Creating a Constitution for Eritrea

Bereket Habte Selassie

In May 1991, Eritrea achieved victory in its 30-year armed struggle against domination by Ethiopia. With the end of Ethiopian military occupation that spring, the Eritrean People's Liberation Front (EPLF) created a provisional government pending formal independence, which came two years later. The delay came at the insistence of the EPLF leadership, which wanted to hold an internationally observed referendum. The leadership was confident that the people would freely choose independence and thus show a hitherto skeptical or indifferent world that the independence struggle had full popular backing.

The result of the referendum of 23-25 April 1993 fully justified this confidence. In voting certified as fair by a UN observer mission, a 99.8 percent majority opted for full independence. Soon after, Eritrea became a UN member. Then there began a transition that culminated on 23 May 1997, when the Constituent Assembly ratified a new Constitution. This act capped three years of intense public debate and consultation, much of it overseen by the 50-member Constitutional Commission that was appointed, with myself as chairman, in March 1994. [End Page 164]

A law enacted soon after the gaining of military victory charged the government with the responsibility of "preparing and laying the foundation for a democratic system of government," and called on the National Assembly (the transitional parliament) to create a constitutional commission "comprising experts and other citizens of proven ability to make a contribution to the process of constitution making . . . [by] drafting a constitution and organizing popular participation in such a process."

Among the other laws that the government passed in order to display its commitment to democracy and constitutional rule, one of the most important provided for the establishment of regional governments. Moreover, the EPLF party congress that in February 1994 renamed the movement the People's Front for Democracy and Justice (PFDJ) also adopted a National Charter that clearly and precisely expressed a commitment to democratic and constitutional ideals. The Constitutional Commission used this Charter as a benchmark of consensus and hence a point of departure for national debate on the constitution.

The work of the Commission was guided by a ten-member Executive Committee (drawn from the larger membership), also under my chairmanship. Commission members represented a cross-section of Eritrean society, including 21 women, the majority of whom had been liberation fighters. Each of Eritrea's nine ethnic groups was represented, as were the business and professional communities. The Commission's mandate was to run for three years, and its work was divided into a logistical phase (which occupied the rest of 1994), followed by three substantive phases. The law called for the draft produced by the Commission to be subjected to parliamentary approval, after which there would be further public debate on the approved draft. In the second phase, the Commission would prepare a final draft, taking into account public opinion where deemed necessary. In the third phase, this last draft was then to go to parliament and, through it, finally, to a Constituent Assembly representing the nation at large.

The Eritrean Experience

After setting up offices, raising money, and holding introductory seminars, the Commission began its substantive operations by compiling a list of 23 questions, the most important of which may be summarized as follows:

1. What lessons, if any, do historical experiences offer?

2. Do such experiences yield helpful models or guidelines?

3. Is it desirable, or practicable, to use models: are they transferable like some technology?

4. What are the values and goals that a nation needs most [End Page 165] emphatically to promote and protect? Should these be incorporated in the constitution, and if so, how?

5. What form of government would be best suited for Eritrea?

6. What degree of centralization should there be?

7. Should there be an official language, or languages? If so, which ones should be chosen, and why?

There were also some more specific questions, pertaining to such technicalities as the length of the document and the degree of detail needed in the section on human rights. The Commission reached a consensus at the outset that it should not rely on any ready-made model, but rather should take stock of Eritrea's own particular history and needs. It designed and organized its research and public consultation activities on that basis and on the basis of its statutory mandate to organize and conduct wide-ranging public debates. The Commission held the process--the means--to be as important as, if not more important than, the end. For the means shapes the end.

The basic idea was to involve the public in the act of constitutional creation, while at the same time adopting and adapting universally applied institutions and values. The underlying conviction was that Africans know what they want, and what will work for them. In effect, Africans are saying: "We reject blind imitation, but there is no need to reinvent the wheel." The Eritrean experience exemplifies this new politics, as do the similar experiences in Ethiopia and Uganda.

Like most African countries, Eritrea is a creation of colonial history. In precolonial times, the territory was known by various names, experienced different systems of government, and was subject to population migrations that led to the intermingling of different cultures, including influences from ancient Greece and Egypt. Orthodox Christianity, centered around the city of Axum, has been present since the fourth century. Three centuries later came the rise of Islam. In Eritrea, the two religions generally coexisted in remarkable harmony, though at times there was strife, often driven by outside powers such as the Ottoman Turks or the nineteenth-century Egyptian ruler Khedive Ismail.

Italian rule, beginning in 1890, introduced a typical colonial system of government in which the indigenes had no say. After the failure of its early attempts to suppress native laws and institutions, the colonial state contented itself with simply superimposing its own laws, leaving the traditional institutions intact.

Then came the Second World War, which cost Italy its African possessions. The victorious Allies (later replaced by the newly established United Nations) decided the future of Libya and Somalia with comparative ease. The territorial ambitions of Ethiopia's Emperor Haile Selassie, however, made Eritrea's future more contentious, and the Eritrean people's right to self-determination was sacrificed on the [End Page 166] altar of Cold War politics. Haile Selassie's claim to Eritrea converged with U.S. foreign policy, which strove to keep Soviet influence out of strategic regions like the Horn of Africa by cultivating local allies such as Haile Selassie.

In 1950, a U.S.-sponsored UN resolution joined Eritrea with Ethiopia in a lopsided federal arrangement under which Eritrea was given local autonomy short of sovereignty. Haile Selassie gradually destroyed even this limited autonomy. In November 1962, he abolished the federation, declared Eritrea the fourteenth province of Ethiopia, and sent in an army of occupation. A year earlier, an Eritrean liberation group had begun an armed struggle that was to last 30 years. During its final two decades, this war came to encompass a sweeping social revolution that would turn out to be perhaps its most important legacy, with notable achievements in such areas as women's equality, human rights, social justice, and democracy.

Values acquired during the long armed struggle critically influenced the process of constitution making. As public debate made clear, Eritreans see the constitution as fulfilling their liberation struggle, and thus as helping to vindicate the enormous sacrifices involved.

Eritrea's decision to create a constitutional commission charged with organizing public debate as well as taking expert opinion into account placed an unusually heavy emphasis on the direct and active involvement of the public during the drafting phase. In standard models of constitution-making, this first phase has usually been dominated by a constitutional convention (often meeting under conditions of secrecy or quasi-secrecy, as did the framers of the U.S. Constitution in Philadelphia in 1787), or else by a specially appointed committee of the legislature (as in the so-called Westminster model). For this newer approach to work, three principal requisites must be in place:

1. A government committed to the ideal of constitutional democracy.

2. A public aware of this ideal and willing to play a role in its attainment.

3. A body with a clear legal mandate freely to solicit public views via widely held debates and other forms of popular consultation, views which it must then seriously consider when drafting the constitution. Needless to say, the members of this body must be selected not only on grounds of religious, ethnic, or regional representativeness, but also on those of professional competence.

Preparing the Public

Organizing debate on the most fundamental political options facing an entire society is far more than a technical or logistical matter. It involves issues of substance concerning the most appropriate literature to be translated and distributed, and the best way of communicating [End Page 167] essential ideas about democracy and constitutional rule. Much attention was paid to preparing the public to make the fullest and best-informed contribution possible. An equal emphasis was placed on the need to record, collate, and eventually analyze the views that emerged during the public debate. This step had a twofold importance, for not only might such views be used in drafting the constitution, but the very act of keeping track of them gave people a sense that they had a proprietary stake in the constitution.

One of the primary difficulties to be overcome was Eritrea's low literacy rate (about 20 percent), which required the extensive use of nonprinted means of communication. These included songs, poetry or short-story recitals, and plays in the various Eritrean vernaculars. Artists and writers were invited to compete in such efforts. A great deal of money, skill, and other resources went toward this end, with generally satisfactory results. Radio was a huge help. Public seminars, debates, mobile theaters, and the like were employed to enhance popular awareness of the fundamentals of constitutional democracy, including citizens' rights and duties, the scope and limits of government, and government's responsibilities to citizens.

The Commission's substantive efforts began with a well-attended international symposium in January 1995. This was followed by a civic-education campaign in which Commission members and more than four hundred specially trained teachers instructed the public on constitutional issues and related political and social questions. In addition to the nonprinted media mentioned above, the Commission prepared pamphlets and translated into local vernaculars several international legal instruments, including the Universal Declaration of Human Rights and the 1966 International Covenants on Civil and Political Rights and on Social, Economic, and Cultural Rights. The civic-education campaign reached more than half a million people (out of a total population of about 4.5 million), and proved crucial in rallying public opinion behind the constitution-making process.

By the summer of 1995, the Commission was ready to disseminate a set of proposals that served to focus attention on and clarify the most important issues. From September to December of that year, extensive public debates about these proposals went forward. At the end of the year, the Commission collected and analyzed the questions raised and the opinions expressed and sat down to write the first draft of the constitution. Parliament approved this draft with a few amendments, and further public debate ensued in late 1996 and early 1997. The final phase--presentation of the draft to the appropriate bodies as explained above--culminated in the Constituent Assembly's May 1997 ratifica-tion vote.

At the outset, the Commission divided its research work among four ad hoc committees (plus a standing committee on civic education and [End Page 168] public debate) acting under the general guidance and supervision of the Executive Committee. The research committees--on Governmental Institutions and Human Rights; Economics; Social and Cultural Affairs; and Governance and Related Issues--were mandated to establish subcommittees and to solicit the views and research assis-tance of experts in general, and of Eritrean professionals in particular.

At the end of the first substantive phase, it was decided to combine the four research committees into one and to concentrate on producing issue papers on the basis of previous research, the results of the civic-education seminars, and the international symposium. Also during this period, the issue-by-issue discussion strategy was replaced by an approach that aggregated the issues into major questions. Issue papers, however, still dealt with individual topics such as legislative, executive, and judicial powers; electoral systems; decentralization; fundamental rights and freedoms; social, economic, and cultural rights; and guarantees of equality.

Among the goals of these efforts, which would prove crucial to the success of the public debate, were those of distilling the vital issues to their essentials and framing them in a way that the average citizen could readily grasp. The proposals prepared for discussion thus reflected not only the research committees' sophisticated and careful work, but also the larger Commission's overall focus on concision and accessibility.

Staffing the Commission

Although the very fact of its appointment by the National Assembly could be said to have lent the Commission presumptive legitimacy, in a society with many ethnic groups and a population more or less equally divided between Christians and Muslims, these factors had to be taken into account. Wisely, the Assembly did create a well-balanced, representative Commission. The majority of the members shared a common background as veterans of the liberation fight, but also constituted a fair mix of Eritrea's ethnic groups, religious persuasions, and professions (including lawyers, social workers, teachers, and businesspeople).

The logic of setting up a commission to draft a constitution implies that decisions about what constitutional principles to incorporate must, in the first instance, be left to the commission to determine. Yet there are matters regarding which the legitimate political authorities, even if they must take the views of the public and of experts into account, may reasonably retain the last word. For instance, whether a constitution designed to serve a polyglot society such as Eritrea's should declare an official language is a question that must ultimately be determined by political leaders. Even then, however, the commission plays a critical [End Page 169] role by sounding out the views of the public and of experts, as well as assessing the political and cultural implications of each of the various options. Here an ethnolinguistically balanced commission is obviously a plus.

As to the central principles concerning the rights and duties of citizens and the powers and responsibilities of government, the commission's word should prevail. Assuming that it is adequately representative and possesses the requisite legal expertise, the commission should enjoy complete autonomy not only in the management of the process, but also in initially determining the contents of the constitution, as happened in Eritrea.

I can testify firsthand that the political authorities in Eritrea not only cooperated to the utmost in making the Constitutional Commission's task easier, but also respected the autonomy of the Commission and the integrity of the process from beginning to end. Setting the example, President Isaias Afwerki offered no comments and raised no questions concerning the Commission's work before 9 June 1996--more than two years into the process--when two of my fellow commissioners and I appeared before the National Assembly to explain or defend some of the draft constitution's more controversial aspects. On that occasion, the president was at pains to point out that the Assembly did not want the Commission to feel that its positions were being ignored or misunderstood. Every indication is that the president and his administration viewed the Commission with great respect and appreciated the work that it was doing.

The Dialectic of Process and Substance

As the Commission set about its task of constitution making, it found itself confronting two related sets of questions. The first concerned the values and goals that Eritrean society as a whole sought to promote and attain, and which therefore had to be embodied in its constitution; the second concerned the issues that had to be debated and resolved before the constitution could be completed.

A sufficient answer to the first set of questions could be found in the PFDJ Charter, which sets forth the five major national goals--stability and national unity, democracy, economic development, human rights, and social justice--that the Commission took as the starting point for the public debate that began in May 1994 and lasted until ratification.

No argument as to the validity of these fundamental goals and values was needed, as the course of the debate both at home and among Eritreans living abroad readily confirmed the initial assumption that there was already a national consensus behind them. Clearly, a civil order cannot be viable without a broadly agreed-upon framework of goals and values, and the constitution is the principal instrument for [End Page 170] expressing them. Without a reasonable degree of stability and national unity, moreover, there can be no civil order--as the tragic recent histories of Somalia, Liberia, and Rwanda all attest. Nor can there be serious dispute about the critical links among democracy, economic development, human rights, and social justice.

The substantive issues raised during the debates included: 1) the type and structure of government; 2) the electoral system; 3) decentralization; 4) religion and the state; 5) the advisability of designating an official language; 6) judicial independence and human rights; 7) political pluralism; 8) the rights of women; 9) the Constitution and customary and shari'a law; 10) the military and security services; and 11) term limits. On some of these questions, the Commission had prepared papers, as mentioned above, and eventually turned these into concrete proposals to be submitted for public discussion.

With respect to the type and structure of government, there was heated debate about the relative merits of a presidential versus a parliamentary system. The Commission eventually adopted a system with features chosen from both presidentialism and parliamentarism; the controlling idea was to select whatever seemed most relevant to Ertirea's own particular needs and circumstances. Thus executive power is vested in a president who is required to exercise it "in consultation with" a Council of Ministers. Parliament chooses the president, who must be an elected MP and remains subject to parliamentary impeachment. The president is head of state as well as chief of the government. The president nominates ministers, subject to parliamentary confirmation. Ministers are individually responsible to the president for the performance of their duties, and collectively responsible to the president as head of state (and through him, to parliament). They can also be called before parliamentary committees--a provision, borrowed from presidentialism, that is meant to help ensure accountability. Fearing the prospect of instability in government at this crucial stage in Eritrea's young history, the Commission decided against drafting a constitutional provision for a binding no-confidence vote.

Intense debates also went on over the questions of the electoral system, decentralization, and the need for an official language (or languages). The problem of electoral laws was dealt with in a general fashion. It was agreed that the system had to be conducive to the fair representation of all ethnic communities, but details were left to future electoral legislation. Federalism was considered but rejected in favor of a centralized system that would accommodate regional governments; these latter would share certain powers with the national government. Eritrea's small size and comparatively well-integrated population seem to favor such an option. Despite some sentiment for the designation of Tigrigna and Arabic as national languages, the [End Page 171] Commission declared the principle of the equality of languages. It is understood, however, that future needs may dictate the adoption of a national language or languages for use in certain contexts, and the door has been left open to such pragmatic adjustments. The relationship between religion and the state aroused less controversy, though it did come up constantly. Here, there was a basic two-part consensus. Citizens widely agreed that: 1) freedom of religion is an essential human right, and 2) religious and political authority must be separated. Certainly, such a consensus is vital in a society about equally divided between Christians and Muslims.

Throughout, participants gave every sign of being motivated by their views of what would be best for the nation rather than by parochial interests. A notable disagreement over the type of government divided the Eritrean diaspora, with those living in the United States tending to favor a presidential system and their counterparts residing in Europe leaning toward parliamentarism.

Maximum Popular Participation

The Commission's major aim was to elicit maximum public participation, with expert consultation playing a supporting role. The emphasis on extensive--and intensive--public debate flowed from the conviction that such a process would instill in the public a sense of ownership of their future constitution. The reverse of this is the Lancaster House model, named for the site in London where British experts negotiated and wrote constitutions for some of Britain's former African colonies. The public had no voice in those deliberations. In the course of Eritrea's public constitutional debates, constant reference was made to this deeply flawed model. Indeed, the exclusion of the public from such a process, as from other processes of decision making, represents an important aspect of the "false start" that has dogged so many of the troubled states of postcolonial Africa. The Commission hammered on this point so as to be sure that Eritreans knew the historic nature of the process upon which they had embarked, and the importance of their active participation in it.

Reasons both historical and theoretical explain the Eritrean government's commitment--at once urgently necessary and eminently practicable--to maximum popular participation. The active participation of its people had provided Eritrea with a winning edge in its lonely and often seemingly hopeless national-liberation struggle against an economically, diplomatically, and militarily superior foe. The high turnout for the April 1993 independence referendum consummated the military victory and enhanced the public's role in determining its own fate. That historic event proved to the international community that Eritrea had triumphed not merely through the skill, tenacity, and [End Page 172] resilience of its armed fighters, but above all through reliance on the people.

Popular participation in such historical processes relies on the inherent wisdom of encouraging and organizing the people to be involved in decisions that affect their lives. This makes sense theoretically, and conforms to universal principles of democracy. It also accords with local circumstances in Eritrea, chief among them being the country's historic system of village democracy, in which communities have governed themselves through periodically elected assemblies. Village democracy forms part of the core of Eritrean customary law and practice. It was preserved, rationalized, and utilized during the period of the independence struggle, with remarkable results.

The new approach to constitution making exemplified by the Eritrean experience is superior to the other, more secretive, "top-down" methods mentioned above. Appointing an independent but fairly representative commission to organize and manage public participation in constitution making is more democratic than having a convention or parliamentary committee do the drafting behind closed doors. One can quibble about details, but it remains true that people who have been consulted to the greatest extent possible in the framing of the basic law under which they will live are likely to have a stronger sense of political belonging than would otherwise be the case. By the same token, the constitutional order that results from such a framing process is likely to enjoy greater legitimacy.

It can fairly be claimed that the Eritrean Constitutional Commission's faith in the extent and quality of the public's involvement was amply vindicated. The public's initial diffidence, so apparent during the spring and summer of 1994, gradually gave way to more vigorous and candid involvement. By the summer and autumn of 1995, the distribution of the Commission's proposals enabled the public to be more focused, to raise questions, air their views, and express their concerns on a range of issues.

The principle of constitutionalism is to bind both the government and the governed. The Commission preached the gospel of constitutionalism unabashedly, explaining that the concept implies the reign of reason and of the rule of law, according to which people are not mere objects, but rather active subjects with rights and duties. The Commission exhorted citizens to have faith in themselves as agents of history and not merely passive recipients of commands. The public response was astounding. Although the people of Eritrea must not rest on their laurels, they can take pride in their achievement.

It should also be remembered that Eritrea succeeded despite having suffered enormous losses from the war, including the death or exodus of many of its best-educated and most active citizens. All branches of [End Page 173] the government, as well as society at large, are still feeling the impact of this loss. The Commission augmented the trained and experienced manpower at its disposal by tapping into all available national human resources. The establishment of the two Boards of Advisors and of ad hoc subcommittees helped in meeting the challenge. Happily, the Commission experienced no major problems in terms of equipment or facilities. Its preparations were sound, and featured well-defined objectives, as well as budget estimates drawn up in advance for submission to international donors.

With regard to the collection and analysis of data, the main concern was to make full and accurate records of all meetings. The outcome of these efforts are the masses of documents now housed in the Center for Research and Documentation in the capital city of Asmara. These will be of great interest to future researchers.

It is one thing to write a good constitution; it is quite another to secure the future of constitutional rule. Looking ahead, what are the prospects for the successful application of Eritrea's new Constitution? How close to the promise will the performance be?

As the Constitutional Commission of Eritrea saw it, in order to be effective, a constitution must reflect present realities as well as be mindful of future developments; it must provide for the institutions that give it life and force, and for groups with the will and the ability to defend and enforce it. The Constitution of Eritrea does all this. But a constitution is only a framework, however crucial. Great challenges lie ahead. It will be necessary to nurture the growth of the institutions needed to put meat on the bare bones of the constitution and make it a living force. Needless to say, vibrant civic institutions will also prove crucial to this process.

The recent history of Africa shows the crying need for a balance between state construction and nation building, between the state and civil society. Ideally, the two should go hand in hand, with neither being allowed to wax great while the other wanes. Constitution makers must recognize and act on this need for balance, realizing that each nation must work out its own formula, even as they glean the experiences of other nations for helpful lessons. The work does not end with the adoption of a constitution, of course, and much of the future responsibility will fall upon the shoulders of legislators and judges.

The Constitution is expected to come into force in the summer of 1998. The exact date has been left open so that the government can "clear the decks" by reviewing, and if need be, repealing, laws that conflict with the Constitution. The government has also appointed a committee to draft an electoral law. Once the Constitution is promulgated, a general election will be held, and the people of Eritrea will begin living under the political institutions that they have been so actively involved in creating.

Bereket Habte Selassie served as chairman of the Eritrean Constitutional Commission from 1994 to 1997. A native of Eritrea, he is William E. Leuchtenberg Professor of African Studies at the University of North Carolina, Chapel Hill. His books include Conflict and Intervention in the Horn of Africa (1980) and Eritrea and the United Nations (1988).

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