrumentality of the Proclamation that established National/Regional Self Governments
(Proclamation No. 7/ 1992). This is the proclamation that set the blue print for what came later to
be the constituent units of the Ethiopian Federation. Adopted to give effect to the
decentralization that was envisaged in the Transitional Charter—and to valorize the right of
ethno-national groups to self-determination—it established 14 self-governing national regions.
Accordingly, Oromia became one of the 14 self-governing States. Addis Abeba, like the City of
Harar, was also a region in its own right. Oromiya’s‘special interest’ over both cities was first
recognized in this piece of legislation (1).In Article 3 (4), it is provided that:

The special interests and political right of the Oromo over Region Thirteen [Harari] and Region
Fourteen [Addis Abeba] are reserved. These Regions shall be accountable to the Central
Transitional Government and the relations of these Self-Governments with the Central
Transitional Government shall be prescribed in detail by a special law.

Very much like the provision in Art 49 (5) of the Constitution that came later, it envisaged a
‘special law’ (meant to clarify the relation of accountability to the Central Government), but such
a law was never promulgated. It is interesting to observe that, unlike in the constitution, in this
transitional period law, the Oromo has not just a “special interest” but also a political right over
the two self-government regions. It is also important to observe that there is no attempt to delimit
the boundary of the city. As a result, it was not clear as to where exactly the jurisdiction of the
government of Addis Ababa ends and that of Oromia commences.

While it looked like a city state in a federation, Addis Abeba was also seen as a city within a larger
state, i.e., Oromia. In other words, administratively, it was an enclave falling outside of Oromia
while also housing the Government of Oromia as its capital. In a sense, Addis Ababa
is in Oromiya, but not of Oromiya. Oromiya was a State governing from Addis Abeba without,
however, governing Addis Abeba itself. While the meaning of ‘special interest’ was understood to
mean much more than having a seat for the Oromiya government in the city, for the entire period
of the transitional times, this remained to be the only ‘interest’ Oromiyacould obtain.

The concept of Oromiya’s special interest was thus injected into the language of public law in the
country accompanying the shift away from a formerly unitary state to what was subsequently to
become a ‘multinational federation’. Acutely sensitive to the rights of sub-national groups (called
‘Nations, Nationalities, and Peoples’) in Ethiopia, this ‘ethno-federalization’ was a reaction, and a
push back, to the goings-on in history. We can thus see its immense historical import in its potency
to speak both to the past and to the future. The ‘special’ in the ‘special interest’ phrase hails not
only from the mere fact of geographic location of Addis Abeba in Oromiya but also from the
implicit recognition of the essentially Oromo identity of the city. Historians have routinely
described the fact that, until it was violently raided and occupied by the forces of the Shoan
Kingdom in the 19th century, the city was inhabited by the Oromo.

When it was ‘founded’ as the capital of the modern Ethiopian Empire in 1888, it was set as a
launching pad for the campaigns of imperial conquest on the peoples of the Southern, South-
Eastern, and South-Western peripheries. With a violent beginning marked by conquest and
occupation of the land; raid, massacre, and displacement of the population; and transformation of
the cultural and environmental terrain by the soldiers, it started as a garrison town(2). A cursory
glance atwritings by William Harris(3), Alexander Bulatovich(4), and even Evelyn
Waugh(5), indicates that the State operated in Addis Abeba as an occupying force of settler
colonialists bent on pushing out and displacing the indigenous Oromo peoples.Because the settlers
generally spoke Amharic and confessed the Ethiopian Orthodox faith and because of the
disproportionate concentration of modern urban facilities in Addis Abeba, it became increasingly
different culturally fromits surroundings. Consequently, it projected a cultural life that is different
from that of the Oromo. The culture, identity, and language of the Oromo became the constitutive
outside of the cultural life in the city. In time, the Oromo were effectively marginalized and
otherized. For most of the 20th century, the Oromo, although historically the host, was forced to
live like the alien and the guest in what was their own homeland. Informed by this memory and
propelled by years of national liberation struggles, the politicians that negotiated the Transitional
Charter (Proc. 1/1991) and made the law (Proc. 7/1992) sought to emphasize the need to
acknowledge the Oromo presence in the city’s affair through the ‘special interest’. The ‘special
interest’package was thus a way of making up for the artificial (created or intentionally produced)
absence of the Oromo. In other words, it was a method of presenting the absent, a way of bringing
back the Oromo to its own.

The law
When the constitution of FDRE was finally adopted in 1995, the ‘special interest’ clause was more
or less carried over into art 49(5). To understand the full textual context of the special interest
package in art 49 (5), it is important for us to reproduce the entirety of article 49 in full.
Accordingly, the provision in art 49 reads as follows:

49(1) Addis Abeba shall be the capital city of the Federal State.
49(2) The residents of Addis Abeba shall have a full measure of self-government. Particulars
shall be determined by law.
49(3) The Administration of Addis Abeba shall be responsible for the Federal Government.
49 (4) Residents of Addis Abeba shall in accordance with the provisions of this constitution, be
represented in the House of Peoples’ Representatives.
49(5) The special Interest of the State of Oromiya in Addis Abeba, regarding the provision of
social services or the utilization of natural resources and other similar matters, as well as joint
administrative matters arising from the location of Addis Abeba within the State of Oromia, shall
be respected. Particulars shall be determined by law.

Space won’t allow a full-length analysis of the first four sub-articles. Consequently, I will
concentrate only on art 49(5) in this piece. Owing to the unclarity of the clause in art 49 (5),
coupled with the lack, to date, of the law constitutionally envisaged to enunciate the content, it
became imperative for people to ask, “just what is the ‘special interest’?” In this section, we
make a close reading of the provision to explore what could be in the package.

Let me make a couple of preliminary points before I go into the content of the ‘special interests.’
First off, it is important to underscore that Addis Abeba is a Federal capital city within a State.In
this it is more like Berne (of Switzerland) or Ottawa (of Canada) [7]. Once that is admitted, i.e.,
that Addis Abeba is a city in Oromiya, one should have an explicit discussion and mutual
understanding about what it means to be a federal capital because that automatically indicates
that the Federal Government doesn’t have a ‘natural’ right to be in the city. That discussion
didn’t happen. That is a historical blunder about a city mired in several historical misdeeds and
mistakes. That it was made accountable solely to the Federal Government was the second big
blunder at the time of adopting the constitution. Given the fact that the city is in Oromiya and
that it is also a ‘natural’ capital of the government of Oromiya, it should have been made
accountable to Oromiya. Or at the very least, it should have dual accountability to both the
Federal and Oromiya Government. That didn’t happen. Commanding exclusive say on the
administration of the city (in the name of ultimate accountability), the federal government
‘banished’ the Oromiya government at will in 2003 and allowed it back in the city in 2005. In
this, the federal government expanded and re-enacted the original violence of dispossession and
displacement of Oromos from the city thereby perpetrating a new wound before the historical
wounds could heal. Had it not been for this constitutive mistake, this ‘original sin’ of
constitutional drafting in 1995, there wouldn’t have been anything special about the special
interest of Oromia. If there would be ‘special interest’, it would have been that of the Federal
Government or the non-Oromo residents of the city. These twin mistakes of recent history led to
events of dire consequence that claim lives and limbs to date.

Having made a guest out of the host through the legal fiction of excision, i.e., by excising the city
out of the political and administrative jurisdiction of Oromiya,it became necessary for Ethiopia,
almost as an afterthought, to ‘concede’ a lame ‘special interest’ to Oromiya in Art 49(5). Over
the years, the government of Oromiya and Oromos in general hung on this provision more as a
symbolic rallying point to interrogate Ethiopia for what is actually beyond the interest in the city.
To the Oromo public, the city became the metaphor for what Ethiopia has made of the Oromo in
general: an invisible, non-speaking, non-acting other who inhabits the interior of the territory but
the exterior of the polity. It became the concentrated expression of the ‘life’ and the agony of the
Oromo in the Ethiopian polity: the present-absence and the absent presence at a time. Today, the
Federal State presided over the coalition of four parties that make up the EPRDF became the new
empire in a federal form, and the leaders became the new emperors in a democratic-republican
garb. This forced the quip ‘plus ca change, plus c’est la meme chose’ (‘the more it changes, the
more it remains the same’) from many an Oromo politician.

Hence, the wide Oromo discontent over the whole arrangement with regards to Addis Abeba.
Taking advantage of the historic asymmetry in power, the city administration, mostly prompted
by the federal government, has consistently acted in complete neglect or wilful defiance of the
interests of Oromiya and Oromos. Taking advantage of the undefined territorial boundary of the
city, the administration continued to expand its competence over the suburbs surrounding Addis
Abeba. Routinely, the Federal and the City Governments exploited the legal silence on the matter
of special interest. Thus, the Addis Abeba Land Administration office often acted as the
authority in charge of land administration in areas such as Labbuu, the LagaTafo-Marii
continuum, Bole-Bulbula, Buraayyuu, Sabbata, Sululta, and districts beyond the Akaki-Qalittii
corridor. The Federal Government continued to implement its industrialization policy by
reserving Industrial Zones, Recreation Parks, and designated investment sites (much like Special
Economic Zones). In doing all these things, the Federal Government cum the city never took the
trouble to consult with Oromiya, much less the Oromo people. Evictions of farmers with little or
no compensation became a routine practice.

Pollutions from industrial emissions were sustained with no sense of accountability from the part
of the city. Waste was dumped recklessly causing massive health risks. Deforestation and soil
degradation was intensified in the neighbouring districts, especially after the rise of investment in
flower farms, dairy farms, and poultry farms. Homelessness of the evicted farmers and residents
started to be felt among the people. The response from the Government of Oromiya was late, but
it did come in the form of a 2009 Caffee Oromiya proclamation that established a Special Zone
of 17 districts and 36 towns in the area. Its attempt at legislative articulation of the
‘Constitutional Special Interest of Oromiya over Addis Abeba’ remained a draft to date.

Also, Oromo residents of the inner city resented the absence of Schools and cultural centres that
operate in Afaan Oromo. The fact that the city has become anything but Oromo over the years
made Oromo residents lament the complete cultural insensitivity to the needs of the Oromo in
the city. Increasingly, the demand for schools in Afaan Oromoand cultural centres began to be
vocally expressed in the last decade or two (resulting in efforts to construct an Oromo Cultural
Centre and to open public schools that operate in Afaan Oromo) [7].

While such demands were gaining momentum steadily over the years, the Integrated Regional
Development Plan (alias the Master Plan) was announced to the public in 2014. Immediately, it
provoked a resistance in all corners of the Oromiya region. The day-to-day encroachment of
Oromiya’s jurisdiction with the informal expansion of the city; the general spill over effects of
the city; its becoming the dumping ground for Addis Abeba waste for no gain; the pollution of
the rivers, the soil, and the general environment of the surrounding districts and towns; the
evictions with ‘compensations’ whose lower limits are legally left unregulated; the insensitivity
to the cultural and linguistic needs of Oromo residents; the temperamental behaviour the Federal
Government showed vis-à-vis Oromiya’s claim to Addis Abeba as its capital city; these and
other resentments fed the anger that emerged in the wake of the revelation of the Master Plan.
Apart from its violation of the principles of federalism and a healthy intergovernmental relation
that should exist in a working federation, one of the reasons given for resisting the Master Plan
was that it liquidates the ‘special interest’ of Oromiya. As was noted above, the particulars
envisaged to ‘be determined by law’ were never determined. The recent move on the part of the
Oromiya government to establish a Task Force on the Special interest seems to be a response to
that concern (8).

According to art 49 (5), the articulation of the content of the ‘special interest’ is hoped to revolve
around the meaning of four broad phrases:

a. ‘Provision of social services’


b. ‘Utilization of natural resources’
c. ‘Joint administrative matters’
d. ‘Other matters’ similar to provision of social services or utilization of natural resources.

The hard task ahead of the “Task Force’

The Task Force is expected to interpret these phrases in a judicious manner that can also satisfy
the popular discontent that was ignited into full manifestation in the protest to the Master Plan. In
particular, it must identify the kind of social services that Addis Abeba should provide to
Oromiya. Normally, ‘social services’ connote services such as access to housing, education,
health, water, transport, and other matters needed for achieving adequate living standards. From
experience, we know that one of the unmet needs of Oromiya in Addis Abeba is access to public
buildings and properties for their offices and residential places for their officials and civil
servants. And the need for designated plots of land on which to build houses for the employees
of the state.

Organizing public schools that operate in Afaan Oromo is another kind of social service seen as a
pressing need. Related but not often articulated is the need for building or making spaces for
public libraries run in Afaan Oromo, exhibition centres, concert halls, theatres, museums,
galleries, cinema halls, printing presses dedicated to the nurture and development of Oromo
cultural lives, shows, performances, plays, memories, arts/paintings, movies, books, etc. This
need to give attention to culture also requires the need for memorializing personalities and
historical moments of the Oromo through naming streets, places, squares; and erecting statues. In
addition, subsidizing Oromo arts and printing and publications as part of making the Oromo
presence felt to anyone who comes to and inhabits the city is an important aspect of social
service. In other words, the provision of social services also extends to the cultural representation
of the Oromo in the life of the wider city.
Similarly, health facilities and other utilities such as public transport services that operate
in Afaan Oromo should be considered part of the social services to be provided to Oromos. One
way of addressing this could be making Afaan Oromo the co-equal working language of the City
Government. The move to make Afaan Oromo and other languages to become working
languages of the Federal Government will also help curb part of the problem of access to social
services and facilities such as public transport, celebration and registration of vital events (birth,
marriage, death, certification, authentication, licensing, etc).

Secondly, it must clarify the type of ‘natural resources’ Addis Abeba has that Oromiya uses and
the modes in which it continues to use them. Giving content to this phrase becomes amusing
when we note the fact that there is hardly any natural resource that the city offers to Oromiya.
Anything ‘natural’ in the city is ipso facto that of Oromiyabecause the city itself is of Oromiya
anyway. The city actually is dependent on the natural resources of Oromiya. Water, forest
products, hydroelectric supply, minerals, sand, cement products, precious stones, food products,
and everything else that Ethiopia (beyond and above Addis Abeba) needs come from outside of
the city, Oromiya and the other regions. In the course of articulating this interest, one needs to
consider the benefits Oromiya should get from the delivery of these resources. One way of doing
this is to agree on the percentage of income that should go back to Oromiya’s revenue based on
what is often called the principle of derivation in federal countries. If the federalism was properly
functioning, this would have been handled through a negotiated channel of financial
intergovernmental relations.

Thirdly, the law to be prepared by the Task Force must determine the scope and method of
exercise of the envisaged ‘joint administration’. For this, we will first need to identify what tasks
are matters for joint administration. Secondly, we need to decide who is responsible for what
aspect of the administration. In the area of inter-jurisdictional roads (say maintenance); border
management; managing trans-boundary forests, rivers, etc.; inter-jurisdictional legal cooperation
(whose police takes responsibility for cross-border criminal activities); these and some such
activities need to be spelt out. One obvious area of joint administration is management of land.
Because legislative power over land issues is a matter for the federal government and
administration is for the States, issues such as town planning, mapping, cadastre, land
redistribution among residents, designing construction regulations, etc should have been a matter
for states, districts, and local/municipality governments. And in these areas, local governments
could find some collaboration. Accordingly, the government of the state of Oromiya and the
government of the Addis Abeba City could coordinate their activities as they have overlapping
jurisdictions (i.e., Oromiya has a territorial jurisdiction while the city has a self-administrative
jurisdiction).

Ideally, ‘joint administration’ could have happened if the city was made accountable to the
Government of Oromiya rather than to the Federal Government. In the very least, joint
administration could have been achieved through making the City government accountable to
both the Federal and the Oromiya governments. Settling on one of these options would mitigate
the injustice of the original constitutional arrangement that: a) made Addis Abeba the capital city
of the Federal government without the consent of the Oromos; and b) made the city’s self-
government accountable exclusively to the Federal Government. If there was an inclusive
participatory constitutional moment that acknowledges the presence of the Oromo in the polis-to-
be between 1992 and 1994, one or more of the following scenarios might have been negotiated:
a) find a (new) site that is commonly agreed upon by all the constituent members of the
Federation to be the Federal District Territory; b) designate another city in another State or in
Oromiya as the seat of the federal government accountable to that state; c) designate different
cities for different branches of the Federal Government; d) agree to have a roving capital city for
the federal government every decade or so; e) designate Addis Abeba as the capital city with a
self-governing council ultimately accountable to Oromia—a city of Oromia where the federal
government may have some form of ‘special interest’; f) designate Addis Abeba as a federal
capital city whose self-governing council will be accountable to both the federal and the
Oromiya governments. The constitution-making process was less ideal than one would hope for.
It was marked by lack of legitimacy on procedural and substantive accounts (9). The work that
the Task Force does now will, while attending to the immediate needs of giving content to the
‘joint administrative issues’, identify potential areas of constitutional amendments that would
overcome the problems caused by original flaws in the constitution. This will force the Task
Force to engage in—and engage the public with–what Icalled, elsewhere, a ‘redemptive
constitutional discourse,’ a discourse that overcomes the deficits in original legitimacy, a
discourse that ‘corrects’ the imperfect beginnings of the constitution by also attending to the
trauma caused by inaugural violence with which the city was incorporated into, and made the
capital of, the modern imperial Ethiopian state.

While that is being done, the Task Force needs to be daring in searching for a long-lasting
solution to the violent Ethio-Oromiya relations, especially regarding Addis Abeba. In particular,
it needs to consider the possibility of relocating the Federal Government elsewhere. Removing
the Federal government will help undo the trauma of the violent occupation at the moment of
‘founding’ and subsequent displacement of the Oromo through the ‘settlement’ of others. Until
that is done through constitutional revision or amendment, it may be necessary to consider the
shift of accountability of the city government from the Federal to the Oromiya government. It
may be imperative for the Federal Government tostart paying rent to the Oromia government as a
token of acknowledgement to their being hosted by Oromiya.

Connected to this work of the Task Force to find a lasting solution is to identify unconstitutional
laws and policies that violate Oromiya’s rights and special interests. Laws such as the one that
promulgated the Addis Abeba Charter of 2003 (Proc. 361/2003, especially its article 5), the
Investment Amendment Proclamation of 2014 (Proc. 849/2014, especially its provisions
regarding ‘Industrial Development Zones), and projects like the World Bank sponsored
Industrial Zone Projects (such as the Resettlement Action Plan [of] the Kilinto Industrial Zone
(April 2015) should all be rescinded. New laws may need to be issued. An example is a
proclamation that governs the lowest threshold for rates and modes of compensation awarded to
a farmer in the event of eviction from her/his land. To be sure, there was a 2005 Proclamation
(Proc. 455/2005) that provides for expropriation of land holdings and compensation. However,
this proclamation, apart from enhancing the dispossessive, regulatory and police powers of the
Ministry of Federal Affairs, federal and local governments, and of several other agencies, it says
little about the substance of the compensation, especially for collective landholdings (about
which it says nothing) [10]. Needless, to say, as the actual practice of expropriation has routinely
demonstrated, even the normative gesture in the law of providing a replacement remains to be
more a legal rhetoric than an actual reality, more a juridical promise than a political practice.
By removing these and other similar roadblocks to joint administration proper, the Task Force
may help both Ethiopia and Oromiya imagine a more just relation through the instrumentality of
the ‘special interest’.

The meaning of the ‘other issues’ over which Oromiya has a special interest is to be decided
contextually on the basis of issues that rear their head in the course of day-to-day life experience.
One cannot be definitive about the list of things to be included in this category.

However, twenty years of experience should have brought forth several such issues that may
need to be specified while leaving others to the discretion of administrators subject to judicial
review.

Having unpacked the meaning of these phrases, the other issue left for us to determine is who
comes up with the law that “determines” the “particulars”: the Federal Government, the City
Government, or the Government of Oromiya? So far, the federal government had hesitated to
legislate on the matter even in the face of a repeated demand by the government of the state of
Oromiya. That is of course because the federal government wants to exploit the ambiguity that
remains because of the legal vacuum. Legal silence is strategically deployed to avoid their part of
the obligation and to continue to enjoy what doesn’t rightfully belong to them in the absence of a
law that proscribes it. Oromiya’s attempt in the past (2006) to legislate on the matter could
produce only a draft piece of legislation that couldn’t be presented to and passed by the Caffee
Oromiya.

The Burden of History: the fear, the curse, and the tragic consequence

Like everything else in Ethiopia, the city languishes under the heavy burden of history. As
indicated above, it had a bloody beginning. When it was ‘founded’ as the capital of the modern
Ethiopian state, it was not planted in a terra nullius, an empty space that was masterless. The site
which Empress Taitu chose as the place of settlement and named Addis Abeba had a name
(Finfinne), a people (of the Galan, Gulele, and Abichu clans of the Oromo), and a life (natural
and social). It has a story of a people who valiantly defended themselves against the barbaric
raids directed at them from the north, including those by Haile Melekot and Sahleselassie of
Shoa. The settlement of the imperial forces in the late 19th century was preceded by
depopulation of the indigenous inhabitants of the place and deforestation of the area. It was then
followed by the renaming of the place, erasure of its history, and degradation of cultures. Viewed
as the pagan others (aremenie), the Oromo were effectively made the constitutive outside of the
empire inhabiting, along with the other ‘others’ (in the wider South), the periphery of what was
the Abyssinian core. So constituted by the Menelikan imperial dispensation, Addis Abeba was an
unnatural town in which the Oromo was an unwanted presence. When it is seen for what it is
(which is rare), it comes as a relic of a regretted past that should be overcome through
civilization (or modernization) which is to be deployed to integrate the Oromo and all the other
‘others’ into what Levine felicitously called ‘Greater Ethiopia’(11). The modernization wedded
into nation-building through ‘civilization’ (alias known as hager maqnat) run on the imperative
that the Oromo and the other peoples of Ethiopia make way for the progress towards the
supposed ‘manifest destiny’ the empire hoped to achieve. In short, the moment of encounter with
the Oromo in Addis Abeba was marked by the violence of conquest (raid), occupation,
enslavement, depopulation, and displacement. The moment was also remembered by the Oromo
as a moment of material and cultural loss, politico-military humiliation, dispossession of land,
disorientation of one’s way of life, expropriation of the means of livelihood, and wanton
destruction of the natural environment. Settled by soldiers of various nobles of the court, it was
culturally ‘other’ to the indigenous peoples of the area.

This violent ‘beginning’ is not just a legacy of the past. It is with us now mirrored in the most
recent barbarity foisted upon the Oromo in the name of expanding the jurisdictional scope of the
city to the surrounding towns and rural districts. The rationale back then was nation-building and
unification. The name used today to describe the same process is ‘development’ and the march to
our ‘millennial renaissance.’ The process back then involved outright dispossession of the land
and enslavement/enserfment of the population. The process today is expropriation or eviction
and rendering the population placeless and homeless. The settlers in the garrison town it was
then were culturally alien to the people but viewed themselves as the ‘civilized’ (Christian)
other. Today’s city dwellers are culturally alien to Oromiya and view themselves as more
civilized (because they are exposed to modern education and infrastructure and monetized
economy) than their counterparts in Oromiya. Their encounter looks like a confrontation of the
cosmopolitan, urbanite, post-ethnic Addis Abeban with his/her other, i.e., the parochial, ruralite,
ethno-nationalist Oromo.

The legacy of the past and its contemporary parallels betray a common fear: fear of
extermination (physical and cultural). In the past, this was a fear of immediate and overt
genocide and ethnocide. Today, it is a fear of gradual and covert genocide that started a century
ago. Just as the Menelikan modernization evoked a fear of dismemberment as a people, the
Master Plan evoked the fear of disintegration as Oromos. The key common feature of the Ethio-
Oromiya relation then and now is the lack of trust. Reeling from the memory of inaugural
violence that continued through the instrumentality of bureaucratic violence during Haileselassie,
they didn’t trust that the empire of the late 19th and the early 20th century has the best in its heart
for the Oromo. Informed by the memory of a century of being absent-while-present in the city
and steadily increasing marginalization in a city that is excised from its ‘mother State’, today’s
Oromiya hardly trusts the Ethiopian state as having the best in its heart for Oromiya.

Where is this deficit of trust coming from? Whence this curse of mutual mistrust? Two sources
readily come to the mind. First, the incapacity of the Ethiopian state to rectify its fractured
relationship with Oromiya. This is easily notable in the failure to acknowledge: a) the presence
of the Oromo in the city; b) the presence of the city in Oromiya; c) that this is the natural home
of the Oromo person and that they deserve to be in the city (and in the polis) rightfully; d) the
originary violence with which it was wrested from Oromos; and e) the existence of wounds that
have yet to heal. Secondly, the failure of the Ethiopian state to generate legitimacy, especially
among the Oromo and the ‘other’ peoples of Ethiopia to date. The fact that traditional sources of
legitimacy (force, genealogy, and religion) have collapsed even in the Abyssinian core after the
1974 revolution and the fact that rational-formal legitimacy has not been generated through
consensual constitution-making processes has forced the state to remain extrinsic to the society.
In the South and among the Oromo and the other ‘others’, the state is merely predatory appearing
almost as the incarnation of the proverbial evil that has come“to steal, kill, and destroy.” Seen in
this light, the Master Plan is a re-enactment and expansion of the inaugural violence, the violence
of dispossession and displacement by an intrinsically imperial state in a federal-republican garb.
The protest to the Master Plan is derived from the trauma of a deep wound that has yet to heal. It
assumes a moral high ground because of the fundamental deficit in legitimacy (both at the
moment of incorporation into the Ethiopian state and at the moment of re-constitution of the state
as a “federal democratic republic” through a formal-rational constitution in 1995). The barbaric
repression of the protest by the state (that resembles an explicit act of state terror administered by
a Command Post and a Joint Counter-Terror Task Force) deepens the wound from originary
violence and entrenches the fracture in original legitimacy of the state thereby making
redemption nigh impossible. Herein lies the bigger tragedy of the contemporary relation of the
Ethiopian state to its peoples.It is this monumental tragedy that forecloses the hope of getting
traction through the articulation of the ‘special interest’.

Conclusions
The articulation of the ‘Special Interest’ package through a task force may be a right moral
gesture as well as an expedient political manoeuvre. However, having seen the restriction of
press freedom through legislation purported to protect freedom of press and information (2009);
having witnessed the elimination of civil society organizations in the name of strengthening the
legal framework for charities and societies (2009); having seen a raft of legislative amendments
to the electoral laws rationalized as broadening electoral rights but curtailing the scope of free
and fair elections; having seen several other laws (such as the law on federal intervention [2003];
the laws to ‘consolidate the powers of the House of Federation [2001] and the Council of
Constitutional Inquiry [2001])—all of which whittled down the rights and free sphere of action
of independent institutions; one has little to hope for as an outcome of this new attempt to legally
enunciate the content of the ‘special interest’. Seen in the light of the experience of the Ethiopian
state’s effective deployment of the language of law to encourage lawless use of power, the
affirmation of the importance of legal articulation of the special interest may actually lead to
denial of the right to the said ‘special interest’. Alas, affirmation it may well be, but perhaps
merely an affirmation of denial.Whatever the outcome, it may now be too little, too late.

Ed’s Note: Tsegaye R Ararssa is a Melbourne-based legal scholar and can be reached
at tsegayer@gmail.com; or ararssat@unimelb.edu.au

Footnotes:

(1) The interest over the ‘Harari People’s State’ seems to have fallen into desuetude since, although the Oromo interest in the city seems to

be attended to through the more or less consociational co-governing envisaged in the Harari State Constitution.
(2) Massive acts of deforestation had led Menelik to contemplate relocating his capital in Ejere (which was then re-named ‘Addis Alem’). Re-

forestation by planting Eucalyptus trees imported from Australia carried the day and Addis Ababa/Finfinne remained the capital.

(3) William C Harris,The Highlands of Ethiopia (1844)

(4) Alexander Bulatovich, Ethiopia Through Russian Eyes: A Country in Transition, 1896-1898 (Richard Seltzer, Tr) (2000).

(5) Evelyn Waugh, Waugh in Abyssinia (1936).

(6) It should be underscored that Addis Ababa is not designated to be a Federal District or a ‘Federal Capital Territory’ (as is the case of

Washington D.C., or the Australian Capital Territory centred in Canberra, or Abuja of Nigeria). Nor is it a City State that also houses the

Federal Government (as is the case of Berlin in Germany or Addis Abeba [called Region 14] during the Transitional Period, 1991-1994).

(7) The Oromo Cultural Centre was built and inaugurated only in 2015

(8) It is curious that it is the Oromiya State Government, alone, that unilaterally established a Task Force to study the ‘Special Interest’. It is

intriguing as to why the Task Force isn’t a Joint Task Force or, if that is impossible, a body neutral to both governments isn’t given the task.

Given the fact that the duty-bearer of the ‘Special Interest’ clause is the government of the City of Addis Abeba, it stands to reason that the

city is an important stakeholder that should either set up its own task force or be part of the Oromia Task Force.

(9) On the issue of legitimacy deficit and the cracked foundations of the constitution, please See Tsegaye Regassa, ‘The Making and

Legitimacy of the Ethiopian Constitution,’ 23 (1) AFRIKA FOCUS (2010), pp.85-118. See also Ugo Mattei, ‘The New Ethiopian

Constitution’Cardozo Review (1995), also available at: http://www.jus.unitn.it/cardozo/Review/constitutional/Mattei2.html

(10) It has to be underscored that the Oromo protest to the Master Plan is not just a demand for a commensurate compensation or an

equivalent replacement for a land expropriated. Nor is it just a demand for the respect of an individual farmer’s or resident’s right of access to

land. It is a collective Oromo objection, qua Oromo, to an act of dispossession of their land and displacement of the people. It is a demand

for a ‘permanent’ sovereignty over one’s own natural resources. It is a demand for landed sovereignty. As such, it is a demand for the

integrity of the Oromo land as a site of exercising sovereignty. The protest is also a rejection of the traumatic experience of the Oromo at the

moment of conquest, the moment of originary violence. As the slogans, the songs (in the demonstration sites as well as the numerous music

video clips released around the resistance), and the chants persistently reminded us, the protest is informed by the memory of

dispossession, displacement, and dislocation of the people in and around what has now become Addis Abeba. The memories evoked by the

Plan, the anger provoked by the arrogance of the TPLF officials (discounting and devaluing the Oromo demand as non-existent)—which is
further inflamed by memories of similar past abuses– have all come to show that the protest has a direct genealogical link to the original

resistance to the inaugural violence of conquest and occupation in the 19th century.

(11) Donald Levine, Greater Ethiopia: The Evolution of a Multi-Ethnic Society. 2nd (The University of Chicago Press, 1999).

The New Ethiopian Constitution: First


Thoughts on Ethnical Federalism and the
Reception of Western Institutions.
Ugo Mattei
Copyright U. Mateei, 1995.

Introduction

If you ask a comparative lawyer to take a look to a

"new" code or constitution, the answer that you are

more likely to get is that there is not much "new"

in it. This sort of reaction happens in front of

the new Ethiopian Constitution too.

Of course, this is true in general, if you look at

the law as a worldwide phenomenon of social

organization. The number of truly original laws and

institutions (and of constitutions, of course) is

very much limited. It has always been easy for

comparative lawyers to find a certain number of

paradigmatic (or leading) experiences that are

followed and/or adapted worldwide (1).


What can be very new for a given country, and

appears so for scholars concerned with its

particular legal system, looks most times like a

"deja vu" for comparative lawyers.

The new Costitution, to be sure, is a big change in

the Ethiopian constitutional tradition. To much

regret, however, short from putting Ethiopia as a

frontrunner of a new and ripe African

Constitutional tradition, it locates it within the

mass of contries that, for one reason or another,

follow the rethoric (part of) the structure, and

many of the cathegories of the American model in a

more or less conscious attempt to import the

strongest version of the western conception of the

rule of law.

The new Ethiopian constitution, in my mind, offers

to the scholarly comunity an occasion to ask

fundamental questions such as: is the western rule

of law a desirable target for an African Country?

What are the fundamental structural and cultural

arrangements that a legal system must offer in

order to make the rule of law work as a legitimate

problem solving device? Can a Constitutional

document, although a very sophisticated one,

provide, if left alone, the basis for the rule of

law? Was it an unrealistic dream to expect from

Ethiopia new and original constitutional

arrangements able to face ethnic tensions and

problems of development outside of a dangerous


intellectual dependecy from the western concept of

the rule of law?

The Ethiopian Constitution of december 8, 1994 is a

new wall made of old imported briks. How solid such

a wall will result in front of the tremendous

pressure that it will have to face, is a question

that it is early to answer. I argue here that,

given the briks of which it is made, there is not

much to be optimistic about.

1. Getting rid of the African legal tradition one

step at the time: 1987 and 1994 Constitutions.

Many scholars argue that a non ethnocentric

classification of the major legal systems in the

world need to give up the old tripartition between

common law, civil law and socialist law. In

particular, the role of legal pluralism should be

taken into account because many countries of the so

called third world do share this particular legal

style(2). Africa is no ecception within the third

world. The Horn of Africa is no ecception within

Africa and Ethiopia is no ecception in the Horn of

Africa.

Pluralism, however, falls short from offering a

structural qualitative criterium of distinction

between the Western Legal Tradition (WLT) and the

different legal traditions in the world (3). A


complementary perspective focuses on the main

characteristic of the western rule of law: that of

a legal process separated in principle both from

the religious tradition (lawyers and priests are

different social actors) and from the political

process (lawyers and politicians perform different

jobs)(4). In non western legal traditions either one

or both these distinctions are absent.

In Ethiopia, the political religious and legal

processes were deeply intermengled during the Negus

regime. Both the 1931 and the 1955 Haile Selassie's

Constitutions were almost "cynical" in their

realism. The emperor was recognized full political

religious and legal power. Religion as well as

force was the source of legitimation of the negus.

This was possibly the strongest anthidote to

political fragmentation in the hands of the Amhara

ruling class(5).

The marxian turn that was taken after the Derg

revolution (1974) went a step ahead in separating

different social functions. The stalinist regime of

Mengistu Haile Mariam, of course, did not proceed

any step in the direction of the rule of law and of

the separation between law and politics. The 1987

Constitution however made clear that Mengistu was

not claiming any religious power. Law and politics

were separated from religion. In this sense it was

a step foreward in reaching the separation between

the three spheres of social control that we assumed


typical of the western rule of law(6). Of course, it

has been argued that the change between the Negus

and the Mengistu regimes was just nominal. While no

signs of limitation of the sovereign power appears

in the 1987 Constitution, marxian ideology was just

proposed as the new state religion. It is however

undeniable that a traditional Ethiopian (or more

broadly African) source of legitimation and of

political unity was lost.

The final step is taken in the 1994 constitution

whose task appears to be introducing the "rule of

law" in Ethiopia. Thanks to the help of foreign

experts, not only the clear separation between law

and religion is confirmed. For the first time in

Ethiopia, the political leadership is subject to

the law. The legal and the political processes are

finally separated. Even the military is kept aside

of the political scene. The Western Legal Tradition

has found its way all the way to Addis Ababa.

Everybody who puts a value on political unity may

be worried. It is not granted any more by a

reeligious monarchy. It is not granted anymore by a

marxian egualitarian ideology. It is not granted

anymore by unrestricted political\military

leadership. The enthusiastic western reaction to

the reduction of the inflation rate may not be

something appealing enough for the people to

substitute the rule of tradition and the rule of


politics as effective means for keeping unity.

While some scholars may welcome this remarkable

achievement, in this paper I will take a rather

different perspective. I will argue that this

evolution is just another example of an

ethnocentric and ahistorical episode of cultural

imperialism. It is the result of intellectual

dependency, the last but not least dangerous,

between the power relations in postcolonial Africa.

It is likely that the result of this constitutional

evolution, inherently foreign to the African

structure of power and decisionmaking, will simply

result in another piece of unapplied written

legislation.

The new Constitution locates itself clearly in the

modern ( or modernized ) layer of the law. It is at

this level of the legal system that it must be

analized: and this is why it is likely to remain

largely unapplied. Chances are, however, that this

remarkably sophisticated constitutional document,

the product of an enlightened western braintrust,

will create serious damages in a political scenario

which is already complicated and dramatic enough.

In particular, I see problems arising from an

American patterned rethoric of rights and of

competition, the foundations of an ethnic

federalism extremely dangerous in Africa as

elsewhere, the institutional weakeness, and the

unbareable complexity of the constitutional


organization.

2. Some bakground

The polytical background of the new constitution is

too well known to be discussed here. Important to

our purposes is only that none of the polytical and

ethnic forces which make the opposition to the

Ethiopian People's Revolutionary Democratic Front

(EPRDF) had participated to the Constitutional

making process. All opposition parties, most

important those representing the Amhara and Oromo

groups ( 38 and 35 % respectively ) withdrew from

the electoral competition.

The new Constitution is therefore supported

politycally and ethnically only by the Tigrynia

minority which counts less than 10% of the

population(7).

The following alternative was therefore open for

the EPRDF leader and now president Meles Zenawi: 1)

a constitution supporting a strong leadership,

imposed by political force, with some risks as far

as the international support is concerned. Or 2) a

constitution which shows the willingness to share

power, in the hope of eventully obtaing larger

internal consent and with the certainty of western

sympathy. The second option was followed thanks to

the remarkable enlightment of the tygrine elite.


Some less sympathetic commentators have detected

behind this choice a divide and rule strategy, a

priviledged attitude towards Eritrean independence,

and a way out in case of political defeat. This

last interpretation seems to be supported by the

provisions on secession which introduce a major

limit to the correct use of the word "federalism"

in the new denomination of " Federal Democratic

Republic of Ethiopia". indeed, as it has been

immediately pointed out(8), secession and federalism

are incompatible cathegories. A comparativist may

only add, at this point, that a framework for a

rather weak executive, breakes with the tradition

of African leadership. This in turn may mean two

things. Either that the structure of power in the

books does not correspond to that in action, or

that this constitution introduces so many

incentives to secession that the unity of Ethiopia

as a Federal state is not going to last much.

As it is very well known, all the federal

experiences that proved succesful in the course of

history do introduce an effective centralizing

corrective (such as presidentialism) to the

allocation of substantial powers to the states. On

this particular point we will come back later.

3. An Academic Constitution?

A good experiment would be to cancel a few


provisions of the constitution such as those in

which the word Ethiopia is contained, or such as

art. 47, which contains the list of the member

states of the Federal democratic Republic of

Ethiopia, and then ask what links such a document

to the Ethiopian reality. If there were many of

such links, this document could not be prroposed as

a constitution for a different country. Otherwise,

changing the word Ethiopia, we could have a model

constitution apt to fit all the realities.

The treasure hunt for typically Ethiopian (or even

only African) provisions gives indeed meager

results. Four provisions (Art 32,1 and 40, 5; art

41; art 44 ), granting the right of free

establishment in any place of the country, are what

remains of the cruel practice of Menghistu ( but of

other dictators too ) to relocate the population.

Art 28 reflects the past tragic experience of the

"red terror" by banning the statute of limitation

for crimes against the humanity.

A few provisions such as those on private vs.

public property (art. 40) do reflect a typical post

colonial arrangement, precluding the de plano

substitution the word Ethiopia with Norway or with

Europe. There is not much specially Ethiopian in

all of this, however, and such mixed provisions on

property rights may be found also today in post

communist Eastern European countries not to speak


about other African or Asian countries.

As I've pointed out elsewhere(9), this structure of

property rights does not break at all with the

colonial structure, nor is it rooted in African

peculiarities but just reflects the colonial

relationship of power as inherited by the post

colonial leading elite in front of the ordinary

citizens. What it may be remarked here is how

communist African regimes were able to introduce

colonial structures even in those contexts such as

Ethiopia where (political) colonization has been a

very marginal phenomenon (10).

Finally, another couple of articles try to reflect

legal pluralism: in particular art. 34, 5 " the

Constitution shall not preclude the adjudication of

personal or family disputes by religious or

cultural laws..." and Art. 78, 5 "The Council of

People's Representatives and State Councils can

establish or give official recognition to religious

and cultural courts". While the former just

reflects an unavoidable reality, the latter is

rather braggy since it assumes a relationship of

(effective) power between official and unofficial

law which was never been the reality anywhere in

Africa.

These few provisions were all I was able to locate

that would make this constitutional draft

unsuitable for a European or for a Northern

American country. Indeed, the impact of American


constitutional rethoric is staggering. It is not

only the rethoric and the fundamental federal

structure of the U.S. Constitution which is

reflected here. There would be nothing unusual in

this. After all, the U.S. constitution has always

been the most influential constitutional document

in the world. What I'm observing is the impact of

the rethoric of American modern law professors

which appears rather ridicolous out of context.

A cursory look to the constitution will give you

the flavour of what I'm talking about: Art. 9

tells us that the constitution is " The supreme law

of the land". Art. 14 assumes the necessity of a

trio of fundamental values : " life liberty and

property" becomes " Life liberty and the security

of the person". Art. 19 introduces the Miranda

warning made famous by the American movies: the

Ethiopian person arrested has "A right to remain

silent and to be notified that any statement that

they make or evidence they give may be used against

them in court". The "rigt to privacy" is not only

generally guaranteed ( art 26) but also

specifically to the accused ( art 20). " Double

Jeopardy" is prohibited (art 23). Of course " the

equal protection of the law" is granted (art 25)...

Many other examples of american constitutional

language can be found.

Talking about fashionable provisions (within the


American academia) we will find that the press

should not only be free but "diverse" (art. 29, 4);

women are entitled to "affirmative" action in order

to be able to "compete on the basys of equality

with men in political economic and social life"

(art. 35,3). The problems that may arise from the

competition between men and women should be

resolved "in the best interest of the child" (art.

36,2). Ethiopians should have a "Right of Access to

justice" which, of course, can be effective only

with the introduction of class actions (Art 37, 2).

A right to a "clean and healty environment" (art

44) completes the list of the rights formulated

with academic rethoric. Other non american

faschionable ideas find their way in the

constitution: between these the Scandinavian idea

of the "ombudsman" (art 55, 15) which in the

eighties became a "must" for any proposal claiming

to be progressive. The right to "sustainable

development", whatever it may mean, found its way

in the constitution as well. A very progressive

section on social rights is added. It would be

difficult for a Scandinavian country to afford its

implementation.

4. A brief scketch on the institutional framework

and its western models.

If the rethoric and the flavour of the Constitution


is clearly American, the fundamental structure of

government is rather mixed.

As I have mentioned, the fundamental "federal"

arrangement reflects the U.S. model (some

knowledgeable commentators claim that there is an

Indian influence at play here) with all the

residual powers allocated to the member States

(Art. 52, 1). The parliament is divided in two

chambers which have rather different constitutional

roles. The Council of People's Representatives,

elected " For a term of five years on the basis of

universal suffrage and by direct free and fair

elections" (art. 54 1) is the legislative branch.

The Federal Council, whose members are elected by

State Councils (also established by the

Constitution) is composed of "Representatives of

nations, nationalities and people" at least one for

each of them, plus an additional member for nation

or nationality for each one million of its

population" (Art 61).

This body has a crucial role in a Federation under

constant threat of secession because it has the

role of supreme interpreter of the constitution and

of referee of all the ethnical (including boarder)

disputes. That is why provisions a little less

vague on its composition (particularly in Africa

where the censiment of the population is not

precise) would have been advisable. It is however


true that the role and the actual composition of

the Federal council can not be discussed if the key

question of the nationalities and of theyr

representation is not resolved first (Art 47, 1,2).

The president (art. 71) has a rather symbolic role

(like the Italian or the German). The executive

Power is vested in the prime minister and in the

Council of ministers which are politically

accountable to the Parliament (Art.72,1). Political

parties are mentioned many times in the

constitution. From an Italian perspective this is

just another evidence of the very weak position of

the federal executive in Ethiopia, and of the major

problems that may arise out of it. On parties I'll

come back in the conclusive remarks.

As far as the judiciary is concerned, the mixed

nature of the systems is even more clear. Following

the U.S. example, "The supreme Federal Judiciary

authority is vested in the Federal supreme court" (

Art 78, 2). The same provision grants the

possibility of estyablishing federal lower Courts.

State Courts will adjudicate federal questions if

such a lower judiciary is not established. Special

Courts are prohibited and tenure of office is

guaranteed in order to guarantee the independence

of the judiciary. No salary guarantee is introduced

to give effectiveness to such independence.

The mixed nature of the judiciary is showed by a)

the typically French civilian power of cassation


that is given to the Federal supreme Court aside of

the regular "final" appellate power and b) by the

denial of constitutional adjudication to regular

courts. Such power of constitutional adjudication,

following the German model, is exercised by a

Constitutional Court, called Council of

Constitutional Enquiry (Art. 82) which receives

jurisdiction incidentally from judges and parties

when an issue of constitutional law arises. How

this power of constitutional adjudication actually

relates with the "power to interpret the

constitution" enphatically given to the Federal

Council by section 1 of art. 62 is not clear.

Two final remarks should be added here, both

pointing to a very problematic applicability of the

constitutional framework. Judges are politically

appointed by the Council of People's

Representatives on proposal of the Prime Minister

on the basis of a selection procedure made by a

Federal Commission for Judicial Administration

(art.81). This is jet another organ in the already

full arena of law officers. This overwhelmingly

complex legal and constitutional structure, will

absorbe a tremendous amount of the very scarce

manpower of jurists. Particularly, if the dual

level of State and Federal Courts its thought to be

fully fledged.
5. Some final remarks.

The federal Constitution confirms the mixed nature

of the modern layer of the Ethiopian legal system.

This characteristic was already at play with Heile

Selassie whom, as it is very well known, was freely

borrowing legal institutions from the French (Civil

Code) and from the Anglo American tradition. This

mixed nature is probably the product of the weak

colonization which affected Ethiopia. In African

States which experienced a strong and longlasting

colonization by one single power the flavour of the

legal system has not changed after decolonization.

The American model the dominates today's Ethiopian

Constitution is the leading legal system worldwide.

Most of its success is due to its effectiveness in

protecting individual rights in the course of the

two world wars (11). The rethoric of individual

rights, of individualism and of competition that is

produced by the American model could not be more

foreign to te African mentalite'.

A strong and ideological assertiveness of rights

can have very destabiliziong impact on the

Ethiopian society. This is in particular true when

such rethoric touches such crucial problems as self

determination and secession. A Somali legal

scholar, Ahmed Botan, has cxonveyed with bitterness

this idea with a sad joke which was circulating in

Addis Ababa during the negotiations for the peace


in Somalia: "Somalia and I against the world. My

clan an I against Somalia. My family and I against

my clan. My brother and I against my family. Me

against my brother!" (12)

A well developped rule of law based on individual

rights can not live outside of a constant process

of mediation, that in more advanced western

societies is given by the legal culture. In

Ethiopia at the moment there is no legal culture

and the state in which legal scholars are abandoned

in the University of Addis Ababa does not allow

many hopes for the future. It is not rights

assertiveness that should be borrowed from the

American experience: it should be the ability to

arrange continuity and change within a flexible

institutional framework accepted by a number of

very different people.

In Africa, right assertiveness is particularly

dangerous if it is understood as rights of a clan

to be asserted agaist the others. The traditional

decentralized ethnic African society endorsed and

endorses a decision making style that could not be

more far from the western right assertiveness. It

was a culture of mediation, of unanimity, of

peacekeeping not much different from the

international law which governs the international

community. (13)

Possibly the Ethiopian constitution opens to this


model by granting an important right of secession.

Such right, however is in contraddiction with the

very idea of a federalist constitution and a lawyer

should point out this contraddiction. If the right

to secession will become a possible way to find new

arrangements of coexistence more simple and

suitable to tha African reality than a very complex

American based mechanism of federalism is an open

question. It is sure however that federalism to

work requires a high degree of political and legal

expertise that not many countries in the world

enjoy today. It should be added, however, that

ethnical federalism particularly when ethnicism

gets represented by political parties (politicized

ethnicism) is the worst of the possible worlds.

If Africa desires to borrow from western

institutions, which I do not belive to be a sound

policy, i belive it should do so after a serious

comparative analysis of the pros and the cons of

each institutional alternative. If there is

something that the American model can teach, is the

absence of any ethnic element in an efficient

federalism. What is crucial is to detect the best

institutional level in which decision making should

be exercized. From this point of view, some hopes

may come from art. 55, 6 which mandates the Federal

legislature to codify in civil law only to the

extent that " The Federal Council deems necessary

to mantain and sustain one economic community".


This idea or perhaps its lighter application, the

so called principle of subsidiarity which is

nowadays leading the European integration, may be

considered as alternative ways to create federalism

without pointing all the stress on the ethnical

level.

Another secret of the success of the American

political system which can be crucial in

multiethnic communities is that it has protected

the minorities in their fundamental political

rights in a rather satisfactory way thanks to its

high level of legal culture. Even more important,

the American political system has worked out an

electoral system that attracts minority wiews in

the mainstream, rather than causing the

proliferation of parties.

Despite the presence of nearly one hundred nations

within it, Ethiopia is a rather unitary nation

state if compared with other African realities(14).

Ethnicity should not be disregarded, as it happened

in the past history, but we should not fall in the

opposite extreme of interpreting every and all

African social dynamics as a function of it.

To make this constitution work, there is much need

of intermediate circuits of decision making between

the State and the ethnic group. A serious political

and institutional effort should therefore be made,

when and if the constitution will be actually


applied, to keep low the number of political

parties by mean of ad hoc electoral laws. This

would be the only possible way to defeat the

"politicized ethnicism"(15) because it will force

ethnic political groups to seek coalitions before

participating to political elections eventually

bringing to the birth of two major parties.

As it has been noticed in a recent article, it is

within the political party that the whole african

art of mediation and of search for unanimity could

find a "modern" substitute for the village meeting

and for the other traditional decision making

devices(16). Leadership within major parties may

eventually reduce some of the problems created by

the potentially weak government described in the

constitution.

Of course all of this lead us to question the

assumption that the rule of law as distinguished

from politics and the rule tradition is a good

achievement in Africa in general and in Ethiopia in

particular.

Notes

(1) See SCHLESINGER


(2) See VanDer Linden e Reyntiens
(3) see Griffith, What is legal pluralism
(4) see Mattei, Verso una tripartizione non etnocentrica dei
sistemi giuridici
(5) See Brietzke, Ethiopia leap in the dark
(6) see Sholler in Reyntiens
(7) This fiugures (apparently understated as far as the
Oromo are concerned) can be founf in the 1980\84 census
cited in Brietzke cit. supra
(8) See Brietzke
(9) Mattei, Socialist and non socialist approaches to land
law. continuity and change in Somalia and other African
States
(10) See on this aspect Calchi Novati in Ethiopian studies
congress 1986
(11) see Mattei, Why the winf Changed. Intellectual
leadership in Western Law, Am.J.Comp.L.
(12) BOOTAN, Somalia. Stato Regionale o Cantonizzazione
Clanica?, in Studi Sacco (1994) I 94 ss a p. 117.
(13) See Sacco, Modelli notevoli di societa'
(14) See Calchi Novati
(15) See Botan, cit, M.Aden, ASrrivederci a Mogadiscio
(16) See Castellani