Nicole B. Herther-spiro, Can Ethnic Federalism Prevent "recourse to Rebellion?" a Comparative Analysis of the Ethiopian and Iraqi Constitutional Structures

• Citation: Vol. 21 No. 1
• Publication year: 2007
• topic: Constitutional Law

CAN ETHNIC FEDERALISM PREVENT "RECOURSE TO REBELLION?" A COMPARATIVE ANALYSIS OF THE ETHIOPIAN AND IRAQI CONSTITUTIONAL STRUCTURES

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law . . . .¹

Universal Declaration of Human Rights

INTRODUCTION

The debate over whether Iraq should adopt a federal system of government began months before the start of the United States-led invasion of Iraq. In January 2003, representatives of various Iraqi groups met in London to discuss their vision for the future of Iraq.²A representative of the Iraqi Turkmen Front issued a careful warning at those early meetings: "Federalism is dangerous now . . . if Kurds have a federal state, then the Turkmen should have one as well."³Despite that warning, federalism was enshrined in the Iraqi Constitution, and the question remains whether the federal system will contribute to the success or to the failure of the Iraqi state.

The balance of power in any federal system is a delicate thing.⁴Every state that implements federalism must determine how to balance the autonomy granted to the states or regions against the authority of the central government.⁵

Many of the countries that adopt federal systems do so in the hope that the federal system will provide for both a unified central government and real control at the local level. One theory of federalism argues that the system prevents abusive government by decentralizing power.⁶By vesting some power in regional governments, federalism renders central governments less able to establish authoritarian dictatorships.⁷The trend towards federalism among states that have previously experienced strong and oppressive central regimes can be understood in the context of this theory-a federal system might help to prevent oppressive dictators from once again monopolizing the power of the state to the detriment of its people.⁸

A theory of federalism's potential to prevent ethnic conflict has also developed in recent years.⁹Ethnic- or identity-based federalism, as an idea, holds a certain appeal in the post-colonial context. As a system of government, it attempts to resolve one of the problems that imperialist, colonial history created by granting autonomy to groups whose culture and identity have long been suppressed in the "unity" of modern nation-states.¹⁰A nation-state adopting an ethnic-based federal system gives the "nations" within its borders some degree of self-governance as regions or states in a federal system.¹¹

Ethnic federalism is one method by which a country may attempt to manage the interests of multiple ethnic groups within its borders and prevent violent ethnic conflict or attempts at secession. Professor Tully argues that there is no multi-cultural state in which culture is not a part of the political reality:

The diverse ways in which citizens think about, speak, act and relate to others in participating in a constitutional association . . . are always to some extent the expression of their different cultures. A constitution can seek to impose one cultural practice, one way of rule following, or it can recognise a diversity of cultural ways of being a citizen, but it cannot eliminate, overcome or transcend this cultural dimension of politics.¹²

A basic assumption of the theory of identity-based federalism is that ethnicity or religious identity cannot be removed from the political sphere.

Federalism is presently a common system of government, having been adopted by countries across the globe, including Switzerland, the United Arab

Emirates, Canada, Malaysia, and Venezuela.¹³Federalism based on ethnicity, or the territorial subdivision of a country in a way that divides political power among conflicting groups, has also been implemented in many different countries,¹⁴including Ethiopia and, most recently, Iraq.¹⁵Ethiopia's experience integrating federalism, ethnic identity, and group rights into a constitutional document serves as one example of identity-based federalism. Ethnic federalism in Ethiopia involves not only the structure of the state, but a constitutional mandate to give self-rule to Ethiopia's many nations, nationalities, and peoples.¹⁶The Ethiopian Constitution establishes regional states along linguistic lines, which is the primary way in which individuals identify themselves in that country.¹⁷Iraq has also adopted a federal model as a way to band together a religiously and ethnically diverse country marked by deep and complex divisions.¹⁸However, Iraq's Constitution delayed the formation of regions until later action by the local units of government.¹⁹In Iraq, identity is defined by both ethnicity and religious sect.²⁰The Iraq Constitution specifically recognizes the Kurdish state in the north.²¹It has been supposed that the rest of the country will eventually divide into a handful of regions aligned along various ethnic and religious lines, probably including an Arab Shi'a-dominated state in the south and an Arab Sunni state in the center of the country.²²Iraq is approximately 97% Muslim: 60% Shi'a Arabs,

20% Sunni Arabs, and 17% Muslim Kurds; the remaining 3% consists of

Sunni Turkmen, Christians, and other minorities.²³

Exploring the idea of identity-based federalism with reference to both Ethiopia, whose ethnically-based federal system dates to 1994, and the nascent Iraqi experience of federalism organized around group identity, this Comment argues that ethnic-based federalism succeeds only insofar as it achieves a balance in power-sharing between regions and the central government. Decentralization of power to regional governments can easily be undermined, despite constitutional grants of power, while extensive regional autonomy can cripple the unity of a country by rendering the central government powerless. This Comment explores several areas in which failure to achieve balance can undermine the goals of ethnic federalism. The first area is the grant of political rights to individuals and groups in the country.²⁴The second is the preservation of the rights of minorities-both minorities within the country as a whole and the rights of those who constitute a minority in a particular region.²⁵The third is the balance of fiscal power.²⁶Finally, this Comment examines the question of popular legitimacy in an ethnic federal system with reference to national elections and political participation.

Part I of this Comment introduces the theory of ethnic- or identity-based federalism, and its roots in international law and theories of ethnic conflict. Part II describes the development of federalism as a structural solution to conflict between groups in Ethiopia and Iraq. Part III describes Ethiopia's and Iraq's solutions regarding the devolution of power by the grant of individual and group political rights in the federal system based on ethnicity. Part IV addresses concerns in an identity-based federal system vis-à-vis the protection of minority rights. Part V examines how best to divide fiscal power between regions and the central government in an ethnic-based federal system. Part VI analyzes the struggle to maintain popular legitimacy in an ethnic-based federal system, referencing the examples provided by the most recent national elections in each country-the July 2005 elections in Ethiopia and the December 2005 elections in Iraq.

I. THE THEORY OF FEDERALISM AND GROUP IDENTITY

In the past half century, ethnicity has become an increasingly important factor in world politics and political movements. Demands for secession are one destructive result of the rise of ethnic nationalist politics, which, if met, would fracture states into smaller, more ethnically homogenous units. Ethnic federalism structures a country in a way that purports to offer an alternative to secession by providing autonomy while preserving a unitary state.

A. Ethnicity and the Nation-State

The 20th century saw the rise of the modern "nation-state," a political phenomenon that developed over time in Europe, and emerged in the rest of the world only in the post-colonial era.²⁷The concept of the modern nation- state is based on a premise of homogeneity of culture.²⁸The theory of popular sovereignty emphasizes the political identity of individuals and conceives of culture as "irrelevant, capable of being transcended, or uniform."²⁹During the period of decolonization, many problems emerged in new post-colonial states. One problem was the territorial compass of states, which were often created in ways that would minimize the ability of the colonized to form alliances that would threaten the colonial administration.³⁰Independence brought these difficulties to the forefront, as the inherently troublesome mixes of populations within these nations struggled to form stable governments.³¹As a result, in most countries in Africa with centralized governments, members of one ethnic group monopolize power.³²

A basic source of this problem is that despite attempts to construct a "national identity," ethnic identification, as a primary source of identity, is high in Africa³³and indeed in the world as a whole.³⁴In Africa, there is still a tendency for individuals to think of themselves primarily as Oromo, Hutu, or

Masai rather than as Ethiopian, Rwandan, or Kenyan. Although scholars have debated the way in which ethnicity is constructed, they agree as to its re- emerging importance in the past decades.³⁵It is generally accepted that ethnicity is the product of social construction rather than being somehow primordial or innate.³⁶A distinction must be made between ethnic categories that are created by outsiders and ethnic communities as defined from within.³⁷

For the purposes of understanding the theory of ethnic federalism, the ethnic labels outsiders employ to distinguish different groups of people with certain customs and traditions are not relevant. Rather, the definition of "identity"...