Monday, 13 April 2020 00:00

COVID-19 state of emergency and the federal balance of power

Written by  by Tefera Degu
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emergency which is a uniform over time.” She added that the decree is “to prepare the
foundation for subsequent binding regulations that will be set by the federal government
assessing these various shifting trends and dynamics that the virus will entail.”
These statements raised concerns, particularly in relation to the ‘principle of legality’ as there is
insufficient precision and clarity on the measures and restrictions to be imposed, although some
measures have now been announced by the Attorney General’s Office.
But arguably even more striking was the Press Secretary’s statement that: “in the event of any
contradictions between the [state of emergencies declared by the federal government and
regions], the federal state of emergency supersedes regional state of emergencies, unless the
regulations decreed by regions reflect much more stricter measures in mitigating the virus.”
Similarly, Article 3 of the federal state of emergency decree provides that “any federal or state
law, decision or practice which contravenes the emergency declaration shall be of no effect.” It
appears that “any state law” here includes regional state of emergency decrees.
This raises the issue of constitutional validity, including the overall Ethiopian federal
arrangement. The position that the federal government’s state of emergency overrides existing or
future emergency declarations by regional states brings into question the federal-regional balance
of power.
Power struggle
Both federal and regional governments have the power to declare states of emergency under
Article 93 of the FDRE constitution. The federal government through the Council of Ministers
can declare an emergency in the event of external invasion; a breakdown of law and order that
cannot be controlled by the regular law enforcement agencies; natural disaster; and an epidemic.
The emergency could either be nationwide or geographically limited.
Likewise, regional states through their executives have the power to proclaim “a state-wide
emergency decree” in the event of a natural calamity or epidemic. Unlike the federal
government, regional states do not have the power to declare an emergency due to external
invasion or breakdown of law and order that endangers the constitutional order.
At regional level, although a number of measures have been taken to prevent the spread of
COVID-19, it was only Tigray on March 26 that enacted a region-wide state of emergency.
Amhara imposed a lockdown in Bahir Dar and other three towns of Awi Zone where there have
also been confirmed infections. A complete ban on public transport entering the region was
imposed by the regional executive. Similar travel restrictions were applied in Oromia and
Southern Nations. Legally speaking, all these measures should have been employed under the
framework of an emergency declaration.
Ethiopia’s COVID-19 quandary
Uncertainty shrouds the actual spread of the virus so far and the most appropriate method of
tackling it in the Ethiopian context.
The federal decree is applicable also in Tigray, which means that two state of emergencies will
overlap. The Tigray emergency is for three months while the federal state of emergency is for
five months. This is not a problem by itself. The problem is whether Tigray region will apply the
federal decree for the remaining amount of time after its own measures expire. Also in terms of
content, the federal decree incorporates measures that are not envisaged in the regional decree.
We will see how this will be managed.
Parallel applications could also happen in other regional states if they make emergency
declarations in the future. Double states of emergencies do not seem to be unconstitutional as
long as they do not contradict each other. But inconsistencies appear somewhat likely given
political differences between regional governments such as Tigray’s and the center. Also, the
commitment to implement the federal government’s declaration may be minimal in Tigray.
The Press Secretary’s claim that the federal decree supersedes regional ones was presumably
designed to pre-empt such controversies. She clarified that “regions cannot necessarily minimize
the state of emergency regulations where federal government state of emergency is deemed
much stronger and stricter.”
Lack of respect?
The assessment of federal superiority is based on Article 50(8) of the constitution which
describes the structure and division of power between the central government and regions. The
constitution provides that “the states shall respect the power of the federal government. The
federal government shall likewise respect the power of states.” This issue of the balance of
power between unity and diversity is in fact one of the most debatable issues in federalism
studies.
While some systems empower the federal government, others tend to give regional states equal
power. The power-balance dynamics in the Ethiopian federal system, on the other hand, have not
been clear. Some experts in federalism studies have argued that Ethiopian federalism “silently
passes over the issue of the matrix of the relationship between unity and diversity.”
What is at least clear in the constitution is that the central government does not have an overly
dominant role in the federation. Federal supremacy is not clearly endorsed in the text. In practice,
however, regions are always a second tier of administration, and I think the above interpretation
regarding federal superiority over states of emergency application comes from this orientation

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