The disinformation charges against critical journalist Yayesew Shimelis do not seem legally rigorousThe indictment of Yayesew Shimelis is significant in the pandemic politics of Ethiopia.
Yayesew works as a columnist for Feteh magazine and hosts a weekly political program on Tigray TV, a regional government broadcaster. He also posts reports on Facebook and the Ethio Forum YouTube channel. Yayesew is vocal and has criticised the current administration for issues including the process to create Prosperity Party, unrealistic regional diplomacy, and its Nile policy.
Without mentioning a source, on March 26 he posted on Facebook that, in anticipation of COVID-19’s impact, the government had ordered the preparation of 200,000 burial places. His Facebook profile was suspended shortly after he posted the message to his hundreds of thousands of followers. After a few hours, Yayesew said on Twitter: “My Facebook page is closed; I didn’t know what I said could be alarming at this scale. I apologize for everything”.
On the same day, the Ministry of Health condemned his statements as false. The next day, police detained Yayesew in Addis Ababa and held him in jail for a few days. Since, the police have requested two extensions of six days each to remand and investigate him, which were granted by the First Instance Court.
In a 21 April 21, the Federal Attorney General charged Yayesew under Ethiopia’s newly enacted and controversial Hate Speech and Disinformation Prevention and Suppression Proclamation No.1185/2020 at the Federal High Court Lideta bench.
Although there had been two alteration of the charges, the courts granted him bail three times, including the latest on 23 April. Under Ethiopian law, the charge is bailable, as punishment does not exceed three years of imprisonment. Now, Yayesew is awaiting the beginning of his trial on 15 May.
The case raises a number of questions. Foremost among them is whether this first application of the Hate Speech and Disinformation Proclamation aligns with international human rights norms and whether the indictment is possibly somewhat politically motivated.
Judging from the information available so far, the charge is not proper on the following grounds:
First, the country is in a democratic transition where civic and democratic space has opened. The balance, therefore, should be tilted towards freedom of expression, even if, as in this case, it led to a degree of public panic. Furthermore, malice on the part of the liberated journalist should not be assumed.
Second, due to the pandemic, the public need timely and diverse sources of information. In this regard, the Committee to Protect Journalists (CPJ) questioned the propriety of the arrest. “Imprisoning a journalist at this time, when the public needs information rather than censorship, is likely to discourage critical reporting and dissenting opinions,” CPJ’s sub-Saharan Africa representative, Muthoki Mumo, said on 1 April.
Third, there were apparent procedural irregularities such as incorrect filing and framing of charges. Initially, the prosecutor indicted him under the Criminal Code Article 485 for alarming the public. Then, this was dropped and altered to terrorism charges. In the end, he was charged for disinformation under the Proclamation. Though such alterations are not illegal, they initially prevented Yayesew from accessing bail, even though the court ordered it three times. As a result, the government’s Ethiopian Human Rights Commission cautioned that the prosecutors’ alterations and administrative reasons violated the accused’s rights to bail.
Fourth, the prosecution appears selective and unworthy. There are other journalists and bloggers who have also been making statements or warnings. And it should be noted that making a report related to possible coronavirus deaths should by no means be grounds for a fake news indictment. For example, University of Washington researchers predict 80,000 COVID-19 deaths in the U.S. by July. Furthermore, as Yayesew has been a frontline critic of this administration, it raises the possibility that the charge is politically motivated, and therefore may entail double standards.
Finally, and critically, he immediately expressed remorse. This signals that he was in good faith when he expressed his views. This should serve to shift the burden of proof to the prosecution in establishing the mens rea (the moral ingredient of the crime) requirement.
According to the Attorney General’s statement, the journalist is charged with a crime of disseminating disinformation. It reads: “Yayesew contravened article 5 and 7(4) of the Hate Speech and Disinformation Suppression Proclamation by posting written content on his Facebook page by (dis)informing the public ‘the government ordered to prepare 200,000 burial places using the cover picture of the health minister’.”
Article 5 of the Proclamation forbids any dissemination of disinformation: “Disseminating of any disinformation on public meeting by means of broadcasting, print or social media using text, image, audio or video is a prohibited act.” This provision is broad and terms such as ‘disseminating’ do not embrace intent or advocacy as described under international human rights law.
During the parliamentary hearing on the proclamation and subsequent consultations, these concerns and suggestions were raised. Even when the law was approved, the definition of ‘dissemination’ was still problematic. It’s defined as “spread or share a speech on any means for many persons, but it does not include like or tag on social media”. Per the literal reading of this provision, any person who ‘shares’ any content on social media is deemed to be a disseminator of disinformation, and will be subject to liability. While the drafters did narrow the scope of ‘disseminating’, it remains subjective and lacks specificity. It would have been preferable if it uses the term ‘advocacy’ rather than ‘disseminating’ under Article 5, since the latter falls short of demonstrating intent.
The Proclamation defined disinformation as “speech that is false, is disseminated by a person who knew or should reasonably have known the falsity of the information and is highly likely to cause a public disturbance, riot, violence or conflict”. This formulation also lacks specificity and clarity. Indeed, what constitutes ‘false’ will be a matter of evidence than law; defining fake news this way gives a wide margin of discretion for the Attorney General.
In the present case, according to the charge, Yayesew allegedly made a “shocking” burial prediction without citing any authority. If this is established by the courts, the threshold is too low for classifying fake news. Also, terms such as ‘public disturbance’, ‘riot’ or ‘conflict’ are not defined in the Proclamation. Most importantly, as explained in the 2017 Joint Declaration of special mandates on the freedom of expression and fake news (para 2.a):
General prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “non-objective information”, are incompatible with international standards for restrictions on freedom of expression … and should be abolished.
In Yayesew’s case, how could prosecutors prove the likelihood of a ‘public disturbance’ beyond reasonable doubt? What is the threshold and how is it assessed? I hope the court will answer these questions.
Although the Proclamation offered some guidance on how to define disinformation, the boundary between fake news and free speech remains unclear in Ethiopia—although there is guidance from elsewhere.
Courts in various jurisdictions have been using different parameters to demarcate between the two. For example, the European Court of Human Rights (ECHR) in the case of Lingens v. Austria found that political speech enjoys greater protection: “the defamation conviction of a journalist who had criticized a politician, violated his right to freedom of expression.” Peter Lingens, an Austrian journalist, had accused Bruno Kreisky the President of the Austrian Socialist Party, of holding an accommodating attitude toward former Nazis who had continued to take part in Austrian politics.” The court said if the speaker is a journalist, then politicians and other public officials should tolerate a high degree of criticism due to their position in democratic societies.
The U.S. Supreme Court took a stance in the case of Whitney v. California. Charlotte Whitney had been charged in California for her involvement with the Communist Labor Party of California, which violated a prohibition on someone knowingly joining an organization that advocated “criminal syndicalism”. The Supreme Court found that the California Criminal Syndicalism Act did not violate the rights to free speech. The concurring opinion of Justice Brandeis did, however, say that unpopular speech could in most cases be countered through more speech: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’’
The other provision the journalist was charged with is article 7(4). It says that if the offense of disinformation was committed through a social media account with more than 5,000 followers, the person responsible for the act shall be punished with simple imprisonment not exceeding three years, or a fine not exceeding 100,000 birr. This is an instance where journalists and activists could be targeted for having 5,000 followers.
Here there is an apparent contradiction between the Amharic and the English versions: the former uses “and”, meaning both imprisonment and fine can be imposed together, while the latter uses “or”, meaning the court may order imprisonment or fine, but not both. In Ethiopian legislation, Amharic is binding. Therefore, the Proclamation could have a chilling effect on freedom of expression. It has a stern criminal provision that includes both imprisonment and steep fines. It is bizarre to see the 5,000 followers’ standard as a threshold; the move seems to be novel, and arbitrary. Is that based on Facebook’s friendship limit or comparative experience? Unlike Egypt where the law obliges personal social media accounts with 5,000 followers to come under media regulations, the 5,000 standard in Ethiopia is stricter and an aggravating grounds for a charge rather than a starting point.
Moreover, the fine is large compared to the fines for crimes, such as female circumcision, and alarming the public in the Criminal Code. For example, for female circumcision, the law orders a fine of 500 birr. Thus, for disinformation, a journalist gets a punishment of 50,000 birr; the magnitude is 100 times other ordinary crimes. Also, given the modest income of many social media writers, this law could lead to self-censoring of free speech on the Internet and could force some to reduce their followers to avoid punishment.
Draconian laws won’t die
Repressive laws have been used in Ethiopia to muzzle journalists, political dissenters, and others. The government, through the prosecutorial apparatus, appears to be continuing to use oppressive legislations to neutralise real or perceived political foes, effectively take over the democratic sphere. For instance, under the cloak of countering hate speech and disinformation, the government has the tool to stifle individual freedom using the vaguely formulated law.
The UN Special Rapporteur on the Promotion and Protection of the Right of Freedom of Opinion and Expression, David Kaye, has expressed concerns about the ambiguous formulation of Ethiopia’s hate speech law. The proclamation goes beyond the command of Article 20(2) and the limitations on restrictions required by Article 19(3) of the ICCPR, since the definition of disinformation is nebulous and over-broad and not based on international human rights standards. According to the UN Human Rights Committee, laws should be clear, precise, and unambiguous. Freedom of expression may be limited by laws that do not fit this description.
Given the case is pending, it is inappropriate to comment on the upcoming proceedings. But the government should work to improve its handling of similar incidents in future. In this respect, instead of criminalizing speech, it could emulate the British government’s detailed rebuttal of media criticism of its pandemic handling.
As Judge Brandies famously opined: “….the remedy to be applied is more speech, not enforced silence.’’
Editor’s note: Article amended on 3 May in in Propriety section to show that Yayesew made a statement not a warning about the government’s alleged COVID-19 burial plans. Also altered Chilling Effect section to clarify that Amharic version of legislation is legally binding.
This is the author’s viewpoint. However, Ethiopia Insight will correct clear factual errors.
Editor: William Davison
Main photo: Merkato bus station remained busy despite COVID-19 in the days before Easter; 18 April 2020; Maria Gerth-Niculescu
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