Ethiopia’s Supreme Court has condoned the detention of Temesgen Desalegn during the entirety of his trial, a practice which violates the New Media Law.
When the House of Peoples’ Representatives repealed the Broadcasting Service Proclamation of 2007 and approved the New Media Law on 2 February 2021, there was a glimmer of hope that the repressive environment of the previous regime would improve.
Under the EPRDF, journalists and media personnel were subjected to multiple forms of human rights violations, including torture, arrest, detention, and intimidation.
There was cause for optimism after the newly appointed Prime Minister, Abiy Ahmed, made a public pledge in 2018 during his inaugural address to transition the country into a democracy by, among others, opening political space and ensuring freedom of expression.
Despite such proclamations and amended laws, the practices of the two regimes have become nearly identical. A brief period in which press freedoms appeared to flourish has given way to all too familiar state repression of journalists.
New Media Law
The process of adopting the New Media Law was more inclusive compared to the 2007 proclamation and relied on the expertise of a working group comprising experts, including legal professionals.
The working group devoted painstaking effort to learn from the experience of other states such as South Africa and Kenya.
The final version of the law made improvements that contribute to mitigating the long-standing problem of unlawful arrests and detentions of journalists in Ethiopia.
For instance, an act of defamation committed by the media now constitutes only a civil liability. This helps to limit the powers of the police to arrest journalists, as the provisions in the Criminal Code penalising defamation are no longer applicable.
The statute of limitations to prosecute a periodical for a criminal offense was also fixed to one year. For crimes committed by a broadcasting service and online media, the statutes of limitations are six months and three months, respectively.
These arrangements, which replaced the Criminal Code’s lengthier statutes of limitations, have the potential to reduce unlawful arrests and detention of journalists.
Another critical aspect of the law concerns the restrictions it imposed on the powers of law enforcement to arrest and detain journalists.
In ordinary criminal cases, arrested persons remain in detention until the completion of the police investigation. Under the new law, criminal cases that involve offenses allegedly committed by the media must be investigated without the suspected person in custody.
This is significant because the accused are often subjected to human rights violations such as torture during pre-trial detention.
Regrettably, the unlawful arrests and detentions of journalists have persisted even after the New Media Law came into force.
The situation has worsened since November 2020 when civil war erupted in northern Ethiopia between federal authorities and Tigray’s regional government.
Journalists who disseminated dissenting views about the conflict were vulnerable to arbitrary arrest and detention. In 2021, at least 46 journalists were detained in the country.
On 27 May 2022, VOA reported that at least a dozen journalists were detained in a wave of arrests in Amhara region by security forces.
The Committee to Protect Journalists, in its August 2022 report, listed Ethiopia as one of the worst jailors of journalists in sub-Saharan Africa.
In the latest World Press Freedom index, which assesses the state of journalism in 180 countries and territories, Ethiopia’s rank was 114. This constituted a drop of thirteen spots from its ranking in 2021.
The Federal Supreme Court’s recent decision to deny bail to Temesgen Desalegn, an editor of Feteh, a privately-owned magazine, has provoked discussions on the compatibility of the wide-scale practice of arresting and detaining journalists with the New Media Law.
This case does not represent the only instance in which the continued detention of journalists has been upheld by the judiciary. On several occasions, other courts have considered issues of bail and ordered the continuation of pre-trial detention.
Temesgen’s case attracted huge public concern as the journalist was denied bail and made to remain in custody based on the decision of a court at the apex of the Ethiopia’s judicial structure, which renders final decisions on federal matters.
The Federal Supreme Court denied bail to Temesgen, affirming the prior decision of the lower court—the Federal High Court—on the matter.
It accepted the objection of the public prosecutor, who argued that, “keeping the accused behind bars was necessary so he could not continue spreading false rumours and leaking secrets through his writing.”
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The impact of this decision by the Federal Supreme Court should not be underestimated since, given its hierarchical position, it may influence lower courts to follow the same path— though the latter are not legally bound to follow its ruling.
The Ethiopian Human Rights Commission (EHRC), in its recent statement on the arrest and detention of journalists, stressed that the arrested journalists should be released as the New Media Law prohibits pre-trial detention.
The Commission’s emphasis on pre-trial detention may lead one to question whether the New Media Law’s prohibition extends to the trial stage.
As previously highlighted, the New Media Law has set restrictions on law enforcement’s power to arrest and detain accused journalists.
Article 86(1) reads: “Any person charged with committing an offence through the media by the public prosecutor shall be brought promptly before a Court, without being remanded for further investigation pursuant to the Provisions of Criminal Procedure Code.”
The attendance of the accused person before a court is therefore required only after the charge is filed against them. The accused cannot be remanded for further investigation.
Close reading of the Amharic version reveals that the phrase “…shall be brought promptly before a Court” is unnecessarily used in the English version. The Amharic version reads: በመገናኛ ብዙሃን አማካይነት የወንጀል ድርጊት በመፊፀም የተጠረጠረ ማንኛውም ሰው ወይም አካል በወንጀል ሥነ-ሥርዓት ሕግ ድንጋጌዎች መሠረት ለተጨማሪ ምርመራ በእስር እንዲቆይ ሳይደረግ ክሱ በቀጥታ በዓቃቤ ሕግ አማካኝነት ፍርድ ቤት መቅረብ አለበት፡፡
The provision is straightforward in enjoining the public prosecutor to file the charge directly to the court without keeping the suspected journalist in detention for the purpose of carrying out further investigation.
Unlike the English version, there is no requirement to bring the accused journalist to court “promptly”.
This provision does not mention at all the presence of the accused in court when a charge is instituted. This sounds logical given that the physical presence of the accused is necessary on the date of trial, not when a charge is filed against them.
Instead of emphasizing the need to file the charge directly to the court without detaining the accused, the wording used in the English version made the presence of the accused in court the primary concern.
This discrepancy should not cause difficulty during application, as the Amharic version supersedes the English one whenever there is a contradiction between the two versions.
In any case, what is clear in both versions is that detaining the accused journalists before the charge is filed is outlawed. Also, the provision does not mention that a bail bond should be used to ensure the attendance of the accused person on the trial date.
What needs further inquiry is whether the accused must remain in custody during the trial process after the charge is filed, as the Federal Supreme Court in the above case ordered. The subsequent provisions make clear that detaining accused journalists is prohibited during the entire trial process.
This is implied from the provision that explains the steps to be taken when it becomes impossible to deliver a summons to the accused requiring them to appear on the trial date.
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Article 86(3) reads: “Where it has not been possible to deliver a summons personally to the accused person because he was not found at his address, the Court shall require a notice to be posted announcing the summons and notifying the accused that the hearing shall proceed in his absence should he fail to appear within seven days.”
The provision implies that when the date of trial is fixed, the accused shall be served with the summons along with a copy of the charge and a list of evidence. If it becomes impossible to deliver the summons to the accused, what the court can do is notify them that the hearing will proceed in their absence. Unlike the criminal procedure code, the new media law does not authorize courts to order the arrest of the accused when they fail to appear on the date of the hearing.
If the accused does not come on this date, the trial will proceed in their absence. As a result, they forfeit the right to defend themselves in person. Thus, accused journalists can only be deprived of liberty after the trial court finds them guilty of the offence that they are charged with.
Hence, the Federal Supreme Court should not have considered the issue of bail in the above case. It should have automatically ordered Temesgen’s release, as detaining him before the final decision is unlawful.
Besides, it must be noted that the New Media Law contains provisions that help to proactively deal with the potential risks that the public prosecutor raised.
Article 85(1) authorizes the public prosecutor to apply to a court to grant an injunction order if the broadcast which is about to be disseminated contains illegal material which would lead to a clear and imminent grave danger to national security, and could not otherwise be averted through the subsequent imposition of sanctions.
Article 85(2) authorizes the Attorney General to order the periodical to be impounded or forbid the transmission of a broadcasting service in emergency situations where the public prosecutor is unable to obtain a court order in time to prevent the harm.
As this makes clear, the law forbids detaining the accused journalists even if the information about to be disseminated by them would pose grave danger to national security.
The court’s ruling also runs counter to the right to liberty of individuals guaranteed under the Ethiopian constitution, and the international human rights treaties Ethiopia has ratified.
Article 17 of the Ethiopian constitution permits the restriction of liberty only in exceptional cases provided by law.
The New Media Law has provided exceptional circumstances in which the right to liberty may be restricted, but detaining journalists before they are found guilty is not allowed under the law. As such, the practice is unconstitutional.
Despite enacting the New Media Law which forbids depriving journalists of their liberty at the pre-trial and trial stages, there is an increase in such practices. This reflects a failure of the judiciary to discharge its constitutional mandate.
To ensure a conducive environment for free expression, it is imperative that the judiciary demonstrates a commitment to enforce the New Media Law and the rights of journalists guaranteed by the constitution.
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