Author: Zelalem Shiferaw Woldemichael
PhD candidate, Melbourne Law School
The decision of the Federal Supreme Court of Ethiopia, rendered on July 28, 2022, to deny bail to Temesgen Desalegn, an editor of Feteh, a privately owned magazine, has put the potential of the New Media Law to end the repressive environment of the prior regime of the Ethiopian People’s Revolutionary Democratic Front, which subjected journalists and media personnel to multiple forms of human rights violations, including torture, arrest, and detention, into question. Perhaps, the case does not represent the only instance of the upholding of the continued detention of journalists by the judiciary after the expulsion of the previous regime and the coming into force of the New Media Law. On several occasions, courts have considered issues of bail of journalists and ordered the continuation of pre-trial detention. Apparently, the present case attracted huge public concern as the journalist was made to remain in custody by the decision of a judicial organ placed at the apex of the federal judicial structure, which renders final decisions on federal matters. The Supreme Court denied bail, accepting 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.”
The issue that I will attempt to grapple with here is: Does the New Media Law require accused journalists to remain behind bars while the trial is in progress? The Ethiopian Human Rights Commission, in its recent statement on the arrest and detention of journalists, has stressed that arrested journalists should be released as the New Media Law prohibits pre-trial detention.
The New Media Law has set restrictions on the law enforcement’s power to arrest and detain journalists suspected of committing criminal offences. 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, within the meaning of the above provision, is required only after the charge is filed against them. The Amharic version of the law, which supersedes the English version in cases when the two versions contradict, 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. The provision does not also mention that a bail bond should be used to ensure the attendance of the accused person on the date of trial. What needs further inquiry is whether the accused, as the supreme Court in the above case ordered, must remain in custody during the trial process after the charge is filed.
As the subsequent provisions of the New Media Law make it clear, detaining accused journalists is prohibited during the entire trial process. This is impliedly referred in the provision that explains the steps to be taken when it becomes impossible to deliver a summons to the accused requiring him/her to appear on the date of trial. 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 7 days”. With no doubt, the impossibility of finding the accused’s address arises when the accused is not under custody. Thus, implicit in the provision is that the accused must appear in court only on the date of hearing. The bottom line, hence, is that the deprivation of liberty of accused journalists can occur only when the trial court finds them guilty of the offence that they are charged with. In view of this, the Supreme Court should not have considered the issue of bail in the above case. It should have automatically ordered the accused’s release as detaining him before the final decision is unlawful.
Besides, it is worthwhile to be mindful of the fact that the New Media Law has provisions that help to proactively deal with the potential risks that the public prosecutor raised. Article 85(1) authorises the public prosecutor to apply to a court to get a grant of an injunction order if the broadcasting service which is about to be disseminated contains illegal matter which would, if disseminated, lead to a clear and imminent grave danger to national security which could not otherwise be averted through the subsequent imposition of sanctions. It can be noted, therefore, that the law has totally avoided the possibility of detaining the accused journalists even though the information about to be disseminated by them would entail grave consequences for the nation.
The ruling of the court also runs counter to the right to liberty of individuals guaranteed under the federal constitution—the supreme law of the country, and the international human rights treaties Ethiopia ratified. The constitution (Article 17), using the language anchored by the ICCPR (Article 9), permits the restriction of liberty only in exceptional cases provided by law. The New Media Law has provided exceptional cases in which the right to liberty may be restricted. This is the case when the accused journalist is found guilty of committing the offence. Detaining the accused journalists before such time would be unconstitutional. And courts have the constitutional responsibility to order the release of journalists arrested and detained without the explicit authorisation of the law.
To conclude, the safeguard the New Media Law established for the protection of the right to liberty of journalists is of vital importance as most human rights violations occur when accused persons remain in the hands of the law enforcement organs. However, the unlawful deprivation of liberty of journalists may remain a problem unless the judiciary demonstrates a commitment to enforce the law.
About the Author:
Zelalem Shiferaw Woldemichael is a PhD candidate at the Melbourne Law School. He was previously an Assistant Professor of Law at Jimma University, where he taught criminal procedure law and Ethiopian human rights systems. He holds LL. B from Jimma University, LL.M in Human Rights Law from Addis Ababa University, and LL.M in Rule of Law for Development from Loyola University of Chicago. His research interests cover constitutional protection of human rights, human trafficking, and the rights of women and children.
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