By Carolyn Hill, Juris Doctor Candidate (2015), Northwestern University School of Law
Melaku Fenta, the former director general of the Ethiopian Revenues and Customs Authority, and a number of other government officials have been on trial for corruption charges before the Ethiopian Federal High Court’s Criminal Bench since May 2013. In addition to the standard legal questions implicit in a high-profile grift trial, the Fenta case has given rise to an important constitutional question. In Ethiopia’s Constitution, constitutional review powers are vested not judicially, as they are in many other countries, but legislatively. The High Court, uncertain of the constitutionality of two provisions, sought clarity from the responsible legislative body. However, the Court’s referral to the legislative body has come under fire from some Ethiopian pundits. This post examines both the practice of non-judicial review in general and the Fenta case specifically.
When an issue of a constitutional magnitude arises in a case, the court may seek constitutional clarity from the House of Federation, the upper house of Ethiopia’s parliament, as required by Article 83 of the 1995 Ethiopian Constitution. To receive a determination on a constitutional question from the House of Federation, a court first refers its constitutional question to the Council of Constitutional Inquiry (CCI), which includes members of Ethiopia’s Federal Supreme Court, members of the legal community, and legislators. The CCI then makes a recommendation to the House of Federation, which then renders a decision on those questions within thirty days.
In the Fenta case, the Federal High Court sought constitutional clarity on whether it or the Federal Supreme Court could have first instance jurisdiction over corruption offenses. The Court was concerned that two statutory provisions that apparently authorized such jurisdiction might violate two constitutional provisions: the right to appeal and the right to equal treatment before the law. The CCI agreed, recommending that the House void the provisions as unconstitutional. The House of Federation did just that, striking down the contested provisions.
However, the incident sparked some controversy in the pages of Addis Fortune. The High Court certified a question to the CCI sua sponte. In early February, the Fortune published an op-ed entitled Unconstitutional Declaration of Constitutionality, which argued that the Court could not constitutionally question the constitutionality of a provision of its own accord. Instead, the author argued, the court should have made an initial determination of its own jurisdiction which then could have been appealed by the aggrieved party. The author relied heavily on Article 84’s text, arguing that a court could only refer “disputes” to the CCI and that “disputes” must be raised by a party, not the court itself. Moreover, the author argued that the constitutional division of powers required that a court only direct a controversy to the legislative branch when “there is a real, actual, vital, and earnest case or controversy.” In short, the author argued that the court did not constitutionally have “authority” to raise the question of constitutionality because a party had not raised it. Furthermore, the author argued that both the CCI and the House of Federation should have rejected the claim as improperly before them.
The op-ed received a few responses, including one from a member of the CCI who was also involved in drafting the constitution. He indicated that the Amharic version of the constitution does not, in fact, use a word meaning “dispute” but rather a word meaning “issue.” Moreover, he argues that “[c]onstitutional interpretation is not about litigation or jurisdiction. It is all about maintaining constitutionalism.” Another commentator argued that courts should, in fact, be active participants in seeking to apply only constitutionally sound laws to the litigants.
Ethiopia is not the only country to rely on non-judicial constitutional interpretation. However, similar constitutional designs are relatively rare and often occur in authoritarian nations, including North Korea, Zimbabwe, and the Congo. Perhaps the most famous examples of non-judicial constitutional review are China and the former Soviet Union. In China, constitutional interpretation is vested in the Standing Committee of the National People’s Congress. Constitutional interpretation is extremely rare, occurring “less than eight times in fifty years.” Instead, constitutional interpretation serves predominantly “to validate the Chinese Communist Party mandates.” In the Soviet Union, the body that declared laws unconstitutional was both nonjudicial and impotent. Although laws were declared unconstitutional, “other government bodies ignored the CCS [Committee on Constitutional Supervision]’s decisions if they were in conflict with socialist doctrine and state power.”
Ethiopia’s system of non-judicial constitutional review has been described as “illusory,” as it provides only the image of rigorous independent constitutional review. Courts have no power to hear constitutional questions; they merely serve to direct such questions to the CCI. This has a number of problems. First, it creates delays, as seen in the Fenta case. More importantly, it means that lower courts cannot serve as judicial laboratories from which an upper court can select the best reasoning. Instead, Ethiopians must hope that the CCI fully analyzes the constitutional issues and presents them thoroughly and convincingly to the House of Federation. Finally, even the CCI only hears cases related to federal and state laws; “no other court has been given jurisdiction” over executive acts or decrees.
The controversy surrounding the Fenta case reflects the thorniness of non-judicial constitutional review. Because Ethiopia has so few predecessors in developing such a process, the House of Federation and the CCI must carefully weigh the concerns raised in Addis Fortune and those described above. There are two possible paths forward: either the House may pass a law giving the courts authority to raise constitutional questions of their own accord or the courts may have a mini-Marbury moment wherein they claim that right. Either way, the Ethiopian courts must, at bare minimum, be granted the authority to flag constitutional questions for review.
 This post excludes a discussion of the Nordic countries, which also largely do not have constitutional courts. Victor Ferreres, The Consequences of Centralizing Constitutional Review in a Special Court: Some Thoughts on Judicial Activism, Seminario en Latinoamerica de Teoria Constitucional y Politica, Paper 39 (2004), http://digitalcommons.law.yale.edu/yls_sela/39. Those countries set forth a “clear mistake” rule, whereby a law may be set aside only if it clearly unconstitutional. Id. Because the Ethiopian Constitution provides for substantial constitutional review, albeit through the legislature rather than the courts, a comparison to these countries would be inappropriate.
 Chi Mgbako, et al., Silencing the Ethiopian Courts: Non-Judicial Constitutional Review and its Impact on Human Rights, 32 Fordham Int’l L. J. 259, 278 (2008).
 Minasse Haile, 20 Suffolk Transnat’l L. Rev. 1, 54 (1996),