THE MEDIA FOUNDATION FOR WEST AFRICA

PETITION TO THE GOVERNMENT OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA TO WITHDRAW THE DRAFT PRESS PROCLAMATION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA

The Media Foundation for West Africa (MWFA) is an autonomous civil society organization committed to the promotion of freedom of expression in West Africa, and to the defence and promotion of media freedom, including that of the press, and to the development of high journalistic standards in the West African sub-region. It is also committed to the promotion of the same objects across the continent, as it is keenly aware of the need to maintain a pan-Africanist approach to developments in the West African sub-region if it is to be effective.

The MFWA respectfully wishes to make this contribution to the important processes going on in Ethiopian polity with respect to the draft Press Proclamation. We are from the onset compelled to note some limitation in our critique.

The version of the draft proclamation we have studied is an unofficial translation and therefore may not have the insignia of legitimacy and faithfulness to the original text. A second and related problem is that there are indeed difficulties with the translation. Some parts are difficult to comprehend. References to articles and sub-articles are quite confusing for it is not at all clear what are being referred to. Be that as it may, the translation gives a fairly clear view of what the draft proclamation contains, its preoccupations, principles and general tenor. Thirdly, it is not clear to us where proclamations fit in the structure of the Ethiopian legal system. Whether proclamations are, for instance, equivalent to an Act of Parliament or constitute substantive legislation passed by the legislature of the state.

But before we proceed to an examination of the Draft Press Proclamation, we also wish to make some brief but fundamental comments on the Constitution of the Federal Democratic Republic of Ethiopia, 1994. This is necessary because the Ethiopian Constitution, 1994, is the fundamental law of the land and sets the legal framework for the elaboration of statutes, proclamations and other subsidiary legislation. The Constitution defines the various organs of state and their functions and relationships as well as the rights and liberties of the people. All other laws and actions are therefore regulated by this Constitution, which is the final measure of all things legal and illegal in Ethiopia today.

Continuing from this premise, it is our view that any objective and informed consideration of the current Draft Press Proclamation ought to be premised on this Constitution, as critical standard and measure. In particular, the Draft Press Proclamation, in its long title or preamble recognises that freedom of the press is guaranteed under the Ethiopian Constitution and accordingly seeks to "provide freedom of the press" "without censorship", to guarantee the right to information and to regulate the media by placing restrictions on them "to protect the reputation and security of the people and other similar rights under the Constitution". Thus, in order to assess how successfully this Draft Press Proclamation meets the constitutional standards and provisions, we ought first to look at what the Constitution has to say on freedom of the press, the right to information, as well as restrictions to freedom of expression. In doing so, we must look at these important provisions of the Constitution within the context of the Constitution as a whole.

The Constitution

In particular, we identify the following provisions as directly germane to our task: Article 9, Article 12, Article 13, Article 27, Article 29. Article 9 of the Ethiopian Constitution affirms the supremacy of the Constitution and reads as follows:

"9(1) The Constitution is the supreme law of the land. Any law, customary practice, an act of an agency of government or official that contravenes the Constitution is invalid.

(2) All citizens, governmental bodies, political parties and other associations and their officials are bound by this Constitution. They also have the duty to ensure its observance.

(3) No one can assume or exercise the powers of government except in accordance with the provisions of this Constitution.

(4) All international agreements ratified by Ethiopia are an integral part of the laws of the country"

Article 12 makes provision for the conduct and accountability of government and states as follows:

12(1) The conduct of the affairs of government shall be public and transparent.

(2) Any public official or an elected representative is accountable for any dereliction of the duties of office.

(3) An elected representative may be recalled if the electorate looses confidence in him. The procedure of recall shall be determined by law.

Article 13 deals with the application and interpretation of the fundamental human rights and freedoms chapter of the Constitution and provides as follows:

13(1) All legislative, executive and judicial organs of the State at all levels of government shall have a responsibility and obligation to respect and enforce the provisions in this Chapter.

(2) The fundamental rights and liberties contained in this Chapter shall be interpreted in conformity with the Universal Declaration of Human Rights, international human rights covenants, humanitarian conventions and with the principles of other relevant international instruments which Ethiopia has accepted or ratified."

Article 29 guarantees freedom of thought, opinion and expression in the following provisions:

"29(1) Every one has the right to hold opinions without interference.

(2) Every one has the right to freedom of expression without any interference. This right shall include freedom to seek, receive and impart information and ideas, regardless of frontiers, either orally, in writing or in print in the form of art or through any media of his or her choice.

(3) Freedom of the press and other media and freedom of artistic creativity is guaranteed. Freedom of the press shall specifically include the following elements:

(a) Prohibition of any form of censorship. (b) Access to information of public interest

(4) In the interest of the free flow of information, ideas and opinion which are essential for the functioning of a democratic order, the press shall as an institution, enjoy legal protection to ensure its autonomy.

(5) All media financed by, or under the control of the State shall be regulated in order to ensure diversity in expression of opinion.

(6) These rights can be limited only through laws which are guided by the principle that freedom of expression and information cannot be limited on account of the content or effect of the point of view expressed. Legal limitations can be laid down in order to protect youth, and the honour and reputation of individuals. War propaganda, as well as public expression of opinion intended to injure human dignity, is forbidden by law."

(7) Any person in violation of legal limitations on the exercise of these rights is accountable under the law.

It is manifest from these provisions of the Ethiopian Constitution quoted above that the Constitution seeks to provide the people of Ethiopia with an exceptionally wide ambit of freedom of opinion, thought and expression, including the freedom of the press and other media. In conformity with this principle, the Constitution specifically prohibits "any form of censorship". It also guarantees "freedom of expression, without interference" including "the freedom to seek, receive and impart information and ideas, regardless of frontiers". The Constitution also underlines the need for autonomous and independent public media and commands that state-owned or financed media "shall be regulated in order to ensure diversity in the expression of opinion".

It will be seen that while Article 29(6) places restrictions and limitations on the freedom of expression and information, these restrictions themselves are circumscribed to apply in only limited and specific situations. First, the Constitution makes the point of principle that the content of ideas should not be prohibited. In order words censorship is forbidden; there should be free contest and clash of ideas, opinion and views. It then proceeds to lay down the conditions under which these rights may be limited, namely in order to protect the youth, and the honour and reputation of individuals. It also prohibits war propaganda and expression intended at injuring human dignity.

In addition, we have noted that in Article 13(2) of the Ethiopian Constitution, it is provided that the fundamental rights and liberties enshrined in the Constitution shall be interpreted in conformity with the Universal Declaration and other international human rights covenants, which Ethiopia has ratified or accepted. One of such significant international human rights covenants that has been ratified by Ethiopia is the International Covenant on Civil and Political Rights. Accordingly, they form part of the laws of Ethiopia. Indeed, the provisions of the Ethiopian Constitution on freedom of expression borrow heavily from Article 19 of the International Covenant on Civil and Political Rights. Article 19 reads as follows:

"Article 19

1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the 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. 3. The exercise of the rights provided in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restriction, but these restrictions shall only be such as are provided by law and are necessary:

a. for respect of the rights or reputations of others; b. for the protection of national security or of public order or of public health or morals."

In other words, in addition to the limitations specifically permitted under the Ethiopian Constitution, the International Covenant on Civil and Political Rights also provides for limitations necessary for the protection of the rights of others, and for protection of national security, public order, public health or morals.

These are then the legal provisions and principles enunciated in the Constitution and the International Covenant that the Draft Press Proclamation ought to satisfy to be good law.

The question is: does the Draft Press Proclamation measure up to the Ethiopian Constitution and the International Covenant on Civil and political Rights? Below, we present our point-by-point opinion on the provisions of the Draft Proclamation.

CL 3 Freedom of the Press: Major Restrictions

It is the respectful and considered view of the Media Foundation for West Africa that, even though the Draft Press Proclamation in CL 3 faithfully recognises freedom of the press as a constitutional right and further underlines the principle that "[A]ny regulation which restricts freedom of the press should be only in accordance with the Constitution", the provisions of the Draft, on the whole, seek unfortunately to negate all the lofty principles, ideals and provisions enshrined in the Ethiopian Constitution and in Article 19 of the International Covenant.

The Draft Press Proclamation:

- tends to err on the side of control and regimentation, particularly state control of expression; - establishes a licensing regime under ministerial control, for even the print media; - imposes detailed and intrusive conditions for licensing; - empowers bureaucrats to bar people from publishing; - endorses censorship of the worst kinds by empowering the courts to order the seizure of publications and other products of the media and to close down media houses.

In addition, particular persons are disqualified from exercising their right to freedom of the press. These include persons banned from teaching in institutions of learning, penalised for theft, deception, surreptitious leadership, corruption and a host of other offences.

At the same time, the Draft Press Proclamation decrees a wide range of information and expression as forbidden, contrary to the very clear provisions affirming the right to information and prohibiting censorship. It also gives the Minister of Information powers to ban the importation of foreign publications, though the Article 29(2) of the Ethiopian Constitution clearly protects "the freedom to seek, receive and impart information and ideas regardless of frontiers".

Criminalising every possible infraction by the media is also a dominant principle in the Draft Press Proclamation. So also is the imposition of heavy sanctions, such as punitive fines and harsh terms of imprisonment. Further, no clear provisions have been made or institutions established to ensure that the state-owned media are autonomous of government control and carry divergent and dissenting views.

The Draft Proclamation, again, does not make any distinction between the print media and the electronic media, where some form of licensing regime may be required and where there may be need for detailed regulations and procedures that have to be met before the grant of a license to broadcast. Finally, the Press Council, far from being an institution established to safeguard and promote the freedom and independence of the media and protect it from any interference or state censorship, is rather conceived and structured as an essential instrument in the control and disciplining of the media and media practitioners.

In the result, contrary to its stated object of promoting freedom of expression and the right to information, the Draft Press Proclamation succeeds in rather establishing a speech and media regime that is more in consonance with a closed and regimented society or a society engulfed in an emergency than with a society of free, independent and creative people.

While we are keenly aware of the recent history of Ethiopia, the nationality challenges, and the hostile relations it has had with its neighbours, including wars, and therefore the need to enact laws that respond to these difficulties, to seek to control the ideas and thoughts of its citizenry and decree taboos that should not be discussed in public only pushes these same ideas underground where they may find company with more sinister and subversive forces. In other words, a restrictive and repressive media and expression regime such as is envisaged in the Draft Press Proclamation can only stultify freedom in Ethiopian society, promote political sycophancy, make bureaucrats the judges of correct ideas, and condemn modern democratic Ethiopia to the repressive days of the past.

CL 4 Purpose of the Press

The purpose of the press in our respectful opinion is not a matter of legislative determination. It is a matter of culture and enlightenment and debate among practitioners and the general populace. We would therefore, with due respect, suggest that the whole clause be taken out as neither appropriate nor necessary in a proclamation.

CL 5 The Right to Involve in Press Activities

The provisions here as we have already noted, are unduly restrictive and discriminatory, and are inconsistent with the right of every Ethiopian citizen to express himself or herself on any and every issue as guaranteed under the Ethiopian Constitution and Article 19 of the International Covenant on Civil and Political Rights.

The banishing of a whole range of persons from access to publishing or establishing a newspaper or other media of mass communication, because they have been prohibited from any civil and political rights by the court, or banned from teaching in any institution of learning, for deception, mischief (sic!) corruption or blasphemy and defamation, is a clear violation of their right to freedom of expression guaranteed under the Constitution of the Federal Democratic Republic of Ethiopia. These disqualifications, in our view, ought to be deleted as unconstitutional and subversive of democracy in Ethiopia.

CL 6 Publications printed abroad

The provisions which seeks to allow free circulation to only publications from abroad which do not threaten the nation's peace, security, culture and customs, is rather antiquated in this age of the internet and modern information and communications technology.

The power of the Minister of Information, an obviously interested party, to prohibit or lift the prohibition against foreign publications is clearly a violation of the constitutional right of Ethiopians to receive and seek information, "regardless of frontiers". The experience of the world today would suggest that such attempts are in the long run futile and only serve to place a premium on such foreign publications, many of which otherwise might lack any substance and credibility. The provisions under this clause are an attempt to apply the old discredited laws of criminal libel, seditious libel and sedition to publications printed abroad. The retention of such laws in a modern democracy as we believe Ethiopians are striving to build, would surely be a step backward. Accordingly, we would respectfully suggest the clause should be deleted.

Further, this clause seems to confuse clearly criminal conduct, such as publications that unlawfully seek to overthrow the constitutional system by arms or uprisings, rebellion, terrorism, on the one hand, and publications whose contents may not be approved by the authorities, such as publications that defame government officials or bodies, or "try to distort major historical facts or attempts to undermine efforts to create national feeling", on the other hand. While the criminal justice system is the proper mechanism to deal with the former, the latter are not really amenable to criminal prosecution, being matters of political opinion and persuasion.

We would accordingly respectfully suggest that this provision is taken out of the Draft.

CL 7 Registration

Part of this clause touches on the licensing regime and the powers of the Minister of Information which we comment on in CL 8. Further, barring what may be inaccurate translation, there appears to be a provision, which refers to persons not entitled by law to carry out media activities as prohibited under article 2 sub-article 3. We believe we have expressed our critical views on this severe political exclusion and denial of a fundamental constitutional right. Be that as it may, the requirement of registration of the print media should not be used as the means to charge exorbitant fees for revenue purposes. We accordingly suggest that the Draft Proclamation includes a provision that affirms the principle that registration fee should be only such as is necessary to cover the administrative costs of registrations, so as to protect and promote free expression.

CL 8 Requirement of Press License

This requirement, as already noted, makes no distinction between the status of the print media and the electronic media vis-à-vis a licensing regime. While repressive colonial regimes and dictatorships have found in a licensing regime the mechanism of controlling ideas and views among the populace and ensuring a monotony of praise-singers of official policies and actions, the rule without exception, in democracies is that there shall be no licensing regime for the print media. All that ought to be required for the publication of any newspaper or other print media are clearly laid out administrative regulations on the publisher's name, place of work, the name of printer and address, and name of the editor and the nature of the publication, and regularity whether weekly, bi-monthly, monthly etc.

What is even more disturbing about this provision is that it places the power to grant or refuse a license in the hands of the Minister of Information or the Information Bureau of the regional self-government. These clearly are parties, who have a vested interest in what is published about government policy and actions, and who are likely to find the temptation not to license relentless or even an independent publisher too strong to resist. There can be no freedom of the press when the right to decide who publishes a newspaper or journal or magazine, or operate a radio or television station, is determined by the government of the day.

Independent regulator

Secondly, while in the case of the electronic media, a case may be made for some form of licensing regime, it is advisable that the licensing authority for the mass media should be autonomous from government. This is consistent with Article 29(4) of the Ethiopian Constitution that provides that " the press shall as an institution enjoy legal protection to ensure its autonomy and diversity". We therefore respectfully suggest that a more autonomous press council or media commission is best suited for this task.

Further, the Draft Proclamation ought to prescribe very clear and transparent regulations that set out the criteria to be satisfied for the grant of a license to operate a radio or television station, and further provide that the licensing authority shall publish those who are granted licenses and those who were refused a license, with the reasons for refusal, and a legal right of appeal to the High Court.

All these are lacking in the current Draft Press Proclamation, and accordingly the proposed licensing regime for the electronic media fails to meet international human rights standards and also the provisions of the Ethiopian Constitution on freedom of expression and of the press and other media.

CL 9 Reasons for denial of Registration or De-registration

Here again, the Draft Press Proclamation is concerned more with control than with providing a libertarian regime for expression. First, as we have noted, the requirements of registration are, in their current form, unduly restrictive and unconstitutional.

Secondly, the whole idea of suspending a print media applicant's registration demonstrates a mindset that is interested in control. The idea that a registration permit can be taken away for publications that appear occasionally, or that no-one can operate more than one press or media house can hardly be justified in the face of the constitutional provisions. Even where there is a legitimate concern to prevent monopoly control of the media by individuals, we believe that limiting a person to controlling interest in only one press house may not be way.

CL 10 Right to Information

This is a crucial right in a democracy, without which the freedom of the press and the right of the public to hold government and public officials accountable cannot be fully realised. The provisions of the Draft Press Proclamation on the right to information are libertarian and to be commended. (The translation however poses some difficulties of construction that we hope is absent in the Amharic original.)

In general though, the right to information is a complete right on its own. It involves a delicate balance between on one hand the substantial right to receive, seek, and impart information; and on the other the subsidiary right of the state to exempt information on grounds of national security, law enforcement, public safety, prejudice to international relations, confidential trade, commercial, financial, scientific and technical information the disclosure of which may damage the financial or economic interest of government or private actors, or create public disorder.

There are also matters of parliamentary privilege, the confidential information between solicitor and client, medical doctor and patient, the privacy of the individual etc. which have to be protected against infringement.

We would accordingly suggest for consideration a separate proclamation on the right to information so that the complex issues involved can be dealt with separately and in a thorough and comprehensive manner. It is also suggested that such a Proclamation on the right to information shall cover all the exemptions to this right. In other words, no other law should seek to exempt information, which is not exempted in the Proclamation on the Right to Information. This is to ensure that the right to information is not given by one proclamation, and then reduced to nothing by a thousand and one exemptions in different and subsequent proclamations.

CL 11 Questions asked to get Information

Our general views on the need for a separate proclamation equally apply to this clause. Be that as it may, there ought to be provision indicating that, as a general rule, the fees to be charged should be reasonable and in any case should not exceed the actual cost of producing the information sought.

There should also be a clear obligation on the public agency or public relations officer to provide the information in writing, not simply an oral response as the current draft suggests.

CL 12 Forbidden Information

There are here again obvious difficulties in the unofficial English translation. However, the general tenor of the provisions tends to be consistent with international standards. Nonetheless, the provisions of this clause reinforce our suggestion that the right to information requires substantive proclamation in its own right. For what this clause seeks to do is to encapsulate in a little over a page what for many countries constitutes a comprehensive legislation, running to several pages, on the right to information. The result is that the formulations tend to be too cryptic and do not take account of the complex and different matters in their specificity.

CL 13 Denial of press news or reports

The provision is generally protective of minors and matters related to matrimonial relationships that the public may have no legitimate interest in. It is to be commended. But there are other matters that the public may have an interest in but which the formulations seem to gloss over, unless of course we again have a problem of inelegant or difficult translation. Written reports related to children and teenagers who commit suicide might be an important contribution to making society aware of disturbing social developments, provided the names of the victims or their parents are not disclosed.

CL 14 Documents to be given separately (Severability)

This provision accords with international standards.

CL 15 Information concerning a third party

From the unofficial English translation, this provision seems to mix up two issues. First there is the question of the personal information and record of individuals. This should not be given out on request and ought to be included in exempted information on the grounds of confidentiality and privacy. On the other hand, there is the general principle applicable not only to personal records or information of individuals but all the range of exempted information. This is the general overriding principle that a request for information may not be refused where the public interest in the disclosure outweighs the interest protected by the exemption.

CL 17 The Right not to disclose sources

The general principle underlying this provision is acceptable. It recognises the general right not to disclose sources, but at the same time exempts that privilege in particular situations. However some of the formulations in the English translation are too nebulous to pass without comment. While the sources of press products that pose an eminent threat to the defence force, national security or causes accidents may be declared, phrases like "governmental peace" or "governmental administration" are too general and nebulous to be a legitimate basis for restricting that privilege/right.

CL 18 The right to reply

This is an important principle for the protection of the reputation and rights of others.

However, we do not think, with due respect, that there is any need to impose additional punishment on him where the court orders that a publisher or editor publishes the rejoinder. Rather, where after the court so orders, the publisher refuses to publish the rejoinder, he could be penalised for disobeying a court order under the general law that penalises parties for disobedience of court orders. We are here referring to Contempt of Court proceedings or such similar laws.

CL 19 Maintaining the legality of press activities

While the media and practitioners are rightly expected to strive to publish accurate information and eschew misinformation and downright fabrications, the provisions of this clause are rather too harsh in their demands of truthfulness and in the sanctions for inaccuracies in press reports. What ought to be stressed is that the media play a fundamental role in promoting democratic governance and accountability of the government and public officials. In performing this important function, the media, like all other human institutions, may err every now and again. The response of society to such errors ought not to be to criminalise expression.

Indeed, serious questions as to the legality of criminal sanctions, especially imprisonment, for expression of views, even if those views may be false and defamatory have been raised in international human rights law. The modern trend is towards moving away from criminalizing mere expression. Aggrieved parties may recourse to civil law remedies of defamation, if they so wish.

As for government, it has extensive and authoritative means at its disposal to counter false propaganda. For, criminal libel laws tend to impose a "chilling effect" on journalists and media practitioners carrying out their functions with that boldness and courage that are required to keep officialdom on its toes and make government accountable to the people.

CL 20 The Press Council

We have already expressed our general critique of the Press Council as conceived by the Draft Press Proclamation.

First, we would suggest that there should be a provision, which expressly affirms the independence and autonomy of the Press Council from control by government or any other person or authority. Without this, the whole project of promoting free and independent media in Ethiopia would be shipwrecked.

We note in this regard that, under this provision, the Press Council is to be composed of twenty-nine (29) members of the Federal government, journalists association, journalists, publishers, members of the community. But the provisions do not specify in what proportions these different bodies are to have representation on the Press Council. That being the case, we could end up with the government of the day having its agents constituting the majority on the Press Council. That would be most unfortunate, as it would tend to undermine the autonomy of the Press Council.

We would accordingly suggest that the composition of the Council be structured in such a way as to guarantee, at least theoretically, that the majority of its members come from independent civil society organizations. Some of the bodies that could also have representation on the Press Council are: the trades unions, the bar association, the religious bodies, the association of journalists, association of writers, institutions of journalism, if any, etc. We would also suggest that if there is an association of publishers and owners of the private press they should also be included in the proposed Press Council.

Secondly, we are of the respectful view that the Press Council ought to have clearly spelt out functions consistent with the provisions of the Constitution. We propose in this regard the following function for the Council:

(i) to protect and promote the freedom and independence of the media; (ii) to promote high journalistic standards by, among other means, the investigation, mediation and settlement of complaints made against or by the press or other media; (iii) to insulate the state-owned or controlled media from governmental control; and (iv) make regulations for the registration of newspapers, magazines and other publications and for the licensing of radio and television stations.

As the provisions on the Press Council currently stand, the Council is more a controlling and regulating institution than one that promotes the freedom and independence of the media.

CL 21 Keeping file of authors

This provision is not necessary as a legal imperative though in the practice of journalism press or media houses may follow this principle as a rule of thumb. It is proposed that it should be deleted as suggestive of a control mentality. What, for instance, is the worth of a penname if it is acknowledged that the name is a penname.

CL 22 Things that have to be mentioned in publications

Here again there is a suggestion of a control mentality, which runs through the Draft. There is no need for the name of the board of directors of the press to be published, nor is it in our view necessary for the press to publish the address of an author of an article.

CL 23 About Advertisement

The provisions under this head tell us very little about what regulations or principles should guide the business of advertising. Rather they seem to be preoccupied with the question of advertising by foreign governments or governmental agencies and international organisations. The need to regulate advertising food and medical drugs is very much in order.

We respectfully submit that there ought to be no need to obtain any permission from the Ministry of Information before a press house can carry out educational, physical fitness training, religious or humanitarian activities related to "international brotherhood" [meaning of this is not very clear]. In this modern world of non-governmental organisations promoting freedom of expression, the provision that prohibits assistance in any form from foreign organisations can hardly be appreciated.

There is also no need to require any press receiving payment for advertisement from a foreign government or organisation or international institute to inform the Ministry of Information about its work contract and payment. There may be legitimate security concerns in such relationships, but the intelligence agencies of the state ought to apply their craft in obtaining any such relevant information. We accordingly suggest that these provisions should be deleted from the Draft Proclamation as suggestive of a control and siege mentality which is the very opposite of freedom of expression as guaranteed by the Ethiopian Constitution and Article 19 of the International Covenant on Civil and Political Rights.

CL 24 Providing free copies

It is normal to require publishers to furnish some public body with copies of its publications. What is not clear is whether the Ministry of Information ought to be that body. We would suggest the National Library and the Press Council instead of the Ministry. Further, the requirement that the free copies should be made available within six (6) hours of the publication is too regimented. We would rather suggest that within two days of the publication or such other elastic time. It is our respectful view that there is no need for the publisher or person responsible for the publication to sign any of the free copies, since the publisher and editor of the publication will have their names printed on the publication in any case.

CL 25 Responsibility of the Press regarding harmful practices

This enthrones criminalising of expression as a principle. As a principle it does not measure up to international human rights standards and Article 19 of the Covenant on Civil and Political rights. Further, a maximum fine of fifty thousand (50,000.00) birr can only have one result: the closure and bankruptcy of the media, or produce that "chilling effect" that will paralyse the media from performing its vital functions in a democracy. We would therefore respectfully suggest that the whole idea of criminalising speech and expression be taken out of the draft as being antiquated and not in keeping with progressive thinking worldwide.

CL 26 Powers of prosecutor

This clause, which gives a state prosecutor the power to stop the dissemination of press products, is clearly in violation of the right to freedom of expression and the constitutional prohibition of censorship. What makes it worse is that it places such high-handed, intrusive powers in the hands of a state bureaucrat, a prosecutor. The fact that the High Court has supervisory jurisdiction over the prosecutor's acts in enjoining the dissemination of the product does not make the exercise of the powers any less unlawful under the Ethiopian Constitution. We respectfully suggest that it be deleted as offending against the injunction against censorship. If need be, the prosecutor may go to the High Court to obtain a restraining order.

CL 27 Powers of the High Court

No doubt, the High Court as part of its inherent jurisdiction may prohibit the dissemination of publications or even order the seizure and destruction of press products in given circumstances, where it finds it necessary so to do. However, to give the High Court the power to order the seizure and destruction of press products on the mere ground that a publication is illegal, is to say the least harsh and draconian. Not even the further qualification that it may cause serious damage is sufficient reason for giving the High Court the sweeping powers of seizure and destruction. This is especially so as some of the activities prescribed by the Draft Press Proclamation as illegal are quite controversial.

Where, however, a publication is false and poses an imminent danger of causing serious damage to national security, public order or public health or to life and property that cannot be compensated for in damages, then the High Court may justifiably exercise such sweeping powers. The problem with the current provisions is that they do not define clearly enough the very special circumstances where such powers of seizure and destruction may be used.

CL 28 to 31 Dealing with criminal prosecution, criminal sanctions and appeals

The general philosophy and attitude that inform these provisions are those that unfortunately take a repressive approach to the press. It is our respectful view as noted earlier, that, in carrying out the important functions of being the vehicle for the expression of the views of the people on public matters and the watchdog of the public interest, the media are bound to make mistakes. The question is whether where they falter, society's response should be to penalise them with criminal sanctions.

Would such criminal sanctions, especially imprisonment, not have the effect of domesticating and taming the media and practitioners, and discouraging them from playing their historic role with the passion it requires? It is for these reasons that the progressive trend in international human rights law is not to penalise media infractions by imprisonment, and even criminal conviction and fines. We believe the right of rejoinder, the settlement and mediation function we propose for the Press Council and especially the right to recourse to civil defamation suits are more than sufficient to protect the reputation of individuals and to make the media alive to their responsibilities.

We are therefore of the respectful view that the provisions of these clauses are too harsh and do not create the libertarian climate in which democracy and free expression can thrive. They are not necessary in order to protect the legitimate aims that the provisions seek to safeguard. Accordingly, we would suggest that expression by itself should not be criminalized.

In particular, we respectfully suggest that all provisions sanctioning imprisonment for expression be taken out of the Draft Press Proclamation completely. In general, the Criminal Code and the criminal justice system have sufficient provisions and rules to take care of the matters that the Draft Press Proclamation seeks to criminalise. Of course where expression is so linked to direct action as to constitute one composite act, the act may constitute a criminal office and would accordingly be properly amenable to criminal prosecution.

Further and in any case, we are of the considered view that the sanction of two (2) to five (5) years imprisonment, is, with due deference, simply draconian for the expression of one's views. Equally, an upper limit of fifty thousand birr (50,000.00) and a minimum fine of not less than twenty thousand birr (20,000.00) for some infractions and of ten thousand birr (10,000.00) for others are excessive and ought to be scrapped altogether.

CONCLUSION The whole justification for having a Press Proclamation, we believe, should be in order to provide legal elaboration of the fundamental right to freedom of expression and to information guaranteed by the Ethiopian Constitution. Any such proclamation therefore should not be aimed at devising the means of making life difficult for media practitioners and to restrict media freedom.

Thus, the intrusive role and control of government, through the Ministry of Information, as envisaged by the Draft Press Proclamation, the licensing regime for the print media, and the harsh criminal sanctions, particularly imprisonment for mere expression even though false, can hardly promote that freedom and independence of the media without which a healthy and vibrant democracy is not possible. There is accordingly the need to review fundamentally the conceptual framework of the Draft Press Proclamation with a view to achieving the libertarian goals of the framers of the Constitution of the Federal Democratic Republic of Ethiopia.

It is our respectful opinion that if the intention of the framers of the Constitution as expressed in the Constitution is not to be defeated, there would be the need to effect a fundamental shift in the conception of the Draft Press Proclamation, its objects, structure and the mechanisms for achieving the objects.

It is the hope of the Media Foundation for West Africa that this contribution will assist media practitioners and lawmakers, as well as the Government of the Federal Democratic Republic of Ethiopia, in making the radical revision of the Draft Proclamation that is required for it to meet the standards of the Ethiopian Constitution and international human rights law, and ensure media freedom and independence for the people of Ethiopia.

Media Foundation for West Africa (MFWA),
Accra.

May 12, 2003.

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