(Zeray W/Senbet)

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1. Preliminaries

What is an identity question? What is state border delimitation change/re-adjustment question? And how does Ethiopian law protect them? What is the question of Wolqait? Does the federal and Tigray state Constitutions recognize and protect the right of Wolqait woreda dwellers to distinct identity? The object of this article is to consider these questions, giving thought to the relevant provisions and suggestions as to their meanings. Remedies, enforcement of the claim and other related matters are touched on only briefly.

The principles of identity and ethnic rights protection through-out the world make up a complex body of law, one which differs in many respects among different countries. The relevant Ethiopian rules are few, and do not by any means cover all the problems in the area or solve clearly all the problems they do cover. The significance of this article lies in the intense interest and heated discussions that seek to generate on the subject of identity question. This article’s purpose is more to provide a preliminary point for reflection than to provide comprehensive answers.

2. The nature of identity question and the relief sought in it

2.1. The conception and utility of identity

Before exploring and examining the nature of identity question and effect of identity recognition, it is proper to discuss the notion and function of identity in Ethiopia.

When Ethiopia was liberated from the dictatorial military regime in 1991, it was at the brink of a break up into several sovereign states because the nationalist movements which were possessing arms as military units had the idea of forming their own sovereign states in their respective territories, which their folks live in a certain geographical location. Nevertheless, the major nationalist movements wished to sit down and discuss the country’s future survival. At the end of the conference, the political organizations participated in the conference agreed that they could wait together under one Ethiopian state as far as the previous system of oppression, segregation, marginalization and domination by the central government does not reserve or threaten to change the status quo of equality, partnership, self-rule and shared rule of all nations of the country at the local and central level of governments (The preamble of Transitional Period Charter of Ethiopia, 1991). And they adopted the Transitional Period Charter of Ethiopia of 1991. The Transitional Period Charter of Ethiopia of 1991 introduced a swift change to the long standing center-province relationship. For as of the coming into effect of the Charter, the ultimate authority over states’ affairs which includes the authority to make states’ laws shifted from the center to state governments.

Of all the statutory provisions of the charter, Article 2(a) declared’…… that each nationality has the right to be assertive in its own identity, develop and nourish its own history and culture; use and nourish its own language’. Article 2(b) also stated’… that each nationality in the country has the right to administer its own affairs by itself in the geographical limited area of its region and that at the same time would have due representation and participation in the central government’s bodies without any discrimination and marginalization. Central was the grant of a right to self- determination to all nations, nationalities, and peoples’ of Ethiopia.

Later on, the FDRE Constitution was approved on 8 December 1994 by a constituent assembly and which became effective on 21 August 1995. The concept of the right to self-determination was adopted in the FDRE Constitution. The right to self-determination strongly resembles its predecessor in the Transitional period charter.

One question that becomes inevitable is therefore: Whose right to self-determination including the right to secession? The right to self-determination including the right to secession that article 39(1) bestows upon all nations, nationalities, or peoples. All nations, nationalities, or peoples of Ethiopia are entitled to enjoy equally the right to self-determination including the right to secession regardless of their numerical size. The FDRE Constitution provides explicitly that only nations, nationalities, or peoples’ can exercise the right to self-determination, including the right to secession in the territories that they inhabit.

And then the question that arises is: what constitutes a nation, nationality, or people in the FDRE Constitution. The FDRE Constitution stipulates the defining criterion for a nation, nationality, or people in Article 39(5) as “ 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. This definition of an ethnic group illustrates that groups that qualify the Constitutional definition of an ethnic community have the right to self-determination, including the right to secession in the territories that they inhabit. This definition is meant for implementation of ethnic diversity accommodation at the federal level. Note that this definition is not for the purpose of article 39 of the FDRE Constitution alone; but for the whole Constitution. What this means is that the definition in article 39(5) of the FDRE Constitution applies equally to the term” people” in article 88(1) of the same Constitution.

Such constitutional definition is paramount in expounding the rights of ethnic groups because effective realization of ethnic group’s rights becomes possible and more secure with the normative basis of the right to self-determination. The definition of an ethnic group in article 39(5) of the FDRE Constitution is most important in determining the holders/owners of the right to self-determination, including the right to secession and its scope of application. The definition of a nation, nationality, or people may serve two functions’. First, it has the aim of notifying to the general public about the fact who can be considered as a nation, nationality, or people for the purpose of having the right to self-determination, including the right to secession. Second, it has the aim of introducing to federal or state governments as the case may be regarding the notion of distinct ethnic identity. A federal or state government as the case may be has an obligation to respect the identity of nations, nationalities, or peoples in article 88(2) of the FDRE Constitution. Such constitutional definition is paramount in paving the way for the identity of nations, nationalities or peoples to be respected by a federal or state governments, as the case may be, without a question in article 88(2) of the FDRE Constitution and thereby effective realization of ethnic group’s rights becomes possible and more secure with the normative basis of the right to self-determination. Therefore, it has the function of paving the way for due, efficient and effective respect of the identity of nations, nationalities, or peoples.

Classification of groups into ethnic and non-ethnic groups finds support in both federal Constitution and proclamation No 251/2001. Having ethnic groups and non-ethnic groups classification has important implications for the legal position for both non-ethnic groups and ethnic groups. Categorization of groups into ethnic and non-ethnic groups is meant for effective realization of ethnic diversity as it is provided in article 39 of the FDRE Constitution. The differentiation between ethnic and non-ethnic groups can be attributed to the concept of a nation, nationality, or people in article 39(5) of the FDRE Constitution, which is the hallmark of the Ethiopian federalism.

This makes it incumbent upon one to assess the essential elements of the characterization of a nation, nationality, or people in article 39(5) of the FDRE Constitution and the implications of being covered by the definition. They are:

(1). A group of people must have or share a large measure of a common culture or similar customs. It is certain that ethnic communities have many things in common. People of different nationalities keep their own cultures or customs. They wear their own customary costumes, dance their own dances, speak their own languages, and at least on holidays they eat their own way. They work together, share streets, shops, markets, etc. This diversity makes an ethnic group different from others. This is one of the ethnic/cultural characteristics of the definition of a nation, nationality, or people in article 39(5) of the FDRE Constitution for one to understand groups/ communities as a nation, nationality, or people.

(2). A group of people must have or share mutual intelligibility of language. Peoples of different nationalities use language of their nationalities to communicate among themselves.

(3). A group of people must have or share belief in a common or related identity.A group of people must have one identity.

(4).A group of people must have or share a common psychological make-up. A group of people who do not share a common identity cannot be understood to entertain a common psychological make-up.

(5).A group of people must have or share who inhabit an identifiable, predominantly contiguous territory. This is the one criterion that a group of people must meet; but the criteria listed above are cumulative.

This is still the official view on the nations, nationalities, or peoples, although it does not cover all groups. The essence of the nation, nationality, or people is both tangible/factual and intangible/a matter of attitude according to this definition.

2.2. The nature and function of identity question

Coming back to the nature of an identity question and effect of identity recognition, there are two categories of rules that govern the nature and effect of identity recognition. The first category of norm is stipulated in article 39(5) of the FDRE Constitution and in articles 19(1), 20, 21, and 22 of proclamation No 251/2001 of Ethiopia for one to understand groups as a nation, nationality, or people. The second category of rule is provided in article 39(1)-(4) of the FDRE Constitution and in proclamation No 251/2001 of Ethiopia.

Since the FDRE Constitution bestows the right to self-determination, including the right to secession upon nations’, nationalities’, or peoples’, any group/community claiming to have the position of self-hood within the framework of article 39 (5) of the FDRE Constitution and articles 19(1) and 2(5) of proclamation No 251/2001 of Ethiopia have the right to present an identity question for the purpose of obtaining the status of self-hood.

A question may arise as to the nature of an identity question in Ethiopia. A group of people may not always reflect the constitutional theory of a nation, nationality, or people. Some group of people may fulfill the notion of a nation, nationality, or people, where as others may not. A Group of people must meet the legal criterion for bringing the question of identity and for acquisition of the status of self-hood. For groups that do not have the status of self-hood, the right to self-determination including the right to secession cannot exist. Without having the status of self-hood, one can hardly claim of right to self-determination including the right to secession in general. So, they have to first struggle/quest for the right to a distinct identity before they assert the quest for the right to self-determination including the right to secession. Such kind of question/application is known as an identity question. It may be known as question of nation-hood. Note that there are groups which have the status of self-hood within the context of article 39 (5) of the FDRE Constitution.

An identity question/ case is one that is instituted, by a person or persons on behalf of a nation, nationality, or people concerned for the purpose of obtaining recognition of nation-hood status. An identity question is a quest for possession/acquisition of self-hood status. It is a claim to be recognized as a nation, nationality, or people within the meaning of article 39(5) of the FDRE Constitution and article 2(5) of proclamation No 251/2001. It is a quest to be named a nation, nationality, or people. It can be known as a question of identity recognition within the context of article 39 (5) of the FDRE Constitution. It may also known as national identity claim/question.

In Ethiopia, the silte community took the initiative to be granted their own national identity and become known as the silte nationality. It was for this identity reason that the matter had reached the HOF and took some time to investigate and decide on it. The HOF had considered the silte community question of identity as a quest to be named as a nationality within the context of article39 (5) of the FDRE Constitution. Since the silte’s community demanding for a nation status and identity was taken seriously and tested the government’s judicial capacity to resolve such kinds of problems, it was studied close attention and a through effort exerted on all the stakeholders and finally the silte community got the status of a nationality and consequentially a special zone administration was set like other similar communities in the country.

The Qemant community applied the question of identity to be granted their own national identity and become known as the kemant nationality. Kemant people understand their ethnicity to be defined both by religion and language. And finally the silte community got the status of a nation, nationality, or people and consequentially42 Keble administrations was set.

2.3. The relief sought under identity question

As per article 39(1) of the FDRE Constitution, the right to self-governance, including the right to secession bestows upon nations, nationalities, or peoples. Groups/communities, which didn’t got the status of nation, nationality or people within the notion of article 39 (5) of the FDRE Constitution, must to first claim their right to a distinct/distinctive identity in order to have the right to self-administration, including the right to secession. In order to assert their distinct/distinctive identities, they must apply the question of identity. Such application or question is known as identity question. The relief sought of the question of identity is always a declaration of recognition of the group’s nation-hood status and thereby to acquire nationality rights. The claim of identity question is recognition and thereby acquires ethnic group specific rights. Identity question is all about identity recognition. The relief wanted by identity question is recognition alone, a declaration of its nation-hood. If the community claiming identity recognition signifies distinctiveness within the concept of identity, it would get the status of self-hood and thereby get hold of ethnic group specific rights. The outcome of identity recognition is possession of ethnic rights, which are recognized and protected under the FDRE Constitution. A group, which has got recognition as a nation, will hold nationality rights. Ethnic groups can claim a wide range of rights based on federal constitution and other laws.

The FDRE Constitution in article 39 provides for important group-specific rights. To be precise, seven components of the right to self-determination can be identified. First, every nation has the right to an unconditional right to self-determination in the territory it inhabits. Second, every nationality has the right to an unconditional right to secede from the federation. Third, every people have the right to be represented in state and federal governments. Fourth, every ethnic community has the right to speak, to write and to develop its own language. Fifth, every ethnic society has the right to express, to develop and to promote its culture. Six, each ethnic population has the right to preserve its history. Seven, every ethnic group has the right to form its own regional state. In sum, the definition of a nationhood served to identify the owner/holder of ethnic rights and the relief that may be obtained within identity question is recognition of nation-hood alone.

And the questions that should be raised at this point are: Whose right to quest self-hood status? Who is eligible to be named a nation, nationality, or people? Whose power is it to decide the identity of a certain community claiming that it is eligible to be named a nation, nationality, or people? And what are the procedures to be followed in rendering the decision? We will reflect on these questions hereinafter.

2.4. The right to quest/demand self-hood status

In this section, it is proper to ask a question that who has right to quest/demand self-hood status. Article 19(1) of proclamation No 251/2001 states that any nation, nationality, or people who believes that its self-identities are denied may present its application to the HOF through proper channel. This provision indicates that the right to quest self-hood resides upon any nation, nationality, or people within the notion of article 2(5) of proclamation No 251/2001 of Ethiopia. The right to distinct identity rests upon a nation, nationality, or people. Groups must meet the criterion for consideration as nation, nationality, or people.

The state of affairs, then for demanding an identity question under article 39(5) of the Constitution and article 19(1) of proclamation of 251/2001 of Ethiopia are as follows:

(1). A group of people must meet the definition of a nation, nationality or people within the context of article 2(5) of proclamation No 251/2001 of Ethiopia and article 39(5) 0f the federal Constitution in order to demand question of identity.

(2). A group of people’s self-identity within the perspective of article 2(5) of proclamation No 251/2001 of Ethiopia and article 39(5) of the federal Constitution must be denied in order to bring fresh question of identity.. A group of people’s self-identity must have been denied. Any nation, nationality, or people who believe that its self-identity is denied may present its application to be named a nationality according to article 19 of Proclamation No 251/2001. This rule shows that the constitutional system has adopted the principle of one identity, one recognition in Ethiopia. The principle is that once a subject matter of the question has been recognized, it may not be reclaimed. In order for rejection of the application on the ground that the identity claimed to be recognized has been recognized before, the former recognized identity must have involved the application at hand. To put it in a different way, this principle is applicable only where the identity in issue in the application was also recognized before. The precise issue in the application will depend on what relief is sought by the applying party. Where the identity in the question has been recognized by the FDRE Constitution itself or the HOF, the second identity recognition claim upon the same identity, which is already recognized, is not allowed.

A group of people, within the context of article39 (5) of the federal Constitution, as a whole without a system of representation can apply question of identity, provided that where its identity is not known officially. Further, a group of individuals within the context of article 2(5) of proclamation No 251/2001 of Ethiopia may present its application by way of collective representative action. The right to demand/claim self-hood status is a collective/group right. Since it is a collective/shared right, it must be questioned collectively/mutually. Any nation, nationality, or people may not split its identity recognition claim in the sense of claiming for part/portion of a nation, nationality, or people at one time and part of the remaining a nation, nationality, or people at another time; the application of identity recognition must represent the whole of the concerned nation, nationality, or people members altogether since it is a collective right of a nation, nationality, or people.

Since it is a collective/communal right, identity (recognition) question must be presented by way of collective action. A group of people within the context of article 2(5) of proclamation No 251/2001 of Ethiopia may present its application by way of collective representative action. Article 19(1), 20 and 21 of proclamation No 251/2001 has provides for a collective/communal identity right and a collective representative action.

A collective right to a distinct identity may be defined as one where several persons have or share the same identity in an application of identity question and says, that in such a case, one or more representatives delegated from at least five percent of the inhabitants of the nation, nationality, or people can file an application of identity question, upon satisfying the HOF or the state council that at least five percent of the inhabitant members of the nation, nationality, or people concerned have agreed to be so represented. This rule obliges such a collective representative action where a group of people has the same/one right in law. A collective representative action is apparently authorized only where at least five percent of the inhabitants of the nation, nationality, or people concerned have agreed to be so represented by the individual or individuals and all the inhabitant members of the nation, nationality, or people have the same interest in an action. A collective representative action is designed to enable a group of people having the exact same interest in the application to be represented by the individual or individuals, thus avoiding the necessity of multiple applications. An individual or some individuals is/are given permission to apply on behalf of a nation, nationality, or people concerned. Where An individual or some individuals is/are given permission to apply on behalf of a nation, nationality, or people concerned, the nation, nationality, or people concerned as an entity is bound by the decision in the application. There is no mandatory requirement that all inhabitant members of the nation, nationality, or people concerned consent to be represented. In other words, all inhabitant members of the nation, nationality, or people concerned must not agree to be represented.

The conditions, then for maintaining a collective representative action/application on behalf of a nation, nationality, or people concerned under articles 19(1), 21, and 22 of proclamation of 251/2001 of Ethiopia are as follows:

(1). At least five percent out of the total inhabitant members of the nation, nationality, or people concerned must delegate the individual or individuals to present the subject-matter of the question. In order for proof of delegation, the application of identity question must constitute the total inhabitant members of the nation, nationality, or people concerned in the territory it inhabits. Of course, at least the total inhabitant of the nation, nationality, or people concerned in the territory it inhabits can be found in official housing and people’s census results and electoral registrations. In addition to this, the overall residents of the nation, nationality, or people concerned can be established based on other federal or states government’s documents, ID, papers, or credentials, among other things.

The House of Federation or the concerned regional state council, as the case may be, has a duty to make certain that at least five percent of resident members of the nation, nationality, or people have agreed to be so represented by the individual or individuals. The delegates must attained legal majority to delegate the individual or individuals as per the 1960 Civil Code of Ethiopia and article 30 of proclamation No 251/2001. Where there is doubt as to whether the age of a person, it shall be decided based on the testimony of a senior member of the family or relative of the individual or by any person who knows about the age of the individual or by a medical examination. Note that the agent/agents of the nation, nationality, or people can be either members or non-members of it. There is no binding legal condition that agent/agents of the nation, nationality, or people must be members of the nation, nationality, or people. Further, a person who is proved to be incapable of making decision due to mental disorder; a person serving a term of imprisonment passed by a court of law; and a person whose public/civil rights are restricted by law shall not be eligible for making delegation.

(2) The delegates/principals must be residents (inhabitants) at the time of the question in the territory in which a nation, nationality, or people concerned inhabits. One may ask at this point in time- what does residence mean? Proclamation No 251/2001 of Ethiopia does not define the term domicile/ residence specifically. However, it seems that it is possible to understand the meaning of the term residence from article 30(1) of Proclamation No 251/2001 even if this provision specifically structured within part four, which deals about resolving disputes and misunderstandings. Sub-article (1) this provision states that without prejudice to the provisions of the relevant law of election, any Ethiopian whose age is 18 and above, and registered and lived for five or more years in the disputable area shall have the right to vote. As per this Sub-article, one may conclude in all identity cases a residence exists in any place where somebody lived for five or more years in the territory of the nationality concerned. The relevant and applicable law of election of proclamation No 532/2007 under article 33, under the title of conditions for registration, states that ‘’any person who: is an Ethiopia; is above 18 years old and above at the time of the registration, and has been residing within the constituency for at least 6 months may be registered as an elector’’.

Further, the Civil Code of Ethiopia has sets down rules in order to determine the residence and domicile of folks. The residence or domicile of a person is the place where he can always be found validly (although he may not be physically present) for all legal purposes. The definition of residence in the Ethiopian legal system results from the combination of articles 174 and175 of the Civil Code. Based on these provisions, one may conclude in all cases a residence exists in any place where somebody intends to reside or resides for more than three months. In the Ethiopian legal system, the domicile of a person is the place where that person has established the principal seat of his business and of his interests with the intention of living there permanently. Social and family lives are used as the determining factors insofar as domicile is concerned.

Based on analogy and the special prevail over the general rules of interpretation, article 30(1) of Proclamation No 251/2001 can be applicable to the concept of residence under article 21(1) and 22 of Proclamation No 251/2001. As per this Sub-article 1 of article 30(1) of Proclamation No 251/2001, a residence of a person within the framework of article 21(1) and 22 of the above proclamation exists in any place where he lived for five or above years in the territory of the nationality concerned.

A question may occur as to whether a given person is or is not residence of a nation, nationality, or people concerned. The HOF or the state council, as the case may be, should settle the residence or domicile of individuals, whose names are mentioned under the application of identity question according to article 21(1) and 22 of Proclamation No 251/2001. Note that the status of residence/domicile is extinguishable. The domicile/residence of a person is extinguished where that person has established other principal seat of his business and/or of his interests with the intention of living there permanently. In Ethiopia, a person could not have two or more place of residents at the same time. The residence of a person can be established by producing a valid identification card or passport or a driving license residence permit, a military discharge document, or by any other means.

(3) The delegates must be members of a nation, nationality, or people concerned. It seems fair to raise a question-What is membership of a nation, nationality, or people concerned? The HOF or the state council, as the case may be, should settle the ethnic membership of individual/ individuals, whose names are indicated in the application of identity question supporting the identity question, based on official documents, in which they may have identified their ethnic membership. The official documents, which may disclose the ethnic membership of individual/ individuals, whose names are mentioned in the application of identity question, are: housing and people’s census, electoral registration documents, identification card or passport.

If only these conditions are satisfied, the HOF or the state governments, as the case maybe, would ordinarily accept the application. Otherwise, the application must not be accepted. Since there is no proof of delegation as required, in particular, there is no reason to permit the individual or individuals to file an application of claim. Only the community concerned can decide whether it wants recognition of identity since the right to distinct identity rests upon a nation, nationality, or people. The burden of proof of legal power of attorney rests upon the individual or individuals who are claimed delegated to present a petition/ an application for identity question. Of course, the HOF or the state council, by its own motion, can scrutinize and make sure whether the individual or individuals who are claimed delegated to present a petition for identity question from the nation, nationality, or people has been delegated or not from at least five percent of the inhabitants of the nation, nationality, or people. Note that those who supported the application must be members of the nation, nationality, or people concerned.

There are two probable reasons for such prerequisite. The most understandable reason is to prevent applications by individual or individuals who want to litigate someone’s nation, nationality, or people claim without having the required legal delegation. The most important reason for the statute, as a practical matter, is to avert two/multiple applications for a sole subject-matter of the concerned nation, nationality, or people.

And a question may arise as to whom members of a nation, nationality, or people are concerned. Ethnic membership /citizenship refer to the relationship of allegiance, protection, and identification which an individual has with an ethnic group. Ethnic citizenship is a status, be it factual or legal, which results from both identity/blood and a matter of attitude, and usually entails loyalty to one’s ethnic group. The term Ethnic citizenship/nationality is employed to refer to the Ethiopian local status as distinguished from Ethiopian nationality or citizenship.

The importance of a legal definition of Ethnic citizenship/nationality lies in the fact that there can be persons who are not considered as suiets de droit holders of nation rights, in the same way that there may not be holders of nation rights. Those who are not considered as members of a nation/nationality in the eyes of law are deprived exercise, enjoyment, and participation on nationality rights. The concept of Ethnic citizenship/nationality is a fundamental on in rights of nationalities. One could even consider it is the most fundamental one as it provides for the definition of those persons who will enjoy rights of nationalities by the law. The importance of a legal definition of Ethnic citizenship/nationality in law recalls us the very importance of the law governing Ethnic citizenship/nationality. The absence of legally established methods of acquisition of Ethnic citizenship/nationality gave raised numerous and complicated problems.

Just to point up the problems by way of question forms, the author raised the subsequent specific questions regarding the conception of Ethnic citizenship/nationality: (1) what is the Ethiopian constitutional policy with respect to the acquisition of ethnic citizenship? To put in a diverse mode, does the Ethiopian law establish the approaches/ conditions/methods for determining the acquisition of ethnic membership? (2) What entails ethnic membership? (3) Whether the relevant Ethiopian law determines the conditions for loss of Ethnic citizenship/nationality? (4) Whether the relevant Ethiopian law permits dual or multiple Ethnic citizenship/nationality? (5) Does the Ethiopian law recognize and protect change of one’s Ethnic citizenship/nationality? (6) Does the Ethiopian law recognize and protect re-acquisition of one abandoned or lost Ethnic citizenship/nationality? (7) What are the effects of acquisition of ethnic citizenship? (8) Does an individual ethnic status normally begin with birth? Or when does ethnic citizenship begins? (9) Does birth is sufficient in itself to confer such status? (10) Proof of Ethnic citizenship/nationality? (11) Who has the authority in determining conflict as to one’s Ethnic citizenship/nationality?

The probable factual states of affairs, as a matter of practice, for getting hold of Ethnic citizenship/nationality in Ethiopia are the following:

(1) Membership by blood/birth. This is known as blood/parentage/natural principle (2) Membership by naturalization.

(3) Membership by grant.

(4) Membership by language.

(5) Membership by marriage.

(6) Membership by place of birth.

(7) Membership by domicile/residence.

(8) Membership by choice. It may be either free choice or regulated choice as the case may be.

(9)Membership by religion, and

(10) Membership by adoption.

Some argues that what matter most is the feeling of unity and oneness with the society in determining an individual ethnic identity.

In total, any nation, nationality, or people claiming to have the status of self-hood within the context of article 39 (5) of the FDRE Constitution, and who believes that its self-identity is denied may present its application, by way of a collective representative action, to be named a nationality.

2.5. Eligibility to be named a nation, nationality, or people

The subject to be addressed at this juncture is who is eligible to be named a nation, nationality, or people in Ethiopia. Article 19(1) of proclamation No 251/2001 states that any nation, nationality, or people who believes that its self-identities are denied may present its application to the HOF through proper channel. This provision indicates that the right to quest self-hood resides upon any nation, nationality, or people within the notion of article 2(5) of proclamation No 251/2001 of Ethiopia. Groups must meet the criterion for consideration as nation, nationality, or people.

However, such kind of application shall be submitted to the HOF only under conditions that the question has not been given due solution by the various organs in the administration hierarchy of the state concerned as per article 20 of the above proclamation. The term nation, nationality, or people is defined in article 2(5) of proclamation No 251/2001 as “ 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. The right to quest self-hood status is a collective/group right. Since it is a collective/group right, it must be questioned collectively.

There are conditions precedents to acquire the status of self-hood. To put it in a different way, there are prerequisites of nation-hood that must be fulfilled in order to obtain the status of self- hood. Any nation, nationality, or people claiming to have the status of self-hood within the context of article 39 (5) of the FDRE Constitution may present its application to be named a nationality. The FDRE Constitution states the defining criterion for a nation, nationality, or people in Article 39(5) as “ 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. This definition of an ethnic group illustrates that groups that qualify the Constitutional definition of an ethnic community has the right to a distinct identity.

The essence of the nation, nationality, or people consists of both tangible/factual and intangible/a matter of attitude according to this definition. One of the prerequisites of nation-hood is a popularly held awareness or belief that one’s own group is unique in a most vital sense. In the absence of such a popularly held conviction, there is only an ethnic group. A distinct group may be very apparent to the anthropologist or even to the untrained observer, but without a realization of this fact on the part of a sizable percentage of its members, a nation, nationality, or people does not exist. Under the FDRE Constitution, there are two intangible traits of a nation, nationality, or people: belief in common or related identities, and a common psychological make-up.

Any nation, nationality, or people can, of course, be described in terms of its particular amalgam of tangible ethnic characteristics, for example, in terms of its members, their physical location, their religious and linguistic composition, and so forth. Under the FDRE Constitution, there are three tangible ethnic characters: a group of people who have or share a large measure of a common culture or similar customs, mutual intelligibility of language, and who inhabit an identifiable, predominantly contiguous territory. In their desire to assert their uniqueness, members of a group are apt to make rallying points of their more tangible and distinguishing institutions, in addition to intangible ethnic/cultural characteristics.

Since the concept of nation does not preclude significant internal divisions, it actually embodies two important levels of attitudes. Relative to intra-national distinctions and similarities, when need be, is upon those traits that unite; relative to distinctions and similarities among nations, the ultimate stress is upon those that divide. It is, therefore, both the self- view of one’s group and the tangible ethnic/cultural characteristics are the essence in determining the existence or non-existence of a nation in Ethiopia.

A group of people must have ethnic characteristics’ different from those of already got the status of nationhood at the federal level. An ethnic group is a group of people possessing ethnic/linguistic characteristics’ differing from the rest of the population and show, if only, a sense of solidarity directed towards preserving their culture, traditions, religions, or language. The issue of identity (ethnic identity) can only occur in pluralistic societies, defined as societies in which significant diversity and dissimilarities exist. Since the ethnically diversified character of the country is essentially present at the federal level, the FDRE Constitution has designed a system of ethnic diversity accommodation at the country level. However, the ethnically diversified character of the country is present at the regional state level as per state Constitutions. Such kind of regional state ethnic diversity may be accommodated at the regional state level. These ethnic/linguistic characteristics’ diversity makes an ethnic group different from others.

And a question that arises here is: what constitutes distinctiveness’/uniqueness? In Ethiopia, the community must possess five nation-hood characteristics’ within the framework of article 39(5) of the federal Constitution differing from the rest of already recognized identities for the purpose of obtaining a nation-hood status.

Nation-hood characteristics’ has been enumerated under article 39(5) of the FDRE Constitution. They are:

(1). a distinctive common culture

(2). A distinct common language.

(3). A unique common identity,

(4).different common psychological makeup, and

(5).an identifiable, predominantly contiguous distinctive territory.

A group of people claiming to obtain a nation-hood status muse show signs of difference in these respects, from those of nationalities that already got nation-hood status at the country level. The menja community had applied for the aim of obtaining a nation hood status, but rejected both by the southern regional state council and HOF based on the ground that it does not have demonstrate distinctive ethnic/linguistic characteristics’, in particular, distinctive language from other nationalities.

2.6. The power to decide the identity of a certain community claiming that it is eligible to be named a nation

One of the issues that demanded resolution on silte community’s question of identity was identified as whose power it to decide the identity of a certain community is claiming that it is eligible to be named a nation. In order to treat this issue, the CCI, the legal body proposing decisions based on the Constitution and the laws of the country, made a thorough study to the roots of the matter, and submitted its suggestion to the HOF. In its proposal, it declared that the Constitution does not sanction as to whose power it is that determines a community’s identity and thereby its nation status. But by way of interpretation of the law, it declared that some of the articles of the Constitution, particularly article 52(2) (a), shows that the identity of the community has to be solved, at first, by the regional state council. Besides, it declared that the HOF could also determine the identity of any community forwarding the question (Journal of Constitutional decisions. Amharic ed, 2008). As can be deduced from the memoirs of the HOF, it can be seen that the HOF had to refer to the opinions of the regional offices, in addition to the proposals of the CCI and reach at a certain decision so that the decision that it delivers would serve as a precedence for other similar issues that may arise in the future.

2.7. The procedures to be followed in rendering the decision

It is proper first to see the procedures to be followed in instituting identity question before exploring the procedures to be followed in rendering the decision.

Procedure refer to the method by which questions of nationalities are adjudicated and by which rights and duties are determined and enforced by the appropriate legal institutions. It is the function of procedural rules of law to ensure that substantive rights and duties of nationalities are enforced, but without an effective system of adjective law, they will not be enforced, and for all intents and purposes, will be meaningless. This is why procedural law is just as important as the substantive law, indeed if not more so. The purpose of procedure is to insure that legal questions will be handled in a fair and orderly and as expeditiously and economically as possible. In Ethiopia, however, there is little emphasis on procedure rule.

2.7.1. The procedures to be followed in instituting identity question

According to article 19(1) of proclamation No 251/2001, any nation, nationality, or people claiming to have the status of self-hood within the context of article 39(5) of the FDRE Constitution, and who believes that its self-identity is denied may present its application to be named a nationality. The procedures designed for institution of identity question are stated in article 21 of proclamation No 251/2001.

The four preconditions for institution of application of an identity question are as follows. First, a question of identity must be presented in writing. A group of people must bring its case to the attention of the concerned organ of government in written form. The community must institutes the question by filing an application/petition of identity question seemingly in the registry of an authority having jurisdiction over the case. Secondly, the application for a question of identity must consist of the details of the question. It is provided that every question, including question of identity, shall as far as practicable be framed so as to afford ground for final decision. To put it differently, the application of identity question must state the cause of the question. The cause of question gives occasion for and forms the foundation of the question. A cause of question may be defined as the facts, which gives rise to the claim. This procedure helps the application receiving authority to know the subject matter of the question or the nature of the question.

Identifying the nature of the question from the outset may have three functions. One, it helps the application receiving body in determining whether it has the power to decide over the question at hand. Two, it also helps in determining whether the applying party has the right to present the question in issue. Three, it has the utility of identifying pertinent substantive and procedural rules that govern the adjudication of the question.

Thirdly, the application for a question of identity must consist of the details of the question supported with the names, addresses, and signatures of at least five percent of the inhabitants of the nation, nationality, or people. Fourthly, the individual or individuals who are delegated to present a petition for identity question to the HOF or the state council shall produce a reliable evidence of their delegation from the nation, nationality, or people. Particulars of this procedure shall be determined by the regulations to be issued by the HOF or by the law of the state governments as the case maybe. Such kind of application is known as a collective representative action within the context of article 21 of proclamation No 251/2001. A collective representative action is one in which the individual or individuals named as delegate/delegates representing the interest/right of the nation, nationality, or people concerned as a whole. Nevertheless, neither the HOF nor the state council so far enacted rules of law those are envisaged under article 21 of proclamation No 251/2001.

2.7.2. Procedures to be followed in rendering the decision

Pertaining to the procedures to be followed in rendering the decision, it is appropriate to make out two stages: pre-evidence and evidence stages. The pertinent Ethiopian rules of law are very few, and do not by any means cover the entire problems in this area or solve clearly all the problems they do cover. The writer’s aim in this area is more to make available a preliminary position for debate than to provide complete solutions.

2.7.2.1. Pre-evidence procedure

In this part, we are concerned with rejection of the applications by the HOF or state council, which has the power to decide the identity of a certain community for legal sufficiency. The HOF or state council, as the case may be, must reject the identity question application where (1) from the particulars of the application of the question it appears to be outside the organ’s jurisdiction, (2) it does not disclose a cause of question, (3) the individual or individuals who are delegated to present a petition for identity question to the HOF or the state council could not produce a reliable evidence of their delegation from the nation, nationality, or people or (4) the identity claimed is already recognized.

If based on the facts of the application of the question, the subject-matter of the application appears to be outside the authority of the organ received the application; the authority must dismiss the application. The rules of law dealing with jurisdiction represent an attempt to apportion the government business among the various organs of federal and regional state governments. Essentially, jurisdiction is determined based on the subject- matter that is involved in the application. If the organ does not have the power to make a decision over the subject matter of the application, there is no need of proceeding further. There is no raison d’être to proceed more if on the basis of what was alleged in the application of claim the authority does not have jurisdiction to decide over the subject matter of the application and it must dismiss the application.

The other most important aspect of the matter of rejection of applications is the rejection of the application of the question on the ground that it does not disclose a cause of question. The applying party should allege facts/ state in the application submitted showing it is entitled to identity recognition. There are certain conditions where the status of nation-hood exists. If it is clear during the pleading stage that the applying party does not have a legally sufficient claim, then there is no reason to proceed further. There is no rationale to proceed further if on the basis of what was alleged in the application of claim the applying party could not recover. If the application is clearly a groundless claim, there is no reason to proceed further and therefore, should be rejected. Thus, the authority examines the application of claim, and if it finds that it does not state a cause of question, the authority rejects it. In other words, in determining the legal sufficiency of the application of identity question the authority examines the particulars of the application of the question- it does not hear evidence or do anything else. It asks” if these allegations were true, would the applying party be entitled to get the recognition of the status of nation-hood it has claimed. If so, the application of identity question states a cause of question. If the answer is no, then the application of identity question does not state a cause of question and will be rejected. If the allegations of the application of the question, even if true, do not entitle the applying party to relief under the law, the identity question application does not state a cause of question and will be rejected.

A variation of this rule is that the application of identity question does not state a cause of question where it does not include an allegation of fact that is essential element of the cause of question. Certain facts must be alleged in order for a cause of question to exist, and if those facts are not alleged, the identity question application is insufficient. Tin order for there to be the status of self-hood, it is generally required that the community claiming nation-hood status must possesses both intangible and the tangible distinctive ethnic/cultural characteristics, that are the essence in determining the existence or non-existence of a nation in Ethiopia. If the government authority rejects the application of the question, it must record an order giving its reasons for the rejection.

The other most important aspect of the matter of rejection of applications is the rejection of the application of the question on the ground that the individual or individuals who are claimed delegated to present a petition/ an application for identity question to the HOF or the regional state council, as the case may be, could not produce a reliable evidence of their delegation from the nation, nationality, or people. As it is stated above, the application for a question of identity must consist of the details of the question supported with the names, addresses, and signatures of at least five percent of the inhabitant members of the nation, nationality, or people. Further, the individual or individuals who are delegated to present a petition for identity question to the HOF or the state council shall produce a reliable evidence of their delegation from the nation, nationality, or people. Particulars of this procedure shall be determined by the regulations to be issued by the HOF or by the law of the state governments as the case maybe. Such kind of application is known as collective representative action. A collective representative action is one in which the individual or individuals named as delegate/delegates is/are representing the interest of the nation, nationality, or people in issue.

The other significant feature of the issue of refusal of applications is the dismissal of the application of the question on the ground that the identity claimed is already recognized by the Constitution itself or the HOF. This rule shows that the constitutional system has adopted the principle of recognition for each identity once in Ethiopia. The principle is that once a subject matter of the question has been recognized, it may not be reclaimed. In order for rejection of the application on the ground that the identity claimed to be recognized has been recognized before, the former recognized identity must have involved the application at hand. To put it in a different way, this principle is applicable only where the identity in issue in the application was also recognized before. The precise issue in the application will depend on what relief is sought by the applying party. Where the identity in the question has been recognized by the FDRE Constitution itself or the HOF, the second identity recognition claim upon the same identity, which is already recognized, is not allowed.

The critical point is here what constitutes” the same identity” within the meaning of article 39(5) of the FDRE Constitution and article 19(1) of proclamation No 251/2001. For a collective representative action for identity recognition to lie, it must be shown that the relief is in its nature beneficial to all concerned inhabitants of the nation, nationality, or people. Since such action is brought representing all the inhabitants of the nation, nationality, or people within the rule of article 21 of proclamation No 251/2001 of Ethiopia, they all are bound by the decision in the subject matter of the case. This operates to prevent the same nation, nationality, or people as a whole or its part from filing a fresh application on the same claim. Once a collective representative is appointed, he has control over the conduct of the application proceedings. Once a collective representative has been appointed, the case will proceeds on the same basis as it were an individual suit. The collective representative action is allowed, because it is more convenient to have a collective representative action rather than a collective action before the concerned authority, but the essential nature of the application is not to be affected thereby. Since all the inhabitants of the nation, nationality, or people are represented within the notion of article 21 of proclamation No 251/2001 of Ethiopia, they all should be bound by such representation system and should not be able to institute a fresh application.

2.7.2.2. Evidence procedure

All that has gone culminates in this proceeding. It is at the evidence procedure a judgment rendered on the merits of the claim. The evidence proceeding essentially involves the introduction of evidence and the consideration of that evidence by the trier of fact. Particulars of this procedure shall be determined by the regulations to be issued by the HOF or by the law of the state governments as the case maybe. It is necessary that a procedure exist by which all the necessary evidence can be brought before the HOF or by the law of the state governments as the case maybe.

3. State border re-adjustment question

3.1. States border re-adjustment question nature

In anticipation of the approval of a new Constitution, the TPC, which was adopted by national conference and which became effective after publication in the Negarit Gazeta on July 22, 1991, acted as an interim Constitution. The overall provisions of TPC reflected the ideas of the new regime about ethnic diversity. It has granted to all ethnic communities the right to self-rule in their own territory. The TPC presumes that the right to self-administration of ethnic communities in Ethiopia can best be realized by the creation of territorial administrative entities organized on an ethnic basis. To put it in a different way, it is by and through their territorial self-governance that the nationalities have to exercise the different aspects of their through to self-government.

To implement the right to ethnic self-rule, proclamation No7/1992 proclaimed on January 14, 1992.This law created 14 national/regional self-governments. These regions formed the administrative framework within which the ethnic societies had to exercise their right to self-determination. These regions had organized on an ethnic basis. That ethnic basis was reflected in the fact that all 63 ethnic societies were coupled by the proclamation to one specific region. The habitat of all nationalities was territorialized by the proclamation and this territory was subsequently localized in one particular region.

The idea proclamation No7/1992was therefore that all Ethiopian nationalities exercise their right to self-determination within the framework of a regional state. They can do this by either controlling the regional government or by establishing in the regional state a separate territorial entity either in the form of a zone or a woreda or a Keble. The FDRE Constitution follows the approach to ethnic diversity of the TPC and of proclamation no7/1992.

In Ethiopia, every nation within the meaning of article 39(5) of the FDRE Constitution has the full measure of self-rule in the territory that it inhabits. As per article 39(3) of the federal Constitution, the federal mechanism adopted for the accommodation of ethnic diversity of the country is territorial approach. The drafters of the Constitution wished a match between ethnic communities and territorial autonomy. The territorial approach implies that the FDRE Constitution assume that all ethnic communities can be linked to a certain territory and that the exercise of their ethnic societies specific rights can happen within and through this territory. By this approach, the FDRE Constitution offers recognition and protection of ethnic group’s rights. This approach has really solved and prevented ethnic conflicts (maybe in the future, it can still do so).

In the spirit of the FDRE Constitution, ethnic group and territory are inextricably linked, also becomes clear from the definition of a nation/nationality/people in article 39(5) of the FDRE Constitution and article 2(5) of proclamation no 251/2001; “ 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.

The FDRE Constitution under article 46(2) states that regional states shall be delimited on the basis of the settlement patterns, language, identity and consent of the people concerned. This means concretely that the Constitution tries to realize the rights of ethnic groups by the creation of regional states organized on an ethnic basis. Ethiopian federalism is therefore indicated as ‘ethnic federalism’.

Article 47(1) of the FDRE Constitution provides nine regional states: Tigray, Afar, Amhara, Oromia, Somalia, Benshangul/Gumuz, the southern nations, the Gambela peoples, and Harari people. The nomenclature of the nine regional states already reveals much on their ethnic communities’ composition. The FDRE Constitution formalized the aggregation of five of the 14 regions created by proclamation no7/1992, in to one new regional state, the state of southern nationalities. The separate regional status of Addis Ababa was not preserved in the FDRE Constitution. However, Addis Abeba still constitutes a separate territorial entity. But this territorial, in contrast to the regional states, accountable to the federal government. The Constitution adopted a rule for the creation of regional states as a mechanism to protect the rights of ethnic groups. This can be derived from Article 47(2) of the Constitution, where the Constitution every nationality within the states enumerated in Article 47(1) of the Constitution has the right to establish, at any time, their own regional states. This implies that ethnic communities that do not have their own regional states (all ethnic communities except the six mentioned ethnic groups) have the right to form their own regional states.

The FDRE Constitution assuming that the act of drawing regional states boundaries on the basis of ethnic identity approach may give rise to border disputes between states, it has designed a system of border dispute settlement in article 48 of the FDRE Constitution under the heading of state border changes, and in article 23 and the following provisions of proclamation no 251/2001. The issue of state border change arises where any regional state claiming to have a border dispute with a regional state made a call in writing for a discussion. This issue is the center of this article, among others.

States borders re-adjustment/change question/ case is one that is raised/ instituted, by a state or states on behalf of a nation, nationality, or people concerned, for the purpose of State border re-adjustment/alteration. It can be known as a question of State border change within the context of article 48 of the FDRE Constitution.

The claim of State border change is all about re-defining the State border’s that is already delimited taking in to consideration of the construction of article 46(2) of the FDRE Constitution. State border change claim, therefore, may be called as State border re-defining question. It is a dispute/disagreement between regional states of Ethiopia. The relief sought by the claim of State border change is territorial re-definition. Arrangement of ethnic communities in to regional states is for effective realization of ethnic communities rights, for determination of its scope of use and its right owners.

Note that the nature and function of an identity question is different from the nature and function of State border change claim. As a matter of law, identity question is a quest for the acquisition of nation-hood status where as the State border change question is, as the name of the question indicates, a quest for redefinition of states border. Without defining the nature of the question applied for, how could we resolve the question before hand by applying pertinent governing rules of law to the subject matter of the question in issue? In order for applying pertinent rules of law, simply there must be clear understanding between these questions nature. So, we have to begin the case by characterization of the subject matter of the question. In other words, it is proper to define first the nature of the question before resorting in to how is it resolved. One may ask how we could distinguish an identity question from State border change claim. Or one may ask how could authorities distinguish an identity question from State border change claim? The answer is simple. That is from the nomenclature and the content of the application of the question. The sources of identification of the subject matter/nature of the question are the nomenclature and the body the application of the question. Therefore, the concerned authorities can read the nature of the question applied for from the title and the body the application of the question.

3.2. The right/power to claim States border change

A question may arise as to whether the applicant has the right/power to claim States border change. Rules of law that are pertinent to answer this question are article 48 of the national constitution and article 23 and the following provisions of proclamation No 251/2001. As we all know or should know, the main sources of interpretation of Rules of law are the language and structure of the Rules of law. To begin with the structural analysis of the Rules of law in issue, the heading of resolving disputes and misunderstandings between states is structured in part four of proclamation No 251/2001. The term state has been defined under article 2(1) of proclamation No 251/2001as the states formed in accordance with article 47(1) of the FDRE Constitution and, includes the Addis Ababa city administration and Dire Dawa administrative council. Article 48 of the national constitution also included under chapter four, which is within state structure.

One of the basic rules of interpretation of law requires that their provisions be interpreted through one another so that each provision is given the meaning that the whole requires. That means article 24(1) of proclamation no 251/2001 would get its proper meaning only it is read along with, among others, articles 23, 25, 26, 27, 28, and 29 of the same proclamation. As per Article 23 of proclamation No 251/2001, the HOF shall strive to resolve inter-state disputes and misunderstandings. The language of this provision indicates that the parties to states border dispute are the states and thereby the right to quest States border re-adjustment/change resides upon regional states. Further, article 24(1) of proclamation No 251/2001 stipulates that any party claiming to have a border dispute with a regional state first must a call in writing for a discussion. The party called for must be ready for a genuine discussion within a maximum of forty five days according to Article 24(2) of proclamation No 251/2001. Following the two parties’ willingness to resolve their dispute by discussions the HOF shall strive to the fruition of their discussions according to Article 24(3) of proclamation No 251/2001. If one of the parties is unwilling to take part in a discussion initiated by the other, or that the discussion held between the two parties has ended in disagreement, the case may be submitted to the HOF by the one or both of the parties according to Article 25(1) of proclamation No 251/2001. The HOF shall, when a border dispute case is submitted to it, cause the parties to give issues of their differences in writing within a specified period of time according to Article 25(2) of proclamation No 251/2001. The term party or parties used in the above provisions meant to mean the regional states on the basis of holistic understanding of law.

The wording of Article 48 of the national constitution affirms this conclusion. The minutes and the brief explanatory note of the FDRE Constitution have reveals that the right to bring a border dispute rests upon states. The right to quest state border delimitation must only be exercised by state government. Such action may be called as ethno-collective action by the organ of the community. Collective action is a characteristic of many communities; it consists either of communal action or of action by an official, acting as the organ of the community, which is, engaging in action in the name of the community. Therefore, one can legally argue the right/power to claim States border change is bestows upon the states.

3.3. Procedures for State border change claim

3.3.1. The procedures for institution of state border change claim

The procedures designed for institution of state border change claim are stated under part four of proclamation No 251/2001 and under chapter four of the FDRE Constitution.

In Ethiopia, any regional state claiming to have a border dispute with a regional state first must a call in writing for a discussion. As per Article 24(1) of proclamation No 251/2001, a border dispute case arises where a state first must a call in writing for a discussion. The regional state called for must be ready for a genuine discussion within a maximum of forty five days. Following the two parties’ willingness to resolve their dispute by discussions the HOF shall strive to the fruition of their discussions. It shall also follow up the progress of the discussion.

If one of the parties is unwilling to take part in a discussion initiated by the other, or that the discussion held between the two parties has ended in disagreement, the case may be submitted to the HOF by the one or both of the parties.

3.3.2. The procedures to be followed in deciding a state border change claim

The HOF shall, when a border dispute case is submitted to it, cause the parties to give issues of their differences in writing within a specified period of time. The HOF shall pass a decision, based on sufficient information it may have, on re-defining disputable borders taking into consideration the peoples’ settlement patterns. As to the nature of information, the information needed is the identities of residents of the disputable area. To put it another way, the term information refers to the ethnic identities of inhabitants of the disputable area. The ethnic identities of individuals can be established by producing a valid identification card or housing and population census results or passport or a driving license residence permit, a military discharge document, or by any other means. In this regard, the basis of re-defining disputable border is the ethnic identities of residents of the disputable area based on existed official documents, in which the ethnic identities of inhabitants of the disputable area may be found.

If it cannot decide to which side the disputable land belongs, the house of federation shall seek for the peoples’ interest and consent as to re-defining disputable border. Where the HOF cannot establish the ethnic identities of residents of the disputable area on the basis of existed official documents, it shall organize a referendum, in which the inhabitants of the disputable area will express their ethnic identities. The choice is not as to which state they want to integrated, but rather it is a choice as to which ethnic identity they wishes to belong. As per this procedure, the basis of re-defining disputable border is the ethnic identities of inhabitants of the disputable area based on a referendum organized for the purpose of identifying the ethnic identities of the residents of the disputable area.

4. The Question of Wolqait and its legality

4.1. The nature of the Question of Wolqait

As stated earlier, the nature and function of an identity question is different from the nature and purpose of State border change claim in law. Without defining the nature of the question applied for, it is difficult, if not impossible, to identify and apply pertinent governing rules of law to the subject matter of the question in issue. In order for applying pertinent rules of law, basically there must be unambiguous understanding about the nature of the question before hand. Accordingly, we have to set in motion the case by characterization of the subject matter of the question. In other words, it is apt to characterize first the nature of the question before resorting in to the question how is it resolved at law. The central sources for finding out of the subject matter/nature of the question are the nomenclature and the body the application of the question. Therefore, the concerned authorities can comprehend the nature of the question applied for from the title/given name and the substance of the application of the question, among other things.

For this raison d’être, we will travel around and scrutinize the nature of the question of Wolqait. The title of the Wolqait question, at least as it is aired in various media by the committee members, is the Wolqait’s people amhara nation-hood identity question. The nomenclature of the question reveals much about the essence of the question. As the heading of the question indicates, the claim is a distinct identity question in the Wolqait woreda within the scheme of article 19(1) of proclamation No 251/2001.

The substance of the application of the question also affirms this characterization of the fundamental nature of the matter. The material fact of the question indicates that the question is the Wolqait people to be declared as a group of people having Amhara nation-hood identity. It is a question presented for the purpose of obtaining a declaratory ruling.

The organ of government, in which an application is brought, may give us an idea about the character of the subject. Once it has been decided to apply a question, the first question that the applicant must consider is where application may be brought. An application can only brought in an authority that has jurisdiction. Jurisdiction refers to the power of the authorities of a government to hear and determine a case. Based on this considerate, we will consider the Wolqait question in this grasp. The HOF has referred the Wolqait’s people Amhara nation-hood identity question mentioning article 20 of proclamation No 251/2001 to the Tigray regional state council when it had presented to it by Wolqait committe. This tells us something about the nature of the Wolqait question. It has been referred to the Tigray regional state council for the reason that the HOF has characterized the Wolqait question as an identity question and the identity of the community has to be solved, at first, by the regional state council. The EPRDF council current holds vis-à-vis the Wolqait question reveals its understanding of the nature of the question. It holds that the Wolqait people’s Amhara nation-hood identity question be resolved, where it is presented as per the procedure of article 19(1), 20 and 21 of proclamation No 251/2001, within the Tigray regional state council on the underpinning of the Constitution. This plainly indicates the Wolqait question is an identity question within the framework of article 19(1) of proclamation No 251/2001. The Tgray and Amhara states presidents’ current speech as regards to the Wolqait question affirms such labeling of the question. Therefore, the nature of the Wolqait Question is manifestly an identity question on the basis of the central Constitution.

As the matter of claim of the application, the applicant of the the Wolqait’s Question is the Wolqait woreda residents. This can be derived from the nomenclature of the the Wolqait’s Question: the Wolqait people’s Amhara nation-hood identity question. This nomenclature of the the Wolqait Question indicates the territorial limitation of the question raiser. As the name of the question, the applicant of the the Wolqait Question is purported to be the Wolqait woreda inhabitants.

However, we witnessed a massive objection to the question from the Wolqait woreda Dewllers. Whether the question is the true wishes of the Wolqait woreda inhabitants, it is a matter of pleading and evidence. If they do have opposition to the question, they do have the right to oppose the application in an organized legal way. This is evident from article 20 and 21 of proclamation No 251/2001 and the very nature of the case. If the Wolqait woreda inhabitants have objection, they can express their objection, in particular, by way of petition for intervention over the case.

4.2. The legality of the Wolqait’s question

As the title of the application of question, the applicant of the the Wolqait’s Question is purported to be the Wolqait woreda inhabitants. As the name of the question, of course, the applicant of the the Wolqait’s Question is supposed to be the Wolqait woreda Amhara inhabitants. That means the question does not reflect the wishes of all Wolqait woreda dwellers since the Wolqait woreda consists considerable non-Amhara residents. Do the FDRE Constitution and the Tigray state Constitution recognize and protect the right of wolqait woreda dwellers to distinct identity. To put in other form, whether the term a nation, nationality or people as defined in article 39(5) of the FDRE Constitution includes also the community of wolqait residents. This question is prompted by the reading of articles 2(5) and 19(1) of proclamation No 251/2001, and article 39(5) of the FDRE Constitution.

As per article 19(1) of proclamation No 251/2001, any nation, nationality, or people who believe that its self-identity is denied (its self-identity is not yet recognized) have the right to bring an identity question application. This stipulation imposes three pre-requisite in order to quest self-hood status recognition at the country level. They are:-

(1) The right to distinctive identity rests upon a group of people within the background of article 39(5) of the national Constitution and article 2(5) of proclamation No 251/2001 of Ethiopia. The right to diverse identity rests upon a nation, nationality, or people. The right to distinct identity is a collective/group right. A group of people must meet the criterion for consideration of a nation, nationality, or people.

The right to demand/claim self-hood status is a collective/group right of a nation, nationality, or people concerned. When we say the right to distinct identity is a collective/group right, it means that all members of a nation, nationality, or people have undivided shared/common interest at law over it. Any nation, nationality, or people may not split its identity recognition claim in the sense of claiming for part/portion of a nation, nationality, or people at one time and part of the remaining a nation, nationality, or people at another time; the application of identity recognition must represent the whole of the concerned nation, nationality, or people members altogether since it is a collective right of a nation, nationality, or people. To put it in other fashion, the right to distinct identity is indivisible in nature and in law. Within the context of Wolqait question, one may rightfully conclude that the right to distinct identity rests upon an Amhara nation, nationality, or people, part/portion of an Amhara nation, nationality, or people cannot apply a question of identity.

As mentioned above, the applicant of the the Wolqait’s Question is alleged to be the Wolqait woreda inhabitants. The Wolqait woreda inhabitants do not qualify the meaning a nation, nationality, or people as per article 39(5) of the national Constitution and 2(5) of proclamation No 251/200. Since the Wolqait woreda inhabitants do not qualify the definition of a nation, nationality, or people, in other words, they do not have the right to quest distinct identity question at least in this regard.

We have seen already that articles 2(5) and 19(1) of proclamation No 251/2001, and article 39(5) of the FDRE Constitution restrict the application of the right to distinct identity to a nation, nationality or people and that the term a nation, nationality or people does not include the community of wolqait dwellers. The federal and Tigray Constitutions accord an express recognition and protection to the right of distinct identity to nationalities alone. There is no provision whereby the wolqait community, even as a whole can bring the question of identity. And above all, the wolqait community remained without constitutional recognition and protection. The government’s duty to respect to the identity of nationalities does not extend to the community of wolqait dwellers. It would therefore be logical to argue that the right of distinct identity that articles 39(5) and 88(2) of the federal Constitution refers to applies only to nationalities and not to wolqait dwellers. Some might entertain the view that articles 2(5) and 19(1) of proclamation No 251/2001, and article 39(5) of the FDRE Constitution implies the recognition to the right of wolqait dwellers to distinctive identity. This writer differs. A brief look at articles 2(5) and 19(1) of proclamation No 251/2001, and article 39(5) of the FDRE Constitution makes this clear. It would be absurd to think that the authors of the FDRE Constitution intended to recognize and protect thousands of woredas residents in the country to enjoy the right to distinct identity. Therefore the wolqait community does not have the right to claim distinct identity since there is no law which expressly or impliedly guarantee such right to them.

Since it is a common/mutual right of a nation, nationality, or people concerned, it must be questioned collectively/mutually in a sense that all communities that have shared/joint interest with the identity question must be represented at law. A group of people within the context of article 2(5) of proclamation No 251/2001 of Ethiopia may present its application by way of ethno– collective representative action. A collective representative action is one in which the individual or individuals names as representative /representatives is/are representing the interest of a nation, nationality or people concerned. A collective representative action is defined under article 20 and 21 of proclamation No 251/2001.

With respect to the Wolqait question, as it is notorious, the Wolqait’s people Amhara nation-hood identity question committee claimed to be representative of the Wolqait woreda inhabitants. This assert clearly, on its face, reassure us that it is not a required representative of a nation, nationality, or people concerned in view of the two eyes of the law. The committee does not have the right to apply the question in this context in view of the fact that it is not a legal representative of a nation, nationality, or people concerned.

(2) A group of people’s that meet the Constitutional definition of a nation, nationality, or people self-identity must be denied. A group of people that qualify the legal definition of a nation, nationality, or people can apply an identity question only where the identity in issue is not yet recognized at the country level. The Constitutional system has adopted the principle of one identity, one recognition in Ethiopia. The principle is that once a subject matter of the question has been recognized, it may not be reclaimed. In order for application of an identity question the identity claimed to be recognized should not be recognized before. The Amhara identity is already recognized at the federal level in article 47(3) of the FDRE Constitution of 1994. Furthermore, the Amhara regional state Constitution by itself has recognized Amhara identity. The nature of identity recognition is a collective recognition of a nation, nationality, or people concerned as a distinct identity legal right is joint right of a nation, nationality, or people concerned. There is not the so called a separate identity recognition a nation, nationality, or people concerned. Where an identity is recognized, no fresh application shall be brought on the same cause of question. Based on the recognition accorded to Amhara identity, the territorial boundary of the Amhara identity is within the Amhara regional state border as it exists now. If the Amhara regional state government thinks that the territorial boundary of the Amhara identity is beyond Amhara regional state border, it has the right to bring a state border delimitation change on the basis of article 48 of the national Constitution and of proclamation No 251/2001.

Since the identity claimed to be recognized (that is Amhara identity) is already recognized at the federal level in article 47(3) of the FDRE Constitution of 1994, the Wolqait woreda population, even where they all consented to it, do not have the right to demand the Wolqait’s people Amhara nation-hood identity(recognition) question in this perspective alone.

(3) As stated beforehand, a group of people must have five ethnic characteristics’ different from those of already got the status of nationhood at the federal level. A nation, nationality or people is a group of people possessing ethnic characteristics’ differing from the rest of the population and show, if only, a sense of solidarity directed towards preserving their culture, traditions, religions, or language. The issue of ethnic identity can only occur in pluralistic societies, defined as societies in which significant diversity and dissimilarities exist. Since the ethnically diversified character of the country is essentially present at the federal level, the FDRE Constitution has designed a system of ethnic diversity accommodation at the country level. This type of ethnic diversity accommodation scope of application is nationwide. However, the ethnically diversified character of the country is present at the regional state level as per state Constitutions. Such kind of regional state ethnic diversity may be accommodated at the regional state level. The source of a distinct identity legal right may be either a national Constitution or regional states Constitution. The Wolqait people’s Amhara nation-hood identity question committee claimed a distinct identity legal right on the basis of a national Constitution. In other words, the committee is not claimed identity recognition on the basis of the Tigray regional state Constitution. It is worth to point out that the Tigray regional state Constitution’s is only granted a distnict right to two nationalities, in addition to Tigray, to Irob and kunama. These ethnic/linguistic characteristics’ diversity makes an ethnic group different from others. Therefore, the Wolqait woreda inhabitants do not have ethnic characteristics’ different from those of already got the status of nationhood at the federal level. This is clear from claim uttered by the committee in various ways.

In broad-spectrum, the Wolqait woreda inhabitants, even where all agreed, do not qualify the three pre-requisite to quest self-hood status. Therefore, they do not have the right to claim the Wolqait’s people Amhara nation-hood identity question as per article 19(1) of proclamation No 251/2001.

4.3 The ending of the Wolqait’s question on merit of the case

In this part, we are concerned with the fate of the Wolqait identity claim where it is actually and/or legally presented to the Tigray state council.

In this section, we will reflect on the destiny of such application both under pre-evidence and evidence stages on the facade of the HOF or the state council as the case may be. Remember that there are two stages to an identity case: pre-evidence and evidence stages. We will see the most important aspect of the matter of rejection of applications during pre-evidence stage.

4.3.1. Rejection of applications under pre-evidence stage

The most important aspect of the matter of rejection of applications is rejection of the application on the ground that the individual/individuals applied the question of identity does/do not have the legal right to represent a nation, nationality, or people concerned. The HOF or the state council as the case may be must reject the application where the individual/individuals applying the question does/do have the required power of attorney. As I stated above in section 4.2(1) of this note, the Wolqait’s people Amhara nation-hood identity question committee claimed to be representative of the Wolqait woreda inhabitants. This assert clearly, on its face, reassure us that it is not a required representative of a nation, nationality, or people concerned in view of the two eyes of the law. The committee does not have the right to apply the question in this context in view of the fact that it is not a legal representative of a nation, nationality, or people concerned.

The other most important aspect of the matter of rejection is the rejection of the application of identity question on the ground that it does not state a cause of question. We will now consider the application of identity question does not state a cause of question. The first circumstance where the application of identity question does not state a cause of question is where the applicant does not pleaded facts entitling the applicant to relief sought under the law. The relief sought in the application of identity question is a declaratory ruling of recognition of existence. Facts entitling the applicant to relief sought that is a declaratory ruling of recognition of existence under the law are (1) The applicant should plead the fact that it qualifies the constitutional definition of a nation, nationality, or people, (2) The petitioner must plead the fact that it possesses ethnic characteristics’ differing from the rest of the population, and (3) The claimant should plead the fact that its self-identity is not yet acknowledged at the country level. These facts must be present as one in order the applicant to have a cause of question. If one of the facts is missing, there is no cause of question.

As I affirmed hereinbefore in section 4.2(1) of this note, the Wolqait woreda inhabitants do not qualify the definition of a nation, nationality, or people. Hence, they do not have the right to quest distinct identity question at law. For further discussion, see section 4.2(1) of this note. As I confirmed above in section 4.2(2) of this note, the identity claimed to be recognized (that is amhara identity) is already recognized at the federal level in article 47(3) of the FDRE Constitution of 1994. For that reason alone, the Wolqait woreda population, even where they all consented to it, do not have the right to demand the Wolqait people’s Amhara nation-hood identity (recognition) question. For more argument, see section 4.2(2) of this note. As I declared over in section 4.2(3) of this note, moreover, the Wolqait woreda inhabitants do not have ethnic characteristics’ different from those of already got the status of nationhood at the federal level. For additional discussion, see section 4.2(3) of this note.

The second circumstance where the application of identity question does not state a cause of question is where the requester has alleged facts which affirmatively show that it is not entitled to relief sought under the law. As I mentioned herein before, the substance fact of the question reveals that the relief sought by the question is the Wolqait residents to be declared as a group of people having Amhara nation-hood identity. As per article 19(1) of proclamation No 251/2001, thus, they do not have the right to claim the Wolqait people’s amhara nation-hood question. Therefore, the ending of such kind of a question would be dismissal at early stage of the proceeding given that neither the federal constitution nor the Tigray constitution made any space for the right of the Wolqait residents to distinct identity.

5. Conclusion

The article explores and examines the question of Wolqait. At the outset, it attempts to discover and express clearly what the general rules of law in relation to identity question and state border delimitation change really are. Then, it asks what the nature of Wolqait’s question is. The analysis shows that the question is identity question.

Think of ethno-constitutional cause of action for identity recognition claim application like a recipe for baking an apple pie. There are certain ingredients you must put in if the pie is to turn out right. If you are trying to make a pineapple and don’t add any apple or apple flavoring, you are not going to get an apple. The essential ingredients of identity question are called the elements of the ethno-national identity collective cause of action. The identity question must state a cause of action that is recognized by jurisdiction where it is filed or may be filed. Each ethno-national identity collective cause of action, in turn, requires to ingredients to be included in the application of identity question that purport to state the cause of action for identity question. If a group of people intends to apply or applied for identity, the application must include at least two ingredients: existence of a right to distinct identity that is recognized under applicable law of the country and the identity is not yet recognized. It is clear from the claims of the Wolqait committee that the Wolqait residents can’t in any way have ethno-collective cause of action for identity question. Failure to have all or some of the ingredients of identity question upon which relief can be granted exposes the application to a motion to dismiss. Those who file a claim or action in authority having which fails to state all the essential ingredients to make up such a claim frequently have their cases can be dismissed. The right of Wolqait residents to distinct identity is not recognized. Neither the federal constitution nor the Tigray constitution made any space for the right of the Wolqait residents to distinct identity. Therefore, the Wolqait question is against the proclamation No 251/2001 and the FDRE Constitution.

It is not only unconstitutional and illegal, but also impossible to seek and obtain a state border delimitation re-adjustment under the costume of identity question. Once the Constitution has drawn the boundaries and holders of ethno-collective rights, government should not second guess ethnic group use of that right. Government should carry out the Constitution and other laws as it is. The rule of law requires the administration of justice according to established rules and principles. The success of the federal system depends on the principles of Constitutionalism and rule of law. The utility of the role of law would otherwise be diminished. The importance of dealing with justiciable problems in the context of rule of law is far-reaching. In short, when identity claims follow the principles of Constitutionalism and rule of law, both violent and non-violent groundless claims are less likely to arise in the future. Otherwise, both violent and non-violent groundless claims are more likely to arise in the future.

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