Over the past year we have witnessed a lot of political turmoil in the Arab world and the rest of Africa. Particularly, in Maghreb Region including Tunisia, Egypt and Libya, there are unprecedented changes that swept the North Africa States in a very short time. Now in these countries, there is a shift from, at least, one man rule to rule by some people. Although situations seem to be better than ever, nobody still certainly knows where the revolution ends up and how far the positive changes could sustain. This uncertainty is created by, among other things, the coming of allegedly extremist religious political parties, specifically in Egypt, into power. Radical religious groups have also gone into clash with secularists in Tunisia for enormous times. In these countries, it is however legally permissible to establish a political party which seeks to even stake out an administration guided by religious rules. There is no thus any legal prohibition that bars people whatever they may be radicalists from forming a religious political party.
In recent days, we all know that there is somehow different crisis hobbling in our country between Ethiopian Muslims who have been protesting for the last couple of months and the Ethiopian government. The Ethiopian Muslims accuse the government of meddling in their religious affairs by extending its control on Muslim Council (Mejlis) which they claim does not represent them. The government on the other hand has been retorting their claim and accusing the leaders of the protest for spreading radicalism in the Muslim community with a political agenda behind their protest. Both sides claim to have evidences for their allegations. I do not intend to investigate on whose side there is more credible evidence. But I want to just focus on the legal aspect of the protest based on the assumptions that both sides are right and what both allege is true.
To begin with the protestors’ side, they argued that they have constitutional right to choose their leaders without the interference of the government in a place and manner that they want. And also the government is stepping out of the legality border, which proclaims the separation of state and religion, by encouraging the spread of a new sect dubbed “Ahbash”. Their accusation taken independently should be seen in light of article 11 of the Ethiopian Constitution. Article 11 ensures the separation of State and religion and proscribes that neither the state nor religion interferes in their respective affairs. Obviously, the representation and administration of Muslims in the Mejlis is clearly a religious affair. It should be solely left to the believers to choose who they want and be represented by whosoever they think promotes their religious values.
This right is also fostered by article 27 of the Constitution which declares that “Everyone has the right to freedom of thought, conscience and religion. This right shall include the freedom to hold or to adopt a religion or belief of his choice, and the freedom, either individually or in community with others, and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.” In the second paragraph of the same article, believers have also the right to establish institutions of religious education and administration in order to propagate and organize their religion. However, this right, specifically, the freedom to manifest one’s own religion is not absolute right and may be limited by law when it is necessary to protect public safety, peace, health, education, public morality or the fundamental rights and freedoms of others, and to ensure the independence of the state from religion(article 27 (6)).
Having this, when we examine the allegation of the protesters, it would blatantly become illegal for the government to intervene in the election process of the Council or encourage Ahbash sect. Its interference on the freedom to manifest religion which arguably includes the organization and administration of the Council could only be legally justified if it can show that there is a threat against the national security, public safety, peace, health, education, public morality and the rights and freedoms of others. The interference in the election process for the listed grounds could be legitimized when there is also no other alternative to do away with the threats. Therefore, the government contention that the leaders of the protest are teaching radicalism and propagating violence could only serve as a ground for its interference if it does not have any other option to trammel those actors. It should also be noted that, the act of encouraging the teaching of Ahbash cannot even be justified on the listed grounds of national security or public safety and security since it does not comport to the letter and spirit of the constitution. In addition, the way the right is understood in the jurisprudence of international human rights bodies is that any limitation on freedom of religion should be limited to the freedom to "manifest" one`s own religion. The government`s support of the so called Ahbash teaching thus cannot in any case be interpreted as a restriction against such freedom to "manifest"
When I come to the side of the government, it goes without saying that the government has a duty to protect the country and its people from violence. It shall all times ensure the security, safety and peace of its citizens. Therefore, if there are for example people who are advocating radicalism that call for violence, the government has not only the right but the obligation to contain them. It can therefore arrest and with credible evidences put them into jail following the due process of law. The mere fact that they have political agenda behind their movement is not sufficient reason to interfere in the Council affairs or to arrest the leaders. Rather the government should also show that their political agenda is against the vital interests of the country and its existence. Second, this should also be seen in light of the freedom of expression which allows people to say what they want as long as their speech does not present a clear and imminent danger. Could then the request to have a religious political party or government would be against the interest of the State or the safety of its people? Is it constitutional if people ask to establish religious parties like the case of Egypt and other Arab states? I think this should still be seen within the prism of the constitutional provisions.
Article 31 of the constitution stipulates that “Every person has the right to freedom of association for any cause or purpose.” This provision does not make any exception to the nature or objective of the association. It may be political, social or religious. However, such associations should not serve as a means to subvert the constitutional principles and order which I believe includes the principle of secularism as enunciated under Article 11. In other words, seen together with the article 11 of the constitution, article 31 does not allow religious political associations. Therefore, if there are groups emerging with a political agenda based on religious rules, the government should still curb them because a political party which seeks to establish a religious government would be in blunt violation of article 11. To contextualize with the current protest, the Ethiopian government is duty bound to protect the establishment of any religious group with a political goal which pose a grave and impending threat to the secularist nature of the State.
This should not nevertheless mean that the government can direct the election process of the Mejlis in a certain way. It should desist from dictating how and where the election should be held. What its role should be limited is to controlling persons who propagate radicalism and religious political agenda. In short, the government should allow the protestors to choose the one they like in a place and manner they want but it should at the same time screen out those persons expanding radicalism that would go against national interests of the country and the safety and security of its people. If the members of the Solution Finding Committee have for instance preached violence, radicalism and the establishment of an association of a religious political group contrary to freedom of speech and its limitations, the government’s arrest would be legitimate. Otherwise, its measure would be unconstitutional and should release them and allow the people to choose their leaders.
Caveat: My analysis is based on assumption and the reader should not interpret anything I said as affirmation of the truthness of any allegation. I am not arguing on the credence of the statements of both the government and the protesters. Secondly, I did not address the other argument of the government that it is the functioning Mejlis which is deciding what it wants to teach the laity and the government cannot direct them to teach a certain ideology; in this case, the demand of the protesters would be a demand for intervention against the allegedly forced teaching of Ahbash by the existing Council . Lastly, it is worth note that followers of the Ahbash sect have a constitutional right to profess their belief as long as it is peaceful and do not impose it against the will of other individuals.