Federalism Without Constitutionalism?

Berihun Adugna Gebeye

University of Göttingen

Editors’ note: as stated in our mission statement, the IACL-AIDC Blog aims at engaging in selected collaborations with global leaders in the field of constitutional law and foster new partnerships. As part of this strategy, the IACL-AIDC has entered a partnership with the journal World Comparative Law / VRÜ, whereby WCL/VRÜ editors will select one article from each of the journal’s quarterly editions to be converted into a Blog post. Today, we are pleased to publish the following post by Berihun Adugna Gebeye which explores the question of whether federalism can operate without constitutionalism by comparatively looking at the federal systems of Nigeria and Ethiopia. The full article has been published in VRÜ, Vol.53, No. 2 (2020)  

Federalism requires at least two tiers of government endowed with a sovereign power on certain matters, a non-unilaterally amendable written constitution with a horizontal and vertical division of power, a representation mechanism of self-rule and shared rule, and an umpire to settle conflicts between the various tiers of government. These essential elements of federalism make constitutionalism an essential condition for its operation, at least according to conventional federal theory. Whether it is in the United States, Germany, Australia, Switzerland, Canada, or any other federal state, it is only through constitutionalism that federalism can perform its functions, deliver its promises, and live up to its expectations. 

But can federalism operate without constitutionalism?  

In a recent article published in VRÜ/World Comparative Law, I show how federalism may operate and deliver its purposes largely without constitutionalism in Ethiopia and Nigeria. While these two countries adopt the forms, structures, and discursive practices of established federal countries, their normative articulations and institutional frameworks are animated by syncretic configurations that ultimately transform the purpose and operation of federalism.  

In established federal countries considerations of security, liberty, economic prosperity, freedom, and democracy necessitated the adoption of federalism. However, Ethiopia and Nigeria’s turn to federalism is justified by the accommodation of ethnonational and religious diversity and the maintenance of territorial integrity. Democratic government, respect for human rights, and economic development are dividends rather than the original objectives of federalism in these two countries. Precisely because of this, the operation and continued viability of federalism in these countries have not been contingent upon the existence of a democratic government that respects human rights and brings in economic development.  

Federalism has operated in Nigeria both in civil and military regimes. Indeed, much of Nigeria’s post-independence period was under military rule and the military was the main architect of the present Constitution. By definition, military rule is in contradiction with constitutionalism as it installs itself with the displacement of constitutional rules and democratic norms. Yet, military rulers respected and protected the federal logic like their civilian counterparts. Moreover, the federal governments over the years have restructured the Nigerian federation (from 3 to 36 states) and altered the power configuration between the regional states and the federal government beyond recognition.  

Federalism in Ethiopia, on the other hand, has operated in a single-party system run by the Ethiopian People’s Revolutionary Democratic Front (EPRDF) with a blatant disregard of the Constitution and official rejection of liberal democracy. While the Constitution has been often cited as a justification for the authoritarian and undemocratic actions of the EPRDF, its leading ideology of revolutionary democracy and the party practice of democratic centralism has played the real constitutional function in practice. Since the introduction of federalism, multi-party democracy, respect for human rights, and constitutionalism have been put aside and given way to the emergence of the EPRDF as the only viable political party in the country.  

The federalism experiments in Nigeria and Ethiopia present a paradox that cannot be explained by conventional federal theory, which holds that constitutionalism is an essential condition for the operation of federalism. In these two countries, however, federalism has been operating mainly without constitutionalism. As far as the governance system accommodates ethnonational and religious interests at the national and sub-national levels, the theory of government – whether civil or military, democratic or undemocratic – becomes either a secondary consideration or a matter of style informed by the dynamics of domestic and international politics.  

Consider, for example, the full implementation of sharia in some northern states of Nigeria. The sharia implementing states justify the full implementation of sharia based on federalism, and sharia has been enforced in line with the federal structure. Ahmed Sani Yerima ran for the governorship of Zamfara state under a promise to implement sharia. Two months after his inauguration, he set up a law review committee and based on its recommendation proposed a bill to fully implement sharia in the state, which the House of Assembly of that state adopted. Following Zamfara, eleven other northern states have implemented sharia reforms. However, these states neither declared sharia for the whole of Nigeria nor even for northern Nigeria. Moreover, even if Zamfara inspired other northern states to implement sharia, not all northern states have implemented sharia reforms and those that have done so have taken different approaches. Furthermore, the sharia implementing states rely on the Nigeria Police Force for the implementation of their sharia criminal justice systems, submit their legislative undertakings and judicial practices to higher courts of the federation, and most importantly depend on the federal budget for the implementation of their sharia systems.  

Although on normative grounds the full implementation of sharia defeats the principle of separation of state and religion, extends the jurisdiction of sharia courts beyond what is constitutionally permissible, and violates some of the human rights recognized by the Constitution, federalism provides Nigeria the normative and institutional infrastructure to accommodate sharia within an otherwise secular constitutional order.  

In Ethiopia too, despite its centralized decision-making process, the decentralized structure of the EPRDF following the federal setup enabled member parties of the coalition to channel their political interests and ambitions within their respective constituencies. Without this decentralized political party structure, it would have been almost impossible to govern Ethiopia. Since the new Prosperity Party (PP) replaced and dismantled the decentralized structure of the EPRDF in December 2019, it has struggled to hold the country together. The Tigray People Liberation Front, the then-dominant political party within the EPRDF, refused to join the PP, and other important political parties in Oromia heavily opposed the replacement of the EPRDF by the PP.  

The main reason for such opposition to the PP stems from the view that the coherence between the political party structure (as in the EPRDF) and the ethnic federal arrangement of the country may be lost. This coherence was neither intended to institutionalize a liberal democratic system, nor aimed at safeguarding individual liberty and prosperity. Rather, the EPRDF structure provided member parties of the coalition the autonomy to channel their political ambitions (even if undemocratic) within their constituencies and to maintain and consolidate their party interests – as long as they are in line with the general visions of the coalition. The PP may not provide such (limited) autonomy for its members, as it is a national political party with regional branches. While it is too early to judge whether the PP can “hold the center together” with a unitary party structure, the federal logic that permeated the organization of the EPRDF was critical for its long-standing operation (lasting almost three decades), even though it lacked the essential elements of democracy.  

Despite the existence of ethnonational and religious tensions and agitations, the governing elites in Nigeria and Ethiopia are well aware of the benefits and costs of accommodation and integration. For this reason, those in power in both countries strive to be as inclusive as is necessary to ensure the well running of government, without necessarily committing to liberal democracy. Thus, in both countries, federalism exists and performs its accommodative and integrative function largely without constitutionalism and liberal democracy. 

Therefore, if federalism is to advance constitutional democracy in Nigeria and Ethiopia, it must do more than protect corporate ethnonational and elite interests. For this, democratic values, human rights, development, and constitutionalism should permeate the normative and institutional frameworks of both self-rule and shared rule within the federal systems. Without a serious reconsideration of the theory of government that accompanies federalism in these countries, the phenomenon of federalism without constitutionalism may continue unabated.    

Berihun Adugna Gebeye is a Postdoctoral Research Fellow at the University of Göttingen. 

Suggested citation: Berihun Adugna Gebeye, ‘Federalism Without Constitutionalism?’ IACL-AIDC Blog (8 October 2020) https://blog-iacl-aidc.org/2020-posts/2020/10/8/federalism-without-constitutionalism