Human Rights Watch (Washington, DC)
26 June 2009
analysis
This paper analyses Ethiopia's draft Anti-Terrorism Proclamation (the draft Proclamation) and assesses to what extent the proposed law on its face conforms to international human rights standards. The draft law has been submitted to Parliament by the Council of Ministers and may be passed into law before the end of the current legislative session in July 2009.
A first unofficial draft of the law obtained by Human Rights Watch earlier in the year contained numerous provisions that fundamentally contravened human rights guaranteed by Ethiopia's constitution and international law. Only one of those provisions has been substantively revised, leaving the current draft law dangerously broad and inimical to fundamental human rights. The draft law is premised on an extremely broad and ambiguous definition of terrorist activity that could permit the government to repress a wide range of internationally protected freedoms, and contains provisions that undermine fundamental due process rights.
If implemented as currently drafted, this law could provide the Ethiopian government with a potent instrument to crack down on political dissent, including peaceful political demonstrations and public criticisms of government policy that are deemed supportive of armed opposition activity. It would permit long-term imprisonment and even the death penalty for "crimes" that bear no resemblance, under any credible definition, to terrorism. It would in certain cases deprive defendants of the right to be presumed innocent, and of protections against use of evidence obtained through torture.
The draft Proclamation is even more alarming when placed in the context of concerns over political repression, suppression of free speech and independent civil society, the impunity conferred on security forces, and the potential for consolidation of ruling party power in the run-up to national elections in 2010.
Human Rights Watch takes no position as to whether anti-terrorism legislation is needed to fill gaps in Ethiopia's existing criminal code. But even if that need exists, the draft Proclamation requires more than a substantial revision. Given the ways in which its provisions on their face violate fundamental due process rights of individuals and unlawfully restrict basic freedoms due all Ethiopians, the law's drafters should revise the legislation so that the protection of human rights is recognized as essential for the prosecution of genuine acts of terrorism, not as an obstacle.
Background
In recent years, armed groups have committed a number of bombings and other attacks in Ethiopia or on Ethiopia's diplomatic missions. A May 2008 explosion on a minibus in Ethiopia's capital Addis Ababa, for which a little known group called the Islamic Guerrillas claimed responsibility, killed three people on the eve of national celebrations.[1] In October 2008 the Ethiopian trade mission in Hargeisa, Somaliland, was one of the targets of multiple suicide bombings that killed at least 20 people; the attacks were blamed on al-Shabaab, a Somali armed group with alleged links to al Qaeda.[2]
Ethiopia reportedly considered adopting anti-terror legislation in 2006,[3] and a law was said to be in preparation in 2008.[4] In June 2009 Human Rights Watch obtained an English-language translation of the draft as submitted to parliament by the Council of Ministers. This analysis is based on that draft. An earlier version of this analysis was based on an unofficial draft of the Proclamation dated January 2009. To date the draft anti-terrorism legislation does not appear to have been publicly circulated or discussed, including with civil society, although a public debate took place in parliament on June 25, 2009.
Analysis of the Draft Anti-Terrorism Legislation
The provisions of Ethiopia's draft Anti-Terrorism Proclamation can be broadly grouped under the following categories:
1. defining terrorism and terrorist acts and imposing penalties (parts I and II);
2. expanding police powers, including powers of arrest and detention (part III);
3. modifying trial procedures and evidentiary rules (part IV);
4. designating terrorist organizations and freezing assets (part V);
5. designating institutional and judicial jurisdiction over terrorism crimes (part VI); and
6. miscellaneous provisions (part VII).
Defining Terrorism
The draft Proclamation provides an extremely broad and ambiguous definition of terrorism that could be used to criminalize non-violent political dissent and various other activities that should not be deemed as terrorism.
The draft Proclamation states that anyone who-with the purpose of "advancing a political, religious or ideological cause" and intending to "influence the government;"[5] "intimidate the public or section of the public;" [or] "to destabilize or destroy the fundamental political, constitutional, economic or social institutions of the country"-commits: an act that causes death or serious injury; an act that creates risk to the safety or health of the public; kidnapping or hostage taking; serious damage to property; damage to natural resources, the environment, or the historical or cultural heritage; or "endangers, seizes or puts under control, causes interference or disruption of any public service"-is subject to punishment by "rigorous imprisonment from 15 years to life or with death."[6]
This definition of terrorism includes acts that do not involve violence or injury to people, such as property crimes and disruption of public services.[7] The United Nations special rapporteur on counterterrorism and human rights has stated that the concept of terrorism should be limited to acts committed with the intention of causing death or serious bodily injury, or the taking of hostages, and should not include property crimes. In addition, permitting the death penalty for property crimes would violate the requirement under international law that the death penalty only be imposed for the "most serious crimes."[8]
The broad and ambiguous definition of terrorist acts under the draft Proclamation could readily be used to criminalize acts of peaceful political dissent that result in "disruption of public services"-as public demonstrations sometimes do. A non-violent march that blocked traffic could qualify as a terrorist act, subjecting protestors to 15 years to life in prison, or possibly even the death penalty. The law might also permit prosecutions on terrorism charges for minor acts of violence committed in the context of political activism: thus a political protestor who damages a police car or breaks the window of a government building could conceivably be prosecuted as a terrorist. Furthermore, an individual need only "threaten to commit" any of the relevant acts, including property crimes and "disruption of public service," to be prosecuted as a terrorist and punished with a minimum 15 years' imprisonment, or death.[9]
The overly broad definition of terrorist acts has implications for other parts of the Proclamation. For instance a "terrorist organization" is defined as "a.) a group, association or organization which is composed of not less than two members with the objective of committing acts of terrorism or plans, prepares, executes acts of terrorism or assists or incites others in any way to commit acts of terrorism, [or] b.) an organization proscribed in accordance with this proclamation."[10] As noted above, the definition of "acts of terrorism" could include acts of political dissent. Therefore a group of two or more individuals who engage in peaceful political protest could be deemed a "terrorist organization,"[11] and membership deemed a crime, subject to five to 20 years' "rigorous imprisonment."[12]
The draft Proclamation also contains broad and ambiguous language prohibiting material support for terrorism. Those providing "moral support or ... advice" or "provid[ing] or mak[ing] available any property in any manner" to an individual accused of a terrorist act could be deemed a terrorist supporter under the law.[13] Someone who advised, or even just offered water and food to a political protester might find themselves charged with terrorism under this provision.
Possessing or using property knowing or intending that it be used to commit a terrorist act (as defined by the draft statute) is a crime subject to five to 20 years' imprisonment.[14] Possession of property that a person "ha[s] reason to know" are proceeds of terrorism is punishable by five to 15 years' "rigorous imprisonment".[15] Coupled with the broad and ambiguous definition of terrorist acts, these provisions open the door to a wide range of ways in which individuals seeking to express political dissent could find themselves prosecuted for terrorism and imprisoned for five to 20 years. For example, someone who held a sign used in a non-violent political protest that blocked traffic could arguably be found guilty of possession of property used to commit a terrorist act.
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I think this draft is done to elongate their year of ruling. because they know that as they came to power by force and be removed by force. this draft also violates international human right they signed before. so it is difficult to accept it as ethiopian constitution article.