CHAPTER THREE Anti-Terrorism Proclamation in light of International human right instruments and FDRE constitution 3
Anti-Terrorism Proclamation in light of International human right instruments and FDRE constitution
3.1 Anti-Terrorism proclamation in light of international human right instruments
Conceptual debates on ‘terrorism’
It is evident that terrorism and counter-terrorism continues to attract complex multi-disciplinary debates, especially since the horrific incident of the 9/11 US attacks. Professor Alex P. Schmid, one of the most recognized authority for his combined scholastic and practitioner expertise in the field of terrorism studies, states that terrorism can be approached from different disciplines such as criminology, political science, war and peace studies, communication studies or religious
Studies. From this perspective, he identifies the following five frameworks, which can be used to interpret ‘terrorism’:
1. Acts of terrorism as/and crime;
2. Acts of terrorism as/and politics;
3. Acts of terrorism as/and warfare;
4. Acts of terrorism as/and communication;
5. Acts of terrorism as/and religious crusade/jihad .
Although the overall focus of this thesis is to discuss the evidentiary rules under anti-terrorism proclamation, with a special emphasis on its relationship with the accused right in FDRE constitution, the author reasons that it is essential to duly recognize the multifaceted nature of terrorism and the diverse methods of analysis available in studying the phenomenon ofterrorism.
Having stated the above regarding the wide ranging avenues of studying terrorism, the author also takes the view that it is essential to say a few words about ‘terror’, as it lies at the core of the term ‘terrorism’.Schmid finds it strange that literature on terrorism has not focused very much on an analysis of ‘terror’ as a state of mind. the experience of being terrorized by asserting that “terrorism does not only produce terror-that terror is perhaps not even the main result of the majority of the members of the target audiences of an act or campaign of terror, certainly when they watch terror from the relative safety of a chair, watching television.” He adds that “terrorists play on our fear of sudden violent death and try to maximize uncertainty and hence anxiety to manipulate actual and prospective victims and those who have reason to identify with them.”
Definitional debates on terrorism.
One of the thorniest issues that any researcher on terrorism-related subject would have to confront is how terrorism is and should be defined. Although Sir Jeremy Greenstock stated in quite a simplistic manner “what looks smells and kills like terrorism is terrorism” , Schmid notes that there are literally “hundreds of definitions” and puts the number of definitions from his worldwide survey at 250. He characterizes the effort to arrive at an agreement on the legal definition of terrorism- that dates back to the proposal of the League of Nations in 1937- as ‘elusive’. His view is supported by Lord Carlile, UK’s independent reviewer of terrorism legislation, who states that so far there is “no single definition of terrorism that commands full international approval.”
Carrying enormous emotional freight, terrorism is often used to define reality in order to place one’s own group on a high moral plane, condemn the enemy, rally members around a cause, silence or shape policy debate, and achieve a wide variety of agendas…terrorist became the mantra of our time, carrying a similar negative charge as a communist once did…Conveying criminality, illegitimacy, and even madness, the application of terrorist shuts the door to discussion about the stigmatized group or with them, while reinforcing the righteousness of the labelers, justifying their agendas and mobilizing their responses.
The fact that people find it difficult to agree on the meaning or scope of the meaning of the term ‘terrorism’ essentially leads one to conclude that it’s at the very least a “contested concept” , “especially considering that only a few terrorist would describe themselves as a ‘terrorist’ but rather as ‘revolutionary’. ‘freedom fighter’, ‘martyr’, ‘urban guerrilla’, ‘resistance fighter’, or even ‘soldier'” . Aptly put, “one man’s terrorist is another man’s freedom fighter.”
The attempt to define terrorism by the UN dates back to 1972 when an Ad Hoc Committee on International Terrorism was established by GA Resolution 3034. Two decades later, the UN found it necessary to establish a similar and yet different Ad Hoc Committee on Terrorism (pursuant to GA resolution 51/210), which was charged with drafting conventions on various aspects of terrorism, including a Comprehensive Convention that would supplement or replace the existing ‘sectorial’ conventions.
In 1994, the General assembly’s Declarations on measures to eliminate international Terrorism, set out in its resolution 49/60, stated that terrorism includes ” criminal acts intended or calculated to provoke a state of terror in the general public, a group of public, a group of persons, or particular persons for political purposes” and that such acts “are in any circumstances unjustifiable, whatever the consideration of political, philosophical, ideological … nature that may be involved to justify them” Many states define terrorism in national law in ways that draw to differing degrees on these elements. Included in the definition.
International and regional human rights law makes clear that state have both a right and duty to protect individuals under their jurisdiction from terrorist attacks. This stems from the general duty of states to protect individuals under their jurisdictions against interface in the enjoyment of human rights. More specifically, this duty is recognized as part of states obligation to ensure respect for the right to life and the right to security the protection of the right to life includes an obligation of states to take all appropriate and necessary steps to safe guard the lives of those with in their jurisdiction. As part of this obligation states must put in place effective criminal justice and law enforcement system have a right and duty to take effective counter. Terrorism measures, to prevent and deter future terrorist attacks and to prose cure those that are responsible for carrying out such acts. At the same time, be countering of terrorism poses grave challenges to the protection and promotion of human rights.
3.2 The promotion and protection of human rights while countering Terrorism
Just as terrorism impacts on human rights and the functioning of society, so to can measures adopted by states to counter ‘Terrorism effective counter Terrorism measures and the protection of human rights are complementary and mutually reinforcing objectives which must be pursued together as part of states’ duty to protect individuals with in their jurisdiction must countries, when meeting their obligations to counter terrorism by rushing through legislative and practical measures, have created negative consequences for civil liberties and fundamental human rights.
In 2004 , the ‘High-level panel of Threat, challenges and change’, and the ‘world summit outcome” adopted by the general assembly in 2005, Both of them considered the question of respect for human rights while countering terrorism, and concluded that international cooperation to fight terrorism must be conducted in conformity with international conventions and protocol.’ Security council has done the same, starting with the declaration set out in its resolution 1956 (2003), in which the scurrility council meeting at the level of ministers for Foreign Affairs, stated it “states must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human right and humanitarian law.”
The vast majority of counter terrorism measures are adopted on the basis of ordinary legislation. In limited set of exceptional national circumstances, some restrictions on the enjoyment of certain rights may be permissible including the right to expression, the right to respect for one’s private and family life. In order to fully respect their human rights obligations while imposing such limitations, states must respect a number of conditions in addition to respecting the principles of a quality and non-discrimination, the limitations must be prescribed by law, in pursuance of one or more specific legitimate purpose and “necessary in a democratic society;
And, in addition common to international, regional and democratic human rights instruments and guidelines is the requirement that any measure restricting the enjoyment of rights and freedoms must be set out with in, or authorized by, a prescription of law. To be “prescribed by law”.
a. “the law must be adequately accessible so that individuals have and adequate indication of how the law limits their rights;
b. The law must be formulated with sufficient precision so that individuals can regulate their conduct.
3.3 Specific Human right challenges in the Anti-Terrorism proclamation
As discussed in the above sub topics, both Terrorism and counter terrorism affect the enjoyment of human rights. On this sub topic the analysis concerned with a selected and current human rights challenges.
I. Challenges to the absolute prohibition against Torture
The prohibition of Torture and other cruel, in human or degrading treatment or punishment is absolute under international law. It is norm of jus conges- and is non derogable even in states of emergency of threatening the life of the nation under international and regional human right treaties. The use of Torture and other cruel, in human or degrading , treatment to elicit information from terrorist suspects is absolutely prohibited, as is the use in legal proceedings of evidence obtained by torture , and of security evidence” put forward. By prosecuting and other authorities in judicial proceedings, in violation of the principle of non – admissibility of evidence extracted by torture, contained inter alia in article 15 of the convention against torture.
Ethiopia ratified the convention against torture and other cruel, inhuman or degrading Treatment. And, as indicated under article 9(4) of the FDRE constitution, it become the law of land of Ethiopia and binds Ethiopia as party to this convention. Article 23(1) cum. (5) of counter-Terrorism proclamation states that the confession of suspects of terrorism is admissible even if the report of confession does not disclose the source or the method it was obtained. Thus it is inconsistent with the convention and against Torture and against article (7) of ICCPR convention.
II. Liberty and security of a person
All persons are protected against the unlawful or arbitrary interference with their liberty this protection is applicable in the contest of criminal proceedings. In practice, as part of their efforts to counter –Terrorism, states have adopted measures which have an impact on the liberty of persons, and compulsory hearings, (detention and compulsory) of questionings of a terrorist, suspect, non – suspect, together intelligence about terrorist activities).
As part of its efforts to counter Terrorism, a state may lawfully detain persons suspected of terrorist activity as with any other crime. ‘The counter –Terrorism proclamation reiterates the due process right protected under article 991) up to (5) , to be charged within 48 hours of arrest , but permits the police to request additional investigation periods of 28 days each from a court, up to a maximum of four moths.
The proclamation enabled the government to abuse its power through the enactment of such provisions. And thus it is inconsistent with ICCPR that Ethiopia ratified the same.
III. Freedom of expression and the prohibition of incitement to terrorism
Incitement to terrorism is strategy commonly used by terrorist organization for further support for their cause and call for violent action. The Security Council has identified it as conduct which is contrary to the purposes and principles of the United Nations and caved on states to adopt measures to prohibit and prevent. And article 20(2) of ECCPR which also requires to states to prohibit hostility incitement or violence.
But Recently ” A joint Declaration of experts on freedom of expression explains that,” incitement should be understood as a direct call to engage in terrorism, with the intention thatthis should promote Terrorism; and in a context in which the call is directly causally responsible for increasing the actual likely hood of a terrorist act occurring”
Inferring from this definition of ‘Incitement’ we can argue by saying , the counter terrorism article (4) and (6) are problematic because, “the provision criminalizes speech ambiguously” encouraging “Advancing ” or “in support” of terrorist act even if there is no direct incumbent to violence . Thus the provisions seems inconsistent with both the consensual definition reached by experts and ECCPR provisions.
The protection to the right to freedom of expression is to be found under Part Two of the FDRE Constitution entitled “Democratic Rights”, which is found within Chapter 3 of the same entitled “Fundamental Human Rights and Freedoms”. With the sub-title of “Right of Thought, Opinion and Expression”, article 29 of the FDRE Constitution, which contains a total of seven sub-articles, deals with the scope and limitations of these rights.
It is perplexing why the legislatures of the FDRE Constitution chose to categorize “Fundamental Rights and Freedoms” into “Human Rights” (Part One) and “Democratic Rights” (Part Two). At first glance, it may seem to suggest that those rights listed under Part Two,including the right to freedom of expression, are purely democratic right and not as such ‘human rights’, thus afforded with lesser protection. However such view doesn’t hold water when seen in light of the fact that such distinction doesn’t exist in the international corpus of human rights law which largely adopts the universality of all human rights and on account of the FDRE’s construction to include democratic rights under the Chapter entitled Fundamental Rights and Freedoms. Furthermore, there is no basis to consider freedom of opinion and thought (which are part and parcel of freedom of expression) as belonging to democratic rights and not human rights because they are widely recognized to be absolute and as such no derogation or limitation allowed.
Furthermore, Art 29 (1) provides that “everyone has the right to hold opinions without interference”. Sub article 3 guarantees freedom of expression in the context of ‘media’ and the ‘press’, in which “any form of censorship” is prohibited and “access to information of public interest” is guaranteed. Sub-article 4 again deals with freedom of the press, stating that “in the interest of the free flow of information, ideas and opinions which are essential to the functioning of a democratic order, the press, shall as an institution, enjoy legal protection to ensure its operational independence and its capacity to entertain diverse opinions.”
Articles 29(6) and 29(7) are perhaps the most crucial provisions of the FDRE Constitution to fully grasp the legal regime for limiting the right to freedom of expression as the combined reading of these provisions clarify the applicable principle, i.e., general rule and the exceptions.
The FDRE Constitution limits the right to freedom of expression in the following manner:
These rights can be limited only through laws which are guided by the principle that freedom of expression and information cannot be limited on account of the content or effect of the point of view expressed. Legal limitations can be laid down in order to protect the well-being of the youth, and the honor and reputation of individuals. Any propaganda for war as well as the public expression of opinion intended to injure human dignity shall be prohibited by law. In short, it is legitimate for the government to enact laws that aim to protect the above mentioned interests, aims or goals even if these restrictions can be seen as either content or effect based or the combination of both.
It is quite interesting that the FDRE’s general rule against ‘content or effect based’ restriction on freedom of expression is quite similar with the jurisprudence of the U.S Supreme Court on the First Amendment. And as such a brief discussion of the U.S jurisprudence, albeit a subject that continues to attract hot and unsettled debate, offers guidance in understanding the Ethiopian constitutional regime of limiting freedom of expression.
IV. Surveillance and the right to privacy
Article 17 of the international convention on civil and political Rights prohibits states parties from interfering with the privacy of those with in their jurisdiction and requires them to protect those persons by law against arbitrary or unlawful interference with their privacy. Privacy includes information about an individual’s identity, as well as the private life of the person.
Most states have stepped up security at airports and other places of transit, for instance by collecting biometric data from passengers (such as eye scans and finger prints) , photographs, passport details and the like states have for a long time provided their security intelligence services with powers of surveillance, including the use of tracking devices. All of these practices involve the collection of information about a person. These therefore limit the privacy of such persons as well as raising questions about how the data are to be protected.
In comparison with such internationally existing practices of state, when we see the Anti-Terrorism proclamation. Have significantly ‘extended those surveillance powers. And, “this gives the police and other security services almost unlimited powers to conduct body searches, and seize property based solely on the belief that terrorist activity ‘will be’ or has been committed. As provided under article 14(1) of the same proclamation. Contains no warrant requirement or any requirement of exigent circumstances that would make a warrant less search or seizure justified.” Any act which has an impact on a person’s privacy must be lawful, i.e. it must be prescribed by law. This means that any search, surveillance or collection of data about a person must be authorized by law. The extent to which this accurse must be not be arbitrary, which in turn requires that the legislation must not be unjust, unpredictable or unreasonable.
To conclude, the analysation we should see the comment given by the “European court of Human Right in class Germany stated that it must be satisfied that any system of secret surveillance conducted by the state must be accompanied by adequate and effective grantees against abuse.
3.4Consistency of counter Terrorism act with FDRE constitution
About a decay ago armed groups have committed a number of bombing and other attacks in Ethiopia or Ethiopia’s diplomatic missions. A May 2008 explosion on a minibus in Ethiopia capital Addis Ababa and in October 2008 on the Ethiopia trod emission in harergaisa, Somaliland; and, it is believed by Ethiopian government and peoples of the region, continent and other parts of the world that terrorism is a danger to the peace, security and development of the country and serious threat to the world at large. And, it has become necessary to incorporate new legal mechanisms and procedures to prevent, control and fail terrorism, to gather evidences in order to bring to justice suspected individuals and organizations for acts of terrorism by setting up enhanced investigation and prosecution system.
The counter –Terrorism legislation was adopted in April, 28,2006, and after a great deliberation has held it was become published on Ethiopian ‘Negari-Gazetta’, on proclamation no 652 /2009 and has got the status of the law of Ethiopia.
3.4.1Fundamental due process rights of individuals
The constitution of FDRE government under different provisions grants protection about the fundamental due process right accessed and suspected persons. The constitution accepted and gives priority for the procedural rights and traits are the symbolic for the enforcement of such right of individuals. Trials are believed to up hold a moral legitimacy and basic human and constitutional rights. Justice must not only be done but be seen to be done. That is why most trials are held in public, that means the public must have a faith in its criminal justices system and verdicts that are derived by it and this can only be the case if the trial is perceived to be fair one. And respect for procedural rights. Through evidence law is the key component of the right to a fair trial.
The theory of due process model is incorporated in our procedural laws and in the supreme law of the country too, Due process model advocates concerned with equality, in the sense that all accused regardless of wealth, criminal gravity or social status should ‘receive equal treatment. This model imposes numerous restriction on the investigation and in the process of obtaining evidence, in order to protect the rights of suspects and minimize informal fact finding. And the rational for the exclusion of evidences obtained without due process right of the individual is not that the evidences are untrustworthy, but that capitalizing on his ignorance of his legal rights.
3.4.2 Rights of Arrested and Detained person
As we have seen from the previous definition chapter two that ‘Arrest’ is more than just a restriction of liberty of a person. Essentially, arrest is a restriction up on individuals right to liberty recognized under art (17) of FDRE constitution.
This provision stipulates that arrest, being an exception to the principle of liberty , shall be made based on substantive and procedural grounds set by the law, if not the arrest will be regarded as an arbitrary arrest which is prohibited under article 17(2) of the constitution. So, the suspected person should not be arrested or detained in order to develop the case handled by the police. The term “arrest” means the seizing & detaining of a person by lawful authority.8 Furthermore, United Nations Committee (UNC) on the Study of the Right of Everyone to be Free from Arbitrary Arrest, Detention and Exile (United Nations Committee) has provided us with the primary functional meanings of the concepts “arrest”.
Accordingly, “arrest” means the act of taking a person into custody under the authority of the law or by compulsion of another kind and includes the period from the moment he is placed under restraint up to the time he is brought before an authority competent to order his continued custody or to release him.According to this definition, the manner in which the arresting authority effects the restraint on personal liberty, and the length of time for which a suspect may be held in custodyon the basis of the arrest are the two vital elements of the definition. Besides, “Arrest” means the act of apprehending a person for the alleged commission of an offence orby the action of an authority.UN Human Rights Committee on human rights in its general comment on Art.9of ICCPR state that the term “arrest” refers to any apprehension of a person that commences a deprivation of Liberty. When we come to FDRE, the constitution of FDRE, the Criminal Code of FDRE (2004) and the Criminal Procedure of the Empire of Ethiopia (1961) does not define the term arrest.
Definition of Detention
The term “detention” means the deprivation of liberty that begins with the arrest, and that continues in time from apprehension until release. Furthermore, “detention” means “the act of confining a person to a certain place, whether or not in continuation of arrest, and under restraints which prevent him from living with his family or carrying out his normal occupational or social activities”. Thus, the real meaning of “detention” according to this definition is confinement and deprivation of personal liberty. Moreover, “Detained person” means any person deprived of personal liberty except as a result of conviction for an offence while as “detention” means thecondition of detained persons. Under article 19(1) of the counter – terrorism proclamation the police have given a wider power. The police can abuse such power as he wants. There is no objective standard but only areas enable suspicion to believe ‘that crime is to becommitted then, he can arrest without warrant any person he suspected to have been committing crime.
Though it is the effort to counter terrorism by state machinery to detain a person suspected of Terrorism, the person should be treated equally with other person’s suspect of different crime and have to be entitled to the same due process right. But the counter-Terrorism proclamation reiterates the due process right guaranteed, to be charged within 48 hours of arrest, by permitting the police to request additional investigation periods to 28 days each from a court, up to a maximum of four months.
Art. 36(1) of the proclamation, again makes a rules, regulations and other rules to be inapplicable if they are inconsistent with the provisions of counter-Terrorism legislation. So, what about other laws which guarantee due process right of an accused no lesser than this proclamation. As to my opinion this exclusionary provision is more problematic by excluding other laws which are incorporated in the constitution and achieved the status of ‘non derogable rights.
3.4.3 Procedural safeguards in conduction Interrogation.
In obtaining confession of the accused person those should be a requirement which restricts the power police not to use any arbitrary method. Such requirements should be incorporated in a legal system of a given country. One of such safe guarding mechanism of the due process right of the accused is warning the accused about his constitutional right to remain silent, called ‘Miranda warning’ the FDRE constitution provides under article 19(2) (m) about the idea of giving warning for the accused person before he confess. The other requirement is use of any means to elicit the consent of the accused or the suspect to give admission is prohibited. The FDRE constitution article 19(5) excluded or makes it inadmissible, of any evidence obtained through. Coercion either physically or psychologically by police officer.
When we see the counter-Terrorism proclamation article 23(1) cum. (5) understood that the evidence of confession obtained by whatever method would be admit table. It does not prescribe how to obtain evidence. Thus, it raises question about the procedural safeguards provided for suspects.
The right to privacy and surveillance
As defined in the previous sub -topic ‘privacy’ is as understood by most people it is the freedom to decide which details of our life are public and which are private not open for public disclosure. Privacy includes information about an individual’s identity, as well as the private life of the person but this right is not absolute since any measures or limitation on the rights must be necessary to achieve legitimate purposes and proportionate to those purposes. The law authorizing interference must with privacy must specify in detail the precise circumstances in which interferences is permitted and must not be implemented discriminatorily manner.
The counter Terrorism proclamation under article 14(1),(a),(b) and (c) authorized the national intelligence and security service to have conduct, without securing (optional ) from court interception and surveillance on fax, telephone, and on similar communications of a person suspected of Terrorism.
The FDRE constitution under article 26(2) states the right to privacy as inviolable and sub article(3) of the some article excludes any restriction imposed on the enjoyment of such rights except in compellingcircumstances and in accordance with specific laws whose purposes shall be the safeguarding of public place… and freedoms of others. But such interference cannot be conducted without securiang the minimum procedural safeguards. But the proclamation does not specify any exigent or compelling circumstances. This would have broaden and unlimited power.