The Sky(pe) is Falling!
By Alemayehu Gebremariam
Most of my readers know how much I enjoy “bedtime stories”. Recently, I wrote about my favortie bedtime story of Pinocchio in Africa. Ever heard of the story of Chicken Little? One day Chicken Little was scratching around the yard when something fell on her head. “Oh,” screeched Chicken Little, “The sky is falling. I must go tell the king.”
Chicken Little ran and ran until she met Henny Penny. “Why are you running so fast, Chicken Little?” asked Henny Penny. “Ah, Henny Penny,” said Chicken Little, “the sky is falling, and I must go and tell the king.” Chicken Little and Henny Penny told the same story to Ducky Daddles, Goosey Loosey, Turkey Lurkey and Foxy Loxy along the way to the king’s house. “I know a shortcut to the palace,” said Foxy Woxy. “Come and follow me.” But the wicked Foxy Woxy led them right up to the entrance of his foxhole where he planned to dine on the fine feathered friends. Just as they were to enter the hole, they heard the king’s hunting dogs growling and howling. Foxy Woxy ran across the meadows and through the forests with the hounds on his tail. He ran until he was far, far away and never returned.
The story of Chicken Little illustrates the angst, hysteria and paranoia of the ruling regime in Ethiopia. The sky is always falling whenever dictator Meles Zenawi wants to tighten the screws on news and information reaching the people. In 2010, Zenawi justified electronically jamming Voice of America Amharic broadcasts by making the preposterously outrageous claim that the Voice of America was promoting genocide in Ethiopia: “We have been convinced for many years that in many respects, the VOA Amharic Service has copied the worst practices of radio stations such as Radio Mille Collines of Rwanda in its wanton disregard of minimum ethics of journalism and engaging in destabilizing propaganda.” In other words, the Voice of America is the Voice of Genocide, Rwanda. In February 2012, Lebanon’s Telecommunications Minister Nicolas Sehnaoui served a formal complaint on the ruling regime in Ethiopia and demanded an immediate end to the illegal practice of jamming Arabsat transmission of ESAT (Ethiopian Satellite Television) programming.
In the past year, Zenawi has been telling the world that he has caught and jailed some of the most dangerous and wild-eyed terrorists in Ethiopia today, including the incomparable Eskinder Nega, the 2012 winner of the prestigious Pen’s Freedom to Write Award, the indomitable Reeyot Alemu, a young woman journalist who won the 2012 International Women’s Media Foundation Courage in Journalism Award and the intrepid Woubshet Taye, managing editor of the now shuttered Awramba Times. Last week, in his statement in the Congressional Record, U.S. Senator Patrick Leahy noted that the ruling regime in Ethiopia has made it impossible for “journalists like Eskinder Nega to do their work of reporting and peaceful political participation.”
Zenawi has been running in overdrive trying to plug every nook and cranny by which Ethiopians could get news and information from independent sources. According to recent statements of Reporters Without Borders Africa (RWB), “The Ethiopian government is trying to attack every means of information exchange.” Ethiopia’s Chicken Littles are so paranoid that they are now requiring the printing presses over which they have total monopoly to censor newspapers printed in the country. Last month, Berhanena Selam, the largest regime-owned printer and other smaller printers were “trying to impose political censorship on media content before publication.” In a proposed “standard contract for printing”, these printers claimed they have the right to refuse to print any text if they determine they have “adequate reason” it breaks the law. RWB noted, “This [contract] openly contravenes article 29 of the 1994 federal constitution, which guarantees press freedom and bans censorship in any form…. Only an independent and impartial judge should have the power to impose any kind of sanction or prohibition affecting media freedom.” Nice try by RWB, but talking constitutional law to Zenawi and Co., is like preaching Scripture to a gathering of Heathen.
RWB further reported that the regime-owned internet service provider “Ethio-Telecom” had installed a system for blocking access to the Tor network, which allows users to browse and access blocked websites anonymously. According to data published by Tor, the highest number of Tor users in Ethiopia between March and June 2012 peaked at a little over 350 individuals! All of the trouble and expense to block fewer than 400 individuals out of 85 million from anonymously browsing the internet.
The Skype is Falling!
Skype and other internet-based phone call services and social media are popular among a microscopic segment of the younger set who have access to the internet cafes in the urban areas and affluent types who could afford a personal computer and internet service. But the number of users of Skype-type services is infinitesimally small and the available internet service in the country is limited, unreliable and retrograde. A 2010 Manchester University’s School of Education study cited in Freedomhouse’s Freedom on the Internet 2011 report (FFI 2011) found that “accessing an online e-mail account and opening one message took six minutes in a typical Addis Ababa cybercafe with a broadband connection.” Anyone who has made or received Skype calls to or from Ethiopia knows that it is like pulling teeth, an exercise in self-aggravation. Ethiopia is only second to Sierra Leone Internet for having the least internet penetration at 0.5 percent of that country’s 85 million population. Internet service is “almost entirely absent from rural areas” where 85 percent of the population lives, according to FFI 2011. Similarly, Ethiopia is the only country in Sub-Saharan Africa to impose nationwide, politically motivated internet filtering:
Although Ethiopia is one of Africa’s most populous countries, poor infrastructure and a government monopoly on telecommunications have significantly hindered the expansion of digital media. As a result, Ethiopia has one of the lowest rates of internet and mobile telephone penetration on the continent… The government has responded by instituting one of the few nationwide filtering systems in Africa, passing laws to restrict free expression, and attempting to manipulate online media. These efforts have coincided with a broader increase in repression against independent print and broadcast media since the 2005 parliamentary elections, in which opposition parties mustered a relatively strong showing.
Why would Zenawi want to send a citizen to the slammer for 15 years just for making a phone call using a computer phone? Informed commentators suggest that the “telecom fraud law” is motivated by the bottomless greed and consuming paranoia of those who cling to power in Ethiopia like engorged ticks on an African milk cow. Elizabeth Blunt, a former BBC correspondent in Ethiopia, explains that the telecom fraud law is intended to suppress competition by “Internet cafes [which] may be allowing people to make calls for far less than the cost of Ethiopia telecom, the state’s telecommunications provider that has the monopoly and charges very high prices – and doesn’t want to have its service undermined. But there is also the issue that Skype can’t be listened to so easily and can’t be controlled.” RWB is concerned that the latest paranoia which has caused the regime to “block access to Tor might be the first step towards creating a system that would allow the regime to intercept any email, social network post or VoIP call made in the country.”
The 2012 “Proclamation on Telecom Fraud Offences”
The now widely publicized “Proclamation on Telecom Fraud Offences” (PTFO) 2012 appears to be in draft form, despite reports to the contrary. The PFTO purportedly repeals provisions in Art. 25 of the Telecommunications Proclamation No. 49/1996 as amended by Proclamation No. 281/2002. But none of that amounts to a hill of beans because there has never been a draft “law” presented to Ethiopia’s rubber stamp parliament that has ever been rejected. Draft or no draft, for the rubber stamp parliament, Zenawi’s word is law. The rubber stamp parliament will blindly adopt the most nonsensical, illogical, ineffectual and immoral “laws” presented to it by Zenawi. Without a shadow of a doubt, the rubber stamp parliament will unanimously (at least by a margin of 99.6 percent) approve the PTFO . But what the hell is the PTFO?
It appears that the PTFO is another one of those haphazard and slipshod cut-and-paste jobs (similar to the so-called “Anti-Terrorism Proclamation No 652/2009) scarfed from the laws of other countries, arguably the U.S. The patches of vacuous phrases and empty clauses interspersed in the PTFO uncannily mimic certain U.S. anti-wire fraud statutes such as 18 U.S.C §§ 1343 (wire fraud), 1029 (fraud and related activity in connection with access devices) and 1030 (fraud and related activity in connection with computers). The U.S. laws, consistent with the presumption of innocence, require the government to prove knowledge, intent and willful participation of the accused in the fraudulent act or scheme using wires or electronic access devices.
The PTFO is completely oblivious of the most elementary requirements of any criminal law: the concurrence of intent (mens rea) and the commission of the criminal act (actus reus). For instance, under Part Two (2) of the PTFO, “whosoever uses or holds any telecommunications equipment without obtaining prior permit… shall… be punishable with rigorous imprisonment from 1 to 4 years…” Accordingly, “‘telecommunications equipment’ means any apparatus used or intended to be used for telecommunications services, and includes its accessory and software.” Under these tandem provisions, any person who “holds” a mobile phone, a child “holding” a toy Walki-Talkie, or any person who “holds” a laptop bundled by the manufacturer with communications sofware or encoded in the operating system or hardware without license from the Ministry of Communications would be looking at “1-4 years” in the slammer. (Obviously, those who drafted the “law” are clueless about the evidentiary distinction between “holding” and “possession”.) Arguably, anyone who uses a tin can phone (which is within the PTFO’s definition of “telecommunications equipment” since “electromagnetic” waves vibrate through the string connecting the cans) would be exposed to the same penalty. The PTFO is the kind of law Charles Dickens would have called “an ass, an idiot”.
On its face, the PTFO is a “law” made necessary by the alleged fact that “the legal provisions in the country are not sufficient to prevent and control telecom fraud.” Telecom services includes “cellular mobile service, internet data communication” and other “transmissions or receptions through the agency of electricity or electromagnetism (sic)…” Anyone who “manufactures, assembles, imports any communications equipment without permit” will be sitting in the penitentiary between 10-15 years in prison. Anyone who “uses or holds” such equipment is looking at 1-4 years. Anyone who provides “telecom service without license” will be locked up between 7-15 years. Anyone who “uses telecom network or apparatus to disseminate any terrorizing message connected with a crime with the anti-terrorism proclamation….” faces 3 to 8 years (Art. 6). Anyone who “obtains any telecom service without payment of lawful charge or by means of fraudulent payment” will be punished by “rigorous imprisonment from 5-10 years.” (Art. 7). Anyone who “establishes any telecom infrastructure” or “bypasses the telecommunication infrastructure other than the telecommunication infrastructure established by the telecommunication service provider (sic)” is subject to 10-20 years imprisonment (Art. 9). Anyone who “duplicates SIM cards, credit cards, subscriber identification numbers…” faces 10-15 years imprisonment. “Whoever provides telephone call or fax services through the internet commits an offense punishable by 3-8 years.” The person using the service will cool his heels in the clink for up to 2 years. (Art. 10, 10(3)).
Law Making in a Rubber Stamp Parliament
No one should see how sausages, or laws are made in Ethiopia’s rubber stamp parliament. Perhaps that is an overstatement. The fact is that “laws” are not made in Ethiopia’s parliament. They are rubber stamped. That parliament approves “laws” faster than a Chinese factory can crank out a T-shirt. But rubber stamping the will of one man does not a law make. As Shakespeare said, “Lawless are they that make their wills their law.”
The PTFO is a pitiful exercise in lawmaking. In substance and form, it is no different than the dozens of “proclamations” that have been approved by the rubber stamp parliament over the past decade. It is arbitrary, capricious, thoughtless, reckless and, and most of all, pointless. Having studied so many of these “proclamations” over the years, I am amazed and dismayed by what passes as lawmaking in Ethiopia’s parliament. In one of my recent commentaries on the cut-and paste anti-terrorism law proudly pirated from the laws of other countries, I stated: “I cringe in total embarrassment at such a stunningly shallow understanding of jurisprudence, glib talk about the law and inattention to a glaring logical fallacy in one’s argument.”
The deficiencies of the PTFO are not limited to lack of legislative purpose, policy substance or logical structure; they also extend to the cavalier, crude and clumsy approach to legislative draftsmanship. On its face, the PFTO is bereft of any elementary sense of proportionality, the simple idea that the punishment should fit the crime. How can any sensible legislator or executive propose to punish a citizen with 15 years hard labor for talking into a computer phone? This is not just inane, it is insane!
Equally important, the PFTO is unsupported by any discernible legislative need or justification. In its preamble, it states that “the legal provisions in the country are not sufficient to prevent and control telecom fraud.” But that claim is completely speculative and unsupported by any factual findings. There are no studies referenced – independent or regime-sponsored – which show the magnitude of the “internet fraud” problem or the alleged threat to “national security” posed by the improper or illegal use of the internet. There is no research or analysis supporting the proclamation. There is no expert testimony to support it and no opportunity has been made available for public comment or input. It is a “law” based purely on fear and smear.
Catching the Real Con Artists, Scammers, Swindlers and Fraudsters
There is plenty of evidence of massive fraud elsewhere that requires immediate and decisive action. Remember the 2008 cat burglars who heisted “USD$16 million dollars” worth of gold bars and simply walked out of the bank in broad daylight? Although the heist was widely believed to be an inside job and a number of suspects were fingered, no one was ever prosecuted. In 2007 when Ethiopia’s auditor general, Lema Aregaw, reported that Birr 600 million of state funds were missing from the regional coffers, Zenawi fired Lema and publicly defended the regional administrations’ ‘right to burn money.’” The ashes of that “burned money” were never found. In February 2011, Zenawi publicly stated that 10,000 tons of coffee earmarked for exports had simply vanished from the warehouses. He called a meeting of commodities traders and in a videotaped statement told them he will forgive them because “we all have our hands in the disappearance of the coffee”. They drank coffee, sang Kumbaya and went on their merry ways.
Last December, Global Financial Integrity reported, “Ethiopia, which has a per-capita GDP of just US$365, lost US$11.7 billion to illicit financial outflows between 2000 and 2009. In 2009, illicit money leaving the economy totaled US$3.26 billion, which is double the amount in each of the two previous years…” Now, there is a gigantic fraud problem crying out for a law and aggressive prosecution. Last month Zenawi mused philosophically, “What is the poison that leaders face when you go to national palaces, and transforms people with vision sometimes into ordinary thieves? Let’s start with the total amount of loot in Africa, and what our role as leaders in that looting is…” Great question! The man with the “vision of an Ethiopian Renaissance” should have a ready answer. But for the rest of us, a more mundane question is : Why not start the anti-fraud campaign by going after the looters who are looting millions from the national treasury and the army of looters illicitly laundering billions of looted dollars in foreign banks before hounding nickel and dime internet cafés which survive by peddling feckless Skype service for pennies?
The PFTO is wrong-headed and mean-spirited. Its sole aim is to suppress all communication technology the regime believes could be used to provide the people access to indepednent sources of information and news. The infinitesimally small number of Skypers use the service to talk to family members and friends abroad. They pose no threat to anyone. The threat of arrest and harassment against perceived opponents is so pervasive that few would hazard to use Skype or similar technology as a means of political agitation.
The PTFO is vague and overbroad, and cannot pass constitutional muster as RWB has suggested. Many of its provisions are ambiguous, nonsensical, unintelligible and just plain legal gobbledygook. What is a “terrorizing message” under art. 6? Could a ringtone on a mobile phone which rings by announcing, “Meles Zenawi is a dictator!” (as it appears to be a common ringtone among a segment of mobile phone users in Ethiopia), result in a 15 year sentence for the hapless user? (On second thought, I may have to concede that legal point in light of the sheer “terror” Zenawi displayed at the G-8 Summit in Washington, D.C. last month when he faced the young lionhearted Ethiopian journalist Abebe Gellaw.)
For me, the principal purpose of the law is to protect liberty and establish a just society. But on that point, I shall defer to Shakespeare:
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.
For pity is the virtue of the law,
And none but tyrants use it cruelly.
As to the criminalization of Skype, my practical suggestion to Ethiopians wishing to communicate with their families and friends abroad is to quickly learn the arts of using smoke signals, drum beating, pictogram drawing, pigeon flying, ram’s horn blowing and to drill down on the science of tin can phones and Morse Code. (Oops! Forget Morse Code, it uses “the agency of electricity or electromagnetism”, whatever that is!)