The UK does not have a written constitution, and has only relatively recently adopted a written code of rights, the Human Rights Act 1998 (HRA). This does not mean to suggest that fundamental rights are less protected in the UK. Statues, common law, conventions, and EU laws filled the gap left by the absence of a written code of rights pre-1998. The European Convention on Human Rights (ECHR) becomes instrumental in domestic cases as the result of the 1998 HRA. Even before the adoption of the above Act, UK citizens were given the green light to bring legal action before the ECtHR and the ECtHR had the opportunity to entertain individual complaints dating back to the Golder v United Kingdom case.430
The construction of Article 10 of the ECHR, which guarantees right to freedom of expression, is not absolute. As one of the cornerstones of any democratic society,431 a restriction on freedom of expression under 10(2) of the ECHR could be justified if it is ‘prescribed by law', pursues legitimate aims, and is necessary in a democratic society. In accordance with Handyside v UK, any "interferences entail a violation of Article 10 if they do not fall within one of the exceptions provided for in paragraph 2 (art. 10-2)".432 Therefore, Article 10 "is applicable
430
Golder v UK [1975] 1 EHRR 524
431
Handyside v the UK, 7 December 1976, Series A no. 24., para. 49
432
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not only to ‘information' or ‘ideas' that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population".433
Though the ECtHR acknowledged that member states have a ‘margin of appreciation'434 in laying down restrictions in their domestic laws, it stressed that interferences ‘prescribed by law' must be ‘adequately accessible' and sufficiently clear.435 However, "the level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed".436 In respect of the second requirement of Article 10(2), i.e. pursuing legitimate aims, the ECtHR evaluates "whether the reasons given by the national authorities to justify the actual measures of ‘interference' they take are relevant and sufficient".437 Article 10(2) contains an array of legitimate aims that could be taken into account by the member states. These are interferences:
…in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
However, the jurisprudence of the ECtHR438 and the construction of Article 10(2) show that the fact that a certain restriction is ‘prescribed by law' and has a legitimate aim does not mean that national authorities are discharged of their obligation not to interfere with freedom of expression arbitrarily.
433
Ibid, para. 49
434
Autronic AG v. Switzerland, 22 May 1990, Series A no. 178
435
See Sunday Times v UK (No. 1) judgment of 26 April 1979, Series A no. 30, p. 31, para. 49; see also Herczegfalvy v Austria, 24 September 1992, Series A no. 244; see also Hashman and Harrup v UK [GC], no. 25594/94, ECHR 1999-VIII
436
Rekvényi v Hungary [GC], no. 25390/94, § 34, ECHR 1999-III), para. 34
437
See for example, Handyside v UK, supra note 431, para. 50
438
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Therefore, the third requirement under Article 10(2), i.e. ‘necessary in a democratic society', must be satisfied, which "implies the existence of a pressing social need".439 This requirement is a limit on the ‘domestic margin of appreciation'; it gives the ECtHR a power of ‘supervision' over the "the aim of the measure challenged and its "necessity". It covers not only the basic legislation but also the decision applying it, even one given by an independent court.440
In contrast, the construction of the First Amendment of the US Constitution is absolute. This Amendment reads as follow:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
However, while textually appearing as an absolute right, the First Amendment is not absolute by virtue of judicial amendment. The US Supreme Court adopted various means of limiting the apparently absolute right to freedom of expression under the first amendment.
For example, in Patterson v Colorado,441 the US Supreme Court applied the ‘bad tendency test' by stating that the First Amendment was primarily occupied with preventing prior restraints, not subsequent punishment for ‘speeches that may be deemed contrary to the public welfare'. Accordingly, a speech is gauged "by the tendency of its effects. Speech tending to cause good effects enjoyed constitutional protection; but speech tending to cause bad effects - those that
439
Vogt v. Germany, 26 September 1995, Series A no. 323, para. 52
440
Handyside v the UK, supra note 431, para. 49
441
Patterson v Colorado - 205 U.S. 454 (1907).; the same test was applied in Whitney v California 274 U.S. 357 (1927) and Abrams v Unted states 250 U.S. 616 (1919)
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threatened the order or morality of a community or the security of society - did not". 442
However, in Schenck v United States,443 the Supreme Court devised another test and held that speech can be abridged under certain circumstances, such as war. This, in effect, upheld the 1917 Espionage Act. The court applied the ‘clear and present danger' test in this case, which became controversial for years to come.444 According to this test, "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent".445 However, this test was later abandoned and replaced by other tests.
The test that followed was defined by the ‘incitement to imminent lawless action'.446 In a retreat from earlier tests,447 which appeared to punish ‘mere advocacy of violence,' the US Supreme Court held that "...a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action...falls within the condemnation of the First and Fourteenth Amendments".448 The above test is composed of three parts: "1) the speaker subjectively intended incitement 2) in context, the words used were likely to produce imminent, lawless action and 3) the words used by the speaker objectively encouraged and urged incitement."449
442
Eastland, T. (2000). Freedom of Expression in the Supreme Court: The Defining Cases (US, Rowman & Littlefiled Publishers, INC), p. 1
443
Schenck v United States, 249 U.S. 47 (1919)
444
For further commentaries, see Cole, D. (1986) Agon at Agora: Creative Misreading in the First Amendment Tradition 95 The Yale Law Journal 857; see also Strauss, D.A. (2003) Freedom of Speech and the Common-Law Constitution in Bollinger, L. C. and Stone, G. R. (Editors). Eternally Vigilant: Free Speech in the Modern Era (Chicago, University of Chicago Press), pp.47-50; see also Barnum ,D. G. (2006). The Clear and Present Danger Test in Anglo- American and European Law, 7 San Diego Int'l L.J 263.
445
Schenck v United States, supra note 443, para.249
446
Brandenburg v Ohio, 395 U.S. 444 (1969)
447
See Whitney v California , supra note 441
448
Brandenburg v Ohio, supra note 446, para. 449
449
Harr, J. S., et al (2011). Constitutional Law and the Criminal Justice System. 5th ed. (US, Cengage Learning) , p. 142
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In another twist to the scope of the First Amendment, as will be discussed in further later in this chapter, the US Supreme Court in Holder v Humanitarian Law Project ‘appeared to retreat dramatically'450 from previous tests by holding that it is possible to restrict "speech on the basis of its content."451 Holder v Humanitarian Law Project deviated from the incitement test of Brandenburg v Ohio by punishing purely political advocacy in relation to foreign terrorist groups. This has prompted some to argue that this case "...has potentially grave repercussions. Most immediately, nongovernmental organizations working to resolve conflict or to provide humanitarian assistance may well be unable to operate where designated ‘terrorist organizations' are involved".452
Incidentally, these are not the only tests applied by the US Supreme Court in regard to the scope of the First Amendment. Further tests include the ‘balancing' 453 and ‘Redeeming social value'454 tests. As discussed above, however, these different tests have been modified over the years and in some instances have been by-passed altogether without due consideration.455
In Ethiopia, however, interpretation of the fundamental rights enshrined in the FDRE Constitution is beyond the reach of the Ethiopia courts. As discussed in chapter two, instead the power to interpret constitutional rights is given to the House of Federation, the legislative branch of the Ethiopian government. That means Ethiopian courts are not the primary dispute-settling organs in areas related to constitutional matters. Therefore, Ethiopian rights discourse is not fortunate enough to have the benefit of judicial scrutiny.
450
Cole, D. (2012). The First Amendment's Borders: The Place of Holder v Humanitarian Law Project in First Amendment Doctrine. 6 Harv. L. & Pol'y Rev. 147-177
451
Holder v Humanitarian Law Project 130 S. Ct. 2705 - Supreme Court 2010, para. 22
452
Cole, D. (2012), The First Amendment's Borders, supra note 455, p. 149
453
see Ward v Rock Against Racism, 491 US 781 (1989) (the Supreme court balanced the interest of the complainants against the interest of the New York city holding that the government was within its legal boundaries to regulate ‘the volume of amplified music at the bandshell so the performances are satisfactory to the audience without intruding upon those who use the Sheep Meadow or live on Central Park West and in its vicinity"); see also Barenblatt v United States, 306 US 109 (1959)
454
Miller v. California, 413 U.S. 15 (1973) (primarily in obscenity cases)
455
For further discussion, see Brennan, W. J. The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv.L.Rev. 11
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Article 29 of the Federal Democratic Republic of Ethiopia (FDRE Constitution) provides protection to freedom of expression. This article adopts a similar format in its protection of that right as is seen in Article 10 ECHR by declaring that "everyone has the right to freedom of expression without interference."456 Unlike 10 ECHR and the First Amendment, Article 29 of FDRE Constitution further acknowledges that the medium of expression can be "… in writing, in print, in the form of an art, or through any medium … of choice."457 This is a direct replica of Article 19 (1-2) of the International Covenant on Civil and Political Rights (ICCPR).
Reading the first five sub-articles of Article 29, the FDRE Constitution gives the impression that the right is absolute. However, sub-articles 6-7 provide for a situation where the right can be circumscribed.
Similar to Article 10 but unlike the First Amendment, the FDRE constitution specifically declared that the right to freedom of expression is not absolute. However, there are fundamental differences in how the scope of the right is defined. Article 29(6) states that "the content or the effect of the point expressed" should not be the sole reason for imposing a limitation on the right to freedom of expression. It seems that this idea was adopted from the US Supreme Court's early court decisions and reflects an old argument in America of the "balancing test."458 The main issue in the US case of Barenblatt v United States was whether the US government can enact legislation that restricts the First Amendment if the interest of the government overrides a person's exercise of the right. The US Supreme Court affirmed the argument in the positive. Moreover, as discussed, the Supreme Court has also accepted the regulation of ‘speech on the basis of its content.459
Nevertheless, the FDRE constitution seems to suggest that the Ethiopian government is devoid of such power if it attempts to restrict speech based on its
456
Article 29(2) of the FDRE Constitution.
457
Article 29(5) of the FDRE Constitution.
458
Barenblatt v United States, supra note 453
459
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"content or the views expressed."460 However, as will be seen461, the practice suggests otherwise.
Though the idea under Article 29 (6) of the FDRE constitution is borrowed from early US Supreme Court decisions,462 the construction of the above Article makes it apparently impossible to impose any limitation based on the content of the expressed views. Imposing general restrictions, as in the spirit of the First Amendment, is not the same as prohibiting the legislature from enacting a law that restricts an expression that has an adverse effect on constitutionally protected rights. The US balancing test - ‘content' based limitation - was devised by the courts as the First Amendment is constructed in general terms. However, the FDRE Constitution specifically adopted the same limitation.
The second paragraph of Article 29(6) further proclaims that a limitation is only possible if the "expressed view injures human dignity; infringes honour and reputation; abuses the well-being of the youth;" or contains "propaganda for war." Some of these limitations are borrowed from the ICCPR, whereas the rest are novel to the FDRE constitution.
A major difference between Article 29 of the FDRE constitution and Article 10 of the ECHR is the absence of some of the three test criteria devised by the ECtHR, which complements the functioning of Article 10.463 The only criterion mentioned under Article 29(6) is limitation "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". Moreover, the FDRE constitution failed to envisage the most obvious element of limiting the
460
This Ethiopian position seemed to be in line with the dissenting opinion of Justice Black in Barenblatt v United States, supra note 453, para.141-153 (Justice Black disagreed with the Supreme Court's conclusion that "First Amendment freedoms must be abridged in order to "preserve" our country").
461
See furthr discussions in this chapter
462
In addition to Barenblatt v United States, supra note 453, see also, for example, Texas v Johnson, 491 U.S. 397 (1989) ( held that a government "may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable").
463
Prescribed by law, legitimate aim, and necessary in a democratic society; see , Handyside v UK, supra note 431; see also Sunday Times v UK (No.1), supra note 435
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right: national security, protection of public order, health and/or morals. These are enshrined in both the ICCPR464 and Article 10 ECHR.
However, although some of the three test criteria devised by the ECtHR are absent in the FDRE constitution, it could be argued that their implementation in the Ethiopian legal system is possible by virtue of Article 13 (2) of the FDRE constitution, which states that:
The fundamental rights and freedoms specified in this Chapter shall be interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia.
Consequently, the protection and promotion of the human rights as guaranteed in the FDRE constitution have to be considered in light of the international standards set by the Universal Declaration of Human Rights and other conventions ratified by Ethiopia. Otherwise stated, any human rights instrument ratified by Ethiopia, thus, becomes not only part and parcel of the domestic laws of Ethiopia, but also guiding principles for the interpretation of the rights guaranteed by the FDRE constitution. Thus, once adopted, they are applicable in the same manner as any law enacted by the Ethiopian parliament.
Some of the international human rights instruments Ethiopia adopted include the International Covenant on Civil and Political Rights (ICCP);465 the International Covenant on Economic, Social and Cultural Rights466 and the African (Banjul) Charter on Human and People's Rights.467 Article 9 (4) of the FDRE constitution declares that "...international agreements ratified by Ethiopia are an integral part of the law of the land."
464 Article 19(3) of ICCPR. 465 Accessed on 11 June 1993 466 Accessed on 11 June 1993 467 Ratified on 15 June 1998
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Consequently, Article 19 of the ICCPR becomes crucial in the interpretation of Article 29 of the FDRE constitution. Article 19 of the ICCPR espouses that limitations on freedom of expression must be ‘provided by law'. This requirement "...would be interpreted as it has in the context of other ICCPR guarantees, i.e. that the limitation must be sufficiently delineated in a State's law."468 A ‘law' in this sense could refer to "formal legislation or an equivalent unwritten norm or common law" but it excludes "administrative provisions or vague statutory authorisation."469
Moreover, Article 19 of the ICCPR requires that a limitation on freedom of expression would be complied with if it is justified by one of the legitimate aims provided under sub-paragraphs (a) and (b) of sub-article 3, i.e. "...for respect of the rights or reputations of others; for the protection of national security or public order (order public), or public health or morals". One of the legitimate aims relevant to this thesis is national security. As discussed, the FDRE constitution does not stipulate national security as one of the legitimate aims for interfering with the right to freedom of expression. However, this deficiency in the FDRE constitution could be supplemented by the ICCPR; national security under the ICCPR covers "...only serious cases of political or military threats to the entire nation."470 Examples that warrant a mention are "publication of a direct call to violent overthrow of the government in an atmosphere of political unrest or propaganda for war."471 It would not be far from the fact to suggest that terrorist acts could be included in this category.
The third test promoted by Article 19 of the ICCPR is that the restriction must be ‘necessary' to accomplish a lawful purpose. As the UN Human Rights Committee held:
468
For further discussion, see Joseph, S., et al (2005). The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford, Oxford University Press), p. 525; see also Nowak, M. (2005). U.N. Covenant on Civil and Political Rights: CCPR Commentary. 2nd edition. (N P Engel Pub), p. 447; see also Gauthier v. Canada, Communication No 633/1995, U.N. Doc. CCPR/C/65/D/633/1995 (5 May 1999), para 13.5.
469
Nowak, M. (2005), supra note 468, p. 460
470
Nowak, M. (2005), supra note 468, p. 463-4
471
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This requirement of necessity implies an element of proportionality. The scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect. It must not exceed that needed to protect that value. As the Committee stated in its General Comment 10, the restriction must not put the very right itself in jeopardy.472
However, Article 19 of the ICCPR "...lacks a reference to necessity in a democratic society".473 For this reason, "...the relevant criterion for evaluating the necessity of interference is thus not the principle of democracy but rather whether it was proportional in the given case."474 Thus, consideration of ‘proportionality in a given case' is particularly relevant in Ethiopia where democratic principles are yet to materialise.475
Despite some difference in the construction of Article 19 of the ICCPR, the three criteria discussed above are more or less similar to those applied by the ECtHR in regard to Article 10 ECHR. For that reason, interference with the right to freedom of expression in Ethiopia could be evaluated based on the above tests.
However, the realisation of freedom of expression in Ethiopia is beset with many obstacles. A factor that facilitated "a downward spiral for freedom of expression in Ethiopia"476 is the ever increasing mistrust between the government and its