CONSTITUTION is a body or document of fundamental laws and principles according to which a political state is governed. It includes interpretations of the document and legislation by the judiciary in deciding cases, by the legislation in acting status, by the executive in handing orders and by all the citizens in so far as customs become generally accepted. A typical constitutional document begins with preamble setting forth of the aims and purposes of the constitution and the government it establishes.
Preamble is the constitution’s reason d’être. The framers of the constitution, in other words the founding citizens, are amongst the best mind of the people. A constitution is not handed down by a god or by a king; it should be created by the people. The framers are expected to feel the feel of the people: what they think about their livelihood, their land, their property, their right, faith, community, and cooperation, rule of law, social justice and security.
Having constitution or conducting national election does not always mean one nation or certain organization is democratic. It is the process and implementation which shade light to enable someone to determine whether the system is democratic or superficial.
THE ERITREAN CONSTITUTION OF 1952
The Eritrean constitution of 1952 is crafted to suite the federation of the state of Eritrea and the Imperial government of Ethiopia. The framers of this constitution were appointed by the UN who were mostly British, some Eritreans and Ethiopians and from other nations. This constitution was approved by the Eritrean assembly and ratified by the Emperor of Ethiopia. This constitution was implemented in the country for some time with a lot of obstacles.
The constitution of 1952 has 99 articles. 19 articles are about the concern of the Imperial Government of Ethiopia that is implementation of the Federal Act. Most of the other articles are okay but some are out dated especially article 20 quote:
The electorate shall consist of those persons
Possessing Eritrean citizenship who:
- Are of male sex;
- Have attained the age of twenty-one years;
- Are under no legal disability as defined by the law, and;
- Have been resident for one year preceding the election in the constituency where they shall vote."
In my opinion this constitution cannot be amended and implemented in the country for the following reasons:
- This constitution was imposed upon the Eritrean people.
- Those who draft the constitution the framers or founders were not the individuals who feel the feel of Eritreans.
- This constitution was not the vision of Eritreans, but the vision of the UN.
When I say the above statement, I am not denying that this constitution is historical document and can be used for reference and we can learn a lot from it.
THE ERITREAN CONSTITUTION OF 1997
The constitution of 1997 is devised to suite the then EPLF organization in mind, the PFDJ regime or political party. Those who participated in drafting the constitution about two third were EPLF cadres, some opportunist ELF leaders, others timid Eritreans who were serving colonial Ethiopian government to the day until the freedom of Eritrea while others were Diaspora Eritrean intellectuals who were feeling guilt of not participating in the war of armed struggle; and remember these educated Eritrean were only donating few hours of their time. All these framers were handpicked by the dictator Isaias Afwerki. Some of these Eritreans were the brain cream of Eritrea. Dr Bereket Habtesselase, Dr Ghebrehiwet Tesfagergis and the late ELF veteran Azen Yassin and others were the top intellectuals of Eritrea, but were instructed to serve the vision of EPLF. This constitution PFDJ says is ratified by illegitimate parliament or assembly what ever they call it. I say illegitimate because none of them is elected by the people.
There are 59 articles in the 1997 ratified but not implemented constitution. I have serious if not grave concern on some of the articles of this constitution.
Article 4 part 3 reads “The equality of all Eritrean languages is guaranteed.” What does this tell us? This constitution does not recognize official languages of Eritrea. The framers did not feel the feel of Eritreans and did not care of the objective reality of the Eritrean field or the need of the people, but only fulfilled the whim of PFDJ.
There is a concern with article 8 part and article 19 deliberately omits multi-party democracy.
Article 23 is the worst part of this constitution. Section two of article 23 says quote “All land and all natural resources below and above the surface of the territory of Eritrea belong to the state. The interests citizens shall have in land shall be determined by law.”
If you read article 41 and article 52 section 1,2,3 you clearly see that the president of Eritrea is the head of the assembly, the executive and the judiciary. It looks it is deliberately designed to avoid check and balance in government. It is hard to figure out that whether this constitution is based on parliamentarian or presidential principles.
In my opinion a lot of effort and a lot of intellectual thought has been put to draft this constitution but:
- This constitution satisfied the vision of EPLF/PFDJ rather than the vision of the Eritrean people.
- This constitution deliberately blurred political democratic principles.
- A constitution shelved by its owner cannot be a document of unity.
This document has some valuable points and is worth to use it as reference.
THE DRAFT CONSTITUATION OF THE ENCDC FOR 2011
This constitution being drafted or already drafted is just to keep people busy with no meaningful reason for doing it. No body knows who is doing, how qualified they are for that task and who do they represent, that is, which community of the Eritrean society. They are drafting it in the Diaspora with no information from the Eritrean public let alone from the country, but people who live outside the country. They say they have a mandate from the people who attend the Eritrean national conference of 2010 held in Akaki Ethiopia. I attended the conference and I say there was no mandate for drafting a constitution, but:
- To prepare , organize and hold national congress within a year.
- Organize as many Eritreans as possible to participate in this up coming congress.
- Draft a national charter by-laws, road map and transitional strategy for democratic change.
- Device ways and means on how to raise funds for the national congress expenses.
Thus drafting a constitution is a breach of mandate of those conference attendees.
The drafted constitution has 134 articles. These articles luck clarity, conciseness and are redundant. The worst thing is the structure of the government. We start to see this with article 49. Allow me to present you a simple flow chart as given in the articles.
- Presidency council >>> 3 leaders, one chair man, two vices; they are selected, but not elected.
- Prime minister and ministers >>> are appointed by the presidency council.
- Regional Administrators >>> are elect by the region; no body knows how many regions are to be.
- National assembly >>> are elected by the people.
- Judiciary >>> are appointed by the presidency council
Fellow Eritreans articles 49-116 are so confusing to understand that I had to look somewhere else to find out if this document is adopted from somewhere and is screwed up in translation. Indeed after a long Google search I come up with
“LAW OF ADMINISTRATION FOR THE STATE OF IRAQ FOR THE TRANSITIONAL PERIOD--- MARCH 8, 2004.”
I advice every body to read the above Document on Google. After I read the Iraqi document I have no illusion to say to you the so called 2011 ENCDC draft constitution is not drafted but adopted form the Iraqi. The reason the Iraqis had three Presidency council is because of the SHAEA, SUNNI and KURDISH regions. Each region is represented by a council and they chair in rotation of every three months. Why does Eritrea need Presidency council? Are the councils representing religion or region or provinces? Eritreans are not going to let you meddle and mess, this draft should be shelved as draft.
In my opinion:
• This document has no framers, but adopters.
• This document is alien that has nothing to do with the culture, history and social make up of the Eritrean people
• This document has no merit to be used as reference in the Eritrean society.
• This document denies the political right of the Eritrean people that says only the people writes their own constitution.
There are Eritrean lawyers association I presume and I think it is one of your responsibilities to read this document and guide the people on how to deal with it.
Fellow Eritreans please read this document and do what you think is right. I can e-mail you as attachment the 1952, 1997, and the 2011 if you don’t have them or you cannot get them in the Eritrean web-sites.
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Glory to our martyrs