Provision of Real-time Lawful Interception Assistance

Ethiopian Constitution

Article 26 of the Ethiopian Constitution establishes the Right to Privacy, which includes “the right not to be subjected to searches of his home, person or property, or the seizure of any property under his personal possession.” Article 26 also includes the right to inviolability of “notes and correspondence including postal letters, and communications made by means of telephone, telecommunications and electronic devices.”  The constitution only allows for restrictions on the exercise of these rights in peacetime “in compelling circumstances and in accordance with specific laws whose purposes shall be the safeguarding of national security or public peace, the prevention of crimes or the protection of health, public morality or the rights and freedoms of others.”

Similarly, infringement of privacy may entail civil or criminal responsibility. For example, unlawful search (article 11 of the 1960 Civil Code), publication of one’s personal information, including photograph without consent (article 27 of the 1960 Civil Code) as well as trespass (article 2053 of the 1960 Civil Code) may result in civil (tort) liability. The 2004 Federal Criminal Code under articles 604, 605/606 criminalizes violation of the privacy of correspondence or consignments including intrusion of one’s letter, telegram, telecom, and other electronic correspondence upon complaint, with up to six months of imprisonment or a fine.

Proclamation No. 1148/2019: A Proclamation for the Communications Service

Proclamation No.1148 of 2019 officially authorizes the restructuring of the telecommunications market in Ethiopia. Article 19 of the law clarifies that the telecommunications market is open to private investors, both foreign and domestic, but also notes that this investment is “notwithstanding the terms of any other law.” Article 19 also notes the government has ultimate authority over the “number of new entrants, the conditions and time for issuance of the licenses.” The proclamation  establishes a new federal regulatory body, the Ethiopian Communications Authority (ECA), to administer these authorities.

Under Article 6, the ECA is authorized to “require any licensee, telecommunications operator, postal operator or broadcaster to provide information that reasonably finds to be necessary for the proper performance of its functions and the exercise of its powers under this Proclamation.”

Under Article 31, the ECA may “assign inspectors to ascertain that the requirements of this proclamation and authority’s decision made hereunder are complied with.” This includes “the power to inspect any telecommunications equipment and to examine and make copies of any relevant documents.”

Under Article 51, Telecommunications operators are required to take all reasonable steps to ensure the confidentiality of their customers’ telecommunications service. However, under paragraph 2 of Article 51, all telecoms operators are expected to comply with court orders to provide information relating to a customer’s telecommunications, as a court of competent jurisdiction requires, pursuant to the laws of Ethiopia. In addition, under paragraph 3 of Article 51, a telecommunications operator can also be required to permit duly authorized agents of the Government of Ethiopia to carry out lawful surveillance in the conduct of a criminal or national security investigation, subject to a court order. The ECA can impose penalties or revoke or suspend operators’ licenses for failure to comply with this requirement.

Proclamation No. 1148/2019 has been in effect since its notification to the official gazette in August 2019. The Council of Ministers and the ECA can issue further regulations and directives for implementing this Proclamation. As of this writing the ECA had issued twelve directives which are published on the ECA website.

Ethio Telecom

Telecommunications in Ethiopia have been historically controlled by a state-owned monopoly, Ethio Telecom. This corporation was initially established by Council of Ministers Regulation No. 10/1996 as the Ethiopian Telecommunication Corporation and was reestablished as Ethio Telecom the Council of Ministers Regulation No. 197/2010. Regulation No. 197/2010 is still in effect for any telecommunications services offered by the government. Proclamation No.1148 of 2019, as detailed above, formally authorizes new entrants into the market under the supervision of the Ethiopian Communications Authority (ECA). The ECA has issued a license to a consortium made up of Vodafone, Vodacom and Safaricom, as well as several investors.

Ethio Telecom is governed by Proclamation No. 25/1992, which lists the duties of public enterprises, and Proclamation 131/1952, which established the rights and obligations of the Ethiopian Telecommunication Authority. Neither proclamation establishes express authority for the government to compel real-time surveillance over consumers from Ethio Telecom. Article 5(7) of Regulation No. 197/2010 also states that Ethio Telecom is established “to engage in other related activities necessary for the attainment of its purposes.”

Proclamation No. 958/2016: Computer Crime Proclamation

This proclamation gives the government broad surveillance powers in a variety of contexts.

For instance, under Article 25 of the Proclamation, in order “to prevent computer crimes and collect evidence related information” any “investigatory organ,” which is defined in Article 2 as someone “legally invested with the power of investigation,” may request a court warrant to conduct real-time interception of communications. However, this power is only applicable when there is “no other means readily available for collecting” the data and the action “is approved and decided by the Attorney General.” Under Article 17, “whosever” fails to comply with obligations under Article 25 can face legal penalty.

The proclamation also gives additional powers to the Information Network Security Agency (INSA), established by Proclamation 808/2013 (also see Disclosure of Stored Comms Data below) and tasked with ensuring that “information and computer based key infrastructures are secured.” Under Article 26 of the Computer Crime Proclamation, when the INSA has “reasonable grounds to believe that a crime is to be committed” it can, with a warrant, “conduct sudden searches, digital forensic investigation, provide appropriate security equipment or take other similar measures on computers, computer systems or infrastructures.” This Article appears to give the INSA broad powers to conduct real-time surveillance so long as it has “reasonable grounds” to believe that a crime is to be committed. 

Finally, under Article 44, the Council of Ministers and the INSA are given broad powers to issue regulations and directives “necessary for the implementation of this Proclamation.”

Proclamation No. 761/2012: A Proclamation on Telecom Fraud Offence

Under Article 14 of this proclamation police may request the court in writing for a covert search warrant where a telecom fraud offence has been committed or where there are reasonable grounds to believe that a telecom fraud is likely to be committed. While the article does not explicitly clarify if covert search warrants authorize real-time interception, Article 15 clarifies that “digital or electronic evidences;” “evidences gathered through interception or surveillance;” and “information obtained through interception conducted by foreign law enforcement bodies,” are all admissible in court in relation to telecom fraud offences. 

Telecom fraud is defined broadly. For example, under Article 6 it is illegal to use telecom services or infrastructure to disseminate an “obscene message,” without defining obscenity, and it is illegal to use or cause the use of a telecom service or infrastructure “for illegal purposes.” There is no further definition of using telecoms for “illegal purposes” but the law suggests terrorism is one of the proscribed acts.  Under Article 3, anyone who uses or holds telecom equipment without obtaining a permit from the ministry has committed an offence subject to legal penalty.

Proclamation No. 780/2013: A Proclamation on Prevention and Suppression of Money Laundering and Financing of Terrorism.

Under Article 25 the judiciary is allowed to authorize “crime investigation authorities” to “access computer systems, networks and servers,” to “place under surveillance or to intercept communications,” and “to intercept and seize correspondence,” among other authorized investigative techniques.

Article 2 sub-article 22 defines competent authority as the National Intelligence Security Services (NISS), the police, the public prosecutor or other investigative body, the customs authority, or any concerned regulatory authority.

The techniques authorized under Article 25 are authorized only if there are serious indications that the surveilled systems are or may be used by persons suspected of participating in money laundering or financing terrorism. 

Proclamation No. 804/2013: A Proclamation to Re-Establish the National Intelligence and Security Service

Under Article 8, the NISS has broad powers to investigate “threats against the national economic growth and development activities” and to gather intelligence on serious crimes and terrorist activities. Under Article 24, a service is required to get a court order before carrying out these activities. In addition, the NISS has powers under Article 28 to issue directives necessary to implement its broad mandate under Article 6 to “protect and safeguard the national security of the country.”

Disclosure of Communications Data

Proclamation No. 958/2016: Computer Crime Proclamation

Under Article 24 of this proclamation, all service providers must retain the computer traffic data disseminated through its computer systems or traffic data relating to data processing or communication services for one year. It should be kept in secret unless the court orders for disclosure.

Traffic data is defined in Article 2 as any computer-generated data relating to a chain of communication by means of a computer system indicating the communication’s origin, destination, route, time, data, duration, size, or types of underlying service. Article 2 defines service providers to include those offering data processing, communication services, or alternative infrastructure via a computer system.

Under Article 30 any investigatory organ may order, without a warrant, in writing, a person to preserve the specified data under [one’s]  control or possession” for “three months” and “keep such order confidential,” where there are “ reasonable grounds to believe that a computer data required for computer crime investigation is vulnerable to loss or modification.” And under Article 43, the court may order “the suspension, confiscation or removal” of “any computer system, data or device” used in committing offenses under this proclamation.

Under Article 31, any investigatory organ,” which is defined in Article 2 as someone “legally invested with the power of investigation,” may request a court warrant to gain access to computer data under any person’s possession or control, provided such data is “reasonably required” for purposes of investigation into a computer crime. If the court is satisfied with the request, it may issue an order to produce or grant access to the specified computer data, without requiring the appearance of persons who possessed the data. Computer data is defined under Article 2 as any computer program, traffic data, content data, or “any other subscriber information in a form suitable for processing by means of a computer system.”

Under Article 32, once the investigatory organ has access, it does not need a warrant to obtain access to other computer systems connected to the original computer system. The organ can seize, copy, or recover data.  The organ can also order “any person who has knowledge” to “facilitate the search or access” without a further court order.

Finally, under Article 44, the Council of Ministers and the INSA are given broad powers to issue regulations and directives “necessary for the implementation of this Proclamation.”

Proclamation No. 1148/2019: A Proclamation for the Communications Service

Under Article 51, the ECA is able to require telecommunications operators to register all SIM cards and to establish a National Subscriber Registry containing subscriber information as “the Authority may require for the purpose of consolidating and harmonizing the database of subscribers, in order to promote national security. Under Article 6 of Directive No. 799/2021 on SIM Card Registration, issued by the ECA under articles 6(2), 51(2), and 54(2) of this Proclamation, no person or entity is authorized to access any SIM card subscriber information without the permission of the ECA or as required by a court order. Furthermore, under Article 5 of Directive No. 799/2021, the ECA is expected to receive and update subscriber information from telecommunications operators within 72 hours of registration of the subscriber’s information. It also states the ECA should access the database solely to address inquiries or resolve disputes.

In addition, Directive No. 832/2021, the Telecommunications Consumer Rights and Protective Directive, sets out rules pertaining to telecommunications consumers’ rights and protections, including with respect to data. Article 23 provides obligations for consumers, including that they may not “misuse or abuse” telecommunications services, including by “dishonestly obtaining telecommunications services” or using services to send messages that are “obscene, threatening or otherwise contrary to applicable laws or regulations” of the government of Ethiopia. These terms could be used to justify the government’s intervention in telecommunications services or collection of customer data, including by those who use VPN networks or similar technology to access blocked websites.

National Security and Emergency Powers

Ethiopian Constitution

Article 93 of the Constitution of Ethiopia allows the Council of Ministers to declare a national state of emergency under an “external invasion, a breakdown of law and order which endangers the Constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel, a natural disaster, or an epidemic.” Authorities can also declare regional states of emergencies under natural disasters or epidemics. The decree establishing a national state of emergency must be approved by a two-thirds majority of the House of Representatives and can be renewed every four months by a two-thirds majority vote.

The Council of Ministers can suspend all rights during a state of emergency except Articles 1 (The Nomenclature of the State), 18 (the Prohibition Against Inhuman Treatment), 25 (the Right to Equality) and sub-articles 1 and 2 of Article 39 (the right of self-determination and secession, and the right of nations and peoples in Ethiopia to speak, write and develop their own language, promote their culture and preserve their history).

Proclamation No. 1176/2020 A Proclamation to Provide for the Prevention and Suppression of Terrorism Crimes

Article 6, 42(1) states the police may use the following special investigation techniques if an act of terrorism has a serious damage to the country and public (1) “[i]ntercepting or conducting surveillance on postal, letter, telephone, fax, radio, internet and other electronic devices exchange or communications of a person suspected of terrorism, (2) “[c]onducting surveillance or installing camera, audio or video recording devices,”(3)  “[i]nfiltrating and collaborating the suspect’s group and follow up their activities”, (4) “[c]reating simulated communication.” These techniques may only be employed upon authorization by the court. However, for urgent matters, police may employ these techniques with “the permission of the head of the nearest and appropriate public prosecutor institution” and must inform the court of this permission in writing within 48 hours. The “court also may accept or deny the petition after investigating its relevancy” and “there shall be no appeal to the order of the court.”

Article 6, 42(7) states the special investigation authorization granted “shall not exceed 90 days” and any extension shall not exceed 30 days. Section 6, 42(8) adds that “evidences and information obtained through special investigation shall be kept in secret by police, public prosecutor, court and other organs which have obtained the information until the conditions completed. Where the evidence collected through the special investigation technique is not relevant as an evidence, it shall be destroyed.”

Oversight of the Use of Powers

Ethiopian Constitution

Article 37 of the Ethiopian Constitution establishes the right of everyone to “bring a justiciable matter to, and to obtain a decision or judgment by, a court of law or any other competent body with judicial power,” a right that extends to associations and groups.

Under Article 9 of the constitution, any law, customary practice or decision by state or public officials that contravene the constitution have no effect. However, although there are constitutional restraints on the use of power, constitutional rights are not primarily adjudicated by the courts. Instead, under Article 83 of the constitution, constitutional disputes are decided by the House of Federation, the upper house of Ethiopia’s parliament. Under Article 82 and 84, the Council of Constitutional Inquiry, made up of Judges and legal experts, investigates constitutional disputes and submits them to the House of Federation, which then, according to Article 83, votes on the disputes within thirty days.

Although Article 84, sub-article 2 of the constitution instructs courts, upon receiving constitutional questions, to either apply precedent or submit the question to the Council of Constitutional Inquiry, Ethiopia is a civil law country. There is little jurisprudence on privacy in Ethiopian courts^[1] and the courts have demonstrated limited constitutional oversight of surveillance powers.

Proclamation No. 804/2013: A Proclamation to Re-Establish the National Intelligence and Security Service

Article 22 of this proclamation clarifies that an “appropriate standing committee of the House of People’s Representatives” is tasked with overseeing the “overall activities” of the NISS. However, it also clarifies that this “oversight may not be conducted in a manner that jeopardizes the national security of the country.” Article 23 clarifies that the “Prime Minister shall monitor and supervise activities of the service.”

Proclamation No. 958/2016:  Computer Crime Proclamation

When investigatory bodies act pursuant to Article 25 of this proclamation, the court decides whether to issue the warrant and determines “a relevant organ that could execute interception or surveillance as necessary.” Although under sub-article 3 the Attorney General may give permission to investigatory bodies to conduct surveillance or interception “where there are reasonable grounds and urgent cases to believe that a computer crime that can damage critical infrastructure is or to be committed,” under sub-article 4 they must present the reasons to the President of the Federal High Court within 48 hours, and the president “shall give appropriate order immediately.” Under Article 2 of this proclamation, “critical infrastructure” are computer systems, network or data where illegal access, interception, interference or damage would have a considerable damage on public safety and the national interest.

Proclamation No. 1148/2019: A Proclamation for the Communications Service

Article 3 of this proclamation establishes a federal entity, Ethiopian Communications Authority, tasked with oversight of the communications services market and implementation of the provisions in this proclamation, accountable to the prime minister. The Authority is supervised by a Board of Management consisting of four members from government and three from private sector and academia, all appointed by the prime minister, as detailed in Article 8. Under Article 14, the Director General of the ECA directs and administers the ECA’s activities, subject to general directions of the Board.

Article 6 of this proclamation clarifies that the ECA is expected to hold stakeholder consultations on the “matters committed to its discretion by this proclamation, either on its own initiative or at the request of a member of the public.” Under Article 35, the ECA is expected to hold stakeholder consultation when taking action within its jurisdiction that “may affect the rights of any party or then public interest.”. Resulting from such consultation, the ECA can issue further directives or issue recommendations for regulations to the Ministry of Information and Technology. Article 36 further clarifies that the ECA is expected to provide “adequate notice” with respect to adoption, amendment, repeal, or enforcement of any Directive. Under Article 37, the ECA is expected to communicate its decisions and actions publicly, ensuring there is sufficient notice and acknowledging and addressing any public input.

Under Article 34, the Authority may initiate a public hearing on “any substantive matter within its jurisdiction under this proclamation”, “on its own initiative or upon the written request of interested parties.” The hearings are open to the public unless ECA deems that a specific matter “requires that such confidential material be withheld from public disclosure.” The ECA is required to make public any reasons for limiting public access and to ensure proceedings are open “to the maximum extent possible.”

Under Article 38, aggrieved parties are able to appeal ECA decisions, specifically regarding legal matters, to a dedicated appeals tribunal, “within 30 days of the effective date of the decision by the authority.” The tribunal is able to affirm, overrule, or order review of decisions. Decisions can be appealed further to the Federal High Court, “only for error of law.” The three members of the tribunal are appointed directly by the Prime Minister.

Article 52 clarifies that the ECA has the power to enforce this proclamation and related directives, including in collaboration with law enforcement authorities “where appropriate.” Furthermore, the ECA has the authority “pursuant to a transparent procedure consistent with the terms of Articles 35-38 of this Proclamation, to adjudicate all complaints against any licensee,” and to “assess appropriate remedies for any violation of the terms of this Proclamation” or associated instruments.

In addition, Telecommunications Consumer Rights and Protective Directive No. 832/2021, issued under the authorities of this Proclamation, sets out rules pertaining to telecommunications consumers’ rights and protections, including with respect to data protection and consumer privacy (articles 15 and 16). Article 8 requires telecommunications operators to ensure there is no discrimination against consumers in denial of access to services and provisions. Article 16 states that information on consumers shall not be transferred to any party unless by court order or specific agreement from the consumer, suggesting that there may be judicial oversight built into data request procedures. Article 16 also clarifies that consumers’ personal data shall only be processed in a server or data center located in the Federal Democratic Republic of Ethiopia.

[1] Hiruy Wubie Gebreegziabher, the Right to Privacy in the Age of Surveillance to Counter Terrorism in Ethiopia, 18 Afr. Hum. Rts. L.J. 393, 401 (2018)

Censorship-related Powers

Ethiopian Constitution

The Ethiopian Constitution establishes in Articles 29, 30, and 31 the Right of Thought, Opinion and Expression, The Right of Assembly, Demonstration and Petition, and the Freedom of Association, respectively. These rights can be limited only through laws guided by the principle that expression cannot be limited on account of the content or effect of the point of view expressed.  The Constitution forbids censorship of the press under article 29(3)(a): “Freedom of the press shall specifically include the following elements: (a) Prohibition of any form of censorship.”  Article 29 also states that legal limitations can be laid down in order to protect the well-being of the youth, and the honour and reputation of individuals. In addition, any propaganda for war, as well as the public expression of opinion intended to injure human dignity, shall be prohibited by law. Article 30, after enumerating the rights of free expression and assembly, allows for limitations for these same purposes. Article 31, after enumerating the right of association, holds that “Organizations formed, in violation of appropriate laws, or to illegally subvert the constitutional order, or which promote such activities are prohibited.”

Proclamation No. 414/2004: The Criminal Code of the Federal Democratic Republic of Ethiopia

The criminal code contains a number of broad provisions criminalizing the dissemination of content that defames the state or international bodies,  individuals, or juridical persons, breaches some duty of confidentiality, incites alarm or violence, or is otherwise obscene, indecent, or blasphemous. The liabilities for potential defamatory content in particular were further amended when Proclamation No. 1238/2021 (Media Proclamation) went into effect (see below in this section).

Depending on the definition of “publishes” or “makes public” in many of the crimes in the criminal code, as well as the potential implications of the Proclamation No. 761/2012, discussed in “provision of real-time lawful interception assistance” above, various speech-related crimes in the Ethiopian criminal code could be applied to intermediaries.

Proclamation No. 958/2016: Computer Crime Proclamation.

Article 12 of this proclamation makes it illegal to “produce, transmit, sell, distribute, make available or possess” any image of a minor or someone appearing to be a minor engaged in “sexually explicit conduct.” Article 13 makes it illegal to threaten, harass, or defame through computer systems. And Article 14 makes it illegal to “intentionally disseminate through a computer system any written, video, audio or any other picture that incites violence, chaos or conflict among people.”

Article 16 then makes service providers liable “in accordance with Articles 12 to 14 . . . for any illegal computer content data disseminated through its computer systems” if it is “directly involved in the dissemination or edition,” if it does not act at all upon “obtaining actual knowledge” of the illegality of the data, or if it “failed to take appropriate measure[s] to remove or to disable access to the content data upon obtaining notice from” authorities.

Article 2 defines service providers to include those offering data processing, communication services, or “alternative infrastructure” via a “computer system.” Article 2 defines content data as any computer data in “audio, video, picture, arithmetic formula or any other form that conveys the essence, substance, meaning or purpose of a stored or transmitted computer data or computer communication.”

Under Article 32, without a court order, an investigatory organ may “render inaccessible” any data it accesses under Article 32, sub-article 3. If an investigatory organ comes across any violations of “relevant laws” during a court-authorized search, the organ can request a court order for the “computer system to be rendered inaccessible or restricted or blocked.” Article 2 of the proclamation defines “computer crimes” as any crime committed “against a computer, computer system, computer data, or computer network”; conventional crimes committed with computers, or the dissemination of illegal computer content. There are no standards within the proclamation for obtaining a court order. And under Article 43, upon conviction, a court can order the blockage of offending content.

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

Article 2 defines hate speech as “speech that deliberately promotes hatred, discrimination or attack against a person or an discernable group of identity, based on ethnicity, religion, race, gender or disability,” and disinformation as “speech that is false, is disseminated by a person who knew or should reasonably have known the falsity of the information and is highly likely to cause a public disturbance, riot, violence or conflict.”

Article 4 makes it illegal to disseminate hate speech and Article 5 makes it illegal to disseminate disinformation. However, under Article 6, speech is exempted from Article 4 or 5 if it is part of: “(a) an academic study or scientific inquiry, (b) a news report, analysis or political critique, (c) artistic creativity, performance or other form of expression, [or] (d) Religious teaching.” Furthermore, speech is not illegal under Article 5 if “a reasonable effort has been made under the circumstances” by the speaker to “ensure the veracity of the speech or if the speech is more inclined to political commentary and critique instead of being a factual or news report.”

Under Article 8, social media providers “should endeavor to suppress and prevent” hate speech and disinformation, “act within twenty four hours to remove or take out of circulation disinformation or hate speech upon receiving notifications about such communication or post,” and have “policies and procedures to discharge their duty.” Article 8 also empowers the Council of Ministers to issue regulations to further detail the responsibilities of service providers and government institutions, the Ethiopian Broadcast Authority to prepare a report to the public on whether social media enterprises “discharge their duty properly under sub this article,” and the Ethiopian Human Rights Commission to “conduct public awareness campaigns to combat hate speech.”

Proclamation 808/2013: A Proclamation to Re-Establish the Information Network Security Agency

The Information Network Security Agency (INSA) has no formal, express powers to censor citizens. However, there are no provisions restricting the INSA from implementing censoring or content filtering under its broad mandate to secure “computer based key infrastructures” under Article 5 of Proclamation 808/2013.

Riyan Miftah v. Elsewdi Kebels Plc

In Riyan Miftah v. Elsewdi Kebels Plc, the Federal Supreme Court Cassation Division held “that no image or photograph of a person may be publicly exhibited, sold or disseminated without the consent of the person and the latter is entitled to damages for violation of the right of image.”  The facts of the case show the respondent’s company had advertised the images of a child named Riyan Miftah without the consent of the child (through his guardian). The company used the applicant’s image and ran an advertisement for four years in Ethiopia and beyond including advertisements on the Internet reaching more than 25 countries. Proclamation No. 454/2005 states that decisions of the Federal Supreme Court Cassation Division bind courts of all levels in Ethiopia. As a result, the interpretation in Riyan Miftah v. Elsewdi Kebels Plc serves as law and has to be applied uniformly throughout Ethiopia.^[1]

Proclamation No. 1238/2021 Media Proclamation

In February 2021, the Parliament approved a new media proclamation to serve as a legal framework for print, broadcast, and online media. The new law requires news websites, related digital media, and wire services content producers to operate responsibly and freely and to have a legal media license registered by the government. The law includes protection of the freedom of information and is intended to bolster the freedom of expression and of the press. Article 84 of the law clarifies civil, as opposed to criminal penalties for certain acts otherwise deemed potentially defamatory under the criminal code (see above in this section), including media and public interest exemptions.

[1] Child Ryan Miftah v. Elswid Cables, Ethiopian Federal Supreme Court Cassation Division FSC File No.91710 Volume 15, November 25, 2013) 319.

Oversight of the Use of Powers (Censorship-related)

Speech-related crimes where the penalties for violation are criminal are subject to the constitutional limitations on arrest and criminal trials, along with the criminal code’s standards for punishment of juridical persons.

Proclamation No. 414/2004: The Criminal Code of the Federal Democratic Republic of Ethiopia

Under Article 34 of the Criminal Code of Ethiopia, established by Proclamation No. 414/2004, a juridical person (other than bodies of the State) is punished either where it is expressly provided by law or when “one of its officials or employees commits as a principal criminal, an instigator or an accomplice in connection with the activity of the juridical person with the intent of promoting its interest by an unlawful means or by violating its legal duty or by unduly using the juridical person as a means.” Juridical persons can be punished with fines, or can be suspended, closed, or wound up depending on the crime. However, the punishment of a juridical person does not preclude criminal liability for its officials or employees.

Article 37 establishes the right of everyone to “bring a justiciable matter to, and to obtain a decision or judgment by, a court of law or any other competent body with judicial power,” a right that extends to associations and groups.

Ethiopian Constitution

Under Article 9 of the Ethiopian constitution, any law, customary practice or decision by state or public officials that contravene the constitution have no effect. However, although there are constitutional restraints on the use of power, constitutional rights are not primarily adjudicated by the courts. Instead, under Article 83 of the constitution, constitutional disputes are decided by the House of Federation, the upper house of Ethiopia’s parliament. Under Article 82 and 84, the Council of Constitutional Inquiry, made up of Judges and legal experts, investigates constitutional disputes and submits them to the House of Federation, which then, according to Article 83, votes on the disputes within thirty days.

Although Article 84, sub-article 2 of the constitution instructs courts, upon receiving constitutional questions, to either apply precedent or submit the question to the Council of Constitutional Inquiry, Ethiopia is a civil law country. There is little jurisprudence on censorship in Ethiopian courts.^[1];[2]

[1] See generally Gedion Timothewos, Freedom of Expression in Ethiopia: The Jurisprudential Dearth, 4 Mizan L. Rev. 201 (2010).

[2] Id. at 222-28 (describing the unwillingness of courts to consider constitutional problems with speech laws, as well as blatant misinterpretation of constitutional provisions); Human Rights Watch, “They Know Everything We Do,” Telecom and Internet Surveillance in Ethiopia, 35 (2014) (arguing that most rights violations are not due to abusive laws “but rather the willingness and ability of the authorities to act without being hindered by any legal framework or possible legal action from the country’s criminal justice system”).

Publication of Laws and Aggregate Data

Proclamation No. 3/1995: A Proclamation to Provide for the Establishment of the Federal Negarit Gazeta

Under Article 2, all federal laws are published in the Negarit Gazeta, including proclamations passed by the House of Representatives and regulations passed by the Council of Ministers. Still, under Article 2, laws are published in English and Amharic but in any case of discrepancy the Amharic text prevails.

Proclamation No. 590/2008: A Proclamation to Provide for Freedom of the Mass Media and Access to Information

Articles 12 and 14 of this proclamation establish the right to access information held by public bodies, including access to records, as well as the mechanisms for those requests. Under Article 13 all public bodies have the duty to publish the mechanism by which information can be requested.

There are numerous exemptions that might limit access to information held by public bodies. These include information related to a third party’s personal or commercial information, which could prevent disclosure of many requests. Also, under Article 21, sub-article 1 information may be kept secret if it would contain “methods, techniques, procedures or guideline[s] for the prevention, detection, curtailment or investigation of a contravention or possible contravention of the law” and when disclosure “would be likely to prejudice the effectiveness” of those methods. And under sub-article 2 information about pending prosecutions may be kept secret if it will impede the prosecution, lead to a “miscarriage of justice,” or impair the fairness of a trial.

Public bodies are defined in Article 2 as “any body established under the Federal Constitution or state constitution or any other law which forms part of any level or branch of the federal or regional state or owned, controlled or directly or indirectly substantially financed by funds provided by the federal or regional governments or accountable to the federal or regional states.”