Two distinct ideological tendencies were evident during the recent parliamentary debate that set the Revolutionary Democrats against what their chief priest, Prime Minister Meles Zenawi, called liberals, whom he accused of displaying confusion and inconsistency.

While it is hard to get clarity of what exactly Revolutionary Democracy itself is about, Meles accused liberals of blaming his administration for not intervening strongly enough to stem the tide of rising inflation while at the same time calling for total withdrawal of the state from the economy and for the absolute sway of the private sector or the market.

What Meles called liberalism was, however, an undercurrent of the Social Democratic convictions many politicians in the opposition articulated before, during and after the May 2005 elections. The ideological divide is, pretty much, between Revolutionary and social democrats who seem to actually maintain less divergent views on economic policy and the role of the state; but diametrically opposed views when it comes to understanding how the relationship between the federal government and the regional states should be defined in the constitution.

The most interesting debate took place around this question. Behind the arguments of the Revolutionary Democrats, in the person of Prime Minister Meles, lurked serious ideological differences on federalism to which MPs of both the social democrats and even the federalists in Parliament were little prepared for. Meles was trying to engage them in a fundamental ideological debate over federalism the members clearly were not ready for; the Prime Minister ended up sounding like a professor in a classroom.

What provoked his ideological flurry was a simple question from a curious opposition MP on why his administration failed to account for nearly five billion Br transferred to regional states as a federal grant. There is little evidence to believe that the MP from CUDP was being as savvy as to smear ideology into the question. Whatever Mulualem Tarekegn’s intention was in raising the issue of unaccounted grant reported by the Auditor General, this provoked the Prime Minister to pick up a debate centred on whether the federal government should intervene in the affairs of regional governments or whether the latter should be left alone to manage their own business the way they see it convenient.

There is nothing new about this sort of debate. Neither Ethiopia nor Meles are new to ideological debates over federalism, a major principle of government in the United States since its creation 230 years ago. It is a government with three levels: national, state and local. These entities share various forms of power like enumerated power (federal government), reserved power (states) and concurrent power, the latter shared by both, such as imposing taxes.

The battle over how autonomous regional states should be in conducting their business and to what extent the federal power should intervene in their affairs has already been fought. In fact, it is one of the landmark cases in the history of the United States, after the US Supreme Court passed a verdict in 1819 favouring the rights  of the federal government over a state.

In 1791, the first Bank of the United States was established to serve as a central bank for the country. It was a place for storing government funds, collecting taxes, and issuing sound currency. At the time it was created, the government was in its infancy and there was a great deal of debate over exactly how much power the national government should have.

People such as Alexander Hamilton argued for the supremacy of the national government, which would include the ability to establish a bank. Others, such as Thomas Jefferson, advocated states’ rights, limited government, and a stricter interpretation of the national government’s powers under the Constitution and, therefore, no bank. After the War of 1812, President James Madison determined that the country could utilize the services of a national bank to help fulfil its powers as stated in the Constitution. In response to his suggestion, Congress proposed a Second Bank of the United States in 1816.

Many states opposed opening branches of this bank within their boundaries; the State of Maryland being the main one. In an attempt to drive the Baltimore branch of the Bank of the United States out of business, the state’s legislature required that all banks chartered outside of Maryland pay an annual tax of 15,000 dollars. There was a 500 dollars penalty for each violation of this statute. James McCulloch, cashier of the Baltimore branch of the Bank, refused to pay the tax.

The State of Maryland took him to court, arguing that because Maryland was a sovereign state, it had the authority to tax businesses within its borders, and that because the Bank of the United States was one such business, it had to pay the tax. Its attorneys reasoned that because the federal government had the authority to regulate state banks, Maryland could do the same to federal banks. McCulloch was convicted by a Maryland court of violating the tax statute and was fined 2,500 dollars.

McCulloch appealed the decision to the Maryland Court of Appeals. His attorneys asserted that the establishment of a national bank was a “necessary and proper” function of the Congress. They stated that many powers of the government are implied rather than specifically stated in the Constitution. After the Maryland Court of Appeals upheld the original decision against McCulloch, he appealed again.

The case was heard by the Supreme Court of the United States, then headed by Chief Justice John Marshall.

“. . . Although, among the enumerated powers of government, we do not find the word “bank” or “incorporation,” we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies . . . But it may with great reason be contended, that a government, entrusted with such ample powers . . . must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution,” said Marshall, in his verdict.

Over 200 years latter, Americans still debate over the issue.

Here in Ethiopia, portions of the Constitution were bones of contention under various political circumstances in the past, although the issue always appeared to be settled in favour of the Revolutionary Democrats. This was so not only because the Revolutionary Democrats wrote the constitution but also because there is no institution strong and neutral enough that would stay above the ideological divide to play the role of impartial arbitrator, as it is the case in the United States and many other countries.

Whether it is an issue over the relationship between national and regional state or the right to collect value added tax, the disputes are about differences on the interpretations of the constitution. In fact, it is here where the very constitution, which Prime Minister Meles is passionate about, suffers major limitations. 

The Revolutionary Democrats are obviously for greater devolution of power from the federal government to the regional ones. That was the reason why Meles was emotional when he reminded the opposition deputies, in no uncertain terms, that the federal government owed its powers and authority from the regional governments and not the other way round.

The social democrats seem to favour a stronger federal government that would oversee the economic and political behaviour of the regional governments in general and budgetary issues in particular. The question now is whether the Revolutionary Democrats would get away with their arguments or whether they will be challenged outside parliament in the years to come as the debate is bound to intensify until a satisfactory outcome is reached.

Those opposing the Revolutionary Democrats over differences on constitutional interpretation have few places to go to. Certainly, appealing to a court of justice, as it had been the case in McCulloch Vs the State of Maryland, is not an option. Ethiopia’s constitution does not guarantee the establishment of constitutional court or gives this judicial mandate to the Supreme Court.

The Revolutionary Democrats, when they wrote the constitution in the mid 1990s, had felt disputes on the interpretations of the constitution are too important to be left to professionals. They opted for political resolution; thus empowered the House of Federation, a political entity, as the final arbiter on constitutional matters.

The problem is that opposition parties look at the House of Federation not as a neutral body that would prove impartial in such disputes. They look at it as another institution dominated by the ruling party and promoting the ideological and political interests of the Revolutionary Democrats. They are not far from the truth.

The absence of a Constitutional Court in Ethiopia has made the ideological debates often very emotional and left the losing parties without a legal means to follow up and defend their views to the end. This has in turn exacerbated the political differences to the extent of creating crisis situations that threatened the vary fabric of the constitutional order.

Had there been a constitutional court with sufficient independence, neutrality and authority, many disputes that led to conflicts could have been not only averted but also resolved legally and satisfactorily. The absence of a specific article that mandates the establishment and functioning of a constitutional court in this country is a major weakness or loophole in the federal constitution.  It can be remedied.

Constitutional disputes are bound to arise in the future too; it would be useful if they were not dealt with in strict political fashion. The attempt to settle constitutional disputes by political means does not create a consensus based on legal grounds. The creation of a constitutional court in this country would help often bitter ideological disputes not spill over into society and disintegrate into a political crisis.