Unconstitutional constitutional amendments in Ethiopia: the practice under veil and devoid of a watch dog

Abstract

The Constitution of the Federal Democratic Republic of Ethiopia (FDRE) under Article 104 and 105 sets forth amending clauses for formal constitutional changes that sets procedures to be observed in the process of constitutional amendments: both initiation and approval. Such constitutional provisions serve to confine the power to amend the constitution within the prescribed legal requirements as well as help to control arbitrary changes to the constitution, which consequently promotes constitutionalism within the country. The FDRE Constitution has been amended twice within these twenty years. The first amendment was made on Article 98 of the Constitution in 1997, and the second on Article 103 (5) of the Constitution in 2005.This study explores the practice of such constitutional amendments and their constitutionality under the Ethiopian legal context. The study argues that the first and the second amendments substantially contravened procedural requirements set by the Constitution, and hence are unconstitutional. Moreover, the study also examines the institutional set up of the Ethiopian legal system and finds that neither the House of Federation nor ordinary courts are appropriate organs to review the constitutionality of constitutional amendments. Finally, the study recommends that amendments made on the FDRE Constitution should be published, and institutional reforms to be carried out in order to (re-)organize a watch dog body to safeguard the Constitution against practice of unconstitutional amendments.

Keywords: amendment, constitution, Ethiopia, House of Federation, judicial review, unconstitutionality