Title page

THE IMPACT OF ETHIOPIAN COMPUTER CRIME

PROCLAMATION No 958/2016 ON FREEDOM OF
EXPRESSION

Thesis
Submitted; In Partial Fulfillment of the Requirements for the Degree Of
Bachelor Of Laws (LLM) at the School Of Law, Bahir Dar University.

By
Abayneh Zemene

Advisor
Tilahun Yazie (LLB, LLM)

School of Law,
Bahir Dar University

1
 January, 2018

Thesis approval page

The thesis titled “the impact of Ethiopian computer crime proclamation no 958/2016 On Freedom of
expression” by Abayneh Zemene is approved for the degree of Bachelor of law (LLB)

Board of examiners

Name Signature

Advisor Tilahun Yazie _________________

Examiner ___________________ _________________

Date: ____________

2
Declaration

I, the undersigned, declare that the thesis comprises my own work. In compliance with widely
accepted practices, I have duly acknowledged and referenced all materials used in this work. I
understand that non-adherence to the principles of academic honesty and Integrity.
Misrepresentation/fabrication of any idea/data/fact/source will constitute sufficient ground for
disciplinary action by the University and can also evoke criminal sanction from the State
and civil action from the sources which have not been properly cited or acknowledged.

_______________________

Signature

Abayneh Zemene

BDU0603710

Date 02/02/2018

3
Acknowledgment

I would like to express my deepest gratitude from the core of my heart to the Almighty God, who
has given me the strength to carry on in my hard times and for his invaluable gift being with me
throughout in my study as the research comes to end with His will.

My bloved wife Yenatfenta Simegnew And my daughter Blien Abayneh Zemene, both of you are
my strength for each stapes of my life

I feel the deepest sense of gratitude to my Advisor Tilahun Yazie a man with true respect
for learning, for his proper guidance and encouragement for this study.

My sincere and whole hearted gratitude goes to my beloved brothers Adugna Shibabaw and
Birhanu Mekuriaw for unreserved material and moral supports in the whole course of the study.

Then my gratitude goes to my parents for all their psychological, material and other assistances
extends to me which made me a man of today.

Finally, my special thanks go to all my colleagues and friends for their generous support and
contribution by letting the researcher to discuss and sharing ideas. Specially, Thanks Minoz,
Ruti, Abrelo...

4
Table of Contents
Title page.....................................................................................................................................1
Thesis approval page...................................................................................................................2
Declaration...................................................................................................................................3
Acknowledgment.........................................................................................................................4
Acronyms.....................................................................................................................................5
Abstract........................................................................................................................................6
CHAPTER ONE 7
INTRODUCTION 7
1.1. Background of the study...................................................................................................7
1.2. Statement of the Problem..................................................................................................9
1.3. Study objective...................................................................................................................10
1.3.1. General objective,....................................................................................................................10
1.3.2 Specific objectives,...................................................................................................................10
1.4. Research Questions.........................................................................................................11
1.4.1. The central research question...................................................................................................11
1.4.2. Specific questions....................................................................................................................11
1.5. Significance of the Study................................................................................................11
1.6. Literature review.............................................................................................................11
1.7. Methodology...................................................................................................................12
1.8. Scope of the Study..........................................................................................................13
1.9. Structure and Organization of the Research....................................................................13
CHAPTER TWO 14
COMPUTER CRIME 14
2.1. Computer crime:- In General.........................................................................................14
2.1.1. Introduction.............................................................................................................................14
2.1.2. Definition of computer crime...................................................................................................15
2.2. Historical background of computer crime......................................................................16
2.3. Types of computer crime.................................................................................................17
2.4. Salient features of computer crime.................................................................................18
2.5. Manner of regulation for computer crime.......................................................................19

5
 2.5.1. Criminalization and Penalization of computer misuse and abuse.......................................19
2.5.2. Control over the Internet....................................................................................................20
2.6. Computer crime in Ethiopia............................................................................................20
2.6.1. Computer crime in FDRE Constitution..............................................................................21
2.6.2. Computer crime in FDRE Criminal code...........................................................................22
CHAPTER THREE 24
FREEDOM OF EXPRESSION 24
Introduction................................................................................................................................24
3.1. General Overview of Freedom of expression.....................................................................24
3.1.1. Definition of freedom of expression........................................................................................25
3.1.2. Nature of freedom of expression..............................................................................................26
3.2. Justifications for the Need of Freedom of expression........................................................27
3.2.1. Freedom of expression uder International instruments...........................................................29
3.2.2. Freedom of expression in Ethiopian legal system....................................................................30
3.3. Limitations on Freedom of expression...............................................................................31
CHAPTER FOUR 34
THE IMPACT OF ETHIOPIAN COMPUTER CRIME PROCLAMATION N 958/2016
ON FREEDOM OF EXPRESSION 34
4.1. Introduction.........................................................................................................................34
4.2. Ethiopian computer crime proclamation No 958/2016......................................................34
4.3. The importance of the proclamation...................................................................................35
4.4. The Negative Impact of the proclamation on the freedom of expression...........................36
4.5. Conclusions.........................................................................................................................41
4.6. Recommendations...............................................................................................................42
4.7. References...........................................................................................................................43

6
Acronyms

ACHPR- African Charter on Human and People’s Right

AU-African Union

FDRE-Federal Democratic Republic of Ethiopia

ICCPR-International Covenant on Civil and Political Rights

ICESCR-International Covenant on Economic, Social and Cultural Rights

UDHR-Universal Declaration of Human Rights

UNGA- United Nation General Assembly

ICNL- International Center Not-for-profit-Law

IACHR- Inter American Commission on human right

7
Abstract

The Ethiopian House of People representatives in its in June 2016 proclaimed the new Ethiopian
computer crime proclamation No 958/2016 which addresses many issues starting from illegal access to
computer (hacking) to the dissemination of spam and protection of child pornography. In the
promulgation of this proclamations the legislature trays to justify the promulgation of the proclamation
as there were no any proclamation which preside over the case of computer crimes that can be appear
because of the changing technology. In the preamble of the proclamation the legislature also rationalize
the proclamation as the existing laws are not sufficient for the investigation and protection of computer
crime.

Though it is important, the proclamation on the other hand, creates crimes which may be hazardous for
the protection of human right, especially for freedom of expression, which may become against
international customary laws and International human right instruments that Ethiopia is a party. So as
the research title of this thesis, to assess the possible impact of the proclamation on the freedom of
expression, will examine the real impact of the proclamation on freedom of expression.

8
 CHAPTER ONE
INTRODUCTION

1.1. Background of the study

Ethiopia's house of people Representative in June 2016 adopted the new computer crime
proclamation which deals with different issues like illegal access, interception, interference of
computer system and stipulates different substantive and procedural provisions, creates a number
of new criminal offences that are likely to impact heavily on the enjoyment of the right to
freedom of expression and other human rights, by extending the reach of criminal defamation and
creating various new criminal offences.1
For the protection of vulnerability to various computer crimes and other security threats that can impede
the overall development of the country and endangering individual rights, for the utilization of information
communication technology and because of the absence of legal regime that adequately stipulate or tuned
with the technological changes for the prevention, control, investigation and prosecution of computer
crimes in Ethiopia Legal system and for the necessity of New legal mechanisms and procedures The
Ethiopian computer crime proclamation No 958/2016 was adopted.

So my research proposal want to specifically concentrate on the effect of this New Ethiopian
proclamation on the Fundamental Human Right, freedom of expression, which is protected in
many International, regional as well as national Instruments and laws.
So let see what human right is in generally and freedom of expression particularly and the actual
worldwide effect of cyber and computer crime.
“Human rights are commonly understood as being those rights which are inherent to the human
being. The concept of human rights acknowledges that every single human being is entitled to
enjoy his or her human rights without distinction as to race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status2”.

1
‘Ethiopia: Computer Crime Proclamation’, ARTICLE 19 Free Word Centre, July 2016, pp 2-32 at 2,
[Here in after, ARTICLE 19,Ethiopian : computer crime proclamation]
2
‘UN office of high commission for human right’, The hand book on human right, 1997, p.2.

9
 So human rights are acquired only because of being human being, their limitation should be
restricted and there should be based on the pre-existed law for limitation and for the legitimate
aim without abusing the very purpose of fundamental rights.
As we know Freedom of expression is very important right that include the right to speech,
within any media whether in writing, in broadcasting, in symbolic messages or in any
technological networking medias, like internet [facebook, YouTube, viver, and other social
medias]3, and it is fundamental right which is recognized as peoples right under article 19 of the
UDHR and other international Instruments as well as regional and national legal régimes.
Freedom of expression is essentially another, and perhaps more accurate, way of referring to the
composite of rights usually labeled freedom of speech. Some constitutional documents draw a
distinction, or use it instead of the phrase freedom of speech: the Universal Declaration of Human
Rights provides, in Article 19, that ‘everyone has the right to freedom of opinion and expression’
and to ‘impart information and ideas through any media and regardless of frontiers’.4
As We can Understand from Different International ,regional and national laws , conventions,
agreements, customs or international Human right instruments, freedom of Expression is
fundamental human rights with its possible narrow limitations, as they are not an absolute
rights, and because of its sensitiveness in the present cyber World. so we will have look at its
future fait in Ethiopian human right régime focusing on Ethiopian computer crime proclamation
No 958/2016 and its complimentarily with the other domestic as well as international instruments.
In the present world there is the tension between two conflicting issues like, in one hand,
protecting the very fundamental human right, subject to possible limitation, by giving it to express
any ideas through any media in the form of speech or writing or through symbolic manifestations
what ever they want, and on the other hand protecting the national security by imposing the red
lines or requirements.

The Ethiopian houses of people representative’s proclamation on computer crime have high
Different effect on the freedom of expression and National security as well.

For instance freedom of expression is stipulated as fundamental human right in the FDRE
constitution, by giving guaranty for everyone to have opinion and to express any kind of idea
without interference regardless of frontiers, either orally, in writing, in print, or through any media
3
David Robertson , Human right Dictionary, 3rd ed., London and New work, 2005, at p.93,
4
Ibid

10
his choice5. But this new proclamation’s some provisions seems against this fundamental and
constitutional right, for example article 7,the transmission of data prohibition, 12, the prohibition
of disseminating any visual expressions, 13,disiminating any information for democratic society
which may be necessary to avoid corruption and other mal practices 14, the right to express in
this article also may be affected and on the other articles that we will see on the discussion part 6.
On the other hand national security, social norms (custom), and social wellbeing may be in danger
if we make all right open to practice without limitation, so there should be Laws that governs
these conflicts between the law and the practice. In this juncture the status of the new computer
crime proclamation is at question.

So my research wants to have deep looking on these effects and wants to show the real Impact
of this computer crime proclamation whether it affect positively or negatively.

1.2. Statement of the Problem

There are Different Arguments raised on this proclamation positively and negatively.
firstly by supporting The promulgation of the proclamation for different reasons like, protection of state
security, National Development, and the necessity of new Technological legal regime for today’s fastest
world’s computer crime protection, investigation, and controlling system for change of new Technological
advancement like face book, YouTube, viver and other social medias with regard to chatting, Uploading
data, emailing, downloading .7

Secondly the Stringent substantive and procedural stipulation of the proclamation possibly affects the
exercising of the Fundamental Human rights like, freedom of expression, the right to privacy and other
rights which are clearly protected under International Instruments for which Ethiopia is a party and
national laws specially under Ethiopian constitution 8. For instance in article 7 ,the transmission of
computer program prohibition and in other articles different concepts incorporated as , the
prohibition of disseminating any visual expressions, disseminating any information for
democratic society which may be necessary to avoid corruption and other mal practices and ,
are in some extent affects freedom of expression because, in the democratic society any one
5
FDRE constitution, August 1995, Federal Negarit Gazzeta, pro. No 1, article 29(1) &(2). [here in after: FDRE
constitution]
6
Ethiopian Computer crime proclamation, 2016, Federal Negarit Gazzeta, pro No 958, article 7-14.
7
Id. , Preamble, paragraph 1&2
8
Supra note 5, Article 27 and 29,

11
could express what he want to express, but if we limit these right through such type of limitations,
true information of corruption and other mal practices may not come in to public before the
problem come to exist and damage.9

So my research wants to have deep looking on these effects and wants to show the real Impact of
this computer crime proclamation whether it affect positively or negatively, these problems
should be solved and solutions should be available for the legislature body in order to correct it in
the way of final findings.

1.3. Study objective

At the end of conducting this research, the researcher intends to achieve the following general
and specific objectives.

1.3.1. General objective,

The main objective of this research is examining the Ethiopian computer crime proclamation no.
958/2016 in light of basic laws and principles of freedom of expression.
To attain this fundamental objective the following specific objectives have been targeted.

1.3.2 Specific objectives,

To evaluate the legality of the provisions of the proclamation with the national laws and to
assess the possible international and regional laws and conventions from the perspective of the
Ethiopian computer crime proclamation and
Finally to provide a recommendation on the overall say.

1.4. Research Questions

To critically address the aforementioned research objectives the researcher had asked the
following central and specific questions.

1.4.1. The central research question

 What is the possible Impact of Computer crime proclamation No 958/2016 on the
freedom of expression?

9
Supra note 6, article7, article 12, article 13&14

12
 To answer the main research question the researcher has deal and addresses the following
specific research questions.

1.4.2. Specific questions

1. Are those specific provisions of the proclamation which have relationship with the right
to freedom of expression are in line with the provision of the FDRE constitution?
2. Are these articles in line with International and regional human rights Instruments which
Ethiopia is a party as well
3. Are these articles in line with International human right customary laws?

1.5. Significance of the Study

This research paper is hoped to be helpful for the following parties.
 To the Ethiopian legislative organ of the government, may be as reference if necessary
when the organ is engaged in amendment or modification the proclamation, framing a policy
concerning the area.
 . Besides, it will have a theoretical as well as practical contribution to the body of
knowledge related to the problems especially for academicians in Law in colleges Universities
and Training Institutions.
 To any interested researcher on the area.

1.6. Literature review

To critically examine and reach on the final conclusion on the issue at hand, I had try to see
different books and journals as well as commentaries. From these
 From the journal called Computer Crimes in Ethiopia: An Appraisal of the Legal Framework by
Molalign Asmare, computer crime is more clearly elaborated and discussed very well. On the other hand
the status of computer crime in Ethiopian laws like criminal code, policies and strategies and its gaps also
discussed in this journal and it will be good impute for this research which bases on the computer crime.
But as a difference this journal is only focused on the computer crime and the legal frame work for this
crime in Ethiopia without the new computer crime proclamation, but this research focuses on the new
computer crime proclamation and its impact on the freedom of expression.
 In the article “the Internet and regulatory responses in Ethiopia” which was written by Kinfe
Mikael Yilma and Halefom Hilu Abera in September 2015 before the enactment of the Ethiopian computer
crime proclamation, the concept of computer and internet crime have tried to seen by those authors. This
article reviewed major legislative developments in the field of Internet Law in Ethiopia. It sketches
legislative responses of the Ethiopian legislature to the advent of the Internet by outlining major

13
sources of Internet law and their defining features. The critical comments made in this article are
meant to constructively inform ongoing debates on the draft laws Ethiopian computer crime
proclamation and other laws.
 The legal analysis give to the Ethiopian computer crime proclamation by Organization
‘article 19 free world center in London’ which comments any law with regard to freedom of
expression world widely. This commentary gave very good comment for Ethiopian Legislative
organ with regarding to the new computer crime proclamation No 958/2016 but it focused on the
negative Implication of the proclamation only. So I personally argue that we have to see the right
and left side of the proclamation to conclude right fully considering the existing situation of the
state of Ethiopia.

1.7. Methodology
This research is a pure doctrinal type of research because of the nature of the research which
analysis legal rules. Doctrinal Research — “Research which provides a systematic exposition of the
rules governing a particular legal category, analyses the relationship between rules, explains areas
of difficulty and, perhaps, predicts future developments.”10

Hence in this paper the researcher uses a qualitative research method. Because of the very nature
of the research it-self needs qualitative method. i.e. mainly through document analysis. With the
view of addressing the research questions already identified, a deep analysis and investigation of
Ethiopian computer crime Proclamation No 958/2016 as well as principles, doctrines and
theories, had been analyzed. Finally, it would be important to grasp the whole issues, other
Materials (like, books, case analysis (if necessary), documents, magazines and journals both
published and unpublished) which are relevant for the aimed objectives of the paper, have been
assessed and examined.

1.8. Scope of the Study

Basically the study focuses on the overall issues and Implication of Ethiopian computer crime
proclamation on the very fundamental human right freedom of expression. In doing this the
researcher will have assess relevant national and international Human right laws and customs,
specifically, The FDRE constitution, computer crime proclamation 958/2016, ICCPR, UDHR and
10
Pearce D, Campbell E and Harding D, Australian Law Schools: A Discipline Assessment for the Commonwealth
Tertiary Education Commission, Australia, 1987

14
other laws which have relevancy and as a back bone for the aimed objective or for the case or
specially on the freedom of expression. Besides, the study have go further on other relevant
principles and theories that have direct linkage with freedom of Expression and cyber Law, like,
journals written by different writers.

1.9. Structure and Organization of the Research

The study is structured in to three main chapters with different sub topics. The first chapter deals
with the proposal underlining the basic structure of the study by way of identifying basic
problems that needs to be studied so as to achieve the intended objectives upon formulation of
research questions.

The Second chapter mainly focuses on the foundation of computer crime and general legal
principles concerning international computer crime laws by incorporating relevant and necessary
cases that has impact on freedom of expression.

. The Third chapter mainly focuses on what is of freedom of Expression and its applicability in
Ethiopia. on this chapter brief analysis of different international human right laws including
national human right laws, International conventions and their effects including other
contemporary and relevant regional laws have been assessed.

The fourth chapter will focuses on the analyzing the Ethiopian computer crime with freedom of
Expression. Finally under this chapter the writer will have given conclusion of what has been
discussed in the preceding chapters and have forward possible recommendations on the issue.

CHAPTER TWO

COMPUTER CRIME
2.1. Computer crime:- In General

15
 2.1.1. Introduction

The past several decades have brought a vast increase in the availability of electronic resources.
With this increased availability has come a new form of criminal activity that takes advantage of
electronic resources, namely computer crime and computer fraud. So now a day’s computer and its
networking are everything that performs any task with its modern advancement and it contributes
tremendous services for global development which may not be exist without these technologies.
Though its importance now a days it became very danger and target point for criminal offences.
“Technologies such as cellular phones, pagers, home computers, the Internet, websites, and palm
pilots have added another dimension to crime.” 11
“Currently, computer crimes are the newly emerging and rapidly growing crime. The global
nature of computer crime or cybercrime creates a major challenge for national criminal justice
systems”12. In every sphere of economic activity and in any where the effect of computer crime is
interconnected through network example banking system, telecom services, electrical grids,
global as well as national security information and others. The present world highly terrifying
inhuman practice of terrorists, also most probably use computer crime as the source of their
information for attacking once government institution and other important places.
There are debates on the governing laws of different states with regard to computer
crimes, especially, there are two side of argument, in one hand to use more strict law with regard
to computer crime that possibly affect other rights for the sake of public interest or public well
being. On the other hand for the protection of human rights, some countries seem try to choose
the loosing computer crime law. At this scenario the status of governing law with regard to
computer crime is at question.
In this regard our country Ethiopia will also as part of the globe will face this danger specially,
because of lack of modern and competent investigation and controlling system with ”the present
computerized technological advancement of every transaction” 13, the problem will be inevitable.

11
Michael Kunz & Patrick Wilson, Computer crime and computer fraud, University of Maryland, USA, 2004,p.4.
[Here in after, Michael Kunz & Patrick Wilson]
12
Molalign Asmare, Computer Crimes in Ethiopia: An Appraisal of the Legal Framework , International Journal of
Social Science and Humanities Research, Vol. 3, January2015, at 93 [Here in after Molalign, computer crime in
Ethiopia]
13
Id. , p.92.

16
 So computer crime is more essential and hot issue in the present global economy as well as
national security, we will have look at on these issues in detail on the next subtitles.

2.1.2. Definition of computer crime

As the name indicates computer crime is the combination of two words; Computer and crime.
Computer is a “programmable electronic device that performs mathematical calculations and
local operations, especially one that can process, store and retrieve large amount of data.” 14 On
the other hand “Crime is an act of violation of the law or a practice or a habit of committing
wrongful act”.15 In other word it is the use of a computer to take or alter data, or to gain unlawful
use of computers or services.
Computer crime is also can be called interchangeably as cyber crime, e-crime as “it is a crime
that involves a computer and a network. The computer may have been used in the commission of
a crime, or it may be the target. Cybercrimes also can be defined as: "Offences that are committed
against individuals or groups of individuals with a criminal motive to intentionally harm the
reputation of the victim or cause physical or mental harm, or loss, to the victim directly or
indirectly, using modern telecommunication networks such as Internet (networks including but
not limited to Chat rooms, emails, notice boards and groups) and mobile phones
(Bluetooth/SMS/MMS)". Cybercrime may threaten a person or a nation's security and financial
health.”16
So, computer crime is an act of committing wrongful act towards programmable electronic
devices, which performs mathematical calculations and local operations, especially one that can
process, store and retrieve large amount of data, for the illegal gain of the wrong doer.
In short as it defined by Michael Kunz & Patrick Wilson computer crime is an act of “using or
causing the use of a computer resource for the purpose of illicitly gaining goods or resources, or
causing harm to another entity”17

14
“English dictionary” at <http://wiktionary.org> [last accessed on October 20/2017].
15
Ibid
16
‘Wikipedia, the free encyclopedia’, <http;www.wikipedia.com>, [last accessed on October 28/2017]
17
Michael Kunz & Patrick Wilson p.9 The definition should be flexible enough to apply to situations where the
computer resource is the instrument of the perpetrator, the victim, or auxiliary to the crime. The definition should
also be adaptable to the rapidly changing face of the digital world .

17
 2.2. Historical background of computer crime
Conflict of interest and is not isolated from human behavior that may be exist any time and in
any place, starting from ancient time where, an individual come together and form community.
This community starts to have private property which is the main cause of conflict. And this
conflict of interest leads to crime. Now days the type and nature of crime is largely different and
increased in number including computer crime. Even though computer crime is the recent
phenomena it is important to see its development with different cases for the reference and to
know deeply what is computer crime and its technological progress through different stages and
its effects. The history of computer crime is meanly started in 1960s and became hot issue in 21th
century. The first stage of computer crime, after the invention of computers, was merely the
physical attack of computer itself by individual disgruntled and dishonest employees, and then it
changes its direction from physical attack to computer virus distribution and e-mailings.18
“ Early attack on telecommunication systems in the 1960s lead to supervision of the long
distance phone system for amusement and for theft of the service and as the telecommunication
system spread throughout the world IT system the tendency to involve for computer crime is
more increased. Programmers in 1980s created malicious software including software that can
duplicate itself for attack, in addition to this the very rapid growing of Internet access also
contribute for this crime.”19 Because of the technological advancement of new computer era this
internet facilities give advantage for computer criminals to use false e-mail addresses including
like identity theft for unlawful gain. as M.E Kabay’s explanation “in 1990s progressed, financial
crime using penetration and supervision of computer system increased, moreover the type of
malware shifted during the 1990s taking advantage of new vulnerabilities and dying out as
operating system were strengthened, only to succumb to new attack vectors”. 20 Then the
attackers use un illegitimate applications of e-mail for unsolicited commercial and fraudulent e-
mail.
This progress of computer crime now a day’s came to being fear of every country in the world
for every technological advanced sector including financial, security, electrical grid,
telecommunication and others. And also it is being used as the default armament for terrorist
organizations which highly disturb the world’s peace like the attack of France and England.
18
M.E Kabay, A Brief History of computer crime: An Introduction for Student, university of Norwich, Norway, 2008
p.4
19
Ibid
20
Ibid

18
 2.3. Types of computer crime
As we know computer crime is every broad concept, there are many classification given to
this type of crime based on different criterion. Among these as Molalign stated in clear manner
the first approach which is used by European convention on cybercrime, are first
offences against the confidentiality, integrity and availability of computer data system; are
offences related to illegal access and interception o f data; data and system interference; and
misuse of devices, and the second one is Computer-related offences; a type of computer crime
which comprises computer-related forgery and fraud. The third, Content-related offences; are
crimes or an offences which typically related to child pornography and hate speech or
defamation and the last is Copy right-related offences, are offences related to copy right and
intellectual property right.21
The other criterion which is given by Molalign for types of computer crime are offences that
the computer itself is a target of the crime like Computer hacking, sending virus like Trojan
horse, logic bombe, worms and denial of service attack.22
On the other hand computer crime may be classified as Embezzlement, using computer to
embezzle funds and assets of the other individual or entities, Vandalism or fraud, destruction or
alteration of computer data and software, Theft and trespass, unauthorized access to and/or theft
of software and data, petty theft, embezzlement, or joyriding, unauthorized use of computers and
computer system.23
When we deeply understand the type of computer crime it has many ways like,
 Advance Fee Fraud Schemes- which is the victim pays the fee online and he will get nothing
in return. Because of the difficulty of the enforcement mechanism the victim will may be
without remedy.
 Credit/Debit Card Fraud – credit/debit card numbers may be stolen from unsecured website
and the offender may use the card no to get funds.
 Freight forwarding/ Reshipping , Identity theft, Investment Fraud, Non-delivery of
Goods/Services, And other many types of computer crime are existed. 24
21
Molalign, computer crime in Ethiopia, pp, 94-95.
22
Ibid
23
Types of computer crime, at <http://www.typesofcomputercrime.com> [last accessed on October 20/2017
24
Michael Kunz & Patrick Wilson, pp, 13-14. Freight forwarding/Reshipping-the receiving and subsequent
reshipping of an on-line ordered merchandise to locations usually abroad. Individuals are often solicited to
participate in this activity in chat rooms, or through Internet job postings. Unbeknownst to the reshipper, the
merchandise has been paid for with fraudulent credit cards. Identity theft- occurs when someone appropriates
another’s personal information without his or her knowledge to commit theft or fraud. Investment Fraud- an offering

19
 2.4. Salient features of computer crime
Computer crime, as it is the new invention, which comes with the development of
Information technology, it differ from other types of traditional crimes, which are mostly
breached/performed face to face to the victim or the object of the offence. Basically for the
computer offence, most of the time, the presence of computer as well as network and internet is
fundamental.
But without computer technology the concept of computer crime may not be an issue. As it is
modern concept and the difficulty of regulation, enforcement 25, and nature of computer crime,
it’s more sensitive issue and different from the other crimes. Computer crime poses a daunting task
for law enforcement agencies because they are highly technical crimes. 26
In other word it has some unique nature that every one can’t find in traditional crimes. “ The
incidence of traditional crime, mostly, is easy to deal by the law enforcement agents. In such a
type of crime, the location where the crime is committed can be traced out; individuals that
involved in such a distinct incidence can be identified; facts and issues can be investigated; and
liabilities can be imposed.”27
So because of the nature, enforcement, place of commission of crime and difficulty of
investigation without special training, and many it’s salient features, computer crime is in some
aspects differ from other known traditional crimes like, robbery, theft, homicide, corruption.

2.5. Manner of regulation for computer crime

In the previous subtitles of this chapter we have deals about the nature, definition, salient feature,
type and historical background of computer crime that give picture for what does we mean
computer crime. Now it is time to deal about the manner of regulation of computer crime.

that uses fraudulent claims to solicit investments or loans, or that provides for the purchase, use, or trade of forged or
counterfeit securities. Non-delivery of Goods/Services-merchandise or services that were purchased or contracted by
individuals on-line are never delivered.
25
Supra note 17, p.6.
26
Ibid, Law enforcement agencies must have individuals trained in computer science or computer forensics in order
to properly investigate computer crimes. Additionally, states must update and create legislation, which prohibits
computer crimes and outlines appropriate punishments for those crimes. Computer crimes will likely become more
frequent with the advent of further technologies. It is important that civilians, law enforcement officials, and other
members of the criminal justice system are knowledgeable about computer crimes in order to reduce the threat
they pose.
27
Supra note 11, p. 94.

20
 In order to prevent/avert computer crime, we know that different states use different
measures starting from criminalization of the act to legal and administrative measures.
there is an international, regional and national consciousness and work constantly to analyze the
emergence of cybercrime and to develop strategies in combating computer or cybercrime with
different organizations, like group eight (G8), united nation Office on Drugs and Crimes; the
International Telecommunication Union; and the International Criminal Police Organization. 28
But when we came to analysis the manner of regulation or the system of combating computer
crime there are different stapes and procedures which we will discuss here.

2.5.1. Criminalization and Penalization of computer

misuse and abuse
when we say criminalization and penalization of the act of performing the
illegal act towards computer and network may be put in to law as it will be
illegal and setting the appropriate penalty or sanction for who violate these
standards. This means that from the existing law of the specific state the
concept of computer crime will be added and criminalized as it is the recent
phenomena for the law regime. Molalign illustrate this issue within Ethiopian
perspective. “Ethiopia, for example, has amended and replaced the existing Peal Code of 1957
by 2004 Criminal Code. The basic justification to come up with the 2004 Criminal Code is to
amend or add provisions that require changes, clarity or to fill the gaps in the new emerging
criminal behaviors after the Penal Code has come into force.”29
So criminalization of computer misuse or abuse is the stipulation of the act as a crime like
Ethiopian laws that criminalize and penalize it in the criminal code, computer crime proclamation
and other policies. We will see in detail in the subsequent sub titles about how Ethiopia criminalizes
computer crime in its domestic laws such as FDRE Constitution, criminal code and in computer
crime proclamation No 958/2016.

2.5.2. Control over the Internet

It is the system of controlling the act of the offenders within internet or network with specialized
personnel. But this approach highly affects the right of speech and freedom of expression.
Especially this type of regulation is implemented mostly in communist states like republic of China.

28
Id. , p. 96
29
Id., p. 97.

21
 From the very beginning, China has been making efforts to create a giant
domestic intranet while barring out the global Internet in order to control the
network by central government. The goals of China’s operations against online
activities, which were regarded as harmful, were more concentrated on
maintaining state security than any other aspects. As long as cyber security was
concerned in the Chinese context, it has frequently been understood as a critical
part of state security. The authority tended to view the single access to
information that was different from political interests as potential threats to
stability, and thus showed no tolerance. Thus, freedom of speech bears different
meaning from the notion in the Western world.30

2.6. Computer crime in Ethiopia

As the aim of this research is to investigate the real impact of Ethiopian computer crime
proclamation on the freedom of expression, appreciating the status of computer crime in other
laws of Ethiopia is very important. The New technological advanced crimes lead to the
promulgation of new legislation in different part of the world for the inclusion of this new
offence as a crime.
As the part and parcel of the world Ethiopia try to incorporate this act as a crime in its different
laws. The example of this change, the promulgation of FDRE criminal code by amending the
application of Imperial penal code, in the preamble, justified as to the inclusion of new crimes or
criminalization of new technological advanced acts. “The clearly indicated justification for the
adoption of the new Criminal Code under its preamble is to address crimes born of advances in
technology. Other countries such as United States, Japan, China, India and others have been
enacted and amended their laws for similar objectives.”31
In addition to Criminal code, as a general rule FDRE constitution grants many rights that
citizens will enjoy and duties which individuals should fulfill. This constitutional right and
responsibilities indirectly governs the acts of computer crime. And also Ethiopia has adopted the

30
‘Regulation of Cyber Space: An Analysis of Chinese Law on Cyber Crime’, International Journal of Cyber
Criminology, December 2015, Vol. 9, Issue 2, pp 199-198.
31
Supra note 19 . Due to the prevalence of computer cyber crimes throughout the world, many countries have
been amending the existing penal code or in the way of enacting the new one so as to address computer related
crimes with its specific scope and nature. Ethiopia, for example, has amended and replaced the existing Peal Code
of 1957 by 2004 Criminal Code. The basic justification to come up with the 2004 Criminal Code is to amend or add
provisions that require changes, clarity or to fill the gaps in the new emerging criminal behaviors after the Penal
Code has come into force.

22
new computer crime proclamation for specific protection of future computer crime harm and
hazard. lets see each one by one.

2.6.1. Computer crime in FDRE Constitution

Even though the FDRE constitution didn’t specifically deals with the computer crime, but in its
articles it gives many general rights and responsibilities, which are indirectly related with the
concept of computer crime and for stronger reason the will bind the act as the general /supreme
law of the land. When we see article 26, right to privacy, in sub article 2 of this article everyone
have the inviolability of his notes and correspondence including electronic devices, which give
the right of privacy for individual to do whatever he want in his computer or network. Even
though there is the limitation on the exercise of this right, it is on only four grounds; national
security or public peace, the prevention of crimes or public health, public morality or the rights
and freedom of others.32
In article 27 and 29 of the constitution, the right to everyone to express and manifest religion
and freedom of expression also recognized. These articles imply that everyone entitled to apply
such right in any media they chooses.33
On the other hand any person whose right and interests have breached by other person in
whatever media including computers or networks will have remedy by accessing justice, as per
article 37 of the FDRE constitution. So indirectly FDRE constitution gives attention for
computer crime matters.

2.6.2. Computer crime in FDRE Criminal code

We have discussed that from the justifications given to the amendment of the penal code to
criminal cede, the one is, to fill the gap of the penal code for crimes born of advance in
technology and the complexity of modern life; like computer crime.34
As a matter of principle any criminal acts will be governed by criminal cod, the concept of
computer crime is included in FDRE criminal code. Though the incorporation of computer crime
is very limited as to the actual nature and effect of the crime, it tries to govern this broad concept
in six articles, starting from article 706-711.

32
Supra note, 5, article 26(2)
33
Id., article 29(2).
34
FDRE Criminal Code, May 2005, Federal Negarit Gazette, pro. No 414/2004, preamble.

23
As, Molalgn clearly explained, these articles covers, access, taking or using computer service,
causing damage to data, disrupting the use of computer services by an authorized user and other
related crimes.35
The 2004 Criminal Code of Ethiopian is composed of only six articles (Article 706-711) under the
scheme of „property crime‟ of Criminal Code which deals about computer crime. Generally, under
those provisions: accessing, accessing and taking or using data; accessing and deleting or altering; or
denial of service on computers, computer system or a computer network intentionally or negligently is
an act of computer crime.36

2.6.3. Computer crime in computer crime

proclamation
The main aim of this research paper is to know the real effect of the computer crime
proclamation and to give the possible recommendation for any interested one or entity. So as my
paper basically wants to appreciate the relation of computer crime proclamation with freedom of
expression, let’s see how computer crime is incorporated in this proclamation. From the above
discussion we have to see the short coming of criminal cod as less incorporation of computer
crime. This gap seems the basis for the enactment of new proclamation.
As we can infer from the preamble of this new proclamation, the justifications for the
promulgation of the proclamation are, the importance of information and telecommunication
technology for economic, social and political development of the country, to avoid vulnerability
of various computer crimes other security threats, because of the existing law is not adequately
tuned with technological changes and are not sufficient to prevent, control and investigate
computer crimes.37 The Proclamation deals with a host of issues, ranging from illegal access to
computer system (also known as hacking) to disseminating spam and combating child
pornography. However, it also creates a number of new criminal offences that are likely to
impact heavily on the enjoyment of the right to freedom of expression and other human rights,
by extending the reach of criminal defamation and creating various new criminal offences.38

35
Ibid, article 706-711
36
Supra not, 21.
37
Supra note, 6, at preamble.

38
ARTICLE 19,Ethiopian : computer crime proclamation,p.2; In a country that has in recent years seen the
imprisonment of various bloggers, journalists and human rights activists in apparent contravention of international
human rights law, this creates a serious concern as to the future protection in Ethiopia of the right to freedom of
expression online.

24
 Within its 46 articles, it tries to incorporate strong substantive and procedural measures of
computer criminal offences, which may be creates fear for online communication because of all
offences proclaim as they will be sanctioned by imprisonment and by providing far reaching
investigation power including surveillance by law enforcement agencies.39

CHAPTER THREE

FREEDOM OF EXPRESSION
Introduction
On the next sub topic we will see the nature, definition and the justifications given to the main reasons
behind for the need of freedom of expression internationally, in the regional level and on the perspective
of other Ethiopia’s national laws. In this sub section the justification given by different authors including
commentaries United Nation special agencies will be seen.

As we know freedom of expression is not an absolute right, there may be restrictions and limitations in
different grounds like national security and public health and peace, within the requirement of legality,
proportionality and legitimate aim. so the last section of this chapter will be discussed on the limitations
of exercising freedom of expression, that are stipulated in the international instruments that Ethiopia is a
party, regional conventions and national law of our country, will also discussed.

39
Ibid

25
 3.1. General Overview of Freedom of expression

The modern roots of freedom of expression may be found in the struggle for the freedom of
speech for legislators during the 17th century. Sweden & inland was one of the forerunners of
giving legal guarantees to the freedom of speech in the 18th century.40 The UN Charter obliges all
Member States in the promoting and encouraging respect for human rights and for fundamental
freedoms. These human rights are well spelt out in the Universal Declaration of Human Rights.
At the apex of international human rights instruments lies the Universal Declaration of Human
Rights of 1948. Its provisions dealing expressly with freedom of expression are set out in Art 19,
which states:41
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impact information and ideas through any
media and regardless of frontiers.

Freedom of expression is a fundamental right protected under article 19 of UDHR, article 9 of African
charter, Article 10 of the European Convention on Human Rights and in other International instruments
(ICCPR….). This right is very important and basic right to exercise other human and democratic rights.
In his 1998 report to the U.N. Commission on Human Rights, the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression outlined the case against
government regulation of Internet access and content as follows: "The new technologies and, in
particular, the Internet, are inherently democratic, provide the public and individuals with access to
information and sources and enable all to participate actively in the communication process.42

After many terrorist attacks like 9/11 and many countries try to adopt mew anti-terrorist laws and
policies that ultimately may restrict the enjoyment of freedom of expression. “In 2015, The rise of
Daesh, Responsible for terrorist attacks in Iraq, Syria, France, Turkey And Tunisia To mention a
few, has led governments to adopt additional measures, including the promulgation of state of
emergency, and new anti-terrorism and surveillance laws.”43 There is increasing numbers of cases
presented for judges which are speech related crimes, directly related with freedom of
expression, in the ground of national security.44 So freedom of expression is now become to be
40
Ronald Kakungulu, Internet Censorship and Freedom of Expression, Glasco caldonien University, 2008, p.2
41
Ibid.
42
Rikke Frank Jørgensen, internet and freedom of expression, Raoul Wallenberg Institute, 2001, p.4.
43
Dr.Agnes Callamard, freedom of expression and national security, Colombia University, 2015, p.1.
44
Ibid

26
compromised by the adoption of different national laws for the purpose of counter terrorism and
related reasons.

3.1.1. Definition of freedom of expression

Freedom of expression is a basic human right which recognizes the individual’s right to
express what they want to express in any media they want, in verbal, in written form, in visual,
picture or in any other means. Freedom of opinion and expression are rights which uniquely
enable us to promote, protect and fulfill all other human rights. The rights enable us to expose,
communicate and condemn human rights abuses. They also permit the celebration of human
rights achievements. In other simple word it is the freedom of every person to exercise their own
mind in the manner they choose and to express the resulting views and beliefs. Toby Mendel also
defined as the fundamental human right and justifies it as “It is a lynchpin of democracy, key to
the protection of all human rights, and fundamental to human dignity in its own right.”45

On the other hand “Freedom of expression is a brave stand towards the prohibition of certain
words, terms or expressions, particularly if mockery and offensive styles were avoided with
various topics such as religion, politics, community issues, etc.”46 The doctrine of freedom of
expression is generally thought to single out a class of "protected acts" which it holds to be
immune from restrictions to which other acts are subject. 47 So freedom of expression is the
fundamental human right which is the basic right for exercising of other human and democratic
right with its legal restrictions. “Freedom of expression is broadly understood as the notion that
every person has the natural right to freely express themselves through any media and frontier
without outside interference, such as censorship, and without fear of reprisal, such as threats and
persecutions.”48

45
Toby Mendel, Restricting Freedom of Expression: Standards and Principles, Center for law and democracy, p.1.

46
Dr. Hiyam S. Ensour, Hidden Crimes: Freedom of Expression on the Internet, Patra university,
Jordan, Vol. 4, No. 12, December 2013, p.934.
47
Thomas Scanlon, A Theory of Freedom of Expression, Philosophy and Public Affairs, Vol. 1, No. 2. (Winter,
1972), pp. 204-226
48
United Nation Educational, scientific and Cultural Organization, Freedom of Expression Toolkit A Guide for
Students, France communication and information sector, 2013, p.9.

27
 3.1.2. Nature of freedom of expression
Freedom of expression is not only a cornerstone of democracy but also the basis of other rights
and freedoms in general. “In its very first session in 1946, before any human rights declarations
or treaties had been adopted, the United Nations General Assembly (UNGA) adopted resolution
stating:

‘Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United
Nations is consecrated’.”49

Though freedom of expression is not an absolute right, subject to restrictions in some grounds,
is the very fundamental right, which is the very corner stone for the exercise other right. This
means every human and democratic rights should be exercised by the instrumentality of freedom
of expression. For instance, the right of belief, thought, religion and opinion may be exercised
through expression. In democratic right like the right to assembly, demonstration, petition,
association, and other individual and group rights may not exist in real sense without freedom of
expression. “The European Court (the Court) has described freedom of expression as one of the
essential foundations of a democratic society, one of the basic conditions for its progress and for
the development of every man.”50
In the publication of International Center Not-for-profit-Law (ICNL) freedom of expression
has six distinct characteristics,51firstly, freedom of expression is applicable for everyone
anywhere without discrimination with regarding to age, nationality, opinion, color, sex, politics,
and other criteria’s.52 So no one will be denied this fundamental right based on the above
grounds. Second regardless of geographical considerations, Ethiopian or Sudanese or any one
will entitle this right without applying the nationality of thee person. Third, freedom of
expression in its substantive elements may be many, this means it may constitute or encompasses
idea of all kind. Fourthly, it incorporates both the right to transfer and receive information or
idea. In other word both the speaker and the listener or the mere observer and the demonstrator
are equally protected. Fifthly, freedom of expression imposes positive obligation on the signatory

49
Dr. Damas Daniel Ndumbaro, The Cyber law and Freedom of Expression: the Tanzanian perspectives, Open
University of Tanzania, Tanzania, p.1.
50
Supra note 42.
51
International Center Not-for-profit-Law (ICNL), The Right to Freedom of Expression, Restrictions on a
Foundational Right, a quarterly review on NGO legal trends around the world, VOLUME 6, ISSUE 1,
p.3.
52
Ibid.

28
of ICCPR, states should be in the position of making suitable laws for their people in order to
exercise this fundamental right. On the other hand states should take available remedy for the
interference of rights of individual in the exercise of freedom of expression. The last
characteristic of freedom of expression is the manner of dissemination; it can be disseminated
through any media, as the right holder chooses. We know that now a day’s there are many
manner and way of expressions; in visual or in verbal through Radio, TV, E-mail, face book,
Twitter and others.

3.2. Justifications for the Need of Freedom of expression

When we came to the justification of freedom of expression United nation educational, scientific
and cultural organization, on the student guide toolkit try to reason out why freedom of
expression is so important as follows,

There are many reasons why proponents of freedom of expression care so much about it. While
there are myriad of opinions concerning freedom of expression, at the core of the matter there is a
consensus that countries and their people can only truly progress and develop if there are free and
open outlets of expression. Also, on a psychological level, it has been argued that need to express
ourselves is a universal human condition—and we humans have been expressing ourselves for a very
long time.53

As we can understand from the above extract freedom of expression is essential for true
progress and development of countries as well as their peoples, it is universal human
condition. Different scholars try to justify freedom of expression; for instance the non-
consequentialist and consequentialist’s justification as democratic participation Vs autonomy
and discovery of truth Vs personal development respectively.54

Among the justifications given by different scholars the dominant one is the argument of
consequentialists, double – grounded justification. On this class of argument there are two
justifications of freedom of expression; democratic participation and autonomy. As we know

53
Supra note, 9, p.13
54
‘Justification for freedom of expression’,
<https://www.researchgate.net/publication/273776741_Justifications_of_freedom_of_speech>, [last
accessed December 20/2017].

29
that democratic participation will never be exercised without the presence of this fundamental
right, Democratic participation is one justification of freedom of expression. The other
justification given by Devrim kabasakal badamchi is autonomy that means the right to self
government of individuals or freedom to act or function independently whatever the right
holder has.55

On the other hand united nation educational, scientific and cultural organization, on the student
guide toolkit, identifies four major ways of importance of freedom of expression 56. First it is
useful for individuals to take out or use their potential, this means it can insure individuals to self
fulfillment. The second is the search for truth and the advancement of knowledge; in other
words, “an individual who seeks knowledge and truth must hear all sides of the question,
consider all the alternatives, test his judgment by exposing it to opposition, and make full use of
different minds”57. Third, freedom of expression is important for people to be able to participate
in the decision-making process, especially in the political arena. If there is mal practice in the
decisions-making process and other political life of the state, everybody can know about the
presence of these facts as it is very sensitive aria for public interest. Finally, freedom of
expression is so important to achieve stability and adaptability of the state, why because when
everyone entitles to express anything what he feels and discussed, there may no way to
revolution as well as instability.
Human right committee in its general comment No 34 hardly discussed on the importance of
freedom of expression as a necessary condition for the realization of principles of transparency
and accountability that are, in turn, essential for the promotion and protection of human rights.58
As a conclusion freedom of expression is essential for the search of truth, democratic
participation, and personal development of individuals as well as stability and adoptability of the
countries.

55
Ibid
56
Supra note 14.
57
Ibid
58
International covenant for civil and political rights, Freedom of opinion and expression, Human right
committee, 102nd session, general comment 34, Geneva, 11-29 July 2011, paragraph, 2-4. …Among the other
articles that contain guarantees for freedom of opinion and/or expression, are articles 18, 17, 25 and 27. The
freedoms of opinion and expression form a basis for the full enjoyment of a wide range of other human rights. For
instance, freedom of expression is integral to the enjoyment of the rights to freedom of assembly and association,
and the exercise of the right to vote.

30
3.2.1. Freedom of expression uder International instruments
Freedom of expression is universally recognized since, the promulgation of the first human
right instrument in 1948; UDHR under article 19. And also it is the basic right which found in
any International as well as Regional human right instruments like, article 9 of African charter,
Article 10 of the European Convention on Human Rights and in other International instruments
(ICCPR, ICESCR….).
Freedom of expression is a fundamental right under British law, as well as under European Union
law and international human rights law. In particular, freedom of expression is protected by Article 10
of the European Convention on Human Rights. This is part of the law of England, Scotland and Wales
because it is included in the Human Rights Act 1998. The right to freedom of expression is also a
fundamental common law right.59
As we can infer from the above statement, freedom of expression is not seen differently from the
other human rights in European convention and in inter American legal system, but as a basic
right for other rights in any states of the universe. The African charter on human and people’s
right, under article 9, gives recognition as follows.

1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within the law. 60
For the election of Special Rapporteur on Freedom of Expression, The Inter-American
Commission on Human Rights (IACHR) at its 151st session, trays to ask about freedom of
expression in inter-American perspective. From the candidates, Professor Edison Lanza in his
speech says that, “according to various instruments of the Inter-American system of human
rights and consistent jurisprudence of the Inter-American Court of Human Rights, freedom of
expression is characterized as having an individual as well as a collective dimension.” 61 He
fatherly elaborated this concept as the individual dimension of freedom of expression is the right
of individual to express what they want to express and what they feel, on the other hand the

59
Equity and Human Right Commission, freedom of expression, <www.equalityhumanrights.com>, [last accessed
November 28, 2017], p.5.
60
African charter on human and peoples right, 1981, at <http:// www.africanunioncharter.ogr,> [last accessed
November 28, 2017], p.4.
61
Professor Edison Lanza address to the Inter-America commission on human right, special Raporteur election
(may 3, 2015). At WWW...

31
collective dimension of freedom of expression refers to individuals right to obtain and accept
information’s from the others.

3.2.2. Freedom of expression in Ethiopian legal system

3.2.2.1. under FDRE Constitution

Because of Ethiopia is a signatory of international human right instruments and accepted these
rights as integral part of its law under article 9(4) of its constitution, and the manner of
interpretation of fundamental human rights is based on International human right instruments
from which Ethiopia is a party, article 13(2) of the same constitution, freedom of expression is
indirectly recognized and accepted in our legal system.62

As per article 29 freedom of expression is broadly appreciated and recognized as everyone is

entitled without distinction to express any idea without fear in any media he wishes. In sub
article 2 of the same provision declare that right of freedom of expression may consists other
specific right that are directly related with freedom of expression like, right to seek, receive, and
impart any kinds of information.63

In article 29(6) freedom of expression may not limited based on contents and effect of any point
of view it expresses, except some main purposes, for protection of the well-being of the youth,
honor and reputation of individuals. 64 So as per this provision freedom of expression is
fundamental democratic right in Ethiopian constitution, which is the supreme law of the land.
Despite the fact that the presence article 29 gives broad right for freedom of expression, any
inconvenience or difficulty of interpretation will be seen in line with International human right
instruments from which Ethiopia is a party.65

3.3. Limitations on Freedom of expression

Freedoms of opinion and of expression constitute the cornerstone of any democratic society
and a solid and fundamental basis for development. Indeed, the right that guarantees freedom of
expression is widely seen as underpinning all other human rights and democratic freedoms. If the
individual does not have the right to freely seek, receive and impart her ideas and opinions, she
62
Supra note, 32, article 29(2)
63
Ibid.
64
Ibid.
65
Supra note 22, article 13(2).

32
will also not be able to benefit from her other human rights. This also has consequences for the
right to freedom of thought, conscience and religion as laid down in Article 18, of UDHR, for
without freedom of expression, as a fundamental principle, this right cannot be practiced.
Despite its importance, freedom of expression is not an absolute right, and there are a number
of situations in which the right can be limited. However, the process of limiting freedom of
expression (or any other human right) cannot be done without proper justification. UDHR in
article 19 lay down restrictions on rights and freedoms that are recognized in its articles. These
restrictions more discussed by Mohamed Saeed M. Eltayeb as follows,
While Article 19 of the UDHR does not specifically provide for prescribed limitations on freedom of
expression, it does provide a general limitation clause in Article 29, which applies to all the rights
and freedoms set forth in the UDHR, including the right to freedom of expression (Eltayeb 2012, 97).
Article 29 stipulates two essential criteria in order for the limitation to be legitimate: (1) it must be
determined by law and (2) it must be enforced solely for one or several of the purposes mentioned in
the Article.5 The “purposes” include securing “due recognition and respect for the rights and
freedoms of others” and protecting morality, public order, and the general welfare of a democratic
society.66

As we can understand from the above extract this fundamental right may be limited on the
ground of due recognition and respect for the right and freedom of other and protecting public
order and morality. On the same fashion article 19(3) of International Covenant for civil and
political right (ICCPR), freedom of expression may be restricted on the basis of respecting of the
rights or reputations of others and for the protection of national security or of public order, or of
public health or morals.67 These limitations and restrictions also recognized in different regional
and national human right instruments. For instance the African charter in its article 27(2) try to
stipulate the purposes of limitations, as these rights and freedoms shall be exercised with due
regard to the rights of others, collective security, morality and common interest.68
There are principles applicable in case of restriction or limitation of rights like freedom of
expression; first it should be based on the law (principle of legality). If the restriction or
limitation is without basis of the existing law it will be illegal and against the principles which is
stipulated in UDHR and ICCR which are international binding instruments. “In order for a law

66
Mohamed Saeed M. Eltayeb, the quest for permissible limitations on freedom of expression, University of
Birmingham, volume 13, no1, England, March 2013, p.70
67
International covenant for civil and political rights
68
Supra note, 21, article 27(2).

33
limiting freedom of expression to pass this test it must be unambiguously established by pre-
existing law that the right may be limited.”69
Second the restriction should be for the legitimate aim by international standards, though it is
governed by national laws the aim of restriction should legitimate one. Legitimate aim
exhaustively enumerated in Article 19(3) of the ICCPR as respect of the rights or reputations of
others, protection of national security, public order, public health or morals. As such, it would be
impermissible to prohibit expression or information solely on the basis that they cast a critical
view of the government or the political social system espoused by the government. Legitimate
aim is more elaborated in South African litigation center’s manual Series as follows;
Step 2: Serving a legitimate purpose
Most national constitutions and international and regional instruments include a
list of legitimate purposes for limiting the right to freedom of expression within
the text of the right. As long as the law limiting the right was enacted to serve
one of the interests listed
in the instrument, it will pass this stage of the limitations analysis.
Article 19(3) of the ICCPR provides for two possible types of restriction:
“The exercise of the rights provided for in paragraph 2 of this article carries with
it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public) or of
public health or morals.” 70

Third, the restriction or limitation should be proportional and necessary to the right restricted.
For simple matters, that may compromised, freedom of expression should not be restricted. The
restriction should be necessary for achieving the purpose of limitation. In General Comment 34,
the Human Rights Committee additionally noted the factors that should be taken into account as
proportionality and necessity:

“When a State party invokes a legitimate ground for restriction of freedom of

expression, it must demonstrate in specific and individualized fashion the precise
nature of the threat, and the necessity and proportionality of the specific action
taken, in particular by establishing a direct and immediate connection between
the expression and the threat.”71

Generally Human right committee in its general comment recalls that, “when a State party
imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the
69
Southern Africa Litigation and Centre Media Legal Defense Initiative , Freedom of Expression: Litigating Cases of
Limitations to the Exercise of Freedom of Speech and Opinion, South Africa, 2016, p, 20.
70
Ibid, p, 22
71
Supra note, 58, Para, 35.

34
right itself.”72 As a conclusion freedom of expression is subjected to restrictions and limitation in
international as well as national human right instruments but in a limited manner, the restrictions
or limitations should be applied narrowly.

CHAPTER FOUR

THE IMPACT OF ETHIOPIAN COMPUTER CRIME

PROCLAMATION N 958/2016 ON FREEDOM OF
EXPRESSION
4.1. Introduction
This chapter will going to assess the possible implication of this new computer crime
proclamation. In this chapter we will see what is incorporated in the Ethiopian computer crime
proclamation No 958/2016 and we will see the possible impact of these articles on the freedom
of expression. The conclusion and recommendation of the research also incorporated here in this
chapter.

4.2. Ethiopian computer crime proclamation No 958/2016

This New computer crime proclamation was adopted in Jun 2016 by the justification given on
its preamble as, technology play vital role for the economic, social and economic development of
the country. The possible danger for lack of the rule on these computers right also discussed on

72
Id., Paragraph. 21.

35
the second paragraph of the preamble as the utilization of information communication
technology is vulnerable to different computer crimes that can affect the development of the
country and endanger individual rights.73

The proclamation also shows that the existing law is not adequately formulated for the
preventation, control, investigation and prosecution of the suspects 74 of the new crimes that can
emerge because of the changing of technology, like computer crime, and justified the
promulgation of the new computer crime as for gap filling rule and remedy for above
difficulties.75

The Proclamation ostensibly aims to remedy this by creating new criminal offences related to
Computer crime, providing strong investigatory powers to law enforcement agencies, laying
down rules of evidence and clarifying the roles of various government agencies involved with
the prevention and detection of computer crime .76

As we can understand from the above extract the legislature believes that gaps in the existing
laws for computer crime may be solved by creating the new criminal offences and by giving
strong and wide investigatory power to executive organ. The new criminal offences included
ranging from illegal access of computer system, data and network /that is hacking/ to the
dissemination of child pornography.77 Specifically, in part two section one of the proclamation
Crimes against computer system and computer data, in section two, computer related forgery,
fraud and theft and in section three, illegal content of data, in section four other offences are
introduced.78

In part three of the proclamation prevention and investigation measures, in part four evidentiary
and procedural provisions, in part five the institutions that can follow up the case of computer
crime are identified and the last part of the proclamation is part six that is miscellaneous
provisions incorporated. Generally, the proclamations within its six parts it tries to incorporate all
substantive and procedural/evidentiary provisions.79

73
Supra note, 6, Para. 1-2
74
Ibid.
75
Ibid.
76
Supra note, 1, p.5.
77
Supra note, 75
78
Supra note, 72, article 3-20.
79
Ibid.

36
4.3. The importance of the proclamation
Though Ethiopia has come up with the National Information and Communication Technology
Policy and Strategy in 2009 (ICT Policy) and Criminal Justice Policy of 2011 80, it is not
sufficient for the protection of ever increasing computer crimes. So the importance of the
proclamation is very clear and wide for the country.

As we know every proclamation has its very purpose which needs to be achieved, this
proclamation also in its preamble, shows as the possible importance of it, if it applied perfectly.
From the issues discussed on its preamble the proclamation may be important for social, political
and economical development of the country by supporting the role of information and
communication technology.81 On the other hand it is very important for taking appropriate
protection and security measures on crimes of utilization of information communication
technology that can impede the overall development of the country and individual rights.82

It is also important for filling the gap between the existing laws and new crimes which are the
result of new technological changes and to incorporate new legal mechanisms and procedures in
order to prevent, control, investigate and prosecute computer crimes and facilitate the collection
of electronic evidences.83

As a conclusion the need of this computer proclamation is undisputable for the preventation,
control and investigation of computer crimes in Ethiopia that was not widely governed by other
rules. This means there was no distinct part of law that governs computer crimes.

4.4. The Negative Impact of the proclamation on the freedom of expression

This is the crucial part of the research, which will examine the real impact of each provisions of
the proclamation with the fundamental human rights; freedom of expression. As the research
objectives of this thesis the appreciation of the articles of the proclamation in positive or negative
ways is mandatory to answer the central and specific questions. The importance or the positive
parts of the proclamation is justified in the above sub title with the particular reference of the
preamble of the proclamation and in the general aim of the proclamation the needs to achieve.

80
Molalign, p.97
81
Ibid, Para. 1
82
Ibid. Para. 2
83
Ibid, Para 3-4.

37
When we came to assess the negative impact of this proclamation within its articles for freedom
of expression, we can start from the preamble paragraph two, it says,

WHEREAS, unless appropriate protection and security measures are taken, the utilization of
information communication technology is vulnerable to various computer crimes and other
security threats that can impede the overall development of the country and endanger
individual rights; 84

This proclamation is in the way of creating computer crimes, but as we can see on the above
preamble the crimes may be created by interpretation which is very open for affecting freedom of
expression. The proclamation did not have answer what is ‘various computer crimes and other
security threats’ mean, in the preamble. Any threats or crimes may be the part of computer crime
by way of interpretation. This specific preamble will give for the investigative body or to the
court the power to create crimes by interpretation. The general principle of criminal law
provides, crimes may not be created by analogy, or any act which is not clearly stipulated as
crime may not be punishable.85 But, the proclamation under scrutiny in its preamble, paragraph
two provides a term ‘other security threats’ a deep perusal of this term shows that it will give
wider power of interpretation for creation of crime and wider power of surveillance of
individual’s privacy and it will possibly affect freedom of expression.

On the other hand in the definition part of the proclamation article 2(1) (b) and (c) the means
and content of the data is included as a constituting elements of computer crime which is clearly
against the FDRE constitution and International human right instruments which empowers
individuals a freedom to express their idea in any means that they deem proper. And the content
of the expressed idea will not be used as a ground for restriction or prohibition. As far as the
means and content of expressing once idea is concerned article 19 of UDHR and article 29(6) of
FDRE constitution provides guarantee respectively as follows;
Article 19.
 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.86

Article 29(6)
6. These right can be limited through laws which are guided by the principle that freedom of
expression and information cannot be limited on account of content or effect of point of view
expressed…. 87

From the cumulative reading of the above articles can infer that the content of the data and media
of communication are free from being restricted.
84
Ibid.
85
FDRE Criminal Code, proclamation No 414/2004
86
Universal declaration of human right, 1948, article 19.
87
FDRE constitution, article 29(6)

38
 Furthermore, under article 29(2) and (6) of the FDRE constitution provides the right to
freedom of expression may not be limited on account of content or effect of point of view. So in
the existence of this international and national mandatory human right instrument the
criminalization of acts based on means of communication and content of the data seems against
the constitutionally guaranteed rights and customary international law/UDHR/.

On the other hand as per article 2(3) of the proclamation, the definition given to computer and
computer system that include its accessory is open to interpretation and vague, which do not
show clearly what it mean by an accessory of the listed devices. Is accessory is flash, connector,
hard disk or what? And the definition given to computer data in article 2(4) and content of data in
article 2(7) are wide and open for abuse the right of freedom of expression.

As per, article 19 of UDHR, article 19(2) of International covenant for civil and political right, as
well as in FDRE constitution, article 29(2), everyone is entitle to seek, receive and impart any
information. But in our computer proclamation the concept of interception in article 2(12)
broadly defined and the ‘word similar’ act in the definition of interception will possibly affect the
enjoyment of right of freedom of expression. Let’s see it;

12/ “interception” means real-time surveillance, recording, listening, acquisition, viewing, controlling
or any other similar act of data processing service or computer data;88

Based on the aforementioned article, the right to seek, receives and impart information or
expressions may be limited by the broad interpretation of the word interception. Because this
definitional article is purposely stipulated for surveillance of individual rights based on article 14
of the proclamation, on which crimes will possibly created by interception. Without interception
of individual secured data, there is no way, the investigatory body to know about the individual’s
act of breaching article 14 of the proclamation.

The following extract discussed about the UN Special Raporteur from the ARTICLE 19 free
world center, which will support my next discussion.

The UN Special Raporteur on the promotion and protection of the right to freedom of opinion
and expression elaborated on the regulation of online speech in two reports in 2011.23 In his
September 2011 report, the Special Raporteur clarified the scope of legitimate restrictions on
different types of expression online and identified three different types of expression for the
purposes of online regulation: expression that constitutes an offence under international
law and can be prosecuted criminally; expression that is not criminally punishable but may
justify a restriction and a civil suit; and expression that does not give rise to criminal or civil
sanctions, but still raises concerns in terms of tolerance, civility and respect for others.24
The Special Reporter clarified that the only exceptional types of expression that States are
required to prohibit under international law are: (a) child pornography; (b) direct and public
incitement to commit genocide; (c) hate speech; and (d) incitement to terrorism.

From the extract we can infer that three types of expressions; the first one, may be
criminalized, the other may be restricted and may and the last one may be tolerated from the
88
Supra note, 71, article 2(12).

39
other liability. States also prohibited from restricting acts, but there is exception for this
principle; child pornography, direct and public incitement to commit genocide, hate speech and
incitement to terrorism. But our proclamation in article 14 in crimes against public security there
seems the contradiction between the UN special Raporteur comments. Let’s see it.

14. Crimes against Public Security

Without prejudice to the provisions Article 257 of the Criminal Code of the Federal Democratic
Republic of Ethiopia, Whosoever intentionally disseminates through a computer system any written,
video, audio or any other picture that incites violence, chaos or conflict among people shall be
punishable with rigorous imprisonment not exceeding three years. 89

We know that the restriction or limitation of freedom of expression should be interpreted or

applied narrowly, for specific reasons. For instance in FDRE constitution the right to freedom of
expression may be limited in order to protect the well being of the youth, and the honor and
reputation of individuals, to avoid propaganda for war and for protection of human dignity only.
But in the above article of the proclamation any form of dissemination in computer is going to be
limited or criminalized. This means the proclamation trays to incorporate computer crimes
broadly than the constitution. But these acts should be tolerated by the government for the
realization of fundamental human rights like freedom of expression as it was commented by the
UN Special Raporteur and General comment 34. The General Comment 34 in paragraph 11 it
says; “… The scope of paragraph 2 /freedom of expression/ embraces even expression that may
be regarded as deeply offensive…” this90 means freedom of expression should not be restricted
even if it is deeply offensive which may be interpreted for the incitement too. So when we
conclude this idea article 14 of the Ethiopian computer crime proclamation is not in line with
International instruments like UDHR and ICCPR as well as general comments including FDRE
constitution.
On the other hand this article restrict the right of individuals or criminalized acts based on the
possible consequences or possible outcomes which is clearly prohibited in article 29(6) of the
FDRE constitution. This article provides“…information cannot be limited on account of content
and effect of the point of view expressed….” 91 But article 14 of the proclamation seems
restricting freedom of expression on the basis of effect expression.

89
Supra note, 85, article 14.
90
Supra note, 58, Para, 11.
91
FDRE constitution, article 29(6).

40
 The other issue is the service providers or intermediaries, whose act is criminalized in article 16
of the proclamation, which is very important issue to discuss.

16. Criminal Liability of Service Providers

A service provider shall be criminally liable in accordance with Articles 12 to 14, of this Proclamation
for any illegal computer content data disseminated through its computer systems by third parties, if it
has:
1/ directly involved in the dissemination or edition of the content data;
2/ upon obtaining actual knowledge that the content data is illegal, failed to take any measure to
remove or to disable access to the content data; or
3/ failed to take appropriate measure to remove or to disable access to the content data upon
obtaining notice from competent administrative authorities.92
The definition of service provider also stipulated in article 2(13) as follows;

13/ “service provider” means a person who provides technical data processing or communication
service or alternative infrastructure to users by means of computer system:93

The service provider in the above articles is obliged know the userr s content of data which is
against the privacy of the user and which will ultimately affect the right of freedom of
expression. Because without the right to privacy, the realization of freedom of expression may be
symbolical only, which may be difficult to attain the effort of international, regional, instruments
and national laws. This provision also putting individuals in the position of restricting the
rights /the right to privacy as well as freedom of expression / of others, which is very undesirable
or impermissible in human right perspective even for the states itself. This obligation on the
service provider’s may not be applied unless they breach individual’s privacy when they try to
check the content of data, whether it is illegal or legal, and this act will affect individuals security
information to transfer for any one they wishes to transfer.
On the other hand in the general principle of criminal law an individual to be criminally liable
there should be three cumulative requirements; legal, material and moral damage. But in the case
at hand the moral damage of the service providers is based on the power of infringing others
privacy, which is ultimately affect the right to freedom of expression of the users.
In article 19 of the proclamation, which constitute the concept of concurrency of crimes, also has
the same impact, with that of article 14 of the proclamation. If we made article 14 of the

92
Supra note, 88, article 16.
93
Supra Note, article 2(13).

41
proclamation invalid or void, this article also against the principles and rules that I have
discussed.
19. Concurrent Crimes
Where any of the criminal acts provided for under this Part has resulted in the commission of
another crime punishable under any special law or criminal code, the relevant provision shall apply
concurrently.94

4.5. Conclusions
From the findings of this study it can be concluded that the Ethiopian computer crime
proclamation has its positive impact in most of its articles, and has negative implication on the
freedom of expression on some of the provisions that I have raised on the above sub-titles.
The positive sides of the proclamation that I have raised in sub title ‘the importance of the
proclamation’ are very important for the state criminal prevention, which may come because of
the change of technology. And I have appreciated this proclamation for the protection of state
security as well as individual’s dignity and for many more.
As we know UDHR gets international customary law status these specific articles of the
computer proclamation, which I have discussed above will make the proclamation against
international customary norm /juiscogence norm/ and also with the international human right
instruments like; ICCPR which Ethiopia is a party. Furthermore these articles will also made the
overall proclamation against regional human right instrument, which Ethiopia is a party; African
Charter on Human and Peoples Rights.
In addition some wordings of the proclamation and these specific articles specially, article 2(1),
article 2(3), article 2(12), article 14 and article 16 are not in line with the FDRE constitution and
other aforementioned international instruments. Article 19 of the proclamation also unsuitably
stipulated with the right to freedom of expression for the reason that I have raised above.
.

94
Supra note, article 19.

42
4.6. Recommendations
 Some of the articles of the proclamation shall be reviewed and shall be adjusted in the
ways of protecting the right of freedom of expression.
 Specific articles like; article 2(1), article 2(3), article 2(12) and article 14 shall be avoided
and redrafted.
 Article 16 should be made service providers liable, if they actively participate in the
dissemination of the illegal content of computer data only.
 As the supreme law of the country Ethiopia and guaranty of people’s human right, the
FDRE constitution should be carefully observed for the interpretation of article 2(1),
article 2(3), article 2(12), article 14 and article 16 of the proclamation.
 Article 19 should be removed.

43
4.7. References

Books

 David Robertson , Human right Dictionary, 3rd ed., London and New work, 2005

 Dr.Agnes Callamard, freedom of expression and national security, Colombia University,

2015, p.1.
 Dr. Damas Daniel Ndumbaro, The Cyber law and Freedom of Expression: the Tanzanian
perspectives, Open University of Tanzania, p.1.
 M.E Kabay, A Brief History of computer crime: An Introduction for Student, university
of Norwich, Norway.
 Michael Kunz & Patrick Wilson, Computer crime and computer fraud, University of
Maryland, USA, 2004.
 Pearce D, Campbell E and Harding D, Australian Law Schools: A Discipline Assessment
for the Commonwealth Tertiary Education Commission, Australia, 1987.
 Regulation of Cyber Space: An Analysis of Chinese Law on Cyber Crime’, International
Journal of Cyber Criminology, December 2015, Vol. 9.
 Rikke Frank Jørgensen, internet and freedom of expression, Raoul Wallenberg Institute,
2001, p.4.
 Southern Africa Litigation and Centre Media Legal Defense Initiative, Freedom of
Expression: Litigating Cases of Limitations to the Exercise of Freedom of Speech and
Opinion, South Africa, 2016, p, 20.

 UN office of high commission for human right’, The hand book on human right, 1997.
 United Nation Educational, scientific and Cultural Organization, Freedom of Expression
Toolkit A Guide for Students, France communication and information sector, 2013, p.9.
Websites

 African charter on human and peoples right, 1981, at <http://

www.africanunioncharter.ogr,> [last accessed November 28, 2017], p.4.

 English dictionary” at <http://wiktionary.org> [last accessed on October 20/2017].

44
  Equity and Human Right Commission, freedom of expression,
<www.equalityhumanrights.com>, [last accessed November 28, 2017], p.5.
 Justification for freedom of expression’,
<https://www.researchgate.net/publication/273776741_Justifications_of_freedom_of
_speech>, [last accessed December 20/2017].

Journals
 Ethiopia: Computer Crime Proclamation’, ARTICLE 19 Free Word Centre, July 2016.
 Mohamed Saeed M. Eltayeb, the quest for permissible limitations on freedom of
expression, University of Birmingham, volume 13, no1, England, March 2013, p.70
 Thomas Scanlon, A Theory of Freedom of Expression, Philosophy and Public Affairs,
Vol. 1, No. 2. (Winter, 1972), pp. 204-226.

Laws
 Ethiopian Computer crime proclamation, 2016, Federal Negarit Gazzeta, pro No 958,
 FDRE constitution, August 1995, Federal Negarit Gazzeta, pro. No 1.
 FDRE Criminal Code, May 2005, Federal Negarit Gazette, Addis Ababa, pro. No
414/2004, preamble.

45