Article 39 of the Ethiopian Constitution on secession and self-determination: a panacea to the nationality question in Africa?

Legal Uncertainty, Plurality of Legal Norms and Sodal 'Anomy' in Latin America


Introduction
Ethiopia's historie resistance to any form of European colonialism when the rest of Africa apart from Liberia was subjugated by European colonial powers, stands out as a glorious chapter in Africa's resistance and response to European colonialism.
1 Apart from a brief period of Italian occupation, Ethiopia as a state inflicted on European colonialism one of its telling defeats in their colonization enterprise in Africa. This response optimized the aspiration of an African state which had the will and the means to counter foreign aggres sion and occupation. Ethiopia as a state has a long history and together with Liberia, provide an example of not only a tale of historie Afri can tenacity and political survivability in invidious milieu but also exemplified the existence of organized societies with stable governments. It has an enduring long history of statehood with the accompanying inter national personality. Ethiopia has faced these internal challenges for it is a "nationality mosaic" with the major groups all having a historie aspiration to statehood? The creation of the State of Eritrea in 1994 was the final fruition of Eritrea's struggle for statehood "delivering to Africa the first country born through secession since decolonization". 8 So, whereas Ethiopia has successfuIly resisted foreign aggression, demonstrated a pugnacious will, and has thus maintained its independence externaIly it had not been as successful internaIly. The history of Ethiopia provides a historie incongruity and contradic tion of an established and weIl recognized external sovereignty and a lack of andJor shrink age of internal sovereignty exhibiting the c1assical paradigms of de fa cta and de jure For the view that Ethiopia is better off as unitary state and further that self-determination based on ethnic self-determination should not be implemented in Ethiopia as it is counter-productive, see Hizkias Assefa , Crucible of civilization and conflicts: Ethiopia, in: P. Anyang' Ny ong'o (ed.), Arms and daggers in the heart of Africa: Studies on intemal conflicts (1993), pp. 15-32. For their vision and attempt to restructure the system of the country, see Human Rights Watch -Africa, Ethiopia: Reckoning under the law (1994).
also allowed internal self-determination within a federal system of government creating various regional governments that are ethnically based. II This paper analyzes the constitutional right of peoples to secessionist self-determination in both the interim constitution and the current constitution of Ethiopia. In this respect we decipher into the constitutional implications of such inc1usion and attempt to see whether this inc1usion is ap recursor of a new chapter in modem governance in the African state or a passing fade for pro hac vice of the current regime. We also analyze the frontiers of Artic1e 39 of the Ethiopian constitution, that is its expanse and delimitations and see in the final analysis whether it adds to or subtracts from the position of general international law on secession and self-determination. Article 2 of the Interim Charter stated: "The right of nations, nationalities and peoples to selfdetermination is affirmed. To this end, each nation, nationality and people is guaranteed the right to: a) Preserve its identity and have it respected, promote its culture and his tory and use and develop its language; b) Administer its own affairs within its own defined territory and effectively participate in the central government on the basis of freedom, and fair and proper representation; c) Exercise its right to self-determination of independence, when the concerned, nation / nation ality and people is convinced that the above rights are denied, abridged or abrogated. Apart from being a bold experimentation, the incIusion of ethnic self-determination that aIlows dissatisfied ethnic nationalities the right to secede could be a reaIization that ethnicity instead of being dismissed or wished away should be incorporated constitutionaIly and the institution of the state should reflect the ethnic composition of the state accord . I 1 3 m gy .
The right of peoples to secessionist self-determination is by its very nature a radicaI right.
Even more radical is the incIusion of such a right into the constitution of an African state. (1) Every nation, nationality and people has an unconditionaI right to self-deter mination incIuding the right to secession.
(2) Every nation, nationality and people in Ethiopia has the right to speak, to write and to develop its own language; to express and to promote its culture; and to preserve its his tory .
(3) Every nation, nationality and people in Ethiopia has the right to a fuH measure of self-govemment which incIudes the right to establish institutions of govemment in the territory that it inhabits and to equitable representation in regional and national govemments .
(4) The exercise of self-determination, incIude secession of every nation, nationality and people in Ethiopia is govemed by the fo llowing procedures: (a) when a demand for secession has been approved by a two-third majority of the members of legislative council of any nation, nationality or people; (b) when the Federal Govemment has organized a referendum which must take (e) when the demand for seeession is supported by a majority vote in the referen dum; (d) when the Federal Government will have transferred to the people or their couneil its powers; and (e) when the division of assets is effected on the basis of law enaeted for that purpose.
(5) A nation, nationality or people for the purpose of this constitution is a group of people who have or share a large measure of a common eulture, or similar eustoms, mutual intelligibility of language, belief in a common or related identities, and who predominantly inhabit an identifiable, contiguous territory. " Article 39 of the Ethiopian constitution is a unique provision in two ways. Constitutionally, it inaugurates the right of eommunities or group rights within the context of the African state and transplants the same into a substantive constitutional provision. 14 Seeond, from an international law perspective it incorporates a fundamental but radical norm of international law into the municipal legal regime of an Afri can state, a remarkable act in the African The gist of the article reveals and underlines the two traditi onal facets of the rights.
Whereas the right of peoples to self-determination is expressly and affirmatively stated, the inclusion of secession as a distinct form of self-determination clearly raises two issues.
First, nations, nationalities and peoples within the Ethiopian state are gi yen the right to internal self-determination within a federal stmcture. In this regard the constitution mandates the creation of 15 regions that forms the federal states and the same are exclu sively created on ethnic basis. 1 7 Second, these groups are further given the right to secede if they so wish and form their own new states under article 39. The ultimate and exclusive right to trigger secession is thus placed in the hands of these ethnically based states. Seces sion is explicitly and quite deliberately established as discrete form of self-determination which according to the provision should lead to the creation of a new state. It therefore illuminates the clear definitive contours of the right to secede and further emphasis the establishment of the right affirmatively and unequivocally.
Two sub-sections of article 39 are also important. 39 (4) is indeed crucial. It establishes an elaborate mechanism to be followed when the holder of the right to secede tri es to exercise it. In this regard, the procedure is elaborate and it further provides for the facilitating role to be played by the Ethiopian State in the process. Under 39 (4) (a) a demand for secession has to be approved by two third majority of the members of the Legislative Council of any nation, nationality or people. This provides an important check against any thoughtless or purely jingoistic agitation for secession. It pegs the right to secession on the majority of the parliamentarians in the concerned State Assembly as representatives of the people who want to secede. As a starting point, the right to secede can only be constitutionally triggered by the Legislative Assembly of the seceding state. This is a judicious and democratic way of ascertaining that the will of the people through their democratically elected leaders should be the custodians of the right.
After the concerned legislature passes ar esolution to secede, the Federal Government under article 39 (4) (b) has to organize a referendum within the seceding state in order to double check as to whether or not the resolution of the Legislative Assembly is a tme reflection of the will of the majority of the people, nation or nationality within the concerned state. This must take place within three years after receiving the vote of the Legislative Council. This , provision makes sure that the majority of the people within the region are in support of secession. It provides a two tier mechanism which in concurrence have to lead to the only conclusion, that the majority of the people within that state are for secession. This is fu rther 1 7 Artic1e 47 of the constitution, which establishes the right of internal self-detennination, states: "(I) Member states of the Federal Democratic Republic of Ethiopia are the following: I. Tigrai, 2. Afar, 3. Amara" 4. Oromia, 5. Somali, 6. Benshangul / Gumaz, 7. Southern Nations, Nationali ties and Peoples, 8. Gambela Peoples, 9. Harari People.
(2) Nations, nationalities and peoples within the states enumerated in sub-artic1e (I) of this artic1e have the right to establish, at any time, their own states." buttressed by artic1e 39 (4) (c) which mandates that for secession to be allowed the majority of the participants in the referendum to be subsequently organized must be in support of secession. It establishes a simple majori ty and not an absolute one. Once the above three events occur in methodological sequence, then under 39 (4) (d) the Federal Government transfers "to the people or to their councils its powers ". This is a very important section that underlines yet again the "good faith" role of the Federal Government of Ethiopia and the organized manner of implementing the right to secession. Once a majority of the people vote for secession in the referendum, the Federal Government divests itself of all its sovereign powers and transfers the same to the new state so created and ceases to exist as the sovereign vis-a-vis the new state. Under subsection (e) assets have to be divided between the new state and the Federal Government of Ethiopia.
Artic1e 39 (5) adds a further clarity to the breadth and width of who is entitled to secede under the constitution. It elucidates a pertinent question of international law, in that it answers the question who is the "self' that has the right to determine its destiny? It defines who is the nation, nationality and peoples who for the purposes of the constitution can secede or exercise the right to secession. It formulates a working definition of who is entitled to the right. This provision not only delimits the frontiers of who the self is but it also identifies the possessors who can exercise the right of peoples to secessionist self determination. The controlling criterion are thus, a common culture, same language, identity or common heritage and inhabiting a particular territory. It is significant that religion is not explicitly mentioned, the probable reason being that various ethnic groups in Ethiopia have substantial number of their people professing either Islam or Christianity.
Article 39 is comprehensive postulation of all the issues that normally concern the right to secede and self-determination. One, it firstly establishes the constitutional right of ethnic nationalities to secede from the state of Ethiopia . After that it lays an elaborate and effec tive procedure to be fo llowed on the road to secession . Lastly, it quite importantly defines who the right holders are, that is it defines the nation, nationality and peoples who are entitled to exercise the right to secessionist self-determination.
b) Article 39 and secession under international law: how revolutionary is Article 39 ?
Inasmuch as Article 39 establishes a very radical constitutional provision, the same in reality may be restatement of the international law position on the subject. One could however notice some obvious but deliberate omission. Secession due to its radical content and drastic consequences has historically been treated with some superficiality and subjected to statal suspicion both as an issue of political philosophy and as a concept of international law. 18 The historie mistreatment meted out to the right of peop1es to secession and self-determination was mainly due to the fact that these species of rights can only be exercised by peoples against their states. States being the main players on the international plane, a plane where much of international is legislated are naturally hostile to any right exercisable against them especially when the same impinges on their sovereignty and terri torial integrity. States have in this regard exercised all blockages against the ,right to secede, after all they have skeletons in their elosets to hide.

'
Notwithstanding state hostility and traditional limitations on these rights, secession and self-determination have over the years bloomed to full legal rights and under certain circumstances may have attained a jus cogens status under international law.
20 During its formative stages of development all kinds of limitations were thrown on its path and unrealistic contours drawn around it. Attempts were made to restriet the scope of the prin cip1e on such tests as "salt water" and "pigmentation" or color. 21 The former required some oceanic separation between the seceding state and the parent state from which it secedes from, while the later required the two parties to be of different color. 22 Despite this dilatory attempts secession and self-determination are now accepted a:, legal rights belonging to nations, nationalities and peop1es. 23 That these rights are accepted legal rights has been fo rtified by the events following the end of the cold war and demise of the Eastern block countries. Through these historie events "one can detect a weakening in the existing taboo against secession, indeed the signs of an emerging paradigm shift whereby secession will no Ion ger be treated as unthinkab1e in the international system,, 24 .
The argument for and against secession is usually presented as a elash between the right of the parent state to territorial integrity and sovereignty on one hand, and the human rights of particular peoples within that country to determine their political destiny. Whereas inter national law affirms the right of the state to territorial integrity as against other states, the Allen Buchanan, Self-detennination and the right to secede, Journal of International Affairs, 4S state has no such right against its own nationals under international law. No known norm of international law exists that inhibits citizens of a country to secede from the parent state.
The right to secede however is not an absolute right that can be exercised by every one under some self-serving circumstances. It is now weil established that some universally accepted conducive factors for secession must exist for the right holder to exercise it. In expounding-juridically, the right to secede, scholars are of the opinion that there must be justifiable reasons to do so. It is a right that is triggered by some misfortune or abuses against the right holder that are attributable in wh oie to the parent state's policy towards a particular people.
Various justifications have been propounded by scholars as to when the right to secede can be exercised. According to Allen Buchanan, "the most obviously compelling justification for secession may be called the argument for rectifictory justice,, 25 . This argument is premised on the theory that the people who are exercising the right to secede are just recalling or retaking what was legitimately theirs. He makes the common law analogy of the recovery by the legitimate owner of goods stolen from hirn by a thief, z6 This according Lea Brilmayer is "historical grievance version of the territoriality thesis,, 27 Her argument goes that any claim by community to secede must be based on a historie claim to a territory. The land they inhabit provides a historie symbol of both their uniqueness and their potential for statehood.
Discrimination against a nation, nationality or people also pro vi des a legal justification to secede. The victims of discri mination have to demonstrate that they are victims of discrimi natory redistribution at the hands of the state, z8 This mode of human right abuses against the right holder is considered a serious violation of human rights that can trigger the exercise of the right to secede as an ultimate redress of their human rights violation.  16 (1991). Buchanan, supra note 21, at p. 354. Alexis Heraclides, supra note 24 at p. 41 1, suggests four core qualifications or factors to be considered under which the right to secession can be exercised: 1. systematic discrimination against minority group; 2. the existence of a distinct group, nation, nationality or people with a state which overwhelm ingly support secession; 3. the possibility of peace between the two states and a good chance of co-existence; 4. the rejection of comprise solution or concession by the central government.
Abdullahi An-na 'im suggests a similar criterion to be followed in assessing the right of selfdetermination: ' 1. the degree of internal cohesion and unity within the group; 2. the quantum of their claim; Verfassung und Recht in Übersee (VRÜ) 3\ (1998) right to secession is also exercisable when the people who are agitating to secede from the rest of the state "can not longer live in peace and security or fu lfil their legitimate indi vidual aspirations within the larger political community,, 30 On top of these factors a legiti mate claim for secession must demonstrate that the claimant is in fact of such composition that it is capable for existing as a viable political entity. It must be able to establish and sustain an international personality on its own or in union with another entity. 31 This viability of the entity as an international personality raises two issues, first, the new state must be capable of independent political existence as a state and second, it must be viable politically with the distinct chance of survivability in future. 32 Africa's riposte adducible both from the practice of states and even the theorizing by most African scholars points to a total rejection of secessionist self-determination in post colonial Afri ca. 33 This unenlightened position is a product of Afri ca's past history of dictatorship and human rights abuses in an era characterized by the absolutism of state power and gross abuse of human rights against the people. It was too much to expect of these African states to allow the right of peoples to self-determination and secession when most of them failed not only to observe the basic human rights of their citizens but to certain extent implemented policies that were gross violations of human rights as state policies. Because any fo rm of self-determination has sometimes been referred to as the right Id., at p. 230. A prominent exception in this regard amongst scholars is Issa G. Shivji. Commenting on the fallacy that secession and self-determination has no place in post-colonial Africa he states: "Restriction of right to self-determination to colonial and colonial-like situations (South Africa) in the state practice ... and the absolutising of the principle of territorial integrity is based on two rationale. On the one hand there is the fear that the recognition of this right would lead to dismemberment of states and encouragement of secessionist movements and on the other it will provide a fertile ground to foreign powers to support such movements thereby weakening the sovereignty of the African states . ... Recognition of the right to secede does not automatically mean that every nation or people have a duty to secede; indeed, the fathers of this rights believed that the very recognition of the right to secede and democratic treatment of all nations and nation alities within a particular state lead to a situation of voluntary union of nations rather than seces sion . ... [T]he right belongs to an oppressed nation and if a nation is not oppressed, that is to say, it is treated democratically and accorded equality, both the reason and rationale for secession disappear." lssa G. Shivji, The concept of human rights in Africa (1989), p. 74.
of the winner in a Darwinian conflict for survival 34 , Afri can states strongly countered the notion of secession as a right applicable to any section of their subjects once independence was attained. Afri can states have successfully used the right of sovereignty and territorial integrity and even the right to development as a shield to completely rule out the right to secession and self-determination. generally Basil Davidson, The black man's burden: Africa and the curse of the nation-state (1992). This has been shown by the Eritrean experience to be inapplicable and the argument by the states in Africa that self-determination in one country will lead to the break-up of other is clearly base less, see Shivji, supra note 33. For the traditional arguments advanced by African states accepted and developed through the Organization of African Unity (OAU) see generally fan Goddard, The national question in independent Africa, Horn of Africa, Vol. I, no .. 3 (1978), pp. 51-58. the controlling indicia for the exercise of the right like, subjugation, domination and exploitation of right holders exist with a certain geographical area. 41 The Ethiopian constitution through article 39 in addition to being a restatement of the intemational law's position on secession and self-determination, nevertheless goes further.
In remarkable departure, it also departs from the position of the interim constitution which gave the reason or factors that can trigger the exercise by an ethnic community or people to agitate or implement their constitutional right to secede. Like intemational law the interim constitution set out persuasive reasons that could compel the people or nationality to exercise the right to secede. 42 The exclusion of the factors to be considered in the exercise of the right to secession and self-determination in the current constitution makes the exercise of the right much easier and practical, but it could have a dangerous consequence in that it freely avails such a drastic right to all nations, nationalities and people. But the danger of reckless use of the right seem farfetched in that the philosophy that underlines the constitution and even the state of Ethiopia is a voluntary union of tribes, nationalities and people. Article 39 allows the same free union to be dissolved or at least altered by any member who is no longer satisfied with the status quo in Ethiopia as a state. H.
The ethnie factor in the African state: Is Ethiopia showing the right way?
The nationality problem in Africa has a long history of creating conflict and instability within the states in Afri ca. Ethnic tension and antagonism is the whole mark of many states in Africa and so far is the single most important fact leading to the disintegration of states. African states faced with the national question have adopted either of two strategy in dealing with the same, fight the ethnic genie officiaIly, then sideline most of the ethnic groups and practice it behind the scene, or wish it way-assume it has no relevance or existence in the country. Ethiopia seems to add a third option -recognize it, and then African states should jettison the romantic vision they have of the current border regime and embrace ideals that are responsive to the human rights aspiration of their citizens. For the past thirty years Africa has idolized these borders at the alter of creating human tragedy and it is time to take stock of this state obsession with the current borders regime even if the same could lead to the reorganizing and restructuring of states or even dismembering of some states.

Conclusion
Ethiopia is probably the oldest organized state on the African continent. It is one country that has experimented with many forms of govemance and aIl political theories of the state have been tested to their very limits. It is now unveiling a new form of political govemance which empowers all the people of the country through various forms of self-determination, inc1uding the right to secede. It has reinvented the state in Africa, adopts an indigenous form of govemance whereby the various ethnic nationalities have an overwhelming power over the central govemment and gives the state in Africa for the first time an "African look". It divests power from the central govemment and empowers the regions which are controIled by the various ethnic groups. In this way, the central govemment which histori caIly committed gross abuse of human rights against its citizen usuaIly on ethnic grounds has its powers drasticaIly curtailed. Only someone who has no veneration for the human rights of nations, nationalities and people will cry for the old order.

ABSTRACTS
Legal Uncertainty, Plurality of Legal Norms and Sodal 'Anomy' in Latin America

By Peter Waldmann
The article's subject is the competition between formal and informal mies in Latin America. First, it shows the deficiencies of formal law in these countries. Then it develops a scheme of different forms of the relationship between formal and informal order defining them as "complementarity", "dualisrn" and "autonomy in the shadow of Leviathan". In extreme cases where no clear stmctures are visible anymore it propones to speak of "anomy". In the final section the article draws some conclusion from the heterogeneity of mies prevalent in this region.
Article 39 of the Ethiopian Constitution on Secession and Self-determination: A Panacea to the Nationality Question in Africa?

By Ahmednasir M. Abdullahi
This paper addresses an innovative constitutional provision of the Ethiopian constitution. Ethiopia as the oldest state in Africa has gone fuH circle in constitutional engineering. At one time it was a feudal monarchy, replaced by marxist dictatorship, punctuated by various ethnic rebellion, culminating in the creation of Eritrea through secessionist self-determina tion and the constitutional incorporation of the right of secession and self-determination in the current constitution.
Considering the role of ethnicity in state (mis)management, the inability of the state in Africa to address this issue legally and violent consequences it had on the state in Africa, this article argues that the present article 39 of the constitution is an innovative provision that addresses the aspiration of ethnic groups and allows a safety valve in the winding up of the state in Africa. The article within the context of state management in Afri ca for the first time envisages a scenario in which the life span of the state is delimited. Article 39 provides a civilized way of ending the state when the various ethnic component of the state in Africa fail to agree on how to live with each other. This article is worth copying.