Legal Instrumentalism: Critical Analysis of the Ethiopian Constitution

Abstract

The Ethiopian People Revolutionary Democratic Front which overthrew the Socialist regime of Ethiopia played a leading role in drafting the Constitution of the Federal Democratic Republic of Ethiopia, in 1995. This Constitution has followed ethnic federalism for the division of political power among ethnic groups. The principle used for the division of power has been alleged as an insulation of political interest in the Constitution which has led the country into conflicts and chaotic situation instead of maintaining unity and peace which might be expected from the normal purpose of law.  This raises a concern whether the Constitution is an instrumental to protect group interest of the ruling elites or not.

The objective of this essay is to examine whether the Constitution has been instrumental to protect the ideological interest of few groups contrary to the public. In this regard, it analyzes the founding theory of legal instrumentalism; i.e. whether the traditional positivist school conception of law goes in line with the grand purpose of law. For this purpose, the work examines the sufficiency or insufficiency of ‘command doctrine' of the positivist school. Consequently, the work is limited to theoretical exposition of legal instrumentalism at higher level focusing on the Constitution.

Legal instrumentalism here refers to using law as a means for politically driven interest contrary to public. Issues that have been raised and treated are: - How law is different from politics? Shall a law serve to an instrument of domination? Shall it reflect the will of society or will of the ruling class?

Having analyzed and other related matters, a conclusion has been reached on the instrumentality of Constitution in the sense that the division of power based on the principle of ethnicity which led the country into conflicts and chaotic situation. In this regard, the Constitution has caused division and conflict in the political community of the country instead of peace, unity and harmony; inequality and discrimination instead of fairness and justice; arbitrary assignment of power instead of following principles and standards; and closure of doors for remedies instead of providing settling controversies and conflicts. The basic question is why it promotes differences instead of unity in the country?  The answer is quite clear and simple. The ruling elites deliberately rendered the country divided so that in the absence of unity they satisfied their unlimited greed for power and material interest.  In this regard, corruption is rampant in Ethiopia in the absence of check and balance due to inefficient institutions. Monopolization of power by a single party for twenty-eight years is another example that shows unlimited greed for power by wining hundred percent parliamentary seats in 2015 election.