By Yusuf Ali MOHAMMED @YusufAli
Harar and Harari People in a History Glance
Addis Abeba, June 03/2021 – According to Article 47 of the Federal Democratic Republic of Ethiopia (FDRE) Constitution, among the nine (now ten) semi-autonomous regional states of Ethiopia, the ‘State of Harari People’ Region is the one. This region is comparatively the smallest, but the second oldest – after Axum, full of historical artefacts and more than 1000 years of tremendous history.
The region has one metropolitan city called ‘Harar’, which once was a vast territory but shrunk to its present size in the 19th Century. The name of the city ‘Harar’ derives its name from the much talked about (and written-about) ethnic group – the ‘Harari’ (known to [some] other Ethiopians as ‘Adere’) – that once represented nearly 100% of the population inside its reputed wall but now form less than 15%. The famous Sir Richard Burton not only described the Harari [people] as a bigoted and xenophobic population, but also testify of ‘Harar’ as a ‘single city culture’ …effectively remains a self-governing community aloof from the central administration…
Accordingly, the ‘Harari’ people used to self-administer themselves for centuries under their 72 Emirs (Emir – meaning Ruler), until its last Emir Abdullahi was defeated by Menelik II at the battle of ‘Challenko’ in January 6, 1887. Upon the annexation of ‘Harar’ by force, “[t]he [‘Harari’ people] were effectively stripped of any sense of power beyond the tokenism of limited places in public office…”
After lots of unsuccessful attempts to regain their lost self-administration, lastly, they have got the right to self-administer themselves under the newly structured FDRE alongside other eight regional states.
Harari People: Ethnic Minority or/and Indigenous People
Though there is no acceptable definition for the term ‘Minority’ so far, it is possible to perceive its essence by its already standardized objective and subjective criteria. Letting alone the latter one for its subjectivity, the former criteria clearly provides ‘Minority’ as “a [numerically inferior] group [which] has to [not only] exhibit distinctive ethnic, religious or linguistic characteristics, [but also] …have to be in a non-dominant position and be nationals of the state concerned.”
In the above understanding, a slight focus shall be given to the very sensitive and important category of ‘ethnic minority’ and ‘indigenous’ people. Though previously referred as ‘racial minorities’, however, later on ‘ethnic minorities’ seems to replace it, as the latter one is broader in setting ‘ethnic minority’ as “a [self-conscious] group having its own language, culture or history [with the intention of] …uphold[ing] its particularities”. Coming to the other concept of ‘indigenous people’, the recent UN study states “Indigenous communities …are those which, having a historical continuity with pre-invasion …societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them.” According to the latter study, this indigenous people “form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as people in accordance with their own cultural patterns, social institutions and legal systems.”
Having the above analysis on the one hand, and “having examined Arts. 39(4), 52(2) (a), 62(3) of the FDRE Constitution one by one, the Council of Constitutional Inquiry came to the conclusion that the power to determine identity is a matter of self-definition, which has to be determined by the concerned people.”
When one sees the case of ‘Harari’ People within the above objectively set standards, it is quite vivid of its fall within the category of ‘ethnic minority’ and ‘indigenous’ people, for the obvious historical facts. In this vein, it is quite important to entertain those internationally guaranteed rights of ‘ethnic minority’ in general and ‘indigenous’ people in particular.
The Protection of Indigenous People under international and national law
“[I]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”. (International Covenant on Civil and Political Rights (ICCPR))
Taking into account the vulnerable nature of ‘ethnic minority’ and ‘indigenous’ people, the UN placed a number of international legal regimes. The International Covenant on Civil and Political Rights (ICCPR) is the foremost legal instrument deserving to mention with its relevant provisions here, as the protection of ethnic minorities can be derived from its Article 27. The latter provision states “[I]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”.
Moreover, the 1992 UN ‘Declaration on the Right of Persons Belonging to Ethnic, Religious and Linguistic Minorities’ recognizes a bunch of minority people’s rights in a detailed format. Especially, its Article 2 (3) states “Persons belonging to minorities have the right to participate effectively in decisions on the national and …regional level concerning the minority to which they belong or the regions in which they live…”
More interestingly, the 2007 UN ‘Declaration on the Rights of Indigenous Peoples’ further gives so much emphasis and additional special protection to those indigenous peoples. In particular, Article 33 provides indigenous peoples the right “…to determine their own identity or membership in accordance with their customs and traditions.”
Besides, Article 3, 4 and 5 of the Declaration not only recognizes “Indigenous peoples …right to self-determination, [in which] …they can freely determine their political status and freely pursue their economic, social and cultural development,” but also recognise “…the right to autonomy or self-government in matters relating to their internal and local affairs…” and “…have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions.”
In the spirit of practically realizing the aforementioned provisions, Article 18 and 19 of the Declaration clearly provides as to the rights of “Indigenous peoples [in freely letting] …to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision- making institutions,” and “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
Aside from the above, it is quite obvious of the FDRE Constitution Article 39, 47, 54 61 et al that every nation, let alone indigenous one, have unconditional right, irrespective of its population size, to form its own state, self-administer, and equally represented at the regional and federal level, provided that it has sufficient justification to do so. Moreover, it is also important to mention the constitutionally guaranteed protection of minorities with their respective predetermined representation at the Federal level, notably in the House of People Representative (HoPR) and House of Federation (HoF).
It is with the above spirit and thorough studies of HoPR coupled with a number of serious consultations with all relevant parties, including with the surrounding ‘Hundanne Oromos’, that the formation of ‘Harari’ Peoples Regional State came into reality.
‘Harari’ People, Legislative House Arrangement and Its Electoral System
According the FDRE Constitution “All powers not given expressly to the Federal Government alone, or concurrently to the Federal Government and the States are reserved to the States.” Within the latter scope, states have residual power in every matter relating to its internal matter within its administratively assigned political border. And it’s in this vein the ‘Harari’ People Regional State designed its constitution and established its highest Regional Peoples House, which is composed of two-joint councils. These two Houses are: the ‘Harari’ People’s Council and ‘Harari’ National Council, each with its own specific power and responsibilities.
The 2004 revised regional Constitution under its Article 58 confers the ‘Harari’ People’s Council with a power, inter alia, to “initiate every matter relating to economic, social and developmental policy strategy,” while Article 59 empower the ‘Harari’ National Council, inter alia, to “entertain and enact policy and laws relating to …‘Harari’ Nation’s culture and language, and …historical and cultural artifacts”.
With the aim of balancing the majority rule and minority right, the Regional Constitution incorporates a special mechanism in nominating the Speaker of the ‘Harari’ Regional Peoples House (legislative one) and the President of the ‘Harari’ People Regional State (executive one). Accordingly, the Speaker of the House is nominated by the ‘Harari’ People’s Council as per Article 58 (4), while the President is nominated by the ‘Harari’ National Council as per Article 59 (4) Article 63 (1). After all, the powers of both Councils are limited in presenting their respective nomination and all of those nominees need to be endorsed by majority vote of the People’s House.
With regard to the seat arrangement, one can infer from Article 48 and 49 that the People’s House comprises 36 seats, among which the ‘Harari’ People’s Council have 22 seats, while the remaining 14 seats are reserved for the ‘Harari’ National Council.
According to Article 50 (1), all of the people residing in the region can cast their vote for the 22 majority seats allocated to the ‘Harari’ People’s Council. Whereas the remaining 14 seats of the ‘Harari’ National Council and its members, alongside a candidate running for the reserved one seat of the HoPR, are elected among all ‘Harari’ nationals residing in every corner of Ethiopia.
The aforementioned electoral approach was designed, endorsed and enforced by the HoPR to rectify the past injustices and wrongdoings, among which tactic based massive subjection of the indigenous ‘Harari’ peoples toward direct and indirect forced relocation and/or displacements that lead them to be numerically minority. Accordingly, this electoral system has been put into practice for the last five consecutive national and regional elections.
One thing that needs to be clearly voiced up is the FDRE Constitution doesn’t expressly limit the right of citizens residing in one corner of Ethiopia to cast vote for the candidate running for the other House or Council of which s/he is historically, culturally, emotionally et al attached and affected to. It is even the other way around as Article 54 (2) of the FDRE Constitution spills about the HoPR electoral system in relation to minorities by stating “Provisions shall be made by law for special representation for minority Nationalities and Peoples,” which indirectly gives a positive indication for the possible adaptation of such kind special electoral arrangement at a regional and local level too. Other countries like Canada, Sweden et al also adopt a similar electoral approach for their respective indigenous and minority people. This should not be a surprise as, let alone citizens residing in the same country, even citizens residing abroad have a right to participate in their respective national and regional election of their respective country, as long as there is appropriate mechanism in place.
‘Harari’ Electoral System and Electoral Board’s Action
Aside from the above, though there is a nation-wide assumption of consensus to take place national and regional elections in accordance with the already set electoral practices, it is so surprising why the National Electoral Board of Ethiopia (NEBE) is treating the ‘Harari’ electoral system as an exception.
“The Electoral Board’s narrow interpretation of the constitution, shortsighted practical assessments, ill-fated arguments et al can be inferred from the recent court battle…”
The recent action of the NEBE against the particular minority seated ‘Harari’ National Council’s electoral system and denying the voting right of ‘Harari’ Nationals residing outside of ‘Harari’ Regional State does not only absorb, but also questions the impartiality and integrity of the institution. The Electoral Board’s narrow interpretation of the constitution, shortsighted practical assessments, ill-fated arguments et al can be inferred from the recent court battle against the ‘Harari’ People Regional State that goes through all the way to FDRE Federal Supreme Court Cassation Bench and not only ended up losing the case, but also create a favorable ground to set the ‘Harari’ People’s House electoral modality as a precedent, which need to be respected by all means.
Moreover, the Electoral Board’s healthier approach should be to – first respect the already guaranteed and put into practice modality of the ‘Harari’ electoral system in a way they are designed to protect indigenous and minority people right, and – then move toward respecting and addressing other Minorities that desperately need special protection and are in need of similar electoral system. AS
Editor’s note: Yusuf Ali MOHAMMED is LL.M (Master of Law) candidate at Ankara Yıldırim Beyazit University, Social Science Institute, Public Law department, Ankara/Turkey. He received his LL.B in 2014 from School of Law at Dire Dawa University, Dire Dawa/Ethiopia. He is the former legal advisor to the President of Harari P/R/State of Ethiopia. He can be reached via email: email@example.com