The status and fate of the Eritrean Constitution

 Simon M Weldehaimanot
 LLB (Asmara), LLM (Human Rights and Democratisation in Africa) (Pretoria)
 TMF Human Rights Fellow, Institute for Human Rights and Development in Africa, Banjul, The Gambia
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 Edition: AHRLJ Volume 8 No 1 2008
  Pages: 108 - 137
 Citation: (2008) 1 AHRLJ 108-137
 Download article in PDF

The author is grateful to Daniel R Mekonnen for his invaluable contribution in this work.

Summary

Between 1993 and 1997, Eritrea was engaged in a constitution-making process. In accordance with the legal framework set to guide the process, the constitution-in-the-making was finalised on 23 May 1997. There is disagreement about the status of this Constitution. Although it remained supportive throughout the constitution-making process, the transitional government of Eritrea has declined to implement the Constitution more than ten years after the Constitution had been ratified. The government of Eritrea’s reluctance is ascribed to the absence of an entry into force clause in the Constitution and the 1998-2000 border conflict between Eritrea and Ethiopia. The government used this as a pretext and as a result, constitutional development in Eritrea has been arrested for a period of ten years. This article investigates the factors affecting the status of the Constitution and concludes that, in spite of certain flaws in the constitution-making process, the Constitution is a legitimate pact that has been in force since the date it was ratified.

1.  Introduction

Considering the way state formation finally took shape in Africa as a result of colonisation, Eritreans believed that they were entitled to an autonomous state of their own. However, they were put together in a federation with neighbouring Ethiopia. [1]  The federation that gave Eritrea a semi-autonomous status was not respected. As a result, political resistance to the Ethiopianisation of Eritrea led to the first sporadic instances of armed struggle, and as the decade progressed, this defiance coalesced into a potent guerrilla force under the leadership of the Eritrean Liberation Front (ELF). [2]

In the early 1970s, a group of ELF commanders defected from ELF and, after forming many factions, eventually formed a rival group, the Eritrean People’s Liberation Front (EPLF). [3]  Both fronts continued fighting against Ethiopian domination and from time to time fierce fighting took place between the two fronts (during the 1970s and 1980s). [4]  By 1981, EPLF had vanquished ELF, removed the latter from Eritrea to exile and had become the only significant armed resistance movement on Eritrean soil. [5]  EPLF fighters survived continual Ethiopian offensives and, by the late 1980s, they were beginning to claim significant battlefield victories and ultimately, on 24 May 1991, EPLF forces entered Asmara, the Eritrean capital.

On the other hand, since its exile, ELF generated factions that now stand as opposition political parties in exile. [6]  Their organisational existence did not face the same setbacks as their military defeat. [7]  Yet, they are so weak that many of them are run by part-time leaders with no or little public support.  [8]

Some important post-May 1991 events were that EPLF formed a provisional government, later re-named as ‘the government of Eritrea’ (GoE); a referendum was conducted by which the fate of the de facto independent Eritrea was decided along the line of self-determination and, subsequently, the GoE took the initiative to prepare a constitution.

2.  The constitution-making process

Much has been written by Eritreans and non-Eritrean observers about the Eritrean experience of constitution making. [9]  What follows is a brief presentation of the facts of the constitution-making process to the extent relevant to this article.

2.1  Prelude to the process

It was in 1992 that the EPLF formed the GoE. [10]  Ideally, the post-independence era was ripe for a process of national reconciliation and forming a transitional government that includes the opposition parties. [11]  Generally, the opposition forces expected a transitional government of national unity to be formed and they would thus have a say on the transitional affairs of Eritrea. [12]  Nevertheless, the issue of national reconciliation was not accepted by the GoE in the way the opposition forces wished, which required recognition of not only the latter’s contribution to free Eritrea, but also the latter’s right to participate in the transitional governance. [13]  However, EPLF led the independence struggle to its end and thus felt it had the sole right to preside over the transition, as was manifested in some of the legislation it had promulgated. [14]  As was true with many early post-colonial African governments, EPLF was not enthusiastic about seeing a multi-party system in Eritrea immediately after the hard-won independence. The only sign of a willingness to promote reconciliation was EPLF’s willingness to let the opposition leaders abandon their organisations and join EPLF and the GoE.

Thus, when some of the opposition leaders were boycotting the GoE’s call for assimilation, the GoE presented the opposition forces as mere terrorist groups with ‘sub-national agendas’. [15]  The GoE did all it could to claim all the credit for liberating Eritrea. [16]  As a result, as one observer noted, the GoE was able to make the Eritrean public believe that there was no adversary political force with which EPLF needed to be reconciled. [17]

Furthermore, amidst the jubilation of the independence days, according to the perception of many Eritreans, there were no major political differences or ethnic or religious issues that needed to be dealt with sensitively during the constitution-making process. However, the country is made up of nine ethnic groups, each with its own dialect, though multilingualism is common and roughly half of the population is Christian and half is Muslim. Three years after the de facto independence, the whole nation was enthusiastically celebrating. [18]  Thus, Eritreans felt or were made to believe that they were ‘one people’ with one way of thinking and nobody was outside or excluded. [19]  Indeed, the opposition forces have gained little public support, even at a time when the GoE turned extremely repressive.

2.2  Evaluating the pre-constitutional process setting

A flaw in early post-1991 Eritrean politics was a complete ignorance of the need for a post-conflict process of reconciliation. When seen with the advantage of hindsight, these different political groups should have reconciled with each other after the aim of the struggle for which they had all fought had been achieved. Regrettably, this did not happen. As a result, the constitution-making process was dictated by the GoE. The reluctance of EPLF to accommodate other political forces, on the face of it, looks like a blemish, and is the main source of the opposition’s discontent regarding the Constitution. [20] 

The Eritrean public deserves a share of the blame for not pressurising the GoE to correct this mistake in time. Unlike the Eritreans of the 1970s, who attempted to reconcile the antagonistic factions, those who on Independence Day simply rejoiced with the winning side were unaware of the need for reconciliation. Some even went ahead and alienated the opposition parties from the Eritrean political scene. [21]

Nevertheless, the GoE called members of the opposition parties to abandon their organisations and join it; but the opposition forces, questioning the genuineness of such an offer, opted to stay separate. [22]  Thus, the opposition forces are also criticised for self-exclusion. [23]  In addition, the opposition forces were criticised for not contributing to the process by outlining their position in many issues that they considered constitutional matters. [24]

2.3  The legal framework of the process

A step towards the constitution-making process was taken when, in 1993, Proclamation 37/1993 was enacted, providing for the structure, powers and responsibilities of the GoE. The same proclamation stated that the GoE was established with various responsibilities and, above all, with the responsibility of preparing the ground and laying the foundation for a democratic system of government. [25]

As a mechanism of discharging the above-mentioned responsibility, it is provided that the National Assembly (the legislature of the GoE) shall establish a constitutional commission charged with the responsibility of drafting a constitution and organising popular participation in such a process. [26]  Accordingly, Proclamation 55/1994, the Proclamation to Provide for the Establishment of the Constitutional Commission (the Commission), was issued on 15 March 1994. [27] 

Proclamation 55/1994 required that the Commission be composed of a Council and an Executive Committee. [28]  The Council was supposed to be composed of 50 members that had to be elected by the National Assembly. [29]  The qualification set for membership is that ‘members of the Council shall be experts and other citizens with proven ability to make a contribution to the process of constitution making representing a cross-section of Eritrean society’. [30]  The National Assembly was empowered to appoint commissioners. [31]

The missions of the Commission, inter alia, were to (1) organise and manage a wide-ranging and all-embracing national debate and education through public seminars and lecture series on constitutional principles and practices; [32]  (2) draft a constitution after such deliberations; (3) present the draft to the National Assembly for a final public discussion; and (4) at the conclusion of such public discussion, prepare a final draft and submit it to the National Assembly for approval. [33]  Again, the approved draft had to be submitted to a ‘democratically formed representative body’ for ratification. [34]  Two years later, Proclamation 92/1996 (the Constituent Assembly Proclamation) required the ‘democratically formed representative body’ to be composed of (1) the members of the National Assembly; (2) members of the six regional assemblies; and (3) 75 representatives elected from among Eritreans residing abroad. [35]

2.4  The process in practice

The formal appointment of the Commission was made by the National Assembly early in 1994. [36]  It is important to examine the composition of the National Assembly that appointed members of the Commission and approved the drafts of the Constitution. [37]  On 19 May 1993, the GoE repealed Proclamation 23/1992 by Proclamation 37/1993. Among the reasons that prompted the replacement of the proclamation was the need to consider representation of the Eritrean people. [38]  Thus, Proclamation 37/1993 envisaged a National Assembly composed of the Central Council of EPLF and 60 others. [39]  From the 60, 30 were drawn from the regional assemblies of the then 10 administrative regions of Eritrea. [40]  Of the remaining 30, 10 had to be female, and were selected by the Central Council [41]  of EPLF. [42]

This part of Proclamation 37/1993 was, however, repealed very soon by Proclamation 52/1994, which provided that the National Assembly had to be composed of the 75 members of EPLF’s Central Council and 75 others elected by the Eritrean public. [43]  Nevertheless, this provision did not take effect immediately. Hence, the same proclamation added that, pending elections, the National Assembly would retain its composition. It was only in May 1997, after elections for the regional assemblies were conducted and the Constituent Assembly was constituted to consider ratification of the Constitution, that the National Assembly assumed the composition required by Proclamation 37/1993. [44]

With the exception of some members of the Executive Committee who were included for their unique expertise, the primary consideration the National Assembly used in selecting the members of the Commission was their participation in Eritrea’s independence struggle, and the small number of members who were not liberation fighters reflected the concern of the appointing authorities for representation of Eritrean society. [45]  Nevertheless, within these parameters, representation in terms of ethnic, religious and gender balance was considered.

Looking at the actual composition of the Commission, all the nine ethnic groups of Eritrea were represented. [46]  The two major religions, Christianity and Islam, were represented on an equal basis. There were 23 female members, who represented 47% of the total membership, and the average age of the members of the Commission was about 50, ranging from 32 to 80 years. [47]  The majority of ELF-originated political forces (often referred to as fronts), now composing the bulk of opposition, were not represented as an entity in spite of official requests. [48]  Some of the members of the Commission were, however, ex-opposition members who joined the GoE following the latter’s call after and before independence. [49]  In this regard, one Eritrea political analyst observed: [50]

The Commission prepared its first draft which was submitted to the National Assembly for comments. [51]  A second draft was submitted to the National Assembly who approved it. Afterwards the draft was submitted to the Constituent Assembly and was eventually ratified. [52]

2.5  Evaluating the legal framework and practice

In my view, the envisaged legal framework of preparing the Constitution was not undemocratic, although the non-participation of the opposition forces was the main flaw. Rosen differs on two grounds. First, Rosen questions whether there was ‘an opposition that accepted nationhood and represented a meaningful portion of the population at least in a form that would have necessitated their inclusion in the process’, and second, even if such opposition existed, its non-participation is ‘not necessarily a fatal flaw undermining the legitimacy of the constitutional process’. [53]

By contemporary standards of democratic constitution making, the democratic deficiency one sees when looking at the legal framework is minimal. [54]  The constitution-making process lacked a national referendum. Nevertheless, a referendum as a means of public participation in a constitution-making process is not always a desirable step. [55]  A typical constitution, no matter how concise it may be, embraces numerous issues on which submissions to a referendum are not practically feasible. Often, when the whole draft is submitted to a referendum and voters are required either to accept or reject the entire draft, voters tend to judge the entire draft based on a single or few provisions with which they agree or disagree. [56]  It was, however, possible to submit certain contentious issues; although the poor economic situation of the war-ravaged nation could have justified the absence of a referendum.

In evaluating the legal framework and the practice, it is important to focus on the three main bodies involved: the Commission, the National Assembly and the Constituent Assembly. Some have argued that the Commission should have been a democratically elected body rather than being appointed by the National Assembly. [57]  Others, however, argue that this was unnecessary given all the circumstances of the country at the time the Commission was formed and its limited mandate which again was checked by the National Assembly and the Constituent Assembly. [58]

Another important query is whether the Commission did what it was obligated to do: involving and educating the Eritrean public in the course of preparing the draft and incorporating the wishes of the public. Much has been written on the Commission’s work by non-Eritrean writers and their assessment has been positive. Rosen, for example, noted: [59]

Similarly, Hart observed: [60]

To an insider who knows the politics of the Eritrean independence struggle and the Eritrean public, the most authoritative testimony in this regard is Connell’s observation. [61]

McCord agrees: [62]

However, some Eritrean opposition critiques question the genuineness of the public participations and argue that the whole endeavour was window-dressing and that the contribution of the public was simply discarded. [63]

At the stage of the National Assembly and the Constituent Assembly some argue that EPLF/PFDJ had a majority in the first body and a notable presence in the latter. However, in terms of public support and membership, they failed to note that by then EPLF/PFDJ was so popular that it embraced almost the entire Eritrean public. They add that neither body was democratically formed. [64]  In forming the Constituent Assembly, 75 members of the PFDJ Central Council were moved into the Assembly together with another 75 representatives of the Eritrean Diaspora of whom one might be inclined to say that they were hand-picked by the GoE. The rest of the members of the Constituent Assembly (375 people) were, however, elected by the public.

Bereket concludes that the public elections were free and fair. [65]  Mekonnen differs and ponders whether it is ‘possible to have a free and fair election when there are no independent political parties, no independent professional and non-professional organisations … no independent civil society, no free press, no independent parliament and no independent judiciary’. [66]  Leaving aside whether or not all these democratic institutions were completely absent or whether there was substitution, Mekonnen’s observation is valid in principle.

In assessing whether or not the elections were free and fair, however, apart from general benchmarks, peculiarities of the Eritrean society — a society that wants to know not only the candidate’s profile but also his genealogy — should be considered. The Eritrean public hardly needed the above democratic tools to identify the persons it wanted to elect. Indeed, there is a strong tradition of tracing a person’s genealogy, social status and other factors that election campaigns (often suffocated with false promises) do not uncover. Drawing a comparison from the Gambian society — a society comparable to that of Eritrea, not only in numbers but also in many other features — the author is able to note that within such societies, candidates are identified from their position in and contribution to the society in a long and complicated process. [67]  Although comprehensive statistics are not available, the free and fair nature of the elections was demonstrated by the fact that officials of the former Ethiopian government, who had proven their commitment to their constituencies, were elected as members of the regional assemblies, in spite of the general public prejudice against such officials.

Another important factor is the way in which the GoE approached the elections for regional assemblies. Perceiving that they have little effect on the politics of the GoE, the GoE took an independent position vis-à-vis the process of the elections — leaving the public to choose whom it wants. This is an important benchmark and, seen from this angle, the elections for regional assemblies were conducted in a free atmosphere, more so than the referendum of which the outcome was not questioned by the opposition. [68]  While what the GoE wanted from the people was apparent in the referendum, namely to vote, and as there was strong apprehension or fear of doing the ‘wrong thing’, [69]  elections for the regional assemblies were conducted freely. In the same manner, under the repressive GoE, free and fair elections for various grassroots democratic institutions, such as magistrates of the communal courts, were conducted. Perceiving the minimal effect such grassroots institutions can have on the politics of the GoE, the latter showed no interest in tampering with them.

This writer concludes that the legal framework of the constitution-making process was not totally undemocratic and neither was its practice, except that the opposition forces were not permitted participation in the way they demanded. In theory, the opposition could have enriched the constitution-making process in terms of ideology, as contended by Younis. [70]  However, there were no meaningful ideological differences between the GoE and the opposition forces. [71]  Importantly, the process was conducted in a free environment in a sprit of optimism and jubilation. The Constitution that was eventually ratified (which many have described as progressive) contains numerous provisions that are not approved of by the GoE — a fact that attests to the independence of the process. That the GoE is hesitant to implement the Constitution is another testimony to the quality of the Constitution. For those and other reasons explained below, particularly the fact that the public did participate, it is reasonable to conclude that the Constitution passes the legitimacy threshold.

3.  Divergence of views on the legitimacy of the Constitution

While simplifying matters somewhat with regard to the legitimacy and status of the Constitution, it is possible to categorise five positions.

In the view of many Eritreans the Constitution is legitimate, both in its making and its substance. This first group is spearheaded by the Chairperson of the Commission who has already written much on the Constitution and who, when once asked in 1999 if there is anything he would have done differently, responded that he would not have done anything of substantive importance differently. [72]  A group of 13 Eritrean intellectuals, often referred to as G-13, also strongly echoed their call for implementation. [73]

The second group maintain that the Constitution, in spite of its shortcomings, can be used as a fundamental strategic tool to bring all Eritreans to a common ideal and that all other concerns, issues and reservations can be contested later by means of amendments. [74]

A third group maintain that the Constitution can be shaped and moulded to meet the demands of the opposition. [75]  Stressing the non-participation of the opposition camp as a flaw, they decline to accept the Constitution as it is and rather call for a mechanism (constitutional convention) to revise and enact the Constitution which they recognise as a good draft. [76]  They schedule this task after the ‘collapse’ of the GoE. Nevertheless, their position can only be characterised as a rejection of the Constitution. Their position could have been considered a meaningful acceptance of the Constitution if an agreement existed within the opposition camp on acceptable parts of the Constitution and on provisions that needed revision. However, there is no such agreement and there is no guarantee that the process cannot regress into considering each and every section of the Constitution. In addition, from a legal point of view, the status of the Constitution can either be that of a legitimate binding covenant or not. To take the Constitution as a good draft document and also demand final touches falls outside of legal discourse into the realm of politics which can be settled by means of a compromise.

A fourth group does not regard the ratified Constitution as ‘legitimate’. [77]  Independently, some Eritreans [78]  might share the point that a new constitution should be written, but it is evident that this is the position of some 16 political forces that formed the Eritrean Democratic Alliance (EDA). [79]  Some of these rejected the constitution-making process from the very beginning and rejected the ratified Constitution. [80]

The GoE’s position vis-à-vis the Constitution can be regarded as a fifth position and can be seen along two lines: substance and implementation. On substance: During the constitution-making process, officials of the GoE and its party were thought to be against the need to limit the number of terms of office of the President. [81]  By then, their main concern was that it was not wise to deny the nation the services of persons such as the incumbent President. [82]  Some officials of the GoE were against multiparty democracy and advocated a ‘guided democracy’, saying that for a long time to come, Eritrea needed to have only one party. [83]  On both points, the Constitution rejected the desires of the GoE. [84]  Nevertheless, the GoE supervised the whole process and the National Assembly, dominated by its members, twice approved the drafts and eventually ratified the Constitution together with other members of the Constituent Assembly. One can thus reasonably expect the GoE to be comfortable with the Constitution. Contrary to this, ten years after the Constitution was ratified, the GoE has not started its implementation.

The GoE has been paradoxical in its position with regard to the Constitution. Generally, the government has used three excuses: (1) the lack of an entry into force clause; (2) intervening factors; and (3) a rejection of constitutional democracy.

The Constitution does not contain an entry into force clause or transitional provisions that would have bound the GoE to a fixed time-frame to implement the Constitution. [85]  The only relevant provision is that the Constituent Assembly, which ratified the Constitution, is empowered to ‘take, or cause to be taken, all the necessary legal steps for the coming into force and effect of the Constitution’. [86]  Thus, a whole year (May 1997 to May 1998) passed after the Constitution had been ratified, without the GoE taking any of the transformative actions that would have implemented the Constitution. [87]  Nevertheless, considering the supportive stand the GoE took during the entire process, there was no public call for implementation. Indeed, there was confidence in the GoE and it was this confidence that gave rise to the lack of a specific entry into force clause. [88]

From May 1998 to 2000, Eritrea and Ethiopia engaged in full-fledged war. It was consequently virtually impossible to embark on the implementation of the Constitution. After both countries signed an agreement to resolve the conflict by international arbitration, a group of high-ranking government, party and military officials criticised the democratic deficiencies within the GoE and publicly called for democratic reform. [89]  One of their demands was the implementation of the Constitution. Under this pressure the GoE agreed to a time-frame (December 2001) for the implementation of the Constitution and started to take some preparatory steps. [90]  Nevertheless, while the attention of the world was focused on the events of ‘September 11’, the GoE arrested 11 of the reformers, closed all the private newspapers, and took numerous illegal actions that effectively silenced the reform initiative. [91]  The term ‘constitution’, itself, became prohibited and citizens did not dare mention it in public. Effectively, the GoE eliminated the Constitution, not only from its priorities but even from its propaganda.

After the signing of a peace agreement in 2000, and up to the time that the dispute was decided in April 2002, [92]  the GoE, whenever forced to speak about the Constitution, [93]  alleged that the war situation, coupled with ‘internal sabotage’, have hampered the implementation of the Constitution. [94]  At times, other factors have also been added: The Eritrean people are not ready for constitutional government because of their low level of education, cognition, and awareness on constitutional matters; [95]  the Eritrean people need ‘bread not democracy’; [96]  the implementation of the Constitution should not be a priority over ‘economic development’; [97]  the Eritrean people has rejected a multiparty system; [98]  and other reasons.

When the GoE echoed such reasons, it implied that the Constitution had never been implemented. Paradoxically, however, certain government officials declared that the Constitution was being enforced and respected although their government (GoE) did not have a ‘ribbon-cutting’ ceremony to signify its implementation. [99]  Recently, a presumably pro-GoE writer, but believed to be GoE’s mouthpiece, stated that the Constitution was being ‘implemented’ partially and that full implementation would follow. [100]  Using the conclusion some Eritrean lawyers had reached on the status of the Constitution, the same writer alleged that the GoE obeyed the immediately- operative parts of the Constitution while working to take actions that would amount to a full implementation of the Constitution. In addition, the GoE recently relied heavily on the Constitution to defend a case before the African Commission on Human and Peoples’ Rights (African Commission) and in its consolidated second and third reports under the Convention on the Rights of the Child submitted to the Committee on the Rights of the Child. [101]

Objectively assessing the GoE’s excuses, except for the time of war (May 1998 to 2000), nothing has hindered the implementation of the Constitution and all the allegations are unfounded. In addition, as the reports of respected human rights organisations have indicated, the GoE has never respected the directly-operative parts of the Constitution. It is very clear that the GoE has rejected the notion of the rule of law by flagrantly acting above the law. The body of Eritrean laws have never been respected to the extent that they tend to limit the powers of the GoE. The Constitution faced the same fate.

This is unequivocally expressed in the President’s repeated attempts to reject a constitutional democracy. [102]  Whereas on one occasion he has rightly pointed to the fallacy of reducing democracy to formalities — elections and their periodicity, the existence and pluralism of political parties [103]  — in his interviews with his government’s media, in particular, he has tried to limit the definition of democracy to the realisation of some socio-economic rights only. [104]  The effect of such expression is to eliminate many facets of democracy as are enshrined in the Constitution. [105]  This was repeated unequivocally recently by the President who, when asked when his government was planning to implement the Constitution, bluntly said: [106]

These different positions finally boil down to indicating the status of the Constitution. Considering the process that gave rise to the birth of the Constitution, whether the Constitution passes a legitimacy test is a point that is discussed above and touched upon below. There is also another angle, akin to the fluidity of the GoE, that merits consideration in order to fully dispose of the status of the Constitution. Both angles are dealt with below.

4.  The status of the Eritrean Constitution: The government of Eritrea’s side of the argument

When the coming into operation of the Constitution was delayed, some Eritrean lawyers argued that, in the absence of any specific date on which the Constitution should have come into force, the (entire) Constitution should be considered as having come into force the minute it was ratified. [107]  Their argument is to a large extent valid. [108]  That the Constitution does not indicate a specific date on or after which it has to come into force, does not mean that implementation measures cannot take place forever.

However, considering the transformative steps required by the implementation of the Constitution, it is inevitable that certain provisions of the Constitution could not have entered into force automatically the minute the Constitution was ratified. A period of time (six months to one year) within which the necessary transformation should take place and after which it would be wise to rule scenarios of non-compliance as unconstitutional, is mandatory. On the other hand, the directly operative parts of the Constitution can be considered as having been in force from the date of ratification. [109]  That the GoE has done nothing to implement the Constitution ten years after its ratification and seven years after the war with Ethiopia was resolved is tantamount to a violation of the Constitution.

5.  The status of the Eritrean Constitution: The question of legitimacy

A query as to the legitimacy or illegitimacy of the Constitution is relevant on the principle that not all laws that are passed by those who claim to have law-making power are legitimate. This is the democratic element of law making and in this democratic era it has paramount importance. Thus, the opposition’s questioning of the legitimacy of the Constitution is valid in principle. However, there are no hard and fast rules of quantifying the legitimacy or illegitimacy of law makers and the process they follow, particularly in transitional periods such the Eritrean constitution-making era. This author offers three ways of civilly disposing of the legitimacy/illegitimacy contentions: (1) a political solution; (2) a referendum; or (3) arbitration by third parties.

A constitution-making process is often a highly politically-charged venture. Although public participation in the making of the Constitution was high, the Eritrean public would not object to any compromise reached by the GoE and the opposition parties as main political stakeholders. This compromise could be (1) accepting the Constitution by the opposition force, or (2) allowing a new process that remedies the mistakes of the past to take place. In a related manner, the stakeholders can also agree on submitting the Constitution to a referendum so that, in a similar way to the referendum of 1993, the Eritrean public may be asked whether or not it accepts the Constitution. Even in the opposition’s assumption that it will remove the GoE, the opposition would be wrong to run to a new constitution-making process without consulting the Eritrean public on the fate of an already ratified Constitution.

Although one could risk a counter-majoritarian dilemma, an adjudicative or arbitration mechanism is another solution. This is premised on the fact that disputes on the fairness or otherwise of elections, which are similar to contention over the Constitution, are often resolved in an arbitration or adjudication. Indeed, the judicial disposition of disputes has advantages over democratic tools such as simple majority takes all, because the first is often based on reason as opposed to the latter which is based on preference. [110]  Recourse to arbitration is feasible as it can be done outside of Eritrea and the interested parties can argue their own positions. Arbitration needs to be formal — both parties can set the arbitrating body and provide it with the guidelines. A point to settle should be whether the Constitution passes the legitimacy test and whether, given the overall circumstances, the Eritrean public will have an interest in all Eritrean political forces accepting the Constitution now and working for its implementation.

Along this line, this author backs a conclusion that the Constitution can be accepted by all Eritreans. Pertinent to this conclusion is an evaluation of constitution-making experiences and an evaluation of how the Eritrean experience fits into the scale. An evaluation from third party experts is not only predominantly positive, [111]  but also presents the Eritrean constitution-making process as a new model and the eventually ratified Constitution as beautiful and progressive. [112]  Apart from this angle, this author also relies on other benchmarks outlined below.

5.1  Re-inventing the wheel

The position that the Constitution is legitimate is further reinforced by the way the EDA envisaged writing a new constitution which would repeat worse errors than the process out of which the existing Constitution was born, which many parties within the EDA loudly criticised. In 2005, the EDA wrote its Political Charter, by which it crudely outlined how it envisaged going about governing Eritrea, including writing a constitution after the defeat of the GoE. 

The EDA planned to erect a transitional government from the opposition camp only. [113]  The defeated elements would not be part of the transitional government. In addition, the defeated elements would not be included in the National Transitional Assembly. The EDA planned to constitute a National Reconciliation Conference in which all political forces and cross-sections of Eritrean public were allowed to participate. [114]

This the GoE did, and, on the basis of ‘winner takes all’, the opposition criticised the process and rejected the Constitution. This shows that in rejecting the Constitution, the EDA leaders were motivated by sheer hatred and their desire was to undo and redo what has been done by the GoE. [115]  The flaw of the EDA is noted by a leading opposition website that asked the EDA to re-consider ‘provisions for including forces that might actively participate in bringing about change inside Eritrea in the provisional government’. [116]

As described above, one of the criticisms directed against the constitution-making process was that members of the Constitution Commission should have been popularly elected rather than appointed by the National Assembly. However, EDA’s approach in this regard is worse. The EDA gave the executive branch of the transitional government the power to establish a constitution-drafting commission. [117]  In comparison, the Commission that led the constitution-making process was established by the National Assembly of the GoE.

Another factor that should inform whether the Constitution should be taken as legitimate is the content of the Constitution. In recent discourse, the constitution-making process per se is given greater value — participatory process is assumed to confer legitimacy and ownership to a constitution. [118]  In principle, however, any party which does not participate in the making of a constitution but agrees with the contents of the eventually-ratified one lacks valid justification to reject such a constitution. Related to this point is the fact that a constitution cannot satisfy all its subjects. Even if all the subjects embrace the same values, these can be expressed in many forms. It is naïve to say that there is a model that could satisfy four million Eritreans and thus even in a participatory process, there could be a loser and a winner. 

Content-wise, the EDA has accepted the Constitution, albeit inadvertently. The Constitution is very concise. Even the 1997 Constitution of The Gambia (a country comparable to Eritrea in many respects, including its geographical size) is six times longer in scope than the Eritrean Constitution. The Eritrean Constitution has left many issues (which other constitutions treat in detail) to be governed by legislation. This means that fewer contentious issues are addressed in the Constitution. [119]  As such, it contains basic principles, many of which are a reflection of customary international law and some peremptory norms. Some principles are codified in international treaties, [120]  and others are a reflection of international soft law. [121]  The EDA has accepted many of these provisions by committing itself to abide by international charters and treaties. [122]  One sensible Eritrean academic who questions the legitimacy of the constitution-making process agrees that, content-wise, there is nothing to object to in the Constitution. [123]  This is further reinforced by a bold admission on the website of one of the important political parties, the ELF-RC, which rejects the Constitution: [124]

Most commentators agree that the content of the Constitution reflects internationally-agreed norms. During the struggle days for Eritrea’s liberation, the views of EPLF and ELF overlapped in many important areas. However, there were a few major differences on emotional issues: the flag, [125]  the issue of the Eritrean language, [126]  the preservation of the cultural values of the Eritrean public, [127]  land ownership and nationality. [128]  In criticising the Constitution, some people from the opposition argue that, on all three points the position of EPLF is reflected in the Constitution and add that these are important issues that should have been seriously debated or required a popular referendum. [129]

However, the same parties have made it clear that such differences are not important. Interestingly, the EDA has embraced the ‘contentious’ provisions of the Constitution. Specifically on the issue of language, all the Constitution provides is that ‘equality of all Eritrean languages is guaranteed’. [130]  When asked about the meaning of this provision, Professor Bereket, the Chairperson of the Commission, observed that it was left to the wisdom of the judiciary and, by implication, the legislature to handle. [131]  Indeed, the Constitution does not prohibit Eritrea from adopting an official language by legislation and the EDA has endorsed this position when it affirmed the equality of all Eritrean languages and nominated Tigrinya and Arabic as official languages. [132]

On the issue of the national flag, the contention of the opposition is that the GoE in 1993 replaced the blue Eritrean flag of the 1950s (when Eritrea was a semi-autonomous state). The blue flag was used by the liberation forces as the Eritrean flag all through the struggle days. The opposition parties, except those PFDJ splinters, still consider the blue flag as the Eritrean flag. [133]

Stipulating that the ‘Eritrean flag shall have green, red and blue colours with golden olive leaves’, the Constitution does adopt a similarly coloured flag to the one the GoE adopted in 1993. [134]  A detailed description of the flag is, however, left to be determined by law. [135]  Although the colours are specified, the Constitution does not specify the layout and, considering the alleged historical injustices the present flag embodies, its constitutionality may be challenged. Using the colours provided by the Constitution, a different-looking flag from both flags can be adopted as a compromise. [136]  Apart from these differences, the EDA reaffirmed what has been provided in the Constitution. [137]

5.2  Other benchmarks

In addition to the above grounds, there are many advantages in regarding the Constitution as legitimate. At present, the Eritrean political ‘struggle for democratic change’ lacks a unifying factor — a body of ideals for which citizens should struggle and on the basis of which advocacy strategies of internal forces (the Eritrean public) and external forces (the African Union (AU) and others) should be pursued. One may argue that the EDA Political Charter is a common denominator for the 16 political parties. However, the Charter is not accepted by the GoE and, by extension, its supporters. In addition, the Charter is a crude outline of how to dispose the GoE [138]  and subsequently erect a transitional government and write a new constitution. In addition, the Charter is not the product of public participation as the Constitution is. Thus, the EDA is waiving the many advantages it can gain by its intent to write a new constitution after the ‘defeat’ of the GoE, instead of pressing the GoE to respect the Constitution.

5.2.1  Legal and political advantages: The relevance of the African Charter on Democracy, Elections and Governance

First, the EDA ruled out the possibility that the Constitution will bring about a regime change. The implementation of the Constitution is an important tool by which the opposition can score a peaceful victory over the GoE. Many scholars have convincingly argued that a right to democratic governance now exists both as part of customary international law and treaty law. [139]  According to these scholars, constitutional governance has been cemented into the domain of customary international law. The AU’s emphasis on the protection of human rights and the promotion of democracy and good governance in its Constitutive Act [140]  attests to the consolidation of the right to democracy even in Africa — a continent that not only has been resistant, but hitherto to a certain extent remains undemocratic. This commitment was further and strongly reinforced when the AU adopted the African Charter on Democracy, Elections and Governance (Charter). [141]

The AU adopted the Charter, among other reasons, (1) inspired by the objectives and principles enshrined in the Constitutive Act of the AU, which emphasise the importance of good governance, popular participation, the rule of law and human rights; (2) committed to promote the universal values and principles of democracy, good governance, human rights and the right to development; (3) seeking to entrench in Africa a political culture of change of power based on the holding of regular, free, fair and transparent elections; and (4) concerned about the unconstitutional changes of governments that are one of the essential causes of insecurity, instability and violent conflict in Africa. [142]

Thus, the objectives of the Charter included (1) the promotion of adherence, by each state party, to the universal values and principles of democracy and respect for human rights and enhancement of adherence to the principle of the rule of law premised upon the respect for, and the supremacy of, the Constitution and constitutional order; (2) the promotion of the holding of regular free and fair elections to institutionalise legitimate authority of representative government as well as democratic change of governments; and (3) the prohibition, rejection and condemnation of unconstitutional change of government in any member state as a serious threat to stability, peace, security and development. [143]

Respect for human rights and democratic principles, access to and exercise of state power in accordance with a constitution and the principle of the rule of law, promotion of a system of government that is representative, holding regular, transparent, free and fair elections, condemnation and total rejection of unconstitutional changes of government and strengthening political pluralism and recognising the role, rights and responsibilities of legally constituted political parties, including opposition political parties, which should be given a status under national law, are the key principles on the basis of which African states have committed themselves to implement the Charter. [144]

As one of the many enforcement mechanisms, member states are committed to co-operate with each other and to take legislative and regulatory measures to ensure that those who attempt to remove an elected government through unconstitutional means are dealt with in accordance with the law. [145]  Article 23 of the Charter defines illegal and unconstitutional means of changing government not only to include the obvious coups or putsch against a democratically elected government, but also any refusal by an incumbent government to relinquish power. The same article stipulates that such an act shall be met by appropriate sanctions by the AU. The Peace and Security Council of the AU is empowered to exercise its responsibilities in order to maintain the constitutional order in accordance with the relevant provisions of the Protocol [146]  relating to the establishment of the same council. [147]

Specifically, in accordance with article 25(1) of the Charter, when the Peace and Security Council observes that there has been an unconstitutional change of government in a member state, and that diplomatic initiatives have failed, it shall suspend the said state from the exercise of its right to participate in the activities of the AU in accordance with the provisions of articles 30 of the Constitutive Act and 7(g) of the Protocol. The suspension shall take effect immediately. In addition, article 25(7) of the Charter empowers the Assembly of Heads of State and Government to decide to apply other forms of sanctions on perpetrators of unconstitutional change of government, including punitive economic measures.

Although inversely, the GoE’s reluctance to end its transitional existence and open the country for constitutional democracy typically fits into the definition of unconstitutional change of government provided under article 23(4) of the African Charter on Democracy, Elections and Governance. The Eritrean case demonstrates a typical case of illegal perpetuation of transitional government beyond the reasonable transitional period in clear contempt and defiance of a popularly prepared constitution. The Constitution was written to govern, not to be stashed away indefinitely. Nevertheless, it has been 10 years and the Constitution is yet to be implemented and there is no time-frame set for the implementation of the Constitution. In accordance with the Constitution, two rounds of elections for the national legislature should already have been held. This has not happened and there are none scheduled. In this regard, lamenting on the GoE defiance of the implementation process and its implications, Bereket rightly notes that ‘[t]here is no excuse for such failure … To neglect a ratified constitution is tantamount to negating the will of the people whose delegates ratified the Constitution.’ [148]  This writer has previously commented: [149]

The unimplemented Constitution is therefore an important tool that the Eritrea opposition may use before AU forums to exert pressure on the GoE and to gain the benefits the Charter offers. By accepting the Constitution, without the opposition participating in its making, the opposition could have proved that it does not suffer from the typical opposition syndrome of ‘boycotting everything’ an incumbent government does. In so doing, the opposition could legally and diplomatically have placed the GoE in a weaker position. The Eritrean constitution-making process has been complimented by many as ‘democratic’ and ‘participatory’ and the eventual Constitution is credited as ‘progressive’ and ‘beautiful’ by politically influential quarters. [150]  In addition, the main criticism the GoE is facing is due to its reluctance to implement the Constitution. [151]

Two feasible outcomes could, therefore, follow from the opposition’s acceptance of the Constitution. First, when a united pressure of Eritreans join the call from non-Eritreans for the implementation of the Constitution, it is possible to force the GoE to accept the implementation of the Constitution in a short and agreed upon time-frame. Second, in the alternative, after putting the GoE in clear default, the opposition may convincingly form a constitutional government in exile, thus leading the struggle for democratic change in Eritrea in a unified manner. The idea of forming a government in exile is currently seriously contemplated by many leaders within the opposition camp. [152]  Although the idea is valid, it can have a stronger legal anchor when the opposition bases itself on the African Charter and also on the very Constitution popularly ratified with the full support of the GoE. The very Constitution the GoE sponsored gives the right to the opposition to form a constitutional government in Diaspora. Diaspora Eritreans make up one-third of the Eritrean population. [153]

Pertinent parts of the Constitution read (1) that the Constitution ‘enunciates the principles on which the state is based and by which it shall be guided and determines the organisation and operation of government’; (2) that the Constitution ‘is the source of government legitimacy and the basis for the protection of the rights, freedoms and dignity of citizens and of just administration’; (3) that in ‘the state of Eritrea, sovereign power is vested in the people, and shall be exercised pursuant to the provisions of this Constitution’; (4) that the Constitution is the supreme law of the country and the source of all laws of the state, and all laws, orders and acts contrary to its letter and spirit shall be null and void’; (5) that ‘all organs of the state, all public and private associations and institutions and all citizens shall be bound by and remain loyal to the Constitution and shall ensure its observance’. [154]

5.2.2  Disadvantages

Another problem with the EDA’s position of rejecting the Constitution is the EDA’s over-simplistic and narrow perception of the transitional period in which it contemplated writing a new constitution. The entire EDA transitional project is scheduled to cause the fall of the GoE, and the collapse of the GoE envisaged by the EDA is the same kind of regime change Asmara witnessed in May 1991 — a total collapse of the GoE. 

The EDA is very naïve to assume so. As far as the EDA remains weak and disunited, Asmara can produce another government that can contend with or monopolise power. If the local force is to chart out implementation of the Constitution as a matter of priority and call the EDA to participate, the current position of the EDA could entail huge political losses to the EDA because the Eritrean public does not have the luxury of choosing between constitutions. On the other hand, the EDA that has accepted the Constitution, or the EDA that already formed a shadow government in the Diaspora based on the Constitution, can be a force strong enough to influence Asmara. In case Asmara faces a military coup, such EDA can also force a military regime to swiftly allow civilian government to take power on the basis of the Constitution and the African Charter.

Even if the local forces accept the writing of a new constitution in accordance with the EDA’s Political Charter, coming up with an acceptable constitution cannot be taken as a simple matter. What must be borne in mind are the atmosphere in which the process takes place and a whole range of other factors. The present Constitution is written in a mood of optimism and jubilation — an important aurora to hammer agreements. After the bad times Eritreans have passed through recently, a new venture might have similar advantages. One can take it as inevitable that those who participated in the previous constitution-making process would approach the new initiative with dissenting tendencies and high standards. If the new constitution is to look similar to the existing one, then the ‘re-inventing the wheel’ argument would haunt the new venture. If the draft of the new constitution is to show a big difference, dissent would be another problem. At the very least, fault-finding is simple.

Along this line, the political maturity of the ‘would-be’ key actors should be considered. In addition, the state of ‘semi-political vacuum’ in which the actors negotiate is important to bear in mind. The EDA naïvely fails to contemplate the possibility of failing to achieve its goals, which can lead to chaos. At present, the main unifying factor for the opposition block is the repressive GoE in Asmara. Apart from this unifying factor, although not different in their programmes, the history of the opposition political parties is known for forming rounds of alliance and ending up in disputes. The formation of the EDA in 2005 and the agreement 16 political parties reached on a political charter brought hope. However, the EDA divided into two blocks a year later on unimportant matters. [155]  Thus, there is a real concern that a leadership vacuum in Asmara that would give a free opportunity for all the opposition parties to land in Asmara and form a transitional government could fail. Considering the weakness and disunity within the opposition, Eritreans are thus rightly worried about what Asmara will produce thereafter. [156]

In addition, a rejection of the Constitution will definitely entail legal chaos in Eritrea. Potentially, all the laws (proclamations and legal notices) hitherto passed and the international treaties ratified by the GoE can be challenged on the same ground that confronts the Constitution. [157]  Indeed, considering the undemocratic law-making process, very few of these laws can pass the legitimacy standard the Constitution is subjected to. [158]  Already, opposition academics follow an unconvincing selection of and reliance on transitional laws. Mekonnen, for example, although he questions the legitimacy of the Constitution, relies on many of the transitional legislation and the treaties the GoE ratified. [159]  On the other hand, Article 19 and the Eritrean Movement for Democracy and Human Rights (EMDHR) have relied on the Constitution in their communications filed before the African Commission. [160]  The opposition parties are not articulate on how to handle such a phenomenon. At a time international treaties are gaining supremacy over municipal laws, including constitutions, it seems that opposition parties are unaware of the implications of the treaties the GoE has ratified for the constitutional debate.

6.  Conclusion

The Constitution, in spite of certain flaws in its making, is a democratic document that has the potential to be a national covenant if accepted by the dissenting opposition. Although all the actions of the GoE imply rejection of the Constitution, the GoE has no valid ground to rebuff the Constitution ratified after such extensive public participation. The opposition’s acceptance of the Constitution can bring a unifying body of ideals to the Eritrean political spectrum the realisation of which all Eritreans can work towards. A unified call for the implementation of the Constitution can force the reluctant GoE to agree. In the alternative, using the Constitution, after proving manifestly the GoE’s defiance of the rule of law, the opposition can legitimately step in to form a government in exile. In addition, accepting the Constitution can save Eritreans from the uncertainties of the future. As the GoE is getting weaker, Asmara may face a political vacuum, in which case the failure of the succeeding political actors to produce a constitution could lead to a dangerous political crisis. A military junta could take power and could use the pretext of writing a new constitution to reinforce its grip of power.