13 January 2013

Ethiopia: Fairness Prevails Unfairly


In a nation that has a very young private media, coupled with political intolerance, which inculcates only the views of the majority, there is no other job that can be compared to journalism. The few media outlets are viewed as a venue, where those who express their views are taken for granted by readers and audiences.

Among the inputs that are needed to strengthen the independence of the media is the legally warranted privilege to protect the journalist from a mandatory order to reveal sources of information.

If the media is to successfully function and serve the society, it will be imperative to accord this protection. Yet, the Ethiopian constitution does not expressly mention this.

Of course, the protection does not safeguard the actual source of the information; rather it shelters the journalist from being obligated to reveal it.

It is clear that media reports can cause serious damage to different stakeholders of the subject it reports, in a number of respects. Sometimes, the utmost top national secrets, believed to be handled by the most trust worthy individuals, suddenly become public knowledge, through the media. Such occurrences raise mistrust among top state officials. There are also plenty of occasions where press releases bias the public and cause adverse effects for businesses. However, the freedom of expression, the back bone of the press, also has an underlying public and individual interest that should take precedence.

The dissenting opinion in the United States Supreme Court has squarely addressed the issue of a journalist's privilege. It once argued that a qualified privilege for journalists was critical to enable the press to meet the public's need for information, from a broad and diverse range of news media.

The policy, driving the protection for journalists, is of paramount public interest in the maintenance of a vigorous, aggressive and independent press, capable of participating in robust, unfettered debate over controversial matters. If newsgathering is to have not only a bark, but also a bite, then the legal system must provide even-handed protection to all journalists who gather news and information for dissemination to the public.

The criminal code of Ethiopia outlaws the mandatory order of source disclosure to editors and the publishers of publications, as a rule. But courts are allowed to order the publisher or editors of a publication to disclose the source of information where a crime is committed against the constitutional order, national defense force or security of the state. In addition, in the case of clear and imminent danger, or in the absence of alternative sources, during the proceedings of a criminal trial, where the information could be decisive to the outcome of a case, a court may enforce the disclosure of sources.

Besides, the proclamation on prevention and suppression of money laundering and the financing of terrorism allows government bodies to request information from non-governmental organisations, during money laundering probes, hence, the media cannot refuse to provide sources if requested to do so.

The law shields the identity of the source, as well as unpublished information. A defining factor that needs consideration is whether the protection stipulated, under article 45 of the penal code, is accorded only to the publisher and editor, or whether it includes every person employed by a media outlet, including external contributors, photojournalists, and columnists.

The provision in the criminal law is clear, that only the publisher and the editor are protected from an order of disclosure of sources of news. This is far too narrow.

A more appropriate inquiry would be based upon the purpose of the individual's newsgathering efforts, and their intent to disseminate matters of interest and importance to the public. I do not see any persuasive reason as to why others in the field of journalism are denied this privilege, as they have the same decisive role in the workings and the integrity of the press.

In the context of the law, there is a parallel between the autonomous individuals' stake in the process, and that of editors, writers, photojournalists, columnists, and authors. Journalists, who undertake investigations and disseminate facts, news, and analysis, are central actors in the process of maintaining an independent press, based on the free flow of information.

Indeed, they have been described as agents of the public. But the law does not provide them with protection.

Therefore, the law encourages them to use pen names or demand anonymity, unless the publisher or the editor is ordered to disclose their identity.

Equally important, is the outcome to the refusal of demands made by a legitimate government body, for the disclosure of sources. Those who refuse will of course be held in contempt of court for disobeying a court order. No different is the case to order the reveal of sources that comes from the money laundering or financing of a terrorism act, as failure to comply entails criminal liability.

Criminal liability is not the only remedy when there is disobedience, with regards to the order of disclosure of journalistic sources. A search of the premises that the alleged source of information is situated can also be conducted.

Nevertheless, it has to be stressed that, irrespective of the fact that an order of disclosure exists, the liability of wrongs done by publications cannot be affected.

Tagel Getahun is an advocate in law. 

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