Freedom of expression and the Ethiopian anti-terrorism proclamation: a comparative analysis

Abstract

The Anti-Terrorism Proclamation of Ethiopia has a far-reaching effect on human rights, such as freedom of expression. The provisions of this law that impact freedom of expression are discussed in this article. The law gives leeway to criminalize innocent acts of individuals who are critical of government policies. It criminalizes in/direct encouragement to the preparation, instigation and commission of terrorism through the publication of statements. The law falls short of international standards that require only the criminalization of a speech intended and likely to incite terrorist acts. The Proclamation demands everyone including the media and journalists provide terrorism-related information to law enforcement agencies. The only way to be relieved of this obligation is showing the existence of a ‘reasonable cause’, a phrase that is not defined by the law. Moreover, the journalistic privilege of confidentiality of information and the protection of sources is not stipulated as an exception to the obligation of disclosure of information. Nor does the law provides the circumstances in which a journalist may be forced to divulge her information. Though surveillance and interception undermine democracy, a mere suspicion of terrorism gives the National Intelligence and Security Service a power to conduct surveillance or intercept any type of communications. The Proclamation failed to provide circumstances that a court should consider before permitting surveillance or interception. Surveillance and interception invade privacy and chill freedom of expression. However, the Proclamation failed to provide any safeguards that limit the misuse of executive power against freedom of expression. The legal ambiguity together with the nascent jurisprudence pose problems on freedom of expression. Hence, domestic courts should draw upon or transplant principles and their interpretations from jurisdictions like South Africa and Council of Europe to fill legal loopholes. Moreover, the “jurisprudential dearth” could be filled and the impact of the Proclamation on freedom of expression may be assuaged by incorporating the three-part test (prescribed by law, legitimate aims and necessary in a democratic society) from the well-developed jurisprudences of human rights bodies and regional courts, notably the European Court of Human Rights, which stands at the heart of the Council of Europe system.

Keywords: encouragement of terrorism, freedom of expression, human rights, interception, journalistic privilege, terrorism, surveillance