The impact of internet shutdown on freedom of expression in Ethiopia

Posted: 16 October, 2024 | Author: AfricLaw | Filed under: Fenot Mekonen Hailu | Tags: Access to Information, Access to the internet, censorship, civil unrest, conflict, democracy, electronic communications, essential information, Ethiopia, Federal Democratic Republic of Ethiopia's Constitution, flow of information, freedom of expression, fundamental freedoms, human rights, information blackout, international law, internet restrictions, internet shutdown, right to freedom of expression, UN human rights instruments |2 Comments

Author: Fenot Mekonen Hailu
LLM Candidate, Centre for Human Rights, University of Pretoria

Introduction

Access to the internet is essential for many aspects of daily life. Even though it is not explicitly classified as a human right, it is considered an enabler for the enjoyment of human rights.^[1] One of the threats to internet access nowadays is internet shutdowns. An internet shutdown typically involves the deliberate disruption of internet or electronic communications, rendering them partially or fully inaccessible.^[2] These shutdowns often target specific populations or regions to control the flow of information, though they can sometimes impact entire countries.^[3] Despite the internet’s crucial role in communication, information sharing, and exercising fundamental freedoms, internet shutdowns have become an alarming issue across the world.^[4] The internet has greatly enhanced free speech, enabling individuals to express their opinions without fear of censorship or retribution. It has also encouraged the exchange of ideas and facilitated the spread of information, benefiting society.^[5] However, this fundamental right is threatened in Ethiopia by a concerning pattern of internet shutdowns. In response to protests, civil unrest, and other forms of social and political activism, the government has resorted to invasive shutdowns. These measures significantly limit citizens’ freedom of expression, impede democratic dialogue, and obstruct the flow of essential information in society, ^[6]leaving millions uninformed and potentially infringing on their rights to freedom of expression, access to information, assembly, and association, as well as other human rights.^[7]The right to freedom of expression is protected under international law and most national constitutions. This right has evolved to encompass the internet as a vital communication medium, raising important questions about the extent to which internet access is protected under existing normative principles.^[8]

Freedom of Expression in Ethiopia: Analysing the Legal Framework Under International and National Law

Freedom of expression is essential for individual development, democracy, and human rights, enabling individuals to actively participate in their communities’ political life.^[9] It enhances access to information and promotes pluralism, both crucial for realising other rights.^[10] In developing democracies like Ethiopia, ensuring freedom of expression is particularly vital, as it can alleviate social unrest and reduce the likelihood of violence.^[11]However, rights groups have recently accused Ethiopian government for implementing repressive measures against the press and media, undermining the integrity of the democratic process. ^[12]Although freedom of expression is guaranteed by the Federal Democratic Republic of Ethiopia’s Constitution, there remains a lack of academic analysis and judicial doctrine to clarify its scope, content, and limitations.^[13]Since 2015, the government has frequently imposed internet shutdowns, affecting 16 million users and disrupting access to information and communication.^[14] This method of control significantly undermines freedom of expression and hinders individuals’ participation in political and social discourse.

Article 29 of the Ethiopian Constitution guarantees freedom of expression on the internet, allowing individuals to express ideas through any media. However, it also includes restrictions intended to protect the well-being of youth, the honor of individuals, prevent war propaganda, and safeguard human dignity.^[15] Article 13(2) states that ratified human rights treaties are to be used as benchmarks for interpreting the Bill of Rights in the Constitution. This means that human rights treaties ratified by Ethiopia, given their interpretative role in relation to the bill of rights section of the Ethiopian Constitution, form part of the national legal framework for protecting human rights, including the right to freedom of expression and access to information, in both the online and offline spheres. .^[16]

Ethiopia is a party to key UN human rights instruments that protect freedom of expression, including the Universal Declaration of Human Rights, ^[17] which guarantees this right under article 19, and the International Covenant on Civil and Political Rights (ICCPR),^[18]  which protects it under article 19(2).   It has also  ratified the African Charter on Human and Peoples’ Rights (ACHPR),^[19] which upholds this right under article 9.   Moreover, other rights enshrined in these human rights instruments to which Ethiopia is bound have been interpreted as applying both online and offline, which means the Ethiopian government has a duty not to unreasonably disrupt internet access.

Furthermore, the United Nation General Assembly has adopted several resolutions denouncing internet Shutdown and stressing that the same rights that are applicable offline such as the freedom of expression also apply online.^[20] At regional level, The African Commission on Human and Peoples’ Rights has taken steps to further protect freedom of expression in the digital age through non-binding soft law instruments.^[21]These includes The Model Law on Access to Information, which provides a framework of best practices for legislative drafting related to the right to access to information.^[22] Additionally, the 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa dedicates part four to internet freedom, affirming that access to information is an enabling right that supports the fulfillment of other fundamental rights.^[23] The Declaration also obliges state parties to create an environment conducive to exercising freedom of expression and access to information. ^[24]

Internet shutdowns and government control in Ethiopia

Internet shutdowns have become a troubling hallmark of government control in Ethiopia. The first instance of an African government employing internet shutdowns occurred during Egypt’s Arab Spring, ^[25]and since then, the practice has spread across the continent, with some shutdowns lasting over a year.^[26] In Ethiopia, the reasons for these disruptions are similar to those cited by other African governments, such as preventing exam cheating, safeguarding national security, and controlling protests or strikes. ^[27]However, Ethiopia has increasingly relied on constructed narratives rather than legal frameworks to justify these actions.^[28]

Since 2016, Ethiopia has faced over ten internet shutdowns during significant events like assassinations in Bahir Dar and Addis Ababa, and the Northern Ethiopian conflict.^[29]  Despite repeated calls from civil society and digital rights activists, internet shutdowns have not received the attention they deserve from the government. Furthermore, public outrage over these shutdowns remains a marginal issue in socio-political discussions in Ethiopia.^[30]

One of the most severe shutdowns occurred during the two-year war in Northern Ethiopia, which began in November 2020. These prolonged shutdowns worsened the humanitarian crisis by cutting off essential services such as electricity,^[31]banking, and telecommunications, while concealing the full extent of violence and abuse. Ethiopia has since become a leading perpetrator of internet shutdowns in sub-Saharan Africa.^[32] In 2020, a two-month shutdown in the Oromia region disconnected families, disrupted services, and caused an information blackout amid government counterinsurgency efforts.^[33] Mobile networks, landlines, and internet services were severed across western Oromia, restricting access to social media platforms, and limiting freedom of expression.^[34]

This trend continued in 2023-2024, with Ethiopia experiencing at least three internet outages. For instance, when the Ethiopian Orthodox Tewahedo Church called for nationwide protests on 20 February 2023, social media platforms like Facebook, TikTok, and Telegram were blocked for over five months.^[35] In addition, since the outbreak of conflict in the Amhara region in April 2023, the government has implemented a region-wide internet shutdown, making it difficult for those in the conflict zone to communicate and restricting the flow of information, all while reports of human rights violations continue to surface.^[36] These actions highlight the government’s ongoing infringement on freedom of expression and internet access in the country.^[37]

 National legal standards for internet protection in Ethiopia

The Ethiopian government has also enacted laws that regulate the telecommunications and internet sectors, including the 2016 Computer Crime Proclamation. ^[38] This law penalises the online dissemination of content likely to incite violence^[39] but lacks clear definitions of what constitutes such content or the methods of dissemination.^[40]Additionally, the law does not provide a legal basis for internet service shutdowns, raising concerns about potential misuse and arbitrary enforcement, which could violate freedom of expression and access to information,^[41] The Hate Speech and Disinformation Prevention and Suppression Proclamation^[42] aims to regulate hate speech and the spread of disinformation. And it defines hate speech under article 2 as ‘any speech that deliberately promotes hatred, discrimination or attack against a person or a discernible group of identity, based on ethnicity, religion, race, gender or disability.’ This definition has been criticised as being vague and susceptible to subjectivity because the law does not define hatred, or what would constitute hate speech^[43] Also the Anti-Terrorism Proclamation 652/2009,^[44] particularly under section 6, criminalises statements perceived as ‘encouragement of terrorism,’ granting authorities broad discretion to limit free speech. This provision allows for imprisonment of 10 to 20 years for any public statement that could be interpreted as encouraging terrorism even without clear definitions. The case of Prosecutor v Yonatan,^[45] where the accused was convicted for a Facebook post, exemplifies how this law has been used to target human rights defenders and activists, stifling freedom of expression on the internet.^[46]. These draconian laws enable the Ethiopian government to control and restrict internet use, curbing freedom of expression and creating an environment of fear and self-censorship among internet users.

International law requires any limitation on freedom of expression to meet the following requirements: it must be prescribed by law,(legality) achieve a legitimate aim,  (legitimacy), be necessary in a democratic society,(necessity), and be proportionate to the aim sought to be achieved (proportionality).^[47] States have a duty to recognise the necessity of ‘universal, equitable, affordable, and meaningful access to the internet’ for the realisation of freedom of expression, access to information, and other human rights.^[48] However, the Ethiopian government’s internet restrictions often violate constitutional, international, and regional principles. To lawfully restrict internet access under international human rights law, governments must adhere to specific principles: legality, legitimacy, necessity, and proportionality.

Legality: The principle of legality refers to the requirement that Internet shutdowns imposed upon human rights by states should be provided by the law. The Ethiopian Constitution underscored the legality requirement under article 29 (6) using the phrase ‘these rights can be limited only through laws.^[49]

Legitimacy: the legitimacy standard refers to the requirement that internet shutdown measures taken that restrict freedom of expression should be in conformity with utilitarian grounds of communal interest such as national security, public health and morality or the right of others.^[50] For example, the Ethiopian Constitution under article 29(6) provides a few grounds by which freedom of expression can be legally limited. These include limitations imposed to protect the well-being of the youth, the honor and reputation of individuals, prohibition of the propaganda for war as well as the public expression of opinion intended to injure human dignity.^[51]Therefore, the Ethiopian government should ensure that its actions are in line with the rights of others or community interests before enacting shutdown measures.^[52]

Necessity: This means that the right to freedom of expression on the internet can be limited only if it is necessary to protect one of the legitimate objectives set out above. The Ethiopian Constitution is silent regarding the requirements of necessity.^[53]

Proportionality: the restrictions must be proportional to the threat. The Ethiopian Constitution does not explicitly include the proportionality test, but it aims to balance individual rights and societal interests.^[54] Internet shutdowns in Ethiopia consistently fail this test as they impose broad restrictions affecting essential services and information access.^[55]

Overall, The Ethiopian government’s restrictions on internet access and freedom of expression often violate international human rights standards of legality, legitimacy, necessity, and proportionality. Despite legal protections, shutdowns are routinely used to suppress dissent and control narratives, undermining universal internet access vital for socio-economic development and human rights across the country.

Conclusion and recommendation

The Ethiopian government’s frequent internet shutdowns threaten freedom of expression and access to information, violating international human rights standards and undermining democratic principles. By restricting internet access during unrest, the government hinders communication, exacerbates social tensions, and breaches constitutional protections. To address this, Ethiopia must cease arbitrary shutdowns and ensure any restrictions are lawful, legitimate, and proportionate. Additionally, repressive laws targeting online expression should be amended or repealed to align with constitutional and international standards. These actions are crucial for fostering a more open and democratic society.

[1] R Rao ‘Internet and Its Impact on Free Speech’  https://jlrjs.com/internet-and-its-impact-on-free-speech/ (accessed 1 July 2024).

[2] ‘Media Defense ‘restricting access and content’ (2022) ’https://www.mediadefence.org/ereader/publications/advanced-modules-on-digital-rights-and-freedom-of-expression-online/module-2-restricting-access-and-content/internet shutdowns/#:~:text=Internet%20shutdowns%20are%20used%20by,or%20times%20of%20mass%20protest. (accessed on 23 Sept 2024).

[3] As above.

[4]M Tsegaye ‘The illegality of internet shutdown in Ethiopia’(2023) https://www.linkedin.com/pulse/illegality-internet-shutdown-ethiopia-markos-tsegaye/ (accessed on 26 March 2024).

[5](n 1).

[6] (n 5).

[7] (n 4).

[8] YE Ayalew ‘Assessing the limitations to freedom of expression on the internet in Ethiopia against the African Charter on Human and Peoples’ Rights’ (2020) 20 African Human Rights Law Journal 325.

[9] MA Tadeg ‘Freedom of Expression and the Media Landscape in Ethiopia: Contemporary Challenges’ (2017) Journal of Media Law and Ethics’.

[10] (n 9).

[11] (n 10).

[12] (n 10).

[13] G Timothewos ‘Freedom of Expression in Ethiopia: The Jurisprudential Dearth’ (2010) Mizan law review.

[14] ‘Ethiopian internet shutdowns contributing to humanitarian catastrophe in the Tigray’ https://thesecuritydistillery.org/all-articles/ethiopias-internet-shutdowns-contributing-to-humanitarian-catastrophe-in-the-tigray (accessed on 26 March 2024).

[15] Section 29 of Constitution of the Federal Democratic Republic of Ethiopia 1995.

[16] Section 13(2) of Constitution of the Federal Democratic Republic of Ethiopia 1995.

[17] The Universal Declaration of Human Rights (UDHR) art 19.

[18] International Covenant on Civil and Political Rights (ICCPR) art 19(2).

[19] African Charter on Human and People’s Rights art 9.

[20] Resolution adopted by the Human Rights Council on 1 July 2016, 32/13.

[21] MA Simiyu ‘Freedom of expression and African elections: Mitigating the insidious effect of emerging approaches to addressing the false news threat’ (2022) 22 African Human Rights Law Journal 76-107.

[22] Model Law on Access to Information for Africa.

[23] 2019 Declaration on Principles of Freedom of Expression and Access to Information principle 37 (2).

[24] Declaration of Principles on Freedom of Expression and Access to Information in Africa.

[25] Marchant et al ‘Internet Shutdowns in Africa| The Changing Landscape of Internet Shutdowns in Africa’(2020) International Journal of Communication, Vol. 14, No. 1, p. 4216.

[26] As above.

[27] Ayalew (n 9) 224.

[28] Ayalew (n 9) 224.

[29] (n 4).

[30] (n 4).

[31]  Access Now ‘Preserving freedom in crisis: Ethiopia’s internet shutdowns must not become the norm’  https://www.accessnow.org/press-release/open-statement-internet-shutdown-amhara/ (accessed on 26  March  2024).

[32] As above.

[33] Ethiopia: Communications Shutdown Takes Heavy Toll, Restore Internet, Phone Services in Oromia’  https://www.hrw.org/news/2020/03/09/ethiopia-communications-shutdown-takes-heavy-toll (assessed on 27 March 2024).

[34] As above.

[35] TA TEKLE ‘Amnesty urges Ethiopia to reinstate social media access’ 10 March 2023 https://www.theeastafrican.co.ke/tea/rest-of-africa/ethiopia-urged-to-allow-social-media-access-4153576 (accessed on 10 June 2024).

[36]  Access Now “#KeepItOn in conflict: the human impact of internet shutdowns in Amhara region, Ethiopia” (22 November 2023/ updated 31 january 2024).

[37] Berhane et al ‘Country report; Londa digital rights and inclusion in Africa report’ (2023).

[38] (n 5).

[39] Computer Crime Proclamation 958/2016, art 14.

[40] (n 9).

[41] (n 9).

[42] Hate Speech and Disinformation Prevention and Suppression Proclamation No. 1185/2020.

[43] (n 9).

[44] Anti-Terrorism Proclamation 652/2009 has been amended by Proclamation 1176/2020.

[45] Public Prosecutor v Yonathan Tesfaye, Federal High Court of Ethiopia, Lideta District (Judgment) [2016] F/P/P.

[46] (n 9).

[47] General Comment 34 paras 22-36.

[48] Principle 37(2) 2019 Declaration. Joint Declaration on Freedom of Expression and the Internet, 2011.

[49] Section 29(6) of Constitution of the Federal Democratic Republic of Ethiopia 1995.

[50] (n 4).

[51] Section 29(6) of Constitution of the Federal Democratic Republic of Ethiopia 1995.

[52] (n 4).

[53] (n 4).

[54](n 9).

[55](n 9).

About the Author:

Fenot Mekonen Hailu earned her LL.B. with distinction from Haramaya University, Ethiopia and is currently pursuing an LLM in Human Rights and Democratization in Africa at the University of Pretoria, South Africa. She is interning at the Disability Rights Unit at the Centre for Human Rights. Fenot is also the co-founder and legal advisor on gender issues for the Human Rights Inclusion Network (H-HRIN). Her previous experience includes legal internship at the Ethiopian Human Rights Commission and volunteering with UNHRC. Additionally, she is an alumna of the Online Professional English Network at George Mason University. Throughout her academic journey, Fenot has provided free legal aid to underserved communities and has held several leadership positions, such as Vice President of the English Language Improvement Centre, Co-Founder and Coordinator of the Network of Female Law Students and Legal Professionals, and Women Affairs Head of the University’s Peace Forum.

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