Now the other myth that gets around is the idea that legislation cannot really solve the problem and that it has no great role to play in this period of social change because you’ve got to change the heart and you can’t change the heart through legislation. You can’t legislate morals. The job must be done through education and religion. Well, there’s half-truth involved here. Certainly, if the problem is to be solved then in the final sense, hearts must be changed. Religion and education must play a great role in changing the heart. But we must go on to say that while it may be true that morality cannot be legislated, behavior can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also. So there is a need for executive orders. There is a need for judicial decrees. There is a need for civil rights legislation on the local scale within states and on the national scale from the federal government. [Emphasis added]
— Dr. Martin Luther King, Jr.’s address at Western Michigan University, December 18, 1963,
Hate speech is a function and symptom of politics, a tool used to mobilize supporters in a country whose organizational structures center on ethnic identity. As such, no law alone can address the potential of hatred, or even disinformation, to be used to rally one’s supporters. What is needed is not necessarily more law but more speech— that is, more professional sources of verifiable information — and a broad and deep national dialogue aimed at creating an agreed process for addressing grievances and building democratic institutions.
— David Kaye, United Nations Special Rapporteur on the Right to Freedom of Opinion and Expression, “End of Mission Statement”, December 2019. [Emphasis added.]
What Kaye is dismissively saying about the draft a proclamation aimed at controlling the lawless driven by hate was addressed long ago by Dr. King when he talked about the necessity of laws to deal with the heartless. It is true that legislation will not solve the problems of hate speech, “in the final sense, hearts must be changed.” But there is a need for laws, proclamations, legislation and judicial decrees to stop those who would use speech to incite the lynching of others because of their ethnicity, religion or language. There is a need for legislation on the local scale within the “kilils” and on the national scale from the federal government to deal with hate speech and disinformation.
— Alemayehu G. Mariam
Author’s Note:
David Kaye, the United Nations Special Rapporteur on the right to freedom of opinion and expression recently issued an “End of Mission Statement” [hereinafter “preliminary report”] on the “situation of freedom of opinion and expression in Ethiopia today.”
In Part I of this commentary, I discussed my personal philosophy and experience in defense of freedom of expression and my reservations about David Kaye’s “preliminary report”.
In Part II here, I shall discuss the technical aspects of the draft “hate speech and disinformation proclamation” currently before the Ethiopian House of Peoples’ Representatives [hereinafter “parliament”] and issue a broad challenge to Kaye and others interested in defending and promoting freedom of expression in Ethiopia to join hands in good will and good faith and help refine the current draft into a model “hate speech and disinformation” law for Africa, and possibly the world.
In concluding Part I, I expressed my hope to “work cooperatively with Kaye in improving the draft proclamation.”
I have reached out to Kaye but have not heard from him. Regardless, my view is that if we cannot agree to work together, we can agree to disagree without being disagreeable.
Aah! The good old days of making “flawless”, “perfect” laws in Ethiopia!
Not long ago, Ethiopian “leaders” openly and unabashedly claimed they made “perfect” laws.
The late boss of the TPLF crime family, Meles Zenawi, in January 2012 described his anti-terrorism diktat (Anti-Terrorism Proclamation No.652/2009) not only as the best in the world but also “flawless”. In other words, Zenawi had written the “perfect” anti-terrorism law!
Zenawi offered the following description (video of Meles’ statement to “parliament in Amharic, author’s translation below) of his “flawless” anti-terrorism law:
In drafting our anti-terrorism law, we copied word-for-word the very best anti-terrorism laws in the world. We took from America, England and the European model anti-terrorism laws. It is from these three sources that we have drafted our anti-terrorism law. From these, we have choosen the better ones. For instance, in all of these laws, an organization is deemed to be terrorist by the executive branch. We improved it by saying it is not good for the executive to make that determination. We took the definition of terrorism word-by-word. Not one word was changed. Not even a comma. It is taken word-by-word. There is a reason why we took it word-by-word. First, these people have experience in democratic governance. Because they have experience, there is no shame if we learn or take from them. Learning from a good teacher is useful not harmful. Nothing embarrassing about it. The [anti-terrorism] proclamation in every respect is flawless. It is better than the best anti-terrorism laws [in the world] but not less than any one of them in any way…
When I heard Meles Zenawi saying these words on video, I was not sure if I should laugh or cry. It hurt too much to laugh.
Meles Zenawi believed by wholesale plagiarism, cherry picking words, phrases, sentences and clauses from the “anti-terrorism” laws of different countries, he could craft a “flawless” law for himself.
At the time, I tried to tutor Zenawi that though imitation may best the highest form of flattery, to boldly claim that a mindlessly patched diktat as “flawless” is just mindless.
I tried to explain to him on his level that his cut-and-paste anti-terrorism law could be likened to creating an imaginary biological creature that bests the king of the jungle:
One cannot create a lion by piecing together the sturdy long neck of the giraffe with the strong jaws of a hyena, the fast limbs of the cheetah and the massive trunk of the elephant. The king of the jungle is an altogether different beast. In the same vein, one cannot clone pieces of anti-terrorism laws from everywhere onto a diktat and sanctify it as “flawless in every respect”.
The fact of the matter is that Zenawi weaponized his “flawless” anti-terrorism law to jail journalists wholesale, persecute dissenters, shutter newspapers and create a climate of fear and loathing in the country.
The draft “hate speech and disinformation” proclamation [author’s translation: “Hate Speech and Disinformation Prevention and Suppression Proclamation”; the author is not aware of any official English version of the draft proclamation] currently before parliament is not a “flawless” or “perfect” law. However, it is a narrowly drafted proclamation aimed at the prevention and penalization of speech reasonably likely to incite violence and lawlessness and dissemination of false information within the existing framework of Ethiopian criminal law and procedure.
It is regrettable David Kaye finds little that is socially redeeming in the draft proclamation. He declares it DOA (dead on arrival) for “excessive vagueness” and “overbreadth” at the altar of Article 19 of the International Covenant on Civil and Political Rights.
Kaye’s final word on the draft proclamation is, “What is needed is not necessarily more law but more speech.”
More hate speech and disinformation!?
David Kaye’s “End of Mission Statement” or parade-of-horribles about the draft proclamation?
In his “End of Mission Statement”, David Kaye trots out a parade-of-horribles about the draft “hate speech and disinformation” proclamation:
The draft ‘Hate Speech and Disinformation Proclamation’ would threaten freedom of expression. As constructed presently, it could reinforce rather than ease ethnic and political tensions.
The Government’s draft Hate Speech and Disinformation Proclamation, which it recently presented to Parliament, goes far beyond the command of Article 20(2) and the limitations on restrictions required by Article 19(3) of the ICCPR. (See my comments in the attached document.)
Unlike other draft legislation proceeding through the Advisory Council, this proclamation was developed outside that process. I am concerned that the draft Proclamation will exacerbate ethnic tension, which in turn may fuel further violence.
Inter-ethnic conflict spurred on by hate speech and disinformation demand not just legal solutions but political ones in which the Government and its opposition pursue reform at each state and district level. Law can support that process, but ultimately political will must exist to allow it to survive and thrive.
The reform process may be at risk from the near-term threat of inter-ethnic politics and the emergence — or at the very least the perceived emergence — of hatred and disinformation as tools of politics.”
There is seeming consensus social and broadcast media are fueling disinformation and hatred.
The Government is obligated under Article 20(2) of the International Covenant on Civil and Political Rights to prohibit by law “advocacy of national, racial and religious hatred that constitutes incitement to discrimination, hostility and violence.
The problem of hatred in the media should involve legal steps. But that is only part of the approach, for hate is very much a function of politics and, as such, it requires first and foremost a political, national solution.
Because of the failure to limit the offense by principles of intent, context, and other factors found in the Rabat Plan of Action, by its terms the draft could lead to the criminalization of people who merely re-post or otherwise share content deemed “hate speech” or “disinformation”. The scope of such an approach could be enormous, in particular because the problem of hate speech is often not merely the content but its virality, the ease by which it may be shared by hundreds or thousands of people.
The draft’s excessive vagueness means that officials at the federal and regional level would have practically unbounded discretion to determine whom to investigate and prosecute, leading to an almost certain inconsistency in approach and a potential wave of arbitrary arrests and prosecutions.
Several interlocutors expressed the fear that the law could be used to silence critics. This is not fantasy. Because of the ethnic definition of politics and governance at the national and regional level, it is possible that robust political debate could be penalized under the Proclamation.
An old Ethiopian proverb: “The sky is near for those who sit and point an index finger”.
I have presented ten reasons highlighting my reservations about Kaye’s “end of mission statement” in Part I of my commentary and will not rehash them here.
However, I find several things curious about Kaye’s parade-of-horribles.
Kaye has been a U.N special rapporteur since 2014. Indeed, he claims, “My mandate has undertaken considerable study of the human rights law pertaining to hate speech and disinformation, and by this informal comment I wish to share with you some of that work.”
Manifestly, Kaye has vast knowledge and experience in human rights law and from previous reports he has issued, it is abundantly clear that he has “evaluated” similar laws and proclamations in a number of other countries.
It seems obvious to me that if there is anyone who can fix a broken “hate crimes and disinformation” law, Kaye would be one of the very few people in the world who could.
With all due respect to Kaye, to me Kaye sounds like a broken record talking over and over about how other countries he had evaluated have drafted “excessively narrow and vague” and “overbroad” laws.
All countries Kaye has “evaluated” got it wrong on drafting “hate speech and disinformation laws!
After reviewing Italy’s law, Kaye concluded:
I am concerned that the Protocol is incompatible with the standards of international human rights law. I am concerned that the restrictions on “fake news” established by the Protocol are inconsistent with the criteria of legality, necessity and proportionality under article 19(3) of the ICCPR…
I am concerned that the Protocol would disproportionately suppress a wide range of expressive conduct essential to a democratic society, including criticism of the government, news reporting, political campaigning and the expression of unpopular, controversial or minority opinions.
After reviewing Malaysia’s law, Kaye concluded:
Section 3 of the Act broadly criminalizes any act with a “seditious tendency”, including any act that conjures feelings of “hatred”, “contempt”, “disaffection”, “discontent”, “ill will”, or “hostility”. I remain concerned that the vague language of the Sedition Act could result in disproportionate restrictions on freedom of expression…
The broad remit of the Sedition Act confers excessive discretion on the Government to suppress criticism, political campaigning or the expression of unpopular, controversial or minority opinions…
Section 233’s broad criminalization of online content is a disproportionate restriction on freedom of expression. The use of subjective terms such as “indecent”, “obscene”, “false”, “menacing”, or “offensive” gives the Government largely unfettered discretion to target government criticism or unpopular or controversial opinions.
After reviewing Singapore’s draft law, Kaye concluded:
I am concerned that the Bill, if adopted, would be incompatible with international human rights law… I am concerned that the Bill confers on select executive officials excessive authority to restrict, censor and punish online expression it designates as “false,” with limited opportunity for appeal.
[The] Bill gives Ministers virtually unfettered discretion to label and restrict expression they disagree with as “false statements of fact.”
The criminal penalties that may be imposed for the communication of a ‘false statement of fact’ or the failure to comply with a Direction also heighten the risk of censorship and government overreach. The broad discretion afforded to select executive officials to police ‘false statement[s] of fact,’ coupled with the threat of heavy fines and custodial sentences, is likely to create a significant chilling effect on freedom of expression.
After reviewing Ethiopia’s draft law, Kaye concluded:
The draft’s excessive vagueness means that officials at the federal and regional level would have practically unbounded discretion to determine whom to investigate and prosecute, leading to an almost certain inconsistency in approach and a potential wave of arbitrary arrests and prosecutions.
Because of the failure to limit the offense by principles of intent, context, and other factors found in the Rabat Plan of Action, by its terms the draft could lead to the criminalization of people who merely re-post or otherwise share content deemed “hate speech” or “disinformation”.
Show us the right way to do it!
In the movie “Jerry Maguire”, the lackluster sports agent wants to convince his client to stay with him. But the client unimpressed by his agent’s cheap talk declares, “Show me the money.”
I say to Kaye, “Show us the best model legislation for hate speech and disinformation.”
As I argued in Part I, it seems to me that Kaye indulges in excessive cut and paste to make his generic case against laws and proclamations aimed at regulating “hate speech and disinformation”.
But that begs questions.
Since Kaye is arguably one of the most authoritative experts in the world, at least by UN designation, on freedom of expression, why does he not draft a model “hate speech and disinformation law” and share it with the world? (Is the answer to that “It’s outside the scope of my mandate?)
Could he piece together the best parts of the world’s best “hate speech and disinformation” laws and, like Meles Zenawi, create a “flawless” and “perfect” law for adoption by all countries? (Is the answer to that, “It’s outside the scope of my mandate”?)
Could he get the U.N. Human Rights Council to propose a draft model “hate speech and disinformation law” for adoption by the U.N. General Assembly or the U.N. Human Rights Council? (Is the answer to that, “It’s outside the scope of my mandate?”)
Could he Perhaps lead a diverse body of international experts on freedom of expression such as the body that drafted the “Rabat Action Plan” to develop practical guidelines, recommendations and language for use in “hate speech and disinformation” laws? (Is the answer to that, “It’s outside the scope of my mandate?”)
Could he and others like him help regional human rights organization like the African Human Rights Commission to develop capacity, guidelines and recommendations for “hate speech and disinformation” laws that are relevant to the African experience and consistent with African traditions? (Is the answer to that, “It’s outside the scope of my mandate?”)
Could he organize expert workshops for countries like Ethiopia to help them write the “hate speech and disinformation” that pass Article 19 muster and effectively meet local needs and standards? (Is the answer to that “It’s outside the scope of my mandate?”)
Could he “customize” the Rabat Action Plan (which talks about standards in broad generalities) for Ethiopia? (Is the answer to that, “It’s outside the scope of my mandate?”)
The problem I have with Kaye’s approach and analysis to “hate speech and disinformation” laws is that he believes Article 19 is the only and ultimate standard of perfection and measure for freedom of expression.
Kaye seems to believe only a few chosen oracles are capable of interpreting and fixing the meaning of Article 19 and all others must accept their interpretations as gospel truth.
Kaye condemns the draft proclamation as “go[ing] far beyond the command of Article 20(2) and the limitations on restrictions required by Article 19(3) of the ICCPR.”
I am perplexed. Is Article 19 one of the Articles of Faith or the equivalent of the Apostles Creed for freedom of expression?
Article 19 is not a dogma of divine ordination.
Neither do I believe that the U.N. Human Rights Council is the equivalent of the Congregation for the Doctrine of the Faith for freedom of expression established to undertake inquisitions and punish/excommunicate heretics of freedom of expression.
I will state it plainly. I regard Article 19 and related articles as aspirational and inspirational. I regard them as directory, not mandatory. Nations can aspire to maximize freedom of expression and use Article 19 as a guideline.
But article 19 is not the equivalent of the Nicene Creed to be followed by all guided by the chosen few.
The Rosetta stone of Article 19/20 is the so-called Rabat Action Plan, prepared in 2013 under the auspices of the High Commissioner for Human Rights (OHCHR).
That Plan synthesizes and summarizes the expert opinions, “suggestions and recommendations of international expert bodies who held a series of expert workshops on the prohibition of incitement to national, racial or religious hatred and observations on legislative patterns, judicial practices and policies.”
I will concede that I know little about the credentials, expertise and composition of the “international body of experts” that issued the Rabat Action Plan.
My understanding of “expert opinion” testimony is limited to the procedural rules practiced in American federal and state jurisdictions.
In 27 years of law practice, I have jousted in the “battle of experts” from time to time.
Those who give “expert opinions” testify from a carefully crafted “script”. Experts are often paid handsomely to give preferred testimony. Expert testimony can be rebutted by other expert testimony and evidence.
I propose a battle of experts against the forces of hate, disinformation and fake news promoting violence and lawlessness.
The draft “hate speech …”
[Special Note: Discussion of the draft proclamation herein are based exclusively on the author’s translation of the Amharic text into English. There could be translational disagreements on words and phrases. I am not sure Kaye has proficiency in the Amharic language to be able to understand the draft proclamation in its original formulation. Until an official English version of the draft proclamation is released, there is no point in debating translational issues.]
In his broadside against the draft ‘Hate Speech and Disinformation Proclamation’, Kaye presents two arguments. In the first, he argues the proclamation as drafted “could reinforce rather than ease ethnic and political tensions.” He claims, “Inter-ethnic conflict spurred on by hate speech and disinformation demand not just legal solutions but political ones in which the Government and its opposition pursue reform at each state and district level. Law can support that process, but ultimately political will must exist to allow it to survive and thrive.”
I will not address Kaye’s first “political” argument since he has avoided it by disclaiming, “The basket of problems I am describing is deeply political and beyond the scope of my mandate to review fully.”
In his second line of argument, Kaye alleges the draft proclamation is fatally flawed because it could lead to “criminalization of speech” due to its “failure to limit the offense by principles of intent, context, and other factors found in the Rabat Plan of Action.” Specifically, Kaye asserts the “draft’s excessive vagueness” and “overbreadth” could result in “arbitrary arrests and prosecutions” by local and federal authorities.
Kaye argues the “definitions” in the proclamation “provide excessive scope for interpretation and, by their breadth, would not meet the legality standard in Article 19(3) [20(2)] .”
In other words, the definitions are “overbroad”, “unclear [about] what may be covered by speech that “promotes hatred, discrimination or attack against a person…” and would not sufficiently guide law enforcement authorities. He recommends, “laws to combat hate speech must be carefully construed and applied by the judiciary not to excessively curtail legitimate types of expression.”
Kaye’s second argument is familiar to me and resonate constitutional debates in America.
In American constitutional law, there are two methods commonly employed to challenge the constitutionality of a law/legislation. There are “facial” challenges in which proponents aim to show the law is unconstitutional by the very terms and language used in crafting it. In an “as applied” challenge, the claim is that while the law may generally valid, it operates improperly against a particular individual or group.
I believe what Kaye is arguing is that the draft proclamation is facially invalid (without ever being applied at all) under Articles 19, 20 or other human rights conventions.
In his mechanical, speculative and declaratory interpretation, Kaye believes that if the draft proclamation becomes law it will not, ipse dixit, “not meet the legal standards of Articles 19 and 20.”
To declare a draft proclamation or a law that has not been implemented as facially invalid by simply reading the words is the height of intellectual arrogance and hubris or the pit of intellectual folly. Kaye dismissively presumes Ethiopian authorities will naturally and inevitably abuse and misuse the law, implement it in bad faith and are fundamentally incompetent in the performance of their duties.
Kaye offers no evidence to support bad faith and incompetence on the part of Ethiopian authorities.
The right and quintessentially relevant question for Kaye to ask was whether the draft proclamation passes muster the requirements of Ethiopian criminal law and procedure.
To paraphrase a popular saying, “The devil is in the procedural details.”
The draft proclamation defines “hate speech” as speech that “promotes hatred, discrimination or attack against a person or an identifiable group or community on the basis of ethnicity, religion, race, color, national origin, gender or disability.”
“Disinformation” is defined as “speech that is false, is disseminated by person who knew or should reasonably have known of the falsity of the information and its likelihood of causing a public disturbance, riot, violence or conflict.”
Kaye argues, “while the definition seems to assume that ‘false’ has a fixed meaning, it does not. As a result, the definition raises serious overbreadth concerns under the legality test of Article 19(3), which does not provide for such restrictions.” He further contends it “is unclear whether the knowledge standard applies not only to falsity but to the likeliness of causing a public disturbance.” He further points out the “definition evidently excludes the element of intention” particularly “if a person were to share false information, knowing it was false, but intended to imply disagreement with the content.”
Kaye does not seem to be aware of the unusual procedural requirements of “intent” and “burden of proof” under Ethiopian criminal law and procedure.
According to one scholarly analysis (see discussion pp. 288-290):
There are provisions in the [Ethiopian] Criminal Code that allow proof of facts constituting an element of a crime, mainly intention or knowledge, by presumption. In some cases, the public prosecutor does not even have to prove any basic facts for those facts to be deemed to exist. Some of the provisions even preclude contrary proof of facts that are presumed to exist. Courts routinely impose the burden of proof on the defendant. These state actions and legislative provisions that shift the burden of proof to the defendant not only restrict (and sometimes nullify) the constitutional principle of presumption of innocence, but also negatively impact the fairness of the criminal justice system administration in a fundamental way.
Intention exists where a person commits ‘an unlawful and punishable act with full knowledge and intent in order to achieve a given result’ or that ‘he, being aware that his act may cause illegal and punishable consequences, commits the act regardless of such consequences may follow’ (Article 58 “Criminal Intention”).
Under Ethiopian criminal law and procedure, the defendant bears the burden of raising affirmative defenses to overcome the prosecution’s proof beyond a reasonable doubt.
There is even an irrebuttable presumption regarding such intention or knowledge that constitutes an element of the crime. Thus, with regard to crimes committed through the mass media, the Criminal Code provides that ‘[i]n determining the liability of a person … for the crime committed through the product of mass media, the content of the matter shall be deemed to have been inserted, published or disseminated with … full knowledge and consent’ of the editor-in-chief, deputy editor, publisher, printer, disseminator, etc. It is further provided that ‘[n]o proof to the contrary may be admitted in such a case’. These are not evidentiary provisions; they are substantive provisions which establish guilt by presumption because they preclude contrary proof.”
Kaye is barking up the wrong tree. His quarrel is not with the draft proclamation but the Ethiopian criminal law and procedure.
For Kaye to argue the draft proclamation must be held to Articles 19 and 20 in disregard of Ethiopia’s criminal law and procedure shows that he is either uninformed, naïve or dogmatic.
Since the crux of the issue for Kaye in the draft proclamation is arbitrary prosecution of persons engaging in “hate speech” and “disinformation”, the question is whether to follow Ethiopian criminal procedure or disregard it in favor of Articles 19 and 20 standards.
The bottom line is the draft proclamation is consistent with current Ethiopian criminal law and procedure.
Do I believe there is a need for revising Ethiopian criminal procedure with respect to “hate crimes and disinformation”?
Do I believe there is a need to revise Ethiopian criminal law and procedure in its entirety?
Do I believe it is time to overhaul Ethiopian laws to measure up to the legal standards of the so-called advanced industrialized societies?
Those are questions I shall reserve for my forthcoming commentary, “The Need for Medemer Jurisprudence”.
The bottom line is simply this: The draft proclamation if enacted into law will become part of the criminal law and subject to applicable criminal procedural requirements. To do what Kay wants done with the draft proclamation, it will be necessary to revise substantial areas of Ethiopian criminal procedure!
David Kaye and the myth that legislation cannot really solve the problem of hate speech in Ethiopia
Kaye argues, “hate is very much a function of politics and, as such, it requires first and foremost a political, national solution.”
What Kaye is dismissively saying about the draft a proclamation aimed at controlling the lawless driven by hate was addressed long ago by Dr. King when he talked about the necessity of laws to deal with the heartless.
It is true that legislation will not solve the problems of hate speech, “in the final sense, hearts must be changed.”
But there is a need for laws, proclamations, legislation and judicial decrees to stop those who would use speech to incite the lynching of others because of their ethnicity, religion or language. There is a need for legislation on the local scale within the “kilils” and on the national scale from the federal government to deal with hate speech and disinformation.
There is a need for a “hate speech and disinformation” law in Ethiopia!
W.E. Gladstone, the 19th century British Prime Minister observed, “The American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.”
The draft “hate speech and disinformation” proclamation before the Ethiopian parliament is by no stretch of the imagination the “most wonderful” piece of legislation “ever struck off at a given time by the brain and purpose of man”. Nor do I believe the draft is gospel that is unchanging and eternal.
It is a narrowly tailored proclamation that deals with the problem of hate speech and disinformation within Ethiopian criminal law and procedure.
Kaye argues, “Combating hate speech is a delicate endeavour, which requires an in-depth knowledge of the local context, proficiency in local languages, and understanding of social and cultural habits, among so many others.”
The draft can certainly be improved and refined with the collaborative effort of all stakeholders of goodwill and good faith who are committed to making Ethiopia second to none in the practice, protection and preservation of freedom of expression.
It can be improved through practice, careful judicial interpretation and attentive legislative oversight.
But the draft proclamation cannot be improved by boilerplate criticisms, furtive disclaimers and dogmatic appeals to Articles 19 and 20.
Kaye’s concerns remain speculative since no one has been or could be prosecuted under the draft proclamation. There are many practical (not just academic) aspects of enforcement of hate speech and disinformation laws. Judicial determination of violations of the proclamation if enacted will require consideration of the totality of the circumstances, not just quibbling over abstract academic definitions.
How do judges determine when heated political rhetoric is transformed into incitement? Could courts consider evidence of prior statements encouraging or inciting violence? Should a framework be developed to enable courts to identify incitement based on set criteria? Could the experiences and laws of other countries dealing with hate speech and disinformation be relevant to Ethiopia? Could Ethiopia adopt standards from the U.S. such as the Brandenburg test?
I take a practical, let’s-wait-and see approach to the draft proclamation. If it is enacted, let’s see if there is abuse and misuse.
Would the courts use a test for incitement that is arbitrary and capricious? Would the courts be able to provide standards regarding the elements of “imminence” and “likelihood” of imminent lawless action?
None of these questions can be answered easily. The line between what is freedom of expression and incitement speech has not been clear even in the United States. For more than five decades, U.S. courts have been struggling to develop systematic framework for determining the categories and contexts of speech acts that are most likely to cause imminent harm or injury.
The power of hate advocacy cannot be understated. Charismatic and populist leaders are more likely to influence behavior if they are perceived to be important by a particular audience. The Nazis rose to power by systematically advocating a message of hate and by demonizing minority groups in German society. Long before the Holocaust, Jews were consistently depicted by the Nazis as threats and “enemies of the German people” and labeled “Untermenschen” or sub-humans.
Speakers can promote fear, resentment and violence among their followers by accentuating historical grievances and scapegoating others. Speakers can spread disinformation to incite lawlessness.
In June 2019, YouTube issued notice it will ban supremacists and remove Nazis and other extremists from using its services. Similar actions are being taken by Facebook.
Whether a given speech is intended to cause violence is a factual matter to be decided on a case-by-case basis by a fact finder. However, hate speech and disinformation laws are not contradictory to the exercise of robust political speech and prevention of lawlessness by advocacy of hate.
Medemer Jurisprudence…. to follow.
Hate, Hearts and Minds: “Creating an Ethiopia That is Second to None in Its Guarantee of Freedom of Expression” (Part II)
Posted in Al Mariam's Commentaries By almariam On December 30, 2019What Kaye is dismissively saying about the draft a proclamation aimed at controlling the lawless driven by hate was addressed long ago by Dr. King when he talked about the necessity of laws to deal with the heartless. It is true that legislation will not solve the problems of hate speech, “in the final sense, hearts must be changed.” But there is a need for laws, proclamations, legislation and judicial decrees to stop those who would use speech to incite the lynching of others because of their ethnicity, religion or language. There is a need for legislation on the local scale within the “kilils” and on the national scale from the federal government to deal with hate speech and disinformation.
— Alemayehu G. Mariam
David Kaye, the United Nations Special Rapporteur on the right to freedom of opinion and expression recently issued an “End of Mission Statement” [hereinafter “preliminary report”] on the “situation of freedom of opinion and expression in Ethiopia today.”
In Part I of this commentary, I discussed my personal philosophy and experience in defense of freedom of expression and my reservations about David Kaye’s “preliminary report”.
In Part II here, I shall discuss the technical aspects of the draft “hate speech and disinformation proclamation” currently before the Ethiopian House of Peoples’ Representatives [hereinafter “parliament”] and issue a broad challenge to Kaye and others interested in defending and promoting freedom of expression in Ethiopia to join hands in good will and good faith and help refine the current draft into a model “hate speech and disinformation” law for Africa, and possibly the world.
In concluding Part I, I expressed my hope to “work cooperatively with Kaye in improving the draft proclamation.”
I have reached out to Kaye but have not heard from him. Regardless, my view is that if we cannot agree to work together, we can agree to disagree without being disagreeable.
Aah! The good old days of making “flawless”, “perfect” laws in Ethiopia!
Not long ago, Ethiopian “leaders” openly and unabashedly claimed they made “perfect” laws.
The late boss of the TPLF crime family, Meles Zenawi, in January 2012 described his anti-terrorism diktat (Anti-Terrorism Proclamation No.652/2009) not only as the best in the world but also “flawless”. In other words, Zenawi had written the “perfect” anti-terrorism law!
Zenawi offered the following description (video of Meles’ statement to “parliament in Amharic, author’s translation below) of his “flawless” anti-terrorism law:
When I heard Meles Zenawi saying these words on video, I was not sure if I should laugh or cry. It hurt too much to laugh.
Meles Zenawi believed by wholesale plagiarism, cherry picking words, phrases, sentences and clauses from the “anti-terrorism” laws of different countries, he could craft a “flawless” law for himself.
At the time, I tried to tutor Zenawi that though imitation may best the highest form of flattery, to boldly claim that a mindlessly patched diktat as “flawless” is just mindless.
I tried to explain to him on his level that his cut-and-paste anti-terrorism law could be likened to creating an imaginary biological creature that bests the king of the jungle:
The fact of the matter is that Zenawi weaponized his “flawless” anti-terrorism law to jail journalists wholesale, persecute dissenters, shutter newspapers and create a climate of fear and loathing in the country.
The draft “hate speech and disinformation” proclamation [author’s translation: “Hate Speech and Disinformation Prevention and Suppression Proclamation”; the author is not aware of any official English version of the draft proclamation] currently before parliament is not a “flawless” or “perfect” law. However, it is a narrowly drafted proclamation aimed at the prevention and penalization of speech reasonably likely to incite violence and lawlessness and dissemination of false information within the existing framework of Ethiopian criminal law and procedure.
It is regrettable David Kaye finds little that is socially redeeming in the draft proclamation. He declares it DOA (dead on arrival) for “excessive vagueness” and “overbreadth” at the altar of Article 19 of the International Covenant on Civil and Political Rights.
Kaye’s final word on the draft proclamation is, “What is needed is not necessarily more law but more speech.”
More hate speech and disinformation!?
David Kaye’s “End of Mission Statement” or parade-of-horribles about the draft proclamation?
In his “End of Mission Statement”, David Kaye trots out a parade-of-horribles about the draft “hate speech and disinformation” proclamation:
The draft ‘Hate Speech and Disinformation Proclamation’ would threaten freedom of expression. As constructed presently, it could reinforce rather than ease ethnic and political tensions.
The Government’s draft Hate Speech and Disinformation Proclamation, which it recently presented to Parliament, goes far beyond the command of Article 20(2) and the limitations on restrictions required by Article 19(3) of the ICCPR. (See my comments in the attached document.)
Unlike other draft legislation proceeding through the Advisory Council, this proclamation was developed outside that process. I am concerned that the draft Proclamation will exacerbate ethnic tension, which in turn may fuel further violence.
Inter-ethnic conflict spurred on by hate speech and disinformation demand not just legal solutions but political ones in which the Government and its opposition pursue reform at each state and district level. Law can support that process, but ultimately political will must exist to allow it to survive and thrive.
The reform process may be at risk from the near-term threat of inter-ethnic politics and the emergence — or at the very least the perceived emergence — of hatred and disinformation as tools of politics.”
There is seeming consensus social and broadcast media are fueling disinformation and hatred.
The Government is obligated under Article 20(2) of the International Covenant on Civil and Political Rights to prohibit by law “advocacy of national, racial and religious hatred that constitutes incitement to discrimination, hostility and violence.
The problem of hatred in the media should involve legal steps. But that is only part of the approach, for hate is very much a function of politics and, as such, it requires first and foremost a political, national solution.
Because of the failure to limit the offense by principles of intent, context, and other factors found in the Rabat Plan of Action, by its terms the draft could lead to the criminalization of people who merely re-post or otherwise share content deemed “hate speech” or “disinformation”. The scope of such an approach could be enormous, in particular because the problem of hate speech is often not merely the content but its virality, the ease by which it may be shared by hundreds or thousands of people.
The draft’s excessive vagueness means that officials at the federal and regional level would have practically unbounded discretion to determine whom to investigate and prosecute, leading to an almost certain inconsistency in approach and a potential wave of arbitrary arrests and prosecutions.
Several interlocutors expressed the fear that the law could be used to silence critics. This is not fantasy. Because of the ethnic definition of politics and governance at the national and regional level, it is possible that robust political debate could be penalized under the Proclamation.
An old Ethiopian proverb: “The sky is near for those who sit and point an index finger”.
I have presented ten reasons highlighting my reservations about Kaye’s “end of mission statement” in Part I of my commentary and will not rehash them here.
However, I find several things curious about Kaye’s parade-of-horribles.
Kaye has been a U.N special rapporteur since 2014. Indeed, he claims, “My mandate has undertaken considerable study of the human rights law pertaining to hate speech and disinformation, and by this informal comment I wish to share with you some of that work.”
Manifestly, Kaye has vast knowledge and experience in human rights law and from previous reports he has issued, it is abundantly clear that he has “evaluated” similar laws and proclamations in a number of other countries.
It seems obvious to me that if there is anyone who can fix a broken “hate crimes and disinformation” law, Kaye would be one of the very few people in the world who could.
With all due respect to Kaye, to me Kaye sounds like a broken record talking over and over about how other countries he had evaluated have drafted “excessively narrow and vague” and “overbroad” laws.
All countries Kaye has “evaluated” got it wrong on drafting “hate speech and disinformation laws!
After reviewing Italy’s law, Kaye concluded:
After reviewing Malaysia’s law, Kaye concluded:
After reviewing Singapore’s draft law, Kaye concluded:
After reviewing Ethiopia’s draft law, Kaye concluded:
Show us the right way to do it!
In the movie “Jerry Maguire”, the lackluster sports agent wants to convince his client to stay with him. But the client unimpressed by his agent’s cheap talk declares, “Show me the money.”
I say to Kaye, “Show us the best model legislation for hate speech and disinformation.”
As I argued in Part I, it seems to me that Kaye indulges in excessive cut and paste to make his generic case against laws and proclamations aimed at regulating “hate speech and disinformation”.
But that begs questions.
Since Kaye is arguably one of the most authoritative experts in the world, at least by UN designation, on freedom of expression, why does he not draft a model “hate speech and disinformation law” and share it with the world? (Is the answer to that “It’s outside the scope of my mandate?)
Could he piece together the best parts of the world’s best “hate speech and disinformation” laws and, like Meles Zenawi, create a “flawless” and “perfect” law for adoption by all countries? (Is the answer to that, “It’s outside the scope of my mandate”?)
Could he get the U.N. Human Rights Council to propose a draft model “hate speech and disinformation law” for adoption by the U.N. General Assembly or the U.N. Human Rights Council? (Is the answer to that, “It’s outside the scope of my mandate?”)
Could he Perhaps lead a diverse body of international experts on freedom of expression such as the body that drafted the “Rabat Action Plan” to develop practical guidelines, recommendations and language for use in “hate speech and disinformation” laws? (Is the answer to that, “It’s outside the scope of my mandate?”)
Could he and others like him help regional human rights organization like the African Human Rights Commission to develop capacity, guidelines and recommendations for “hate speech and disinformation” laws that are relevant to the African experience and consistent with African traditions? (Is the answer to that, “It’s outside the scope of my mandate?”)
Could he organize expert workshops for countries like Ethiopia to help them write the “hate speech and disinformation” that pass Article 19 muster and effectively meet local needs and standards? (Is the answer to that “It’s outside the scope of my mandate?”)
Could he “customize” the Rabat Action Plan (which talks about standards in broad generalities) for Ethiopia? (Is the answer to that, “It’s outside the scope of my mandate?”)
The problem I have with Kaye’s approach and analysis to “hate speech and disinformation” laws is that he believes Article 19 is the only and ultimate standard of perfection and measure for freedom of expression.
Kaye seems to believe only a few chosen oracles are capable of interpreting and fixing the meaning of Article 19 and all others must accept their interpretations as gospel truth.
Kaye condemns the draft proclamation as “go[ing] far beyond the command of Article 20(2) and the limitations on restrictions required by Article 19(3) of the ICCPR.”
I am perplexed. Is Article 19 one of the Articles of Faith or the equivalent of the Apostles Creed for freedom of expression?
Article 19 is not a dogma of divine ordination.
Neither do I believe that the U.N. Human Rights Council is the equivalent of the Congregation for the Doctrine of the Faith for freedom of expression established to undertake inquisitions and punish/excommunicate heretics of freedom of expression.
I will state it plainly. I regard Article 19 and related articles as aspirational and inspirational. I regard them as directory, not mandatory. Nations can aspire to maximize freedom of expression and use Article 19 as a guideline.
But article 19 is not the equivalent of the Nicene Creed to be followed by all guided by the chosen few.
The Rosetta stone of Article 19/20 is the so-called Rabat Action Plan, prepared in 2013 under the auspices of the High Commissioner for Human Rights (OHCHR).
That Plan synthesizes and summarizes the expert opinions, “suggestions and recommendations of international expert bodies who held a series of expert workshops on the prohibition of incitement to national, racial or religious hatred and observations on legislative patterns, judicial practices and policies.”
I will concede that I know little about the credentials, expertise and composition of the “international body of experts” that issued the Rabat Action Plan.
My understanding of “expert opinion” testimony is limited to the procedural rules practiced in American federal and state jurisdictions.
In 27 years of law practice, I have jousted in the “battle of experts” from time to time.
Those who give “expert opinions” testify from a carefully crafted “script”. Experts are often paid handsomely to give preferred testimony. Expert testimony can be rebutted by other expert testimony and evidence.
I propose a battle of experts against the forces of hate, disinformation and fake news promoting violence and lawlessness.
The draft “hate speech …”
[Special Note: Discussion of the draft proclamation herein are based exclusively on the author’s translation of the Amharic text into English. There could be translational disagreements on words and phrases. I am not sure Kaye has proficiency in the Amharic language to be able to understand the draft proclamation in its original formulation. Until an official English version of the draft proclamation is released, there is no point in debating translational issues.]
In his broadside against the draft ‘Hate Speech and Disinformation Proclamation’, Kaye presents two arguments. In the first, he argues the proclamation as drafted “could reinforce rather than ease ethnic and political tensions.” He claims, “Inter-ethnic conflict spurred on by hate speech and disinformation demand not just legal solutions but political ones in which the Government and its opposition pursue reform at each state and district level. Law can support that process, but ultimately political will must exist to allow it to survive and thrive.”
I will not address Kaye’s first “political” argument since he has avoided it by disclaiming, “The basket of problems I am describing is deeply political and beyond the scope of my mandate to review fully.”
In his second line of argument, Kaye alleges the draft proclamation is fatally flawed because it could lead to “criminalization of speech” due to its “failure to limit the offense by principles of intent, context, and other factors found in the Rabat Plan of Action.” Specifically, Kaye asserts the “draft’s excessive vagueness” and “overbreadth” could result in “arbitrary arrests and prosecutions” by local and federal authorities.
Kaye argues the “definitions” in the proclamation “provide excessive scope for interpretation and, by their breadth, would not meet the legality standard in Article 19(3) [20(2)] .”
In other words, the definitions are “overbroad”, “unclear [about] what may be covered by speech that “promotes hatred, discrimination or attack against a person…” and would not sufficiently guide law enforcement authorities. He recommends, “laws to combat hate speech must be carefully construed and applied by the judiciary not to excessively curtail legitimate types of expression.”
Kaye’s second argument is familiar to me and resonate constitutional debates in America.
In American constitutional law, there are two methods commonly employed to challenge the constitutionality of a law/legislation. There are “facial” challenges in which proponents aim to show the law is unconstitutional by the very terms and language used in crafting it. In an “as applied” challenge, the claim is that while the law may generally valid, it operates improperly against a particular individual or group.
I believe what Kaye is arguing is that the draft proclamation is facially invalid (without ever being applied at all) under Articles 19, 20 or other human rights conventions.
In his mechanical, speculative and declaratory interpretation, Kaye believes that if the draft proclamation becomes law it will not, ipse dixit, “not meet the legal standards of Articles 19 and 20.”
To declare a draft proclamation or a law that has not been implemented as facially invalid by simply reading the words is the height of intellectual arrogance and hubris or the pit of intellectual folly. Kaye dismissively presumes Ethiopian authorities will naturally and inevitably abuse and misuse the law, implement it in bad faith and are fundamentally incompetent in the performance of their duties.
Kaye offers no evidence to support bad faith and incompetence on the part of Ethiopian authorities.
The right and quintessentially relevant question for Kaye to ask was whether the draft proclamation passes muster the requirements of Ethiopian criminal law and procedure.
To paraphrase a popular saying, “The devil is in the procedural details.”
The draft proclamation defines “hate speech” as speech that “promotes hatred, discrimination or attack against a person or an identifiable group or community on the basis of ethnicity, religion, race, color, national origin, gender or disability.”
“Disinformation” is defined as “speech that is false, is disseminated by person who knew or should reasonably have known of the falsity of the information and its likelihood of causing a public disturbance, riot, violence or conflict.”
Kaye argues, “while the definition seems to assume that ‘false’ has a fixed meaning, it does not. As a result, the definition raises serious overbreadth concerns under the legality test of Article 19(3), which does not provide for such restrictions.” He further contends it “is unclear whether the knowledge standard applies not only to falsity but to the likeliness of causing a public disturbance.” He further points out the “definition evidently excludes the element of intention” particularly “if a person were to share false information, knowing it was false, but intended to imply disagreement with the content.”
Kaye does not seem to be aware of the unusual procedural requirements of “intent” and “burden of proof” under Ethiopian criminal law and procedure.
According to one scholarly analysis (see discussion pp. 288-290):
Under Ethiopian criminal law and procedure, the defendant bears the burden of raising affirmative defenses to overcome the prosecution’s proof beyond a reasonable doubt.
Kaye is barking up the wrong tree. His quarrel is not with the draft proclamation but the Ethiopian criminal law and procedure.
For Kaye to argue the draft proclamation must be held to Articles 19 and 20 in disregard of Ethiopia’s criminal law and procedure shows that he is either uninformed, naïve or dogmatic.
Since the crux of the issue for Kaye in the draft proclamation is arbitrary prosecution of persons engaging in “hate speech” and “disinformation”, the question is whether to follow Ethiopian criminal procedure or disregard it in favor of Articles 19 and 20 standards.
The bottom line is the draft proclamation is consistent with current Ethiopian criminal law and procedure.
Do I believe there is a need for revising Ethiopian criminal procedure with respect to “hate crimes and disinformation”?
Do I believe there is a need to revise Ethiopian criminal law and procedure in its entirety?
Do I believe it is time to overhaul Ethiopian laws to measure up to the legal standards of the so-called advanced industrialized societies?
Those are questions I shall reserve for my forthcoming commentary, “The Need for Medemer Jurisprudence”.
The bottom line is simply this: The draft proclamation if enacted into law will become part of the criminal law and subject to applicable criminal procedural requirements. To do what Kay wants done with the draft proclamation, it will be necessary to revise substantial areas of Ethiopian criminal procedure!
David Kaye and the myth that legislation cannot really solve the problem of hate speech in Ethiopia
Kaye argues, “hate is very much a function of politics and, as such, it requires first and foremost a political, national solution.”
What Kaye is dismissively saying about the draft a proclamation aimed at controlling the lawless driven by hate was addressed long ago by Dr. King when he talked about the necessity of laws to deal with the heartless.
It is true that legislation will not solve the problems of hate speech, “in the final sense, hearts must be changed.”
But there is a need for laws, proclamations, legislation and judicial decrees to stop those who would use speech to incite the lynching of others because of their ethnicity, religion or language. There is a need for legislation on the local scale within the “kilils” and on the national scale from the federal government to deal with hate speech and disinformation.
There is a need for a “hate speech and disinformation” law in Ethiopia!
W.E. Gladstone, the 19th century British Prime Minister observed, “The American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.”
The draft “hate speech and disinformation” proclamation before the Ethiopian parliament is by no stretch of the imagination the “most wonderful” piece of legislation “ever struck off at a given time by the brain and purpose of man”. Nor do I believe the draft is gospel that is unchanging and eternal.
It is a narrowly tailored proclamation that deals with the problem of hate speech and disinformation within Ethiopian criminal law and procedure.
Kaye argues, “Combating hate speech is a delicate endeavour, which requires an in-depth knowledge of the local context, proficiency in local languages, and understanding of social and cultural habits, among so many others.”
The draft can certainly be improved and refined with the collaborative effort of all stakeholders of goodwill and good faith who are committed to making Ethiopia second to none in the practice, protection and preservation of freedom of expression.
It can be improved through practice, careful judicial interpretation and attentive legislative oversight.
But the draft proclamation cannot be improved by boilerplate criticisms, furtive disclaimers and dogmatic appeals to Articles 19 and 20.
Kaye’s concerns remain speculative since no one has been or could be prosecuted under the draft proclamation. There are many practical (not just academic) aspects of enforcement of hate speech and disinformation laws. Judicial determination of violations of the proclamation if enacted will require consideration of the totality of the circumstances, not just quibbling over abstract academic definitions.
How do judges determine when heated political rhetoric is transformed into incitement? Could courts consider evidence of prior statements encouraging or inciting violence? Should a framework be developed to enable courts to identify incitement based on set criteria? Could the experiences and laws of other countries dealing with hate speech and disinformation be relevant to Ethiopia? Could Ethiopia adopt standards from the U.S. such as the Brandenburg test?
I take a practical, let’s-wait-and see approach to the draft proclamation. If it is enacted, let’s see if there is abuse and misuse.
Would the courts use a test for incitement that is arbitrary and capricious? Would the courts be able to provide standards regarding the elements of “imminence” and “likelihood” of imminent lawless action?
None of these questions can be answered easily. The line between what is freedom of expression and incitement speech has not been clear even in the United States. For more than five decades, U.S. courts have been struggling to develop systematic framework for determining the categories and contexts of speech acts that are most likely to cause imminent harm or injury.
The power of hate advocacy cannot be understated. Charismatic and populist leaders are more likely to influence behavior if they are perceived to be important by a particular audience. The Nazis rose to power by systematically advocating a message of hate and by demonizing minority groups in German society. Long before the Holocaust, Jews were consistently depicted by the Nazis as threats and “enemies of the German people” and labeled “Untermenschen” or sub-humans.
Speakers can promote fear, resentment and violence among their followers by accentuating historical grievances and scapegoating others. Speakers can spread disinformation to incite lawlessness.
In June 2019, YouTube issued notice it will ban supremacists and remove Nazis and other extremists from using its services. Similar actions are being taken by Facebook.
Whether a given speech is intended to cause violence is a factual matter to be decided on a case-by-case basis by a fact finder. However, hate speech and disinformation laws are not contradictory to the exercise of robust political speech and prevention of lawlessness by advocacy of hate.
Medemer Jurisprudence…. to follow.
Share this:
Related Posts