Viewpoint

Is Ethiopia’s first fake news case in line with human rights norms?

The disinformation charges against critical journalist Yayesew Shimelis do not seem legally rigorous

The 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.

Propriety

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.

Legality

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.

Chilling effect 

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.’’

Follow us on Twitter @EthiopiaInsight and join our Telegram channel here

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

Query or correction? Email us

Published under Creative Commons Attribution-NonCommercial 4.0 International licence. Cite Ethiopia Insight and link to this page if republished. 

Related Insight

31 Jan 2020 Muting sectarianism or muzzling speech?

24 Jan 2020 Narrow hate speech law will not broaden minds 

23 Dec. 2019 Ethiopian Politics’ Repressive Democratic Fraud

18 Aug. 2019 Federalist façade for centralist front

12 Feb. 2019 Ethiopia uncorked

We need your support to analyze news from across Ethiopia

Please help fund Ethiopia Insight’s coverage

About the author

Yohannes Eneyew Ayalew

Yohannes is a PhD candidate at Monash University Faculty of Law, Melbourne, Australia. He is a Lecturer in Law at Bahir Dar University (currently on study leave). Follow him on Twitter @yeayalew

8 Comments

  • While your article was an interesting read, it does have some big mistakes…the biggest one being the journalist Yayesew Shimels reported on “possible deaths of 200,000” and/or predicted the death of 200,000.

    Let’s get something clear right out of the gate, he didn’t report on possible death and he didn’t predict. The English translation of what he wrote is “Government ordered 200,000 burial places to be prepared”. That’s not a prediction or a reporting based on facts or even estimates. It simply is false information written and disseminated to decieve, panic and/or agitate the public…simply put Fake News. With this in mind let’s proceed to your arguments.

    Under the guise of “democratic transition” and “patience on the part of the gov’t” we had to endure the near total collapse of rule of law, outright fighting or even wars in different parts of the country, a festering and large scale dissimination of false, misleading & fake news all over social media and in some instances on mass media, and above all unmentionable atrocities and heart breaks…where should we draw the line? One of the apparatus the gov’t has to protect the public is by enacting laws that will stop and spare the general public of these–which is what the gov’t did in regards to the Hate Speech and Disinformation Prevention and Suppression Proclamation No.1185/2020 and because of the above described situtations tilting towards freedom of experession has had it’s run (a few examples a politician calling the EOTC a feudal’s church and advocating for it’s removal, people advocating for a stoppage on inter-ethnic marriage, people claming to ethnic cleansing whenever they are disagreed with or disputed etc).

    On the matter of “due to the pandemic, the public need timely and diverse sources of information” I’m not clear on it…are you saying fake/false/misleading information are a part of those diverse sources of information? and again, as stated above, there is no doubt that what he posted was fake news.

    On the matter of him experssing remorse, he did it becuase he found out that there are consequence to his actions, consequence that were quickly coming, not out of good faith.

    While you were correct when you wrote “what constitutes ‘false’ will be a matter of evidence than law” this is not the case that will bring this matter to the forefront.

    And again I can’t stress this enough, he didn’t make a prediction he wrote, with absolute certainty, Fake News.

    Your argument and/or comparison of the monetary punishment stated in the law of 50,000 birr with the law against FGM and the punishment stated in that law of 500 birr, while on the surface looks disturbing it ignores a key fact. The law against FGM was proclaimed as the law of the land in 2004 (gregorian calendar) the law against hate speech and disinformation was proclaimed as the law of the land in 2020…a full 16 years after the law against FGM, when 500 birr was a lot of money for people and inflation rate was at 3.3% (according to https://www.macrotrends.net/countries/ETH/ethiopia/inflation-rate-cpi). Your argument is not only wrong but also misleading.

    A key point of the law is that it didn’t criminalize speech, it criminalized hate speech and disinformation.

    As for your argument about “self censoring”, it’s my opinion that only the incompetent and/or wicked will be forced to “self censor” because of their reporting. As far as I know journalism is dependent on proof and facts. It’s not self censoring to fact check what you’re saying/disseminating.

    While I can understand, or even support, your argument that the gov’t has used draconian and repressive laws to stifle cirticism and journalism in the past, the case of Yayesew Shimels is not one of those instances.

    • Dear Negassa Berhanu,

      Thank you for your detailed comments. I do accept your feedback like the journalist made a statement of fact not prediction nor reporting, and made an editorial correction note to this effect. Although he made a statement, don’t conclude prematurely what constitutes fake is not something that you can say this is fake that is true rather the court can decide what constitutes fake news considering the legal and evidentiary rules. I however don’t concur your submission that the Hate Speech and Disinformation Proclamation No. 1185/2020 is not draconian. Because such kinds of arguments doesn’t hold any water under international human rights law. Indeed, the aim of this article was to flag how the Ethiopian government is now using repressive laws such as this one to stifle dissent. You can read the definitions of terms under the proclamation which are still too vague and nebulous. Read the End of Mission Statement of the UN Special Rapporteur here And of course, on the propriety part I wanted to show readers how the process of indicting the journalist was somewhat politically motivated and selective. One more thing, I love your economic comparison of fine magnitude between FGM and disinformation, yet I just randomly picked it and it is not necessarily the inflation rate that made the latter steeper than the former. Overall, I understand your concerns on the ground but the incoherent and inconsistent application of the law will result arbitrary wave of arrest and selective prosecution which in turn gag freedom of expression.

  • NIMBY = Not In My Back Yard (A.k.a, Western hypocrisy)

    England riots in 2011, UK government sent Facebook bloggers to prison for 4 years, F-O-U-R years!

    Inciting chaos is only “free speech” when the fire is not at your doorstep.

  • To defend incidents like this a bit rich at this jucture. I don’t believe to be subjected him with harsh and .long-term jail punishment, but one shouln’t necessarily feel sympathy for his legal troubles pertaining to his dubious free speech claims . He should know better if he is ethical professional journalist and face the legal consequences for his unscrupulous action. As per free speech defence context , there is a famous and relevant quotation of American system that goes ” there is no stringent protection of free speech… man falsely shouting a fire in a theatre full of people causing panic or stampede.” It couln’t be more relevant to or describe than this case, expecially given the rampant fake news,and hate speech that swept across the country in recent years and the newly enacted laws by government laws to respond . Likewise, there’s another recent case against by name of Eleventh Kebede, who falsely accused through social media Harari regionle officials of spreading Coronovirus. public. And told she was lawyer. Really? What kind of.selfrepecting would such falsehoods and heresy? Looks they are all ethnic partisans and political activists who had axe to grind

    • Read as
      .. against a woman named Eleventh Kebede, who falsely accused through social media that Harari regionl officials spread Coronovirus in the public. And was told she was lawyer by trade. Really? What kind of.self-repecting lawyer would do such falsehoods and heresy? Looks they are all ethnic partisans and political activists who had an axe to grind.

  • Aparently the journalist has maliciously tried to alarm the public. If panicking the public in such a grand scale is not a crime, then what is it. Journalism per se can’t be a cave for persons with evil intent.

    As per the newly enacted law,I wonder why it is labeled as ‘controversial’. The writer should have noted the careful procedures and the diverse people consulted on its formulation.

    Sorry if I am harsh but I feel that either the writer is a good friend of the journalist in charge or hard core opponent of the incumbent government.

  • Aparently the journalist has maliciously tried to alarm the public. If panicking the public in such a grand scale is not a crime. Journalism per se can’t be a cave for persons with evil intent.

    As per the newly enacted law,I wonder why it is labeled as ‘controversial’. The writer should have noted the careful procedures and the diverse people consulted on its formulation.

    Sorry if I am harsh but I feel that either the writer is a good friend of the journalist in charge or hard core opponent of the incumbent government.

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.