Why constitutional reform fails without independent judicial interpretation

Ethiopia stands at a constitutional crossroads. As the country undergoes a National Dialogue intended to reshape its political future, one of the most consequential questions remains largely overlooked: Who should have the final authority to interpret the Constitution?

This question is far from academic. It goes to the heart of constitutionalism, the rule of law, and the balance of power among the branches of government. Unless Ethiopia confronts it directly, any constitutional reform will remain incomplete.

To understand what is at stake, it helps to begin with what courts are and are not designed to do. Courts decide justiciable matters. They do not resolve purely political questions.

A well-known example illustrates this principle: President George Washington once asked the U.S. Supreme Court for legal advice on America’s relationship with France. The court refused, explaining that it could not issue advisory opinions and could only decide actual disputes between opposing parties.

This limitation does not mean that courts avoid all politically sensitive disputes. Courts routinely hear cases involving political parties, election disputes, challenges to government actions, and constitutional claims against state actors.

While U.S. courts decline to adjudicate political gerrymandering, they do rule on racial gerrymandering. The distinction is not about politics per se, but about whether a dispute is legally resolvable.

This is the essence of judicial power: To interpret and apply the law when a real dispute arises.

Court Authority

Under Ethiopia’s current constitutional arrangement, courts have almost no authority to interpret the constitution. Article 62 of the FDRE Constitution vests this power primarily in the House of Federation (HoF), a political body composed of representatives from regional states.

This design is highly unusual by global standards. In most constitutional systems, an upper house in a bicameral legislature functions as a lawmaking chamber, not as the final interpreter of the constitution.

Ethiopia’s HoF, however, performs both political and quasi-judicial functions, blurring the boundary between constitutional adjudication and political decision-making.

The framers’ rationale for this model reflected deep historical anxieties about centralization, judicial capture, and the need to safeguard Ethiopia’s multinational federal order.

Constitutional interpretation in Ethiopia was deliberately assigned to a political body rather than the courts, partly over fears that the judiciary might undermine regional autonomy or re-centralize authority.

Experience has shown, however, that this arrangement creates a different but serious problem. The historical fear that motivated it no longer carries the same force: courts are expected to interpret the constitution faithfully. Past disputes illustrate the risks when constitutional meaning is filtered through political rather than judicial processes.

The 2005 State of Emergency declaration challenged by the Coalition for Unity and Democracy (CUD), and former President Negaso Gidada’s petition questioning the constitutionality of restrictions on former presidents’ political activity, exposed how political bodies interpreting the constitution can produce unjust outcomes. These cases demonstrate that constitutional adjudication is better placed in an independent judiciary than in a political chamber.

Negaso challenged Proclamation No. 255/2001, “Administration of the President of the Federal Democratic Republic of Ethiopia,” which regulated the powers, privileges, and benefits of former presidents. The proclamation also placed the Office of the President under the Prime Minister’s authority, limiting institutional independence and rendering the office largely ceremonial.

Political Oversight

The Council of Constitutional Inquiry (CCI) rejected Negaso’s challenge, finding that Proclamation No. 255/2001 did not violate the constitution. The CCI reasoned that regulating the presidency through ordinary legislation falls within the legislature’s powers so long as core constitutional functions are preserved.

Placing the Office of the President under the Prime Minister’s administrative oversight did not constitute a constitutional amendment nor require any special procedure. This case illustrates Ethiopia’s political–institutional model of constitutional review, in which disputes are first examined by the CCI and then decided by the HoF, showing that constitutional meaning is shaped by federal political bodies rather than courts.

Following the disputed 2005 general election, Prime Minister Meles Zenawi declared a state of emergency, restricting fundamental rights and suppressing opposition protests led by the CUD. The CUD challenged these measures, arguing they violated constitutional limits on emergency powers and rights.

The dispute was reviewed by the CCI and decided against the opposition by the HoF, reaffirming the government’s actions and highlighting the dominance of Ethiopia’s political model of constitutional adjudication during crises.

During a debate at the Legal Research and Training Institute in 2009, in which the author of this piece took part, both cases were examined through group discussions. While some groups of lawyers argued that each dispute could have been decided against the executive under a genuinely independent judiciary, the overwhelming consensus among constitutional law experts was that Negaso’s petition was particularly strong and would likely have succeeded had it been adjudicated by an impartial and autonomous court.

A meaningful reform would reposition the HoF as a conventional upper house concerned with federal representation, while transferring constitutional interpretation to an independent judiciary. Without such a shift, constitutional supremacy remains difficult to enforce, and political actors remain largely unchecked by law.

As Ethiopia contemplates constitutional amendments, this foundational design deserves renewed scrutiny.

Institutional Failure

To see why this matters, one need only recall Marbury v. Madison. In that 1803 decision, Chief Justice John Marshall articulated a simple but transformative principle: it is the duty of the judiciary to say what the law is.

Where ordinary law conflicts with the constitution, courts must give effect to the constitution.

This doctrine, judicial review, became a cornerstone of constitutional governance in the United States and has since been adopted, in various forms, across the world.

A constitution is law, the supreme law of the land. For it to function as such, there must be an independent institution capable of interpreting it, and enforcing its limits against state power.

This necessarily includes the authority to invalidate laws, regulations, or executive acts that contradict constitutional guarantees.

Without this mechanism, citizens have little recourse when their constitutional rights are violated.

Ethiopia’s current system has struggled to deliver this protection. Constitutional interpretation has remained politicized, and no coherent body of constitutional jurisprudence has been allowed to develop.

Decisions of the HoF rarely resemble judicial opinions. They do not build precedent, articulate stable principles, or guide future conduct in a predictable way.

In theory, Ethiopia’s constitution is supreme. In practice, its meaning is determined largely through political processes rather than legal reasoning. Because the HoF is a political institution, its constitutional determinations often resemble political judgments rather than reasoned legal interpretation.

This produces a paradox: The constitution is formally supreme, yet substantively subordinate to political discretion.

If Ethiopia seeks a constitutional order in which the constitution binds the government, rather than the reverse, constitutional interpretation must be relocated to an institution structurally oriented toward legal reasoning.

Judicial Review

Contrary to some portrayals, judicial review is not a Western idiosyncrasy. It is a structural requirement of any system that claims to be governed by law. Ethiopia’s ethnic diversity and history of political contestation make the need for neutral constitutional adjudication especially acute.

Courts serve as a buffer between citizens and the state, offering a forum where constitutional rights can be asserted against power.

They also provide continuity. Unlike the HoF, judicial decisions accumulate into precedent, giving constitutional interpretation coherence and predictability over time.

Concerns about the current capacity or independence of Ethiopia’s judiciary are real. But these concerns argue for institutional strengthening, not for denying courts constitutional authority altogether.

Entrusting courts with constitutional jurisdiction can itself become a catalyst for judicial professionalism, independence, and accountability.

Locating constitutional interpretation in the judiciary would also help depoliticize constitutional disputes. While courts are not immune from politics, they are institutionally constrained to reason in legal terms rather than negotiate political interests.

The same logic applies to federal disputes: conflicts between the federal government and regional states require a neutral arbiter, and courts are structurally better suited to that role than a political chamber composed of interested parties.

Constitutional Renewal

Ethiopia’s National Dialogue offers a rare chance to reconsider foundational constitutional choices. Empowering courts to interpret the constitution strengthens both the rule of law and democratic accountability, making constitutional commitments enforceable rather than symbolic.

Rather than attempting wholesale institutional redesign, Ethiopia can pursue a focused and consequential reform: Empowering the judiciary with final authority over constitutional interpretation.

Such a shift would reinforce constitutional supremacy, strengthen rights protection, reduce political interference in constitutional adjudication, and lay a firmer institutional foundation for future reforms.

Ethiopia stands at a pivotal moment. The national dialogue offers an opportunity not only for political compromise, but for institutional clarity.

Marbury v. Madison reminds us that constitutionalism is not self-executing. It must be interpreted, and enforced. If Ethiopia is serious about building a constitutional order that restrains power and protects its citizens, then the authority to interpret the constitution must be placed where it belongs: in an independent judiciary.

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While this commentary contains the author’s opinions, Ethiopia Insight will correct factual errors.

Main photo: Agegnehu Teshager, Speaker of the House of Federation, attends a regular session with other officials, October 2025. Source: House of Federation Facebook page.

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