On the State of Emergency Voting Rule: A Brief Look

(Zeray Weldesenbet)

What is the voting rule for the approval of State of Emergency by the parliament under article 93(2) (a) of the Ethiopian Constitution?

The dilemma here is that whether the two-thirds majority vote requirement is calculated with reference to the whole members of the House of Peoples Representatives (HOPR) or only to active members or only to the members present or to the votes cast or to some other basis.

In this note, I touched on the issue briefly with the aim of providing a starting point than a comprehensive answer.

Understanding what the law is depends inescapably on the texts of the law and its structure.

Article 59 (1) of the this Federal Democratic Republic of Ethiopia (FDRE) Constitution stipulates that:

“Unless otherwise expressly provided in the Constitution, all decisions of the House shall be by a majority vote of the members present and voting.”

A fully specified voting rule must state both a multiplier and multiplicand. Merely stating that the voting rule should be “a majority” or “a supermajority/extraordinary majority” is an underspecified statement, like saying” is more than” or “three multiplied by.”

If a voting rule is to be coherently stated, one must ask “a majority or a supermajority of what?” Accordingly, Article 59(1) fully specified the voting rule: A majority vote of the members present and voting in the meeting of the HOPR. It means a majority vote is calculated with reference to the members (of the HOPR) present and voting. Therefore, Article 59(1) addresses both multiplier and multiplicand issues.

Article 59(1) of the FDRE Constitution prescribed the guiding principle for all decisions of the HOPR unless otherwise expressly provided in the Constitution.

One of the exceptions of this guiding principle over decisions of the HOPR is provided in article 93(2) (a) of the Constitution, which states that:

“The decree, if not approved by a two-thirds majority vote of members of the House of Peoples’ Representatives’, shall be repealed forthwith.”

This provision contains expressly contrary indication/rule to a multiplier provided under Article 59(1) of the FDRE Constitution, which is a two-thirds majority vote. The multiplier provided under Article 59(1) of the FDRE Constitution is a majority vote.

The English version of Article 93 (2) (a) of the Constitution refers to members of the House of Peoples Representatives. ‘Members of the House of Peoples Representatives’ does not automatically connote the whole elected members of the HOPR.

Further, the Amharic version of article 93 (2) (a) of the Constitution stipulates that:

“The decree, if not approved by a two-thirds majority vote of the House of Peoples’ Representatives’, shall be repealed forthwith.”

The Amharic version of article 93 (2) (a) of the Constitution, which is the controlling version in case there is a conflict, does not require a two-thirds majority vote of all elected members of the House. It does not refer to members at all. But rather, it simply refers to the institution itself, which is the HOPR.

It does not expressly envisage about a two-thirds majority vote of what. It does not in actual fact let know us whether a two-thirds majority vote is calculated with reference to the whole members of the HOPR or to the members present and voting or all active members or to the number of votes cast or to the number of parliamentarians present or to all members entitled to vote or to some other basis.

To put it in a different form, it is not apparent from this provision itself how a two-thirds majority vote rule is meant to be applied. Further, the Amharic version of article 93(2) (a) of the Constitution makes no direct reference to members of the House at all. With respect to multiplicand, hence, both the English version of article 93(2) (a) of the Constitution themselves do not clearly provided other than that stipulated in article 59(1) of the FDRE Constitution. Article 93 (2) (a) of the Constitution only included express contrary indication/rule with regard to a majority vote rule, which is a multiplier.

The answer both the English version and the Amharic version of article 93(2) (a) of the Constitution is less certain, partly because of partly discrepancy in content. Due to this, the words of article 93(2) (a) of the Constitution has offer a fairly wide range of choices of possible meaning.

The authors of the Constitution have made a start at a definition of voting rule in article 59(1) of the FDRE Constitution. As a result, it is apt to look at what does “unless otherwise specifically provided in the Constitution” signify within the framework of article 59 (1) of the Constitution.

“Unless otherwise expressly provided in the Constitution” means matters that are provided within article 59 (1) of the Constitution always will apply over the HOPR decisions cases save in cases where other provisions of the Constitution are either silent or contain no express contrary indication/rule with regard to matters provided in article 59 (1) of the Constitution.

Accordingly, the model of the members present and voting system is equally applicable under article 93(2) (a) of the Constitution since it does not explicitly provide any exception to the notion of multiplicand in it. So, the concept that is indicated within article 59 (1) of the Constitution will apply in article 93 of the FDRE Constitution.

Due to this, the voting rule, under article 93 of the FDRE Constitution, is a two-thirds majority vote of the members present and voting in the meeting of the House. It means a two-thirds majority vote is calculated with reference to the members (of the House) present and voting.

In addition, article 58 (1) of the Constitution and quorum provisions of the HOPR Regulation substantiate this line of argument. Since article 58 (1) of the Constitution does not envisaged any exception, it is relevant under article 93 of the Constitution either.

The presence of more than half of the members of the House is enough to constitute a quorum in all cases. When we read together article 93 and 58 of the Constitution, it becomes clearer that the vote that should be considered is the one which is cast by the presented members of the House in the meeting.

If the required quorum is not complete, the House gathering will not commence, but rather will be postponed to some other day (article 47(2) of the HOPR Regulation No 3/2006). The meeting will only commence where the needed quorum is not complete (article 22(4) of the HOPR Regulation No 3/2006). This certainly tell us that a two-thirds majority vote, under article 93(2) (a) of the FDRE Constitution, is measured with reference to the members present and voting in the meeting of the HOPR.

Moreover, article 45(4) (b) of the HOPR Regulation No 3/2006 stipulated that a two-thirds majority vote is required to approve the SOE decree. But it does not answer the question that two-thirds majority vote of what. However, the HOPR Regulation No 2/2005, in article 35, stipulates, in its article 35, a two-thirds majority vote of the members present and voting is required to endorse the SOE decree or declaration.

Since this is not in contradiction with article 45(4) (b) of the HOPR Regulation No 3/2006, still it is applicable in this regard. When we read article 45(4) (b) of the HOPR Regulation No 3/2006 and article 35 of the HOPR Regulation No 2/2005, we can comprehend that the voting rule is a two-thirds majority vote of the members present and voting, but nothing else.

In Ethiopia, the votes of a two-thirds majority vote of those present and voting is necessary to approve a SOE decree, but not the votes of a two-thirds majority vote of all elected members of the House. But the speaker of the House calculated a two-thirds majority vote, under article 93(2) (a) of the FDRE Constitution, is calculated with reference to the whole active members even if around 98 members  was not  absent from the meeting.

In view of the fact that the voting rule is a two-thirds majority vote of the members present and voting in the meeting of the House, the necessary number of votes flux depending on the number of members in attendance and votes. It doesn’t require fixed number of votes in all cases. What is a 2/3 majority vote is at all times depends upon the number of parliamentarians present in the assembly.

The number of members’ that was present and cast votes last Friday session of the House to approve the State of Emergency was 490. A two-thirds majority vote of 490 members is 327 votes.

The SOE decree required only 327 votes to pass based on the number of votes cast out of those present and voting. Since 395 members out of 490 voted in favor of the State of emergency decree, it is legally approved by a two-thirds majority vote of the members present and voting in the House meeting.

Note that a vote of 395 is above the threshold needed when a two-thirds majority vote rule applied to the number of parliamentarians present and cast votes, rather than the number of the whole elected members of the House. Whether the number of parliamentarians voted in favor of the State of emergency decree was 346 or 395, it doesn’t make any difference in effect.

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Guest Author