18 November 2012

Ethiopia: Unconstitutional AD Law Delivers Doomsday


A dramatic change in the state of freedom of expression happened with the collapse of the Dergue. The government that replaced it exhibited, relatively speaking, a greater deal of tolerance to political criticism and dissent compared with previous regimes.

Not only did the Transitional Charter followed by the Constitution recognize freedom of expression, but they gave birth to the first generation of the private press culture.

The first generation of the Ethiopian private press culture has damaged more than what we gained from the change. Its aggressiveness coupled with inexperience and sensationalism brought a huge cost.

The second generation of the Ethiopian private press culture started in the aftermath of the 2005 Ethiopian national election. This generation of media culture was with lesser aggressiveness. We are observing newspapers and magazines rich with local content, as never before.

I see that a rather young law on advertisements issued three months ago takes the credit for sparking the third generation of the private press culture. Preventing the harm that unregulated advertisement could cause to the rights and interest of the people and promoting positive image of the country is the declared aim behind issuing the advertisement law. It also aims to clearly define the rights and obligations of advertising agents, advertisement disseminators and advertisers. Actually, it is not a brand new law in view of its subject for the Commercial Code issued 52 years ago has provisions to regulate advertisements.

The new proclamation has fixed the maximum amount of advertisements in a certain print edition of a newspaper or a magazine not to exceed 60pc of the total size of the edition. This mandatory rule of advertisement to content proportion limitation seems to be the push factor behind the recent rise of content-rich newspapers and magazines in Ethiopia, in contrast to the long overdue drought of local content.

The recent law has taken the print media on a new track that could enable it to achieve one of the purposes of freedom of expression. The demand to force the media produce 40pc of content, without its will, seems praiseworthy, at least for apologists.

But it would be wise to recall that the constitutionally recognised freedom of expression is restricted not only when someone is forbidden from writing but also when there is duty to write. If it is freedom, no one can be forced to use their freedom to a certain predetermined length.

Though this law is beneficial, merit is not the only factor whenever a law is issued. As we ought to stick to our constitutional commitment for our long-term betterment, every law, irrespective of its value, must not be shadowed by unconstitutionality.

The first five sub-articles of Article 29 of the Ethiopian Constitution provide the privileges associated with freedom of opinion and expression. Hence, these sub-articles tell us what is protected. While sub-Article six lays down the rational for limiting freedom of expression, from protecting the well-being of children to the dignity of individuals, sub-Article 7 stipulates that, "Any citizen who violates any legal limitations on the exercise of these rights may be held liable under the law."

If read without taking sub-Article 6 into account, this article might be understood as saying that so long as a limitation of the right has a legal or statutory basis, it is acceptable. Such a reading is obviously wrong and must be rejected for two reasons.

The fact that such a reading would make sub-Article six meaningless and in effect negate it completely. If any limitation made in accordance with statutes was to be considered valid, then, there would have been no need to provide grounds for limiting freedom of expression. Such is a case that makes this particular article superfluous and will be contrary to the principle of positive interpretation.

Predetermining content to advertisement ratio, as was realised by the latest young law, does not serve any of these rational listed under sub-Article-6. Therefore, the restriction of freedom of expression by the new law is unconstitutional.

The very constitution that the law claims to get its roots from explicitly forbids legal restrictions on freedom of expression on account of the content or effect of the point of view expressed. The new ratio imposed by the law, however, limits the freedom based on content. That would make it even all the more unconstitutional.

Of course, readers prefer editions that contain less or no advertisement. For instance, in one of the major print media in theUnited States, The New York Times, percentage of advertisement does not exceed 30pc of the whole edition. But this is purely the prerogative of the managing editor, not any mandatory law. It should be left to the market to judge what to encourage between less advertisement or more advertisement in newspapers.

The main source of income for the major newspapers in Ethiopia is not sale of copies but the advertisement fees. Had it not been for the latter, they might not have been where they are today or the price of a copy would have been three or four times of its current value. Obviously, this would have been beyond the purchasing power of a reader as it has many priorities than something to read.

So much as the new law might bring a third generation of press culture, I am afraid, that culture may be the loss of the very few remaining newspapers and their existing assertiveness, if not their viability.

Tagel Getahun Is an Advocate in Law. He Can Be Contacted At Tagelgbekele@yahoo.com.

Copyright © 2012 Addis Fortune. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.

AllAfrica publishes around 2,000 reports a day from more than 130 news organizations and over 200 other institutions and individuals, representing a diversity of positions on every topic. We publish news and views ranging from vigorous opponents of governments to government publications and spokespersons. Publishers named above each report are responsible for their own content, which AllAfrica does not have the legal right to edit or correct.

Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica. To address comments or complaints, please Contact us.