Members of one of the largest ethnic groups in Ethiopia, the Sidama, have threatened the federal government with a unilateral declaration of secession. I am exaggerating. They are not threatening to secede from the country but from one of the states that make up the Ethiopian federation and form their own state. They are agitating for internal secession. The Prime Minister of the federal government is threatening with military-backed federal intervention.
The quest for statehood
The Sidama, the fifth largest ethic group in the country, are just one of the fifty-six or so ethnic groups that constitute the Southern Nations, Nationalities and Peoples’ Region (hereinafter, ‘the Southern State’). It has not always been like that. The Sidama had had a history of distinct administrative existence going back to imperial days. More recently, the ethnically defined State of Sidama was established in 1991. That was abolished when the Constitution was adopted in 1995. Since then, members of the Sidama community have been demanding to have their own state. Even in the days when raising such questions was unwelcomed, members of the community did not hesitate to petition federal authorities. Thanks to the prevailing democratic centralism in the past, which expected party members to toe the lines of the central committee of the ruling party, Sidama petitioners were forced to write another letter to withdraw their request.
A lot has changed since then. Members of the community saw an opportunity when Abiy Ahmed was elected in 2018 as the Prime Minister and introduced a series of political reforms. More importantly, there is no longer a strong ruling party that forces state governments to toe the lines of national government. The Sidama local government council felt emboldened enough to publicly declare its intention to secede from the Southern State and demanded the organization of a referendum. To the surprise of many, the Parliament of the Southern State supported the request for a referendum to allow the people of Sidama to decide their fate. In the meantime, members of the community intensified their demand for statehood. Thousands marched in an all-women rally in support of internal secession. Reportedly, a consultation on a draft constitution for the new state is underway. Sidama activists have now given the country an ultimatum. ‘Declare the day of referendum before 18 July 2019 or we will proceed to declare the formation of a Sidama state’.
A country of no less than eighty ethnic groups, Ethiopia has adopted a constitution that uses ethnicity as basis to organize the federation. But only five of the nine states are home to a particular ethnic community that accounts for the overwhelming majority of their respective populations. The remaining ones are markedly multi-ethnic in which no particular ethnic group accounting for the majority of their respective populations. This is complicated by the fact that some ‘numerically stronger’ ethnic communities are denied the status of a State while other ‘numerically weak’ ethnic communities are allowed to have ‘their own’ State. The State of Harari is home to the eponymous ethnic community that can only boast a population size of less than two hundred thousand. On the other hand, there are ethnic groups, like the Sidama, that boast a population size of more than three million people and do not have a State of their own. In fact, the Sidama have a population size that exceeds the combined population of some of the subnational entities. In short, while few ethnic communities are provided a State in which they are in majority, many cannot point to a territory they inhabit that has achieved the status of a State.
The persistent demand for the status of Statehood by the Sidama can be partly explained by this particular asymmetry. In addition to the symbolic benefits of recognition that come with having one’s own state, State-owning ethnic groups enjoy powers and rights that are constitutionally guaranteed to ethnic groups and States respectively while ethnic groups with no State of their own are limited to enjoying rights that are given to ethnic groups. To be sure, some of those ethnic groups, like the Sidama, are given their own local government, allowing them to exercise powers that are reserved to local administrations. The powers and functions entrusted to local government are not, however, comparable to those of State governments. More significantly, the place that an ethnic group assumes, albeit indirectly, in the administrative hierarchy of the federal arrangement determines the amount of money it receives from the federal redistribution regime. State-owning ethnic communities receive a much more substantial share of the federal transfer than those that are made to exercise their right to self-administration at the level of local government who do not have direct access to federal transfers. This is irrespective of the fact that some of the ethnic communities that do not have their own State boast a population size that is far larger than some of the State-owning ethnic groups. State owning ethnic communities are by far in a better position to provide their members with better ‘economic opportunity, political power and social status’. That is why states like Harari are the objects of envy. The Sidama ‘nationalists’ point to states like Harari and argue that they should also have a State of their own.
The good thing for the Sidama and others is that the Constitution has kept the door of statehood ajar for other ethnic groups that would advocate for the establishment of a state of their own. The Ethiopian constitution is probably the only constitution that provides for internal secession as a constitutional right and outlines a procedure to do so. There are, of course, federations that have created new subnational units or merged existing units. They do so, however, as a result of political mobilization and a political decision that is made by a reluctant national government. The Ethiopian constitution departs from its counterparts because it it has elevated the demand for creation of a new subnational unit to the status of a constitutional right. Article 47(2) of the Constitution provides those ethnic groups that do not have their own states “the right to establish, at any time, their own States”. It also provides for a procedure according to which the right to internal secession can be exercised. And frankly, it is not a difficult process.
According to article 47(3) of the Constitution, the exercise of the right to internal secession has to be initiated first by the approval vote of “a two-thirds majority of the members of the legislative council” of the community concerned and the demand is presented in writing to the state council. The state council then organizes a referendum within one year from the time it receives the relevant council’s decision to form its own state. When the demand for internal secession secures the majority vote in the referendum and the State Government has transferred its powers to the newly created state, the new state that is ‘created by the referendum’ directly becomes a member of the federations without any need for application.
Basically, what is required from the community demanding to form its own state is to show that it has proven support. And the threshold is not significant as simple majority is sufficient to determine the wishes of the community. Given the relatively not-so- stringent procedure, the fear has always been that allowing a community to form its own state will create the floodgate of similar requests for statehood. That fear is no longer theoretical. It did not take long before six other ethnic groups in the same state petitioned for the formation of their own states. Suddenly, the authorities of the Southern State are having a second thought. Demands for new states are no longer encouraged.
Internal secession as a constitutional amendment
In his recent address to law makers, the Prime Minister stated that the clamor for statehood needs the support of the other states. A majority vote in favor of statehood might not be sufficient. This, he argued, is because the constitution only lists nine states that constitute the federation. Getting the prospective state of Sidama into that list requires a constitutional amendment. In effect, he is arguing that internal secession should be treated as a constitutional amendment.
Many, including myself, were quick to dismiss this as an act of legal gymnastics by a Prime Minister who has found himself between a rock and hard place. After all, the Constitution states that a new state joins the federation automatically without any need for application. Perhaps the drafters of the constitution have not thought of the paradox of a federal constitution that lists the constituent units while at the same time allows for internal secession that does not depend on the approval of the other members of the federation. Perhaps this should be seen as a problem of oversight on the part of the drafters and we should ignore the argument that equates internal secession with a constitutional amendment. The problem, though, is that ignoring that line of argument as an oversight does not solve the dilemma. An action is still required to complete the act of internal secession. If Sidama’s quest for statehood is to be completed, changes must be effected to article 47 of the Constitution. And this cannot be dismissed as clerical work that has to be effected by the executive or parliament. It is a constitutional amendment that requires the blessing of the joint session of the federal parliament and the legislative assemblies of two-thirds of the states.
The argument from constitutional amendment should not deny members of the Sidama community the right to vote for their own state. But it suggests that a new state cannot make it to the list of the Constitution, and hence be regarded as duly formed, without the approval of the other members of the federation. What does that leave us with? A de facto secession? That would be a confusing state of affairs. Most of the powers and functions that a state government is expected to perform depend on a constitutional recognition as one of the member states of the federation. On what basis would such a state be able to exercise the constitutional powers allocated to state governments? On what grounds would it be able to join intergovernmental forums? On what constitutional basis would such a state be able to share from the national division of revenue?
One may argue that a suitable referendum result should place an obligation on the member states and the federal government to effect the necessary constitutional amendment. To borrow the famous lines of the Supreme Court of Canada in the Québec Secession Reference in 1998, ‘a clear expression of a will by a clear majority’ of the population of the Sidama to secede from the Southern State should create an obligation on the rest of the country to do what is constitutionally necessary. But is it possible to coerce a state from which a territory is seceding to vote for a constitutional amendment that effectively presents a threat to its territorial integrity? Even if such obligation exists, it can only be a constitutional obligation to negotiate. The concerned parties must come to the table to negotiate the possibilities and ramifications of a new Sidama state.
One must also note that there is no language of obligation in Article 47. In as much as it gives ethnic communities the right to demand internal secession, it does not impose a corresponding duty on the others to accept it. It simply outlines the procedure that must be followed in the formation of a new state without imposing an obligation on the state government to accept the wishes of the seceding community, again suggesting a room for negotiation. This is consistent with the practice in other federations. There is no country that allows internal secession simply based on the wishes of the territory or the community that seeks it. From Switzerland to India, national governments play a decisive role in the creation of new subnational units.
That is also why it would be unconstitutional for members of the Sidama community to carry out their threat of unilaterally declaring the creation of Sidama Sate on 18 July 2019. The Constitution may be silent on what should be done in the event a state or federal government refuses to entertain a request to secede from a state. The fact that it subjects internal secession to a procedure, however, suggests that it does not allow for unilateral declaration of the formation of a new state. A federal proclamation allows the submission of an an application to the House of Federation, the body tasked with deciding issues relating to the right to self-determination, on the ground that the actions or omissions of the state and federal government has frustrated the claim for statehood. The House of Federation is given a maximum of two years to make a decision on the matter.
Towards a cooperative internal secession
All roads, it seems, lead the parties to a negotiating table. It must be admitted that Sidama’s struggle to have their own state is at a point of no return. The state and federal authorities have no choice but to allow the people of Sidama have their day in a referendum provided that is the only road to statehood. Perhaps, what they can do is engage in a negotiation and deal with many of the questions that remain unanswered, including the individuals that should be allowed to vote in the referendum, the division of assets and the status of individuals that do not belong to the Sidama ethnic group. The already extremely fragile political condition in the country does not afford the instability and chaos that might follow from the disorderly partitioning of an existing state and similar push by others. At the same time, the federal government must also avoid trying to suppress the demand by force lest the country slips further into the abyss of violence and instability. Both state and non-state actors must work towards a cooperative internal secession.
Yonatan Fessha is currently a Marie-Curie Fellow at EURAC Research, and is Associate Professor of Law at the University of the Western Cape in South Africa.