Today’s guest is Dr. Fasil Nahum. Dr. Fasil was born in Eritrea’s capital Asmara during the British military administration in 1942. After spending ten years there, along with his family members, he came to Ethiopia and started education at Adigrat.
He completed his high school education at Bishoftu and joined Haile Selassie I University (Now Addis Ababa University). Though he was interested to study medicine, there was not a medicine faculty at the time. Hence, he swapped his interest from natural science to social science and studied sematic language and law.
Having various backgrounds, he earned his BA in law and bagging chancellor’s gold medal. After instructing for years in Addis Ababa University, he went to America and earned his MA in law from the University of Yale. He also earned his PhD in Jurisprudence Science. During the three regimes, as a member of the constitution drafting committee, he rendered invaluable services to his country. He was also Instructor at A.A.U. He as well was high counselor to Prime Ministers Meles Zenawi and Hailemariam Desalegn.
He was one of the pioneer fathers in drafting the first constitution. Advising on constitutional issues, he served the country in its march towards embracing democracy. The Ethiopian Herald had a time of togetherness with Dr. Fasil Nahum.
Ethiopian Herald: You were law instructor and a member of the constitution drafting committee, which engagement do you like most?
Dr. Fasil: Both are interconnected. The most important question is how to improve the legal system of the society. Teaching is one way of improving the legal system.Drafting the constitution makes sure the legal system operates properly. So, they are interconnected. When you study law, it is all about how to improve citizens’ life in terms of providing proper justice. While you teach you deal with both professional judges and advocacies and others who are involved in legal system. I have been working on what kind of system is good for this country.
Herald: During the Emperor’s regime there were many foreigners in the legal system. How do you assess the effect of Ethiopianization?
Fasil: After the Second World War the British were in charge of the Ethiopian legal system. After they left, the legal system was under the control of the people having a British background. For instance, the president of the high court was British.
There were Americans too. Gradually Ethiopians took over. That is good. But I think the role the foreigners played in supporting the legal system is very important. It helped our legal system shift from the traditional one to the modern one.
The Fetaha Negast was the legal system of the country at the time. While the rest of the world was moving forward, our legal system was lagging behind. Due to this, the participation of the foreigners helped in taking the legal system of the country a step ahead.
Herald: Justice delayed is said to be justice denied what can you say about that?
Fasil: Justice has to be served on time. Otherwise people would lose trust in justice. If justice is not served on time, it becomes justice denied. Things should be done on time. If not the legal system would be in danger.
Herald: As it is true of many experts, you served the three governments in the preparation of constitutions. How was your participation like?
Fasil: One has to distinguish between the government and the existing state for many centuries. In our case the government comes with different kinds of policy and go. Leaders are limited by time. They come and leave. But state remains. I am not a politician. I am just a professional. I have gone a step out of my way to make sure how the legal system functions. Under the regimes, I had been working on how to improve the legal system of the country. Of course, there was a time justice wasn’t served to the people.That happened because of the system of governance we had at the time.
Herald: Do you recall any criminal incidents that were beyond the power of the attorney general?
Fasil: I cannot think of crime beyond the law. I cannot think even how that could happen. Legal system is to ensure justice fairness. I could not see how crime could be beyond the law or attorney general. Before the reign of emperor time we had unwritten constitution which is very hard to get proper justice. During the emperor time we have to know that we had been dealing with the feudal system. The monarch system assumes that the emperor is the final decision maker. No matter how the court system operates, you can appeal to what was known Emperor’s Chilot (Hearing).
The Emperor Chilot did not follow the technical process of the formal legal system. The emperor and his advisors believed that modern justice could not serve the Ethiopian people and the Emperor Chilot was best way of serving justice. In 1960s the civil code came up. This code used to require four witnesses. This affected the previous knowledge of the people legal system and forced many people to go to the tradition three witnesses system. Due to this, the Emperor Chilot was dealing with many accuses in improper way.
Herald: Could you hint on articles that were refuted by students’ movements in the past three governments including EPRDF before reform? Had there been attempts in voicing complaints against articles of the constitution in the three systems?
Fasil: Well, when you begin writing it, you do not start with perfection. That is why amendments are needed. At a certain discussion of majority you would come to a certain drafting. The constitutions of the three regimes had passed through various aspects. I think the latest constitution is the one in force today. It had passed through many discussions with different parties on what kind of constitution we should have and how we are going to implement it.
Most people agreed we should go forward. People disagreed on the monarchy and the socialism system. A decision was reached to write the current constitution. But during the emperor time people had no clue about the constitution. It was just copied from Japanese only for the sake of having a written constitution. Land ownership question was prominent at that time. The Derg regime was the best written constitution compared to the feudal one.
But it had no time for implementation. Right after the drafting of the constitution, the country entered into the civil war. The current constitution is better and has better acceptance by the majority of the people, because many discussion was held among different parties and communities in the country. The implementation might have problems. But the constitution seems better. It answered the questions of equality, recognition of identities, religion, culture, human rights and democratic rights and many others.
Herald: How do you describe the participation of citizens, law school students and parliamentarians in the birth of constitutions?
Fasil: If you go to the Haile Selassie’s constitution, there was no people participation. It was a feudal society that had no clue of a constitution. The emperor said “This constitution is what we are going to give to the Ethiopian people!” There were small group of people who drafted it on bases of emperor’s requirements, which was highly borrowed from the Japanese constitution. The rest is also copied from German’s constitution. Both constitutions during the emperor regime were not really tabled for discussion. It was the Emperor who announced it to the people.
The 1955 one was introduced by the Eemperor and came up with the Prime Minister and appointed his own minister who implement and address the Emperor’s idea. In1974, the Derg took over institutions and studies were made on how to make a constitution. Very clear indications and commands on the Soviet Union, East Germany, Vietnamese and Cuba’s constitution were studied. Several discussions were held in different localities in the country.
It came to existence in 1984 and had to chance to be implemented due to the civil war in the country. In 1991, when the EPRDF took over, for about four or five years, there were ongoing studies on what kinds of constitution we need. One question that had been raised again and again was the nationality question which has to be answered. We found the federal system to answer that question. Discussion wasn’t held on what kinds of the federalism we should implement. The multi-party and parliamentary system was what was discussed on.
Herald: What was the reaction of people after the constitutions were introduced and practiced during the three regimes? Why do people say “The constitution has problem when it comes to translating it into action”?
Fasil: Implementing the constitution is the most difficult part than the drafting one. The constitution that we have in Ethiopia today is much better than its predecessors. It included all human and democratic rights. But a question arises on its implementations. For example, the right of a child is included. The right of the child was most discussed as the future of this country is based on the today’s child. Children should be properly brought up and well fed.
They should have access to education and medication. But a number of children are living on the street in improper places. The country has a lot of problems like most countries in the world. Getting out from abject poverty is difficult. But we came out from that within a short period of time. This does not mean all problems got solved. There is improper competition of property and other things. There is a corruption and nepotism in government offices and others. This is one of problem in implementing the constitution. On the other hand, there is misunderstanding on the constitution. The constitution declares all citizens have a right to live and work wherever they want in Ethiopia.
But thousands have been displaced from their home leaving behind their property. This is not because of the constitution or federalism. The two were put in place to solve the problems. Problems are happening due to misunderstanding of the constitution. The double digit economic growth in the country and expansion of higher institutions are the results of the constitution. We have satisfied the UN development goal in many ways. The main problem we had in the country arises when it comes to the democratic institutions. The first constitution was not known by the people and they benefited nothing from it. Due to this, people had no reaction.
They simple accepted what was declared by the Emperor. Business was as usual. They heard only something called constitution came up. The Derg had no time for implementation, because the country was in a civil war. As the result people did not see the use. The current constitution benefited the people in many ways though there are questions of implementations pertaining to democracy and human rights. People many create problems but the constitution has changed the life of people.
Herald: How do you see the balance among the three branches – judiciary, executive, and legislative –during the three regimes?
Fasil: There is a very little check and balance. During the emperor and Derg regime, it was nonexistence. It is only during the current regime that we have a very little check and balance.
Herald: Do you believe justice had been/ is served to Ethiopians?
Fasil: Justice is a very broad concept. When you speak about justice, you have to think of individual, groups, economic, social, political justice. Have Ethiopians got justice? No. The system is there. But when it comes to the way people need, justice is not served in Ethiopia. Has justice been served is a joke.
The system doesn’t properly serve the people. When it comes to economic justice we are on a better way than before. In large the people are better off today. Is for everybody? No it is not. How we are going to serve is through discussion, education and implementation on the constitution. Physically challenged persons are not being served even today. Our buildings, bus stations and in many others things justice is not serving them. Thousands of students were certified and got no job. So justice is not served in many ways. We should know where we are and work to provide justice and move forward.
Herald: How do you see the reform with special emphasis on the legal and judiciary system?
Fasil: The reforms that are taking place in the country are very promising. We have to make sure these reforms are actually delivered. The government is very much incenting on the peace process; the strengthening of legal system should be assured. We have to work on how to make sure justice is delivered and how to make sure the furtherance of the peace of people. Talking about the peace with educated people is very easy.
But we have to go beyond. Though it needs continuous commitment, there should be a preaching beyond the believers. In addition, I am very happy to see the peace with Eritrea and I am very thankful for having a Prime Minister like Dr. Abiy. We have a lot of good will from international communities. I think we are going to have a bright future.
Herald: Were the implementations of the three constitutions as you thought?
Fasil: The current constitution is implanted more and has been implemented more. But much more need to be implemented. Herald: Some people see a constitution just like the Holy books. Could a constitution be amended if it has loopholes?
Fasil: The constitution is not a Holy Bible or Holy Quran. Constitution is an agreement among the people in a democratic way. It should be based on people interest. It serves only in a specific circumstance time. It could be changed and amended if needed.
Herald: Had you faced personal influences by top officials?
Fasil: During the emperor time, new law came up that gives a power to the interior minister to arrest anybody for four months and additional three months without taking a case to the court. Due to this this, I wrote a paper since I was teaching constitutional law and distributed to my students. After class the paper was circulated throughout the entire university.
As a result, the question of “land to the tiller!” began resonating. That put me under pressure. Like many Ethiopians I had passed through many challenges during the Derg regime. Thanks to God I had passed all of them safe. Other than disagreements, I had faced no problem with EPRDF.
Herald: If there is anything you want to convey you are welcome?
Fasil: We are at a very interesting juncture in history. We have a possibility to achieve what we want both economically and politically by using democracy and working together. We are at the better time in terms of gender equality. In addition, in terms of state equality, we are on a better place. The government is for all of us.
Let us work together and use it properly. If we lose it, we don’t know where it is going to take us. Ethiopia will continue forever. Not even the large country, our ambition is limited in a family. We have a limited time. Let’s work on how to sustain the change and allow the country surge forward.
The Ethiopian Herald, February 10/2019
BY AMBO MEKASSA
