The Practice of Informal Changes To The Ethiopian Constitution in The Course of Application

The Practice of Informal Changes to the
Ethiopian Constitution in the Course of

Application
Nigussie Afesha 
“Where the natural path of formal amendment is difficult or blocked, alternative
paths open to political actors to achieve its functional equivalent.”
Richard Albert 1
Abstract
Given the generality of a constitution, it requires amendments in order to enable it
to cope up with the socio-economic and political dynamics. As a result, formal
constitutional amendment procedures have remained vital mechanisms in this
regard. However, the rigidity of formal constitutional amendment procedures
and/or the political context of a country have often kept constitutions static and
frequently induce politicians to look for alternatives. Informal constitutional
amendment mechanisms are thus designed in response to the difficulty of formally
amending the constitution. In this sense, the role of non-constitutional mechanisms
in the alteration of a constitution is essential. The FDRE Constitution encompasses
a constitutional provision that spells out how the Constitution can be amended.
However, there has not yet been a single formal constitutional amendment. This
article examines instances of actual but unwritten constitutional changes in the
course of application that have been occurring in Ethiopia for which formal
constitutional amendment cannot account for. These include constitutional changes
through constitutional interpretation, or by legislation. The article contends that
there are time-honoured practices that regulate and continue to guide the course of
the Ethiopian federal state in contradiction to the Constitution. Equally important,
party structure also influences the federal distribution of power.
Key terms
FDRE Constitution, informal constitutional changes, constitutional amendment,
constitutional interpretation, political custom, law enforcement, Ethiopia.
DOI http://dx.doi.org/10.4314/mlr.v10i2.4

Nigussie Afesha, (Asst. Professor) at Hawassa University, College of Law and
Governance, School of Law.
I thank Bisrat Mulugeta for his comments and helpful discussion. I am also grateful to
Elias N. Stebek (for his invaluable comments and insightful suggestions) and the
anonymous reviewers for their contributions toward the improvement of the article.
1
Richard Albert (2014), “Constitutional Disuse or Desuetude: The Case of Article V,
Boston College Law School”, Legal Studies Research Paper Series, No, 327 p. 1062.
366
The Practice of Informal Changes to the Ethiopian Constitution … 367
Introduction
A constitution outlines the major principles and the basic organization, structure,
and process of a state.2 Most of its content is brief, and “constitutions, by their
nature, operate in time, seeking to regulate the future on behalf of the past.”3
Many drafters of constitutions act as if their handiwork should last for a long
period of time.4 Indeed, every normative constitutional theory presumes that
constitutions are able to function over a relatively extended period of time.
Without endurance, constitutions cannot provide a stable basis of politics. This
assumption of endurance is built into the very idea of a constitution and closely
related to core normative issues, such as constitutional amendment.5
The idea of constitutional amendment stems from the argument that no
generation has a monopoly on knowledge enabling it to bind future generations
irreversibly, and that “a constitution that will not bend will break”.6 There is
thus an ‘inherent right’ to amend a constitution in order to perfect
‘imperfections’ and to strengthen its provisions where necessary.7 Amendment
denotes the idea of making correction or improvement in the text of a written
constitution.8 Formal constitutional amendment is more of a norm and continues
as a widely shared and intrinsic quality of national constitutions.9 The primary
means of legitimate adjustment on constitutional document is a formal
procedure specified in the Constitution itself.10 It is equally important to bear in
2
Donald J. Boudreaux and A. C. Pritchard (1993), Rewriting the Constitution: An Economic
Analysis of the Constitutional Amendment Process, Fordham L. Rev. Vol., 62, Pp. 111-
162, p. 111.
3
Tom Ginsburg (2011), “Constitutional endurance” in Tom Ginsburg and Rosalind Dixon,
eds., Comparative Constitutional Law, Edward Elgar Publishing, p. 112.
4
Ibid.
5
Ibid.
6
John Hatchard, Muna Ndulo, Peter Slinn (2004), Comparative Constitutionalism and Good
governance in the Commonwealth: An Eastern and Southern African Perspective,
Cambridge University Press, New York, pp. 44-45.
7
Ibid.
8
Rosalind Dixon (2011), “Constitutional Amendment Rules: A Comparative Perspective” in
Tom Ginsburg and Rosalind Dixon, eds., Comparative Constitutional Law, Edward Elgar
Publishing, p 96.
9
Ibid.
10
Bjørn Erik Rasch, (2008), Foundations of Constitutional Stability: Veto Points, Qualified
Majorities, and Agenda-Setting Rules in Amendment Procedures, A Paper presented at the
ECPR Joint Sessions of Workshops Rennes, France, April 11-16, 2008 pp. 3-
4[Hereinafter called, Bjørn Erik Rasch, Foundations of Constitutional Stability].
368 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
mind that the more fundamental the constitutional change, the weightier
becomes the reason for resorting to formal processes.11
However, there are arguments over the function of formal procedures for
constitutional amendment and comparative difficulty of such processes.12 Most
constitutional scholars agree that not all forms of constitutional change in fact
involve formal constitutional amendment processes. Some even have suggested,
ultimately formal constitutional amendments will be irrelevant to shape
constitutional meaning.13 Irrespective of these arguments, constitutions have
special procedures and require the involvement of majorities for their
amendment, often requiring some measure of consent from the legislatures or
the public.14 Nevertheless, amendment rules have often made constitutions
difficult to change and the politics of their constitutional amendment has proven
to be very divisive. As a consequence, several countries frequently look for
alternatives to formal constitutional amendment mechanisms.15 In this regard,
the role of non-constitutional mechanisms in the alteration of the Constitution is
essential. In particular, the function, relation and co-existence of formal and
non-formal constitutional amendment mechanisms need to be clearly spelled
out. The extent to which and the circumstances under which informal
constitutional mechanisms modify the contents of a given constitution need to
be ascertained.
The FDRE Constitution expressly provides for the mechanisms of its
modification which includes, setting different amendment formula to amend
various sections of the Constitution.16 The Constitution also expresses that a
proposed constitutional amendment is required to be submitted for discussion
and decision to the general public and to those whom the amendment of the
Constitution concerns.17 Despite this fact, the Constitution has not undertaken
any formal amendment so far. The exception to this was the move to amend
article 9818 of the Constitution, titled ‘concurrent power of taxation’ that gave
the federal government the legislative and executive power over the concurrent
taxation restricting the power of the state only to get the proceeds thereof.
11
Getachew Assefa (2012), Ethiopian Constitutional Law with Comparative Notes and
Materials: A Text book, p. 103.
12
Ibid.
13
Id., p. 100.
14
George Anderson (2008), Federalism: An Introduction, Oxford University Press, p 59.
15
Ibid.
16
See article 105 of the FDRE Constitution.
17
Id., article 104.
18
Solomon Negussie (2008), Fiscal Federalism in the Ethiopian Ethnic-based Federal
System, Rev. ed. Netherlands Wolf legal publishers p.64.
In doing so, formal amendment was initiated, and the proposed amendment
passed through a number of stages. However, Negarit Gazette did not proclaim
the proposed amendment.19 In practice, this provision of the Constitution
changed and, the federal government has been empowered to determine the
scope of the tax as well as the rate, and administer the same (concurrent power
of taxation), while the regional states are entitled for their share. Except for this
circumstance, the Constitution has served for more than two decades without
making a formal amendment. However, there are ample instances of actual but
unwritten constitutional changes conceivably occurring in Ethiopia for which
formal constitutional amendment cannot account for. One can thus argue that
informal procedures for constitutional amendment can play a role in
reconstituting the Constitution and to reset the constitutional meaning for
subsequent constitutional developments.
This article examines these practices of informal constitutional changes in
Ethiopia. The first section deals with conceptual and theoretical frameworks of
constitutional amendment. The second section discusses formal constitutional
amendments in general. This part explains textual amendments, which are
usually considered as conventional vehicles for amending a Constitution.
Section 3 takes up various mechanisms of non-textual ways of introducing
changes in the life of the Constitution such as judicial interpretation, legislation,
party practice and political customs. The Ethiopian experience of formal
constitutional amendment and mechanisms of informal change are discussed in
Sections 4 and 5. These sections further highlight historical and conceptual
perspectives of formal and informal constitutional changes in Ethiopia.
1. The Concept of Constitutional Amendment: A theoretical

framework
The constitution of any country is intended to capture the essence and wishes of
the people. Such norms and desires of the people are dynamic and evolve after
they are initially formed.20 In view of the dynamic nature of society and their
aspirations over time, constitutions cannot remain immutable.21 Ginsburg argues
that constitutions “exist in a world of change, and so must adjust to changing
conditions”.22 Amendment is a mechanism that preserves the continuity of the
19
Ibid.
20
Rosalind Dixon (2010), “Amending Constituting Identity”, Chicago Public Law and
Legal Theory, Working paper No. 332, p. 1.
21
Gabriel L. Negretto (2011), Replacing and Amending Constitutions: The Logic of
Constitutional Change in Latin America, paper prepared for delivery at the 2011
American Political Science Association Meeting, Seattle, Washington, September 1-4, p
751.
22
Ginsburg (2011) supra note 3, p. 112.
constitution in a changing environment.23 By implication, constitutional

amendment processes are of foundational value for making changes, and allow
political actors to respond to the changing political, social, and economic needs
of the political community.24 For this reason, every constitution must provide
some method by which it could be amended as conditions and circumstances
dictate to make periodic reconsideration of fundamental principles. A
constitution is supposed to be changed in ways that the provision of the
constitution describes.25 It is imperative that the essence of amendment be
sufficiently articulated and understood.
Rosalind Dixon defines constitutional amendment as the idea of making
correction or improvement upon prior constitutional design choices in light of
new information, evolving experiences or political understandings.26 He
contends that constitutional ‘amendment’ generally requires some kind of
formal legal deposit in the text of a written constitution.27 Unlike ordinary
legislation, constitutions thus commonly entrench one or more amendment
formula to modify their text.28 Providing a legal and transparent framework that
enables to alter the constitution29 and fix defects (revealed by time and
experience) is an essential function of formal amendment rules.30 Formal
amendment rules structure the process by which political actors change the text
and meaning of a constitution.31 This may lead to the argument that a formal
constitutional amendment process can be (and are typically) used to a wide
range of constitutional alterations. However, this is not tantamount to requiring
every constitutional modification to pass through the formal amendment
channels.
In support of informal amendment, Strauss argues that formal amendments,
which are adopted in a constitution, are actually not a very important way of
changing it.32 “Most constitutional scholars agree that not all forms of
constitutional change in fact involve formal processes of constitutional
amendment”.33 The claim here is that some forms of modification can be made
23
Negretto, supra note 21, p. 749.
24
Richard Albert (2013), “The Expressive Function of Constitutional Amendment Rules”,
McGill Law Journal Vol. 59, No.2 Pp. 225-281, p. 233.
25
David A. Strauss (2010), The living Constitution, Oxford University Press, New York,
p. 115.
26
Dixon (2011) ., supra note 8, p. 96
27
Id., p 97.
28
Albert (2014), supra note 1, p. 1033.
29
30
Id., p. 227.
31
Id., p. 232.
32
Strauss, (2010), supra note 25, p. 115.
33
Dixon (2011), supra note 8, p. 97.
informally without setting the constitutional amendment process in motion. This

is because some institutions like courts and legislative bodies are also
established to undertake such task. As Richard Albert noted, although the idea
of formal amendment has American roots, as expressly embodied in Article V
of the United States Constitution,34 the pace of formal amendment in the United
States is decelerating.35 And now, the dominant mode of ‘updating’
constitutional meaning has turned out to be via a process of judicial
interpretation.36 This leads to an argument that constitutions can be modified
over time without textual changes, typically by means of constitutional court
rulings and, less visibly, by legislative and executive decisions, or by the
informal practices of political actors’.37
One may generally state informal amendment as a process involving
alteration of constitutional meaning in the absence of textual change.38 An
informal amendment occurs when political norms change, or courts, the most
conventional actors of informal amendment, interpret or construct the
constitution so as to bring it in line with policy preferences.39 Hence, political
actors alter constitutional meaning or update the constitutional text informally
without a corresponding alteration to the constitutional text as time and
experience expose faults in its design and new challenges emerge in the
constitutional community.
It can be argued that formal amendment rules provide a legal and transparent
framework within which a constitution can be altered, whereas informal
amendment occurs supposedly pursuant to extralegal procedures. To call
informal amendment ‘extralegal’ is not to make a claim against its legitimacy.40
For that matter, the purpose of describing formal amendment rules as ‘legal’ and
informal amendment procedures as ‘extralegal’ is merely meant to highlight that
the former is vividly outlined in a constitutional text while the latter is
entrenched within it.41 Put differently, the difference between formal and
informal amendment is not that one is a set of legal rules and the other is not; it
is, that the former is textually entrenched through legal rules while the latter is
not.42 It should be noted here that both formal and informal amendments adjust
34
35
Ibid.
36
Dixon (2011) supra note 8, p. 339.
37
Negretto, (2011), supra note 21, p. 3.
38
Richard Albert (2014a), “The Structure of Constitutional Amendment Rules”, Wake
Forest Law Review, Vol. 49, pp. 913-75, p. 914.
39
40
Id., p. 232.
41
Ibid .
42
Id., p. 233.
basic constitutional values in tune with changing political and social

circumstances by incorporating into a constitution a broader and more inclusive
understanding of these values.43
2. Formal Constitutional Amendment

Constitutions obsolesce rapidly, and must be updated over time to cope with
changes in the country’s circumstances and citizens’ values.44 Changing social
circumstances and understandings will often make provisions of a constitution
outdated.45 Therefore, a constitution is expected to regulate new/dynamic
circumstances that have evolved after the constitution was initially framed. The
issue here is: what process should be followed in updating a constitution?
Richard, in this regard, notes that fixing defects of a constitution is an essential
function of formal amendment rules.46 Getachew also underlines that
amendment “is without any doubt the most formal way in which a constitution
takes care of problems it suffers”.47 It is thus natural for a constitution to
describe the principal modes of changing its rules, be it the substance of the
provision or its scope of applicability. If periodic replacement of a constitution
is not feasible, the next plausible option is sticking to a formal constitutional
amendment process, which is stated in the constitution itself. In this sense,
formal constitutional amendment procedures have important functions in a
constitutional democracy. In cases of major constitutional change, they help to
ensure that change occurs via legal, rather than extra-legal, means.48
As Albert states: “[i]n the normal course of affairs, a state amends its
constitution in accordance with the constitutional amendment procedures spelled
out in the constitutional text. These amendment procedures will typically
identify the individuals, institutions or bodies” that are authorized to propose an
amendment to the existing constitution and they prescribe the necessary and
sufficient conditions for amending the same.49 Thus, amendment becomes valid
only if it adheres to the procedural requirements set out in detail in the
Constitution and is proposed by those persons who are authorized to do so. Such
amendment becomes law only if it meets those, often stringent, requirements.
43
44
Adrian Vermeule (2004), “Constitutional Amendments and the Constitutional Common
Law”, Chicago Public Law and Legal Theory Working Paper, no. 73 p. 1.
45
Rosalind Dixon and Richard T. Holden (2011), “Constitutional Amendment Rules: The
Denominator Problem”, Chicago, Public Law and Legal Theory Working Paper, No. 346,
p. 1.
46
Albert, (2013), supra note 24, p. 227.
47
Getachew, supra note 11, p. 103.
48
Dixon and Holden (2011), supra note 45, p. 1.
49
Richard Albert, (2010), “Nonconstitutional Amendments”, Canadian Journal of Law and
Jurisprudence, Vol. xxii, No.1 pp. 1- 43, p. 13.
The textual procedures are, therefore, “both the beginning and the end of the
constitutional amendment process”.50 It is only when the amendment effort
successfully goes through the procedures that it would introduce changes into
the written constitutional order.51
However, there are substantive limits to valid constitutional changes. These
occur where a constitution contains “Eternal Clause” or “unamendable”
provisions.52 This relates to constitutional provisions that immunize certain
provisions of a constitution against amendment. These parts of the constitution
can be altered neither by judicial construction nor through constitutionally
entrenched amendment procedures.53 Changing an unamendable constitutional
provision is unthinkable except through comprehensive constitutional renewals
that would bring about a paradigm shift.54
Save the issue of eternal clause as an exception to a formal amendment
process, countries have different amendment requirements which may be
grouped into three general categories: legislative majority, double passage
requirements (this is the case where the bill is expected to pass through two
houses of parliament), and referendum requirements.55 Others (that opt to
express the exact degree of difficulty) categorize amendment requirements into
four groups: legislative supermajority requirements, parliamentary quorum
requirements, state ratification, and referendum requirements.56
While affirming formal constitutional amendment mechanism is extremely
important (and a necessary means) to introduce change into the constitution, the
onerous nature of amendment requirements and the difficulty of adhering to the
requirements spelled out in the constitution render a constitutional amendment
difficult. For example, if an amendment is required to pass two Houses of
parliament, its approval can be too difficult as compared to a bill which can be
enacted by one house.57 The rigour of the process can be even more difficult if a
bill is required to pass through a constituent unit legislative council as well.58 In
effect, stiff amendment requirements that were initially envisaged by framers of
a constitution would inevitably cause the dilemma for countries between
pursuance of the formal amendment path or looking for other mechanisms.
50
Ibid.
51
Ibid.
52
Getachew, supra note 11, p. 103.
53
54
Ibid.
55
56
Ibid.
57
This assertion should be viewed in a State where both houses are not dominated by a
single party or a single house not controlled by a single party.
58
Based on this reasoning, we can find several examples of constitutional

change that did not follow formal procedures laid down in constitutions. For
example, the U.S. and Australia59 have written requirements for constitutional
amendment that are unusually onerous. In both countries, it is practically
difficult to conduct wholly successful constitutional amendment campaigns.60
Given the fact that almost every constitution worldwide imposes some form of
super-majority requirement for successful constitutional amendment, this has
negative bearings on the chance of successful textual constitutional change.61 In
the United States, the difficulty to adhere to the amendment procedure outlined
in Article V of the US Constitution has rerouted the pursuance of constitutional
from formal to informal amendment.62 The difficulty of formally amending the
Constitution has accordingly forced political actors to update the Constitution
informally through non- Article V methods, leaving the actual constitutional text
unchanged.63 Some argue that the amendment procedures under Article V are
too cumbersome and erratic to serve as the sole vehicle for constitutional
development in a complex and rapidly changing society.64
There are several other more flexible modes of constitutional change that do
not rely on the mechanistic procedures of Article V in order to keep the
constitutional regime current and reflective of new social and political
equilibria.65 These modes enable constitutional change by political adaptation as
well as legislative and executive bodies. Such informal constitutional
amendment mechanisms have drawn growing attention within governments and
among scholars as they are ubiquitous and inevitable.66 This flows from the
inevitable fact of informal ways of introducing changes in the life of a
constitution, as a result of the rigidity of formal constitutional amendment
methods and given the quantity and generality of a written constitution.
Therefore, informal constitutional amendment procedures may play a role in
reconstituting constitutional meaning in response to cumbersome constitutional
amendment requirements. As a result, non-text-based constitutional changes can
attain the objectives of formal amendment mechanisms in resetting the
constitutional meaning for subsequent constitutional developments.
59
These two countries are known for introducing change in their constitutions informally,
and are being cited in a numbers of scholarly articles for so doing.
60
61
Ibid, p. 10.
62
63
Id., pp. 1051-2.
64
Id., p. 1052.
65
Ibid.
66
It should be noted that a constitution does not specifically list informal

amendment processes as forms of its modification.67 Rather, these methods
depend on interpretations of what the constitution says and on interpretive
understanding of the underlying intent.68 These may happen where there are new
situations, which cannot be addressed by existing provisions of a constitution, or
when there are gaps in an existing constitution. In these scenarios, courts and the
representative bodies interpret provisions of a constitution in a creative manner
to keep the constitutional regime up-to-date and reflective of new social and
political changes without relying solely on the formal procedure. This is because
it is not feasible to rely on formal constitutional amendment procedures for all
unfolding new circumstances and gaps in a constitution created by dynamic
realities. Against this backdrop, one may dare argue that informal constitutional
amendment procedures may somewhat have remote constitutional base.
3. Informal Constitutional Amendment

As highlighted in the preceding sections, constitutional change can occur in the
course of its application even in the absence of formal amendments.69 Most
countries with difficult constitutional amendment procedures have developed
“non-textual” alternatives of introducing constitutional changes, inter alia,
through judicial review.70 So, the level of rigidity has direct repercussions on the
extent to which the courts and the representative bodies interpret provisions
(more informally) in a creative manner.71 These informal mechanisms mainly
result from experiences of government action under the constitution. Hence,
informal amendment is the need to correct constitutional deficiencies with
diligence and efficacy.72
There are different types of informal change in the constitutional
arrangement of a country. The first possibility is gradual revision of the
67
Boundless. “Informal Methods of Amending the Constitution: Societal Change and
Judicial Review.” Boundless Political Science. Boundless, 08 Aug. 2016. Retrieved 07
Oct. 2016 <https://www.boundless.com/political-science/textbooks/boundless-political-
science-textbook/the-constitution-and-the-founding-of-america-2/amending-the-
constitution 28/informal-methods-of-amending-the-constitution-societal-change-and-
judicial-review-168-5169/>
68
Ibid.
69
Rasch, supra note 10, p. 9.
70
Iris Nguyên-Duy, (2013), Playing Doctor Frankenstein when Re-forming the
Constitution? Some thoughts on recent developments in the United Kingdom and
Norway, a Paper for the international Conference “The Importance of Constitutions” Held
at the Swedish Institute in Istanbul, Turkey, 23-25 October 2013, p. 9.
71
Ibid.
72
Id., p. 11.
constitutional framework by means of judicial interpretation.73 Strauss, for

example, argues that in the US, the Supreme Court generally interprets “the
Constitution more or less in line with the kinds of changes in circumstances,
understandings and even majoritarian demands that can lead to successful”
constitutional amendments.74
The second possibility is revision of the constitutional text by irregular
means. There are constitutional amendments that would not have been valid if
the formal amendment and ratification process laid down in a constitution had
been strictly followed.75 One can find several examples of constitutional
changes that do not follow the formal processes laid down in the constitution.
The Sherman Antitrust Act of 1890, the Civil Rights Act of 1964, and the
Endangered Species Act of 1973 are suggested examples of informal
amendments in the United States without adhering to amendment requirements
stated in Article V.76 The third possibility is intended or unintended revision of
the constitutional framework by means of political adaptation through
legislative and executive bodies.77 Such informal amendments include
legislation, judicial interpretation, executive action and convention.78.
3.1 Legislation
The framers of a constitution create the basic skeleton of different institutions,
and they entrench particular solutions to a relatively narrow set of questions. For
the rest, they seek to create a set of political institutions and empower those
institutions to deal creatively with ongoing developments that cannot be
effectively addressed by solely using the formal text in the constitution.79
Therefore, there may be many other documents that supplement the text of the
constitution and provide for the actual set of constitutional rules.80 These might
include court decisions and legislation that provide for core aspects of
governance and supplement the formal text. In the latter case, constitutional
73
Rasch, supra note 10, pp. 3-4.
74
75
Rasch, (2008), supra note 10, pp. 3-4.
76
Albert, (2014) supra note 1, p. 1063.
77
Rasch, supra note 10, pp. 3-4.
78
Albert (2014) supra note 1, p. 1062.
79
See for example, Ernest Young A. (2007), “The Constitution Outside the Constitution”,
Yale Law Journal, Vol. 117, pp. 408-473, p. 456.
80
Tom Ginsburg, (2010) “Constitutional Specificity, Unwritten Understandings and
Constitutional Agreement”, in A. Sajo and R. Uitz, eds., Constitutional Topography:
Values and Constitutions, Eleven international publishing, in The Netherlands, p.73.
documents are described as the ‘law for making laws’ through which all other
laws are made and enforced.81
Constitutions include some of the most fundamental rules. These include
rules about the machinery of government and make general specifications about
rights of citizens. These constraints enable the legislature to make further
law/decisions to achieve objectives of the constitution while reducing the risks
of violating constitutional principles. These are a few mechanisms available to
the legislature, outside formal amendment, to influence constitutional meaning.
Empowering a legislature to detail the general principle is sufficient condition to
alter and influence a meaning in a constitution. This enables informal
amendment through national legislation.82
The legislature has been a major agent in informal constitutional
amendments in two ways. First, it passes many laws to spell out several of a
constitution’s brief provisions.83 Often, constitutions endeavour to set out the
major tasks of governments and generally outline many issues in a holistic
manner. Therefore, taking the general principles enshrined in a constitution into
account, these matters should be governed by legislation. This is one way of
making necessary changes in the provision of a constitution. Second, the
legislature adds to a constitution the way in which it uses its powers.84 As
Rosalind Dixon notes:
A principle of partial amendment does not purport to allow a legislature to
add to or subtract from the text of the Constitution outside the requirements
of amendment procedures. Rather, it allows legislature to provide information
to the Court, with a view to influencing the Court’s interpretation of existing
constitutional text.85
In the United States, the theory of ‘super-statutes’ illustrates, with important
limitations, how national legislation informally amends a constitution.86 There
are certain statutes (in the US) that are passed in the normal course of the
legislative process but acquire quasi-constitutional status. However, these
statutes are expected to fulfil four criteria to obtain such status.87 First, they
introduce a new principle or policy whose effect is substantial. Second, the new
principle or policy becomes foundational or axiomatic to political actors. Third,
81
Roger D. Congleton, (2003), Improving Democracy through Constitutional Reform, Some
Swedish Lessons, Kluwer Academic Press, Boston, p. 11.
82
83
Johnson Carl. Informal Amendment
<www.jenksps.org/pages/uploaded_files/Informal%20Amendment.pdf>
84
Ibid.
85
86
Albert(2014), supra note 1, p. 1063.
87
Ibid.
they result from long and deliberative public discussions and substantial
reflection by political actors. Fourth, they require some elaboration from
officials and judges in order to achieve their intended effect.88
Super-statutes, which fulfil these criteria, acquire their normative force
through a series of public confrontations and debates over time. Super-statutes
influenced by social norms may occasionally change constitutional meaning.
They do so by trumping ordinary legislation and by establishing ‘foundational
principles’ against which people presume their obligations and rights are set,
and through which interpreters apply ordinary law. The Sherman Antitrust Act
of 1890, the Civil Rights Act of 1964, and the Endangered Species Act of 1973
are suggested examples. In addition to the aforementioned Acts of the United
States, the United Kingdom Human Rights Act of 1998, the Canadian Bill of
Rights of 1960, and the Canada Health Act also constitute typical examples of
super-statutes.89
3.2 Constitutional interpretation
Constitutional interpretation has two meanings. The first meaning, usually
regarded as the classic meaning, “relates to the review of constitutionality of
laws and actions of the state authorities that contravene the constitution”. 90 The
second “meaning of constitutional interpretation is what we can call expounding
on the text of the constitution” and it “may relate to any type of dispute that may
arise in relation to the constitution or its provision”, as in the case of a dispute
“whether two provisions or principles in the constitution conflict with each
other” thereby rightly becoming “a matter for constitutional interpretation”.91
Moreover, a gap in the constitution regarding important constitutional rights or
principles may become a matter of constitutional interpretation.92
Drafters of constitutions often use general provisions, which are composed of
ambiguous terms that provide flexibility to compromise.93 Given the quantity
and generality of a constitution, it is not surprising that such a document
requires interpretation.94 Constitutions proclaim all the values their framers
believe essential to a good society but do not prioritize those values. Resolving
conflict among basic values is thus left to the implementers and interpreters.95
However, constitutional provisions often offer little specific guidance for the
88
Ibid.
89
Ibid.
90
Getachew (2012), supra note 11, p. 509.
91
Ibid.
92
Ibid.
93
Martin Edelman (2005), “Written Constitutions, Democracy and Judicial Interpretation:
the Hobgoblin of Judicial Activism”, Albany Law Review, Vol., 68, pp. 585- 596, p 591.
94
Ibid.
95
Id., p 592.
resolution of particulars in constitutional claims.96 This makes it necessary for

constitutional adjudicators to specify the meaning of the provision in the context
of actual cases.97 Wherever there is a written constitution whose “text is
indeterminate, the courts are called upon to fashion a meaning”.98 It is in this
sense that “constitution amendment processes tend to be linked to judicial
interpretation”.99 Thus, constitutional interpretation, unlike ordinary law cases,
has greater impact in shaping a constitutional order.100
In the United States for instance, interpreting the constitutional text has been
the preeminent activity of the Supreme Court for nearly two centuries. Indeed,
the Supreme Court interpreting the written constitutional text is the essence of
constitutional law in the United States. Courts, especially the Supreme Court,
interpret and apply the Constitution in all of the cases they hear.101 In an event
when the court declares that the words of a provision are plain and clear, or in
situations where several meanings are possible and one meaning is chosen over
the other, one can imagine its effect in shaping the constitutional text.
A Supreme Court judgment that interprets a vague constitutional provision
might amount to an unwritten constitutional amendment.102 The Supreme Court
has, from time to time, amended the United States Constitution without
implementing the procedures required by Article V.103At this stage, it is possible
to argue that in the United States, interpreting a constitution may involve
constitutional amendment. Informal amendment by judicial interpretation is
more likely to occur in countries with a low rate of formal amendment and a
long-established constitution. The practices in Australia, Finland, and Ireland as
well suggest frequent informal amendment by judicial interpretation as a
supplement to the formal amendment process.104
96
Renáta Uitz (2005), Constitutions, Courts and History: Historical Narratives in
Constitutional Adjudication, Central European University Press, Budapest, Hungary, p.63.
97
Id., p. 67.
98
Sheldon D. Pollack, (2004), “Constitutional Interpretation from Two Perspectives:
Canada and the United States”, in Stephen L. Newman, ed., Constitutional Politics in
Canada and Unite States, State University of New York Press, Albany, p. 36.
99
Dixon (2011), supra note 8, p 96.
100
Assefa Fiseha (2002), “A New Perspective on Constitutional Review”, Tilburg Foreign
Law Review, pp. 237-255, p. 244.
101
Pollack (2004) , supra note 98, p. 36.
102
See for example, Albert, (2010), Non constitutional Amendments , supra note 48, p. 13.
103
Eric J. Segall (2013), “Constitutional change and the Supreme Court: the Article V
Problem”, Journal of Constitutional Law, Vol.16, No.2, pp. 443- 451, p 451.
104
3.3 Practices of political parties

Political parties have been major players in the shaping of governments. The
structure of party systems and “the way political parties are organized might
reinforce or corrode the federal division of powers”.105 There is also “a strong
correlation between government party leaders tampering with the constitution to
secure more terms than what is constitutionally permitted and the flaring up of
acute conflict”.106 Therefore, “the roles played by political parties are important
determinants in the operation of federal systems”107 and can affect the
constitutional and institutional guarantees. Constitutional and institutional
guarantees are meant to prevent political leaders at the central level of the
federation from breaking the rules or changing the federal bargain unilaterally.
These guarantees could be ineffectual when one homogeneous party controls
both levels of government, because then it is more unlikely that there will be
opposition against the change.108
3.4 Political norms/ political custom
Custom implies usual practices that have no formal obligatory effect.109 Despite
its light obligatory nature, unwritten political custom may be as strong as written
laws.110 Political norms change or construct the constitution so as to bring it in
line with policy preferences.111 A well-established practice, which has been
developed within a given political system, could alter the constitutional
regime.112 By the same token, constitutions may alternatively be amended
informally by political norms/political customs. This occurs when a political
practice is adopted and repeated, and gradually hardens over time without
expressly overturning constitutional provisions. This also takes place by means
of usage within the legislative and executive bodies.113 In this regard,
constitutions are susceptible to informal amendment through an established
105
Lovise Aalen (2002), Ethnic Federalism in a Dominant Party State: The Ethiopian
Experience 1991-2000, Bergen, Chr. Michelsen Institute Development Studies and
Human Rights, No2, p. 20.
106
International Institute for Democracy and Electoral Assistance (2007), Political Parties in
Africa: Challenges for Sustained Multiparty Democracy. p. 91.
107
Aalen (2002), supra note 105, p 20.
108
Ibid, p. 21.
109
Tadesse Melaku (2012), Introduction to Constitutional Law, Vol. I, Far East Trading
P.L.C, p. 175.
110
Carl, supra note 83.
111
Albert, (2014) supra note 1, p. 1062.
112
David A. Strauss, (1999), Do Constitutional Amendments Matter? University of Chicago
Law School, Public Law and Legal Theory Working Paper No. 05, p. 20.
113
Tadesse, supra note 109, p. 175.
political custom. This occurs when a political practice is adopted and repeated,
and gradually hardens into what Gerhardt calls “non-judicial precedent.”114
An example in this regard is the issue “whether the Vice President of the
United States becomes President upon the President’s death, or whether the Vice
President simply assumes the powers and duties of the presidency as a caretaker.
The text of the United States Constitution is ambiguous on this point”.115 Vice
President John Tyler resolved the ambiguity upon the death of President
William Harrison in 1841.116 The Tyler precedent resolved the question left
open by the constitutional text. Subsequent Vice Presidents followed the Tyler
precedent and proclaimed themselves President when they succeeded to the
presidency.117Although Tyler’s claim probably contradicted the framers’ intent,
later Vice Presidents who found themselves in that situation embraced his
position and ultimately the Tyler precedent is accepted as constitutional
reality.118
4. The Ethiopian Legal Regime on Formal Constitutional

Amendment
The FDRE Constitution embodies provisions that spell out how the Constitution
can be amended.119 These provisions are designed to ensure the involvement of
states in incidents of constitutional amendment. The provisions embody clear
procedural requirements toward formal amendment, and they show how a
constitutional proposal, which is formally initiated and ratified, is inscribed in
the constitutional text. Therefore, those amendments that pass through the
conventional vehicles of formal amendment process become valid to all intents
and purposes as part of the Constitution.
Although the Constitution expressly provides for the mechanisms of
constitutional amendment, there are no express ‘eternal clauses’ that make some
constitutional provisions non-amendable. It does not even prohibit the abrogation
of or impediments to the rights conferred in Chapter Three of the Constitution
(titled Fundamental Rights and Freedoms) with a view to rendering such
amendment/s unconstitutional.120
114
Albert, supra note 1, p. 1070.
115
Ibid.
116
Ibid.
117
Ibid.
118
Ibid .
119
See article 104 and 105 of the FDRE Constitution.
120
The FDRE Constitution specially mentions which provision is not derogated during the
state of emergency. However, neither art 105 nor other parts of the Constitution indicates
a right that is not subjected to formal constitutional amendment.
Formal amendment procedures usually identify the individuals, institutions

or bodies that are authorized to propose amendment to the existing constitution.
However, the FDRE Constitution does not expressly indicate who can propose
an amendment, be it group of individuals or institutions, and the procedure to be
followed for the initiation of constitutional amendment.121 Fasil argues that the
“formal initiation of constitutional amendment can come from either the
regional or federal legislative organs”.122 He further states “where the initiation
comes from the regional states, a two third of state councils must support the
draft amendment by majority vote. Otherwise, either of the federal Houses can
initiate a constitutional amendment by a two third majority vote”.123 One can
possibly infer from Fasil’s argument that an amendment to the Constitution can
be tabled either by the federal Houses or State Councils but not by the general
public.
On the other hand, the Constitution requires a proposed constitutional
amendment to be submitted for discussion and decision to the general public and
to whom the amendment of the Constitution concerns.124 This can be done if the
proposal for constitutional amendment is supported by a two-third majority vote
in the House of Peoples' Representatives (hereinafter, HoPR), or by a two-third
majority vote in the House of Federation or when one third of the State Councils
of the member States of the Federation, by a majority vote in each Council.125
The role of the public seems either to approve the proposed amendment
whenever it provides for a better protection, or reject the proposal when a
proposed amendment adversely affects the minimum constitutional privileges. If
the general public stands against the proposed amendment, an issue arises
whether the views of the legislative council or the general public would prevail.
The first line of argument is based on Article 105 of the FDRE Constitution
that deals with constitutional amendment. This provision does not prohibit the
submission of constitutional amendment proposal to the federal and regional
state legislative councils for consideration if it is rejected by the general public.
As a matter of fact, the Constitution does not indicate the role of the general
public in the ratification process. It only mentions the involvement of the
members of the federal Houses and regional state councils. One can thus argue
that any proposal of constitutional amendment may be submitted for approval
irrespective of its rejection by the general public. A bill, which is approved with
121
122
Fasil Nahum, (1997), Constitution for a Nation of Nations: The Ethiopian Prospect, The
Red Sea Press, p. 60.
123
Ibid.
124
125
See article 104of the FDRE Constitution.
the involvement of the legislative councils of both levels of government,

becomes part of the constitution.
On the other hand, the aforementioned argument can be regarded as
incongruent with the sovereign power of people since the members of the
legislative councils are representative of the people. It is true that principally
sovereignty lies on the people.126 What follows from this is that the
constitutional amendment process should be controlled and owned by the people
who form state power. This leads to interrogating the legitimacy of legislative
councils to act contrary to public need. Even if both have different tests, the
need of the people should have greater weight on what should be included in
and excluded from the Constitution.
Article 105 of the FDRE Constitution, titled “Amendment of the
Constitution”, provides for different amendment standards or amendment
procedures to modify the various sections of the Constitution. The first category
of procedures requires majority approval from both federal houses, in addition
to simple majority vote from each of the nine regional states legislatures. This
kind of amendment, for the purpose of the FDRE Constitution, may be
characterized as special amendment. The second category of amendment
formula requires a majority of both houses and majority approval from two third
of the states’ council. This sort of amendment can be referred to as ordinary/
general amendment.
4.1 Ordinary/General amendment procedure
This general amending formula applies to wider sections of the Constitution.
This kind of procedure is applicable to all provisions of the Constitution other
than those provisions, which are found in Chapter Three, Articles 105(1) and
104. A general amending procedure requires the assent of the two federal houses
and two-thirds of the Councils of the member States of the federation.127 It
requires approval by a simple majority vote in state council of member states,
followed by the approval of the House of Peoples’ Representatives and the
House of Federation by two-third majority vote in joint sitting. Thus, approval
by a two-third majority in both houses, followed by ratification from the
legislatures of two-third of the states, by majority vote, is a sufficient condition
to endorse the proposed amendment.
126
Getachew Assefa (2010) “Parliamentary oversight and Constitutionalism in Ethiopia: An
Appraisal”, in Assefa Fiseha and Getachew Assefa,(eds.) Institutionalizing
Constitutionalism and Rule of law: Towards a constitutional Practice in Ethiopia,
Ethiopian constitutional Law Series, Vol. 3 pp. 152-182, p125.
127
See article 105(2) of the FDRE Constitution.
4.2 Special amendment procedure

A special amendment procedure is enshrined in the Constitution to amend some
sections of the Constitution. These are Chapter Three,128 Articles 104 and 105.
The matters that fall within the scope of this stringent standard are the sections
that deal with fundamental rights and freedoms and a provision that deals with
constitutional amendment. These provisions require the unanimous assent of all
member states, by majority vote, followed by the approval of the federal houses,
sitting and voting separately, in which the requisite approval must be a ‘double
majority’ of votes, which involves members of House of People Representatives
and House of Federation.129
The general and special amendment procedures are applicable to amend the
Constitution formally in a textual manner. This means that FDRE Constitution
authorizes amendments that respect the textual strictures of the Constitution. In
contrast, there is the inclination toward informal constitution changes in the
course of application in Ethiopia. Probable reasons for this seem to be the
political cost and financial implications of formal constitutional amendment. A
case in point in this regard relates to failed efforts to amend article 98 of the
Constitution shortly after the amendment proposal passed a number of stages.
This gives us insight as to why a dominant party’s power in government does
not necessarily guarantee the introduction of any kind of amendment the party
wants to make.
Formal constitutional amendment may cost the government politically.
Opposition political actors had intensified call for constitutional change
specifically to amend some of the provisions of the Constitution.130 However,
the EPRDF considers the Constitution as the foundation of the nation and it
argues that any plan to amend the Constitution goes against constitutionalism.
The EPRDF has also made bold statements describing the FDRE Constitution as
one of the best constitutions in the world and not subject for amendment in
recent decades. After having made these statements, engagement in formal
constitutional amendment, might seem contradicting oneself. It opens, perhaps,
room for further questions of constitutional amendment, which could be
unwelcomed by the EPDRF and its supporters. More importantly, most of the
informal changes made against the Constitution have the effect of increasing the
power of the federal government. If the government makes similar changes by
128
However, some argue that the special amendment procedure is not only applicable to
provision of Chapter Three but also to those provisions that are directly related to
Chapter Three but are not in Chapter Three, such as article 93 dealing with the
suspension of rights that are embodied in Chapter Three.
129
130
There has been frequent claim form opposition political parties, in particular, regarding
the amendment of article 39 which deals with secession.
pursuing the conventional textual method, the government will be blamed of

tendencies toward more centralization officially in violation of the principles of
federalism.
With regard to the financial cost, formal constitutional amendments at least,
require arranging consultative meetings with the society as well as lobbying and
convincing them that the amendment will not affect their interest. Such forums
are necessary to ensure adequate deliberation on the potential advantages and
disadvantages of any proposed constitutional change.131 Where this is the case,
“the time– and therefore also opportunity cost– of debating proposed
constitutional amendments will have a clear relationship with the size of the
relevant voting body.” 132
The more members are involved at various stages of a proposed constitutional
amendment process, the longer will be the time that is required for discussion
and decision. As the size of the participants increases, arranging consultative
meeting, which enables the participants to exchange ideas and debate (over a
benefit and disadvantage of the proposed amendment), will increase the time
taken to introduce change and this has financial implication. Organizing forums
frequently with the society to lobby and convince them that the amendment will
not affect their interest will cost the government financially. This cost has the
potential not only to increase but also become high when the participants of the
forum are large in number. 133
In this sense, the Ethiopian discourse of constitutional amendment makes
sense when one considers how a constitutional amendment is initiated and how
this proposed amendment is ratified. In Ethiopia, the process of constitutional
amendment envisages the involvement of the general public,134 at various
stages, i.e. the initiation stage, during the discussion and decision of the
proposed constitutional amendment. Moreover, the FDRE Constitution also
requires that any constitutional amendment “shall be submitted for discussion
and decision to those whom the amendment of the Constitution concerns”.135
One can argue that since the Constitution requires involvement of the general
public and those communities “whom the amendment of the Constitution
concerns”, the amendment process will take more time and debating over a
proposed constitutional amendment will have high cost. As a result, informal
amendment seems to be the course pursued in Ethiopia to adapt the current
Constitution with changing socio-economic and political situations and
understandings.
131
Dixon and Holden (2010) supra note 45, p 1.
132
Ibid.
133
Ibid.
134
135
Ibid.
5. Informal Methods of Constitution ‘Amendment’: The

Ethiopian Experience
Informal amendment mechanisms have been the subject of great controversy in
contemporary constitutional politics and there is controversy as to when a
change is regarded as informal amendment. It should be noted that, every kind
of informal amendment may not necessarily have the same kind of justification
and each informal amendment method may be justified independently. As
Albert notes, “It is difficult to pin down the difference in the substantive effects
of the formal acts of amending the Constitution and the informal acts of
interpreting it”.136 For instance, in the US, informal amendment by judicial
interpretation occurs when the Supreme Court interprets the Constitution as a
final matter. In contrast, “judicial interpretation by lower courts is generally not
nationally binding and it is therefore less accurate to define it as an informal
amendment”.137
Second, even at the Supreme Court level, not all-constitutional
interpretations cause an informal amendment. An informal amendment by
judicial interpretation occurs where the Supreme Court confers constitutional
status upon an unwritten constitutional principle. In such a case, there is no
functional difference in constitutional effect between a textual rule entrenched in
the constitution by formal amendment and an unwritten rule entrenched by
judicial interpretation.138 With this state of affairs in mind, one can apply the
same analogy to the decision of the House of Federation. The decision of the
House is final over matters submitted to it and the decision of the House binds
any government organ.139 The decision of the House remains binding unless it is
changed by itself. The decision of the House has general effect, which can be
applicable on similar constitutional matters that may arise in the future.140 This
amounts to altering a constitution through unusual mechanisms or informally.
Political norms/custom is the other mechanism of making an informal
constitutional amendment. When a constitution is ambiguous and where
political actors consciously establish a new democratic practice that has been
adopted and repeated, this can be regarded as informal constitutional
amendment if the repetition of the new practice is intended to compel their
136
Richard Albert (2015), ‘Constitutional Amendment by Stealth, Boston College Law
school’, Research paper 357, McGill Law Journal, p. 12.
137
Ibid.
138
Ibid.
139
See article 56(2) of Proclamation No. 251/2001, Proclamation of Consolidation of the
House of the Federation and the Definition of its Powers and Responsibilities, Federal
Negarit Gazeta, 7th Year No. 4, Addis Ababa , 6th July, 2001.
140
Id., article 11(1).
successors into compliance,. This occurs when a political practice gradually

hardens into what Michael Gerhardt calls “non-judicial precedent” that is
accepted as constitutional reality. 141
As far as constitutional amendment by legislation is concerned, there may be
certain legislations that are passed in the normal course of the legislative process
but acquire quasi-constitutional status. This is the case where there is a newly
introduced principle or policy whose effect is substantial. Moreover, the new
principle or policy becomes foundational to political actors and results from
long and deliberative public discussion and substantial reflection by political
actors. If a given legislation rearranges the constitutional powers, it has the
equivalent effect of an amendment and its effect is indistinguishable from a
formal amendment so long as both bind political actors.
In this respect, one can take the instance of the Dire Dawa City Charter.
There were claims made by the Oromia and Somalia regions over Dire Dawa
city administration. Until the claims of these regional states were resolved, as
per the decision of the government, the HPR passed a law granting self-
administration of the city in the meantime. Although the timeline to decide
whether the city belongs to the Oromia or Somali regions had lapsed, the federal
government continued to make special laws to ensure self-governance of the
people of Dire Dawa city administration and made the city accountable to it.
There were questions regarding the constitutional base of the charter. This
legislation which vests autonomous powers to the city can be cited as an
amendment to the Constitution through legislation.
It is not difficult to mention instances of actual unwritten constitutional
change in Ethiopia. One example of informal change is the growth in the range
of federal power. The text of the Constitution defines the scope of federal
powers.142 Deviating from this, the federal government may now regulate
subject matters that a decade ago would have been regarded as concurrent
powers of both tiers of government. No formal amendment to the Constitution
authorizes this expansion of federal government’s power. This expansion in
federal power comes about principally through government decision.
Our constitutional account has seen many developments that must be
regarded as changes of constitutional magnitude, but that have not been
accompanied by a formal amendment. The examples in this regard include the
taking away of the joint power of taxation by the federal government, enacting
Dire Dawa City Administration Proclamation, and conferring the mandate to
141
142
See article 51 cum 55 of the FDRE Constitution.
organize intergovernmental relation to the federal government.143 On the other

hand, empowering regional states to decide identity questions, accepting the
supremacy of federal laws by regional states and enforcing federal laws by their
own right are some of the instances which have taken place informally although
they need constitutional amendments. These aspects of change in our system
have to be considered fundamental enough to assume constitutional magnitude.
5.1 Constitutional interpretation: The Silte case
Constitutional interpretation is one of the customary means by which
constitutions are adapted to changing political, social or economic realities.144 It
is in this sense that the FDRE Constitution empowers the House of Federation to
entertain matters that give rise to constitutional dispute.145 Thus, a constitutional
dispute, in the context of the Ethiopian Constitution, has two aspects: the first
relates to general task of interpreting the Constitution with a view to ascertain
the meaning, content and scope of a constitutional provision, and the second
aspect refers to the task of determining the constitutionality of “federal or state
law”.146
Pursuant to the first aspect, the House may modify the contents of the
Constitution in the course of asserting or defining the scope of a certain term.
On the other hand, if the federal government overreaches or derogates, through
its law or other decision, the powers and interests of the states against the
federal Constitution’s division of powers, this could be corrected by the House
of Federation through its power of constitutional interpretation.147 The decision
of the House is applicable on other similar constitutional matters that may arise
in the future.148 This amounts to altering a constitution through unusual
mechanisms or informally. The following decision of the House in the Silte case
illustrates an informal constitutional amendment.
143
Solomon, supra note 18, p.32. See also the first paragraph of the Preamble, Proclamation
No. 416/2004 the Dire Dawa Administration Charter Proclamation, 10th Year No. 60,
Addis Ababa, 30th July, 2004.
144
Gabriel L. Negretto (2008), The Durability of Constitutions in Changing Environments:
Explaining Constitutional Replacements in Latin America, the Helen Kellogg Institute of
International studies, working paper, No, 350, p. 8.
145
See article 83(1) of the FDRE Constitution .
146
Yonatan Tesfaye (2008), “Whose Power Is It Anyway: The Courts and Constitutional
Interpretation in Ethiopia”, Journal of Ethiopian Law, Vol. 22, No.1 pp. 128- 144 p 134.
147
Getachew Assefa, (2008) Book Review on Assefa Fiseha, Federalism and
Accommodation of Diversity in Ethiopia: A Comparative Study (Revised Edition: 2007)
Addis Ababa: Artistic Printing Enterprise. pp. xv; 480. Journal of Ethiopian Law Vol.
22 No. 2 pp. 189-203, p. 101.
148
See article 11(1) Proclamation No. 251/2001, supra note 139.
This case was initially filed in the House of Federation.149 The applicants
filed their case to the House alleging that Silte had been considered Gurage
against their will for a long period, although they are not truly Gurage.150 They
argued that Silte people have their own language, territory and history, which
are unique from Gurage. They contended that being considered as Gurage
contravenes with their right to self-determination and amounts to complete
denial of their right to self-government. The relief they sought from the House
was to ensure their right to self-determination, which is constitutionally granted,
by recognizing them as distinct ethnic group separate from the Gurage.151
The House referred the case to the Council of Constitutional Inquiry
(hereinafter called, CCI) to make the necessary investigation and come up with
fitting recommendation on the following issue: Who can determine if a given
community claims self-determination asserting that it fulfils all criteria specified
in Article 39(5) of the FDRE Constitution.152 Upon reviewing the case, the CCI
framed the following questions for consideration: who shall decide on questions
that arise in the determination of ethnic identity of a given community under the
FDRE Constitution? What is the procedure that should be followed to reach a
decision on such matters?
Upon its investigation, the CCI made the necessary examination on the
Constitution and concluded that there is hardly any clear and specific
constitutional provision that directly addresses these issues.153 Then, it accepted
the fact that the Constitution is silent with regard to these matters. The CCI was
working on how the silence of the Constitution can be construed. The CCI
identified four potential provisions of the Constitution, i.e., Articles 39(4),
149
Getahun Kassa (2007), “Mechanisms of Constitutional Control: A Preliminary
Observation of the Ethiopian System”, Afrika Focus, Vol. 20, Nr. 1-2, 2007, pp. 75-104
p. 90.
150
Ibid.
151
The House of Federation of Federal Democratic Republic of Ethiopia (2000), “Decision
of House of Federation on Identity Claim of Silte Community”, Journal of
Constitutional Decisions, vol. 1, No. 1 pp. 41-101, p 41.
152
Article 39(5) of the FDRE Constitution enumerates different elements that need to be
fulfilled by a given community to be considered as Nation, Nationality or People. It
reads: “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 culture or similar customs,
mutual intelligibility of language, belief in a common or related identities, a common
psychological make-up, and who inhabit an identifiable, predominantly contiguous
territory.”
153
The House of Federation of Federal Democratic Republic of Ethiopia, supra note 151, p.
43.
47(2), 52(2) (a) and 62(3) as provisions that might have relevance to address the
questions at hand.154.
The CCI embarked on an investigation with an attempt to check whether
Article 39(4) is appropriate to regulate the matter. The CCI stated that Article
39(4) is essential to determine the right to secession of nations, nationalities and
peoples of Ethiopia.155 Since their question was to get internal self-
determination rather than withdrawal from the jurisdiction of Ethiopia –and to
create a new sovereign state–, this constitutional provision was considered as
inapplicable to resolve the Silte case. The next provision examined by the
Council is Article 47. The CCI viewed that this provision is invoked in cases
where a given community is acknowledged as a distinct nation or nationality
within the region in which it inhabits and claims to establish its own region.
Hence, the CCI stated that this constitutional provision is not relevant to address
the Silte claims.
The third constitutional provision, which was examined by the CCI, was
Article 52(2 (a)), which pronounces that states shall have the power to establish
a state administration that best advances self-government.156 When regional
states establish state administration that best advances self-government, they are
expected to take into account the language, settlement pattern and identities of
the community, which seeks self-determination. Moreover, regional states that
seek to establish state administration are expected to primarily determine the
identity of the community concerned. Therefore, the mandate to determine the
identity of a given community is left to regional states and is expected to be
considered in the regional council in which the community that seeks self-
government inhabits.
The House (in its decision) indicated that in the process of determining this
issue, the regional state council (to whom the claim is submitted) is expected to
conduct referendum with direct participation of the community that has lodged
the claim. According to the decision of the House, this should be conducted by
secret ballot, in a free and fair manner and should be attended by impartial
observers. However, if a community, which invokes an identity claim, is
dissatisfied with decision of the State Council or if it feels that the decision of
the State Council contradicts with the Constitution, it can appeal to the House of
Federation. The House derives this power from the interpretation of Article
62(3) of the Constitution. The provision states that the House, in accordance
154
Ibid.
155
Ibid.
156
Ibid.
with the Constitution, decides on issues relating to the rights of Nations,

Nationalities and Peoples self-determination, including the right to secession.157
This decision is a breakthrough in updating the FDRE Constitution. The
interpretation of the House in the Silte case adds new dimension which was not
foreseen by the drafters of Constitution to be expressly included therein. The
decision of the House updates the contents of the Constitution on three points.
First, it empowers the regional states to determine the identity of a nation,
nationality and people of Ethiopia. Second, the decision sets a time framework
within which the identity determination claim that appears before a State
Council shall be decided, by indicating in the decision that the concerned state
council shall, within a year, render a decision on a dispute submitted to it. Third,
the decision also authorizes the House of Federation to review the decision of
the State Council if the claimant community lodges an appeal to it. The decision
of the House will be final over the matter. The three points indicated
hereinabove have general effect, which can be applicable on similar
constitutional matters that may arise in the future.158
5.2 Informal constitutional changes through legislation
Starting from the Transitional Government after the downfall of the Dergue
regime, the legislature has enacted numerous laws. The laws which were
enacted before and after Constitution are required to be in conformity with the
Constitution. This means, whenever the federal government enacts a law on
certain matters, it is expected to show its constitutional source on the preamble
of the legislation. In doing so, the federal government constitutionalizes its act
of passing laws on the matter at hand. This stems from constitutional principles,
which require the legislative body to indicate its constitutional source for those
powers that can be exercised by any level of government.159 However, there are
a number of proclamations, which are enacted by the HoPR without authority
that emanates from the Federal Constitution.
5.2.1 Dire Dawa city Administration Proclamation
As highlighted earlier, there were claims made by the Oromia and Somalia
regions over Dire Dawa city administration following the regional boundary
demarcation.160 There was also a need to regulate self-determination of the Dire
Dawa city residents by law until the claims of Somalia and Oromia Regions
157
See Article 62(3) of the FDRE Constitution.
158
See article 11(1) of Proclamation No. 251/2001, supra note 139.
159
Assefa Fiseha (2006), Federalism and the Accommodation of Diversity in Ethiopia: A
Comparative Study. (Netherlands: Wolf Legal Publisher), p. 121.
160
See first paragraph of the preamble, Proclamation No. 416/2004 the Dire Dawa
Administration Charter Proclamation, 10th Year No. 60, Addis Ababa, 30th July, 2004.
were finally resolved.161 It was thus decided (since 1993) that Dire Dawa City
be accountable to and be directed by the Federal Government.162 It is this
measure that enabled the federal government to pass a law that granted self-
administration to ensure good governance and expedite development in Dire
Dawa City until a lasting solution is secured.163 It was based on this premise that
the HoPR enacted Dire Dawa Administration Proclamation.
The Proclamation does not mention the constitutional basis that justifies the
enactment of the Charter. However, the Charter is still functional and has not
been declared unconstitutional. Pursuant to this charter, Dire Dawa is under the
federal government in spite of competing claims from Oromia and Somalia
regional states. The purpose of the legislation, according to the government, was
to make it possible for the parliament to make special laws to ensure self-
governance of the people of Dire Dawa city administration and to enable the
federal government to co-operate with the States in searching a lasting solution
for the claims of the two regions on the city.
Later on, the HoPR has revised the Dire Dawa City Administration Charter.
The preamble of the revised Proclamation states that the amendment is made
pursuant to Article 55(1) of the FDRE Constitution.164 However, the provision
cited in the revised Proclamation or other parts of the Constitution do not entrust
this mandate to the HoPR. One may thus argue that this illustrates informal
constitutional amendment that increases the powers of the federal government
by legislation.
5.2.2 Intergovernmental relations (IGR)
In Ethiopia, the Constitution essentially provides dual governmental structure
and allots separate jurisdiction to each level of government.165 Though the
jurisdictions of the federal government and the member states are distinctly
delineated, there are important constitutional provisions emphasizing the need
for consultation, coordination and collaboration.166 It is possible to argue that,
the federal government and the constituent states are interdependent in a wide
range of matters. However, the FDRE Constitution is vague regarding the
161
Ibid.
162
Ibid.
163
Id., See, second paragraph of the preamble of Dire Dawa Administration Charter
164
See preamble of Proclamation No. 483/2006, the Dire Dawa Administration Charter
(Amended), 12th Year No. 14, 5th January, 2006 [Hereinafter called, Dire Dawa
Administration Charter (Amended)].
165
166
Nigussie Afesha (2015), “The Federal-state Intergovernmental Relationship in Ethiopia:
Institutional Framework and its Implication on State Autonomy”, Mizan Law Review,
Vol. 9, No. 2, pp. 341-368: DOI: http://dx.doi.org/10.4314/mlr.v9i2.4
mandate to make law concerning intergovernmental relations. A focal point for

intergovernmental relation remains unanswered by the Constitution. This power
is neither given expressly to the federal government alone nor concurrently to
the federal government and the regional states. Therefore, it is possible to argue
that this mandate is reserved to the regional states.167
Nevertheless, the HoPR construed the ambiguity of the Constitution by
authorizing one of the institutions of the executive branches to perform IGR
tasks. This issue is largely answered by Proclamation No. 691/2010168 which
authorizes the Ministry of Federal Affairs to serve as a focal point to organize
IGR.169 The Proclamation sets general guidelines that regulate the relationship
between the federal and the state governments. It requires that the federal-state
relationship should be on the basis of a spirit of partnership and mutual
understanding rather hierarchical relations170 with a view to ensuring sustainable
peaceful coexistence and strengthening of the federal system. A question that
inevitably arises is whether this amounts to giving extra mandate to the
Ministry, which is not envisaged under the FDRE Constitution.
The same Proclamation has made modifications on the exclusive power of
the House of Federation, which is given to the House by the Constitution. The
Proclamation confers this exclusive power (of the House) upon the Ministry of
Federal Affairs. Article 62(6) of the Constitution provides: “It (House of
Federation) shall strive to find solutions to disputes or misunderstandings that
may arise between States.” Despite the existence of such constitutional
provision, the mandate to facilitate the resolution of disputes arising between
regional states, –so long as it does not contradict with the powers of the House
of Federation– is given to the Ministry of federal Affairs. Article 14(1) (b) of the
Proclamation reads: “without prejudice to the provisions of Article 48 and 62(6)
of the Constitution of the Federal Democratic Republic of Ethiopia, the Ministry
of federal Affair has the power to facilitate the resolution of disputes arising
between regional states.” By so doing, the legislation apportions the express
constitutional powers of House of Federation so that it can be shared with the
Ministry of Federal Affairs. This can be viewed as an informal way of
introducing change on the provision of the Constitution.
167
168
See article 14(1) of Proclamation 691/2010 ‘Definition of Powers and Duties of the
Executive Organs of the Federal Democratic Republic of Ethiopia’ Federal Negarit
Gazeta 17th Year No. 1, Addis Ababa 27th October, 2010.
169
Id., see article 14(1) (e). It should be noted that the proclamation was enacted principally
to define the power of the Federal Executive Institutions.
170
Ibid.
5.3 Law Enforcement, Administrative and Political Practices

Institutional practice seeks to establish a new normative or institutional
framework for state policy and, over time, it can be embedded in the public
culture. Thus, political norms/practices and its institutional or normative
principles have a broad effect on the Constitution including an informal
constitutional amendment. There are many situations that are not regulated by a
constitution but governed by political custom within the legislative and
executive bodies. Such customary political practices have been designed for the
purpose of adapting a constitution to new circumstances without affecting its
legal continuity. In this sense, habitual institutional practices try to fill gaps in
the Constitution and can be regarded as indicators of informal constitutional
amendment. There are various political practices that emerge when a
constitution is silent. The constitutionality of the practice may not be challenged
because many practices may not clearly contradict express constitutional
provisions.
The conduct of states in adopting the federal supremacy clause in their
constitutions and various laws and in the enforcement of federal laws on matters
that are not delegated to them are examples of issues that are not discernible
from a reading of the FDRE Constitution. However, there is the practice in
Ethiopia of enforcing federal law by states171 and considering federal law as
supreme over state laws. In this regard, Assefa argues that the federal
government has at least three ways to influence the state governments and
facilitate the enforcement of federal laws and programs: namely, the Ministry of
Federal Affairs, party structure and the process of policy making.172
Undoubtedly, these are powerful examples of unwritten constitutional principles
that continue to guide the course of the Ethiopian federal state.
5.3.1 Federal Law supremacy
It is important to analyse the effect of enacting legislation by the federal
government in the field of concurrent powers. “The Ethiopian Constitution is
silent as far as the thorny issue of regulating the relationship between federal
and state law” is concerned in case of conflict between state and federal law.173
There are certainly two views. Some scholars argue that the Ethiopian federal
system adopts federal supremacy clause by default.174 But others adhere to the
‘supremacy of nations, nationalities and peoples’ and contend that federal law
will not pre-empt state law.175Assefa, states that “the best compromise is to
171
Assefa, supra note 159, p. 355.
172
Ibid, p. 376.
173
Ibid, p. 329.
174
Ibid.
175
Ibid.
decide the issues on a case-by-case basis rather than subscribing to either

principle at an abstract level”.176
The practice of regional states and their constitutions support the existence of
federal supremacy clause in Ethiopia.177 Normally, regional states acknowledge
the supremacy of federal laws over inconsistent state laws. They give such
recognition through their constitutions.178 In the first place, regional state
constitutions describe the state council as the legislative body of the state and
also vest the highest political power regarding internal affairs of the regional
state. The same constitutions also include a provision that gives the state council
the mandate to issue laws that are consistent with the Federal Constitution and
other federal laws.179 It is true that the regional states’ laws and federal laws are
expected to be consistent with FDRE Constitution. However, the FDRE
Constitution does not expressly state the supremacy of federal laws over state
laws that are inconsistent to it. Nevertheless, most regional states subject their
laws to the federal Constitution and other federal laws. This is one of the areas
in which supremacy of federal law is admitted by the regional state.180 Solomon
Negussie argues: “states Constitutions and legislations which came at the later
stage affirmed that all laws and practices should not contradict the federal
constitution as well as federal laws”.181
5.3.2 Cooperation through Executive Institutions
Federal executive institutions execute federal laws,182 while regional
governments may execute laws enacted by the federal government where the
federal government delegates regional states to do so. The federal government is
expected to grant this power through a proclamation, or this can be done through
regulation when the legislative organ allows the executive organ to give its
powers to its counterpart offices in the regional states. Departing from this
principle, the Ministry of Justice (currently reorganized as the Federal Attorney
176
Ibid, p. 330.
177
This kind of argument begs the question, does it the purpose of the regional states
constitution, to undermine their powers and autonomy? The author would like to discuss
this argument acknowledging the possibility of such kind of question would come from
readers.
178
See article 51(1) of SNNPR, 49(1) Amhara Regional states (Amharic version ) art
51(3)(3.1) Gambela Regional state, 47(3)(a)Afar regional state, 49(3)(a) Oromia
regional state, 49(3)(a) Somalia regional state.
179
Ibid. See also article 9(1) of the FDRE Constitution.
180
See article 51(1) of SNNPR and other regional state constitutions, supra note177.
181
Solomon Negussie, supra note 18, p. 65.
182
General), for instance, delegates its power of prosecution to a regional justice

bureau through a letter where an offence is committed in a given region.183
This issue evokes further discussion. In order to file a criminal charge, the
investigation is undertaken by a police officer. The issue then becomes whether
the police officer at the federal or regional level makes the investigation. It is the
Federal Police Commission that has the power to investigate crimes that fall
under the jurisdiction of Federal Courts.184 But, the move to establish federal
police institutions within regional states to effect arrest and make necessary
investigation on federal criminal matters is inconsequential. Due to the absence
of federal police officers who undertake criminal investigation, it is the
respective regional officers who are undertaking criminal investigation in all
states. Another question that needs clarification is whether regional police
officers have the authority to do so.
In this scenario, one may possibly mention Proclamation No. 313/2003
(Federal Police Commission Proclamation) that requires the Federal Police
Commission to work in cooperation with the Regional Police Commissions in
the prevention and investigation of crimes.185 The Regional Police Commissions
are accountable to the Federal Police Commission when they investigate
criminal cases that fall under the jurisdiction of the Federal Courts in accordance
with the delegation given to them.186 This provision denotes the situation that
makes regional police organs accountable to the Federal Police Commission
while they investigate federal criminal cases.
This proclamation implicitly answers the inevitability of delegation of
powers. However, neither the Proclamation nor other regulations delegate
regional police organs to make investigation on federal criminal cases. Even the
Federal Police Commission does not delegate its powers to the regional state
through letter.187 However, it is regular practice that the regional state police
undertake investigation on criminal cases. This amounts to enlarging the powers
of the regional state. This is also equivalent to informally amending the
Constitution by disuse due to the fact that the Federal Police Commission has
failed to establish and use its power of prosecuting offences in all regional
states.
183
See letter issued by the Ministry of Justice file number 01/A14/12/12 , on 15/07/98 EC.
184
See, Article 7(1) of Proclamation No. 313/2003, Federal Police Commission
Proclamation, Federal Negarit Gazeta, 9th Year No. 30, Addis Ababa, 4th January, 2003.
185
Id., Article 23(1)(2) of Federal Police Commission Proclamation.
186
Ibid.
187
Interview with senior government police commissioner (whose anonymity is respected).
5.3.3 Ruling Party modus operandi and its influence on federal

arrangements and development plans
Political parties are extremely important elements of a federation. The nature of
political parties and their internal operation has an impact on the working of a
federation.188 The structure of party systems and the way political parties are
organized might reinforce or corrode the federal division of powers. In general,
the role played by political parties is among the major determinant factors in the
operation of federal systems,189 and at times it affects the constitutional and the
institutional guarantees. Constitutional and institutional guarantees are meant to
prevent political leaders at the central level from changing the federal bargain
unilaterally. However, these guarantees are ineffectual when one homogeneous
party controls both levels of government because there will be no opposition
against the change.190 This is because central decisions can substitute federal
bargain. As Assefa argues, if one homogeneous party controls both levels of
government, there would be no occasion for intergovernmental conflicts.191
The character of parties and party systems can affect the working of the
whole federation. This is because a “political party is expected to harmonize the
policies of the federal government and constituent states”.192 Ethiopia, presently,
is ruled by a coalition composed of several regionally based ethnic parties.
Ethiopian Peoples Revolutionary Democratic Front (EPRDF) is controlling all
the regional state governments in the Ethiopian federation; either directly
through the member parties or indirectly through affiliated parties.193As a result,
the party structure in Ethiopia undermines the federal division of power and
subordinates the regional governments to the federal government with particular
emphasis on socio-economic development policies.194 It is clear that a mandate
to make social, economic and development policies is distributed to the federal
and state governments. Contrary to this constitutional power distribution, the
Federal government, through the party line, has informally taken over the
powers to make social, economic and development polices given to the federal
and the state governments and has been engaged in preparing the same for both
levels of government.
The practice in Growth and Transformation Plan is another area of practice
which illustrates informal changes in federal arrangements. The FDRE
Constitution clearly delineates the powers between the federal and member
188
Aalen, supra note 105, p 20.
189
Ibid, p 21.
190
Ibid.
191
Assefa, supra note 159, p 392.
192
Id, p. 385.
193
Id., p. 387.
194
Ibid.
states with respect to social, economic and development plans.195 Pursuant to

this power distribution, the federal government is empowered to formulate and
implement nationwide policies, strategies and plans with respect to overall
economic, social and development matters.196 The Constitution authorizes
regional states to prepare the same at state level: to formulate and execute
economic, social and development policies, strategies and plans of the regional
states.197 Despite this constitutional ruling, the social, economic and development
strategic plan is prepared centrally for both levels of government. By
implication, the power to make social, economic and development policies is
shifted to the federal authorities. Under these circumstances, regional states
draw their respective plan from the wider plan, which is generated and approved
first through party lines.198
A central committee, which leads the ruling coalition, often through the
chairman, generates specific plans of action, which are the basis for five-year
plans that will be implemented nationwide. The five-year plan becomes the
basis for the economic, social and development policies, strategies and plans of
federal and state governments’.199 Apparently, both tiers of government are
expected either to prepare their respective plans based on the document which is
prepared through party line or to revise their plan in line with centrally prepared
plan since they are under the direct control and influence of the ruling party. As
a result, currently, the federal government and the states draw their respective
plans from the wider plan, which is generated and approved first through party
lines.200 This in turn undermines the constitutional mandate of the regional states
to formulate and implement plans and policies of their own.201 They implement
the social, economic and development plan prepared by the party line. The
growth and transformation plan serves as the social, economic and development
plan of the regional states. In so doing, the party line has taken away their power
to make social, economic and development polices in the context of harmony.
Concluding Remarks
The embodiment of a mechanism for constitutional amendment is among the
universal features of constitutions. The mechanisms of amendment denote the
idea of correction or improvement of prior choices in constitutional design in
light of new information, evolving experience or political understanding.
195
See article 51(2) cum article 52(2)(c) of the FDRE Constitution.
196
Id., article 51(2).
197
Id., article 52(2)(2).
198
Assefa, supra note 159, p. 388.
199
Ibid.
200
Ibid.
201
Ibid, p. 389.
However, significant controversy remains over the function of formal

procedures for all kinds of constitutional amendment. Most constitutional
scholars agree that not all forms of constitutional change in fact involve
processes of constitutional amendment. Some scholars even suggest that formal
constitutional amendments will be irrelevant to ultimately shape constitutional
meaning. As a consequence, political actors frequently look for alternatives to
formal constitutional amendment. Although the formal mechanism is a vital
apparatus to modify a constitution, the role of non-constitutional mechanisms in
the alteration of a constitution is also profound. Hence, the function, relation and
co-existence of formal and non-formal mechanisms need to be clearly spelled
out. The extent to which and the circumstances under which non-constitutional
mechanisms modify the contents of the constitution need to be ascertained.
The FDRE Constitution, like many other constitutions, encompasses
constitutional provisions that spell out how the Constitution can be amended.
However, the Constitution has not been formally amended, except the
unfinished move to amend it on a single occasion. The Constitution has served
for more than two decades without substantial formal modification. On the other
hand, it is not difficult to mention instances of actual unwritten constitutional
changes in the Constitution. One of the means of informal change is through
constitutional interpretation. This entails the possibility that decisions of the
House of Federation can update the contents of the Constitution in the course of
asserting or defining the scope of certain terms or provisions in general. The
second instance where unwritten constitutional change in Ethiopia has taken
place is when the federal government enacts a law on certain matters. There are
a number of proclamations, which are enacted by the HoPR even if that
particular power is not clearly given to the federal government. Proclamations
that govern Dire Dawa City Administration and intergovernmental relation are
some of the examples.
Another example of practices that is not discernible from the reading of the
FDRE Constitution relates to the acknowledgment of federal law supremacy by
regional states through their constitutions and their willingness to enforce
federal laws on matters that are not delegated to them. It is to also be noted that
the party structure in Ethiopia and its practices informally change the federal
division of power and this setting subordinates social, economic and
development polices of regional governments to the federal government. This is
contrary to the constitutional power distribution given to the Federal and the
State governments. In so doing, the party line has, without formal constitutional
amendment, taken over the power of regional states to make social, economic
and development polices. ■

The Practice of Informal Changes To The Ethiopian Constitution in The Course of Application

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The Practice of Informal Changes To The Ethiopian Constitution in The Course of Application

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The Practice of Informal Changes to the

Ethiopian Constitution in the Course of

1. The Concept of Constitutional Amendment: A theoretical

constitution in a changing environment.23 By implication, constitutional

informally without setting the constitutional amendment process in motion. This

basic constitutional values in tune with changing political and social

2. Formal Constitutional Amendment

Based on this reasoning, we can find several examples of constitutional

It should be noted that a constitution does not specifically list informal

3. Informal Constitutional Amendment

constitutional framework by means of judicial interpretation.73 Strauss, for

resolution of particulars in constitutional claims.96 This makes it necessary for

3.3 Practices of political parties

4. The Ethiopian Legal Regime on Formal Constitutional

Formal amendment procedures usually identify the individuals, institutions

the involvement of the legislative councils of both levels of government,

4.2 Special amendment procedure

pursuing the conventional textual method, the government will be blamed of

5. Informal Methods of Constitution ‘Amendment’: The

successors into compliance,. This occurs when a political practice gradually

organize intergovernmental relation to the federal government.143 On the other

with the Constitution, decides on issues relating to the rights of Nations,

mandate to make law concerning intergovernmental relations. A focal point for

5.3 Law Enforcement, Administrative and Political Practices

decide the issues on a case-by-case basis rather than subscribing to either

General), for instance, delegates its power of prosecution to a regional justice

5.3.3 Ruling Party modus operandi and its influence on federal

states with respect to social, economic and development plans.195 Pursuant to

However, significant controversy remains over the function of formal

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