By Tsinat Haile
Let me start off with the disclaimer that I am not a constitutional lawyer. I do not want to pretend to be one either. The purpose of this short comment is to point out from the common sense stand point that TPLF’s flagrant disdain for its own constitution is once again in full display for everyone to see. My subliminal intention or ulterior motive, if you will, is to give a cause for thought to our constitutional lawyers and to inspire them to say more on it so that we can learn from their expertise.
Turning to the main issue at hand, we all know that TPLF violates its own constitution at every turn and twist whenever it feels like it. This characteristic act of the TPLF came to the spotlight once again after the death of dictator Meles had been made official. This time around, the TPLF is in material breach of the constitution by refusing to swear in H/Mariam Desalegn or someone else for that matter for the vacant position of the Prime Minister as soon as technically possible thereby creating a power vacuum. The creation of the power vacuum constitutes dereliction of duties by the TPLF parliament and it is tantamount to committing treason by endangering the national security of the country. The constitution stipulates both in letter and spirit that a person who is in charge of running the country must be sworn in before the parliament. In the absence of such a person in Ethiopia as we speak, there is a power vacuum because the position of the PM is still vacant six days after the death of the ex-PM was officially announced. As of now, no one is under oath to be in charge of running the country’s affairs.
TPLF is arguing that there is no power vacuum and there is no need to rush to swear in H/Mariam or anybody as acting PM. They are saying that the constitution provides for the Deputy PM to fill in for the PM in his/her absence. It is true that H/Mariam has been sworn in as the Deputy PM and in that capacity to act for the PM in his absence. But this is valid only as long as the PM is alive. In the instances of being physically absent from work due to sickness, bereavement, vacation, or for whatever reason, the PM is still in charge but merely absent; thus, no need to swear in somebody else. When the PM is absent but alive and capable, the deputy acts for him/her under his/her general directives and guidance.
Moreover, the article that provides for the Deputy PM to fill in for the PM presupposes that the Deputy PM is given the power of attorney by the authorized person, in this case by the PM, in the form of a written memo or some kind of legal document to act on his/her behalf. However, when the PM is dead or incapacitated, that is a whole different ball game. A dead person cannot give the power of attorney to somebody else and even if he had given him/her when he/she was alive, that would be valid only as long as that person is alive. Once the person is deceased, there is no one who would be under oath of office to take directives from. The deceased person would be no more available to be held accountable for the actions of the person acting on his/her behalf. You would fill in for a living person and not for a non-existent one. A dead person does not have a legal personality. Therefore, if the person is dead, things would be in a different territory legalwise. In such instances there would be no one who is under oath of office to run the country hence the reason for the current power vacuum and the need for swearing in new capacity.
As of now, H/Mariam has not been sworn in to be in charge of the country but to act for the PM in his physical absence – not dead nor incapacitated. Now the person who was sworn in to be in charge is no more alive. H/Mariam would be constitutionally in charge of running the country’s affairs only when he is sworn in for that particular position because that is what the law requires. If the law of the land is as supreme as the TPLF claims, H/Mariam cannot be sworn in for one capacity and extrapolate it to use it in another capacity especially when it is of higher level of authority and when it is as important matter as being in charge of running a country. He cannot turn his swearing in to act for someone into being fully in charge when that person is no more alive. In other words, acting for someone else who is under oath would be legally acceptable only if that person is alive and is legally capable of executing what he/she is under oath for but is just physically absent. Therefore, those who are in charge of running the affairs of the country today in Ethiopia including H/Mariam are not properly and legally under oath as required by the constitution. The TPLF is once again in flagrant violation of its own constitution by putting in charge someone who has not fulfilled the constitutional requirements. This is yet another irrefutable evidence that the TPLF writes something and does something else contravening the law made by itself.
The TPLF should have known better. It was supposed to fill in the existing power vacuum by swearing in somebody at earliest possible time even if it is on an interim basis. H/Mariam may act for a living Meles but he cannot act for the dead Meles nor can he be Meles’s incarnation. Meles was officially pronounced dead on August 20, 2012 by the TPLF regime although his actual date of death is much earlier; namely, July 15, 2012, according to ESAT citing credible sources in the know in the International Crisis Group (ICG). As far as the constitution is concerned, H/Mariam’s mandate to fill in for Meles in his present capacity ended on August 20, 2012. There is no one on whose behalf he is acting now unless H/Mariam claims to be acting on behalf of dictator Meles’s ghost. Therefore, for the interim, H/Mariam has to be sworn in before the parliament to be constitutionally in charge of running the affairs of the regime and to be his own master (lol) without any further delay. If he is a permanent choice of the TPLF, even if he is a puppet, he has to seek a fresh mandate and confirmation from the rubberstamp parliament. If the TPLF decides to swear in somebody else other than H/Mariam, that person has to be first formally elected by the parliament before swearing in.
Moreover, it is utterly disgusting and insane to hear from the TPLF and their rubberstamp MP’s that swearing in somebody for the PM vacancy is not their priority and their priority number one is mourning the death of their brutal dictator. If they have the slightest respect for their own constitution and their own oath as MP’s, they are under oath to give the highest priority to safeguarding the safety and national security of the country and its people. As far as I know they are not under oath to mourn their late dictator. Dictators come and go but the people are always there. The people’s interest takes precedence over grieving over the body of a brutal dictator. Having no one under oath to be in charge of the country is a national security issue and must be accorded the highest priority. If the MP’s know the constitution they are under oath to defend, they owe to the Ethiopian people to put somebody in charge of the country ASAP.
The parliament has no excuse for not discharging its responsibilities. It convened on August 22, 2012 but instead of discharging one of its most solemn duties by swearing in someone for the highest office of the land, it merely expressed its grief over the death of a dictator and went right back in to recess. Bereket Simon is on the record in one of the interviews he had after the official announcement of the death of the dictator that the parliament is on a standby and can convene “anytime” to swear in the successor. However, it chose not to. If they fail again to swear in someone in a reasonably short amount of time such as in the next few days, all parliament members have to be impeached for a major dereliction of duties and act of treason in endangering the national security of the country. The parliament has to also be disbanded for failing in its responsibilities. Fresh elections need to be called.
Finally, it is worthwhile to mention that the real reason behind delaying the swearing in of H/Mariam is the power struggle between and among various TPLF factions. After initially announcing H/Mariam as the successor, the TPLF is now backpedaling on its promises. The backpedaling prompted a phone call from President Obama to H/Mariam apparently to bolster his dwindling standing to succeed dictator Meles. It is not clear yet how the power struggle will play out. However, one thing is clear. TPLF members who are in fierce power struggle behind the scene hindering the parliament from discharging its most solemn responsibilities have to be brought to justice for treason and obstruction of the constitution with potentially adverse effect to the safety and security of the over eighty five million Ethiopian people. They have put the country in a virtual state of paralysis.