Reforming Ethiopia’s draconian laws amid a derailing transition

31 mins read
August 4, 2021
by Leul Estifanos

ParilamentThe lack of a well-functioning justice system in Ethiopia has been a common complaint for several decades. The problem does not merely lie in the interpretation, application, and enforcement of laws, but also has to do with shortcomings in the legislation—the laws themselves.

Some of them are outdated, and, in some cases, enacted to serve a parochial political agenda—unreasonable expansion of the government’s power and quashing dissent.

For instance, in the year 2009, the EPRDF-dominated parliament enacted the Anti-terrorism and Charities and Societies Proclamations. The former had the aim of discouraging political dissent while the latter was geared towards restricting Civil Society Organizations (CSOs) from taking part in advocacy and human rights related activities.

Similarly, the amended election laws of 2009 provided the state with a range of opportunities to dictate the outcomes of previous polls.

Additionally, other legislations enacted after 2005 regarding property, land, taxation, and customs laws made changes that provided the executive with more power without a prudent mechanism to hold it accountable.

As part of its current agenda of reforming the legal system, the government led by Prime Minister Abiy Ahmed has been undertaking legislative reforms and proceeding with drafting new laws.

Shortly after Abiy’s appointment in April 2018, a Legal and Justice Affairs Advisory Council (LJAAC) was established by directive. Its mandate was to advise the Attorney General on matters related to legal and justice system reform.

The Council is composed of 13 experienced legal experts with a secretariat appointed by the Attorney General and working groups which comprise about 200 expert volunteers. Unlike previous law reform mechanisms, the Council was established as an independent advisory body and exercised a wide degree of latitude in its functioning.

Since its establishment, the Council has conducted a series of studies and initiated the revision of 16 pieces of legislation which it determined to be incompatible with the constitution and to have a negative effect on human rights and democracy.

Simeneh Kiros, a prominent attorney, author, and researcher of criminal law who has assisted legislative reforms of both the current and past administrations told Ethiopia Insight, “The parliament went on passing unconstitutional laws in the EPRDF era and it is natural for the current administration to take corrective measures if citizens are to exercise their rights and for there to be a transition from the ‘rule by law’ ways of the past administration to a system where ‘rule of law’ prevails.”

However, the change could have gone further as the Attorney General is at liberty to accept, modify, or altogether reject suggestions made or draft laws prepared by the legal advisory council.

At any rate, four of the revisions made by the council are of particular importance: Electoral laws, civil society law, terrorism law, and media law.

Electoral laws

The accelerated opening up of the political arena in 2018 was among the main reforms of the new administration. Hence, electoral laws were high on the agenda in the run-up to the 2020 elections (which were postponed to 2021 due to the pandemic).

A Democratic Institutions Working Group composed of notable politicians, academics, and practitioners was set up. The LJAAC drafted two proclamations: the National Electoral Board of Ethiopia (NEBE) Establishment Proclamation (No.1133/2019) and the Ethiopian Electoral, Political Parties Registration and Elections Code of Conduct Proclamation (No. 1162/2019). These proclamations amended the previous electoral laws which were the result of three earlier proclamations.

The manner of appointment and dismissal as well as the membership terms of the management board members of the National Election Board were revised. Under the previous law, members of the Board were nominated by the prime minister who was required to consult only political parties who had seats in the House of People’s Representatives (HoPR).

Since the parliament has always been overwhelmingly dominated by the ruling party, the board members were effectively handpicked by the prime minister.

Under the new law, the prime minister is still empowered to nominate members of the NEBE management board, but the procedure is different. He or she is required to establish an independent committee composed of members drawn from the Inter-Religious Council of Ethiopia, the Human Rights Commission, representatives of CSOs, and other non-political institutions.

The committee is duty-bound to receive nominations from the public, political organizations, and civil societies, and select nominees from the suggestions in a competitive and transparent manner. In addition, the prime minister is required to consult with representatives of registered political parties before recommending nominees from the list he or she has received.

The term of office and the manner of removing members of the NEBE’s Management Board have also been revised. The term of office was extended from five to six years, though board members are still eligible for one additional term.

Under the previous proclamation, the HoPR could remove a board member only on the grounds of illness or committal of serious misconduct. Lack of competence was not considered a reason for dismissal, and there was no procedure under which a citizen or a political party could inform the House of any potential grounds for removal.

The current proclamation, however, allows any person or body to inform the Speaker of the House when they are convinced that a board member should be relieved of office due to health issues, ethical misconduct, or an evident lack of competence, though evaluation of the merits of the information is left to the Speaker of the House.

If the claim is accepted, the House appoints a three-member investigative committee, comprising a Federal Supreme Court judge, an expert on the matter to be investigated, and a representative of the Ethiopian Human Rights Commission.

The law also shows changes in terms of NEBE’s financial autonomy. The repealed law addressed budgetary rule in a single sentence: “The Board shall prepare its budget and submit to the [HoPR] for approval.” This was, however, never put into operation.

Before it got reestablished under the new law, the Board’s budget plan was subjected to a review by the Ministry of Finance and Economic Cooperation prior to being submitted to the House for approval.

Also, the Board can now request a three-year budget allocation at one time, and it is also allowed to receive gifts and monetary aid provided that these do not affect or endanger its neutrality. These provisions should improve the financial capacity and autonomy of the Board.

The Board itself is mandated to appoint the Chief Executive and Deputy Chief Executive of the Secretariat, which was previously done by members of HoPR.

Another major change in electoral law is the repeal of the previous requirement that any candidate for election was required to know and speak the language of the regional state or the area of their intended candidature. This rule was inconsistent with the constitution as well as international democratic standards.

However, the waiver only regards candidates running for federal positions. Regional constitutions require speaking the region’s working language to take any position in a regional government. Accordingly, candidates running for positions at the state level are still required to know the language of the region of their intended candidature.

While some of the legislative shortcomings of the old electoral law have been fixed and the NEBE has been restructured, not everyone thinks these changes go far enough.

The legal affairs department head of Ethiopian Citizens for Social Justice (Ezema) party, Yeshiwas Admasu, told Ethiopia Insight, “The nomination process should be subjected to further amendment once the constitution gets amended; it will not be surprising to see the Election Board’s neutrality being questioned if management board members are nominated by the prime minister.”

The communication officer of another opposition party, Balderas for True Democracy, Bekalu Atnafu, noted: “Lower-level employees of the Election Board do not share the integrity of the members of the management board, and, as a result, the process leading up to the election—and this matters more than the election date itself—has been somewhat unorganized; several polling stations have not been opened, and the whole process fails to reflect the establishment of a democratic system”.

In fact, NEBE’s activities in the pre-election stage have not satisfied many of the political parties, with lack of security and delays in voter registration in some constituencies being among frequently raised complaints.

However, Ezema’s Yeshiwas said before the poll that he believed the 2021 elections will be fairer than past elections, “Despite all the problems existing in the pre-election period.”

Civil society legislation

The Charities and Societies law was another piece of legislation identified for amendment under the current administration by the LJAAC, which classified the previous law as unjustly restrictive.

Before 2009, the regulatory environment for charities and CSOs in Ethiopia was relatively enabling. The number of CSOs showed a steady increase until the coming into force of the 2009 CSO proclamation which introduced a number of restrictive rules, hindering their activities, especially in the case of those engaged in protection and advancement of rights.

The proclamation insisted that Ethiopian organizations engaging in advocacy services or activities related to human and democratic rights must collect 90 percent of their funding from local sources. In addition, it introduced a 30 percent administrative expenses cap with a very broad and vague definition of such expenses.

Since the revised Organizations of Civil Society Proclamation (1113/2019) was adopted, more than 1,800 new CSOs have registered with the Charities and Societies Agency. The agency’s ten-year strategic plan, which got adopted last year, plans to quadruple the number of CSOs by 2030.

Furthermore, according to the agency’s plan execution assessment report of the past fiscal year (2020-21)  presented on 13 July, delays of responses to reports submitted by organizations and overdue re-registration applications were stated to be shortcomings.

For the following fiscal year (2021-22), the agency plans to work on advancing transparency and accessibility, building institutional capacity, implementing the use of technological apparatuses to improve service rendering, and continue efforts to resolve administrative predicaments. Some skeptics have, however, raised concerns over the Agency’s recently released draft directives which may result in the reintroduction of some of the restrictive standards of the 2009 law.

The executive director of the foreign-funded Center for Advancement of Rights and Democracy (CARD), Befekadu Hailu, told Ethiopia Insight that his organization wanted to be registered back in 2013 but could not because of the restrictions at that time.

Befekadu said: “The main difficulty under the old proclamation was the requirement to secure 90 percent of funding locally. Local donors are inclined to fund charities but they are not used to donating for awareness-raising and human rights related programs, and since CARD mainly focuses on such programs, it is so far exclusively funded by foreign donors. But it aspires to secure local donors by raising awareness as to the importance of rights-related activities by CSOs.” The extensive power of the Charities and Societies Agency was another problem: “Organizations were required to submit a report on all of their projects and funding, they were literally being spied on.”

Furthermore, “Project reports were submitted in advance, and funds were raised only after the agency’s approval. Also, when organizations terminated, their assets were taken over by the agency which could easily refuse to renew a registration and [take possession of] all properties of an organization. But now registration renewal is not a requirement and assets can be passed to other CSOs after termination”, said Befekadu.

The current proclamation has also redefined the administrative expenses of CSOs, reducing the limit from 30 to 20 percent. Befekadu welcomed this: “The limitation is necessary since not everyone who engages in this sector has similar intentions. Under the previous law, all program costs were considered as administrative expenses, even payments made to trainers in training projects; now program costs are separated from administrative expenses.”

Ethiopia Insight also asked Meron Kasshahun, a former programs officer at the Ethiopian Human Rights Commission, what impact the 2009 proclamation had on the activities of CSOs and whether the status of human rights had been positively impacted since the enactment of the new proclamation.

Meron was clear: “Due to fund cutbacks, some NGOs were forced to close many of their branch offices, while others had to change their area of work as advocacy capacity regarding women, youth, human rights, and peace and reconciliation was limited. Now, there is a better law to work with on advocacy of human rights, the anti-terrorism law is amended, so is the prison administration proclamation. This should contribute to a decrease in human rights violations in prisons.”

The legislative limitations on the free activity of CSOs have been lifted to a great extent and CSO organizations are once more flourishing. The role of CSOs in nations at the early stages of practicing a democratic system cannot be overstated. The relatively poor status of human rights currently prevailing in Ethiopia is often associated with political transition, though there is little controversy regarding the need for greater human rights protection and enforcement of law by the state. CSOs’ greater freedom of action will be of assistance in this respect.

Anti-Terrorism law

Another legislative change concerns the replacement of Anti-terrorism Proclamation (652/2009) by the Prevention and Suppression of Terrorism Crimes Proclamation (1176/2020).

Before the enactment of the previous law, there was a debate on the necessity of a dedicated terrorism law in Ethiopia.

The EPRDF argued that having a special law on terrorism is in line with the international trend, as was the new law’s main terms, and that it is Ethiopia’s obligation as a signatory to the OAU Convention on Terrorism. The government has also argued for this position by appealing to the geopolitical situation Ethiopia finds itself in and other domestic issues.

The counter-assertion was that such a law curtails individuals’ substantive rights by widely defining terrorism, and that it erodes procedural constitutional rights of accused people by widening the power of the state’s security apparatus.

The former proclamation was widely criticized for being enacted to suppress and punish political dissidents, human rights activists, and journalists, rather than actual terrorism.

Indeed, the amended proclamation noted that the past law had substantive and enforcement loopholes, which negatively affected the rights and freedoms of citizens.

As there is no internationally accepted definition for acts of terrorism, the repealed proclamation provided a very broad definition. As a result, acts of non-violent protest that normally fall with in the ambit of free expression, such as holding rallies and publishing critical comments, could easily be labeled as terrorism.

The punishments stipulated were also severe and flat-rated for the most part, so approximate sentencing could be imposed independently of the nature of the crime and the damage it entailed. Furthermore, it was a standard procedure to remove bail rights for all charged under the proclamation.

The new proclamation makes no major change in the definition of acts of terrorism, but it does provide an exception for activities resulting in obstruction of public service when these are a result of a strike, and the obstruction is related to the institution or profession of the strikers.

Another exception is when the obstruction is caused by people exercising rights recognized by law, such as demonstration and assembly.

These exceptions were not offered under the former proclamation which left those involved in political demonstrations facing the danger of severe imprisonment.

The rule regarding “encouraging”  a terrorism act was another point of concern under the repealed law. Vague and highly subjective criteria of “encouragement” under the previous proclamation deprived journalists and citizens of their right to publicly express any opposition towards the ruling party.

The proclamation stipulated that if any published statement was likely to be understood by some or all members of the public as a direct or indirect encouragement or other inducement to commission, prepare, or instigate an act of terrorism, all those who have to do with that publication could face 10 to 20 years of imprisonment.

This could be interpreted in many different ways and critics of the government might face prosecution, as for example, Yonatan Tesfaye, former spokesperson of the opposition Semayawi Party and now deputy head of the Ethiopian Media Authority, who was charged and found guilty of encouraging the 2016 Oromia youth protest merely through remarks on social media.

The current proclamation alters the term “encouragement for incitement.” It brings into consideration the intention of the inciting party and whether or not the intended outcome occurred. Non-public incitements are prosecutable only if they are made with the intention of having the subject commit any of the terrorism acts stipulated under the proclamation.

In addition, for public statements to amount to incitement of terrorism they have to be made in a clear manner, and the audience must be able to perceive incitement as such. The prescribed punishment for incitement also differs based on whether the intended crime was committed or not. The current law, in effect, tries to minimize the chilling effect of this provision on legitimate exercise of freedom of expression.

Under the previous law, hearsay evidence and intelligence reports, which did not disclose their sources or how information was gathered, were considered by courts as admissible evidence. In both such instances, the right of the accused to a fair trial and to challenge the evidence was compromised.

The current legislation makes hearsay evidence inadmissible and also qualifies the criteria for intelligence reports to be admissible. Evidence obtained through interception by law enforcement agencies is only admissible when presented directly as obtained. Previously, a written report by a national intelligence service detailing evidence acquired through interception by police was considered sufficient.

While these amendments cannot be taken lightly, the current law still has the potential to be extralegally abused by the state to silence its critics. Some provisions are subject to wide interpretation and the exceptions provided in the definitions do not fully guarantee freedom of expression.

The legality of demonstrations and assemblies still depends on the goodwill of the government as organizers have to submit a notice in advance and the authorities shouldn’t oppose it. So, while the new legislation is a step forward in comparison to the amended law, it still has flaws.

Attorney and human rights activist Ameha Mekonen who, in addition to representing over 100 defendants charged under the repealed proclamation, is one of the chief drafters of the 2020 law stated, “The amendment made to the anti-terrorism law is a huge step forward and there is less room for abuse, but the government should value rights of citizens and refrain from abusing the law since the legislation reform alone can’t prevent interference and abuse by the state.”

Media law

The mass-media legislative reform focused on two legislations: Mass Media and Access to Information Proclamation, Proclamation 590/2008, and the Broadcast Service Proclamation, Proclamation 533/2007.

The amended laws contained provisions that had a chilling effect on freedom of expression, and were criticized for criminalizing, in a vague and broad way, incitement of unlawful actions, dissemination of false information, and defamation and spreading hate speech.

The new Media Proclamation 1238/2021, decriminalizes defamation including those made against members of the legislative, executive, or judicial branches of the government. Under the new legislation defamation only entails civil liability, and the maximum monetary compensation for defamation has been reduced to less than a third of what was provided under the amended proclamation.

Under the current law, the broadcast authority has been reestablished as the Ethiopian Media Authority (EMA), whose management board members are now required to be non-affiliates of any political organization. The new proclamation also makes the EMA accountable to HoPR, whereas the broadcast authority was accountable to the office of the prime minister under the amended law.

In a statement released on 24 May, EMA expressed the government’s commitment to protecting press freedom and freedom of expression, while pointing out the current administration’s action of exonerating imprisoned journalists and politicians. The authority also stated that several restrictions incorporated under the previous law have been lifted and the new law gives better access to information for foreign and local journalists.

The amended proclamation restricted foreigners from taking part in media ownership, but the current law partially allows foreigners to invest in the media sector. Non-nationals can now own up to 25 percent shares of media companies. However, the current law still requires CSOs that have an ownership stake in broadcasting service to be composed of only Ethiopians.

Online media are also regulated under the current law. The previous proclamations made no mention of online media outlets, but currently they are regulated and licensed in a similar manner as other types of media.

Additionally, registration and licensing schemes were used to hinder the development of independent media, as the broadcast authority had a broad discretionary power. Acquiring a valid license and a registration certificate from the EMA is a requirement for all media outlets.

This broadness of discretionary power of the authority to issue a license has persisted under the new law. The new proclamation provides a list of criteria for acquiring a license, but the list is not exhaustive and the EMA is entitled to issue additional criteria via directives and regulations.

Solomon Goshu, the chairperson of the media law reform working group under the legal advisory council told Ethiopia Insight, “Vague and ambiguous provisions which facilitated interference and abuse of power have been amended under the new law. Additionally, Board members of the EMA are appointed based on their professional competency and experience on the field.”

Far from enough

The amendments of the above-discussed legislations, although not free of shortcomings, are a step forward.

Ethiopia Insight asked Simeneh Kiros what shortcomings exist in current legislative reform actions.

Simeneh responded, “I believe the reform is launched with a positive intent. However, it is being managed by previously existing institutions and some have retained the mindset of the past administration. There isn’t much change in personnel as the Prosperity Party, for the most part,  is composed of officials of the previous ruling party.”

“Although there are efforts to free several institutions from political influence, some officials of the institutions are seemingly having a hard time accepting it. The attorney general and his colleagues intend to see the reform process advance in a positive direction but their aim and thought doesn’t extend down to all lower-level officials,” said Simeneh.

The other legislative changes that have been, and are being made, aren’t entirely satisfactory. For instance, as noted earlier, the media law certainly needs further consideration.

Much also depends on how these pieces of legislation are implemented. At the end of the day, methods of implementation and application remain of vital importance as safeguards for human rights and further democratization. As the saying goes, “eternal vigilance is the price of liberty”—this is something we need to remember.