Mekelle/Tel Aviv/Nairobi/Pretoria/London
Constitutional Supremacy and Contested Areas: Analyzing the Constitutional Pathways and Obligations Under Article 10(4) of the Pretoria Agreement and Article 2(1)(d) of the Nairobi Declaration-
written by a legal expert
(September, 2025)
1. Introduction:
The Pretoria Agreement of November 2022 was a monumental political and diplomatic achievement that halted a devastating armed conflict. However, its deliberate ambiguity on critical issues, while necessary for securing an immediate ceasefire, created a legal vacuum with profound implications for Ethiopia’s constitutional order. This tension is most apparent in Article 10(4) of the Pretoria Agreement, which commits the parties, the federal government and the TPLF, to “resolving issues of contested areas in accordance with the Constitution of the Federal Democratic Republic of Ethiopia.”
This provision, a masterpiece of political and diplomatic compromise, deferred a politically explosive issue but left fundamental constitutional questions unanswered: What is the precise meaning of this political and legal commitment? Does it imply that these areas remain under the Interim and permanent administration of the Tigray Regional State pending a constitutional process? And what, in law, constitutes the “issues of contested areas” to be resolved?
This legal analysis argues that Article 10(4) of the Pretoria Agreement is not a self-executing solution but a procedural gateway, channeling the political problem of “contested areas” into the pre-existing, rigid framework of the FDRE Constitution. The analysis will deconstruct the phrase “issues of contested areas” to demonstrate that, in the absence of a formal interstate border claim by the rightful constitutional actors, it can only be legally understood as a reference to allegedly unresolved identity-based claims by certain groups within and outside of the Tigray Regional State. It further contends that the principle of constitutional finality, inherent in Article 48 of the FDRE Constitution, renders the 2018 Tsegede-Tegede agreement a binding and final settlement, thereby precluding its unilateral reopening.
By examining the integrated function of Article 2(1)(d) of the Nairobi Declaration, this legal note concludes that the legal and logical imperative of the Pretoria Agreement is the restoration of the constitutional status quo ante as the necessary precondition for any legitimate process. Ultimately, this legal analysis demonstrates that the Pretoria Agreement’s true power lies not in creating new law or procedures, but in reinforcing the supremacy of the existing constitutional order. It mandates that the Tigray Interim Regional Administration exercise authority over all territories within its pre-war boundaries until the Constitution’s precise procedures for state border change are formally invoked by the designated actors and resolved in accordance with the FDRE Constitution.
2. The Supremacy of the FDRE Constitution
The Pretoria Agreement must be understood within the hierarchy of Ethiopian law. The FDRE Constitution is the supreme law of the land . Any agreement, domestic or international, must conform to its framework. Furthermore, for an international agreement like the Pretoria Agreement to have direct domestic legal effect, it requires ratification by the House of Peoples’ Representatives pursuant to Articles 51(8), 55(12), 57, 71(2) and 9(4) of the FDRE Constitution. This parliamentary ratification has not occurred. It is also not promulgated under the Federal Negarit Gazette and as a result, it may not have the status of domestic law in Ethiopia. Therefore, the Pretoria Agreement itself does not create new legal rights or procedures. Its power lies in its political commitment to channel disputes into the existing constitutional framework. Article 10(4) of the Pretoria Agreement acts as a gateway to the FDRE Constitution; it does not override or replace it.
3. Deconstructing “Issues of Contested Areas”: The Two Constitutional Pathways
Article 10(4) of the Pretoria Agreement states:
“The Parties commit to resolving issues of contested areas in accordance with the Constitution of the Federal Democratic Republic of Ethiopia.”
This provision contains a critical and highly contentious, yet deliberately vague, commitment. It served as a necessary diplomatic compromise to achieve cease hostilities, thereby intentionally kicking the “issues of contested areas” into the domain of Ethiopia’s constitutional order. The central legal question is what constitutes the “issues of contested areas” under the Pretoria Peace Agreement? Does this phrase refer to identity based claims, border disputes/claims, or both?
The phrase, ‘issues of contested areas’ tactfully coined by the drafters of the peace deal, is a tricky one. The Agreement’s use of the generic term, “issues of contested areas”, rather than specific terms like “border dispute” or “identity recognition question”, was a necessary diplomatic compromise to achieve a cessation of an active war. It seems that this was a necessary diplomatic compromise during that time.
The agreement’s lack of specification regarding the disputing parties leaves the matter to be decided in accordance with the supreme law of the land. Explicitly stating identity based recognition claims, or the interstate border dispute between the Amhara and Tigray Regions could have been politically explosive for the federal government and might have prevented the TPLF from signing the agreement. The ambiguous phrasing might allowed the cessation of hostilities by deferring “issues of contested areas” to a later, constitutional process. In this sense, Article 10(4) of the Pretoria Peace Agreement functions as a gateway to the FDRE Constitution; it does not override or replace it
That said, the phrase “issues of contested areas” generally encompasses identity based claims and border claims; there are competing constitutional provisions under the Constitution which are possibly applicable to the phrase “issues of contested areas”. Since the Agreement mandates a constitutional resolution and to give the phrase legal meaning, we must look to the only relevant legal framework it references: the FDRE Constitution.
In order to decide the applicable constitutional provisions in resolving issues of contested areas, thus, one must examine the constitutional provisions addressing the procedural requirements for raising interstate border disputes and identity recognition questions. To give it legal meaning, in other words, we must look to the only relevant legal framework it references: the FDRE Constitution. Under the FDRE Constitution there are two distinct possible pathways to interpret the “issues of contested areas”: Interstate border disputes and Identity recognition claims/questions.
A. Inter-State Border Disputes :
According to Articles 48 and 62(6) of the FDRE Constitution and relevant Proclamation, only the concerned and contiguous/adjoining regional state governments can legally raise an interstate border dispute. The primary method is resolution by agreement between the regional States. Where the concerned regional States fail to reach agreement, the House of Federation (HoF) renders a final and binding decision within two years. The signatories to the Pretoria Agreement (the Federal Government and the TPLF) lack the constitutional authority to raise or settle a border dispute between the Amhara and Tigray regions. What they can and did do is using their political mandate to acknowledge that a given problem existed, given the actions of the legal right holders to raise that acknowledged problem.
Thus, a formal written claim from a contiguous regional state (in this case, Amhara or Afar) is the mandatory first step to initiate the constitutional process for resolving an interstate border dispute, if any, when the issue is a border dispute rather than an identity claim. This is not an optional procedure/measure; rather it is the constitutionally required procedure under the FDRE Constitution and enabling Proclamation. This formal interstate border dispute or interstate border claim is what officially identifies and establishes the “parties” (concerned interstate border disputing regional States) to the legal border dispute(s).
Until such a claim is filed by concerned regional administration, the issue remains a political or “contested” problem. Without a formal claim, the concerned elected regional administrations of regions lack a specific legal case to resolve to resolve, the HoF lacks a legal case to adjudicate, and there are no formal legal “parties” to the dispute. Until one regional state formally files a claim with another, therefore, there is no legal “border dispute” for the concerned regional States or the HoF to resolve, respectively. The “issue” remains a political contention, not a justiciable legal case.
B. Identity Recognition Questions :
Under Article 39(5) of FDRE Constitution, a given community claiming a distinct ethnic identity can apply for recognition, which may entail intra-state administrative reorganization. Identity recognition applications are made to the concerned Regional State Council, or if the concerned Regional State Council has not been decided within two years or if the decision made dissatisfied the concerned party, to the House of Federation. The identity recognition question shall be submitted to the House of Federation only under conditions that the question has not been given due solution by various organs in the administrative hierarchy of the regional State concerned.
That said, given the absence of a formal interstate border claim , the “issues of contested areas” referenced in the Pretoria Agreement can more plausibly be interpreted as an acknowledgment of pending media reported allegedly identity-based recognition questions by communities within and outside of the Tigray Regional State since 2018. This is the only pathway that aligns with the constitutional requirement that such claims be initiated by the concerned community itself.
In conclusion: Legally, the “issues of contested areas” cannot be treated as a formal interstate border dispute because the constitutionally mandated actors have not initiated the process before and after the signing of the Pretoria agreement. The most legally sound interpretation is that the phrase “issues of contested areas” points to unresolved identity claims.
4. The Constitutional Finality of Prior Settlements: The 2018 Tsegede-Tegede Agreement
The provision in Article 48(2) of FDRE Constitution states:
“The House of Federation shall, within a period of two years, render a final decision on a dispute submitted to it pursuant to sub Article 1 of this Article.”
While this provision explicitly refers to decisions made by the House of Federation, the logical constitutional aim and structure also implies that a mutual agreement between two or more regional states, which is the primary method of inter-state border resolution, must be final. To hold otherwise would create a perpetual cycle of dispute, fundamentally undermining legal certainty, stability, and the possibility of effective governance, thereby the entire system would risk being trapped in an endless loop of renegotiation, making governance impossible.
In addition, Article 48(1) of FDRE Constitution provides:
“All State border disputes shall be settled by agreement of the concerned States. Where the concerned States fail to reach agreement, the House of Federation shall decide such disputes on the basis of settlement patterns and wishes of the peoples concerned.”
The controlling phrase under this provision is “Where the concerned States fail to reach agreement”, which implies that where an agreement reached by the concerned States, the matter is finally settled and cannot be referred to the House of Federation. This means that if the concerned regional States do reach agreement, the matter cannot be referred to the House of Federation, nor can the House decide such disputes on the basis of settlement patterns and wishes of the peoples concerned.
In other words, any inter-state border dispute settled by mutual agreement of the concerned regional States is final and binding of the specific border issue it addresses . Whether resolved by a mutual written agreement between two or more regional States or by a decision of the House of Federation, therefore, the principle of finality is inherent in the essence, aim, and structure of Article 48 of FDRE Constitution. Thus, a mutually concluded written agreement between the concerned regional States constitutes a final and binding resolution to that dispute.
Accordingly, the Western Tigray presents a specific case that testing under the principle of finality as provided in Article 48 of FDRE Constitution. In 2018, the Amhara and Tigray regional States reached a formal written agreement concerning Tsegede-Tegede Woredas, as envisioned by Article 48(1) of the FDRE Constitution. This inter-state border settlement agreement is not a mere political memorandum; it is a legally binding inter-state border resolution that constitutes a final settlement for that specific border dispute. The constitutional architecture strongly supports the finality for such mutually agreed resolutions as provided by Article 48(1) of the FDRE Constitution.
This interpretation is reinforced by several fundamental legal principles:
First, the fundamental principle of pacta sunt servanda : (agreements must be kept) applies directly. It dictates that willfully entered agreements must be upheld in good faith. Indubitably, the principle of pacta sunt servanda in the law of agreements/contracts is based on good faith. This foundational legal principle applies with full force to the 2018 Tsegede-Tegede Agreement, which was concluded in writing between the duly authorized presidents of the Amhara and Tigray Regional States.
As an interstate pact reached under the framework of Article 48 of FDRE Constitution, it is not a non-binding political memorandum but a legally binding settlement that both parties are obligated to respect and perform. To allow one party to unilaterally invalidate this agreement through force ex post facto would eviscerate the principle of Pacta Sunt Servanda and undermine the very foundation of legal order and inter-state trust.
Second, the principle of estoppel further precludes the Amhara and Tigray Regional States from contesting an agreement it formally concluded and acted upon. Having entered into the 2018 agreement and participated in its implementation, the Amhara Regional State is now estopped from denying its validity of the agreement they have acted upon and from asserting the settled borders are suddenly open for border dispute. To allow such reversal would sanction a profound injustice and reward bad faith conduct, thereby destabilizing the very foundation, object and purpose of inter-state agreements as a means of border dispute resolution mechanism.
Third, the rule of law and the principle of legal certainty require that settled matters remain settled to ensure certainty, stability and predictability. Again to argue otherwise would lead to endless litigations, legal uncertainty and instability, thereby undermining stable and effective regional governance.
Moreover, following the signing of the 2018 agreement, interstate border changes took place in the presence of officials from both regional States in accordance with the concluded agreement. To reopen the Tsegede-Tegede and related border issue, therefore, a party would need to invalidate the 2018 agreement on robust legal grounds (e.g., duress, fraud), which are absent. The only legal ways to alter the interstate border is through amendment of the 2018 agreement or a new mutual agreement. Thus, this specific border issue, “contested area”, has already been constitutionally resolved.
If reopening is barred by the principle of finality, then the territories beyond the Tsegede District of Tigray, such as Wolqait, Humera, do not fall within the framework of Article 48 of FDRE Constitution, as they are non-contiguous territories of the Amhara Regional State. Hence, the Amhara Regional State cannot legally claim these non-contiguous territories while the 2018 agreement remains valid.
5. Article 2(1)(d) of the Nairobi Declaration: Integration with Constitutional Process
Article 2(1)(d) of the Executive Declaration on Modalities for the Implementation of the Pretoria Agreement, which was signed in Nairobi on 12 November 2022, stipulates that “Disarmament of heavy weapons will be done concurrently with the withdrawal of foreign and non-ENDF forces from the region [Tigray].” This provision is integral to implementing Article 10(4) of the Pretoria Agreement, as it aims to create the necessary conditions for a constitutional resolution of the “contested areas” by ending military occupation and removing extra-constitutional administrations.
A coherent interpretation begins with the term “non-ENDF forces,” which encompasses all armed entities other than the Ethiopian National Defense Forces (ENDF). This explicitly includes Eritrean forces, Amhara regional forces, and Amhara-affiliated non-regional state armed forces. The obligation to withdraw concurrently with disarmament therefore applies to all such forces deployed within the territory of the Tigray Regional State as defined by the FDRE Constitution, a definition that necessarily includes the territories designated as “contested areas.”
The logical implication of this withdrawal, read in conjunction with Article 10(4), is the restoration of the constitutional status quo ante. Since the ultimate resolution of these areas is to be determined by constitutional procedures, either through an agreement between the concerned regional states or a decision by the House of Federation, yet unrestored and illegally occupied territories of Tigray must revert to the Tigray Regional State (at present, to the Tigray Interim Regional Administration). This is the only administration recognized under the FDRE Constitution for that territory until a formal state border change is effected through the prescribed constitutional channels.
Consequently, the existing de facto Amhara or its affiliated local administrations in these areas are illegitimate and must be dissolved by the federal government accordingly. Failure to enforce this fundamental constitutional principle would set a dangerous precedent, effectively rewarding the illegal use of force for territorial occupation and undermining the very constitutional framework designed to resolve such disputes legally.
In addition, the phrase “from the region” under Article 2(1)(d) of the Nairobi Declaration must be interpreted with reference to constitutionally defined territories of the regional States in Ethiopia. I am of opinion that we should interpret the term “from the region” based on the FDRE Constitution and the Constitutions of the Amhara and Tigray regional States. If the “contested areas” refer to places such as Wolkait, Humera, Tsegede, Tselemti, Raya Alamata and so on, then according to the FDRE Constitution and the constitutions of the Tigray and Amhara regional states, these areas are integral parts of the Tigray Regional State. Critically, at the time of the Pretoria agreement, “non-ENDF forces” were present only in specific territories: the entire Western Tigray Zone, parts of the Southern Tigray Zone, and parts of the North-Western Tigray.
Therefore, the clause mandating the “withdrawal of foreign and non-ENDF forces from the region” has a specific and undeniable application: it requires the withdrawal of Amhara forces and their affiliated militias from these precise territories. Hence, the federal government’s obligation is to ensure this withdrawal. This interpretation is not only textually sound but also essential for aligning the Nairobi Declaration with the constitutional framework invoked by the Pretoria Peace Agreement.
6. In summary: This analysis argues that Article 10(4) of the Pretoria Peace Agreement is not a self-executing provision but a political commitment to utilize pre-existing constitutional mechanisms. The commitment of the parties to resolving issues of contested areas in accordance with the FDRE Constitution strongly indicates that the commencement and completion of the resolution process shall be guided by the preexisting constitutional framework outlined in the FDRE Constitution.
By examining the FDRE Constitution’s specific procedures for resolving interstate disputes, this legal note concludes that:
1. The phrase “issues of contested areas”, under Article 10(4) of the Pretoria Peace Agreement, legally points towards identity-based claims by communities, as no formal inter-state border dispute has been raised either by the Amhara or Tigray regional State as required by law.
2. The 2018 written agreement on Tsegede-Tegede border between the Amhara and Tigray regional States possesses constitutional finality and cannot be unilaterally reopened later. This conclusion fundamentally shapes the interpretation of Article 10(4) of the Pretoria’s Agreement: ‘issues of contested areas’.
Since inter-state border dispute regarding Western Tigray was conclusively resolved through this formal agreement, the phrase ‘issues of contested areas’ cannot legitimately refer to a resolved border dispute. Instead, it should be construed as pertaining to an allegedly unresolved identity based claims in the Tigray Regional State, the only category of constitutional ‘issue’ that remains legally viable for these contested areas.
3. Consequently, the constitutional status quo of regional boundaries must be maintained until the rightful legal actors, the contiguous regional states formally raise and resolve interstate border dispute as prescribed by the FDRE Constitution and relevant Proclamations. Precedents from prior interstate border dispute resolutions also strongly support this approach.
The restoration of the Southern Tigray Zone of Tigray to the Tigray State also underscores this principle, which has not yet been applied to the Western Tigray and parts of the North-Western Tigray without a legally sound justification. However, apart from political and security considerations , there is no legally sound defense for not restoring territories of the entire Western Tigray Zone and parts of the North-Western Tigray Zone to the Tigray Regional State (now Interim Regional Administration of Tigray State), whereas territory of the Southern Tigray Zone was restored.
7. Conclusion and Implications
Article 10(4) of the Pretoria Agreement succeeds as a ceasefire mechanism but defers the substantive resolution to Ethiopia’s constitutional order. In essence, the Pretoria Agreement kicked the ball into the constitutional framework. As per Article 10(4) of the Pretoria Agreement, any inter-state border dispute over such areas must be raised and addressed through the pre-existing constitutional procedures of Ethiopia, such as by agreement of the disputing regional states or decision by the House of Federation, and not through unilateral action or the use of force. Thus, the meaning and implications of the phrase, “issues of contested areas” within the context of the Pretoria Agreement should be defined with reference to the FDRE Constitution and relevant subordinate legislation.
Consequently, state borders must remain as per the constitutionally defined regional states until such disputes are formally raised and resolved in accordance with the established constitutional framework.
The analysis leads to inescapable conclusions:
1. Constitutional Process is Paramount: The FDRE Constitution dictates that who can raise an identity recognition question and inter-state border dispute and how. The signatories to the Pretoria Agreement cannot shortcut these constitutional procedures.
2. The Constitutional Status Quo Ante must be restored: In the absence of a formal border dispute claim by either regional state and given the finality of the 2018 Tsegede- Tegede agreement, the constitutionally defined territories of the Tigray Regional State must be preserved.
Accordingly, the restoration of the legitimate authority over Western Tigray and parts of the North-Western Tigray to the Tigray Regional State (at present, to the Tigray Interim Regional Administration) is a legal imperative and necessary constitutional requirement. This is a fundamental requirement of the rule of law and constitutionalism designed to prevent unilateral state border changes by illegal use of force and violence.
The principles of rule of law and constitutionalism are apparently reflected in the actions of federal institutions regarding federal subsidiary budgets allocation. It is based on this understanding that federal institutions, including the House of Federation and the Ministry of Finance, have consistently declined to allocate and disburse federal subsidiary budgets to the de facto local administrations in these territories, whether directly or through the Amhara Regional State. This administrative practice underscores a critical legal reality indicating that these territories are not constitutionally recognized as part of the Amhara Regional State. Their status remains integral to the Tigray Regional State until altered through the prescribed constitutional framework.
3. The Path Forward: The fulfillment of Article 10(4) of the Pretoria Peace Agreement requires the rightful actors, either communities (for identity based claims) or the Amhara Regional State (for an interstate border dispute), to initiate the formal constitutional processes, if they wishes to do so. Until then, the Pretoria Agreement merely reaffirms the obligation of all parties to respect and use the FDRE Constitution.
In essence, the Pretoria Agreement cannot and did not create a new problem or solution; it placed an existing political conflict, namely “issues of contested areas”, into the only legitimate legal forum available for its resolution, thereby reinforcing the supremacy of the constitutional order. Thus, the Western Tigray Zone ought to be restored to the Tigray Regional State, consistent with the restoration of the Southern Tigray Zone .
