Revisiting the Justifications for Vesting Constitutional Interpretation Authority in the House of Federation

Abstract

The Ethiopian Constitution framers advanced contractual and democratic arguments for vesting constitutional interpretation authority in the House of Federation (HoF) instead of the courts. They contended that the Constitution is a political contract between and among the ‘nation, nationalities and peoples’ of Ethiopia and the HoF, as representative of these groups, is the appropriate organ to interpret it. The democratic basis for turning away from the courts and vesting constitutional interpretation authority in the HoF is based on the claim that courts are deficient from the point of view of democracy in that they are unelected.
Except for the contractual argument, the framers have not provided substantive justification for why constitutional interpretation authority should be vested in the HoF: their argument on the basis of democracy is not an argument as to why the HoF should have constitutional interpretation authority but rather why the courts should not have it. This is based on popular but unexamined view of the connection between constitutional judicial review and democracy. Their only substantive justification, the contractual argument, is not entirely clear and tenable on any plausible interpretation of what it means.The preference to the HoF as opposed to the courts is not the democratic and contractual arguments but their communitarian political viewpoint.