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African Human Rights Law Journal

On-line version ISSN 1609-073X

Afr. hum. rights law j. vol.8 n.1 Pretoria  2008

 

ARTICLES

 

The status and fate of the Eritrean Constitution

 

 

Simon M Weldehaimanot

TMF Human Rights Fellow, Institute for Human Rights and Development in Africa, Banjul, The Gambia

 

 


SUMMARY

Between 1993 and 1997, Eritrea was engaged in a constitution-making process. In accordance with the legal framework set to guide the process, the constitution-in-the-making was finalised on 23 May 1997. There is disagreement about the status of this Constitution. Although it remained supportive throughout the constitution-making process, the transitional government of Eritrea has declined to implement the Constitution more than ten years after the Constitution had been ratified. The government of Eritrea's reluctance is ascribed to the absence of an entry into force clause in the Constitution and the 1998-2000 border conflict between Eritrea and Ethiopia. The government used this as a pretext and as a result, constitutional development in Eritrea has been arrested for a period of ten years. This article investigates the factors affecting the status of the Constitution and concludes that, in spite of certain flaws in the constitution-making process, the Constitution is a legitimate pact that has been in force since the date it was ratified.


 

 

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* LLB (Asmara), LLM (Human Rights and Démocratisation in Africa) (Pretoria); simo-xen2001@gmail.com. The author is grateful to Daniel R Mekonnen for his invaluable contribution in this work.
1 The birth of the Eritrean statehood is a contested terrain. For more, see BH Selassie 'Self-determination in principle and practice: The Ethiopian-Eritrean experience' (1997) 29 Columbia Human Rights Law Review 92-142;         [ Links ] E Gaym The Eritrean question (2000);         [ Links ] GN Trevaskis Eritrea: A colony in transition 1941-52 (1960);         [ Links ] D Weldegiorgis Red tears: War, famine and revolution in Ethiopia (1989) and M Haile 'Legality of secessions: The case of Eritrea' (1994) 8 Emory International Law Review 479-537.         [ Links ]         [ Links ]
2 D Connell Against all odds: A chronicle of the Eritrean revolution (1997) 76.         [ Links ]
3 See generally Connell (n 2 above) and Z Yohannes 'Nation building and constitution making in Eritrea' (1996) 1 Eritrean Studies Review 157-8.         [ Links ]
4 See Connell (n 2 above) 73-91.
5 Yohannes (n 3 above) 158.
6 Awate Team 'Eritrean political organisations: 1961-2007' (2007) http://www.awate.com/portal/content/view/4485/9/ (accessed 23 November 2007).         [ Links ]
7 A Bariagaber 'Eritrea: Challenges and crises of a new state' (October 2006) 5 (a Writenet Report commissioned by United Nations High Commissioner for Refugees, Status Determination and Protection Information Section (DIPS)).         [ Links ]
8 Not much is known about the size of each political party. The number of the parties also fluctuates because of frequent mergers and splits. In 2005, 16 political parties formed an umbrella organisation called the Eritrean Democratic Alliance (EDA); and there are few outside the EDA. Apart from the political parties, as the GoE became increasingly repressive, a growing number of individuals and civic organisation have been opposing the GoE. The author's reference to 'opposition' thus denotes a broader group than the opposition political parties.
9 BH Selassie The making of the Eritrean Constitution: The dialectic of process and substance (2003);         [ Links ] RA Rosen 'Constitutional process, constitutionalism, and the Eritrean experience' (1999) 24 North Carolina Journal of International Law and Commercial Regulation 263-311;         [ Links ]Selassie (n 1 above); GH Tesfagiorgis 'When the drafting of a constitution is not confined to men of stature or legal experts: The Eritrean experience' (1998) 2 Eritrean Studies Review;         [ Links ] RA Rosen & BH Selassie 'The Eritrean constitutional process: An interview with Dr Bereket Habte Selassie' (1999) 3 Eritrean Studies Review;         [ Links ] Yohannes (n 3 above) and other contributions hosted at the Eritrean cyber space.
10 See Proclamation 23/1992.
11 T Medhanie 'First things first: Reconciliation before "national" conference' paper presented at the Seminar on Dialogue for National Reconciliation in Eritrea (Stockholm, 23 May 2002).         [ Links ]
12 ELF-RC's 'Constitution and constitutional commission' (1994) 12 Demokrasawit Eritrea 22;         [ Links ]ELF-RC 'Our demand is constitutionalism, not constitution' (1996) 21 Demokrasawit Eritrea 4;         [ Links ] ELF-RC 'Interview with fighter Ahmed Nasr' (1996) 18 Demokrasawit Eritrea 4 &         [ Links ] ELF-RC 'Interview with ELF-RC chairperson (1996) 19 Demokrasawit Eritrea 3 (all sources are in Tigrinya).         [ Links ]
13 Medhanie (n 11 above).
14 Preambles of Proclamations 23/1992 & 37/1993. See also S Ibrahim 'From exemplary revolution towards a failed state: What went wrong with the Eritrean dream?' (2005) http://www.awate.com/artman/publish/article_4314.shtml (accessed 31 January 2008).         [ Links ]
15 DR Mekonnen 'Transitional justice: Framing a model for Eritrea' (November 2007) 169 (thesis submitted in accordance with the requirements for the Degree of Doctor of Laws in the Faculty of Law, Department of Constitutional Law and Philosophy of Law at the University of the Free State - first draft).         [ Links ]
16 This attitude of the government is irritating to the opposition and remains the main variable defining relations between the opposition and the government as reflected in the EDA Political Charter, para 3.
17 Rosen (n 9 above) 307.
18 Rosen (n 9 above) 281.
19 As above.
20 ELF-RC 'The question of constitution from democratic and dictatorial perspective' (1995) 13 Demokrasiawit Eritrea 8 & 9.         [ Links ]
21 P Tesfagiorgis 'A new crusade to end the conspiracy of silence of Eritreans in the Diaspora' (2007) http://www.awate.com/portal/content/view/4501/5/ (accessed 26 November 2007).         [ Links ]
22 Many did join the GoE. See ELF-RC 'Fighters returned to their country faced harassment' (1996) 17 Demokrasiawit Eritrea 2 & 3.         [ Links ] In spite of the harassment alleged to have been committed against the returnees, their attempt to influence the GoE was commendable. In this regard, it is enlightening to note that the most notable challenge to the GoE came in 2000/01 from within. For those challenges, see generally D Connell Conversation with Eritrean political prisoners (2005).         [ Links ]
23 In this regard, SAA Younis observed: 'When the constitution-drafting process began, there were three classes of Eritreans: those who were opposed to it on the basis that it was illegitimate, those who had reservations with it but agreed to participate, and those who embraced it wholeheartedly . Those who had reservations . participated with the view that it is only by doing so that we can affect the end result.' Reaction e-mail written to the author by Younis on 26 April 2007 on the issue of the Constitution.
24 Rosen & Selassie (n 9 above) 174.
25 Art 6.
26 Arts 4(6)(a) & (b).
27 Rosen & Selassie (n 9 above) 143.
28 Art 2(2).
29 Art 6(1).
30 Art 6(2).
31 Arts 6(1) & (3).
32 Public participation was sought for two ends. One end was to get input and reflect the wishes of the Eritrean public in the draft. The other end was to teach the Eritrean public about the basic ideals of constitutional government and constitutionalism (art 5).
33 Art 4 Proclamation 55/1994.
34 Art 6(b) Proclamation 37/1993.
35 Art 2 Proclamation 92/1996.
36 See also Awate 'An exclusive interview with Dr Bereket Habte Selassie' (2001) http://www.awate.com/artman/publish/article_81.shtml (accessed 31 January 2008).         [ Links ]
37 As above.
38 Preamble Proclamation 37/1993.
39 Art 4(2).
40 The Chairperson, the Secretary and one elected female member from each regional assembly (art 4(2)).
41 The Central Council is the legislative arm of the EPLF (now called PFDJ). See PFD] Charter http://www.shaebia.org/PFDJ_Charter_1994.html (accessed 21 April 2007).         [ Links ]
42 Art 4(2) Proclamation 37/1993.
43 Arts 2(3) & (4).
44 Rosen & Selassie (n 9 above) 172.
45 Awate (n 36 above).
46 Tesfagiorgis (n 9 above) 144.
47 Rosen & Selassie (n 9 above) 144.
48 Rosen (n 9 above) 306. See also Rosen & Selassie (n 9 above) 175.
49 Rosen (n 9 above) 306.
50 S Younis 'Constitutions as a door stop' (2007) (paper presented to a conference organised by the African and Afro-American Studies Department of the University of North Carolina at Chapel Hill entitled Islam, Politics and Law in Africa, 12-14 April 2007).         [ Links ]
51 Rosen & Selassie (n 9 above) 166-168.
52 As above.
53 Rosen (n 9 above) 304.
54 Rosen (n 9 above) 307.
55 JS Read 'Nigeria's new Constitution for 1992: The Third Republic' (1991) 35 Journal of African Law 175-6.         [ Links ]
56 The 1992 experience of Seychelles is illuminative. A considerable number of the voters voted 'no' for the Constitution because, led by the influential Catholic Church, they opposed a provision permitting abortion.
57 DR Mekonnen 'The reply of the Eritrean government to ACHPR's landmark ruling on Eritrea' (2006) 31 Journal for juridical Science 50;         [ Links ] Rosen (n 9 above) 304 and ELF-RC 'Interpretation of democracy in a democratic system' (1996) 18 Demokrasiawit Eritrea 16 & 17.         [ Links ]
58 Rosen & Selassie (n 9 above) 145.
59 Rosen (n 9 above) 290.
60 V Hart 'Democratic constitution making' (2003) 7 Special Report 107 of the United States Institute for Peace http://www.usip.org/pubs/specialreports/sr107.pdf (accessed 25 March 2007).         [ Links ]
61 Connell (n 22 above) 7.
62 MR McCord 'The challenges of constitution making in Eritrea' (1997) 6(3) African Voices 3.         [ Links ] McCord JD by then was a democracy fellow with the USAID mission in Eritrea.
63 Younis (n 23 above) and& ELF-RC (n 12 above).
64 DR Mekonnen 'Comments on the draft article: "Ten years old yet not born: The status of the 1997 Eritrean Constitution"' (March 2007) 5 & 6 (on file with author).         [ Links ]
65 Rosen & Selassie (n 9 above) 175.
66 Mekonnen (n 64 above) 2.
67 The author resided in The Gambia from July 2007 to March 2008 and closely observed the preparation for regional assembly elections.
68 For critical observations on the Referendum, see generally K Tranvoll 'The Eritrean referendum: Peasant voices' (1996) 1 Eritrean Studies Review 23-67.         [ Links ] Written from an anthropological perspective, the article introduces benchmarks of evaluating elections which electoral formulas do not often consider.
69 As above.
70 Younis (n 50 above). Younis contended that the 'people [commissioners] that were shortlisted passed a litmus test imposed by the one-party one-ideology National Assembly. If a city is trying to pass an ordinance banning smoking, it cannot exclude smokers on the basis that smoking is bad for you, nor can it include ex-smokers and claim "Everybody was invited".'
71 Squarely on the issue, Younis observed that 'the ELF and the EPLF were mostly left-of-centre revolutionaries and their views overlapped in many important areas'. Connell also sees no ideological difference between ELF and EPLF. Younis (n 23 above) and Connell (n 2 above) 73-91.
72 Rosen & Selassie (n 9 above) 178.
73 Letter of concerned Eritreans to President Isaias Afwerki, October 2000, quoted in BH Selassie 'The disappearance of the Eritrean Constitution' (2001) http://news.asmarino.com/Articles/2001/01/bhs-20.asp (accessed 31 January 2008).
74 KG Kahsai 'Pull-push strategy: Common fallacies amongst us' (2003) http://eri24.com/Article_146.htm (accessed 31 January 2008).
75 Younis (n 50 above).
76 Reflecting this view, Younis (n 23 above) commented that 'next month will mark 10 years since the Constitution has been shelved. It is not going to be as simple as pulling it out of a drawer and implementing it - there is a lot of footwork we will have to do. A lot of discussion - without malice, without arrogance and with humility and a spirit of compromise.' See also A Hidrat 'The red herring on the constitutional process' (2007) http://zete9.asmarino.com/index.php?itemid=883 (accessed 26 November 2007).
77 Z Ibrahim 'Legitimising the illegitimate' (2003) http://www.gabeel.com/modules.php?name=News&file=article&sid=82 (accessed 31 January 2008).
78 See eg TA Taddesse 'The roadmap to democracy and prosperity in Eritrea' (2005) http://news.asmarino.com/Comments/August2002/DrTATaddesse_27.asp (accessed 31 January 2008).
79 See the Political Charter of the EDA in which the EDA envisaged to write a new constitution after the fall of the GoE.
80 ELF-RC 'The EPLF and its "Constitution"' (June/July 1994) 59 The Eritrean Newsletter 12-13.
81 Rosen & Selassie (n 9 above) 162.
82 As above.
83 Rosen & Selassie (n 9 above) 166.
84 The Constitution limits the office term of the State President to two terms of five years each and it provides for multi-parties (arts 19(6), 41(2) & 41(3)).
85 In the context of the Eritrean Constitution, it is important to note that a demand for the implementation of the Constitution is different from a demand for a full or high level of compliance with the Constitution. In many African countries, certain parts of constitutions are violated or they are paid lip service. Yet, such constitutions are part of the legal system and government actions are taken or alleged to have been taken in accordance with these. At least, such constitutions are often cited by government authorities, judicial officials, legal professionals and activists. The situation with the Eritrean Constitution is different. Once ratified, the Constitution is completely ignored by the GoE. The term 'constitution' itself is a term which Eritreans do not dare to say publicly. Except for two initiatives started in 1997 and in 2000 and soon halted, no other action was taken to bring about a transformation from the transitional to the constitutional setting. Logically, elections for the establishment of the constitutional National Assembly had to come first, as the National Assembly is empowered to put the head of the executive and many other constitutional institutions in place. Thus, the Constituent Assembly had to issue relevant laws and establish relevant institutions that are needed to conduct elections for the National Assembly, such as an electoral law and election-supervising body. After being constituted, the constitutional National Assembly has to elect from its members the President and has to issue laws that are required for the full implementation of the Constitution. Afterwards, both the Assembly and the President have to, according to the Constitution, put in place all the relevant institutions. Once these acts have been done and the main state apparatus have been transformed from transitional structures to constitutional structures, it can be said that the constitutional setting has been put in place. Therefore, when one says that the Eritrean Constitution is not implemented, it means that none of the above transformative steps have taken place, nor are the directly operative parts of the Constitution being respected. There is not even a pretentious resemblance to the constitutional order. Institutions and laws which clearly contravene the Constitution have not yet been abolished. Ironically, however, probably assuming that it is hidden from the Eritrean public, the GoE recently heavily relied on the Constitution to defend a case before the African Commission on Human and Peoples' Rights. In its consolidated second and third reports under the Convention on the Rights of the Child submitted to the Committee on the Rights of the Child on 14 June 2007, the GoE again cited almost every part of the Constitution to fool the Committee. See Communication 275/2003, Article 19 v Eritrea (ACHPR, 22nd Activity Report, 2007) para 58. See also the submission of the GoE on the merits, page 2, as attached to the letter of the Ministry of Foreign Affairs, 19 April 2006, reference AAP/244/06. See also SM Weldehaimanot 'The Eritrean Journalists' case before the African Commission' (2008) 27-32, http://selfi-democracy.com/?p=2&l=e (accessed 5 April 2008). See the report http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.ERI.3.pdf (accessed 8 May 2008).
86 Art 3(2) Proclamation 92/1996.
87 In 1997, six months after the ratification of the Constitution, the government appointed a committee to prepare the ground for elections in accordance with the Constitution. It did not continue, though. Selassie (n 73 above).
88 In this regard, the Commissioner lamented: 'I see that it was a mistake to be too trusting of the government and not to insert in the Constitution a definite effective date.' BH Selassie 'Grammar of politics: The Eritrean Constitution and its implementation (part seven)' (2004) http://www.asmarino.com (accessed 31 January 2008).
89 See generally Connell ( n 22 above).
90 In the summer of 2000, the National Assembly, decided elections for the Constitutional National Assembly to be conducted in December 2001 and appointed a committee to draft the electoral and party formation laws. This too was stopped. Awate Team 'The chronology of the reform movement' (2004) http://www.awate.com/artman/publish/article_3629.shtml (accessed 31 January 2008).
91 M Ephrem & S Kesete The ruling (2004).
92 Eritrea and Ethiopia signed the Cessation of Hostilities Agreement in June 2000 and the Framework for Comprehensive Peace Agreement (Algiers Peace Agreement) in December 2000. The main case (delimitation of their common boundary) was decided on 13 April 2002.
93 Such questions come from foreign quarters and often focus on why the Constitution has been shelved. The issue of the Constitution has been so thorny to the GoE that its officials regard it with agitation.
94 At the end of 2003, eg, the State President stated that it is the prevailing war situation or the 'no 'peace or no war' situation that hindered the implementation process. See the President's interview in PFDJ 'Interview with President Issaias Afewerki' (December 2003) Hidri (PFDJ's quarterly official magazine) 16 & 17 (in Tigrinya).
95 Kahsai (n 74 above).
96 Nharnet.com 'Editorials: elections under PFDJ dictatorship' http://www.nharnet.com/Editorials/EritreaToday/pfdj_elections.htm (accessed 31 January 2008).
97 Kahsai (n 74 above).
98 P Tesfagiorgis 'In search of a normal Eritrea' (2003) http://eritreaone.com/pipermail/opinion_eritreaone.com/2003q4.txt?ABCDEFGH (accessed 31 January 2008).
99 Younis (n 50 above).
100 S Tesfamariam 'US-Eritrea relations: Soured by design' (2007) http://www.shaebia.com/ (accessed 28 September 2007).
101 n 85 above.
102 See eg I Afewerki 'Democracy in Africa: An African view' (1998) 2 Eritrean Studies Review 133-141.
103 Afewerki (n 102 above) 134.
104 PFDJ (n 94 above) 16-17.
105 In 2002, eg, the National Assembly was forced to pronounce that the Eritrean people do not want a multi-party democracy. Tesfagiorgis (n 98 above).
106 Interview with Edmund Sanders, Los Angeles Times Staff Writer http://www.latimes.com/news/nationworld/world/africa/la-fg-eritreaweb2oct02,1,7946352.story?coll=la-africa&ctrack=1&cset=true (accessed 3 October 2007).
107 Awate (n 36 above).
108 Immediate implementation of the Constitution after its ratification was clearly envisaged in the various legislations. Arts 3(2) and 4(4) of Proclamation 37/1993 clearly indicate that the lifespan of the GoE is four years (1993 to 1997) maximum and immediately thereafter a constitutional government should have been established.
109 See chs 2 and 3 of the Constitution. See Awate (n 36 above).
110 A good example is the role the South African Constitutional Court played in the constitution-making process of South Africa.
111 Considering the fact that relations between the GoE and the opposition parties and among the opposition parties themselves are hostile, observations of both sides in the constitution-making process and the eventually ratified Constitution are biased. The opposition, in particular, suffers from 'opposition syndrome' of viciously criticising everything the GoE did which in return affects the opposition's maturity and credibility.
112 See eg Hart (n 60 above); Rosen (n 9 above) and Connell (n 22 above) 7.
113 Art 3(2)(a) EDA Political Charter.
114 See art 3(3) in conjunction with art 3(4)(2).
115 To understand the controversy on the Constitution, it is important to note the fact that personal hatred does exist between the high echelon of the GoE and the personalities of the opposition political parties.
116 Awate Team 'Strengthening the EDA' (2006) http://www.awate.com/portal/content/view/4223/2/ (accessed 22 November 2007).
117 Art 3(6)(2) EDA Political Charter. What is even worse, the EDA gave the executive branch of the transitional government the power to establish an electoral commission (art 3(6)(3)).
118 K Samulels 'Post-conflict peace building and constitution making' (2006) 6 Chicago Journal of International Law 667. See also Hart (n 60 above).
119 These included the issue of decentralisation (art 1(5)); citizenship (art 3(2)(3)); the meaning of national symbols (art 4); political parties' law (art 19); electoral law and the detailed organisation, powers and duties of the Electoral Commission (arts 20, 30(2) & 58(3)); land ownership (arts 8(3) & 23(2)); the tenure and number of justices of the Supreme Court (art 49(4)); the jurisdiction, organisation and function of lower courts and the tenure of their judges (art 50); the detailed organisation, powers and duties of the Judicial Service Commission (art 53(2)); the powers and duties of the Advocate-General (art 54), the Auditor-General (art 55(3)), the National Bank (art 56(3)) and Civil Service Administration (art 57(2)).
120 See chs 1, 2 & 3 of the Constitution.
121 See the sections of the Constitution related to the independence of the judiciary, the Electoral Commission, the Advocate-General and the Auditor-General.
122 Art 1(10) EDA Charter.
123 Mekonnen (n 64 above) 5 & 6.
124 Nharnet Team 'Democratic constitution making' (2006) http://www.websitetool-box.com/tool/post/adal/vpost?id=1209620&trail=15#3 (accessed 8 April 2007).
125 In addition to the blue Eritrean flag, the EPLF had a party flag but the ELF did not.
126 The EPLF advocated 'equality of all languages', while the ELF advocated Tigrinya and Arabic to be official languages.
127 The EPLF favoured social transformation while the ELF believed that the national culture should remain unmolested.
128 Younis (n 23 above).
129 See ELF-RC 'Interview with fighter Ahmed Nasr' (1996) 18 Demokrasawit Eritrea 5. (The source is in Tigrinya.)
130 Art 4(3).
131 Awate (n 36 above).
132 Art 1(6) EDA Charter. The only difference is thus that the Constitution left the issue of an official language to subsidiary legislation and probably the EDA will make it a constitutional matter.
133 A glance at the websites of the opposition parties (link to all websites is available at http://www.meskerem.com) shows the politics related to the national flag.
134 Adopted by art 10 of Proclamation 37/1993.
135 Art 4(1).
136 This author differs from Prof Bereket's position that only the dimension of the flag is left by the Constitution to be determined by law. The layout, which is the most important, is left unspecified. See Awate (n 36 above).
137 Even the provision of the EDA Charter that tends to provide for a federal form of government is unclear and it can be read as referring to a decentralised unitary form of government which the Constitution provides for. Art 1(8) EDA Charter. On land and nationality, the Charter is silent.
138 Art 2(2). The EDA is permitted to resort to any means of struggle. Many of the parties within the EDA have military wings with a few armed forces. Awate Team 'Proliferation of armed resistance In Eritrea' (2007) http://www.awate.com/portal/content/view/4660/9/ (accessed 26 November 2007).
139 See eg R Ezetah 'The right to democracy: A qualitative inquiry' (1997) 22 Brooklyn Journal of International Law 495-534; L Fielding 'Taking the next step in the development of new human rights: The emerging right of humanitarian assistance to restore democracy' (1995) 5 Duke Journal of Comparative and International Law 329-77; J Ebersole 'National sovereignty revisited: Perspectives on the emerging norm of democracy in international law' (1992) 86 American Society of International Law Proceedings 249-71; NJ Udombana 'Articulating the right to democratic governance in Africa' (2003) 24 Michigan Journal of International Law 1209-87; RA Barnes 'Democratic governance and international law' (2000) 8 Indiana Journal of Global Legal Studies 281-99; JI Levitt 'Pro-democratic intervention in Africa' (2006) 24 Wisconsin International Law Journal 785-832.
140 See arts 3 and 4 of the Constitutive Act of the African Union adopted in Lomé, Togo, on 11 July 2000.
141 Adopted by the 8th ordinary session of the Assembly of Heads of State and Government, held in Addis Ababa, Ethiopia, on 30 January 2007. The Charter, although hitherto with no ratification (merely adopted and signed by 17 states) is a clear manifestation of the consolidation of the right to democratic governance in Africa.
142 See the Preamble to the Charter.
143 Art 2.
144 Art 3.
145 Art 14.
146 Protocol Relating to the Establishment of the Peace and Security Council of The African Union, adopted by the 1st ordinary session of the Assembly of the African Union held in Durban, 9 July 2002.
147 Art 24 of the Charter.
148 Quoted in SM Weldehaimanot 'Ten years old not yet born: The status of the Eritrean Constitution' (March 2007) http://selfi-democracy.com/?p=2&l=e (accessed 10 April 2008).
149 SM Weldehaimanot 'Government in exile and its legitimacy: Insight to EDA' (March 2008) http://www.awate.com/portal/content/view/4807/5/ (accessed 10 April 2008).
150 See the yearly (2000-06) reports of US Department of State on human rights practices of Eritrea, lamenting that the Constitution has remained unimplemented. See also Department of State Country report on human rights practices for 1997(1998) 105 that observed: 'After a broad process of consultation and civic education, the Constitution was ratified by a constituent assembly elected from newly elected local assemblies.'
151 Statement by The Honourable Jendayi Frazer, US Assistant Secretary on African Affairs before Senate Foreign Relations Sub-Committee on African Affairs' Hearing on Horn of Africa Policy, 11 March 2008.
152 Weldehaimanot (n 148 above).
153 Awate Team (n 116 above).
154 See arts 1 and 2 of the Constitution in 'Constitution of Eritrea' (1999) 24 North Carolina Journal of International Law and Commercial Regulation 521-45.
155 S Bizen 'EDA: From where to where' (June 2007) http://www.emdhr.org/ (accessed 26 June 2007).
156 DG Mikael 'Unsolicited advice to Mr Isaias Afeworki' (2007) http://www.awate.com/portal/content/view/4635/5/ (accessed on 26 November 2007).
157 It is true that a constitution is of a higher level of importance than ordinary legislation. Generally a constitution is different from ordinary legislation in three respects: (1) Apart from common contents, what is contained in a constitution is generally considered of higher importance. (2) In almost all countries, a constitution is supreme over ordinary legislation in that the first prevails over contradictory provision of the latter. (3) In almost all countries, a constitution is more entrenched than ordinary legislation. Thus, it is arguable that the reason why the opposition targeted only the Constitution but not the rest of the laws could be due to the above peculiarities of the Constitution.
158 SM Weldehaimanot & DR Mekonnen 'The nebulous law-making process in Eritrea' (2008 under review) Journal of Legislative Studies.
159 See Mekonnen (n 15 above). See also DR Mekonnen 'Annihilation of rule of law: Cause for all pitfalls in Eritrea' (article series in Tigrinya, part 1 to part 6) (2007) http://www.awate.come (accessed 22 November 2007).
160Article 19 v Eritrea (n 85 above). The communication filed by EMDHR was filed in August 2007 and is expected to be seized of by the African Commission on Human and Peoples' Rights in its 43rd ordinary session.

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