National Security: The Unconstitutional Card Muffling Freedom Of Expression

Two weeks ago, senior officials at the Ministry of Mines summoned the editors of The Reporter for a discussion at the Ministry’s head office.

“Mining has become a national security issue. From now on, you cannot report on mining issues arbitrarily, just like you wouldn’t for military and intelligence issues,” said Muhamadrafi Abaraya, a state minister of Mines, after two grueling hours of ‘discussions.’

Muhamadrafi served as chief of staff and foreign policy advisor to Prime MInister Abiy Ahmed (PhD) before he was assigned to the Ministry last year.

The Reporter has indeed published a series of investigative reports on the Ethiopian mining sector over the past year, particularly on what increasingly appears to be entrenched corruption amounting to state capture in the sector and its ties to armed conflict both domestically and across the wider Horn region.

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It is worth noting that officials at the Ministry of Mines and other federal institutions have very rarely, if ever, consented to providing information or testimony pertaining to these investigative reports, often choosing instead to reject any evidence presented to them by The Reporter. The same cannot be said of officials at the Tigray Interim Administration, who openly spoke about the illicit mining taking place in the region when approached by The Reporter last month.

The Reporter maintains that it does not publish reports, about mining or otherwise, without sufficient evidence and that the editorial team behind the articles is always careful to weigh concerns about national security and interests against these articles before publishing. This is the position The Reporter upheld during the discussions with Ministry officials.

But how long will the government use the national security card to muffle the media? Even today there are a large number of journalists detained as a result of the government’s interpretation of freedom of expression as a threat to national security.

Genet Asmamaw has been languishing in the Kaliti Prison facility for months with fellow journalists like Meskerem Abera. Dawit Begashaw and Gobeze Sisay, meanwhile, are still behind bars at the Kilinto Prison facility.

The Reporter paid a visit to these journalists last week, and found that they are maintaining their high spirits. Genet and Meskerem are doing so while nursing their infant children within prison walls.

Still, they expressed their frustration with court procedures.

“First, the government accused us of being responsible for killing 200 people. One of the three courts ordered prosecutors to present a list of the people, but there is no such list. That judge was removed from our case and the government revised the charge to state that 200 people died in a conflict caused by our media reporting. We are charged with instigating conflict through our media coverage,” said Genet, who faces a long wait before she is next due to appear in court.

In a statement issued on August 12, 2024, the Ethiopian Mass Media Professionals Association (EMMPA) urged the government to facilitate speedy court procedures for journalists who have been in detention for extended periods. The Association also called for their cases to be reviewed free from the politicization of journalism.

Similar instances where the government has drawn the national security card to muzzle freedom of expression can also be observed in the arts, where self-censorship and even direct discouragement is imposed on works that are openly critical of the government.

For instance, Tobia Poetry and Jazz, a well-known center for the arts, was closed down a few months ago allegedly as a result of mounting pressure from the government. The artists and organizers who ran the center have since fled the country, opting to work in exile.

The developments are not in line with the Ethiopian constitution, which does not cite national security concerns as a valid reason for silencing the media or muffling freedom of expression. Article 29 (6) states that freedom of expression can be limited “only through laws which are guided by the principle that freedom of expression and information cannot be limited on account of the content or effect of the point of view expressed. Legal limitations can be laid down in order to protect the well-being of the youth, and the honor and reputation of individuals. Any propaganda for war as well as the public expression of opinion intended to injure human dignity shall be prohibited by law.”

The public right to access to information, and the media’s duty to provide information, are enshrined in the constitution with any exceptions clearly stated.

Article 19 (3) of the International Covenant of Civil and Political Rights (ICCPR) allows for the restriction of freedom of expression in order to protect national security interests. However, it also states those criteria must be explicitly provided by law.

However, Article 29 (6) of the Ethiopian constitution, which provides grounds for the possibility of limitations on freedom of expression, is silent regarding the use of national security as a criterion to restrict freedom of expression. However, subsequent subsidiary laws have provisions on the issue.

Nonetheless, Ethiopia’s Media Proclamation, which was amended in 2021, leverages the government’s ability to use national security to suspend freedom of expression.

“Where the Federal or Regional public prosecutor, as the case may be, has sufficient reason to believe that a periodical or a broadcasting service which is about to be disseminated or transmitted contains illegal matter which would, if disseminated, lead to a clear and imminent grave danger to the national security which could not otherwise be averted through a subsequent imposition of sanctions, may apply to Federal High Court to get a grant of an order to impound the periodical or an injunction order forbidding transmission of a broadcasting service,” reads Article 85 of the proclamation.

International human rights defenders argue freedom of expression should be invoked only when the threat is to a state’s territorial or national integrity, and not merely to a given government.

International comparative case-law studies indicate limiting freedom of expression in the interest of national security has been important in the areas of denying access to the identity of informers, the publication of memoirs of former intelligence personnel, the release of classified military information, and the reporting of terrorist related activities.

‘Ethiopia’s post 1991 Medias Landscape: The Legal Perspective,’ a book authored by Andargachew Tiruneh and published by AAU Press, explores the nexus between the right to expression and national security. The author observes the clash between these two things exists virtually everywhere, but points out the contrast is more crude in Ethiopia due to legislative shortcomings and oversight.

“Courts need to strike a balance between values such as freedom of movement, freedom of speech, and human dignity. Although the continued existence of democracy depends on state security, courts must justify restrictions on freedom of expression, and only in extraordinary circumstances that give rise to a serious and almost certain threat to public order,” argued Andargachew.

His book also touches on the lack of legal definitions as to what constitutes a national security threat.

“Everything that is related to military or intelligence cannot be defined as a military secret or national secret and used as pretext to limit freedom of expression. Hence, the term military secret, national secret, or classified national security information, must be defined in detail and narrowly. Criticizing the government should not be considered defamatory. Rather, the point should be whether such criticism can cause public disorder.”

Solomon Goshu is a program advisor at Fojo Media Institute, a Swedish media support organization in Ethiopia. He observes the gaps in legislation that have allowed the government to use national security as a reason to muffle freedom of expression.

“In order to impose any restriction on freedom of expression, governments must introduce their own localized law first. Any official, or government institution, cannot impose such restrictions without legal background in the country. So, the Ministry of Mines and its officials cannot impose such a restriction using national security as precondition. For the Ministry to restrict any media from reporting on these issues, the government must first introduce a law that states mining is a national security matter. Otherwise, a statement made by an institution or official cannot be taken as a law. Such a restriction can be considered as law only when it passes through the legislative process and is approved by Parliament,” said Solomon.

Lawmakers themselves cannot impose restrictions on freedom of expression without first referring to international standards and the Ethiopian constitution. Parliament cannot ratify legislation that goes against the constitution, which does not list national security as a criterion for the suspension of freedom of expression.

“Ethiopia’s constitution lists only four preconditions or criteria to suspend freedom of expression. ICCPR, international conventions and the international community also cite certain criteria considered as ‘soft laws’ to suspend freedom of expression. In general, there are thirteen criteria. ICCPR has six criteria, including national security. Ethiopia’s constitution does not mention national security as a criterion to restrict freedom of expression. But the constitution states ‘propaganda for war’ is a criterion to restrict freedom of expression. Some scholars argue this indirectly means national security. Other countries include the phrase ‘related issues’ under such criteria. But Ethiopia’s constitution does not cite ‘related issues,’” argues Solomon.

He argues that even if national security is listed as a criterion for limiting freedom of expression, it must be applied after thorough verification.

“As long as your reporting on illicit mining, for instance, is based on evidence, it should be allowed to report on. The legitimate right of exercising freedom of expression should not be restricted without such verification,” said Solomon.

He observes the notion of restricting freedom of expression is a delicate balance between government interests and human rights.

“According to the international standard, there is an aspect where the government interest and human rights are equally at stake. In this scenario, the third aspect looks into whether the decision would be acceptable in a democratic society or not. If the decision is restricting human rights to maintain government interest, the question is, is it worth it? Is there any other way? The international principle is to consider those three aspects before making a decision. There is government interest, there is human rights, and there is the acceptance issue,” said Solomon.

Experts emphasize that the consequences of muzzling the right of expression under the pretext of national security need to be examined before making the decision.

“When we talk of acceptance, we are questioning whether the decision would be proportionate or not. There must always be a balance between national security and freedom of expression. Is it worth favoring the state interest by overriding the public interest, or protecting the rights of the broader public by any means?” said Solomon.

National security is not the only pretext the government can use to muffle expression.

Ethiopia’s former media law used to include an article that allowed for the closure and seizure of a media institution and its assets if it was found guilty of involvement in ‘group defamation.’ This article was removed following the recent amendment, but in the previous context, the government was able to take measures to clamp down on expression without first first laying down legislation regarding the complexity of media reporting and clearly defining ‘group defamation’.

Is the decision to shutter the media institution proportionate with the public’s loss of access to information? Does hate speech cease because that media institution is shut down?

“There is always a battle between the government and the media over such boundaries. In developed countries, such cases are decided by the judiciary. But in Ethiopia, the judiciary always decides in favor of the government. Whatever justifications the government presents against freedom of expression, the judiciary just swallows it,” says Solomon.