Constitutionally questionable
By Solomon Hailemariam Posted Dec 1 2008
Despite attempts over several decades to secure a free press, Ethiopia still does not have complete liberty. Many are hoping that 2008’s new draft press law will not severely hamper constitutional rights.
After the 1974 fall of Ethiopia’s last emperor, Haile Selassie I, the Horn of Africa enjoyed a short-lived freedom of the press. The press flourished for two years until the Marxist military regime that deposed Selassie quickly gained control of and quashed the burgeoning industry. This totalitarian government remained in power for almost three decades, during which time censorship was reintroduced and all private printing operations were banned.
With the collapse of the military regime, the Ethiopian press again experienced freedom of expression in the early 1990s, and this freedom was written into law by a transitional government. A 1992 bill outlawing censorship and declaring freedom of speech seemingly ended the struggle between Ethiopian reporters and the government on which they report. Indeed, for several years the private press mushroomed. But after the 2005 election, many journalists were detained, which reminded Ethiopians that the private press is recuperating but still has a long way to go.
Ethiopia has an excellent constitution — at least on the paper. The Ethiopian constitution has accepted the 1948 Universal Declaration of Human Rights as it is. This means that Article 19 of the UDHR stating, “Everyone has the right to freedom of opinion and expression” and also the freedom to “seek, receive and impart information and ideas through any media” has been incorporated in the constitution, effectively making it the law of the land.
Currently, Ethiopian journalists risk losing the freedoms guaranteed by their constitution. A new draft press law, if passed, would do much to silence a strengthening democratic voice in the region. The existence of freedom of expression in general and of media freedom in particular are two of the most important indicators of the presence of democracy in a given country. Perhaps this is why the new draft press law is garnering such attention. As Ethiopia and journalists around the world wait for the passing of the 2008 law, they look to past legislation for clues as to what the new bill might mean for the media.
Article 29 of the 1995 Constitution of the Federal Democratic Republic of Ethiopia lays the legal structure for the existence of freedom of expression in Ethiopia. Accordingly, all the subsidiary laws are supposed to advocate the flourishing of media freedom; however, in 2003, the government introduced a very restrictive draft press law. Many called the law draconian, and the government was forced to come up with a new law. After five years of deliberation, the government drafted this year’s press law, which is less draconian, but is still quite restrictive.
Under the most recent draft law, a public prosecutor could prohibit either the publication or the circulation of a newspaper without court order. There are other ways, of course, to censor the press, and the law addresses those, as well. If the government should choose not to physically stop distribution, it could economically stifle free speech. A defamation charge would liquidate a newspaper business easily because of heavy fines: up to 100,000 birr (10,424.9 USD) — big money for a newspaper in Ethiopia.
Access to information would also be controlled if the new draft press law passes. According to Article 14 of the 2008 legislation, public relations officers of government ministries could permit or reject requests for information in their respective ministries. The draft law allows them to hold information for 30 days, and after that time they could even extend it for another 30 days. A public information officer could simply refuse to give particular information to journalists by saying that it is a matter of “national security.” The government could essentially quarantine the press from its informants. The press law would make failure to disclose sources unlawful, and whistleblowers would likely be tentative to speak out without a safety net of anonymity.
One of the more restrictive sections of the draft press law is Article 43 Sub Article 7. It states, “Defamation against constitutionally mandated legislators, executives and judiciaries will be a matter of the government and prosecutable even if the person against whom they were committed chooses not to press charge.” According to this, even if a defamed official did not wish to take legal action, the public prosecutor would have the power to seek legal action on his or her behalf.
Opposition leaders and some political analysts say the new laws appear to be an attempt to consolidate power before the 2010 general election. Indeed, the government does seem committed to not having the incidents surrounding the 2005 election repeated in the coming election. During the 2005 electoral process, the independent press played a key role in informing the public of the actual political happenings and for the first time in Ethiopian media history, broadcast live the heated election debate. In his article “Discomfiture of Democracy? The 2005 Election Crisis in Ethiopia and Its Aftermath,” G. J. Abbink of the Africa Studies Center at the University of Leiden in the Netherlands wrote, “The elections, although controversial and flawed, showed significant gains for the opposition but led to a crisis of the entire democratization process.”
The government appears to be working hard to avoid a repeat of the 2005 election, when opposition parties won in many cities, including Addis Ababa, the capital. Post- election squabbling led to a governmental crackdown in which numerous people were killed and opposition candidates, civil society advocates, supporters and journalists were imprisoned.
In legal principle, any law that is in direct opposition to the constitution should be null and void. Accordingly, the new draft press law should be found unacceptable if the Ethiopian government is genuinely concerned about freedom of speech. It allows government prosecutors to interfere in freedom of expression and contradicts the basic principles of the UDHR.
Political analysts are concerned that the government, in a deliberate act of restricting journalists’ watchdog role, will not invalidate the draft law. The ruling party has a majority in the Ethiopian parliament, and it is anticipated that the draft press law will easily become the law of the land. This draft law can be brought up at any time, and most probably by the time this article appears in Global Journalist, Ethiopia’s journalists will be forced to abide by a system that encourages self-censorship, especially in reporting governmental issues in order to avoid grave penalties.
Adding to the problem is the fact that the new draft law is not unique to journalism. The government is also introducing similar laws for civilian societies, charity organizations and political parties. All are restrictive and narrow the scope of democracy in the country. Under the proposed legislation, opposing political parties could not accept foreign assistance. Additionally, these parties would have to offer a list of local supporters, which would essentially stir panic in those people who have supported and hesitance in those who have not.
If the opposition’s challenge of the status quo in the 2005 general election proves to be the motivation for these harsh measures, then people must expect to see a very different election in 2010. These new draft laws that attempt to restrict the press, civil societies and political parties would weaken the already floundering democracy in the country.
It appears that the ruling party believes that what Ethiopia needs now is bread, not democracy. The government tells the Ethiopian audience around the clock that its government is 100 percent committed to bringing about development. Development is good but democracy is best; without democracy, it is impossible to guarantee the sustainability of development in a country. If the press in Ethiopia must engage in self-censorship, who will hold government officials accountable? Who will expose bureaucratic wrongdoings?
Perhaps Dan Connell, lecturer at Simmons College in Boston, said it best in his recent interviews with Voice of America. Democracy, he said, is not a luxury. It strengthens governments; it does not weaken them. It is a way of stabilizing a country and holding decision-makers accountable, so that the bad decisions either don’t get made or are held up to the public scrutiny afterward.