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In DepthConfidential legislation introduces formal classified information protocol

Confidential legislation introduces formal classified information protocol

Secretive regulation precedes replacement for repealed Access to Information proclamation

In July 2023, the Prime Minister convened with his cabinet and passed an obscure piece of legislation dubbed ‘Government Secret Information Classification and Protection.’ The contents of this regulation had been off limits until The Reporter managed to obtain a copy earlier this week.

The legislation has far-reaching implications, yet it was passed seemingly out of the blue without due deliberation with stakeholders, particularly media institutions and human rights bodies.

“Failure to establish a system to classify and protect government classified information” and associated “negative impacts on national security and interests” were driving factors behind the legislation, according to its preamble.

“It has become necessary to protect government classified information from being illegally disclosed, destroyed, damaged, altered and transmitted,” it reads.

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The legislation empowers the government to classify any information it deems is of concern to national security, and limit access to the information to officials with security clearance. Among the criteria it outlines for obtaining security clearance is a process of verification and inquiry into an individual’s “loyalty, character, trustworthiness, and reliability.”

The regulation introduces a four-tier hierarchy for classified information – Top Secret, Secret, Confidential, and Restricted. It permits classified information to remain secret for up to 30 years, with a clause that allows for extensions upon government request.

The document does not specify the process or the organ responsible for determining what qualifies as classified information, but sources close to the matter told The Reporter Parliament would be given the mandate to review and classify information upon request from the executive.

It is the first legislation of its kind in Ethiopia, where the practice of classifying information has never been formalized and officials habitually, and sometimes arbitrarily, cite national interests or security as justification for withholding information.

Nonetheless, media experts worry the new law can be used as a pretext to slam the doors on access to information.

Article 29 of the Constitution states that “freedom of expression and information cannot be limited on account of the content or effect of the point of view expressed. Legal limitations can be laid down in order to protect the wellbeing of the youth, and the honor and reputation of individuals. Any propaganda for war as well as the public expression of opinion intended to injure human dignity shall be prohibited by law.”

The Constitution does not bar ‘freedom of expression and information’ under the context of national security.

The media professionals and legal experts who spoke to The Reporter all agree it is common practice for governments to classify sensitive information. But what complicates Ethiopia’s case is that the country has introduced legislation to limit access to information before passing laws that guarantee access to information.

The administration of Abiy Ahmed (PhD) repealed the 13-year old Mass Media and Access to Information proclamation to replace it with a new Media proclamation in 2021. The new legislation omitted references to ‘access to information’ and is still in effect today. The authorities said their intention was to split ‘media’ and ‘access to information’ into two pieces of legislation, but the latter has yet to materialize.

There was a committee tasked with drafting the access to information proclamation, but it was dissolved following the outbreak of war in Tigray in November 2020. The responsibility for drafting the legislation has since been redirected to the Institution of the Ombudsman.

“Government document classification is customary, globally. What worries me is that the government is not doing general document classification,” says Befekadu Hailu, former Zone9 blogger, human rights advocate and director of the Center for Advancement of Rights and Democracy (CARD).

Some experts who spoke with The Reporter suggested the government chose to introduce the regulation at a time when it needed to cover up reports and information relating to serious failures in corruption, domestic conflict, internal party issues, as well as foreign affairs.

But the regulation makes exemptions for information relating to issues such as corruption, deeming it public.

“But there’s no way to check if the government is classifying information to cover up a corruption case or not. When the government says certain information is secret, then nobody can know what is behind it,” said Befekadu. “This is worrying.”

He suspects internal information leaks are behind the legislation’s timing, and stresses the threats it poses to the media’s access to information.

Confidential legislation introduces formal classified information protocol | The Reporter | #1 Latest Ethiopian News Today

Befekadu observes parts of the regulation, such as a clause defining national security as “protecting and defending citizens and territorial unity, peace, and stability from threats,” are ambiguous and politicized.

“Which document or information is really dangerous to the state? Is it because an official said so, or is it really because the information carries risks? Government officials might use this regulation to muffle access to information,” said Befekadu.

He cautions that legislation relating to access to information needs to be carefully crafted so as not to leave room for misinterpretation and abuse of power.

“Freedom of expression has three major pillars. Access to information is one, the right to hold an opinion and protection from indoctrination is the second. The right to speech is the third,” he said. “Access to information might be barred in the context of national security. The question is, is it state interest or government interest when a certain piece of information is categorized as secret? It is a thin line.”

Endale Haile (PhD) is the chief of the Institution of the Ombudsman and was part of the drafting process for the regulation.

He says the legislation does not affect access to information, arguing it poses advantages for the media. 

“The implementation of the regulation will not affect the access to information and freedom of expression. The problem in Ethiopia is, almost all government information is withheld as secret. All government institutions keep all information secret. This is because there was no law that enables public institutions to classify information as ‘secret’ and public. This regulation solves that problem. Now, under this regulation, institutions must make public information which is not classified as secret,” Endale told The Reporter.

Still, he admits the potential for blurring the line between party and state issues in classifying information. 

“Because there is no clear line between party and government in Ethiopia, it might be difficult to ascertain whether classified information is party information or government information that truly affects national interests,” said Endale. 

He cited information pertaining to the military, GERD, and Ethiopian Airlines among examples of what could qualify as classified information.

Nonetheless, Endale recognizes it is unusual to introduce legislation that limits access to information without laws that guarantee it.

“The freedom of information proclamation should have been ratified ahead of the media proclamation. This is a paradox,” he told The Reporter.

Currently, Ethiopia does not have the ‘Freedom of Information Proclamation.’ The Ombudsman institution is currently drafting this proclamation.

Befekadu worries about the potential implications of the Government Secret Information Classification and Protection on the media.

He observes that under prevailing practice, officials routinely deny the media access to information on grounds of national security. Communications departments across public institutions, as well as the Government Communication Service, play an active role in hampering media access to information.

Befekadu recommends two remedies.

The first is to curtail the government’s power to limit access to information. The second is introducing legislation that guarantees access to information, balancing the scales.

“Accessing information and freedom of expression is a right. It is not a crime. Freedom of expression is natural. This means there is no law that can give you that right, the only thing laws can do is protect that right. Legislation is also needed to limit people and institutions from inflicting damage by abusing that natural right. So limiting that right is essential. However, that limitation itself needs to be limited,” he said. “Otherwise, access to information will be eroded.”

He argues that information should only be classified if it can cause conflict or clashes between ethnic groups.

“Access to information should not be prohibited just because that information exposes government failures,” said Befekadu.

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