THE PRESIDENCY: WHAT CAN AND CAN’T DO

The Constitution of Eritrea 1997 creates a powerful presidency, but not an unlimited one. The President is the center of the executive branch, the Head of State, the Head of Government and Commander-in-Chief. At the same time, the President is elected by the National Assembly, depends upon it for major appointments and public finance, must implement its laws, and remains subject to constitutional rights, judicial review and removal from office.

The resulting office is neither a conventional directly elected presidency nor a conventional parliamentary premiership. It is best described as a legislature-elected executive presidency. Executive authority is concentrated in one President, but the President derives democratic authority through the National Assembly and must operate within a constitutional system of divided responsibilities.

The constitutional character of the office

Article 39 assigns three roles to the President:

Head of State;
Head of Government; and
Commander-in-Chief of the Eritrean Defence Forces.

These roles are combined in a single office. The Constitution does not establish a separate prime minister or ceremonial president. The President represents the State, directs the Government and holds ultimate constitutional command over the armed forces.

Article 39(2) then provides that executive authority is vested in the President. This is a broad grant. It places responsibility for the direction and administration of the executive government principally in the presidency.

But the same provision imposes two important qualifications. Executive authority must be exercised:

in consultation with the Cabinet; and
pursuant to the Constitution.

The President therefore possesses executive authority, not sovereign authority. The President cannot exercise the legislative power belonging to the National Assembly, the judicial power belonging to the courts, or the independent functions assigned to constitutional institutions.

Election and democratic foundation

The President is not directly elected by the general population. The National Assembly elects the President from among its own members. A presidential candidate must:

already be a member of the National Assembly;
be an Eritrean citizen by birth; and
receive nominations from at least twenty percent of all members of the Assembly.

Election requires an absolute majority of all National Assembly members. Constitution of Eritrea 1997, articles 40 and 41(1).

This method gives the office a legislative foundation. The President must first enter the representative institution and then secure the confidence of an absolute majority of its entire membership. The presidency is therefore constitutionally connected to the composition and political judgment of the National Assembly.

The President serves for five years. The presidential term is expressly made equal to the term of the National Assembly that elected the President. No person may be elected President for more than two terms. Constitution of Eritrea 1997, article 41(2)–(3).

The Constitution consequently rejects an indefinite presidency. A President may serve no more than two five-year terms. Constitutional continuity belongs to the office and the institutions of the State, not to the individual occupying the presidency.

The presidential oath

Upon election, the President must swear:

“that I will uphold and defend the Constitution of Eritrea and that I will strive with the best of my ability and conscience to serve the people of Eritrea.”

Constitution of Eritrea 1997, article 45.

The oath captures the constitutional theory of the office. The President is not asked to defend a political organization, an ideology or a particular government. The President promises to defend the Constitution and serve the people.

The President’s first loyalty is therefore to the constitutional order. A presidential instruction inconsistent with the Constitution would contradict both the legal limits of the office and the President’s personal oath.

The President’s general constitutional responsibilities

Article 39(3) gives the President four overarching responsibilities.

First, the President must ensure respect for the Constitution. This obligation extends throughout the executive branch. The President must ensure that ministries, departments, security institutions and administrative officials act within constitutional and statutory authority.

Second, the President must protect the integrity and dignity of the State. This encompasses national sovereignty, territorial integrity and the proper functioning and standing of public institutions.

Third, the President must ensure efficient management of the public service. The presidency is therefore responsible for the general effectiveness, coordination and legality of executive administration. The President cannot reasonably disclaim responsibility for systematic delay, administrative disorder or executive disregard of the law.

Fourth, the President must protect the interests and safety of all citizens, including their enjoyment of constitutional rights and freedoms. The Constitution does not make the President merely a protector of physical security. It affirmatively links presidential responsibility to the enjoyment of fundamental rights.

The President must consequently protect citizens from unlawful conduct by the Government itself. Protection of the country and protection of constitutional liberty are concurrent presidential obligations.

Direction of the Government and Cabinet

The Constitution establishes a ministerial Cabinet presided over by the President. The President may select ministers from among members of the National Assembly or from outside it. Formal appointment of ministers requires approval by the National Assembly. Constitution of Eritrea 1997, articles 42(7) and 46(1)–(2).

The Cabinet assists the President in:

directing, supervising and coordinating government affairs;
studying and preparing the national budget;
studying and preparing draft legislation for submission to the National Assembly; and
studying and preparing government policies and plans.

Constitution of Eritrea 1997, article 46(3).

The wording is significant. The Cabinet “assists” the President. It does not possess executive authority independently of the President. The structure places the President at the center of collective executive decision-making while requiring consultation and organized Cabinet participation.

The President presides over Cabinet meetings and coordinates Cabinet activities. Constitution of Eritrea 1997, article 42(14). This includes setting an orderly executive agenda, requiring coordination among ministries, resolving administrative conflicts and ensuring that Cabinet decisions are implemented consistently.

The President also has express authority to issue rules and regulations concerning the organization, functions, operations and code of conduct of Cabinet members and the Secretariat of the President’s Office. Constitution of Eritrea 1997, article 46(4).

That provision is a specific rulemaking authorization. It should not be mistaken for an unlimited presidential power to legislate on every subject. Article 32(1)(b) provides that no person or organization may make a decision having the force of law except as authorized by the Constitution or an Assembly Act.

The President may regulate the internal executive matters constitutionally entrusted to the presidency. A presidential regulation that changes the rights or obligations of citizens, however, requires a separate constitutional or statutory basis.

Ministerial accountability

Ministers are accountable in two directions.

Individually, every minister is accountable to the President for administration of that minister’s ministry. Collectively, ministers are accountable to the National Assembly, through the President, for administration of the Cabinet’s work. Constitution of Eritrea 1997, article 47(1).

The President therefore acts as the principal supervisor of ministers and as the constitutional channel through which collective executive accountability reaches the National Assembly.

The National Assembly and its committees may summon a minister through the Office of the President to answer questions concerning the ministry’s operations. Constitution of Eritrea 1997, article 47(2).

The President cannot lawfully use this procedural role to shield ministers from legislative oversight. The Constitution makes the President a channel for accountability, not a barrier to it.

Organization of ministries and departments

The President may establish ministries and departments considered necessary or expedient for the good governance of Eritrea. The President may also dissolve them. This power must be exercised in consultation with the Civil Service Administration. Constitution of Eritrea 1997, article 42(13).

This gives the President substantial authority to organize the executive branch. The President may determine that a particular function requires a new ministry, combine overlapping departments or abolish an executive institution that has become unnecessary.

The authority nevertheless concerns the organization of executive government. It does not permit the President to abolish an institution established directly by the Constitution or to transfer powers that an Assembly Act has assigned to an independent body.

For example, the President could not use Article 42(13) to abolish the Auditor General, the National Bank, the Civil Service Administration, the Electoral Commission or the judiciary. Their constitutional existence does not depend upon presidential preference.

Execution of laws

The President must ensure execution of the laws and resolutions of the National Assembly. Constitution of Eritrea 1997, article 42(5).

This is one of the presidency’s central duties. The National Assembly makes law; the President ensures that the executive branch administers and enforces it.

The President may coordinate ministries, issue legally authorized regulations, allocate responsibilities within the executive branch and require administrative reporting. But execution is not amendment. The President may not suspend, rewrite or refuse to implement an Assembly Act merely because the President disagrees with it.

The constitutional duty is to execute the law faithfully.

Relationship with the legislative process

The President participates substantially in legislation but does not possess the National Assembly’s legislative power.

Initiating legislation

The President may present legislative proposals to the National Assembly. Constitution of Eritrea 1997, article 42(15). The executive branch may therefore identify a need for legislation, prepare a bill and request Assembly consideration.

The proposal remains a proposal until the National Assembly enacts it. Presidential sponsorship does not give a bill legal force.

Signing and publishing legislation

A draft law approved by the National Assembly must be transmitted to the President. Within thirty days, the President must sign it and cause it to be published in the Official Gazette. Constitution of Eritrea 1997, articles 33 and 42(4).

The Constitution does not grant the President an express veto. It says the President “shall” sign and publish approved legislation within thirty days. The better reading is that signature and publication are mandatory constitutional duties rather than opportunities to reconsider the Assembly’s decision.

The President cannot constitutionally transform this publication function into a power to block legislation.

Annual state-of-the-country address

Once every year, the President must address the National Assembly concerning the state of the country and the Government’s policies. Constitution of Eritrea 1997, article 42(1).

This is not merely ceremonial. It is a constitutional reporting obligation. The address should permit the Assembly and the public to examine the Government’s direction, performance, problems and proposed responses.

Emergency Assembly meetings

The President may summon the National Assembly to an emergency meeting and present presidential views to it. Constitution of Eritrea 1997, article 42(3). Article 36(2) similarly requires an emergency meeting at the request of the President, the Assembly Chairperson or one-third of Assembly members.

The President may therefore ensure that the Assembly can respond quickly to an urgent national issue. But the power is to convene the Assembly, not to dictate its decision.

No power to dissolve the National Assembly

The Constitution does not grant the President power to dissolve the National Assembly. This omission is important.

The President cannot terminate the legislature because it rejects a bill, refuses an appointment or opposes an executive policy. The Assembly has its own constitutionally prescribed five-year term.

The national budget and public finance

The President presents the national budget to the National Assembly. Constitution of Eritrea 1997, article 42(15). The Cabinet assists in studying and preparing it. Constitution of Eritrea 1997, article 46(3)(b).

The President proposes; the National Assembly approves. Article 32(3) assigns the Assembly power to approve the national budget and enact tax laws.

The President therefore cannot independently:

enact a tax;
authorize expenditure outside lawful appropriations;
approve the national budget;
bind the State through unauthorized borrowing; or
transfer the Assembly’s fiscal authority to the executive branch.

Government borrowing requires National Assembly approval. Constitution of Eritrea 1997, article 32(5). The Auditor General independently audits government revenue, expenditure and other financial operations and reports to the National Assembly. Constitution of Eritrea 1997, article 55.

The presidency directs fiscal policy and proposes expenditure, but public finance remains subject to legislative authorization and independent audit.

Treaty-making and foreign affairs

The President has authority to negotiate and sign international agreements and may delegate that authority. Constitution of Eritrea 1997, article 42(6).

This makes the President the principal constitutional actor in international negotiation. The President may authorize diplomats, ministers or other representatives to negotiate and sign on Eritrea’s behalf.

But Article 32(4) provides that the National Assembly “shall ratify international agreements by law.” The President’s signature does not substitute for legislative ratification.

The treaty-making process therefore has two constitutional components:

executive negotiation and signature; and
legislative ratification by law.

A presidential signature communicates the executive’s agreement with the proposed treaty and presents it for constitutional approval. The National Assembly’s ratification supplies Eritrea’s legislative consent.

The President also appoints and receives ambassadors and diplomatic representatives. Constitution of Eritrea 1997, article 42(10). This gives the President the conventional Head-of-State role in diplomatic representation.

Defense and command authority

As Commander-in-Chief, the President occupies the highest constitutional position in the military chain of command. Constitution of Eritrea 1997, article 39(1).

The President also appoints high-ranking members of the armed forces and security forces. Constitution of Eritrea 1997, article 42(11).

These powers allow the President to direct national defense policy and appoint senior military leadership. They do not make the armed forces the President’s personal institution. Article 12 requires the defense and security forces to owe allegiance to and obey the Constitution and the government established under it. They must be competent, respectful of the people and accountable under law.

The President commands the forces as a constitutional officeholder. The military’s ultimate allegiance remains with the constitutional order.

The National Assembly retains power to approve a state of peace or war. Constitution of Eritrea 1997, article 32(6). The President therefore cannot unilaterally place Eritrea in a legally recognized state of war merely through the Commander-in-Chief power.

Emergency powers and martial law

The President may declare a state of emergency when public safety or the security or stability of the State is threatened by:

war;
external invasion;
civil disorder; or
natural disaster.

The declaration must be made by proclamation published in the Official Gazette. Constitution of Eritrea 1997, article 27(1).

The President cannot sustain an emergency alone. The declaration does not become effective unless approved by a two-thirds majority of all National Assembly members.

If the Assembly is in session, the declaration must be presented within two days after publication. If it is not in session, it must be summoned to consider the declaration within thirty days. Constitution of Eritrea 1997, article 27(2).

Once approved, an emergency remains in force for six months. Any extension is limited to three months at a time and requires another two-thirds vote of all Assembly members. The Assembly may revoke its approval at any time. Constitution of Eritrea 1997, article 27(3)–(4).

Emergency authority is also substantively limited. An emergency declaration or measure may not:

suspend the equality guarantees in Article 14(1)–(2);
suspend the prohibition against torture and cruel, inhuman or degrading treatment or punishment in Article 16;
suspend the protection against retroactive criminal liability in Article 17(2);
suspend freedom of thought, conscience and belief under Article 19(1);
grant pardon or amnesty to state officials who committed illegal acts under state authority; or
introduce martial law when there is no external invasion or civil disorder.

Constitution of Eritrea 1997, article 27(5).

Article 42(2) recognizes presidential authority to declare an emergency and, when national defense requires, martial law. That provision is expressly subject to Article 27. The President cannot invoke Commander-in-Chief status to escape the procedural and substantive limitations placed on emergency government.

Appointment powers

The Constitution gives the President an extensive but divided appointment authority.

Appointments requiring National Assembly approval

With Assembly approval, the President appoints:

ministers;
commissioners;
the Auditor General;
the Governor of the National Bank;
the Chief Justice of the Supreme Court; and
any other officials whose appointments require presidential action and legislative approval under the Constitution or another law.

Constitution of Eritrea 1997, article 42(7).

The Electoral Commissioner is also appointed by the President with Assembly approval. Constitution of Eritrea 1997, article 58(2).

These are shared appointments. Neither the President nor the National Assembly may complete them alone.

Supreme Court justices

The Judicial Service Commission proposes Supreme Court justices. The President appoints them only after Assembly approval. Constitution of Eritrea 1997, article 42(8).

This is a three-institution process:

the Judicial Service Commission proposes;
the National Assembly approves; and
the President formally appoints.

The arrangement limits unilateral control over the Supreme Court.

Lower-court judges

The President appoints lower-court judges upon the proposal of the Judicial Service Commission. Constitution of Eritrea 1997, article 42(9).

Assembly approval is not expressly required for these appointments, but the President cannot select candidates independently of the Commission’s proposal.

National Bank Board

The President appoints members of the National Bank’s Board of Directors. The Governor, by contrast, requires Assembly approval. Constitution of Eritrea 1997, article 56(2).

Board appointment does not authorize the President to direct monetary decisions informally. The Bank’s detailed organization, powers and duties must be established by law.

Ambassadors and military officers

The President appoints ambassadors and diplomatic representatives and appoints high-ranking members of the armed and security forces. Constitution of Eritrea 1997, article 42(10)–(11).

The Constitution does not expressly require Assembly approval for these appointments, although legislation may regulate qualifications, procedures and terms of service.

Offices for which the Constitution does not specify presidential appointment

The Constitution establishes the Judicial Service Commission, the Advocate General and the Civil Service Administration but leaves their detailed organization, powers and duties to legislation. It does not itself expressly say that the President appoints every member or leader of these institutions.

Presidential appointment authority over them must therefore come from a properly enacted law. It should not be assumed merely because the President heads the executive branch.

Removal powers

Article 42(17) authorizes the President, subject to Article 52(1), to remove any person appointed by the President.

This provision should be read together with the conditions governing the particular office. It does not necessarily permit arbitrary removal of officials whose tenure, independence or permissible grounds of removal are protected by the Constitution or an Assembly Act.

The Auditor General, for example, is appointed for five years and is accountable to the National Assembly. Constitution of Eritrea 1997, article 55(2). The office’s statutory framework should reconcile presidential appointment and removal with the Auditor General’s fixed term and independent accountability.

Judges receive stronger express protection. A judge may be removed before the expiration of the judicial term only by the President acting upon a recommendation of the Judicial Service Commission. Removal may be based only upon:

physical or mental incapacity;
violation of law; or
breach of the judicial code of conduct.

The Commission must investigate and decide whether removal should be recommended. The President cannot independently initiate and complete judicial removal. Constitution of Eritrea 1997, article 52(1)–(2).

The President may suspend a judge under investigation, but again only on the Judicial Service Commission’s recommendation. Constitution of Eritrea 1997, article 52(3).

The President’s role is formal and consequential, but it is not a power to discipline judges for their decisions.

Relationship with the judiciary

The Constitution gives the President a role in judicial appointments and formal removal, but no authority to direct judicial decisions.

Article 48(2) declares that courts are free from the direction and control of any person or authority. Judges are subject only to the law, their judicial code of conduct and their conscience.

That prohibition includes the President. The President may not:

instruct a court how to decide a case;
require a judge to favor the Government;
punish a judge for an adverse lawful decision;
interfere with case assignment;
obstruct enforcement of a judgment; or
use appointment power to exercise continuing control over judicial work.

All state organs must assist the courts in protecting their independence and dignity. Constitution of Eritrea 1997, article 48(4). The President’s Article 39 obligation to ensure respect for the Constitution includes a positive duty to protect the judiciary from executive interference.

The Supreme Court has exclusive authority to interpret the Constitution and determine the constitutionality of laws and government actions. Constitution of Eritrea 1997, article 49(2)(a). Presidential actions are therefore reviewable for constitutionality.

Clemency powers

The President may:

reprieve offenders;
grant pardons; and
grant amnesty.

Constitution of Eritrea 1997, article 42(12).

A reprieve ordinarily delays or temporarily suspends punishment. A pardon excuses or reduces the legal consequences of an offense for a particular person. Amnesty generally applies more broadly to a category of persons or offenses.

The clemency power does not authorize the President to determine guilt in pending cases, control judicial proceedings or erase private legal rights beyond what the law permits.

It is also subject to Article 27(5)(b). During an emergency, the President cannot pardon or grant amnesty to persons who, acting under state authority, committed illegal acts. The Constitution prevents emergency power from becoming a means of immunizing government officials for unlawful conduct.

Honors

The President may confer medals and other honors upon Eritrean citizens, residents and friends of Eritrea. The President must consult relevant organizations and individuals. Constitution of Eritrea 1997, article 42(16).

This is principally a Head-of-State function. Even here, the Constitution favors consultation rather than purely personal presidential discretion.

Constitutional amendment

The President may initiate and table a proposal to amend any provision of the Constitution. The same power may be exercised collectively by fifty percent of all National Assembly members. Constitution of Eritrea 1997, article 59(1).

The President cannot amend the Constitution unilaterally. Once proposed, an amendment must pass two demanding Assembly stages:

approval by three-quarters of all Assembly members, identifying the particular constitutional provision to be amended; and
approval of the same amendment again one year later by four-fifths of all Assembly members.

Constitution of Eritrea 1997, article 59(2).

The President therefore has an initiating power, not a constitutional amendment power.

Accountability for fundamental rights

Article 28 prohibits the executive and all government agencies from taking action that abolishes or abridges constitutional rights unless the Constitution itself authorizes the limitation. An unconstitutional action is null and void.

An aggrieved person may petition a competent court. The court may issue whatever orders are necessary to secure enjoyment of the right and may award monetary compensation for resulting damage. Constitution of Eritrea 1997, article 28.

These provisions apply to presidential action. The President’s broad executive authority does not displace fundamental rights.

Article 26 also requires any limitation of constitutional rights to:

serve one of the constitutionally identified purposes;
remain consistent with democracy and justice;
apply generally;
preserve the essential content of the right;
state the ascertainable extent of the limitation; and
identify the constitutional provision authorizing it.

A presidential policy cannot lawfully limit a constitutional right merely because the President considers the policy beneficial. The limitation must have lawful authority and satisfy the Constitution’s substantive safeguards.

Legislative checks upon the President

The National Assembly exercises several major checks:

It elects the President.
It may remove the President.
It enacts the laws the President must execute.
It approves the national budget.
It enacts taxes.
It approves government borrowing.
It ratifies international agreements by law.
It approves peace, war and national emergencies.
It approves major presidential appointments.
It oversees execution of laws.
It may summon ministers through the President’s Office.
It may revoke an emergency declaration.
It receives the Auditor General’s reports.

Constitution of Eritrea 1997, articles 31–32, 36, 41, 47 and 55.

The President is therefore institutionally strong but fiscally, legislatively and constitutionally dependent upon the National Assembly.

Removal from office

The National Assembly may remove the President before the end of the term by a two-thirds majority of all its members for:

violation of the Constitution or grave violation of law;
conduct bringing the authority or honor of the presidency into ridicule, contempt or disrepute; or
physical or mental incapacity preventing performance of presidential functions.

Constitution of Eritrea 1997, article 41(6).

The National Assembly determines the procedures governing presidential election and removal. Constitution of Eritrea 1997, article 41(7).

Where the President is impeached and charged for constitutional or grave legal violations, or for conduct bringing the office into disrepute, the Supreme Court has exclusive jurisdiction to hear and adjudicate the charges. Constitution of Eritrea 1997, article 49(2)(b).

The Constitution appears to distinguish removal for incapacity from adjudication of charges for wrongdoing. Article 49(2)(b) refers only to the grounds contained in Article 41(6)(a) and (b), not incapacity under Article 41(6)(c).

Presidential immunity

While in office, the President may not be sued in a civil proceeding. Where a proceeding concerns an official presidential act, the State may be sued instead. Constitution of Eritrea 1997, article 43(1)(a).

The President may not be charged with a criminal offense unless impeached and charged under Article 41(6)(a) or (b). Constitution of Eritrea 1997, article 43(1)(b).

After leaving office, no court may entertain a civil action against the former President for an act performed in an official presidential capacity. Constitution of Eritrea 1997, article 43(2).

This immunity protects the functioning of the office, but it does not make presidential action constitutionally unreviewable. Official action may be challenged through proceedings against the State, and the Supreme Court may determine the constitutionality of government action.

Nor does immunity prevent impeachment and adjudication of qualifying charges. It changes the procedure through which presidential responsibility is enforced.

Privileges for former Presidents must be established by law. Constitution of Eritrea 1997, article 44. The incumbent President cannot unilaterally determine personal post-presidential benefits.

Vacancy and succession

If the presidency becomes vacant because of death, resignation or removal, the Chairperson of the National Assembly automatically assumes office as acting President.

The acting presidency may last no more than thirty days. During that period, the National Assembly must elect another President to complete the predecessor’s remaining term. Constitution of Eritrea 1997, article 41(4).

A partial term served by the replacement President does not count as a full term for purposes of the two-term limitation. Constitution of Eritrea 1997, article 41(5).

This is a clear rejection of hereditary succession, military succession and unilateral executive designation of a successor. Authority passes temporarily to the Assembly Chairperson, and the National Assembly elects the replacement.

What the President cannot constitutionally do

The overall design becomes clearest when the President’s absences of power are considered. The Constitution does not authorize the President to:

enact Assembly Acts;
impose taxes;
approve the national budget;
authorize government borrowing;
ratify treaties without the National Assembly;
approve a state of war;
sustain an emergency without Assembly approval;
suspend nonderogable rights;
dissolve the National Assembly;
veto enacted legislation;
amend the Constitution;
direct courts or decide cases;
dismiss judges without a Judicial Service Commission recommendation;
interfere with the independent Electoral Commission;
abolish constitutional institutions;
remain in office for more than two elected terms;
designate a hereditary or personal successor; or
make decisions having the force of law without constitutional or statutory authority.

The Constitution establishes a powerful executive office, but it does not establish presidential supremacy.

The presidency in constitutional perspective

The Eritrean President is intended to be an energetic national executive. The President directs government, coordinates ministers, organizes executive departments, implements legislation, proposes budgets and laws, conducts diplomacy, commands the defense forces, makes major appointments and responds to emergencies.

But every major category of presidential authority is accompanied by a constitutional relationship:

executive power must be exercised pursuant to the Constitution;
Cabinet government requires consultation;
ministers remain answerable to the National Assembly;
laws are made by the Assembly;
money is controlled through legislative approval and independent audit;
treaties require legislative ratification;
emergencies require supermajority approval;
judicial appointments involve the Judicial Service Commission and, for the Supreme Court, the Assembly;
courts may invalidate unconstitutional government action;
fundamental rights bind the executive;
presidential tenure is limited; and
misconduct can result in removal and Supreme Court adjudication.

The presidency is therefore powerful enough to govern but intended to remain constrained enough to prevent personal rule. Its constitutional purpose is not to replace Eritrea’s institutions. It is to help them function.

A constitutionally faithful President should measure success by whether laws are executed, rights are protected, public services operate efficiently, the Cabinet is coordinated, independent institutions remain independent, and the country can pass peacefully to another elected President at the end of the constitutional term.