By Alemayehu G. Mariam
“We are creating an Ethiopia that is second to none in its guarantee of freedom of expression. We should avoid the path of extremism and division, powered by the politics of exclusion. Our accord hangs in the balance of inclusive politics.
The evangelists of hate and division are wreaking havoc in our society using social media. They are preaching the gospel of revenge and retribution on the airwaves.
Together, we must neutralize the toxin of hatred by creating a civic culture of consensus-based democracy, inclusivity, civility, and tolerance based on Medemer principles.
The art of building peace is a synergistic process to change hearts, minds, beliefs and attitudes, that never ceases.
— H.E. Prime Minister Dr. Abiy Ahmed, Nobel Peace Prize Lecture, December 10, 2015
Author’s Note: Last week, David Kaye, the United Nations Special Rapporteur on the right to freedom of opinion and expression issued an “End of Mission Statement” [hereinafter “preliminary report”] on the “situation of freedom of opinion and expression in Ethiopia today.” This was the first time since 2006 the U.N. rapporteur had been invited to enter Ethiopia to do an assessment.
In passing, I wish to note that Kaye is a clinical professor of law at the University of California, Irvine, a stone’s throw away from my own California State University, San Bernardino.
In passing, I also wish to note that Human Rights Watch on December 19, 2019 issued a statement echoing the “findings” in Kaye’s “preliminary report”. My analysis and response herein is intended to specifically address the concerns and criticisms expressed by Kaye regarding the draft “hate speech and disinformation” proclamation currently before the Ethiopian parliament. I have studied that proclamation carefully and believe it not only conforms to international standards of freedom of expression but can also withstand rigorous analytical scrutiny.
I do not think the draft proclamation is perfect but I certainly do not share the “serious concerns” expressed by Kaye nor agree with his main conclusions about the draft proclamation’s alleged flaws. Neither do I believe Article 19 of the International Covenant on Civil and Political Rights as propounded by the chosen few oracles is the standard of perfection for freedom of expression.
It is the solemn duty of the defense lawyer to take a position on an issue of law and prevail by providing substantial evidence and persuasive and convincing arguments. I see no need presently to litigate the issue of freedom of expression in Ethiopia or the alleged flaws of the draft hate crimes and disinformation proclamation in the court of Ethiopian or world public opinion.
We all want freedom of expression to blossom and cherish in Ethiopia. All stakeholders – the government, opposition parties and groups, civic society and domestic and international human rights organizations and others – are on the same side of the issue. We all fully support the broadest enjoyment of freedom of expression in Ethiopia.
This is not to deny the fact that Ethiopia for the last 27 years has agonized under the boots of a criminal regime deathly afraid of freedom of expression. Until this year, Ethiopia was #4 on the list of the “10 Most Censored Countries in the World”.
I have a very special interest in freedom of expression in America and in Ethiopia.
Freedom of expression to me is not a philosophical abstraction to talk about in the halls of academia and in the conference halls. It is not a fashionable idea to banter over at cocktail parties. It is not even a technical subject matter to litigate in the courts.
Freedom of expression is my life, my passion and my raison d’etre (reason for being).
I have expressed myself for nearly 14 years (http://almariam.com/) in my weekly commentaries, (which some have said has been relentlessly hypercritical and censorious of the TPLF regime in Ethiopia), without missing a single week, sometimes expressing myself 5-7 times a week. I can confidently say few individuals anywhere have used freedom of expression as a weapon of mass galvanization against the TPLF regime than myself. My slogan emblazoned on my website is “Speaking Truth to (Abusers) Power”.
I believe the bedrock foundation of all liberties is freedom of expression. A society that does not protect and defend freedom of expression is a dead society. I pride myself as an unrepentant hard-core defender of freedom of expression.
I fully agree with John Milton in Areopagitica, arguably the most eloquent defense of freedom of expression written in the English language: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”
I consider myself well-tutored in the jurisprudence of freedom of expression and have taught it as an academic subject for decades. I have debated the subject on university campuses and written academic papers, op-eds, blogs and commentaries in defense of freedom of expression.
I believe the time now is right for all freedom lovers to come together in the spirit of Medemer and promote freedom of expression in Ethiopia.
Most lawyers in the world live in an adversarial world of competition where the rule is winner-takes-all. They prefer to play and win zero-sum legal games. That is, they win all the time and the other side loses all the time. Only when that is not possible or tenable will they opt for non-zero-sum games in which they will still try to take maximum advantage and win.
I believe today “We” have an opportunity to practice Medemer philosophy in the law particularly in enhancing laws that protects freedom of expression and promote human rights in Ethiopia.
I call that “Medemer jurisprudence”. We can advance the cause of freedom of expression in Ethiopia by creating legal synergy and working cooperatively to promote just, fair and reasonable laws. There are only winners and no losers if freedom of expression blossoms and flourishes in Ethiopia.
So, freedom of expression in Ethiopia today is a simple Medemer question:
Can Ethiopian scholars, academics, lawyers, judges, journalists, public officials, civic society leaders, local and international human rights advocates, opinion, youth and other leaders work together synergistically over the long-term to ensure the growth and expansion of freedom expression in Ethiopia?
They certainly can and produce amazing results!
In this two-part (or more) commentary on freedom of expression, I hope to be able to work with Kaye and any other human rights organizations, civic society or political groups as an independent academic and lawyer interested in promoting, expanding and defending expressive freedoms in Ethiopiain the spirit of Medemer.
If we can work in the spirit of Medemer, we can certainly begin to undertake massive homegrown legal reforms to promote human rights and effect improvements in other areas of the law in Ethiopia.
If we can do that, I have no doubts in just a few years we can achieve PM Abiy’s promise of creating an Ethiopia that is second to none in freedom of expression.
We can transform Ethiopia from an arid landscape of enforced silence and fear of self-expression to an oasis, indeed a horn of plenty, of liberty.
Truth be told, I proudly confess, my ultimate dream is to make Ethiopia the Mecca for freedom of expression in Africa.
In Part I, I shall discuss my personal philosophy and experience in defense of freedom of expression and my reservations about David Kaye’s “preliminary report”.
In Part II, I shall discuss the technical aspects of the draft “hate crimes and disinformation” proclamation before the Ethiopian parilament.
In service to the defense of freedom of expression
In his Nobel Peace Prize Lecture on December 10, 2019, H.E. Prime Minister Dr. Abiy Ahmed boldly announced to the world, “We are creating an Ethiopia that is second to none in its guarantee of freedoms of expression.”
Never in my wildest imagination did I ever think an Ethiopian leader would make such a statement before a worldwide audience of 1.2 billion people who listened to his speech, or even privately.
No Ethiopian leader in recorded history has ever made such a sweeping and unwavering commitment to expressive freedoms or, even more stunningly, followed action to affirm freedom of expression with verbal commitment to promote, cherish and defend it.
PM Abiy’s statement is stunning because in 2015, Ethiopia was known as the “fourth most censored country in the world”.
Until about a year and a half ago, Ethiopia was known as “the second worst jailer of journalists in Africa.”
Today, “for the first time in decades, there are no Ethiopian journalists in prison”, journalists are free to report, bloggers to blog, trolls to troll with their inanities and internet access is busted wide open.
From the absolute worst violator of freedom of expression to second to none in a matter of months simply boggles the mind. I am simply speechless (pun intended).
Freedom of expression is something that is near and dear to my heart and a cause for which I have been criticized, denounced and chastised over the years.
I have written dozens of commentaries on freedom of expression in Ethiopia over the past 14 years.
In 2007, I offered to arrange a meeting between DLA Piper, the TPLF lobbyist, and exiled Ethiopian journalists including the former president of the Ethiopian Free Press Journalists Association after the DLA Piper lobbyists incredibly claimed they had “no knowledge whatsoever” about the situation of journalists in Ethiopia.
In 2009, I defended press freedom in Ethiopia in my commentary, “The Art of War on Ethiopia’s Independent Press”.
In September 2010, in my “Open Letter to President Lee C. Bollinger, Columbia University”, I defended the late despot Meles Zenawi’s right to speak freely at Columbia even while he was jailing dissidents and journalists and shuttering the press in Ethiopia left and right.
The sad irony was the fact that I had to publicly disagree with journalists Eskinder Nega and Serkalem Fasil who had suffered greatly at the hand of Zenawi and did not want him to speak at Columbia. I had to choose between my loyalty to Eskinder and Serkalem and my commitment to freedom of expression and publicly side with the murderer Meles Zenawi. While I do not regret the choice, it was a painful and soul-searching decision for me at the time.
I was denounced for “selling out” all of those persons unjustly imprisoned by Zenawi in defending his right to speak.
In response to scathing criticism from diverse sectors of the Ethiopian diaspora for defending Zenawi, I subsequently issued my uncompromising explanation:
I have adopted one yardstick for all issues concerning free speech, Article 19 of the Universal Declaration of Human Rights: ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ I underscore the words “everyone” and “regardless of frontiers.
I told my critics, “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”
In 2010, I presented profiles in journalistic courage. in Ethiopia.
In July 2011, I wrote about “Unfreedom of Information” in Ethiopia.
In 2012, I robustly responded to foreign media who called struggling Ethiopian web editors a “disgrace to press freedom”.
In 2012, I exposed the treatment of “The Free Press in Ethiopia’s Kangaroo Kourts”.
In 2015, I tried to answer the question, “When will Africa ever have a free press that is free from harassment, intimidation, incarceration, violence and persecution?”
In May 2017, I defended the right of Ann Coulter, the reviled femme fatale of the American conservative movement, to speak on the campus of the University of California, Berkeley campus.
I then turned my critical pen on UC Berkeley Chancellor Nicholas Dirk for denigrating freedom of expression on his campus by claiming, “This is a university, not a battlefield.” I sternly lectured Chancellor Dirks:
Universities should be battlefields of ideas where open-minded students, armed with reason and facts can joust and prepare themselves for the real world of offensive, outrageous and distasteful ideas. Suffering the slings and arrows of outrageous ideas is but a small price to pay for living in a free society.
In May 2019, I wrote ecstatically, “Behold Press Freedom Shining Bright in Ethiopia!”
Over a quarter of a century ago, I defended the right of Tom Metzger, the American white supremacist, Grand Wizard of the Ku Klux Klan and founder of White Aryan Resistance (WAR) to come to my campus and speak. Though he was ultimately disinvited, I took a big risk in defending his right to speak his racist gibberish as an untenured professor.
The sad irony was the fact that members of WAR a few years earlier had murdered a young Ethiopian college student named Mulugeta Seraw in Portland, OR. It should be easy to imagine how painful it was for me to defend the right of expression of the man who was responsible for causing the murder of one of my people.
When I started practicing law some 27 years ago, one of my first pro bono clients was a young man of uneven temperament who believed relentless disruption and heckling of local government deliberations was part of his First Amendment right to free speech. He would stand up in meetings and lambaste local officials for their “sins” of corruption and lives of debauchery. Thankfully, the matter was resolved in pretrial without any adverse consequence to the client.
I have toiled ceaselessly to help enact legislation in the U.S. Congress to sanction the Zenawi regime for denial and suppression of press and expressive freedoms in Ethiopia, among other things.
Over the past 14 years, I have defended Ethiopian journalists who have suffered persecution and prosecution under the Zenawi-TPLF regime.
I have defended young bloggers and dissidents who have been jailed for simply expressing what’s on their minds.
Freedom of expression is not free. It comes with the price of responsibility. Each person is responsible for the legal consequences of his/her expression.
When I started my Ethiopian human rights advocacy in 2005, after the Meles Massacres in which 196 innocent citizens were slaughtered and nearly 800 wounded for taking to the streets to express themselves, I did not use my pen to call for “eye for an eye”.
It would have been so much easier to spew hateful rhetoric from an ocean away. But in the end that would have produced a nation of blind people.
I decided to fight the Zenawi’s criminals against humanity with the truth and proclaimed my personal struggle and mission as one dedicated to “Speaking truth to (abusers) power.”
It was so much easier to preach the gospel of hate to end ethnic apartheid in Ethiopia. But I chose to preach the path of forgiveness, reconciliation and truth.
I have two deeply held beliefs.
First, the only lasting victory that can be achieved against evil oppression is in a nonviolent struggle for the hearts and minds of people. In 2006, I wrote:
I believe we prove the righteousness of our cause not in battlefields soaked in blood and filled with corpses, but in the living hearts and thinking minds of men and women of good will.” We use the weapon of freedom of expression – speech, press, religion, peaceable assembly and petition for grievances — to convince and persuade others to accept our ideas.
Second, there are two ways we can fight those who want to force their ideas on us by instilling fear, anger, hatred, alarm and terror in our hearts and minds. We confront their falsehoods with facts, disinformation with accurate information and expose their lies to the light of truth. Those who seek to incite violence by abusing their freedom of expression must be held to account under the rule of law.
I believe the truth won against the TPLF (LF stands for lie factory), an organization listed today in the Global Terrorism Database.
I cite the foregoing examples not to tell “war stories” but to underscore my long and unwavering commitment to freedom of expression in Ethiopia, America and elsewhere.
Freedom of expression is non-negotiable for me.
But I draw the line.
I draw a bright red line on speech that is intended to incite violence.
There is no place for the children’s rhyme, “Sticks and stones may break my bones, but words will never hurt me.” in the adult world of inflammatory hate-mongering political rhetoric.
Words are more powerful than any weapon made by man.
Hateful words kill. Hateful words cause mass deaths and destruction.
Barely seven decades ago, the world was set on fire because one hateful man and his hate-filled collaborators were able to build a movement based on words of racial hate, superiority and vilification.
Six million innocent people were murdered by hateful words.
Words also heal.
Well over 2.2 billion (nearly one-third of the world’s population) people have found healing in the Word: “In the beginning, there was the Word.”
Using words to terrorize populations, to spread fear and alarm and to propagate messages of hate, disorder and violence using social and traditional media with the intent to cause violence and advance a political or social agenda cannot be interpreted, by any reasonable standard, as freedom of expression.
Freedom of expression is not a suicide pact
There are those who ignorantly and mistakenly believe freedom of expression includes the freedom to use words to incite violence.
Freedom of expression is not a political or social suicide pact.
I share fully in the view of one of the greatest U.S. Supreme Court Justices, Robert H. Jackson, who argued reasonable restraints on civil liberties are not impairments of the liberty of the citizen:
The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
As I explained in my May 2019 commentary, “If we do not temper press freedom with a little practical wisdom, I do not doubt that we will soon convert press freedom into a suicide pact in Ethiopia.”
I believe people have an absolute right to believe or not to believe in whatever they want. No person can be punished for their beliefs, disbeliefs or lack of beliefs. That is a sacred right of personal autonomy.
Conversely, no one has an absolute right to promote his/her beliefs by using words in a manner that can reasonably be anticipated to cause conduct which inflicts physical or psychological harm on others.
The conflict between one’s absolute right to belief and non-absolute right to express those beliefs in conduct, particularly violent conduct, creates the necessity for reasonable, just and fair laws that maximize the individual’s right to expression while minimizing harm to society (other individuals).
I may be biased but I believe the global gold standard for freedom of expression is the United States of America.
America has an enviable yet checkered tradition of expressive freedoms.
There are four reasons that explain the rock-solid status of freedom of expression in America.
First, we have solid constitutional protections for our bundle of expressive freedoms. The First Amendment to the U.S. constitution sweepingly proclaims, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The uncompromising language of the First Amendment is stunning in its breadth and scope. What did the Founders of the American Republic have in mind when they wrote, “Congress shall make no law…”?
“Make no law” means make no law. There is no ambiguity in the plainly stated constitutional clause.
The First Amendment plainly bans the ultimate lawmaking authority in the United States, the U.S. Congress, once and for all, from legislating in the area of expressive freedoms.
Over the past century, the U.S. Supreme Court has tempered the uncompromising constitutional language with standards of reasonableness.
Second, the highly independent and intrepid American judiciary, and particularly the United States Supreme Court, has given special and highly favored status to the expressive freedoms listed in the First Amendment even though it has imposed certain limitations.
For the past 100 years, the U.S. Supreme Court has approved federal and state laws that have significantly curtailed freedom of expression despite the broad and sweeping language of the First Amendment.
To give effect to the sweeping language of the First Amendment, the Court has imposed extremely high standards for government regulation of expressive freedoms. The Court has developed legal doctrines, tests and standards by which to distinguish permissible from impermissible speech.
In the landmark case of Brandenburg v. Ohio, the U.S. Supreme Court ruled, “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”
The key element in criminal culpability is the speaker’s intent to incite a violation of the law that is both imminent and likely.
Ultimately, the governing standard of freedom of expression or “hate speech and disinformation” in Ethiopia is not going to be the American First Amendment jurisprudence or even the international conventions. The governing standards will be rooted in Ethiopian jurisprudence, politics, society and culture.
Certainly, the legal traditions and civic culture of expressive freedoms in America and elsewhere could be a source of inspiration and useful and practical ideas, just as international legal principles and conventions could offer useful guides.
Third, there are individuals, organizations and private institutions committed to defending freedom of expression at the first sign of threat. For instance, the American Civil Liberties Union has always been in the forefront defending freedom of expression in the United States Supreme Court and has won numerous landmark cases.
Fourth, Americans have a civic culture of tolerating expression of diverse viewpoints and freely engage in the circulation of opinions, ideas, and artistic expression. Freedom of expression is part of the fabric of American society and a fact taken for granted by the average citizen.
The fact of the matter is that there is no one size fits all standard of freedom of expression for all societies. That does not mean there are no universal benchmarks and guidelines by which we can determine the viability of legislation regulating freedom of expression or model a particular legislation.
Indeed, there are.
One such benchmark is Article 19 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” It is also included in Article 19 of the International Covenant on Civil and Political Rights, to which Ethiopia became a party by accession in June 1993.
Indeed, when I defended Zenawi’s right to speak at Columbia (see above), I invoked Article 19.
But benchmarks are just the beginning, not the end of the analysis.
The answer to issues related to freedom of expression must come from homegrown legal reform in Ethiopia. The answer must come from Medemer jurisprudence.
David Kaye’s preliminary Assessment of situation of freedom of expression in Ethiopia
Recently, a draft “hate speech and disinformation” proclamation was referred to Ethiopian parliament by the Council of Ministers after extensive public discussion and comment.
Last week, David Kaye, the United Nations Special Rapporteur on the right to freedom of opinion and expression issued a preliminary report following his visit to Ethiopia during December 2-9, 2019.
Kaye met with various stakeholders in Ethiopia during his visit including government officials, members of Parliament and the Judiciary, human rights defenders, academics, civil society leaders, journalists, students and others.
In his “end of mission statement”, Kaye makes a disclaimer that his “preliminary observations highlight — but do not extensively document and analyze — the opportunities and threats for freedom of expression in the current moment in Ethiopia.”
Kaye says the “basket of problems I am describing is deeply political and beyond the scope of my mandate to review fully.”
Kaye says his “evaluation is founded principally on the human right to freedom of expression guaranteed by Articles 19 and 20 of the International Covenant on Civil and Political Rights [Covenant].” He will present his “detailed report on this mission at the 44th session of the Human Rights Council in June 2020.”
Nonetheless, despite such sweeping disclaimers Kaye offers brash and categorical observation on the situation of freedom of expression in Ethiopia and specifically on the draft proclamation.
In the section below, I aim to highlight some of my general concerns regarding Kaye’s preliminary observation and provide a preliminary response to Kaye’s preliminary report. I shall respond to Kaye’s main observations on the draft proclamation listed below in Part II of my commentary:
The draft ‘Hate Speech and Disinformation Proclamation’ would threaten freedom of expression. As constructed presently, it could reinforce rather than ease ethnic and political tensions.
The Government’s draft Hate Speech and Disinformation Proclamation, which it recently presented to Parliament, goes far beyond the command of Article 20(2) and the limitations on restrictions required by Article 19(3) of the ICCPR. (See my comments in the attached document.)
Unlike other draft legislation proceeding through the Advisory Council, this proclamation was developed outside that process. I am concerned that the draft Proclamation will exacerbate ethnic tension, which in turn may fuel further violence.
Inter-ethnic conflict spurred on by hate speech and disinformation demand not just legal solutions but political ones in which the Government and its opposition pursue reform at each state and district level. Law can support that process, but ultimately political will must exist to allow it to survive and thrive.
The reform process may be at risk from the near-term threat of inter-ethnic politics and the emergence — or at the very least the perceived emergence — of hatred and disinformation as tools of politics.”
There is seeming consensus social and broadcast media are fueling disinformation and hatred.
The Government is obligated under Article 20(2) of the International Covenant on Civil and Political Rights to prohibit by law “advocacy of national, racial and religious hatred that constitutes incitement to discrimination, hostility and violence.
The problem of hatred in the media should involve legal steps. But that is only part of the approach, for hate is very much a function of politics and, as such, it requires first and foremost a political, national solution.
Because of the failure to limit the offense by principles of intent, context, and other factors found in the Rabat Plan of Action, by its terms the draft could lead to the criminalization of people who merely re-post or otherwise share content deemed “hate speech” or “disinformation”. The scope of such an approach could be enormous, in particular because the problem of hate speech is often not merely the content but its virality, the ease by which it may be shared by hundreds or thousands of people.
The draft’s excessive vagueness means that officials at the federal and regional level would have practically unbounded discretion to determine whom to investigate and prosecute, leading to an almost certain inconsistency in approach and a potential wave of arbitrary arrests and prosecutions.
Several interlocutors expressed the fear that the law could be used to silence critics. This is not fantasy. Because of the ethnic definition of politics and governance at the national and regional level, it is possible that robust political debate could be penalized under the Proclamation.
While I appreciate Kaye’s “evaluation” of the “situation of freedom of expression” in Ethiopia, I am disappointed by his conclusory, conjectural and overgeneralized observations.
I am disappointed he offers little evidence or analysis to support his conclusions or assertions regarding the draft proclamation except to issue ipse dixit and ex cathedra declarations about the alleged “flaws” in the draft proclamation buffered by sweeping disclaimers.
As a U.N. special rapporteur, Kaye should know that his “preliminary assessment” could potentially have significant impact in public perception of the draft proclamation. Both legal experts and lay persons could be misled by his overgeneralized conclusions.
To the extent, his “end of mission statement” is a preliminary report, Kaye should have carefully and narrowly constructed it to fit the limited purpose of a general overview.
With all due respect, Kaye’s preliminary report shrouded in a disclaimer that he will provide a “detailed report on this mission at the 44th session of the Human Rights Council in June 2020” is a cop out, a hatchet job and an excuse for an unfair hit-and-run operation on the draft proclamation.
My preliminary response to David Kaye’s “preliminary report”
I make several observations on Kaye’s preliminary report.
First, to be perfectly frank, Kaye’s “preliminary report” impresses me as a preview of the “Executive Summary” to his final report to be delivered at the 44th session of the Human Rights Council be delivered in June 2020. It has all the tale-tale signs of an executive summary consisting of a brief statement of the issues and problems, background information, concise analysis and main conclusions. Given the resolutely judgmental position Kaye has taken on the draft proclamation, I cannot imagine how the findings in his final report will be any different than his preliminary report. I can only expect a larger parade-of-horribles about the draft proclamation in the final report.
Second, I am disappointed by the fact that Kaye’s preliminary report is largely generic boilerplate critique of so-called “hate crimes” laws. I have read Kaye’s submission A/74/486 to the General Assembly dated October 9, 2019 and much of the criticism leveled at the draft proclamation is regrettably, and with all due respect to Kaye, a cut-and-paste job from that report or other similar reports. For instance, Kaye’s condemnation of the draft proclamation as “excessively vague” resonates the stock language Kaye included in his Annual Report of the UNHCHR report (p.8) “Anti-incitement laws in countries worldwide can be qualified as heterogeneous, at times excessively narrow or vague.”
There are tired old orthodoxies about freedom of expression which some self-righteous critics seek to impose on non-Western societies by insisting that there is only one benchmark by which to measure freedom of expression. While I subscribe fully to Art. 19 and related articles in the Covenant, I also fully reject the idea there are only a select few oracles of Article 19 who alone can interpret and fix its meaning for all others.
Third, I am disappointed Kaye should take the liberty to make grand and overgeneralized criticisms of the draft proclamation yet avoid critical accountability by hiding behind a wall of disclaimers about the limited scope of his mandate in Ethiopia, the complexity of the Ethiopia political situation, the problems of ethnicity, etc. For instance, Kaye claims the draft proclamation “reinforce[s] rather than ease ethnic and political tensions.” Such an extraordinary claim requires extraordinary evidence but Kaye simply avoids the issue by stating further analysis of the issue is beyond his mandate.
Fourth, I am disappointed that Kaye’s analysis of the draft proclamation is overly academic and with little understanding of the mechanics of the criminal law. This is a common problem among academic lawyers who do not have substantial litigation experience especially in the criminal law. There is a world of difference between legal theory and legal practice in the courtroom.
To be perfectly frank, I am not sure if the “preliminary report” is aimed at the Ethiopian legal community or the 44th session of the Human Rights Council. It appears to me to be the latter. It is my personal observation that the average, or even the above-average Ethiopian judge, prosecutor and defense lawyer in Ethiopia is untutored in the jurisprudence of Articles 19 and 20 of the International Covenant on Civil and Political Rights. I would insist on educating them before hectoring them prejudgementally and presumptively that they will misuse, abuse and confuse the draft proclamation after it becomes law.
Perhaps Kaye may not realize it but many in the Ethiopian legal community regard his preliminary report an arrogant, imperious and cavalier criticism of their good faith and good will efforts to address a critical, urgent and emergent problem in their society.
Fifth, I am somewhat confused by Kaye’s discharge of his duties as U.N. special rapporteur. I am fully aware of the mandate of the special rapporteur. But nowhere in the mandate do I discern a quasi-judicial role prescribed for the special rapporteur. I understand rapporteur’s role to be investigative and recommendatory. What Kaye has done in his preliminary report, in my view, is a thinly disguised condemnation and damnation of the draft proclamation before the final report is even issued.
Sixth, I am disappointed Kaye’s conclusions on the draft proclamation are based on his own (and other “experts” like himself ) ex cathedra “expert” analysis of the “terms” (I suspect plain meaning) of Articles 19 and 20 of the International Covenant on Civil and Political Rights. He declares, ipse dixit, the draft proclamation does not pass muster because he said so. Indeed, he makes references to General Assembly resolutions, the work of experts in the Rabat Plan of Action and other sources but cites no other controlling or persuasive legal authority to support his conclusions.
As a defense lawyer, I have made use of experts in civil and criminal cases.
The fact of the matter is that the testimony of experts may be rebutted by testimony from other experts or by other evidence or facts.
If Kaye’s ultimate authority to support his conclusions on the draft proclamation is the expertise and wisdom of a group of designated experts, I am prepared to call other expert witness to rebut their expert opinions.
We could have a “battle of experts”.
Seventh, I am disappointed that Kaye’s “preliminary report” tends to be generally hortatory. Indeed, he makes suggestions about repealing certain sections of the Ethiopia penal code, consultations with regional law enforcement authorities and international human rights organizations, etc., but he offers very little by way of specific suggestions to improve the draft proclamation.
It is easy to talk in broad generalities but Kaye says very little about how the draft proclamation could be immediately cured of the legal diseases of “vagueness” and “overbreadth”.
Eight, I am troubled by Kaye’s sweeping generalizations about the draft proclamation given his caveat:
Combating hate speech is a delicate endeavour, which requires an in-depth knowledge of the local context, proficiency in local languages, and understanding of social and cultural habits, among so many others.
Several dozen languages are spoken in Ethiopia. Given this fact, how does Kaye suggest the draft proclamation be drafted? There is an old Ethiopian saying, “The sky is near to one who is sitting and pointing an index finger.”
Ninth, I am confused by Kaye’s claim “the draft’s excessive vagueness” could result in mass arrests. That is one of his core criticisms of the draft proclamation. I have difficulty discerning the simply vague from the excessively vague.
If Kaye’s position is that the draft proclamation is “excessively vague” because it does not state explicitly and definitely what conduct is punishable, then I strongly disagree. The draft is not vague as I shall demonstrate in Part II of my commentary.
It is also not clear to me what standards of “excessive vagueness” Kaye is using in his analysis of the draft proclamation. He does not say. Is Kaye is using standards of “vagueness” derived from the jurisprudence of the due process clauses of the U.S. Constitution? If he is, he should make it clear that Ethiopia’s draft proclamation fails under American constitutional standards. If he is using an article 19 standard, he should also make it clear.
Kaye further claims the definitions of the offenses “raise serious overbreadth concerns under the legality test of Article 19(3).” If Kaye’s argument is the draft proclamation on its face, without application, is so broad as to not make a distinction between speech intended to incite imminent lawlessness as well as other forms of expression critical of the government, I also strongly disagree. Kaye claims there is a “legality test” under Art. 19(3) for overbreadth but he does not make clear the test or the elements of “overbreadth” under Article 19.
I find it curious that Kaye should complain similar criticisms he has offered to Italy, Malaysia, and Singapore have been ignored. Could it be because Kaye’s standard of vagueness is itself “excessively vague”?
Tenth, I am disappointed we must wait for six months to read Kaye’s final report. Be that as it may, I shall continue to study his preliminary report and explore ways of cooperating with him in improving the overall state of freedom of expression in Ethiopia.
With all due respect to Kaye’s work and contributions, I respectfully disagree with him on his “evaluation” of the draft hate crimes and disinformation proclamation. That should not be a surprise to anyone. It is in the nature of the “lawyering business” to disagree on legal issues. This should be regarded as good not only for reforming human rights laws in Ethiopia but also in public education. It is useful to the public to have such open debate on the draft proclamation since we are both interested in improving the human rights situation in Ethiopia.
I hope I can work cooperatively with Kaye in improving the draft proclamation law.
But if that is not possible, when Kaye issues his final report, I will issue my final response on his final report.
We will create an Ethiopia that is second to none in its guarantee of freedom of expression
I proudly join H.E. Prime Minister Dr. Abiy Ahmed in his declaration that we “we will create an Ethiopia that is second to none in its guarantee of freedoms of expression.”
I will guarantee we will create an Ethiopia that is second to none in its guarantee of freedoms of expression with or without the assistance of outsiders. I make the iron-clad guarantee based on the following FACTS:
Ethiopia today has a leader whose commitment to freedom of expression is total and unwavering.
Ethiopia today is a nation of young people, some 70 percent of the population is under 35 years of age. The one important thing above all else to young people is freedom of expression because that is the fountainhead of their creativity, political dynamism and economic survival.
Ethiopians living today know for the past 27 years they have suffered and held their heads in shame that their country was the poster country for jailing journalists, for making press freedom and journalism a crime. They will never let that history repeat.
Ethiopia shall soon have a government elected in a free and fair election. The people’s representatives will not sacrifice freedom of expression on the altar of despotism.
Ethiopia has committed intellectuals who will fight for freedom of expression come hell or high water.
Ethiopia has many friends in the international human rights community that will help in ensuring freedom of expression. Many of them have been a vital force in the defense of human rights over the past 27 years. I thank them profusely and appreciate them. I am optimistic they will work constructively with Ethiopian authorities, civil society and legal communities to advance the cause on an equal and good faith basis.
However, I caution them not to be didactic, imperious and haughty in their supportive role. Approaches that are antagonistic, adversarial and could be perceived as disrespectful will not only be unproductive but create a hostile environment and a harsh backlash that will ill-serve the cause of freedom of expression not only in Ethiopia but throughout the continent.
“We are creating an Ethiopia that is second to none in its guarantee of freedoms of expression. We should avoid the path of extremism and division, powered by politics of exclusion.”
To be continued… Part II.