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Judicial Referral of Constitutional Disputes in Ethiopia: From Practice to Theory

The trend of swift and at times unquestioning judicial referral of constitutional disputes to the CCI has seemingly bordered judicial surrender of its proper province of refereeing the possible trespasses and frictions by the legislative and executive branches. The underlying reasons, real or apparent, are many and varied but two deserve an explicit mention here as they lie at the heart of jurisdictional dilemmas surrounding the procedure of judicial referral of constitutional issues to the CCI/HoF. The first is the legal argument arising from the provisions of Article 83(1) of the Constitution, which stipulates that ‘all constitutional disputes’ shall be decided by the HoF. This provision has given rise to the view, in judicial circles and beyond, that courts are relived of the duty to interpret and apply constitutional provisions. Thus it is believed that the constitution is taken away from the courts, and that for the regular judiciary to directly apply and interpret the constitution would tantamount to the courts ‘punching above their heights.’ Consequently, the regular courts have been ‘loathe doing anything which might indicate that they are engaged in constitutional interpretation.’ Another reason for judicial avoidance of constitutional adjudication is related to the judicial tendency to shun cases that involve politically sensitive issues which, more often than not, constitutional disputes tend to trigger. The overall consequence has been that litigants, as much as the courts, have avoided citing constitutional provisions for fear of risking judicial referral of their cases to the CCI/HoF. This paper sets out to depict that the constitution speaks with two voices: the main voice remains that of the regular courts while merely the residual powers are ceded to the CCI/HoF procedures. It is argued that judicial referral of constitutional issues is discretionary as opposed to mandatory, and that the procedure of referral pertains solely to questions of law as opposed to questions of fact, the latter being the court’s constitutional duty.