The Constitution as a Broken Promise: Commentary on a Chapter

Abstract

This paper is a commentary on one chapter of Professor Bereket Habte Selassie’s second memoir - Wounded Nation. Of the 14 chapters of the book, chapter six is about the 1997 Constitution of Eritrea which has become a debatable document. First, the Constitution is betrayed by the transitional Government of Eritrea which oversaw the three years long drafting process and promised to let the country be governed by the document soon after adoption in 1997. Since then the transitional term of the government has expired. The government has not been law-abiding and it is not willing to leave power as the Constitution’s provisions on terms require. Second, myriad opposition forces excluded from the constitution-making process but insignificant at that time, have not accepted the document. At present they have realized the need for a constitution to mediate their affairs and the future of the country. To this end, being in exile, they have vowed to write a new one. The author of Wounded Nation in his capacity as the Commissioner of the Constitution Commission of Eritrea instrumental in drafting the document, and as a constitutional law scholar, has been arguing that the constitution is legitimate and an instrument of struggle against the now most repressive government in Africa. This paper provides commentary on these trajectories. In addition to highlighting certain points on the rest of Wound Nation, it presents the Commissioner’s and the opposition’s position on the Constitution, discusses the debate on the legitimacy of the document and how the differences should eventually be settled. Beyond this debate, the paper discusses the usefulness or futility of the Constitution in regard to the growing custom and law of the African Union on unconstitutional governments and pro-democracy intervention.