Can the Prime Minister, by himself, Nominate ‘Persons’ for Candidacy for ‘Ministerial Posts’ for Approval to the Parliament under the FDRE Constitution?

(Zeray Weldesenbet)

Does the prime minister have the authority to select persons for candidacy for ‘ministerial posts’ to the House of Peoples Representatives for approval under the Federal Democratic Republic of Ethiopia Constitution? The question of the power to nominate/select candidates for ministerial positions to the House of Peoples Representatives for appointment into picture in tandem with the authority of the political party or a coalition of political parties that constitutes a majority in the House of Peoples Representatives to form the executive and lead it, to assume government power, and equitable representation right of Nations, nationalities or peoples in Ethiopia.The principal purpose for which this study is conducted is to examine whether the incumbent new prime minister of Ethiopia has constitutional authority to nominate/select, by himself, persons for candidacy for ministerial posts for approvalto the House of Peoples Representatives.

Nomination authority plays a significant role in the appointment of cabinet ministers. Nevertheless, nomination authority is an under-theorized and relatively unexamined as well as properly unanswered area of constitutional law in Ethiopia. A dearth of scholarship in an area of constitutional law makes it more that the area is basically sound. No one posed a question concerning the prime minister’s selection authority at all. No existed works focus on the premier’s nomination power. This article seeks to fill gaps in the literature, addressing questions long neglected and unanswered yet. In this note, I touched the subject in brief with the intention to provide a starting point than to provide complete solution. This note attempt to examine the issue in question based on the FDRE Constitution; it is only confined to constitutional analysis.

Before considering the role of the prime minister in the nomination and appointment of cabinet ministers for approval to the House of Peoples Representatives, let us first look at what some people think the prime minister does with regard to this matter. Many intuitively believe that the prime minister can nominate all executive officers. Some others may think that only the premier can nominate and submit cabinet members under the FDRE Constitution. In Ethiopia, usual practice till now is that the incumbent prime minister recommends and nominates persons for candidacy for ministerial posts for approval to the EPRDF executive committee and upon approval, the prime minister submits nominated persons for appointment to the House of Peoples Representatives.

But last wednesday’s nomination and appointment seems to me that a clear signal of the variation from the prevailing custom in this regards. This may happened due to the prevailing perception that the premier has the constitutional mandate to nominate cabinet ministers for approval to the parliament. For example, one facebook user posted on his page that “the PM (prime minister) is implementing the power given to him by Constitution. This is walk.” Many others also think that the incumbent prime minister himself that made the nominations of today’s appointees for ministerial posts. That’s initiate me to question and write whether the new prime minister of Ethiopia has constitutional power to nominate, by himself, persons for candidacy for ministerial posts for approval to the House of Peoples Representatives.

Looking at the FDRE Constitution we find provisions dealing with the nomination power and submission obligation of persons for ministerial posts for appointment to the parliament. Article 74(2) of the FDRE Constitution reads:

“The prime minister shall submit for approval to the House of Peoples Representatives nominees for ministerial posts from among members of the two Houses or from among persons who are not members of either House and possess the required qualifications.” (Emphasis added)

Article 56 of the FDRE Constitution reads:

“A political party or a coalition of political parties that has the greatest number of seats in the House of Peoples Representatives shall form the executive and lead it.” (Emphasis added)

Article 73(2) of the FDRE Constitution reads:

“’Power of government’ shall be assumed by the political party or a coalition of political parties that constitutes a majority in the House of Peoples Representatives.” (Emphasis added)

The pertinent constitutional provisions for the subject matter of this note are the above ones. And it seems to me appropriate to examine now whether article 74(2) of the FDRE Constitution empowers the prime minister to nominate cabinet ministers. Before seeing and examining this, it is apt to see some considerations of the constitution, which may help us in determining the meaning of article 74(2) of the FDRE Constitution.

The Constitution proclaimed in one effort in an attempt to state clearly and concisely the complete system. Thus one should never try to interpret a provision of the constitution in the abstract. It must always be examined in its relationship to the other provisions of the constitution The second implication which may be drawn from the Constitution’s internal consistency is that if the meaning of one provision of the constitution has been established or is clear, one can reason from the meaning of that provision to what ought to be the meaning of another. So, one must properly pay attention for patterns, for a structural framework, or for common features, which may help to elucidate the Constitution’s meaning.

The provisions of the constitution should be given the same meaning-that they should be interpreted consistently. Note that language usage throughout the Constitution is only a particular example of the overall assumption of consistency of the Constitution. What the assumption means is that if a particular word can be established to have a certain meaning when it is used at one point of the Constitution, it is at least likely to have the same meaning at any other point in that Constitution. Based on this understanding of the Constitution, let us see whether the prime minister has the constitutional authority to nominate candidates for ministerial positions for appointment to the parliament under the FDRE Constitution. Having said this, then we will see whether article 74(2) of the FDRE Constitution empowers the prime minister to nominate persons for cabinet ministers’ posts for approval to the legislative House.

As noted above, some may believe that in addition to his submission function, the prime minister has the constitutional authority to nominate candidates for ministerial posts under article 74(2) of the FDRE Constitution based on submission power argument. They may think that the word “submit” includes nomination either. They may argue that he can nominate them since he has the function to submit the list of nominees to the House. Others may instinctively think that the prime minister can nominate all executive officers whose appointment is required by law to be approved by the parliament. This claim is perhaps based on the intuition that the law-makers will grant selection authority only to the public officer meant to submit the nominees. This intuition does not apply to our constitutional system. To put it differently, this intuitive thought does not offer a sounder basis for nomination authority since a power is exist in the Constitution only if it expressly stated in the text of the Constitution.

Any law cannot be understood intuitively. Rather, an understanding of any constitutional/ legal provision first requires understanding / interpretation of each and every word or phrase of it. In applying any law, in other words, it is a must to decide the meaning of it. The very interpreting of a document requires that its meaning be limited to its specific text. In an effort to grasp the essence of the term “submit,” we will examine a number of its definitions. In its ordinary meaning, ‘submit’ means put forward.Black’s law dictionaries defined submit as “refer or propound.” The word ‘shall’ do not signify power, but rather duty.

Thus going by definition, the prime minister is under duty to put forward nominees for approval to the House. As one can or should comprehend, the wording of article 74(2) of the FDRE Constitution does not confer to the premier the power to select nominees for ministerial posts. In other words, going by definition, the prime minister cannot, by himself, select cabinet members for appointment. Its language does not relate to a power, something an official is entitled to do. Quite clearly, rather, it is meant to impose upon the premier an obligation, that is, the duty to submit” candidates/nominees for “ministerial positions” for appointment to the House of Peoples Representatives. Note that article 74 of the FDRE Constitution contained both powers and duties/functions of the prime minister. Based on this meaning of article 74(2) of the FDRE Constitution, the prime minister cannot, by himself, select cabinet ministers for support to the legislative House.

When we read articles 74(2) and 74(7) of the FDRE Constitution together, further, it is clearer that the word “submit” does not includes nomination. One should never try to interpret a constitutional provision in the abstract. Rather he must always examine a constitutional provision in its relationship to the other provision(s) of the constitution. Besides, the meaning of one provision of the constitution has been established or is clear, one can reason from the meaning of that provision to what ought to be the meaning of another. While article 74(7) of the FDRE Constitution grant the premier the power to “selects and submits for approval to the parliament nominations for posts of commissioners, the president and vice-president of federal Supreme Court and the Auditor General,” article 74(2) of the FDRE Constitution does not empower him selection/nomination power with regard to cabinet ministers. If the word ‘submits’ includes ‘selects’ under article 74(2) of the FDRE Constitution, the authors and framers of the Constitution would not include the word “selects” in article 74(7) of the FDRE Constitution. Under article 74(2) of the FDRE Constitution, the word “selects” refer to choose or opt, while “submits” means put forward. In general the reading of articles 74(7) and 74(2) of the FDRE Constitution informs us that prime minister has no constitutional mandate to nominate persons for candidacy for ministerial posts for approval before the House of Peoples Representatives. Thus, article 74(2) of the FDRE Constitution does not grant the prime minister the power to “selects” candidates for ministerial posts” for endorsement to the House of Peoples Representatives.

Moreover, article 81(2) of the FDRE Constitution stipulates that regarding other federal judges (judges other than the president and vice-president of federal Supreme Court), the premier shall “submit” to the House of Peoples Representatives for appointment candidates selected by the federal judicial administration council. This constitutional provision at least show us that the word ‘submits’ does not necessarily or normally includes ‘selects’. Rather, it is meant to mean propound. And this meaning also applies to article 74(2) of the FDRE Constitution either. Thus the joint reading of articles 74(2) and 81(2) of the FDRE Constitution informs us that premier does not constitutional mandate to nominate, by himself, persons for candidacy for ministerial posts for approval before the House of Peoples Representatives. If the authors of the FDRE Constitution intended to entrust to the premier the power to nominate persons for candidacy for ministerial posts, article 74(2) of the FDRE Constitution would say that the prime minister shall “selects and submits” for approval to the House of Peoples Representatives nominees for ministerial posts. This is basically based on the norm that the provisions/words of the constitution should be given the same meaning-that they should be interpreted consistently.

Under the FDRE Constitution, thus, the prime minister, by himself, does not have the power to nominate persons for candidacy for ministerial posts. However, the premier as chief executive can initiate and recommend persons for ministerial posts for approval to the concerned party organ. This then leads us to an important question which runs thus: If the premier by himself doesn’t have the power to nominate persons for candidacy for ministerial posts under basic law of the land, who else may have such authority under the FDRE Constitution.

Under article 56 the FDRE Constitution, the political party or a coalition of political parties that has the greatest number of seats in the House of Peoples Representatives shall form and lead it. Article 56 of the FDRE Constitution has given to the political party or a coalition of political parties that has the greatest number of seats in the House of Peoples Representatives the power to form the executive and lead it. As per article 76(1) the FDRE Constitution, the prime minister, the deputy prime minister, ministers, the council of ministers and others as may be determined by law are cabinet members/ministers. Hence the word ‘executive’ within the context of article 56 the FDRE Constitution normally refers to the prime minister, Council of Ministers and other cabinet members. In other words, the word ‘executive’ meant to mean ministerial posts.

It is apparent that this constitutional authority, that is, the power to form the executive and lead it, comprises the authority to determine the organizational structure of the executive and the power to appoint persons for the executive posts. Accordingly, article 77(2) the FDRE Constitution specifically granted to the council of ministers the power to decide on the organizational structure of ministers and other organs responsible to it. Besides, article 77(2) the FDRE Constitution tacitly leaves the power to appoint the prime minister to a political party or a coalition of political parties’ that constitutes a majority in the House of Peoples Representatives. But unlike the appointment of the prime minister, this authority, that is, the authority to form the executive regarding ministerial posts, is qualified by article 74(2) and 55(13) of the FDRE Constitution.

The political party or a coalition of political parties’ that constitutes a majority in the House of Peoples Representatives does not emanate only from article 56 the FDRE Constitution. It emanates based on article 73(2) the FDRE Constitution. The question of nomination authority also comes into picture in tandem with the political power to form the executive and lead it. A political party or a coalition of political parties that has the greatest number of seats in the House of Peoples Representatives can nominate persons for candidacy for ministerial posts where it initially holds a majority in it. The question of selection power also comes into picture in tandem with the assumption of government power. Each and every NNP’s in Ethiopia has the right to an equitable representation equitable representation in state and federal government institutions. However, the extent of the influence/impact of NNP’s right to an equitable representation upon the nominations needs a separate examination.

Therefore it is the political party or a coalition of political parties that constitutes a majority in the House of Peoples Representatives that has the constitutional authority to nominate cabinet ministers in Ethiopia. To put it differently, a political party or a coalition of political parties that has the greatest number of seats in the House of Peoples Representatives has the constitutional authority select persons for candidacy for ministerial posts immediately where it initially holds a majority in it. The political party or a coalition of political parties that constitutes a majority in the House of Peoples Representatives, through the premier, shall put forward nominees’ for cabinet ministers both from among members of the two Houses and from among persons who are not members of either House.

In general the power to recommend and nominate” persons for candidacy for ministerial posts for appointment to the House of Peoples Representatives rests upon a political party of a coalition of political parties that assumed political power. However, a political party of a coalition of political parties that has greatest number of seats in the parliament can regulate the details and process of recommendation through party or coalition rules. As a result, normally the leader can change and nominate, only through the executive committee of EPRD, cabinet ministers for appointment.

But one may ask at this point that when the political party or a coalition of political parties that constitutes a majority in the House of Peoples Representatives does have the authority to nominate/select persons for candidacy for ministerial posts? In other words, under what circumstance does it have the power to nominate/recommend/select persons for candidacy for ministerial posts to the House of Peoples Representatives for its approval?

The political party or a coalition of political parties that constitutes a majority in the House of Peoples Representatives has the authority to nominate persons for candidacy for ministerial posts immediately after winning the national election for the House of Peoples Representatives seats. Is it possible to nominate persons for candidacy for ministerial posts while previously appointed ministers remain in office? The answer is in negative. In principle once they appointed by the House of Peoples Representatives, they will remain in office until the end of the five year terms for which a political party or a coalition of political parties that has the greatest number of seats in the House of Peoples Representatives has assumed political power. The term of office of ministers is for the duration of the mandate of the prime minister for stronger reason. There could not be appointment without any term of office.

They do not hold office only during the pleasure of the prime minister or the parliament. Rather, they hold office under the law .This can be discern from articles 73(2), 54 (1), 12(2), 39(3), 50(3), 74(4) and 55(13) of the FDRE Constitution. However, that does not mean they cannot be removed from office in law. Consequently, the parliament shall not approve the nominations without ascertaining the lawful removal or discharge of concerned officials it has previously appointed on the posts in which the appointment is requested. Otherwise, its appointment/approval constitutional authority and purpose would be futile. In addition, the supremacy of the parliament may be jeopardized.

Then after, the political party or a coalition of political parties that constitutes a majority in the House of Peoples Representatives can only nominate persons for candidacy for ministerial posts where there is a vacancy or vacancies in the “ministerial posts.” In the absence of a vacancy or vacancies, the political party or a coalition of political parties that constitutes a majority in the House of Peoples Representatives cannot select persons for candidacy for ministerial posts unless new for ministerial post(s) is/are established or opened either under article 77(2) the FDRE Constitution or article 55(1) the FDRE Constitution. As a result, the prime minister cannot submit/present candidates/nominees for “ministerial posts support to the House” nominated by the winning party or a coalition to the House of Peoples Representatives for endorsement. The inevitable question here is therefore: When do ministerial posts be vacant?

There will be vacancy in the ministerial posts where resignation, death, removal, and declaration of absence occurred as well as the terms of service for the ministerial posts expired by operation of the law, which is five years. However, it can also nominate when new for ministerial post(s) is/are established either under article 77(2) the FDRE Constitution or article 55(1) the FDRE Constitution. Mark that the prime minister cannot remove any minister or ministers at will. This can be discern from articles 74 (8), 12(2), 39(3), and 74(4) and 55(13) of the FDRE Constitution.

In conclusion, many intuitively believe that the prime minister can nominate all executive officers. But nothing in the FDRE Constitution supports this belief. The FDRE Constitution does not contain a provision that grant to the prime minister the authority to nominate members of the council of ministers. Under the FDRE Constitution, the exclusive nomination authority in this regards rests upon the winning political party or a coalition of political parties. Note that there is a difference between recommendation, nomination/selection, appointment/ approval power, and submission responsibility of persons for ministerial posts for approval to the House of Peoples Representatives under the FDRE Constitution.

Finally abuse of incumbency must be tackled in various ways. When abuse of incumbency occurred, the parliament shall, at the request of one-third of its members, discuss on the matter, and in such cases, it has the power to take decisions or measures as it deems necessary. The House of Federation has, on application of any interested party, the mandate to provide legal remedial measures in this regards.

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