By Lindsay Church
The freedom of expression is the cornerstone of a functioning democracy. Journalists monitor the government and share information so that citizens can be informed and participate in the democratic process. This essential right of free speech, however, must be balanced with national security interests—an especially complex task in the face of grievous terrorism threats. Though Ethiopia has signaled its desire to comply with international guarantees, over current President Teshome’s administration the country’s leaders have nonetheless exploited counterterrorism policies to silence political dissidents. This disconnect between promise and practice demonstrates the omnipresent problem of international law: it is difficult to ensure actual implementation and enforcement of international obligations.
International Governance of the Freedom of Expression
International and regional regimes have established mechanisms to complement national protections of the freedom of expression. The Universal Declaration on Human Rights (UDHR) was the first international instrument to shift focus from state sovereignty to the individual as the beneficiary of rights. While the UDHR does not have the binding legal force of a treaty, it sets forth prominent standards through which the international community can review compliance. The International Covenant on Civil and Political Rights (ICCPR) later brought binding force to the idealistic principles articulated in the UDHR. The right to freedom of expression is addressed in article 19:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For the respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
The text of the ICCPR leaves much room for disagreement among parties as to the proper interpretation of the right to freedom of expression. To alleviate the problem of conflicting meanings, the Human Rights Committee issued the highly authoritative, though not legally binding, General Comment No. 34. In this comment, the Committee highlighted the importance of the freedom of expression and emphasized the legal obligations of states parties. It also made policy recommendations related to the balance of freedom of expression and terrorism that states parties should adopt to more effectively implement their ICCPR obligations:
States parties should ensure that counter-terrorism measures are compatible with paragraph 3. Such offences as “encouragement of terrorism” and “extremist activity” as well as offences of “praising,” “glorifying,” or “justifying” terrorism should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interference with freedom of expression. Excessive restrictions on access to information must also be avoided. The media plays a crucial role in informing the public about acts of terrorism and its capacity to operate should not be unduly restricted. In this regard, journalists should not be penalized for carrying out their legitimate activities.
In theory, Ethiopia should comply with these obligations; in reality, however, their enforcement of domestic law directly opposes these commitments.
Freedom of Expression: The Semblance of Free Speech and the Harsh Reality
Ethiopia has a legal framework that prima facie appears to cultivate the freedom of expression—it has ratified major international and regional treaties that guarantee free speech, adopted a constitution that prioritizes civil rights, including the right to freedom of expression, and passed national legislation designed to protect the media. Notwithstanding these measures, journalists critical of the government have been dealt severe civil and criminal sanctions. These punishments are usually imposed within the bounds of domestic law.
Ethiopia’s Anti-Terrorism Proclamation proves especially worrisome. Ethiopian People’s Revolutionary Democratic Front (EPRDF) leaders have credited other nations like the United States and England as inspiration for the law. The Proclamation’s provisions, however, are vague and expansive. Article 5 prohibits rendering support to terrorism, and sub-article (b) specifically bands “provid[ing] a skill, expertise or moral support or giv[ing] advice.” Moreover, article 6 criminalizes “encouragement of terrorism”:
Whosoever publishes or causes the publication of a statement that is likely to be understood by some or all of the members of the public to who it is published as a direct or indirect encouragement or other inducement to them to the commission or preparation or instigation of an act of terrorism stipulated under Article 3 of this Proclamation is punishable with rigorous imprisonment from 10 to 20 years.
Since the law’s adoption in 2009, several journalists have been targeted with trumped-up charges of terrorism. One of the most prominent cases involves Eskinder Nega, who days before his arrest published an online article that condemned the EPRDF for exploiting counterterrorism laws to punish critical voices. Nega was accused of conspiring with a terrorist group, Ginbot 7, to overthrow the government and also receiving weapons and explosives from Eritrea to commit terrorist acts in Ethiopia. Despite the State’s egregiously lackluster case against him, Nega was found guilty and sentenced to eighteen years in prison. In another case, three journalists and six bloggers—collectively known as the Zone 9 bloggers—were accused of working with Ginbot 7 shortly after a Facebook post announcing their return to journalism. Their trials were afflicted with delays and corruption. Five were released earlier this year, and the four others remain behind bars. And in 2011, during the course of investigating human rights violations occurring in the Ogaden oilfields by Ethiopian troops, two freelance journalists from Sweden—Martin Schibbye and Johan Persson—crossed the border from Somalia to Ethiopia without the requisite visas. They were arrested and sentenced to eleven years in prison for entering the country illegally and supporting the Ogaden National Liberation Front (ONLF), a rebel unit that has been designated as a terrorist group. After serving 438 days, the pair was pardoned by Prime Minister Meles Zenawi before his death.
These national laws are being utilized to undercut the right to freedom of expression, violating international standards. The consequences of this are many: the government retains undue influence over the information disseminated within its borders; high-ranking officials can abuse their powers without fear of exposure; the controlling political party faces no real political competition; and journalists and political dissidents are arbitrarily detained and deprived of other fundamental rights.
Ethiopia’s legal framework—both in text and in practice—violates internationally recognized standards regarding the freedom of expression. Ethiopia’s Anti-Terrorism Proclamation in particular has garnered international concern for its vague provisions and targeted use toward journalists and political dissidents. EPRDF leaders have refuted criticisms, attributing the Proclamation’s provisions to anti-terrorism laws from many states that denounce the law. It is imperative that States comply with their commitments to increase respect for the freedom of expression in the international community. Ethiopia’s lack of compliance raises questions about the effectiveness of international laws and treaties more broadly: why do we allow signatories to flagrantly disregard their commitments? How could these standards be better enforced while still allowing states the autonomy to effectively implement counter-terrorism policies?
Lindsay Church is a third-year student at Harvard Law School. She was a Human Rights Fellow at the Media Legal Defence Initiative in London, and conducted research on the effect of antiterrorism policies on free speech while a visiting student at the University of Oxford’s Programme in Comparative Media Law & Policy.