Freedom of expression has often been described as a life blood of democracy, providing the most important means by which individuals can fully participate in the political life of a community. The free flow of information coupled with the ability of individuals to express their views serve as important catalysts for influencing political outcomes through which major policies affecting a state are ultimately made.
Free expression pacifies tension in society and reduces the risks of violence. Freedom of expression has also significant socio-economic dimensions serving as essential component for the fight against poverty and socio-economic deprivation.
In one of the most ground breaking works of economic theory, Nobel Laureate Amarya Sen contends that no country that is committed towards the respect for freedom of expression has experienced famine. The equitable enjoyment of socio-economic rights and responses to serious economic deprivations such as draught or famine is not possible without the ability to express views and the exchange of information.
Often, freedom of expression is also a powerful means of unveiling deep-rooted structural problems in society. Corruption and embezzlement which have significant human rights implications cannot be effectively addressed if the opportunity for free expression is inhibited.
As significant as the right to freedom of expression is to the continued vitality of democratic processes, it is also often one of the most violated rights. In recent times, the current state of freedom of expression in Ethiopia has raised controversies from both critics and supporters of the government on what the proper scope of the right entails and its rightful limitations.
While there are no readily available answers to most of these controversies, it is important to highlight some of the concerns and outline the theoretical framework that should guide courts and legal practitioners in addressing the challenge of striking a proper balance between the constitutional protection of the right to freedom of expression and ensuring the compelling interests of the state in protecting national security and public order.
Rights groups have consistently raised serious concerns on the state of freedom of expression in Ethiopia in recent times. Some of the leading NGOs working on freedom of expression, such as Article 19, Committee to Protect Journalists (CPJ), Index on Censorship, Reporters without Borders and many other mainstream human rights NGOs, such as Amnesty International, Human Rights Watch (HRW) and Freedom House have consistently raised serious concerns on the state of freedom of expression in Ethiopia. In particular, they argue that the series of measures taken after the contested 2005 election, including the adoption of the anti-terrorism proclamation, the Charities & Societies Law and the Mass Media & Access to Information Proclamation have been used to silence political dissent and suppress open democratic discourse in the country.
The series of prosecutions of journalists, members of the political opposition and prominent critics of the government have also been raised as good grounds to criticise the overt restrictions on freedom of expression. The government has vehemently denied these accusations by arguing that all measures have been taken in compliance with the Constitution and the specific laws of the country which are meant to address the national security and public order of the country.
The fundamental question that should be asked in order to address these continuing debates on the state of freedom of expression in Ethiopia is to ask what the fundamental purpose of free expression is in a democratic society. Responding to this most fundamental question would help to unlock the major benchmark that should be used in assessing free speech adjudication.
I have a strong belief that any analysis of law should first start by asking what the underlying objective of that particular law intends to address. Without such understanding, courts and legal scholars would be like a ship without its captain. They lack the requisite direction and guidance that could have captured the very essence of the right or legal concept.
Merely dealing with free speech issues on ad hock basis does not only deprive the adequate protection that should be afforded to the concerned right but also creates what I call a ‘normative chaos’ by destroying any possibility for the development of a consistent jurisprudence to deal with similar issues that arise in the future.
It should be pointed out from the outset that one of the most challenging aspects of studying the regulation of freedom of expression is the fact that in many democratic societies, there has not been a consistent way of dealing with the complex legal issues involved in the regulation of speech. This is even evident when one looks at societies and legal traditions within the liberal West itself – the US adopting a more absolutist ethos to the protection of freedom of expression and Western Europe conscious of its legacy of WWII preferring to contain anti-democratic right wing political sentiments.
A typical difference one observes with regard to these two different approaches in liberal democratic societies is the issue of hate speech. Hate speech encompasses all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination, and hostility against minorities, migrants and people of immigrant origin.
In the US constitutional dispensation, individuals can make any expression, including hate speech, unless doing so would lead to imminent lawless action. On the other hand, in Europe, any form of hate speech whether it incites breach of imminent lawless action or not is prohibited. A good example is the so called memory laws in Germany, Switzerland and some other western European countries which prohibit the denial of the holocaust.
Nevertheless, despite all these diverse perspectives on the regulation of freedom of expression, there has been a development of consistent theoretical argument that places the unparalleled protection of political speech. Political speech, a speech that furthers public deliberation and the conduct of government in a democratic society, has been afforded the utmost and unparalleled protection than any other form of speech.
In the case of the US Supreme Court, the Litmus paper test that the Court has consistently used in many respects including in the recent cases of Phelps v Snider has been whether the particular expression was made in the context of public discourse. In similar vein, regional human rights supervisory bodies, including the African Commission on Human & Peoples Rights, the Inter American Court on Human Rights and the European Court on Human Rights as well as the United Nations Human Rights Committee, including in its leading case Bodrozić v Serbia, have consistently emphasised on the unparalleled place of political speech in the context of the protection of the right to freedom of expression.
More importantly, the major bench mark that these courts and supervisory organs have used in deciding whether a certain form of speech should be prohibited or not is by analysing whether that particular speech was made with the intent of furthering public discourse in a democratic society. If the expression in questions was made with the intent of furthering public discourse or deliberation, then the possibilities for restricting that form of speech is less likely.
If the speech, on the other hand, was made in other contexts, such as private speech made in defaming someone, then the state would have a much broader scope of limiting the concerned speech. Prominent scholars on free speech, including Harvard Professor Cass Sunstein, and Professor Robert Post at Yale School of Law, whom I had the pleasure of consulting during a doctoral seminar at Yale in November 2014, have consistently stated that speech made in the context of public discourse is a “high value speech” that needs to be given the utmost protection and any restriction made would be prima facie considered a violation of the right to freedom of expression.
If there is a consensus that the fundamental value to be served in the protection of freedom of expression is the furtherance of political speech and public discourse, what are then the lessons to be drawn in the application of this theory to the adjudication of legal disputes involving freedom of expression. The first important lesson one draws in dealing with freedom of expression is that courts should prima facie consider that any form of regulation aimed at limiting expression which is intended in furthering public discourse should be considered as unconstitutional. Thus, criticisms against the policies and programs of the government is the most valued type of speech that we should not only nurture and promote but also be vigilant in guarding and providing the utmost protection.
What also flows from this conclusion is that specific laws which are meant to address compelling national security and public order interests of the state, such as incitement to terrorism, defamation, incitement of lawless action and other forms of speech regulations, should also have a heightened scrutiny. For example, in the case of incitement to terrorism, instead of establishing a remote causality between the speech and the resulting act, it can be contended that a closer causality resulting in imminent lawless action should be the legal basis.
What makes the law of incitement even more problematic to establish is the fact that by its nature it is an inchoate crime, in the sense that the commission of the crime is established without the need to show any actual resulting harm. This makes it extremely difficult to establish the causal connection between the speech and the purported lawless action and leaves a wide discretion for abuse.
One needs to question the importance of regulating incitement to terrorism in the first place, given that many forms of regulation on incitement are already included in the Criminal Code. There are credible arguments that contend that the law was adopted to legitimize state authority in order to silence political dissent than addressing the demands of addressing terrorism.
One of the most common flaws that one observes in the current state of freedom of expression in Ethiopia is the way the state has responded to some of the alleged offences related with freedom of expression. Instead of making commensurate responses the state has preferred to use more draconic measures, including banning media outlets and resorting to extensive prosecution campaigns. It is important to explore new ways of thinking to respond to speech related offences, such as enhancing media self-regulation, decriminalisation of defamation and related regulatory developments.
Given the fact that a democracy based theory of freedom of speech is now considered the most coherent and sound theoretical basis for the protection of freedom of expression, its natural purpose, in fact, should be guarding political speech and furthering public discourse. As such much needs to be done to ensure that the constitutional promise for free expression is ensured in Ethiopia.
Freedom of expression does not mean the right to say readily acceptable ideas but rather fundamentally to tolerate ideas which are critical and even to views which may offend, disturb or shock. Without our ability to tolerate dissident voices, any meaningful democratic dialogue cannot be achieved.
I believe that it is important to have a dialogue between academics, lawyers, judges and politicians at every level to solve some of the most challenging issues faced by the nation. One should not underestimate the importance of open discussion in a democratic society.
Because of its far reaching significance, it is important to have continued engagement as well as the courage to raise these wide ranging challenges. Without such dialogue, we will risk having a decadent society uninformed about much of the perplexing legal, political and social issues of the country.
Despite the difficult legal and political climate, we have to be persistent in insisting that ensuring the right to freedom of expression and open discussion in a democratic society is the only way to move forward.
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