(Zeray Weldesenbet)
On April 24, 2018, the Ethiopian Television (ETV) broadcasted that the incumbent prime minister of Ethiopia has, in his official capacity, awarded the highest fully gold made Medal of Distinguished Labor to the then Commander-in-chief of the National Armed Forces of Ethiopia, Hailemariam Desalegn, along with Highest Diploma of Honor for his dedicated service autographed by the current Commander-in-Chief of the National Armed Forces at a farewell ceremony held at the national palace.
In addition, it has also broadcasted that he has granted wholly gold made Medal of Honor to the former first lady of Ethiopia, Roman Tesfaye, for her tangible contribution in the social sector either and Diploma of Honor, for her contribution to the success of the former premier Hailemariam Desalegn, autographed by the current prime minister.
The prime minister might be awarded them actually assuming that he has constitutional/legal mandate to grant medals and certificates both to the ex- Commander-in-chief of the National Armed Forces of Ethiopia and former first lady of Ethiopia. However such assumption does not offer a sounder constitutional and/or legal basis for the authority to award any medal and certificate.
Since any power exists in the Constitution only if it expressly stated in the text of the Constitution, in other words, such genuine opinion/perception cannot be a legal ground for granting the award. This event motivated me to question and write whether the incumbent prime minister of Ethiopia has constitutional and/or legal authority to award, by himself, any Medal and Diploma.
Besides, the Cross Medal given to the wife of the former prime minister is also worthy of discussion here. The Medal of Honor awarded to the ex- first lady has an apparently conspicuous Cross in it, which is the well-known symbol of Christianity. Under FDRE Constitution, however, the government and religion should be separated .
On the other hand, the State, through its premier, has awarded Medal, which has plainly eye-catching big Cross within its contents. This occasion also prompted me to ask whether the prime minister action, with regard to the shape and content of the Medal given to the former first lady, was against secularism/neutrality fundamental principle in the FDRE Constitution. Having said this, first let us see whether the present prime minister of Ethiopia has constitutional and/or legal authority to award, by himself, any medal, prize, and gift.
Looking at the FDRE Constitution we find provisions dealing with the medals, prizes, and gifts award. Article 74(10) of the FDRE Constitution reads:
“In accordance with law enacted or decision adopted by the House of Peoples Representatives, he recommends to the president nominees for the award medals, prizes, and gifts. (Emphasis added)
Article 71(5) of the FDRE Constitution reads:
“He (the President) shall award medals, prizes, and gifts in accordance with conditions and procedures established by law.” (Emphasis added)
In understanding any law, first it is a must to decide the meaning of its each and every word. The very interpreting of a legal provision requires that its meaning be limited to its specific text. In an effort to grasp the essence of the terms medal, prize, and gift,” I will attempt to reflect on the meaning of the term medal, prize, and gift.
In its ordinary meaning, medal mean a stamped or cast metal object (usually a disc), particularly one awarded as a prize or reward. In its ordinary meaning, prize mean an honor or reward striven for in a competitive contest; anything offered to be competed for, or as an inducement to, or reward effort. It also means a prize or other mark of recognition given in honor of an achievement.
In its ordinary meaning, gift mean something given to another without charge; donation. Medals, prizes, and gifts are all about recognition of excellence in a certain field. Then, we will now take a closer look at the power of the prime minister at the Constitution and other laws regarding award.
As anyone can or should see from article 74(10) of the FDRE Constitution, the incumbent prime minister, be it as the chief of executive, be it as the Commander-in-Chief of the National Armed Forces, and as it the chairman of the Council of Ministers, does not have constitutional authority to award any medal, prize, and gift both to the members of the National Armed Forces and civilians. It is clearer when we read articles 74(10) and 71(5) of the FDRE Constitution together.
Further, there is no provision of the subordinate laws concerning the prime minister’s authority to award any medal, prize, and gift. The subject in question should be seen in accordance with Proclamation No 809/2013 and other relevant laws since the then premier was member of the armed forces; a commander- in-chief of the National Armed Forces of Ethiopia.
As per article 2(1) and (4) of proclamation number 809/2013, he was member of armed forces; a commander- in-chief of the National Armed Forces of Ethiopia. Chapter six of this proclamation exclusively deals with Medals, Ribbon and certificate and privileges of awardees. But he does not have legal mandate to grant Medals and Diplomas under proclamation number 809/2013 /2/ and other relevant legislations.
Under article 48(1) of proclamation number 809/2013, the Medal of the victory of Adwa is Highest Award. Such Medal may be bestowed upon an Ethiopian individual, military unit or group that has performed unparalleled feats of bravery in battlefield according to article 49(1) proclamation number 809/2013.
Hence, the Medal of Honor, seemingly for his distinguished labor during his five years premiership tenure, awarded to the ex- Commander-in-chief of the National Armed Forces of Ethiopia, Hailemariam Desalegn, is not the Highest Medal under the governing relevant law of the country. Thus, the premier, on his official capacity, cannot grant any medal, prize, and gift to anyone whatsoever under the FDRE Constitution3 . But he can award, on his private capacity, any medals, prizes, and gifts to anyone under his pleasure.
Nevertheless, the prime minister has the constitutional authority to recommend to the president nominees for the award medals, prizes, and gifts. Even he can propose and submit to the president nominees for the award medals, prizes, and gifts only in accordance with the law enacted or decision adopted by the House of Peoples Representatives. In other words, he cannot recommend to the president nominees for the award medals, prizes, and gifts at his will. The legislation enacted or decision adopted by the House of Peoples Representatives may determine the conditions and procedures for the recommendation to the president candidates for the award medals, prizes, and gifts.
In general, the incumbent prime minister has the constitutional mandate to commend and put forward to the president nominees for the award medals, prizes, and gifts in accordance with the conditions and procedures determined by law or by the House of Peoples Representatives.
The next question would be: whether the prime minister, absent a legal provision expressly granting him the power to award medals, prizes, and gifts, can award medals, prizes, and gifts thereon. Article 74(12) of the Constitution states that the prime minister shall discharge all responsibilities entrusted to him by this Constitution and other laws. As per this provision, the sources of the prime minister Powers and functions are only the FDRE Constitution and subordinate laws.
He shall discharge only those powers and responsibilities under the law. Article 9(2) of FDRE Constitution also imposes upon all citizens; organs of state, political organizations, other associations, as well as their officials have the duty to ensure the observance of the Constitution and to obey it. Thus, our system requires public officials, including the prime minister, to justify their actions as authorized by law as when they take decisions or actions.
The principle that demands a legal basis before taking any action is called legality. The aim of this principle is to prevent arbitrary decisions and actions of officials, including the prime minister. So long as there is a legal basis for the taking of action, the requirement of principle of legality is observed. Otherwise, it is infringed.
As a result, the prime minister himself is required to act within the scope of his constitutional and statutory authorization. In other words, he could not go beyond the constitutional and statutory authorization.
Therefore, the prime minister cannot, absent a statutory provision expressly granting him award power and delimiting its scope, award Medals, Prizes, and Gifts. If the prime minister doesn’t have the authority to award medals, prizes, and gifts, who else may possess the mandate to award medals, prizes, and gifts under the Constitution and subordinate laws?
As per article 71(5) of the FDRE Constitution, the incumbent president of the country has the constitutional power to grant medals, prizes, and gifts both to any member of the National Armed Forces and civilian. When we read article 71(5) and 74(12) of the FDRE Constitution jointly, it is clear the president has the exclusive constitutional power to grant medals, prizes, and gifts, while the premier has the authority to nominate and submit candidates for the award medals, prizes, and gifts to the president.
Even if he has the power to award medals, prizes, and gifts, he cannot give medals, prizes, and gifts under his pleasure. To put differently, he is under constitutional and legal obligation to award medals, prizes, and gifts in accordance with the conditions and procedures established by law.
Remember that the president cannot award, on his own motion, any medal, prize, and gift. Rather, he can award any medals, prizes, and gifts on the initiation of the prime minister through recommendation of candidates for the award medals, prizes, and gifts.
Next, we will consider whether the prime minister action, with regard to the shape and content of the Medal given to the former first lady, is against secularism/neutrality principle. Under the FDRE Constitution, State and religion are separate and there shall no state religion4. This neutrality clause requires the government to minimize the extent to which it either encourages or discourages religious belief or disbelief, practice or non-practice or observance or non-observance.
As a result, the government should be secular, as much as possible; religion should be entirely in the private realm of society. Hence, there should be a wall separating state and religion. On the other hand, the prime minister awarded Cross Medal to the former first lady; cross is the best known symbol of Christianity. To put in a different way, he has awarded Cross Medal to the ex- first lady. Now the question is whether the current prime minister action in this regards is against secularism/neutrality principle in the FDRE Constitution.
As noted above, the FDRE Constitution 5 says that the government must be neutral toward religion; that is, government cannot favor or endorse religion over secularism or one religion over others. But how do we measure whether the current prime minister action in this regard is against separation/ neutrality fundamental principle in the FDRE Constitution?
Several US Supreme Court justices have advanced a “symbolic endorsement test” in evaluating the neutrality of a government’s action 6. Under this approach, the government violates the secularism principle if it symbolically endorses or favors a particular religion or if it generally endorses either religion or secularism.
The “symbolic endorsement or favor of a particular religion exists if a reasonable person would perceive government support for religion. An informed member of the community will know how the cross in question has been used in the past. The government’s operation of a public forum has the effect of endorsing a particular religion, even if the government actor neither intends nor actively encourages that result, the secularism clause is violated.
The reasonable public official and observer must be deemed aware of the history and context of the community and forum in which the religious object appears and the general history of the place in which the cross is displayed. Any reasonable person will ask the overarching purpose of awarding Cross Medal of Honor to the former first lady when he sees it.
In other words, he may question: Is the cross used in the Medal just for its ornamental value/decoration? Or is it used for religious symbol either? Based on this standard, it seems to me that it is used as a symbol of Christianity. The purpose seemingly is an explicit or implicit backing or favoring of Christianity over others. No doubt it is used on purpose, having regarded the design of the Medal given to the former premier and its historical context, among others.
The Medal of Honor given to the former premier awarded did not have Cross in it. Consequently, any reasonable person may regard it as an endorsement of Christianity. So, Cross Medal must not be awarded medal because the reasonable observer would perceive it as an endorsement of Christianity. Otherwise, secularism is compromised.
Also, we must see it from the perspective of the perceptions of the peoples of the country. The “symbolic endorsement of a particular religion test should look to the perceptions of the peoples of the country with regard to the Cross. Many may assume that cross is a Christian symbol and peoples wearing it as a symbol/manifestation of Christianity. Cross is seen as a representation of the instrument of the crucifixion of Jesus, especially in Ethiopia. It is used not just for its ornamental value, but also with religious significance.
One can say that it is almost wholly used as a symbol of Christianity in Ethiopia, especially for orthodox Christianity. Many today, see it as a symbol of Christianity in Ethiopia. As a result, Christians often make the sign of the cross upon themselves. As a result, cross has become an integral part of Christians’ lifestyle.
Furthermore, the dinner ceremony was held at the National palace. Among others, various State Televisions and Radios were also repetitively broadcasted the ceremony. The religion of both the awardees and the awarder is Christianity. Ministers, regional state presidents, other higher government officials, ambassadors of different embassies and representatives of international organizations, religious leaders, and other invited guests as well as palace employees and officials have attended the farewell ceremony held at the National palace.
Having regarded these circumstances, it is symbolic favor of Christianity. The inclusion of the cross in the medal in very visible way obviously will send a clear message that religion or a particular religion belief or practice is favored, preferred, or right. Many may considered it as a symbolic endorsement/support or favoring of Christianity over others, and thereby he has infringed the secularism fundamental principle under the FDRE Constitution.
It would make those who are not part of the favored religion feel unwelcome. The prime minister should be aware of the likely perceptions of and reactions to his conduct in advance. Therefore, awarding Cross Medal, within the context of its history, usage, and Ethiopian society, is unconstitutional.
Let me say finally something about the merits of the recognitions in short. As to Hailemariam Desalegn, the new prime minister tried to portray the ex- premier as ‘innocent leader’ from corruption during his premiership. Dr. Abiy also praised Hailemariam Desalegn for the sustenance of the remarkable broad based economic growth that Ethiopia has witnessed for the last two decades. He said that Hailemariam is an exemplary leader for Ethiopia and Africa for his anti-corruption behavior.
Therefore, the Medal was awarded to the former premier seemingly both for his voluntary resignation from his office and for his alleged innocence from corruption during his premiership. With regard to the first reason for the recognition, how resignation could be an achievement in the political leadership?
Resignation from public responsibility could not be an achievement in the political leadership. It is not an achievement, rather failure. He himself would not deny this. Being corruption free political leader, even if it is true, could not be considered as an excellence. Let me justify the improperness of the recognition by way of a question: how short of a month serving premier measure the success of the former premier Hailemariam Desalegn?
As to Roman, it is said that the recognition was given both for her contribution in the social sector and for her contribution to the success of the former premier Hailemariam Desalegn. But there are no instances and proof that shows both her contribution in the social sector and to the success of the former premier Hailemariam Desalegn. The premier didn’t mention at least an instance of her contribution in the social sector. Since Hailemariam Desalegn was not successful during his premiership, moreover, it is impossible to say that she has contributed for his success. Thus, the recognition does not hold water.
Anyways, the recognition or honor award does not confer impunity/immunity privilege, from any legal liability, to both of them. Hence, they might face legal justice though they have been awarded Medals of Honor by the incumbent prime minister, if any.
Besides, a lot of government money spends for this inappropriate farewell dinner ceremony organized by the incumbent premier, even if he has officially instructed government officials not to use public resources extravagantly. To put it in a different way, the public resources seemingly were not used for the benefit of the general public of Ethiopia and in discharge of the responsibilities attendant to the office of the incumbent as well as in accordance with the budget of the office in question. So, these conducts of the public officer in question were seemingly abuse of incumbency.
In conclusion, the prime minister has awarded the medals without having authority under the FDRE Constitution and other relevant laws. In other words, he has awarded the Medals and Diplomas of Honor in contravention of the FDRE Constitution and other pertinent legislations.
Apart from this, the prime minister has also violated one of the fundamental principles of the FDRE Constitution, which is separation of state and religion, by awarding Cross Medal. The FDRE Constitution states that all citizens, organs of state, political organizations, other associations, as well as their officials have the duty to ensure the observance of the Constitution and to obey it7. Since organs of state and their officials have the duty to ensure the observance of the Constitution and to obey it, these actions of the government actor in question were official misconducts. Abuse of incumbency is the illegitimate or illegal use of public resources or powers for primarily partisan/private ends. Note that any public official is accountable for any failure in official duties.
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1/ FDER Constitution, article 11(2).
2/ The FDRE Defense Forces Proclamation No 809/2013.
3/ FDRE Constitution, articles 71(5) and 74(10).
4/ FDRE Constitution, article 11.
5/ FDRE Constitution, article 11(2).
6/ Erwin Chemerinsky, Constitutional Law: principles and Policies( Aspen publishers, third ed., 2006)pp.1189
7/ FDRE Constitution, article 9(2).
8/ FDRE Constitution, Article 9(2).
9/ FDRE Constitution, article 12(2)
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