Etiam pulvinar libero in augue interdum, vitae This report contains an in depth analysis of the muted right to freedom of expression in Eritrea. The number and forms of human rights violations related to the curtailing of free speech have been and continue to be well documented across the globe. This discourse identifies the right to free reception of information and expression as the bedrock to realising and maintaining the rule of law. Investigated herein is the historical background to the political evolution of the small African state and the social impact of the prevailing human rights violations. This report contains a compilation of human rights violations as determined by international treaty bodies, interviews with Eritrean witnesses and diaspora in exile and civil society reports on the human rights situation. It is argued in the report that the absence of the rule of law in Eritrea is directly attributed to the collapse of free expression as political forces see this right as a threat to their power base – a form of suppression that has nullified all human rights and freedoms and might well damage its people beyond repair.

rhoncus est eleifend. Donec The endum urna. Phasellus Erosion of libero gravida vestibulum. Nam lacinia purus eros, at semper erat dapibus ut. the Rule of Law vel consectetur vel, interdum eget leo. In hac habitasse platea dictumst. primis in Eritrea: Mauris gravida ante in dolor scelerisque rhoncus. Etiam pulvinar libero in augue interdum, Silencing est eleifend. Dom eget leo. In hac habitasse pl Freedom ictumst. Interdum of Expression malesuada fames ac

Pretoria University Law Press PULP www.pulp.up.ac.za

ISBN: 978-1-920538-37-8

ante ipsum primis in faucibus. Mauris gravida ante in dolor scelerisque rhoncus.lesuada fames ac ante in dolor scelerisque rhoncus.

THE EROSION OF THE RULE OF LAW IN ERITREA: SILENCING FREEDOM OF EXPRESSION

Centre for Human Rights, University of Pretoria UN Mandated University for Peace, St Jose, Costa Rica

2015

The Erosion of the Rule of Law in Eritrea: Silencing Freedom of Expression Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: BusinessPrint, Pretoria To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 [email protected] www.pulp.up.ac.za

ISBN: 978-1-920538-37-8

© 2015

TABLE OF CONTENTS Preface ........................................................................................... iv List of abbreviations ..................................................................... vii List of Eritrean print and electronic media................................... viii Acknowledgments ......................................................................... ix Executive summary English ............................................................ x Executive summary French ...........................................................xvi Executive summary Tigrinya...................................................... xxiii Executive summary Arabic .........................................................xxix Introduction.................................................................................... 1 Contextualising the rule of law in Eritrea ....................................... 4 Eritrea’s human rights obligations and rule of law.........................12 Non-Implementation of the Eritrean Constitution .............................. 12

Suppression of free expression as an attack on the rule of law in Eritrea...............................................................................19 Prelude to dictatorship: Human rights before September 2001............. 19 The Crackdown of September 2001.................................................... 23

Free expression in Eritrea today: Effects of widespread reprisals ...26 Closure of non-state media houses ..................................................... 26 Collapse of the journalistic profession in Eritrea ................................. 27 Internet censorship ............................................................................ 33

From arbitrary arrests to subtle control of the message ..................35 Pervasive editorial spin ...................................................................... 36 The ‘03’ rumour system ..................................................................... 38 Suppression of foreign and diaspora media......................................... 38 Reporting the work of the courts ........................................................ 39 Eritrea’s international relations .......................................................... 40 Awareness of the dangers of refugee flight .......................................... 40 Rebirth of independent journalism ..................................................... 41

Recommendations..........................................................................42 Annex I: Compilation of recorded human rights violations related to free speech.............................................................45 Arbitrary arrest and detention ............................................................ 45 Torture and other cruel, inhuman or degrading treatment or punishment ............................................................................. 49 Death in custody ............................................................................... 50

Annex II: Report of the Working Group on the Universal Periodic Review: Eritrea.......................................................53 I. Recommendations accepted ........................................................... 53 II. Recommendations that do not enjoy the support of Eritrea ............ 59

iii

PREFACE The right to receive information, on the one part, and to express and disseminate opinions, on the other, constitute the right to freedom of expression, as guaranteed by article 9 of the African Charter on Human and Peoples’ Rights (African Charter). The enjoyment of these freedoms nourishes the political, social and economic life of the community from the grassroots to the national and international levels. Through the exchange of lawful ideas – opinions which sow hatred, incite violence or discrimination cannot possibly enjoy legal protection – societies build robust bodies politic, exercise their right to participate in government, learn, and better themselves, as individuals and as communities. This balance of free speech with legitimate restrictions is the basis of many deliberations by judicial and quasi-judicial bodies charged with interpreting and enforcing human rights law at the national, regional and international level. On its part, the African Commission on Human and Peoples’ Rights (African Commission) in the Declaration of Principles on Freedom of Expression adopted in 2002, to elaborate on the scope and content of article 9 of the African Charter, notes in Principle 2(2) that ‘any restrictions on freedom of expression shall be provided by law, serve a legitimate aim and be necessary in a democratic society.’ In September 2001, the authorities in Eritrea arrested 11 highranking government officials for writing an open letter to the government, criticising it for acting in an ‘illegal and unconstitutional manner’. In the same month, the government of Eritrea banned all private media and arrested 18 journalists accused of having ‘been recruited into the illegal network organised for the purpose of ousting the Government through illegal and unconstitutional means’. These two groups of detainees continue to be held incommunicado, despite the African Commission’s conclusion in two separate Complaints on this issue before it, finding Eritrea in violation of article 9 of the African Charter and urging the immediate release of the 11 political detainees, as well as the unbanning of the press and release or speedy trial of the 18 arrested journalists. The African Commission has also adopted several resolutions, calling on Eritrea to ‘fulfil its obligations iv

under the African Charter on Human and Peoples’ Rights, the Constitutive Act of the African Union and other relevant human rights instruments to which Eritrea is a party’.i As Special Rapporteur, I have, as empowered by my mandate, sent several letters of appeal to the government of Eritrea urging the release from incommunicado detention,ii and also expressed concern about the reports of deaths of some of the detainees.iii In September 2011, in marking ten years of the continued incommunicado detention of these former government officials and journalists, I transmitted a letter of appeal to President Isaias Afewerki of Eritrea, recalling my earlier appeals of 2007, 2009, as well as my appeal through the Chairperson of the African Commission in May 2011 on these issues.iv To date, I have received no response from the government of Eritrea to any of these letters of appeal. It is with the above in mind that I welcome the publication of this report on the The Erosion of the Rule of Law in Eritrea: Silencing Freedom of Expression. It serves as a reminder of the situation in Eritrea and more so, of the continuing non-implementation of findings by the African Commission of duly determined violations of the right to free i

ii

iii

iv

ACHPR Resolution on the General Human Rights Situation in Africa, 25 November 2009, http://www.achpr.org/sessions/46th/resolutions/157/; ACHPR Resolution on the General Human Rights Situation in Africa, 5 November 2011, http://www.achpr.org/sessions/50th/resolutions/207/ (accessed 5 February 2014). See also, Pansy Tlakula, ‘Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa,’ presented to the 46th Ordinary Session of the African Commission on Human and Peoples’ Rights, Nov 2009, http://www.achpr.org/sessions/46th/intersession-activity-reports/ faith-pansy-tla kula/(accessed 5 February 2014); African Commission Resolution on the Human Rights Situation in Eritrea, 5 November 2005, http:// www.achpr.org/sessions/38th/resolutions/91/ (accessed 5 February 2014). ‘Activity Report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa’ presented to the 44th Ordinary Session of the African Commission on Human and Peoples’ Rights, November 2008, http:// www.achpr.org/sessions/44th/intersession-activity-reports/faith-pansy-tlakula/ (accessed 5 February 2014). ‘Activity report of the Special Rapporteur on Freedom of Expression and Access to Information in Africa’ presented during the 50th Ordinary Session of the African Commission on Human and Peoples’ Rights, October 2011, para 48, http://www.achpr.org/sessions/50th/intersession-activity-reports/faith-pansytla kula/ (accessed 5 February 2014). v

expression in Eritrea.

Pansy Tlakula Special Rapporteur on Freedom of Expression and Access to Information in Africa African Commission on Human and Peoples’ Rights

vi

LIST OF ABBREVIATIONS ADB AI AU BBC CEDAW CIA CPJ EPLF GoSE HRW ICCPR ICESCR PFDJ PoW ROL RSF TPCE TPLF TV UDHR UK UN SR FoE UNHCR UNHRC UPR US WGAD WGEID

African Development Bank Amnesty International African Union British Broadcasting Corporation Convention on the Elimination of Discrimination against Women Central Intelligence Agency (of the United States) Committee to Protect Journalists Eritrean People’s Liberation Front Government of the State of Eritrea Human Rights Watch International Covenant on Civil and Political Rights International Covenant on Economic, and Cultural Social Rights People’s Front for Democracy and Justice Prisoner of War rule of law Reporters without Borders Transitional Penal Code for Eritrea Tigrinya Peoples Liberation Front television Universal Declaration of Human Rights United Kingdom UN Special Rapporteur on Freedom of Opinion and Expression Office of the United Nations High Commissioner for Refugees United Nations Human Rights Council Universal Periodic Review United States Working Group on Arbitrary Detention Working Group on Enforced and Involuntary Disappearance

vii

LIST OF ERITREAN PRINT AND ELECTRONIC MEDIA State-owned Eritrea al-Haditha - Arabic newspaper Eritrea Profile, English Eritrean News Service (EriNA) Eri-TV Hadas Eritrea – Tigré newspaper Radio Bana – shut down in February 2009 Radio Dimtsi Hafash – (Voice of the Masses radio), broadcasting in six languages Radio Numa – entertainment FM channel Radio Zara – entertainment FM channel Shabait.com – official website of the Ministry of Information Shaebia.org – PFDJ’s official website

Private Admas – private, shut down September 2001 Keste Debena – private, shut down September 2001 Mana – private, shut down September 2001 Meqaleh – private, shut down September 2001 Meqaleh Forto – private, established in September 2013 Setit – private, shut down September 2001 Tsigenay – private, shut down September 2001 Wintana – private, shut down September 2001 Zemen – private, shut down September 2001

viii

ACKNOWLEDGMENTS This report is the result of contributions of many people across the globe. First and greatest thanks go to the Eritreans in exile interviewed for this report. Their bravery in speaking out is indispensable in the defence of human rights in Eritrea. We would like to thank the University for Peace students, Pimsiri Petchnamrob, Annie Seay, Louise Geraldino Dumas and Humphrey Sipalla, who in 2013 worked to prepare the first background paper that inspired this report, and to Dr Julia Hoffmann and Prof. Juan Carlos Sainz-Borgo for their institutional and intellectual support. We equally thank the researchers and staff at the Centre for Human Rights, University of Pretoria, Lola Shyllon, Kevashinee Pillay, Claire Waterhouse and Thato Motaung who helped organise and review the various drafts of the report. We salute the work of the NGOs who have dedicated themselves to documenting the contemporaneous events in Eritrea and giving voice to the many who would have otherwise suffered in silence. As noted earlier, the cumulative work of these NGOs, cited as sources, provides the background against which this report is prepared. This report is by no the means the ‘last word’ on Eritrea. It focuses on one crucial aspect – free expression. As the recently adopted Concluding Observations of the UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW/C/ERI/ CO/3, 6 March 2015) show, there are a plethora of concerns abouth the situation in Eritrea. These concerns include the effect of indefinite national services, forced marriages and sexual violence on the rights of women in Eritrea.

Prof Frans Viljoen Director, Centre for Human Rights, University of Pretoria

ix

EXECUTIVE SUMMARY Findings Going by macro-economic indicators from leading analysts such as the African Development Bank (ADB), Eritrea’s economy is growing impressively and is expected to continue doing so for the foreseeable future. Against the backdrop of poverty and underdevelopment in Africa, such news should be a cause for celebration as more Africans are ostensibly pulled out of poverty and into a life where they rightfully enjoy their freedoms and fruits of citizenship. Eritrea itself, in its submission to the UN Human Rights Council for its 2014 Universal Periodic Review (UPR), describes how human rights issues are of cardinal importance. It stresses the gearing of national priorities towards the broadest possible exercise of fundamental rights. On paper, all seems to be on track for Eritrea. Like many other resource constrained African countries, Eritrea juggles urgent and competing priorities with a view to ensuring the widest possible enjoyment of human rights for its people. But even a cursory reading of human rights sources, from the dialogue of intervening states at Eritrea’s 2014 UPR, official documents of the UN, universal and African human rights bodies and their rapporteurs, through to civil society reports and the witness of Eritreans in exile, shows quite a different picture. The stark mismatch of descriptions of Eritrea can be accounted for by considering the application of the principles of rule of law. The UN affirms the systemic nature of the rule of law. It is not simply the presence of good laws but their fair and just application to all by independent competent institutions of state. When realised in a society, the rule of law ensures equality before the law and guarantees to all, equal protection of the law. Most African countries, indeed, most countries worldwide, struggle with the maintenance of the rule of law in some form or another. Eritrea, however, is a unique case of the breakdown of rule of law, both in the extremity of the situation and the central role the x

suppression of free expression has played in this breakdown. The rule of law affirms that the people have a right to know what their government does and how the arms and institutions of state relate with each other. In this way, the people can exercise their duty to elect governments that protect them and advance their interests with informed choice. A right to vote without informed choice only makes a mockery of democracy. Facilitating information flow in society has a definitive watchdog quality, which itself requires that journalists enjoy access to information, especially public information, to report accurately and fairly. The rule of law demands an acceptance of diversity of opinion, the freedom to express these, and independent institutions that can enforce accountability based on certainty of laws, aspects that are severely lacking in Eritrea. All institutions of state and society whose check and balance effect help blunt the excesses of each other, have collapsed. The Eritrean government’s 2001 ‘Crackdown’ spawned the silencing of free speech in its entirety. In response to an open letter critiquing the government by the ‘Group of 15’, 11 of them, and an additional 19 journalists, were arrested and all private media houses shut down. The ‘G-15’ (as they have come to be known) were senior officials of the presiding government; their incommunicado incarceration sent a chilling message about the consequences of dissent. Consequences that saw the last resident foreign reporter, Jonah Fischer (BBC Reuters) being expelled from the country in 2004 after reporting on human rights issues. The collapse of the journalistic profession is an apt description of the Eritrean political climate, as there exists no platform for free expression, thus ensuring the end of public access to information. In their 2014 World Press Freedom Index, Reporters Without Borders ranked Eritrea last in the world. Since the ‘Crackdown’, access to information remains at its lowest ebb. Anyone seeking to publish or disseminate information is forced to do so covertly or face arbitrary arrest. Fear of reprisals has allowed for government control of the media; only one publishing house – owned by the ruling party – remains. No freedoms have been spared, xi

even academic and artistic freedoms are nullified. With very low public access to the internet and limited national telephone networks, information is hard to come by and reports are often limited to the use of the ‘03’ rumour system. Exiled diaspora media initiatives offer a vital voice on the plight of Eritreans. However, these broadcasts are sometimes intercepted by government jamming. It is hard to imagine the extent of restrictions to the free flow of information in Eritrea as it stands so grotesquely opposite to the values of free information and dissemination of information as enshrined in articles 9(2) and 9(1) of the African Charter to which Eritrea is a state party. Eritrea’s Constitution remains unimplemented, leading to the assertion that Eritrea lacks a constitution. The independence of the judiciary is non-existent. There is almost no private media in Eritrea, nor are there independent publishing houses or promoters of artistic works. The education system is deprived of academic freedom. There is but a sole political party, the People’s Front for Democracy and Justice (PFDJ), that lacks any distinction from the Executive government, in which no divergent opinions are tolerated, as illustrated by the September 2001 ‘Crackdown’ on dissenting senior ruling party officials and the private media that published their views. The National Assembly has not met since 2002 and therefore cannot pronounce itself on matters affecting the nation. Legislative functions are taken up by the Executive and the ambiguously termed ‘Judiciary Branch’. There are no elections of officials to the Executive either, with the Eritrean President on record asserting that such will never be conducted in Eritrea. Elections constitute among the foremost of free expression events in any country, with campaigns, free choice of voters and judicial redress for any offending behaviour on the part of voters or electoral competitors. The faiths have not been spared either. When Abune Antonios, Patriarch of the Eritrean Orthodox Church proffered divergent opinions, he was deposed by the government in August 2005. Only the Catholic Church, Sunni Islam, Eritrean Orthodox Church and Lutheran Church are tolerated. The Jehovah’s Witnesses, for instance, remain suppressed. Economic activity is almost exclusively the domain of companies xii

owned by the ruling PFDJ. One’s freedom to work in a profession and for an organisation – or self – of one’s choice is curtailed as all able bodied youth are trapped in an open-ended national service. The national service involves forcible engagement, working not in reserve armed forces or public service for the common good, but in government owned factories and offices for what could be a lifetime. Many consider this practice as one analogous to slavery. Besides being mandatory, work in the national service pays too little to sustain an individual’s daily needs and lacks basic protections and benefits like annual leave. As a result of its onerous restrictions and meagre pay, Eritrean youth bound to the national service cannot even reasonably plan when and how to get married and found a family. The family and community too have felt the impact of the lack of the rule of law. While traditional religious ceremonies or family and community events like wedding parties are not directly controlled by the state, they are nevertheless closely monitored. In such gatherings, one must continuously take care to not utter politically incorrect views, or face the pain of arbitrary arrest and detention without trial. Eritrean citizens still require a visa to leave their own country. Such exit visas are predictably hard to come by. Consequently, hundreds of thousands of Eritreans, the Office of the United Nations High Commissioner for Refugees (UNHCR) records 300,000 between 2004 and beginning of 2013, have fled their country, many on foot, across the border to Sudan or Ethiopia. Many harbour dreams of reaching Israel or Europe. The state’s border guards have been known to operate a ‘shoot-to-kill’ policy to prevent refugee flight. And if one manages to get out, lurking in the bushes and deserts of Sudan and Egypt, including the Sinai, are human trafficking gangs that buy and sell desperate refugees and extort unthinkable amounts of money from their families for their release. This is aggravated by the most egregious practice of torturing captive refugees while their relatives plead for their release on phone. Even if one survives this, there is still the treacherous Mediterranean Sea that has claimed countless souls, including the at least 350 recorded in the September 2013 Lampedusa tragedy. All this happens because the state does not tolerate any divergent views. There are no reports of any prosecutions, investigations, commissions of inquiry, or any other indication of attempts by xiii

Eritrea to bring to justice perpetrators of the above referred violations. Lack of separation of powers indicates lack of independence of the prosecutorial power, itself a factor in the impunity for the aforementioned violations. Impunity is a manifestation of the lack of rule of law. It is the hope of the Centre for Human Rights of the University of Pretoria, the UN Mandated University for Peace and all those involved in its preparation, that this report will augment the growing chorus of calls for respect for the human rights of the Eritrean people, an end to their suffering that should trouble the consciousness of humanity and their right to live in peace, justice and liberty.

Summary of recommendations To the Government of Eritrea: For the restoration of free speech •

• •

• •

•

Implement the 1997 Constitution of Eritrea; release or try before an impartial court of law, all journalists and political actors detained for their exercise of free speech; Allow for the establishment and editorial freedom of all media, independent and state owned, including publishers of academic and artistic works; Issue clear instructions to public officials and holders of information to share such information to all members of the public including the press and the citizenry at large; Allow for the establishment of tertiary level institutions for the training of journalists in true academic freedom; Implement Principle VI of the Declaration of Principles of Freedom of Expression in Africa of the African Commission by transforming state owned media into editorially independent and adequately funded public broadcasters as stipulated in the 2001 African Broadcasting Charter; Implement article 19(3) of the 1997 Constitution which corresponds with Principle VI of the Declaration of Principles of Freedom of Expression in Africa of the African Commission on the promotion of a diverse and independent private media with private broadcasting being regulated by a fair and transparent independent authority.

For the restoration of checks and balances as required by the rule of law •

Establish, the independent judiciary envisaged in the 1997 Constitution, allow for the establishment of an independent legislature, elected by popular vote in a fair and transparent manner. xiv

For the restoration of personal liberties and a just social order • • •

Abolish the national service and release all persons from indefinite forced labour; Close all unofficial locations used for the deprivation of personal liberty and release unconditionally those detained therein; Abolish the exit visa.

To international human rights bodies • •

•

Continue to demand for the full implementation of decisions against Eritrea determined by the UN WGAD and the African Commission; Establish clear minimum goals to be achieved by Eritrea before considering any non-renewal of the mandate of the UN Special Rapporteur on the Human Rights Situation in Eritrea and the Commission of Inquiry; The African Commission should urgently consider taking action on the human rights situation in Eritrea under article 58(1) of the African Charter, that mandates the Commission to refer to the AU Assembly of Heads of State and Government special cases that reveal the existence of serious and massive violations of human and peoples’ rights.

To human rights defenders in civil society •

•

Agree on minimum standards of respect for the rule of law that ought to be demanded of Eritrea by the African Commission and the UNHRC based on absolute human rights standards: the prohibition of torture, cruel inhuman and degrading treatment or punishment; the right to fair trial; the prohibition of forced labour; and the right of habeas corpus. Collaborate with the newly established Commission of Inquiry under the UNHRC by sending detailed reliable information on the freedom of speech and the media.

xv

RÉSUMÉ Constatations Si l’on s’en tient aux indicateurs macro-économiques mis au point par des analystes de premier plan comme la Banque africaine de développement (BAD), l'économie érythréenne se développe de manière impressionnante et devrait continuer à le faire. Étant donné la pauvreté et le sous-développement en toile de fond sur le continent, une telle nouvelle aurait de quoi nous réjouir, puisqu’elle signifie que plus d’Africains échappent à la pauvreté et jouissent, comme ils en ont le droit, de leurs libertés et des fruits de la citoyenneté. Pour sa part, dans sa communication au Conseil des droits de l’homme de l’ONU au titre de l’examen périodique universel de 2014, l’Érythrée a dit que les questions relatives aux droits de l’homme revêtaient pour elle une importance cardinale et qu’assurer un exercice aussi large que possible des droits fondamentaux comptait désormais parmi les priorités nationales. Sur papier, tout semble évoluer dans la bonne direction pour l’Érythrée. Comme beaucoup d’autres pays africains qui manquent de ressources, l’Érythrée doit concilier des priorités aussi urgentes que concurrentes si elle veut assurer au plus grand nombre l’exercice des droits de l’homme. Mais une lecture même rapide des sources relatives aux droits de l’homme, que ce soient les observations des intervenants lors de l’examen périodique universel de l’Érythrée en 2014, les documents officiels de l’ONU, les organismes universels et africains des droits de l’homme et leurs rapporteurs, les rapports venant de la société civile ou les témoignages d’Érythréens en exil, donne à voir un tableau bien différent. Le contraste entre ces différentes images de l’Érythrée peut s’expliquer dans la perspective des principes de l’état de droit. Selon l’ONU, l’état de droit est de nature systémique. Il suppose non seulement que les lois en vigueur soient bonnes mais qu’elles soient aussi appliquées de manière juste et équitable par tous les organes indépendants de l’État. Lorsque l’état de droit règne dans une société, tous sont égaux devant la loi et chacun a droit à la protection égale de la loi. xvi

La plupart des pays africains, et on pourrait même dire la plupart des pays au monde, peinent d’une manière ou d’une autre à maintenir l’état de droit. L’Érythrée, cependant, est un cas unique en ce que l’état de droit s’y est complètement effondré et que la suppression de la liberté d’expression a joué un rôle central dans cet effondrement. L’état de droit suppose que les citoyens puissent savoir ce que fait leur gouvernement et comment les différents pouvoirs et institutions de l’État interagissent les uns avec les autres. De cette manière, le peuple peut exercer son devoir d’élire des autorités qui le protègent et font valoir ses intérêts, à la faveur d’un choix éclairé. Sans choix éclairé, le droit de vote n’est qu’une coquille vide et la démocratie perd tout son sens. En faisant en sorte que l’information circule dans la société, on favorise le contrôle citoyen; il faut pour cela que les journalistes aient accès à l’information, en particulier l’information publique, et qu’ils puissent ensuite la diffuser de manière exacte et équilibrée. Pour qu’il y ait état de droit, il faut que les différentes opinions puissent s’exprimer librement et dans toute leur diversité et que des institutions indépendantes soient chargées de les faire respecter, conformément au principe de la certitude juridique, autant d’éléments qui font cruellement défaut en Érythrée. Toutes les institutions publiques censées se contrôler et s’équilibrer mutuellement se sont effondrées. Depuis la répression lancée en 2001 par le Gouvernement érythréen, la liberté d’expression a complètement disparu. En réponse à une lettre ouverte du « Groupe des 15 » critiquant le Gouvernement, 11 des membres du groupe ont été arrêtés, de même que 19 journalistes, et tous les organes de presse privés ont été fermés. Le « G-15 » (comme on l’appelle à présent) était composé de hauts responsables du parti au pouvoir; leur incarcération au secret a lancé un message terrifiant sur ce que pouvait être le prix de la dissidence. Dans le même ordre d’idées, le dernier journaliste étranger résident, Jonah Fischer (BBC, Reuters), a été expulsé du pays en 2004 parce qu’il avait écrit des articles sur des sujets relatifs aux droits de l’homme. L’effondrement de la profession de journaliste est symptomatique xvii

du climat qui règne en Érythrée : il n’existe aucune tribune à laquelle puisse s’exercer la liberté d’expression, ce qui empêche la population d’avoir accès à l’information. Dans le classement 2014 de Reporters sans frontières consacré à la liberté de la presse dans le monde, l’Érythrée occupe la dernière place. Depuis la répression de 2001, l’accès à l’information demeure à son point le plus bas. Quiconque essaye de publier ou diffuser des informations doit le faire dans la clandestinité et s’expose à une arrestation arbitraire. En jouant sur la peur de représailles, le Gouvernement parvient à contrôler les médias; il n’existe plus dans le pays qu’une seule maison d’édition, qui appartient au parti au pouvoir. Aucune liberté n’a été épargnée; les libertés universitaires et artistiques sont elles aussi foulées aux pieds. Comme le grand public n’a pratiquement pas accès à l’internet et que le réseau téléphonique national est des plus limités, l’information circule mal et n’est souvent colportée que par la rumeur. Les initiatives prises par la diaspora érythréenne sont d’une importance capitale en ce qu’elles appellent l’attention du reste du monde sur le sort des Érythréens. Cependant, bon nombre de leurs émissions sont interceptées et brouillées par les autorités. On mesure mal toute l’étendue des restrictions apportées à la libre circulation de l’information en Érythrée, ce qui va complètement à l’encontre du principe de la libre diffusion d’information consacré aux articles 9(2) et 9(1) de la Charte africaine, à laquelle l’Érythrée est partie. La Constitution érythréenne demeure lettre morte, ce qui a conduit certains à prétendre qu’il n’y a pas de constitution en Érythrée. L’indépendance du pouvoir judiciaire est un vain mot. Il n’existe pratiquement pas de médias privés, ni de maisons d’édition indépendantes, ni même de promoteurs d’œuvres artistiques. Le système éducatif souffre d’un manque de liberté. Il n’existe qu’un seul parti politique, le Front populaire pour la démocratie et la justice, qui se confond avec l’exécutif, au sein duquel aucune opinion divergente n’est tolérée, comme l’a montré l’opération de répression lancée en septembre 2001 contre des dirigeants politiques et les médias privés qui diffusaient leurs vues. L’Assemblée nationale ne s’est pas réunie depuis 2002 et ne peut donc pas se prononcer sur les questions qui concernent la nation. Les fonctions législatives sont assurées par l’exécutif et ce qui passe pour xviii

être le « pouvoir judiciaire ». Les membres de l’exécutif ne sont pas élus, le président de l’Érythrée ayant déclaré publiquement qu’il n’y aurait jamais de telles élections dans le pays. Or, les élections constituent une des principales manifestations de la liberté d’expression, depuis l’organisation des campagnes, en passant par le libre choix des électeurs et jusqu’à la possibilité d’introduire un recours judiciaire en cas de conduite répréhensible de la part des électeurs ou des candidats. Les confessions n’ont pas non plus été épargnées. Après avoir exprimé des opinions dissidentes, Abune Antonios, Patriarche de l’Église orthodoxe érythréenne, a été destitué en août 2005 par le Gouvernement. Seuls le catholicisme, l’islam sunnite, l’Église orthodoxe érythréenne et l’Église luthérienne sont tolérés. Les Témoins de Jéhovah sont quant à eux interdits. L’activité économique est presque exclusivement aux mains du parti au pouvoir par l’intermédiaire de sociétés qu’il détient. La liberté d’exercer un métier, en travaillant pour une entreprise ou pour son propre compte, est compromise du fait que tous les jeunes en bonne santé sont pris au piège d’un service national à durée indéterminée. Le service national repose sur la conscription; or, les conscrits ne travaillent pas dans les forces armées de réserve ou dans des services publics pour le bien de tous, mais dans des usines et des bureaux appartenant au Gouvernement, et ce, pendant une bonne partie de leur vie. Beaucoup d’observateurs considèrent que cette pratique est analogue à l’esclavage. Le travail au titre du service national est non seulement obligatoire mais la solde versée ne permet même pas aux conscrits de subvenir à leurs besoins et ceux-ci ne bénéficient d’aucune protection ou prestation, comme les congés annuels. Les contraintes du service national et l’insuffisance de la solde sont telles que les jeunes Érythréens qui y sont astreints ne peuvent même pas songer à se marier et à fonder une famille. La famille et la communauté se ressentent, elles aussi, de l’absence d’état de droit. Si elles ne sont pas directement contrôlées par l’État, les cérémonies religieuses, traditionnelles ou familiales comme les fêtes de mariage sont surveillées de près par les autorités. Lors de tels rassemblements, chacun doit rester sur ses gardes et ne pas proférer des opinions politiquement incorrectes sous peine de se faire arrêter et détenir arbitrairement sans être jugé. xix

Les Érythréens sont toujours tenus d’obtenir un visa pour quitter le territoire national. On ne sera pas surpris d’apprendre que de tels visas de sortie sont très rarement accordés. C’est ainsi que des centaines de milliers d’Érythréens (selon le Haut Commissariat des Nations Unies pour les réfugiés, ils ont été 300 000 entre 2004 et le début de 2013) quittent le pays, souvent à pied, en franchissant la frontière avec le Soudan ou l’Éthiopie. Bon nombre d’entre eux rêvent de gagner Israël ou l’Europe. Les gardes frontières ont pour consigne de tirer à vue pour empêcher les réfugiés de s’enfuir. Ceux qui parviennent à s’enfuir risquent, quand ils traversent la brousse et les déserts du Soudan et de l’Égypte, de tomber entre les mains de bandes de trafiquants qui font le commerce de réfugiés désespérés et extorquent des sommes incroyables à leurs familles en échange de leur libération. Cette situation est encore aggravée par la pratique très répandue de la torture : les captifs sont torturés, tandis que leurs proches entendent ce qui se passe au téléphone et plaident pour leur libération. Et ceux qui survivent à ce péril doivent encore affronter la traversée de la Méditerranée, cette mer sournoise qui a déjà englouti d’innombrables vies, dont au moins 350 en septembre 2013, lors de la tragédie de Lampedusa. Cette situation est imputable au fait que l’État ne tolère pas la moindre divergence de vue. Selon toute apparence, il n’y a eu aucune poursuite, aucune investigation, aucune commission d’enquête ni aucun autre signe que l’Érythrée s’emploierait à traduire en justice les auteurs des exactions que nous venons de décrire. Comme il n’y a pas de séparation entre les pouvoirs, le parquet n’a aucune indépendance, ce qui est un facteur d’impunité. Or, l’impunité est une manifestation de l’absence d’état de droit. Le Centre pour les droits de l’homme de l’Université de Pretoria, Université pour la paix mandatée par les Nations Unies, et de tous ceux qui ont participé à l’étude, espère que le présent rapport viendra s’ajouter aux nombreuses voix qui exigent que les droits de l’homme soient respectés en Érythrée et qu’il soit mis fin aux souffrances indicibles du peuple, qui ont de quoi troubler la conscience de l’humanité, et que les Érythréens puissent vivre en paix, dans la justice et en toute liberté.

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Résumé des recommandations Au Gouvernement érythréen: Pour le rétablissement de la liberté d’expression: •

•

•

• •

•

Appliquer la Constitution de 1997; libérer ou juger devant un tribunal impartial tous les journalistes et militants qui sont détenus pour avoir exercé leur liberté d’expression; Autoriser la liberté éditoriale de tous les médias, qu’ils soient indépendants ou contrôlés par l’État, y compris pour les éditeurs de travaux universitaires et d’œuvres artistiques; Donner pour consigne aux fonctionnaires et détenteurs d’information de mettre les informations qu’ils détiennent à la disposition du public, notamment la presse et les citoyens; Autoriser la mise en place d’institutions de troisième cycle pour mieux former les journalistes à la liberté universitaire; Appliquer le Principe VI de la Déclaration de principes sur la liberté d’expression en Afrique de la Commission africaine en transformant les médias d’État en radiodiffuseurs publics, jouissant d’une totale indépendance quant à leur ligne éditoriale et disposant de ressources suffisantes, comme le prévoit la Charte africaine de la radiodiffusion de 2001; Appliquer l’article 19(3) de la Constitution de 1997, lequel correspond au Principe VI de la Déclaration de principes sur la liberté d’expression en Afrique, et concerne la promotion de la diversité et de l’indépendance des médias privés et des organes de radiodiffusion privés, placés sous l’autorité d’une instance indépendante, impartiale et transparente.

Pour le rétablissement des contrôles et équilibres requis par l’état de droit: •

Mettre en place un système judiciaire indépendant comme le prévoit la Constitution de 1997, permettre la création d’une magistrature indépendante, élue par le peuple à la faveur d’un scrutin régulier et transparent.

Pour le rétablissement des libertés personnelles et d’un ordre social juste: • • •

Abolir le service national et libérer toutes les victimes du travail forcé à durée indéterminée; Fermer tous les locaux de détention non officiels et libérer sans condition tous ceux qui y sont détenus; Abolir le visa de sortie.

Aux organes internationaux chargés des droits de l’homme: •

Continuer d’exiger l’application intégrale des décisions prises par le Groupe de travail sur la détention arbitraire des Nations Unies et la Commission africaine dans le cadre de leur examen des communications contre xxi

•

•

l’Érythrée; Fixer des objectifs minimum qui devront être atteints par l’Érythrée avant que l’on puisse envisager de ne pas renouveler le mandat du Rapporteur spécial des Nations Unies sur la situation des droits de l’homme en Érythrée et celui de la Commission d’enquête; La Commission africaine devrait examiner d’urgence la situation des droits de l’homme en Érythrée au titre de l’article 58(1) de la Charte africaine, qui lui fait obligation de signaler à l’Assemblée des chefs d’État et de gouvernements de l’Union africaine tout cas particulier révélant l’existence de violations graves et massives des droits de l’homme et des peuples.

Aux militants des droits de l’homme de la société civile: •

•

Convenir de normes minimales applicables dont la Commission africaine et le Conseil des droits de l’homme des Nations Unies devraient exiger le respect, sur la base des normes absolues que sont l’interdiction de la torture et des peines ou traitements cruels, inhumains ou dégradants; le droit à un procès régulier; l’interdiction du travail forcé; l’habeas corpus. Collaborer avec la Commission d’enquête qui vient d’être créée par le Conseil des droits de l’homme des Nations Unies en mettant à sa disposition des informations détaillées et fiables sur la liberté d’expression et les médias.

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ጽማቅ ትሕዝቶ ውጽኢት ብዓይኒ ከም ብዓል ኣፍሪቃዊ ናይ ምዕባለ ባንክ ዝኣመሰሉ ፍሉጣት ተንተንቲ ዘቐመጥዎ ናይ ቁጠባ መመዘኒ ክርአ እንከሎ፡ ናይ ኤርትራ ቁጠባ ብዘገርም መንገዲ ይዓቢ ከምዘሎን ንዝመጻእውን እቲ ዕቤት ክቅጽል ምዃኑ ትጽቢት ኣሎ። ድኽነትን ዘይምምዕባልን ኣብ ኣፍሪቃ ኣንጸላልዩሉ ኣብ ዘለዎ ግዜ፡ ከምዚ ብዙሓት ኣፍሪቃውያን ካብ ድኽነት ብምውጽኦምን መሰላቶም ፍረ ዜግነቶም ዘሰተማቅሩሉን ዓይነት ዜና ምስማዕ ክጽንበል ዝግብኦ እዩ ኔሩ። ኤርትራ ባዕላ፡ ኣብ 2014 ናብ ባይቶ ሰብኣዊ መሰላት ሕቡራት ሃገራት ኣብ ዘቅረበቶ ኣድማሳዊ ወቅታዊ ጸብጻብ፡ ጉዳይ ሰብኣዊ መሰላት ቀንዲ ኣገዳስነት ከምዘለዎ ሓቢራ። ኣብቲ ጸብጻብ እቲ ሃገራዊ ቀዳምነታት ንዝሰፍሐ ምርግጋጽ መሰረታዊያን መሰላት ምኻኑ ጸቂጣ ተዛሪባ። ኣብ ወረቀት ክርአ እንከሎ፡ ኣብ ኤርትራ ኩሉ መስመሩ ዝሓዘ እዩ ዝመስል። ከም ካልኦት ዑቁር ሃብቲ ዘይብለን ናይ ኣፍሪቃ ሃገራት፡ ኤርትራ ንምርግጋጽ ሰብኣዊ መሰላት ናይ ህዝባ ኣብ እተካይዶ ጻዕርታት ህጹጽን ተሻመውቀ ቀዳምነታት ኣብ ምጥዕዓም ከምእትሽገር ርዱእ እዩ። እንተኾነ ቅልጡፍ ንባብ ምንጭታት ሰብኣዊ መሰላት፡ ርእይቶታት ናይተን ኣብ ናይ ኤርትራ ናይ 2014 ኣድማሳዊ ዳህሳስ ዝተሳተፋ ሃገራት፡ ዓለምለኻውያን ኣፍሪቃውያን ናይ ሰብኣዊ መሰላት ትካላትን ራፖርተራተን፡ ናይ ሲቪካውያን ማሕበራት ጸብጻባትን ምሰክርነት ኣብ ወጻኢ ዝነብሩ ኤርትራውያን እንተሪኢና ግን  ካልእ ስእሊ እዩ ዝህበና። እዚ ብዛዕባ ኤርትራ ዘሎ ቅሉዕ ተጋራጫዊ መግለጺታት ምሰቲ ኣተገባብራ መትከላት ልዕልና ሕጊ ኣብቲ ሃገር ተተሓሒዙዝ ክርኤ ይክኣል።  ሕቡራት ሃገራት ንዝሰፍሐ ባህሪያት ኣተገባብራ ናይ ልዕልና ሕጊ እዩ ዝድግፍ። ልዕልና ሕጊ ዝህሉ ጽቡቅ ሕጊ ስለዘሎ ጥራይ ኣይኮነን፡ እንታይ ድኣ ብናጻን ብቅዓት ዘለዎም ናይ መንግሰቲ ትካላት ብፍትሓዊን ቅኑዑን ኣገባብ ኣብ ተግባር ምስዝውዕሉን እዩ። ኣብ ሓደ ሕብረተሰብ ልዕልና ሕጊ እንተተረጋጊጹ፡ ማዕርነት ኣብ ቅድሚ ሕጊን ማዕረ ውሕስና ንኹሉን፡ ማዕርነት መሰል ኣብ ቅድሚ ሕጊን የውሕስ። ዝበዝሓ ሃገራት ኣፍሪቃ፡ ከምኡውን ብዙሓት ሃገራት ኣብ ዓለምና፡ ልዕልና ሕጊ ኣብ ምዕቃብ ዝተፈላለየ ጸገማት የጋጥመን እዩ። ኤርትራ ግን ንልዕልና ሕጊ ብምጥሓስ ፍሉይ ቦታ ሒዛ ትርከብ፡ እዚ ድማ ብምኽፋእ ናይቲ ዘሎ ኩነታትን በቲ ሓደ ወገን ክኸውን ከሎ ሕመረታዊ ተራ ምግሃሰ ነብሰኻ ናይ መግላጽ ናጽነት ኣብቲ ምጥሓስ በቲ ካልእ ወገን እዩ። ልዕልና ሕጊ ህዝቢ መንግስቶም እንታይ ይሰርሕ ኣሎን መሓውራትን ትካላትን መንግስቲ ብከመይ ይራከባ ናይ ምፍላጥ መሰል ይሕሉ። በዚ መንገዲ፡ እቲ ህዝቢ ግብእ ሓበሬታ ብምስናቅ ንመሰሉ ዝከላከለን ንድልየታቱ ዘፈጽም መንግስቲ ናይ ምምራጽ ግዴትኡ ብምርዳእ በግቡእ ይመርጽ። ብዘይ ግቡእ ኣፍልጦ ዝትግበር ናይ ምምራጽ መሰል ኣብ ልዕሊ xxiii

ዲሞክራሲ ምብጫው እዩ። ኣብ ሓደ ሕብረተሰብ ዋሕዚ ሓበሬታ ንክህሉ ጻዕርታት ምስ ዝግበር ሓላዊ ተራ ናይ ምጽዋት ግደ ኣለዎ። እዚ ዋሐዚ ሓበሬታ ክህሉ እንተኮይኑ፡ ጋዜጠኛታት ብሓቅን ብፍትሓዊ መንገዲ ከቅርቡ ዘኽእሎም ሓበሬታ ናይ ምርካብ መሰል፡ ብፍሉይ ድማ ህዝባዊ ሓበሬታ የድሊ። ልዕልና ሕጊ ፍልልያት ናይ ሓሳባት ምቅባል፡ ናጽነት ነዞም ሓሳባት ናይ ምግላጽ ምህላው፡ ኣብ ወግዓዊ ሕጊ ተሞርኪሱ ተሓታትነት ዘፈጽም ናጻ ትካል ክህሉ ይጠልብ። እንተኾ ግን እዞም ነገራት ኣብ ኤርትራ የለዉን። እቲ ኣብ መንጎ ኩለን ናይ መንግስቲ ትካላትን ሕብረተሰብን ዘሎ ብዝሒ ስልጣን ንምምዕርራይ ዘኽእል ናይ ምቁጽጻርን ምምጥጣን ነገር ምሉእ ብምሉእ ፈሪሱ ኣሎ። መንግስቲ ኤርትራ ኣብ 2001 ንኩለን ናይ ብሕቲ ጋዜጣታት ብምዕጻው ምሉእ ብምሉእ ብናጻ ናይ ምዝራብ መሰል ከምዝጋሃስ ጌሩ። ከም ግበረ-መለሲ ናይቲ ብጉጅለ-15 ዝፍለጡ ዝቀረበ ንመንግስቲ ዝነቅፍ ቅሉዕ ደብዳቤ፡ መንግስቲ 11 ኣባላት እታ ጉጅለን፡ 19 ጋዜጠኛታት ዝርከበዎም ኣሲሩን፡ ኩለን ቤት ጽሕፈታት ናይ ብሕቲ ጋዜጣታት ድማ ዓጽዩን። እቶም ብጉጀለ 15 ዝጽውዑ ላዕለዎት ሓለፈቲ መንግስቲ ዝነበሩ ከኾኑ ከለዉ፡ ብዘይድሃይ ምእሳሮም፡ ሳዕቤን ምቀዋም እንታይ ምዃኑ ዘርኢ ሕማቅ መልእኽቲ እዩ ሰዲዱ። ከም ሳዕባን ናይዚ፡ እቲ ኣብታ ሃገር ዝነበረ ናይ መወዳእታ ናይ ወጻኢ ጋዜጠኛ ጆን ፊሸር ብዛዕባ ጉዳይ ሰብኣዊ መሰላት ጸብጻብ ብምቅራቡ ኣብ 2004 ካብታ ሃገር ከምዝሱጎግ ኮይኑ። ምውዳቅ ናይ ጋዜጠኛነት ሞያ ነቲ ኣብ ኤርትራ ዘሎ ኩነታት ብልክዕ ዝገለጽ እዩ። ብናጻ ሓሳብካ እትገልጸሉ ባይታ ብዘይምህላዉ፡ ከም ሳዕቤኑ ናይ ህዝቢ ሓበሬታ ናይ ምርካብ መሰል ኣኽቲሙ። ኣብ ናይ 2014 ናይ ዓለም ናይ ፕረስ ናጽነት መዐቀኒ፡ ጋዜጠኛታት ብዘይዶብ ኤርትራ ናይ መወዳእታ ደረጃ ሒዛ። ካብቲ ናይ ምጭቅላቅን ምዕጻው ስጉምቲ ኣትሒዙ፡ ሓበሬታ ናይ ምርካብ ተኽእሎ ኣብ ዝተሓተ ደረጃ ይርከብ። ዝኾነ ጽሑፍ ክዝርግሕ ዝደሊ ወይ ሓበሬታ ክዝርግሕ ዝደሊ ከይፈተወ ብውሽጢ ውሽጢ ከገብሮ ይግደድ ወይ ድማ ብቅሉዕ እንተጌርዎ ድማ ኣደዳ ዘይሕጋዊ ማእሰርቲ ይኸውን። እቲ መንግስቲ ፍርሒ ሕማቅ መቅጻዕቲ ብምዝራእ ነቲ ናይታ ሃገር ማዕከናት ዜና ኣብ ቁጽጽሩ የእትዮዋ ይርከብ። ኣብቲ ሃገር፡ በቲ ኣብ ስልጣን ዘሎ ሰልፊ ትወነን ቤት ማሕተም ጥራይ ትርከብ። ዝኾነ ዓይነት ዝተረፈ መሰል የለን፡ ዋላ ኣካዳምያዊን ስነጥበባዊን ናጽነታት ከይተረፈ ክለኩል እዩ። ምስቲ ዘሎ ኢንተርነት ናይ ምጥቃም ዓቅሚ ናይቲ ህዝቢ፡ ድሩት ሃገራዊ መርበብ ናይ ቴለፎን፡ ሓበሬታ ምርካብ ከቢድ ስለዝኾነ፡ ሰባት ካብ 03 ዝርከብ በላቤለው እዮም ሓበሬታ ዝረኽቡ። ኣብ ወጻኢ ሃገር ዝርከባ ማዕከናት ዜና ንኤርትራውያን ጸገማት ኣብ ምቅላሕ ወሳኒ ተራ ኣለወን። እንተኾ ግን፡ መብዛሕቱ ናብ ውሽጢ ዝለከኦ ፈነወታት ብመንግስቲ ይዕፈን። ነቲ ኣብታ ኤርትራ ኣብ ልዕሊ ዋሕዚ ሓበሬታ ዘሎ ደረት ከትሓስቦ ኣዝዩ ከቢድ እዩ። እዚ ከኣ ምስቲ ኣብ ዓንቐጽ (9) (2)ን (9) (1) ኤርትራ ኣባል ሃገር ዝኾነትሉ ናይ ኣፍሪቃ ቻርተር ተሓጊጉ ዘሎ ናጻ ሓበሬታን ናይ ምርካብን ምዝርጋሕን ክብርታት ዝጻረር ምዃኑ እዩ። ናይ ኤርትራ ቅዋም ክሳብ ሕጂ ኣብ ተግባር ኣይዋዓለን፡ እዚ ድማ ኤርትራ ቅዋም ዘይብላ ሃገር እያ xxiv

ናብ ምባል ይመርሓና። ናጽነት ፍርዳዊ ኣካል የለን። ናይ ብሕቲ ማዕከን ዜና የለንል፡ ናጻ ዝኾና ቤትማሕተማት ወይ ስነጥበባውያን ዘተባብዓ ትካላት የለዋን። ስርዓተ ትምህርታውን ናይ ኣካዳሚ ናጽነት ተነፊግዎ ይርከብ። ኣብታ ሃገር ሓደ ፖለቲካዊ ውድብ፡ ህዝባዊ ግንባር ንዲሞክራሲን ፍትሕን (ህግደፍ) ከህሉ ከሎ፡ ካብቲ ፈጻሚ ኣካል ፈሊካ ክትርዮ ዘጸግም እዩ። ከምቲ ኣብ ናይ 2001 ዝተራእየ ምጭፍላቅ ነቀፌታ ዘቅረቡ ላዕለዎት ሓለፍቲ እቲ ሰልፊን ሓሳባቶም ዘአንገዳ ናይ ብሕቲ ጋዜጣታትን እንግንዘቦ ዝኾነ ካብዚ ናይዚ ሰልፊ ኣታሓሳስባ ፍልይ ዝበለ ሓሳባት ኣይጻወርን። ሃገራዊ ባይቶ ድሕሪ 2002 ተኣኪቡ ኣይፈልጥን፡ ስለዚ ነታ ሃገር ዝምልከት ጉዳያት ዋላ ሓንቲ ክብል ኣይኽእልን። ናይ ምሕጋግ ስራሓት ብፈጻሚ ኣካልን ግሉጽ ዘይኮነ ትካል «ፍርዳዊ ጨንፈር» ተወሲዱ ይርከብ። ናይ ፈጻሚ ኣካል ምርጫ ዝብሃል ተኻይዱ ኣይፈልጥን፡ ብወግዓዊ ኣገላልጻ ናይ ኤርትራ ፕረሲደንት ኣብ ኤርትራ ከምኡ ዝብሃል ምርጫ ዋላ ኣብ መጻኢ ኣይኽካየድን እዩ ይብል። ምርጫታት ካብቶም ኣገደስቲ ህላውነት ናጽነት ናይ ነብስኻ ምግላጽ ኣብ ሓደ ሃገር እዩ፡ ጎሰጓሳት፡ ናጻ ምርጫ ናይ መረጽቲ፡ ብኣድመጽቲ ይኹን ናይ ምርጫ ተወዳደርቲ ናይ ዝወርድን ዘይተደልየ ጠባያት ብዝምልከት ግቡእ ፍርዳዊ ፍትሒ ምጥላብ ይርከብዎም። ሃይማኖታዊ እምነት ከይተረፈ ካብዚ ምግሃስ ኣይደሓነትን። ኣቡነ ኣንጶንዮስ፡ ናይ ኤርትራ ኦርቶዶክስ ቤተክርስትያን ኣብ ነሓሰ 2005 ብመንግስቲ ካብ ስልጣኖም ተኣልዮም። ካቶሊካዊት ቤተክርስትያን፡ ሱኒ እስላም፡ ኤርትራዊት ኦርቶዶክስ ቤተክርስትያንን ሉተራን ቤተክርስትያናት ጥራይ እየን ኣብታ ሃገር ክንቀሳቐሳ ዝፍቀደለን። ንኣብነት ናይ ዮሆዋ መሰካኽር ግን እምነቶም ከምልኹ ኣይፍቀደሎምን። ቁጠባዊ ምንቅስቓሳት ዳርጋ ብምሉኡ ብህግደፍ ዝውነና ካማባኒታት ዝተዓብለለ እዩ። ኣብ ሞያካን ትካል ወይ ድማ ብውልቅካ ኣብ ዝመረጽካዮ ናይ ምስራሕ መሰል - ብሰንኪ ኩሉ ዓቅሚ ዓዳም ዝበጽሐ መንእሰይ ናብቲ ደረት-ኣልቦ ሃገራዊ ኣገልግሎት ክወርድ ዘገድድ መምርሒ - ተደሪቱ ይርከብ። እቶም ሃገራዊ ኣገልግሎት ግዱድ ስራሓት፡ ኣብ ናይ ዕቁር ሰራዊት ንጥፈታት ወይ ኣብ ህዝባውያን ትካላት ንረብሓ ኩሉ ተባሂሉ ዝስራሕ ዘይኮነ፡ ኣብ ብመንግስቲ ዝውነና ትካላትን ቤትጽሕፈታትን ብዘይ ፍሉጥ ናይ ግዜ ደረት የገለገሉ። ብዙሓት ነዚ ምስ ባርነት የመሳስልዎ። ግዱድ ኣብ ርእሲ ምዃኑ፡ ኣብ ግዜ ኣገልግሎት ብስራሕ እትረኽቦ ክፍሊት ንሓደ ውልቀሰብ ዘነባብር ኣይኮነን፡ ብተወሳኺ ግቡእ ሕክምናዊ ክንከን ዓመታዊ ዕረፍቲ ዝብሃል ሓለፋታት የብሉን። በዚ ካብ ዓቅሞም ንላዕሊ ዝኾነ ከቢደ ሽግርን ንእሽቶ ኣታዊን ምኽንያት፡ ኣብ ሃገራዊ ኣገልግሎት ዝርከቡ ኤርትራውያኔ መንእሰያት መዓስን ብኸመይን ከም ዝምርዓዉን ቤተሰብ ከምዝመስርቱን ዝፈልጥዎ የለን።   ቤተሰብን ማሕበረሰብን ሳዕቤን ልዕልና ሕጊ ዘይምህላው ተሰሚዕዎመ እዩ። ባህላዊ ሃይማኖታውያን ጽንብላት ወይ ናይ ቤተሰብን ማሕበረሰባት ጽንብላት ከም መርዓ ዋላኳ ካብ ቁጽጽር እቲ መንግሲቲ ወጻኢ እንተኾነ ጥብቂ ቁጽጽር ይግበረሎም እዩ። ኣብ ከምዚ ዓይነት ምትእክኻባት ከይተረፈ፡ ካብ ዘይሕጋዊ ማእሰርትን ብዘይፍርዲ ምእሳርን ንምድሓን፡ ፖለቲካዊ ጌጋ ዝኾነ ሓሳባት ካብ ምሃብ ንቁሕ ክትኸውን ይግባእ። xxv

ኤርትራውያን ካብ ገዛእ ሃገሮም ንኽወጹ ቪሳ የድልዮም። እዚ ናይ መውጺኢ ቪሳ ብቀሊሉ ዝርከብ ኣይኮነን። ከም ሳዕቤኑ ድማ ብኣማኢት ኣሻሓት ዝቁጸሩ ኤርትራውያን ካብ ሃገሮም ወጾም ኣለዉ። ብመሰረት ወግዓዊ ጸብጻብ ላዕለዋይ ኮምሽን ስደተኛታት ሕቡራት ሃገራት ካብ 2004 ከሳብ መጀመርታ 2013 ጥራይ 300000 ካብታ ሃገር ብእግሮምን ሃዲሞም ናብ ሱዳን ኢትዮጵያን ከምዝኣተዉ ተገሊጹ። መብዛሕቶም ካብዞም ስደተኛታት ናብ እስራኤልን ኤውሮጳን ናይ ምብጻሕ ሕልሚ ኣለዎም። ነዚ ካብ ሃገር ናይ ምውጻእ ድልየት ንምዕጋት ሓለዋ ዶብ ቶኪስካ ቅተል ዝበል መምርሒ ከምዝኽተሉ ይፍለጥ። ካብ ሃገሮም ምስ ሃደሙ፡ ኣብ ናይ ሱዳን ግበጽን በረኻታትን ኣጻምእን ናይ ሲናይ ምድረበዳ ከይተረፈ ኣብ ዝጎዓዘሉ እዋን፡ ብጭፍራ ደላሎ ሰብ ተጬውዩ ይሽየጡን ይልወጡን። ኣብ ርእሲዚ እቶም ደላሎ ንመፍቲሒኦም እንዳበሉ ካብ ቤተሰቦም እዚ ዘይብሃል ገንዘብ ይወስዱ። እዚ ድማ በቲ ዘስካሕክሕ ናይ ሰቃይን መግረፍትን እቶም እሱራት ስደተኛታትን ንከፍትሑ ዝሓቱ ቤተሰብ ናይ ቴሌፎን ዝርርብ ይፍጸም። ዋላኳ ነዚ ሽግር እንተሓለፈ፡ ናይ ብዙሓት ህይወት ዝዋሓጠ ኣብ ዝሓለፈ መስከረም 2013 ኣብ ላምፓዱሳ ጥራይ 350 ዝወሓጠ ባሕሪ መዲተራንያን እዩ ዝጽበዮ። እዚ ኩሉ ዘጋጥም ዘሎ እቲ መንግስቲ ዝተፈለየ ሓሳባት ስለዘይጻወር እዩ። ብዛዕባ ክሲ ምቅራብ፡ መርመራ ምክያድ፡ ኮመሽን መርመራ ምቋም፡ ወይ ካልእ ነዞም ኣብ ላዕሊ ተጠቂሶም ዘለዉ ገበናት ዝፍጸሙ ሰባት ናብ ሕጊ ንምቅራቦም ዝኾነ ዓይነት ካብ ኤርትራ ዝተረኽበ ምልክት የለን። ምፍልላይ ስልጣን ዘይምህላዉ ዘርኢየና፡ ናይ ኣክባር ሕጊ ክሲ ናይ ምምስራት ናጽነት ዘይምህላው፡ ሰባት ዝፈጸሙ ገበን ፈጺሞም ናብ ሕጊ ከምዘይቀርቡ እዩ። ገበን ፈጺምካ ዘይምሕታት ልዕልና ሕጊ ዘይምህላዉ እዩ ዘርኢ። ማእከል ሰብኣዊ መሰላት ዩኒቨርስቲ ፕሪቶርያን ናይ ሕቡራት ሃገራት ዩኒቨርስቲ ሰላምን እቶም ነዚ ዘዳለዉ ሰባት፡ እዚ ጸብጻብ ንናይ ህዝቢ ኤርትራ ሰብኣዊ መሰላት ንክኽበርን፡ እቲ ንናይ ሰባት ሕልና ዝትንከፍ ስቃይ ኤርትራውያን ኣኽቲሙ ኤርትራውያን ብሰላም፡ ፍትሕን ሓርነትን ናይ ምንባር መሰሎም ክሕሎ ብዝተፈላለዩ ትካላት ዝግበር ዘሎ ጻዊዒት ተወሳኺ ደፍኢት ክኾኖ ተስፋ ኣለዎም።

xxvi

ጽማቅ እማመታት ናብ መንግሰቲ ኤርትራ፡ ናይ ምዝራብ ናጽነት ናብ ቦትኡ ንምምላስ፡ ∙

ነቲ ናይ 1997 ቅዋም ኣብ ተግባር ከውዕሎ፡ ኩሎም ጋዜጠኛታትን ሓሳባቶም ናይ ምግላጽ መሰል ብምጥቃሞም ዝተኣሰሩ ናይ ፖለቲካ ሰባት ክፍትሑ ወይ ኣብ ሻራነት ዘይበሉ ቤትፍርዲ ጉዳዮም ክገብር፥

∙

ምምሰራትን ናይ ምጽሓፍ ናጽነት ኩለን ናይ ዜና ማዕከናት፡ ናጻ ዝኾና ብመንግስቲ ዝውነና፡ ካዳምያዊ ጽሑፋት ስነጥብባዊ ስርሓት ዝሓትማ ወሲኸካ ክፈቀድ፥

∙

ንሓለፍቲ ህዝባዊያን ትካላትን ሓበሬታ ዝፈልጡ ሰባት ነቲ ዝፈልጥዎ ሓበሬታ ናብ ኩሉ ህዝቢ፡ ማዕከናት ዜናን ዜጋታት ብሓፈሻ ናይ ምክፋል ሓላፍነት ከምዘለዎም ንጹር መምሪሒታት ክህብ፥

∙

ንጋዜጠኛታት ግቡእ ኣካዳምያዊ ናጽነት ዝምህር ናይ ላዕለዋይ ትምህርቲ ትካላት ክምስረት ከፍቅድ፥

∙

ንመትከል ቁጽሪ VI  ናይ ኣፍሪቃዊ ኮምሽን ናይ ሓሳብካ ምግላጽ ናጽነት ኣብ ኣፍሪቃ ጻዊዒት መትከላት ዝእዝዞ መሰረት ብመንግስቲ ዝወነና ማዕከናት ዜና ናብ ናጻ ኤዲቶርያል ክማሓላለፋን ብመሰረት ናይ 2001 ኣፍሪቃዊ ቻርተር ማዕከናት ዜና ዝበሎ መሰረት ህዝባዊያን ማዕከናት ዜና ብግቡእ ክምወላ ከምዘለዎ ኣብ ተግባር ከውዕሎ፥

∙

ነቲ ምስ መትከል VI  ናይ ኣፍሪቃዊ ኮምሽን ናይ ሓሳብካ ምግላጽ ናጽነት ኣብ ኣፍሪቃ ዘተባብዖ ዝተፈላለየን ብፍትሓዊን ግሉጽን መንገዲ ብናጻ ዝኾነ ትካል ቁጽጽር ዝግበረለን ናጻ ናይ ብሕቲ ጋዜጣታት ማዕከናት ዜናን ብተመሳሳሊ መንገዲ ንክህልዋ ዘፍቅድ ዓንቐጽ 19 (3) ናይ 1997 ቅዋም ኣብ ተግባር ከወዕሎ፥

ብልዕልና ሕጊ ዝጠልቦ መሰረት ንምምላስ ምሕላውን ምምጥጣን ስልጣን ዝምልከት ∙

ከምቲ ኣብ 1997 ቅዋም ሰፊሩ ዘሎ ናጽነት ዘለዎ ፍርዳዊ ኣካልን ብርትዓዊን ግሉጹን መንገዲ ብህዝቢ ዝተመርጸ ናጻ ሃገራዊ ባይቶ ክትከል ከፍቅድ፡

xxvii

ንምምላስ ናይ ወልቀሰብ ሓርነታተን ፍትሓዊ ማሕበራዊ ስርዓት ዝምልከት፣ ∙

ሃገራዊ ኣገልግሎት ብምፍራስ፡ ኣብ ደረት ኣልቦ ግዱድ ስራሕ ተዋፊሮም ዘለዉ ናብ ንቡር መነባብሮኦም ምላሰ፥

∙

ኩሎም ዘይወግዓዊያን ቤት ማእሰርቲ ክዕጸዉን ኣብዚ ቦታት ተኣሲሮም ዘለዉ ብዘይቅድመ ኩነት ክፍትሑ፥

∙

ካብ ሃገር ናይ ምውጻእ ቪሳ ክፈርስ፥

ንዓለምለኻውያን ናይ ሰብኣዊ መሰላት ትካላት፡ ∙

ነቲ ኣብ ልዕሊ ኤርትራ ዝቀረበ ጥርዓናት መሰረት ብምግባር ብናይ ሕቡራት ሃገራት ትካላትን ኣፍሪቃዊ ኮምሸን ዝተዋህበ እማመታት ኤርትራ ኣብ ተግባር ከተውዕሎ ብቀጻሊ ክጠልቡ፥

∙

ቅድሚ ሓላፍነታት ናይ ሕቡራት ሃገራት ፍልይቲ ራፖርተርን ኮምሽን ምርመራን ኣብ ጉዳይ ሰብኣዊ መሰላት ኣብ ኤርትራን ናይ ዘይምሐዳስ ውሳነ ቅድሚ ምሃብ፡ ኤርትራ ከተማልኦም ዘለዋ ንጹራት ውሑዳት ሾቶታት ክህብ ይግባእ፥

∙

ኣፍሪቃዊ ኮምሽን ንኹነታት ሰብኣዊ መሰላት ኣብ ኤርትራ ብቅልጡፍ ኣብ ግምት ብምእታው ብዓንቐጽ 58(1) ናይ ኣፍሪቃ ቻርተር ነቲ ኮምሽን ዝተዋህቦ ሰልጣን መሰረት ብምጥቃም ናብ ናይ ኣፍሪቃዊ ሕብረት መራሕቲ መንግስቲ ባይቶን ጸኑዕን ሰፊሕን ምግሃስ ሰብኣዊን ህዝባዊ መሰላት ምስ ዝህሉ ናይ መንግስቲ ፍሉያት ጉዳያት ብምባል ክመርሖ ይግባእ፥

ንኣብ ሲቪካውያን ማሕበራት ዘለዉ ናይ ሰብኣዊ መሰላት ተሓለቅትን ∙

ኣብ ዝተሓተ መዓቀኒ ምኽባር ልዕልና ሕጊ ብምርድዳእ፡ ኣፍሪቃዊ ኮምሽንን ባይቶ ሰብኣዊ መሰላት ሕቡራት ሃገራትን ብመሰረት ሰብኣዊ መሰላት ንኤርትራ፥ ስቃይ፡ ጨካን ዘይሰብኣዊን ዘናኣእስን ኣተሓሕዛ ከተወግድ፥ መሰል ፍትሓዊ ፍርዲ ከተኽብር፥ ግዱድ ስራሕ ከተወግድ፥ መሰል ናብ ቤትፍርዲ ምቅራብ ከተኽብርን ክጠልብ ይኽእል፥

∙

ምስዚ ሕጂ ኣብ ትሕቲ ባይቶ ሰብኣዊ መሰላት ሕቡራት ሃገራት ተመስሪቱ ዘሎ ኮምሽን መርመራ ንናጽነት ናይ ሓሳብካ ምግላጽ ዝምልከት ዑምቀት ዘለዎ ርጉጽ ሓበሬታ ብምሃብ ክተሓባበሩ ይጽውዕ፥

xxviii

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xxxv

INTRODUCTION The full exercise of the journalistic profession and therefore, the people’s right to receive information and express themselves freely has been severely curtailed in Eritrea – this is a well-known fact. The number and form of human rights violations related to curtailing of free speech have been and continue to be well documented by treaty bodies and special mechanisms such as the African Commission on Human and Peoples’ Rights (African Commission), the UN Human Rights Council (UNHRC) and its Special Procedures on Free Expression and the Eritrea country situation and by civil society. This report is in the first place a collation of this documentation; yet, while in part a restatement of this important documentation, it seeks to go beyond it. This report is preoccupied with two concerns. The first concern is the need to highlight the centrality of the right to free reception of information and expression – and all its corollaries in terms of political participation, access to justice and personal liberties – and the establishment and maintenance of the rule of law. The exercise of free speech can certainly be said to be the veins and arteries, the channels by which the lifeblood of the rule of law, that is, equality before the law and supremacy of the law over all organs of state and institutions of society, can be said to flow. Eritrea provides a case study of how the efforts to suppress free speech have resulted in the violation of a wide range of human rights guarantees, from torture to indefinite forced labour. The second concern relates to context and impact. Many a time, and rightly so, the scope of reports on human rights violations are based on facts and events material to the said violation. They are therefore, by research definition, limited in time and scope. This method of research is critical to human rights monitoring. However, in the case of systemic, continuing violations on significant parts of a country’s population over extended periods of time, as in the case of Eritrea, it is also worthwhile to present the prevailing situation in its historical context and enduring social impact. What becomes of a society, its communities, families and individuals, whose collective psyche is continually battered by the intrusive effects of state control on broad aspects of daily human life and personal choices? What can 1

its history tell us of the situation such a society presently finds itself? The answers to these questions represent this report’s second concern. It can be said that this report has evolved through the time and processes of the research conducted. It began as a baseline survey conducted by international law, media and peace students at the UN Mandated University for Peace in 2013, on the situation of human rights in Eritrea. It involved the compilation of human rights violations as determined by international human rights treaty bodies and authoritatively alleged by Eritrean witnesses in exile and published in civil society reports. This baseline research is captured here, mainly in Annex I of this report. On completion, it became apparent that the human rights situation in Eritrea and the collapse of the rule of law revolve almost entirely on efforts to suppress free speech. In other words, things took a turn for the worse in Eritrea when free expression was perceived by political forces as a threat to their power base. What began as an attempt to stem a sudden and sharp criticism of the government’s conduct in April 2001, has snowballed into the wide range of human rights violations recorded since then. Therefore, in 2014, the report was developed to elaborate on the nexus between free speech and the rule of law in Eritrea. Ten interviews were conducted with seven Eritreans in Diaspora between February and August 2014. Four respondents provided their observations from written questions while the rest were interviewed by teleconference. The interviews were aimed at getting first hand reflections of the respondents on how they experienced the suppression of freedom of expression in their country and the various ways this had affected Eritrean society. The interviews took on, as much as possible, a conversational approach, using open-ended questions and encouraging respondents to share freely. As had been hoped, the responses received reflect a diverse yet coherent testimony all flowing from experiences during the independence war, the initial years of independence and the 2001 Crackdown and its aftermath. Together, these responses tell an interwoven microcosmic narrative of a society’s encounter with state suppression. Importantly too, the interviews also aimed to act as a 2

fact checking method. Given the severe restrictions on free speech, speaking to several sources about an event is a fact checking method of choice, one that journalists apply in their work. The interviews sought to identify key events in Eritrea’s descent into its current human rights situation, its effects on society, from the family unit to the state, and finally, more specific questions on the hardships journalists face in their day-to-day professional practise. It is the hope of the Centre for Human Rights at the University of Pretoria, the UN Mandated University for Peace and all those involved in its preparation, that this report will join the growing chorus of calls for respect for the human rights of the Eritrean people, an end to their suffering that should trouble the consciousness of humanity and their right to live in peace, justice and liberty.

3

CONTEXTUALISING THE RULE OF LAW IN ERITREA According to the African Development Bank (ADB), ‘Eritrea’s economy grew by 8.7% in 2011 owing to the commencement of full operations in the gold and silver Bisha mines and to the production of cement from the cement factory in Massawa; … the economy is expected to improve to 7% in 2013 and to grow by 6.5% in 2014, driven by gold production in the Koka and Zara mines and by copper production in the Bisha mine.’1 Against the backdrop of poverty and underdevelopment in Africa, such news should be a cause for celebration as more Africans are ostensibly pulled out of poverty and into a life where they rightfully enjoy their freedoms and fruits of citizenship. Eritrea itself, in its submission to the UN Human Rights Council for its 2014 Universal Periodic Review (UPR),2 describes its view thus: Human rights issues have cardinal importance to the government of Eritrea. In this vein, Government key national priorities are geared towards creating and enhancing the conducive environment for its citizens to exercise their fundamental human rights in the broadest definition of the term. The GoSE’s unequivocal commitment to achieve this goal must naturally be gauged with the enormous challenges that it has to grapple with.3

In this report, Eritrea lists new laws such as the Water Proclamation No. 162/2010, Proclamation No 170/2012 to establish the Eritrean Crops and Livestock Corporation and Proclamation No 173/2013 to privatise state owned enterprises4 to illustrate its efforts in improving the lives of its citizens. Eritrea goes on to list its ‘Key National

1

2

3 4

African Development Bank, African economic outlook 2013. http://www.afdb.org/ en/countries/east-africa/eritrea/eritrea-economic-outlook/ (accessed 28 March 2014). National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, UN Doc A/HRC/WG.6/18/ERI/1 (Eritrea UPR Report 2014). Eritrea UPR Report 2014 (n 2 above) para 5. Eritrea UPR Report 2014 (n 2 above) para 4-5. 4

Priorities’5 as, among others: (a)

Safeguarding the sovereign rights …;

(b)

Effecting social justice by ascertaining universal or wide access to food security, health, education, infrastructural facilities as well as the reduction of rural/urban disparity …;

(c)

Human resource development: … Access to free education up to the tertiary level; the provision of health services at highly subsidised cost, regular budgetary allocations for the upkeep of disadvantaged segments and groups of society; …

(d)

Environmental protection: A number of environmental protection laws have been enacted …

In addition, Eritrea asserts in this same report that Proclamations No. 166/2012, 167/2012, 168/2012 and Legal Notice No. 120/2012, are laws passed in 2012, “with the aim of enhancing access to and better delivery of justice. The amendments encompass appropriate changes in the jurisdiction of courts; refinement of the procedural laws as well as the introduction of new laws of more effective enforcement. The cumulative effect and objectives of the said proclamations are: (a)

The adjudication of minor civil litigations by Community Courts enhances people’s access to justice with less cost. […].

(b)

The new laws and guidelines of enforcement ensure that the delivery of justice is swift thereby augmenting the overall efficiency and effectiveness of the judicial system.

(c)

Independent and accountable judicial services: the new laws have introduced more stringent procedures and rules to hold the judicial and prosecutorial personnel more accountable for their functions and responsibilities.

(d)

[…] the new legislation will bridge the acute shortage of qualified legal professionals that the judiciary is experiencing.

On paper, all seems to be on track. Eritrea, like many other resource constrained African countries, juggles urgent and competing priorities with a view to ensuring the widest possible enjoyment of human rights for its people. But even a cursory reading of human rights sources, from the dialogue of intervening states at the UPR in

5

Eritrea UPR Report 2014 (n 2 above) para 5. 5

2014,6 the official documents of the UN,7 universal8 and African9 human rights bodies and their rapporteurs,10 through to civil society reports and witness accounts of Eritreans in exile shows a very different picture. The stark mismatch of descriptions of Eritrea can be accounted for by considering the application of the principles of rule of law. The UN defines the rule of law as: … a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decisionmaking, legal certainty, avoidance of arbitrariness and procedural and legal transparency.11

When realised in a society, the rule of law ensures equality before the law and guarantees to all, equal protection of the law, regardless of

6 7

8

9 10

11

See Annex II of this report. UN Human Rights Council, 23rd session, ‘23/… Situation of human rights in Eritrea’ UN Doc A/HRC/23/L.17 10 June 2013. Also reported by the Working Group on Enforced or Involuntary Disappearances (WGEID), see (A/HRC/22/ 45), http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSes sion/Session22/A.HRC.22.45_English.pdf (accessed 28 February 2013). Opinions adopted by the Working Group on Arbitrary Detention (A/HRC/10/ 21/Add.1), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/107/13/ PDF/G0910713.pdf?OpenElement (accessed 28 February 2013). Article 19 v Eritrea, Comm 275/03, 22 Activity Report; also, Liesbeth Zegveld and Mussie Ephrem v Eritrea, Comm 250/02, 17 Activity Report, para 2. Report of the Special Rapporteur on the situation of human rights in Eritrea, Sheila B Keetharuth, 13 May 2014, UN Doc A/HRC/26/45; Report of the Special Rapporteur on the situation of human rights in Eritrea, Sheila B Keetharuth, 28 May 2013 UN Doc A/HRC/23/53; ‘Eritrea: UN expert warns about persisting human rights violations linked to the national service’ 31 March 2014 http:// www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14465& LangID=E (accessed 2 April 2014). Report of the Secretary-General on the rule of law and transitional justice in conflict and post-conflict societies, (S/2004/616) ‘United Nations and the rule of law’, http:// www.un.org/en/ruleoflaw/index.shtml (accessed on 4 March 2013). 6

status.12 An independent and effective judiciary is necessary, ensuring laws are certain and persons do not arbitrarily suffer body or proprietary loss.13 Such a judiciary would be founded on strong institutional bases and bound to accepted legal principles, not simply convened at the convenience of the powers that be. Most African countries, indeed, most countries worldwide, struggle with the maintenance of the rule of law in some form or another. Eritrea, however, is a unique case of the breakdown of rule of law, both in the extremity of the situation and the central role the suppression of free expression has played in this breakdown. The people have a right to know what their government does and how the arms and institutions of state relate with one another. In this way, people can exercise their duty to elect governments that protect them and advance their interests with informed choice.14 A right to vote without informed choice only makes a mockery of democracy. It is difficult to diminish the role journalists play in ensuring the people can make informed choices. Facilitating information flow to society has a definitive watchdog quality, which itself requires that journalists can access public information in order to report accurately and fairly.15 The rule of law demands a system of checks and balances, an acceptance of diversity of opinion and freedom to express these, and independent institutions that can demand accountability based on certainty of laws, aspects of which are severely lacking in Eritrea. All institutions of state and society whose check and balance effect help blunt the excesses of each other, have collapsed. While a number of countries struggle with lack of implementation or enforcement of certain parts of their constitutions, Eritrea’s Constitution remains completely unimplemented, leading to the

12 13

14 15

L Obonyo & E Nyamboga Journalists and the rule of law (2011) 10. See African Charter, article 3. A Gubbay ‘The progressive erosion of the rule of law in independent Zimbabwe’ ZWNews.com (accessed 20 August 2010), as cited in Obonyo & Nyamboga (n 12 above) 10. Obonyo & Nyamboga (n 12 above) 89. Obonyo & Nyamboga (n 12 above) 11. 7

assertion that Eritrea lacks a constitution.16 The independence of the judiciary is non-existent. In July 2001, chief judge of the High Court, Teame Beyene was removed from office and informally banned from appearing on state media after publicly criticising executive interference in judicial matters.17 There is almost no private media in Eritrea, 18 nor are there independent publishing houses or promoters of artistic works.19 There is but a sole political party, the People’s Front for Democracy and Justice (PFDJ), that lacks any distinction from the Executive government,20 in which no divergent opinions are tolerated, the pivotal event here being the September 2001 ‘Crackdown’ on dissenting senior ruling party officials and the private media that published their views. The National Assembly has not met since 2002 and therefore cannot pronounce itself on matters affecting the nation. Legislative functions are taken up by the Executive21 and the ambiguously termed ‘Judiciary Branch’.22 There are no elections of officials to the Executive either, with the Eritrean President on record asserting that such will never be conducted in Eritrea.23 Elections constitute among the foremost indicators of free expression events in any democracy, with campaigns, free choice of voters and judicial redress for any offending behaviour on the part of voters or electoral competitors. The faiths have not been spared either. When Abune Antonios, Patriarch of the Eritrean Orthodox Church proffered divergent opinions, he was deposed by the government in August 2005.24 Only the Catholic Church, Sunni Islam, Eritrean Orthodox Church and Lutheran Church are tolerated. The Jehovah’s Witnesses, for

16 17 18

19 20 21 22 23 24

Interview with exiled Eritrean journalist on 4 March 2014. Report of the Special Rapporteur for Eritrea 2013 (n 10 above) para 40. Also Interview with exiled Eritrean journalist on 21 March 2014. This qualification is the result of the launch, discussed later in this report, of Meqaleh Forto, an independent newsletter that aims to fill this gap in access to information. Interview with exiled Eritrean journalist on 17 March 2014. Interview with exiled Eritrean journalist on 4 March 2014. 2013 Report of the Special Rapporteur for Eritrea (n 10 above) para 39. Eritrea UPR Report 2014 (n 2 above) para 5. Al Jazeera interview with Isaias Afewerki on 22 May 2008 https:// www.youtube.com/watch?v=UAXKsZ8OsWo (accessed 30 March 2014). Interview with exiled Eritrean journalist on 17 March 2014. 8

instance, who did not take part in the independence referendum in 1991, remain suppressed.25 Economic activity is almost exclusively the domain of companies owned by the ruling PFDJ.26 One’s freedom to work in a profession and for an organisation – or self – of one’s choice is curtailed as all able bodied youth are trapped in open-ended national service. The national service involves forcible engagement; working not in reserve armed forces or public service for the common good, but in government owned factories and offices for what could be a lifetime.27 Many Eritreans in the Diaspora consider this practice as one that is analogous to slavery.28 In addition to being mandatory, work in the national service pays too little to sustain an individual’s daily needs and lacks basic protection and benefits such as annual leave.29 As a result of its onerous restrictions and meagre pay, Eritrean youth bound to the national service cannot even reasonably plan when and how to get married and found a family.30 The family and community are not spared either. While traditional religious ceremonies or family and community events like wedding parties are not directly controlled by the state,31 they are nevertheless, closely monitored. In such gatherings, one must 25 26 27 28

29 30 31

Interview with exiled Eritrean journalist on 16 March 2014; see also, 2013 Report of the Special Rapporteur for Eritrea (n 10 above) para 64-66. Interview with exiled Eritrean journalist on 4 March 2014. Interview with exiled Eritrean journalist on 4 March 2014; see also Interview with exiled Eritrean journalist on 21 March 2014. See www.stopslaveryineritrea.com and its petition on Change.org http:// www.change.org/en-GB/petitions/national-service-slavery-in-eritrea-must-stopfull-stop (accessed 27 March 2014). See also, statement of Anti National Service Slavery Campaign (http://asmarino.com/press-releases/2051-anti-nationalservice-slavery-campaign-welcomes-un-findings-) welcoming the finding of UN Special Rapporteur on Eritrea that ‘National service dominates life in Eritrea entirely,’ and these findings confirm her earlier findings: ‘The main reasons spurring Eritreans to flee their country are linked to the indefinite national service and the constant fear of being targeted.’ http://www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews.aspx?NewsID=14465&LangID=E (accessed 3 April 2014). Interview with exiled Eritrean journalist on 4 March 2014. Interview with exiled Eritrean journalist on 4 March 2014. Interview with exiled Eritrean journalist on 4 March 2014. 9

continuously take care to not utter critical views on pain of arbitrary arrest and detention without trial.32 When free expression and association are severely curtailed, invariably so is free movement. In the years following the 2001 ‘Crackdown’, Eritreans could not move about their towns and cities freely without going through checkpoints. While it would seem most of these checkpoints were removed in later years, those on main roads between cities remain in place. Travel around the country requires permits with strict conditions,33 violations of which land many in detention without trial for extended periods.34 Life for Eritreans inside their country has been reduced to one of endlessly looking over one’s shoulder, of rethinking one’s words in casual conversations, of carefully orchestrated news, dissemination of information,35 and working indefinitely and without choice for the government for meagre pay. The Eritrean citizen still requires a visa to leave their own country.36 Such exit visas are predictably hard to come by, so hundreds of thousands of Eritreans, the Office of the United Nations High Commissioner for Refugees (UNHCR) records 300,000 between 2004 and beginning of 2013,37 have fled their country, many on foot across the border to Sudan or Ethiopia. By 2014 an estimated 4000 migrants were leaving the country every month.38 The state’s border guards have been known to operate a ‘shoot-to-kill’ policy to prevent any citizen from leaving.39 And if one manages to get out, lurking in the bushes and deserts of Sudan and 32 33 34 35

36 37

38 39

Interview with exiled Eritrean journalist on 17 March 2014; Interview with exiled Eritrean journalist on 4 March 2014. 2013 Report of the Special Rapporteur for Eritrea (n 10 above) para 67. Interview with exiled Eritrean journalist on 4 March 2014. Interview with exiled Eritrean journalist on 4 April 2014; Interview with exiled Eritrean journalist on 21 March 2014; Interview with exiled Eritrean journalist on 17 March 2014. 2013 Report of the Special Rapporteur for Eritrea (n 10 above) para 67. See UNHCR statistical snapshot http://www.unhcr.org/cgi-bin/texis/vtx/ page?page=49e4838e6&submit=GO; ‘Sudan and Egypt implicated in human trafficking’ http://m.irinnews.org/Report/99632/Sudan-and-Egypt-implicatedin-human-trafficking#.U2H84qDFm8B (accessed 27 March 2014); see also 2013 Report of the Special Rapporteur for Eritrea (n 10 above) para 92. ‘Nearly 4,000 Eritrean flee each month, says UN’ Agence France-Presse, 19 June 2014. 2013 Report of the Special Rapporteur for Eritrea (n 10 above) para 92. 10

Egypt, including the Sinai, are human trafficking gangs that literally buy and sell desperate refugees, extorting unthinkable amounts of money from their families through torture conducted while the victim’s family is on the phone.40 And even if one survives this, there is still the treacherous Mediterranean Sea that has claimed countless souls, including the at least 350 recorded in the September 2013 Lampedusa tragedy.41 All this happens because the state does not tolerate any divergent views. There are no reports of any prosecutions, investigations, commissions of inquiry, or any other indication of attempts by Eritrea to bring to justice perpetrators of the above referred violations. Lack of separation of powers indicates lack of independence of the prosecutorial power, itself a factor in the impunity for the aforementioned violations. Impunity is a manifestation of the lack of rule of law. In the aftermath of the Lampedusa tragedy, the UN High Commissioner for Refugees, Mr Antonio Guterres observed that the fact that refugees resort to such perilous journeys indicates a fundamental failure in protection systems for persons fleeing persecution.42 Although, in keeping with his specific mandate, he laid his emphasis on the need to crackdown on smugglers and traffickers and to provide better access to safety for refugees, it is not hard to see how even more effective protection could be afforded Eritreans if they did not need to so desperately leave their own country.

40

41

42

Trailer of the movie, Sound of torture, by Keren Shayo https:// www.youtube.com/watch?v=FH7lRifbOgg (accessed 2 August 2014). Also, Interview with exiled Eritrean on 2 August 2014. ‘Lampedusa disaster: Death toll hits 250 as Italian divers recover more bodies’ http://www.independent.co.uk/news/world/europe/lampedusa-disaster-deathtoll-hits-250-as-italian-divers-recover-more-bodies-8866782.html (accessed 24 March 2014). UNHCR Briefing Notes, 4 October 2013, ‘Lampedusa boat tragedy – Update’ http://www.unhcr.org/524e8d2d9.html (accessed 27 March 2014). 11

ERITREA’S HUMAN RIGHTS OBLIGATIONS AND RULE OF LAW Many countries face the problem of disparities between their international obligations and the domestic laws that ought to bring the former into fulfilment. Even when there is no such disparity, chances are there exists a gap between what these laws provide for and what obtains in practice. For the countries with systemic checks and balances, this variance is the subject of much public debate and judicial proceedings which progressively close the gap. This is precisely what the rule of law aims at, that is, that there be internal institutions that can facilitate discussion and determine the legal position to best achieve the fullest enjoyment of guaranteed rights. In Eritrea, like in many countries, violations of the right to free speech are legally attributable to both incompatible legislation and offending practice. Moreover, Eritrea lacks strong institutions that can offer checks and balances: a diverse and tolerant political landscape that allows players to justly compete for executive power; a legislature to debate the laws; an independent judiciary to affirm constitutional and statutory norms and impartially adjudicate where disputes arise; and an independent media to raise matters of public interest and facilitate public debate. It is this systemic balance that, taken together, constitutes a cohesive state that closes the variance gaps described above. It is not sufficient to have well-crafted laws but there must also exist institutions that can determine the extent of valid restrictions which are consistent with the values and obligations of an open and democratic society.

Non-implementation of the Eritrean Constitution43 On 27 May 1997, the Constituent Assembly of Eritrea ratified the country’s constitution.44 It provided for all the hallmarks of democratic rule of law: separation of powers; judicial independence; 43 44

On constitutionality and rule of law, see Report of the Secretary-General (n 11 above). Available at http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---pro trav/---ilo_aids/documents/legaldocument/wcms_126648.pdf (accessed 4 March 2013). 12

human rights guarantees; and legal certainty. However, Eritrea’s Constitution remains unimplemented, and the country continues to operate on pre-constitutional transitional powers. The breakdown of rule of law can be seen as a direct consequence of the nonimplementation of the Constitution and the systematic human rights violations reported below stem precisely from the 22 year provisional government’s attempts to crush any dissent over this state of affairs. Below are some of the hallmarks of the unconstitutional legal order and the disrespect of the rule of law that pervades the country.

In 2011, I attended a human rights workshop discussing fair trial rights in Africa. The group discussions were in 2 stages, first a review of constitutional provisions on fair trial and then discussion on the successes and challenges of implementation. Each participant from an African country reported on their situation. When it came to my turn, and much to the disbelief of group members, I had nothing much to say except, there is no constitution. A Somali participant retorted, ‘I lived through the Siad Barre days when some sections of the Constitution were suspended. Maybe you just don’t know the details of your emergency period’. I was hard pressed to explain that truly, there is no parliament, no [independent] judiciary, no media, no free thought and no constitution in Eritrea. Interview with exiled Eritrean journalist, 4 March 2014.

Absence of separation of powers The Eritrean People’s Liberation Front (EPLF) gained de facto control over Eritrea in 1991, issuing Proclamation 23/1992 the following year, which recognised the historical obligation of the EPLF to establish a transitional government while awaiting the formation of a constitutional government.45 The transitional government Proclamation 37/1993 restricted the duration of the transitional 45

Article 19 Eritrea: A nation silenced (October 2012), available at http:// www.article19.org/data/files/medialibrary/3494/Eritrea-Report-2012.pdf (accessed 10 March 2013). 13

government to four years. Despite this limitation, the transitional government remains in power, over two decades later.46 The current transitional government has assumed de facto law making functions reserved for the National Assembly in the Constitution. The Ministry of Justice, part of the executive branch, drafts and publishes laws in collaboration with other relevant executive ministries and the office of the president.47 Non-compliance with international and domestic standards on freedom of expression Eritrea became a member of the UN on 28 May 1993, acceded to the African Charter on 14 January 1999,48 and the International Covenant on Civil and Political rights (ICCPR) on 22 January 2002.49 These three instruments form the basis of Eritrea’s international human rights obligations and guarantee in slightly varying wording but almost identical legal effect, the exercise of free speech. All these instruments agree that free speech is not an absolute right. Unlike, for instance, the prohibition of torture which is outlawed in no uncertain terms, free speech can be qualified and regulated.

46

47 48 49

Proclamation 37/1993, at article 3(2); Constitution of Eritrea, 23 May 1997, available at: http://www.unhcr.org/refworld/docid/3dd8aa904.html (accessed 10 March 2013). 2013 Report of the Special Rapporteur for Eritrea (n 10 above) para 39. ACHPR Official website http://www.achpr.org/states/eritrea/ratifications/ (accessed 28 February 2013). Ratification of ICCPR, therefore validity of Human Rights Committee’s GC 34’s prescriptions over Eritrea’s conduct. Eritrea, it is noted here, has however not ratified the First ICCPR Optional Protocol and its actions/omissions cannot therefore be complained of before the Human Rights Committee. 14

UDHR 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. ICCPR Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. 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 (order public), or of public health or morals. African Charter Article 9 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. Eritrean Constitution Article 19 1. Every person shall have the right to freedom of thought, conscience and belief. 2. Every person shall have the freedom of speech and expression, including freedom of the press and other media. 3. Every citizen shall have the right of access to information. 4. Every person shall have the freedom to practice any religion and to manifest such practice. 5. All persons shall have the right to assemble and to demonstrate peaceably together with others. 6. Every citizen shall have the right to form organisations for political, social, economic and cultural ends. 7. Every citizen shall have the right to practice any lawful profession, or engage in any occupation or trade. 8. Every citizen shall have the right to move freely throughout Eritrea or reside and settle in any part thereof. 9. Every citizen shall have the right to leave and return to Eritrea and to be provided with passport or any other travel documents.

15

The treaty body that monitors the ICCPR, the Human Rights Committee, in its General Comment 34,50 clarifies the legitimate grounds for restricting the right to freedom of expression, and how such restrictions must conform to the strict tests of necessity and proportionality. The legitimate grounds for restriction listed in the ICCPR are limited to the respect of the rights or reputations of others and the protection of national security, public order, health or morals. When a state seeks to restrict free expression, it must demonstrate two things in a specific and individualised fashion: the precise nature of the threat, and the necessity and proportionality of the specific action taken. It must do so by establishing a direct and immediate connection between the expression and the threat. It must be stressed that the burden of proof rests on the state to make this necessary connection.51 On the basis of proportionality, General Comment 34 finds, for instance, that imposing criminal liability for defamation is a disproportionate response to the need to protect aggrieved persons from injuries caused by irresponsible journalism. It is sufficient that civil procedures be used to redress any such injuries, for criminal liability unduly restricts journalists and others opining through mass media from lawfully expressing themselves. The African Commission, the African Charter’s monitoring body, also reiterates the incompatibility of criminal defamation with Africa’s human rights standards and calls on states parties to the African Charter to repeal any such laws.52 Many of Eritrea’s legal provisions on free speech contravene international obligations.53 Title III of the Transitional Penal Code of Eritrea (TPCE), maintains criminal penalties for defamation,

50 51 52

53

HR Committee, General comment 34, CCPR/C/GC/34, available at http:// www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf (accessed 10 March 2014). General comment 34, para 35. On the incompatibility of criminal defamation with respect for freedom of expression, see General comment 34, para 38, 47. Resolution on repealing criminal defamation laws in Africa, ACHPR/Res 169 2010; available at: http://www.achpr.org/sessions/48th/resolutions/169/ (accessed 13 July 2014). For a fuller treatment, see Article 19 (n 45 above) 24-33. 16

calumny and insulting behaviour and outrage.54 The Press Proclamation No 90/199655 appropriates the purpose of journalism to serving executive interests such as ‘developing public control’ and affirmatively contributing to the clarification of ideas ‘helpful to the organs of government in rendering solutions’.56 The Proclamation further prohibits, among other things, the dissemination of material that ‘promotes the spirit of division and dissension among the people’ or that contains ‘inaccurate information or news intentionally disseminated to influence economic conditions, create commotion and confusion and disturb the general peace.’57 These vaguely worded grounds for prohibition expose journalists to undue restrictions. It also contains provisions creating penal liability for a wide range of offences, and contains onerous licensing requirements. Article 6(1) restricts newspaper and press ownership to Eritreans and article 4(1)(d) reserves radio and television broadcasting to the state, contrary to international standards.58 This, in effect, prohibits foreign funding of the local press.59 Article 4(1)(c) of the Press Proclamation allows blanket derogations to be made from the right to freedom of expression and information during periods of emergency. The cumulative effect of these laws is therefore not the guarantee of free expression but the creation of derogations and exceptions that render the right unavailable.

54 55 56 57 58

59

Article 19 (n 45 above) 34. Press Proclamation No 90/1996, available at: http://www.unhcr.org/refworld/ docid/48512e992.html. Article 4(2) of the Press Proclamation. See article 19 (n 45 above) 25. Article 19 (n 45 above) 31. Article 19 (n 45 above). See also General comment 34 para 40 on ownership of the media. See also African Commission on Human and Peoples’ Rights Declaration of Principles on Freedom of Expression in Africa (23 October 2002) Principles V to VIII on public and privately owned media. Interview with exiled Eritrean on 21 July 2014. 17

The Proclamation that guaranteed freedom of expression states in its article 1(b), ‘The censorship, suspension or banning of newspapers and other press products administratively, except under the provisions of this Proclamation or with the approval of the competent court, shall be prohibited.’ On the contrary, all press products – be it of the now non-existent private newspapers or that of the state owned media – have, since independence, been undergoing strict censorship. Interview with exiled Eritrean journalist, 21 March 2014.

Lack of judicial independence and judicial remedies Eritrea does not have a Supreme Court although the Eritrean Constitution envisages one. A five judge bench at the High Court hears final appeals in lieu of a Supreme Court. This final appeals panel at the High Court, which is at the same level of all other benches in the High Court, functions much like a Supreme Court and is the bench of last resort. Most of Eritrea’s governmental functions, including the creation of courts are conducted on a de facto rather than a de jure basis, as indicated above, thereby precluding any sense of rule of law. Moreover, despite the existence of various domestic legal provisions unduly limiting the exercise of free speech in Eritrea, the judicial application of these provisions in the closure of media houses and detention of journalists and other persons expressing their opinions is rare. It is testament to the collapse of the rule of law that those detained are rarely charged with offences even under such rights limiting legislation. Nor are there any reports of Eritrean courts being asked to affirm the legality of the clampdown on press freedom.

18

SUPPRESSION OF FREE EXPRESSION AS AN ATTACK ON THE RULE OF LAW IN ERITREA60

EPLF had a secrecy culture, which has been carried over to [PFDJ] today. The people were never informed of the situation of the war, where their conscripted children were, whether killed in action or not, and had no say in how they were affected. Interview with exiled Eritrean journalist, 25 February 2014.

Prelude to dictatorship: Human rights before September 2001 Some have argued that intolerance of dissenting opinions has its roots in Eritrean culture. Tradition does not seem to allow the governed to question the wisdom of the actions and decisions of the one who governs. The first dictator in Eritrea is the father in the family, who exercises unfettered discretion in deciding the fate of everyone in the family.61 There is no freedom of expression in the family, no freedom of expression in the village, and so no freedom of expression in the country. This seems to play into the hands of the regime, which simply uses the same cultural model to govern the country. During Eritrea’s war of independence, the human rights situation was poor and the violations witnessed then can be said to have largely continued into the post-independence era. Arbitrary arrests and torture of villagers as well as forceful conscription of children as young as 15, was practiced by the belligerents. Villages that resisted the conscripting of their children or showed reluctance to hand over their food reserves would receive collective punishments. Children 60

61

On the chilling effect on freedom of expression of targeted attacks against the life or liberty of key figures, see Joint Declaration on crimes against freedom of expression http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx? NewsID=12384&LangID=E (accessed 4 March 2013). Interview with exiled Eritrean journalist on 17 March 2014. 19

would be abducted when fetching water. Whole villages were known to relocate to refugee sites in Sudan to escape the toll the revolutionary war was taking on their lives and livelihoods.62 Arbitrary arrests, denial of fair trial and the right of habeas corpus63 through indefinite detention incommunicado, torture and other cruel, inhuman or degrading treatment or punishment and violations of international humanitarian law, continued to occur through the postindependence period before the Crackdown of 2001. The human rights situation in Eritrea can be said to have been poor for long and 2001 was only an intensification of violations. The refusal of the Jehovah Witnesses to participate in the independence referendum or to join the national service led to an executive order issued on 25 October 1994 that excluded them from public employment, commercial enterprise and denied them the right to receive identity documents.64 The revolutionary fighters were also, ironically, among the first to be short changed after independence. In April 1993, just days before formal declaration of independence, the president announced that fighters will remain without pay for another 2 years. A brief reactionary mutiny resulted in their mass

62 63

64

Interview with exiled Eritrean journalist on 25 February 2014. ‘A survey of 181 national constitutions reveals that 118 provide for a remedy in the nature of habeas corpus. Of these, sixty-four contain an express statement granting the right to a judicial determination of the lawfulness of a person’s detention. Four prohibit the suspension of habeas corpus. Fifty, a large number of which are Commonwealth nations, provide both a guarantee of liberty and judicial redress for violation of that right.’ B Farrell ‘From Westminster to the world: The right to habeas corpus in international constitutional law’ (2008-9) 17 Michigan State Journal of International Law 3 564. Later, the Constitution of Kenya, 2010, in article 25(d) also declares an order of habeas corpus a substantive right. The Inter-American Court of Human Rights declared habeas corpus a nonderogable right under the treaty despite the text not mentioning it as it constitutes a judicial guarantee to protect human rights. See Habeas corpus in emergency situations (arts 27(2), 25(1) and 7(6) American Convention on Human Rights) Advisory Opinion of 30 January 1987 Ser A/Doc 8. See also EA Faulkner ‘The right to habeas corpus: Only in the other Americas’ (1994) 9 American University International Law Review 3 653-687. DR Mekonnen & S Kidane ‘The troubled relationship of state and religion in Eritrea’ (2014) 14 African Human Rights Law Journal 260-61. 20

arrest and prolonged detention incommunicado.65 These ex-fighters were reportedly held until heavy losses experienced during the Badme War forced the state to send them to the war front.66

I was a development worker prior to becoming a journalist. […] On April 17 2001, I was arbitrarily detained and taken to a secret prison by the military intelligence unit (Border Surveillance Unit) called Aderser or Hadish-Me'asker. This is a remote centre, an underground facility. On 15 May 2001, I was transferred to what is officially the military training centre in Sawa but is actually a terrible prison. We were beaten, tortured and forced to work. It was a terrible experience. I found many people in the Aderser facility. Many had been arrested for violating the terms of their upcountry movement permits by straying beyond the limits determined in the permits. There were also National Service members who were imprisoned for reporting late after leave (these were kept in grass huts rather than the underground cells) and Sudanese Prisoners of War (POWs) from a battle in 1997 who were detained in secret. I managed to escape on 21 May 2001. I had to walk for 3 days to cover about 100 kms in a hostile arid area to reach Teseney town where I stayed hidden for some time. There were roadblocks on roads so one needed to organise papers to move back to Asmara. Interview with exiled Eritrean journalist, 4 March 2014.

Predictably, freedom of expression, in both private and state-owned media, fared no better during this period.67 During the Badme War from 1998, the situation worsened. Even the private media exercised 65

66 67

‘Demonstration in Asmara in April 1993 by former Eritrean People's Liberation Front (EPLF) fighters; arrests of participants and organizers [ERT34931.E]’ http://www.ecoi.net/local_link/175764/277895_en.html (accessed 31 July 2014). This source compiles excerpts of several sources reporting this mutiny. See also, Interview with exiled Eritrean journalist on 25 February 2014. Interview with exiled Eritrean journalist on 25 February 2014. Interview with exiled Eritrean journalist on 21 March 2014. 21

self-censorship as the social pressures of the war mounted. ‘Almost every Eritrean family had a family member in the war front, and the media felt the need to give moral support and not frustrate the people’.68 But defeat in the Badme War constituted a tipping point. Ethiopia’s counterattack advanced almost 100 kilometres into Eritrea. This led to a leadership crisis within the ruling party.69 Some within the regime, the G-15 in particular, began to speak out.

[…] when I arrived in Asmara to find that the private media had begun, […], to publish stories on the disputes going on within the ruling party. These disagreements had been kept secret, so it was a sudden explosion of open criticism directed at the President and his allies for the many problems and mostly the country’s defeat in the Badme War. It really seemed as if open criticism exploded all of a sudden. While in prison I met an inmate that […] we could discuss politics. We had analysed the situation and thought through the options. The human rights situation was already grim. The fighters and population felt oppressed. The Badme War had been a major loss and the transition to constitutional rule had stalled. Yet the party seemed too strong inside the country so there was no hope for outside intervention. So we hoped that there would be a split in the party so that there is more internal criticism. This way, we hoped, each side would compromise for there to be some progress. […] I was happy to find that this was happening. The president had been forced to accept elections and an election board, for instance. The suffering of the people and effects of the war were being discussed. However, by September, the Crackdown happened. I didn’t imagine that when the Crackdown started that the extreme situation would last so long! At the time, it seemed too extreme to last. Interview with exiled Eritrean journalist, 4 March 2014.

68 69

Interview with exiled Eritrean journalist on 25 February 2014. Interview with exiled Eritrean journalist on 25 February 2014. 22

The Crackdown of September 2001 In May 2001, eleven former Eritrean government officials, all senior members of what was known as Group of 15 (G-15) of the ruling PFDJ wrote an open letter to ruling party members criticising the Government for ‘acting in an illegal and unconstitutional manner’ and called on all PFDJ members and the Eritrean people in general, to express their opinions through legal and democratic means.70 In Article 19 v Eritrea, the open letter in question is reported as issued in August 2001.71 In July 2001 the chief judge of the High Court, Teame Beyene, was removed from his post after complaining of executive interference in judicial proceedings and calling for the dismantling of the Special Courts.72 On 18 and 19 September 2001,73 the government, in response to the open letter conducted a major crackdown ostensibly on national security grounds. Eleven of the Group of 15 as well as at least 19 journalists were arrested; all private media houses were shut down. The Government accused them of having been openly critical of the Government policies and for having committed a crime against State security and sovereignty. Given that the G-15 were the most senior members of the PFDJ and were considered the closest collaborators of President Isaias Afewerki during the three decades of independence war, this crackdown had a chilling effect on the population, being a clear reprisal for any dissent.

70 71 72 73

Working Group on Arbitrary Detention (n 8 above). Article 19 v Eritrea (n 9 above). 2013 Report of the Special Rapporteur for Eritrea (n 10 above) para 40. Also interview with exiled Eritrean journalist on 21 March 2014. Zegveld and Ephrem v Eritrea (n 9 above) para 2. Also affirmed by the Working Group on Enforced or Involuntary Disappearances (n 7 above). 23

Lack of Rule of Law indicator: Disregard for decisions of internationally mandated bodies The Isaias government has ignored the African Commission and UN Working Group on Arbitrary Detention (WGAD)74 decisions. In Zegveld v Eritrea, the African Commission issued provisional measures, seeking the immediate release of the G-15, measures which have not been respected to date.75 In the final determination of Zegveld v Eritrea, the African Commission called for the ‘immediate release’ of the G-15 prisoners. Their prolonged detention incommunicado, the African Commission wrote, ‘… violates the rights to personal liberty, protection from arbitrary arrest and fair trial’.76 In the Article 19 v Eritrea decision, the African Commission urged the immediate release or trial of the journalists and their immediate access to their families and legal representatives and further recommended that Eritrea compensate them for their suffering. The African Commission also found Eritrea to have violated the rights to personal liberty, protection from arbitrary arrest, fair trial, free expression as well as state party obligations to ensure the enjoyment of guaranteed rights, prohibition of torture and cruel treatment/punishment, and protection of the family.77

74

75 76 77

The Working Group on Arbitrary Detention was set up by the former UN Commission on Human Rights in 1991. Its mandate, renewed in 2006 by the UN Human Rights Council, is to investigate cases of deprivation of liberty that have been imposed arbitrarily. It applies standards primarily from the UDHR but also from any universal human rights treaty the state party concerned may have ratified (ICCPR, Refugee Convention of 1951, International Convention on the Elimination of All Forms of Racial Discrimination). In this way, WGAD has competence over all UN member states, at least on the basis of UDHR standards. WGAD applies five categories in arbitrary detention: (1) When it is clearly impossible to invoke any legal basis justifying the detention; (2) When detention results from the exercise of rights guaranteed by UDHR or international treaties; (3) When there is partial or total disregard for norms of fair trial; (4) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without judicial review; (5) When detention is anti-discrimination norms in international law. WGAD can also take up cases on its own initiative. Zegveld and Ephrem v Eritrea (n 9 above) para 2. As guaranteed by African Charter articles 6 and 7(1). As guaranteed by African Charter articles 6, 7(1), and 9, as well as articles 1, 5, and 18, respectively. See Article 19 v Eritrea (n 9 above). 24

Lack of Rule of Law indicator: Lack of judicial remedies On the availability of effective domestic remedies, the African Commission noted the decision to hold the prisoners incommunicado for several years and to deny them legal representation made it evident ‘that domestic remedies, even if available, are not effective and/or sufficient.’78

78

Article 19 v Eritrea (n 9 above) discussing African Charter article 5. 25

FREE EXPRESSION IN ERITREA TODAY: EFFECTS OF WIDESPREAD REPRISALS The title of a 2012 report by the NGO Article 19,79 best summarises the state of free speech in Eritrea today. The nation in its entirety – not simply one or two institutions or organisations – has been silenced. Various aspects of this silencing are exposed below.

Closure of non-state media houses80 On 18 September 2001, the Eritrean government banned all private press comprising of the following newspapers: Meqaleh, Setit, Tsigenay, Zemen, Wintana, Admas, Keste Debena and Mana.81

According to Section 4, article 1(d) of Press Proclamation No 90/1996, except for radio and television, the ownership of which is reserved for the Government, private ownership of press and all equipment of expression is supposed to be permitted to Eritreans only. Ever since this Proclamation was published, seven private newspapers saw the light of day and achieved broader acclaim. Even during this short-lived era of journalistic rivalry, the eighth parastatal paper of the [National Union of Eritrean Youth and Students] NUEYS as well as the ninth state-run newspaper, which was and is still published in Tigrinya, English and Arabic, carried on to sing praises of eulogies for ‘Eritrea, the youngest nation.’ […] Eri-TV (staterun Television broadcast), Voice of the Broad Masses (state-run radio broadcast), Radio Numa and Radio Zara (state-run entertainment FM channels), state-run newspapers: Hadas Ertra (in Tigrinya), Eritrea Profile (in English), Eritrea al-Haditha (in Arabic) and Eritrea Hadas (in Tigré); Shabait.com (the official website of the Ministry of Information), as well as

79 80 81

Article 19 (n 45 above). On a free press as a key constituent of Freedom of Expression, see General comment 34, para 13, 14, 16, 34, 39, 40 and 42. Article 19 v Eritrea (n 9 above) para 6. 26

Shaebia.org (PFDJ’s official website) are now the major media outlets operating in the country. No foreign reporter or correspondent is allowed in. Interview with exiled Eritrean journalist, 21 March 2014.

In February 2009, the authorities shut down Radio Bana. What is significant here is that Radio Bana was itself state-run. With no more private media to close, Eritrea expelled the last resident foreign reporter, Jonah Fisher (BBC, Reuters), in September 2004 after he reported on human rights issues.82

PFDJ’s Hdri Publishers is the only publisher that publishes books for which the cost is prepaid in its entirety in hard currency. It is illegal in Eritrea for nationals to get hold of hard currency for whatsoever reason. There are other private printing houses and that of PFDJ that publish books, leaflets, brochures, flyers and so on upon approval of the Ministry of Information. Casa Delle Italia and Art Gallery are the only places that host once in a blue moon exhibitions of works of art that primarily focus on nature and culture. Cartoons of light or serious political content or abstract ideas do by no means get green light for exhibition. Most of those who were and are detained possess exceptional artistic skills. A number of them have already published books of poetry, short stories and other works of art. It’s their pen that ended up in mass arrest. Interview with exiled Eritrean journalist, 21 March 2014.

Collapse of the journalistic profession in Eritrea Like all professions, journalism has evolved into a societal institution in its own right, complete with its distinct skills, institutions, 82

Interview with exiled Eritrean on 21 July 2014. 27

traditions and guiding principles. Professions rely as much on transmission of traditions and values developed through accumulated experience, as they do on the technical innovations that mark contemporary times. It is not enough that one be acquainted with the latest gadgets and technologies. Rather the transmission of age old values, together with proper technical formation, forms the basis of professional practice. The journalistic profession operates on the following tenets: • • • • • •

Commitment to truth through fact-checking Protection of sources Access to public information Independence from news sources Unbiased proportional reporting Reliability and accuracy.83

In many ways, journalists are required by their profession to conduct themselves much like public officials, as the nature of their work affects the public good. This means executing their role without fear, favour or prejudice. The above tenets and the principles underlying them do not exist in a void. Their exercise requires an environment that promotes, or at the very least does not stifle their ability to flourish through legal, administrative, economic or other measures. Lack of professional training and mentorship Against the above standards, Eritrean journalism fairs poorly. 83

See African Commission Declaration on Principles of Freedom of Expression in Africa; ‘Code of Conduct under Media Act of Kenya (2007)’ and ‘Ethics and Integrity – Chapter Five’ in Obonyo & Nyamboga (n 12 above) 27-31, 56-68; International Journalists Network, ‘Guiding Ethical Principles for Journalists’ http://ijnet.org/ ethics-journalism/part-one-guiding-ethical-principles-journalists. The ‘Standards and Values’ section of the Reuters Handbook of Journalism lists ‘10 Absolutes of Reuters Journalism’: Always hold accuracy sacrosanct; Always correct an error openly; Always strive for balance and freedom from bias; Always reveal a conflict of interest to a manager; Always respect privileged information; Always protect their sources from the authorities; Always guard against putting their opinion in a news story; Never fabricate or plagiarise; Never alter a still or moving image beyond the requirements of normal image enhancement; Never pay for a story and never accept a bribe http://handbook.reuters.com/index.php?title =Standards_and_Values (accessed 30 March 2014). 28

Veteran accomplished journalists are either detained incommunicado or in exile thus denying young minds the benefits of apprenticeship. The education system as a whole is militarised and proper professional training in journalism is particularly curtailed. Before the Crackdown, journalism was taught as a course at the University of Asmara. After the dismantlement of the university in 2003/2004, tertiary training lost all semblance of academic freedom. It is highly unlikely any journalistic training is bereft of ruling party ideological content (which is inherently antithetical to free speech).84

There is no hope for the youth. Even in education, they do not have models of educated people who are successful. As you approach completion of secondary school, all that awaits you is the Sawa facility. The younger ones hear of the horrible stories from their elders and this affects them. One can find unaccompanied minors, aged as young as 8, who also have this hopeless mentality. “Everything in Eritrea is bad while everything outside Eritrea is good” Interview with exiled Eritrean journalist, 4 March 2014.

The professional daily life of those working in the remaining state owned media houses in Eritrea does not inspire confidence in the future of journalism. Most of the Eritrean Ministry of Information staff are not professional journalists, but rather conscripts from the national service and the army. Their work is not guided by a commitment to truth and unbiased proportional reporting. Rather, reporting is wholly committed, on pain of arbitrary arrest,85 to advancing the ‘best interests of the regime’ and the personal whims of the politically appointed chain of command.86 This creates significant pressure on individuals to self-censor.87 84 85

86 87

Interview with exiled Eritrean on 21 July 2014. The respondents are unanimous in the view that the prospect of arrest, incommunicado detention and serious ill-treatment at any time is the foremost concern of any journalist or any person expressing their views in Eritrea since September 2001. Interview with exiled Eritrean journalist, 21 March 2014. Interview with exiled Eritrean journalist, 16 March 2014. 29

Lack of access to public information Access to public information enables fact checking and the balanced reporting of divergent views. When journalists lack access to public information, reporting is greatly hampered and can easily fall short of its obligations to fairness and accuracy.88 By restricting access to public information such as budgets, security policy, agricultural or meteorological information,89 health and other population related statistics, the Eritrean government effectively restricts the scope of journalism. Some consider these restrictions on even the most mundane of public information as a carryover from the ingrained practices of the EPLF in the independence war period to the PFDJ that is the government and ruling party today.90 In practice, one needs authorisation or show affiliation to a government agency to get an interview with a public official or even get information on crop assessments in a rural area.91 Even before the Crackdown, the government showed a bias for state owned media, granting them access to state officers and functions and denying those from private media similar access. There were exceptions, from time to time, like in March 2001 in the lead up to the 10 year independence anniversary, private media were granted audience with the president. Even then, journalists had to submit questions for vetting in advance and only those deemed favourable were eventually picked to formally question the president.92 Since the Crackdown, public access to information remains at its lowest ebb. Anyone seeking information or fact checking information about government is forced either to do so covertly by cautiously throwing in leading questions in a casual conversation,93 or restrict their queries to only those they have absolute confidence in.94 This 88 89 90 91 92 93

94

Obonyo & Nyamboga (n 12 above) 11. Interview with exiled Eritrean journalist, 16 March 2014. Interview with exiled Eritrean journalist, 25 February 2014. Interview with exiled Eritrean journalist, 16 March 2014. Interview with exiled Eritrean journalist, 17 March 2014. ‘… most of my sources would give information without even knowing that they are passing information’. Interview with exiled Eritrean journalist, 17 March 2014. Interview with exiled Eritrean journalist, 4 April 2014. 30

cautious stance is maintained, whether one is in the country or in exile, to protect family members or other exiles with whom one associates. The danger is especially significant for exiles living in African countries.95

People have to rely on rumours. Many times it ends up being the truth. […] Practising journalism is not easy. We rely on information coming from inside the country but have to do our own fact-checking, comparing accounts from various sources. Sometimes, the regime does its own misinformation so we have to be careful about what news we put out. There was a story about last week about prison break and we took our time before running the story, only to find that the information was not reliable. Another example is the case of the rumour of the president’s death that happened last year. We didn’t say anything when many other sources picked it up and the story was all over the place. He had simply disappeared for 5 days. This was in April so we decided to wait until May to see if he will miss the Independence Day celebrations at which point he made a public appearance again. Interview with exiled Eritrean journalist, 4 April 2014.

Severe restrictions on all forms of publication and their dissemination Publication and dissemination of information are guaranteed as rights to express and receive information respectively under articles 9(2) and 9(1) of the African Charter. It is difficult to imagine the extent of restrictions that the free flow of information has been subjected to in Eritrea. The case of the closure of privately owned news media houses is sufficiently well known. Circulation of print media outside Asmara is poor, and has been even before the Crackdown.96 With the Crackdown, there is little interest in print media among the public, save for keeping abreast with miscellaneous legal notices.97 95 96 97

Interview with exiled Eritrean journalist, 16 March 2014. Interview with exiled Eritrean journalist, 4 March 2014. Interview with exiled Eritrean journalist, 4 April 2014. 31

It is not just the news media that has been suppressed. Academic freedom and free artistic expression has also severely suffered. There is but a single publishing house remaining, Hdri, which is owned by the ruling party.98 Africa World Press, a respected academic publisher founded in 1983, published works of African and africanist intelligentsia in both Asmara, and Trenton, New Jersey. Its owner, Kassahun Checole, is one of the signatories of the ‘Berlin Manifesto’, a letter authored by thirteen Eritrean intellectuals in October 2000 and addressed to the Eritrean President.99 The letter was critical of several government policies, including the leadership style of the President. All authors of the letter were unreservedly denounced by the government as enemies of the state. As a result, Africa World Press was driven out of Asmara. It continues to publish from Trenton.100 Circulation of news and information is also suppressed by strictly controlling printing services in the country. Even the most ordinary printing works such as invitation cards to personal or family functions require permits from the Ministry of Information, otherwise no printing press will accept to do the work.101

98

Interview with exiled Eritrean journalist, 21 March 2014; Interview with exiled Eritrean, 21 July 2014. 99 Interview with exiled Eritrean, 21 July 2014. 100 As above. 101 Interview with exiled Eritrean journalist, 17 March 2014. Another source confirms that this permit requirement is specific to those announcements to be broadcast on state media. Interview with exiled Eritrean, 21 July 2014. 32

Any foreign journalist or diplomat needs to first acquire a travel permit from the Ministry of Information. He/she is not allowed to move outside the permitted area. Names of those who escort the crew are registered for security reasons. […] I remember a BBC Expedition team that filmed the Red Sea some five or so years ago mentioning in their documentary that it took them ten months to get the papers. PFDJ’s Research and Document Center is an archive that houses a large collection of reference materials – most of them out of reach for researchers. Interview with exiled Eritrean journalist, 21 March 2014.

Internet Censorship102

I was working under cover. I would cover stories without letting anyone know I was doing so. I would go to a public cyber café, attach and send these reports to my contacts outside. This was very dangerous but I did so anyways. Sometimes, I would use my name and inform the receiving contacts that they can use my name in the by-line, but even they would refuse to publish my name and would in turn edit any information that could identify me. One such news source republished some of my articles after they learnt I had successfully left Eritrea. Interview with exiled Eritrean journalist, 16 March 2014.

Eritrea has an extremely small telephone network, one with the least number of internet hosts of any country in the world. The combined mobile and fixed line telephone reach is around five percent. As a result, usage statistics for all phones and the internet are also amongst the lowest globally; internet penetration rates are half the continent’s

102 On incompatible restrictions on internet access/use with respect for freedom of expression, see General comment 34 para 12, 15 and 43. 33

average.103 The share of households with a computer is 1.5% of the total population, and share of individuals using the internet is 0.9%. As a result, the use of social media tools, such as Facebook and Twitter, is extremely limited. In addition, text messaging on mobile phones is disabled, both within the country and from abroad.104 There is no law that addresses internet use in Eritrea, including operation, hosting and ownership. Information flow via internet does not seem to be a serious threat to the government's monopoly of information, simply because of the internet penetration levels described above.105 In December 2008, an Eritrean Diaspora website reported that intelligence officers had raided an internet café in Asmara and arrested youth for accessing opposition websites. The article also stated that government officials had summoned internet service providers and warned them not to allow customers to access such websites.106

103 Internet World Stats ‘Africa Internet Usage Statistics’, 2011, http://www. internetworldstats.com/africa.htm#er as cited in Article 19 (n 45 above) 10-11, n 22. See also, ‘Eritrea’s communication disconnect’ http://www.businessweek. com/articles/2014-06-26/eritrea-worlds-least-connected-country-tech-wise#p1 (accessed 22 July 2014). 104 Interview with exiled Eritrean on 21 July 2014; Interview with exiled Eritrean on 4 August 2014; Interview with exiled Eritrean journalist on 4 August 2014. 105 For a brief critical appraisal of internet penetration, costs relative to living standards and effects of free flow of information, see http://www.ictworks.org/ 2014/08/01/understanding-eritreas-exceptionally-limited-internet-access/?utm_ source=rss&utm_medium=rss&utm_campaign=understanding-eritreas-exceptio nally-limited-internet-access (accessed 5 August 2014). 106 http://www.assenna.com/index.php?option=com_content&task=view&id=130 2&Itemid=70 (accessed 5 January 2008), as cited in Human Rights Watch (HRW) ‘Service for life’: State repression and indefinite conscription in Eritrea (April 2009) n 245. 34

FROM ARBITRARY ARRESTS TO SUBTLE CONTROL OF THE MESSAGE Although rare, there have been a few positive developments in Eritrea with respect to the situation of journalists. In early 2012, for instance, Tesfalidet ‘Topo’ Mebrahtu, a well-known sports journalist who worked for state-owned radio Dimtsi Hafash and state-owned Eri-TV, was ‘released on bond’ after being held for 10 months.107 Also, in April 2012, a journalist Said Abdulhai, arrested in March 2010, was released.108 On 21 January 2015 six Radio Bana and Eri-TV journalists arrested in the week of 22 February 2009 were unexpectedly released on bail. The six, Ghirmay Abraham, Bereket Misghina (also known as Wedi Misghina), Meles Negusse, Petros Teferi (also known as Wedi Qeshi), Basilos Zemo and Yirgalem Fisseha (f), had been in detention without charge or trial for six years, having served the longest of the journalists arrested in February 2009.109 Eight of their colleagues had been released in April 2013.110 On 13-15 March 2015, BBC World News aired ‘Our World: Inside Eritrea with Yalda Hakim’, a news report shot in Eritrea. It was the first time since Jonah Fisher’s departure that a Western news channel had reported in Eritrea.111 However, Aljazeera and Press TV had previously interviewed President Isaias112 and reported from

107 Reporters without Borders (RSF) ‘Three journalists held since 2001 die in Eiraeiro prison camp’ http://en.rsf.org/eritrea-three-journalists-held-since-200130-08-2012,43298.html (accessed 25 February 2013). 108 RSF ‘Detained Eritrean journalist admitted to hospital in serious condition’ http:/ /en.rsf.org/erythree-detained-eritrean-journalist-06-04-2012,42276.html (accessed 25 February 2013). 109 PEN International ‘Eritrea: Writers released after six years’ arbitrary detention’ Press Release 23 January 2015. 110 ‘CPJ welcomes release of six Eritrean journalists’ Press Statement 23 January 2015. 111 ‘BBC World News cameras allowed into Eritrea for the first time’ Media Update 9 March 2015 http://www.mediaupdate.co.za/News/Article/73624/BBCWorld-News-cameras-allowed-into-Eritrea-for-the-first-time (accessed 12 March 2015). 112 Al Jazeera interview (n 23 above). 35

Eritrea respectively.113 Despite these encouraging developments, almost all free speech in Eritrea, whether private or public, institutional or individual, news broadcasting or artistic or academic works, is firmly in the hands of the regime. Now, the suppression of free speech is shifting to a more subtle struggle to control the message, without necessarily leaving aside the old heavy-handed tactics. Eritrean free speech has moved abroad. The flight of journalists, artists, intellectuals and indeed citizens of all walks of life has been documented above. These have carried their skills and are using them to reach out to friends and family still inside Eritrea as well as testify on their experiences while in Eritrea. In fact, most of what is known about the happenings in Eritrea is thanks to these brave few. But also, those who remain inside the country continue to take unimaginable risks to communicate with the outside world.114 This has led to a shift in the fight for the media landscape. It is, in many ways, a game of spin and counter-spin.115

Pervasive editorial spin The suppression of free speech does not only result from closure of independent news sources and restricting the flow of information, but also from misinformation through the selective propagation of state approved information. Eritrean mass media is currently characterised by suffocated information and disinformation. Editorial and opinion pieces in print and broadcast media are ‘spin-doctored to impart favourable predisposition towards the government’s policy.’116 No critical opinions on matters such as elections, the Constitution, or the land tenure system is allowed. Similarly, key officials who fall out of favour with the ruling party find themselves under an undeclared media blackout.

113 Press TV ‘Eritrea: A nation in isolation’ 24 October 2012 https:// www.youtube.com/watch?v=n9YqRvevtV4 (accessed 31 March 2015). 114 Interview with exiled Eritrean journalist on 16 March 2014. 115 ‘Their target is the Diaspora where they have their support base. Ours is the people who remain inside the country.’ Interview with exiled Eritrean journalist on 4 April 2014. 116 Interview with exiled Eritrean journalist on 21 March 2014. 36

This is not restricted to domestic matters. Information gatekeepers pay keen attention to international and regional on-goings that are deemed inappropriate for local consumption. The local reporting of the popular overthrow of dictatorial regimes in North Africa, commonly referred to as the Arab Spring of 2011, is indicative of this policy of spinning information. When former Egyptian president Hosni Mubarak stepped down bowing to popular pressure to leave office, this was reported as a simple fact message without the context of popular uprising which led to this.117 When Eritrean soldiers mutinied and took siege of the Ministry of Information headquarters, Eri-TV went off air, only to resume with news of unusually heavy snow in Paris in February.118 As the Arab Spring news story became too big to ignore, it was spin-doctored as a popular uprising against US backed regimes.119 Similarly, the Eritrea-Djibouti border conflict was not covered by local Eritrean media. It was only reported to the Eritrean people by international and Diaspora news media.120 Again, when the Zambian people voted out the incumbent Rupiah Banda and elected opposition leader Michael Sata as president in a largely peaceful election in September 2011, local Eritrean media broadcast pictures of a riot in a small northern town.121 These examples indicate a trend, if not policy, to report with a complete lack of context, international news stories of violent elections, violence in unstable countries such as Iraq or Afghanistan and natural catastrophes. This contrasts with the depiction of Eritrea as a proud nation that won its independence by its own initiative, is free of rebel groups, and is an island of peace in a conflict-ridden neighbourhood whose only misfortune is the derailment plots of the West and their regional allies.122 In line with this trend, the sole book publisher, Hdri, only 117 Interview with exiled Eritrean journalist on 4 April 2014. 118 RSF, ‘What really happened at Asmara’s ministry of (dis)information?’ (24 January 2013) http://en.rsf.org/eritrea-what-really-happened-at-asmara-s-2401-2013,43947.html (accessed 31 July 2014). 119 Interview with exiled Eritrean journalist on 21 March 2014. 120 As above. 121 Interview with exiled Eritrean journalist on 17 March 2014. 122 Interview with exiled Eritrean journalist on 21 March 2014. 37

disseminates texts glorifying the armed struggle and portraying the ruling party as saviours of the nation.123

The ‘03’ rumour system One can see ‘the rumour system’ in Eritrea as an age-old social media platform. With the suppression of most other forms of communication, Eritreans continue to rely on their communal palaver systems of passing information. However, even this system, called ‘03’, has not escaped state control. Well, there is the informal rumour system called “03”. It is actually very centrally organised and operated and I know this as I spent some time working in state media. There are five people, who meet once a month, (during the Badme War, they met more frequently). These five control what goes out. It is said that during the Italian times, the Italians would say the Eritreans are faster than the telephone. Our culture is very oral and word of mouth passes very fast, particularly around the coffee drinking rituals that we love so much.124

Suppression of foreign and diaspora media Professional Eritrean journalism has been driven into exile, from where they have set up news networks to continue the work of reporting on the situation in the country. Through radio and internet sources, they provide a vital alternative voice to Eritreans in Eritrea. Expectedly, this is not viewed favourably by the government. One diaspora radio reports having been jammed by the government, with the result being its inability to air for three months. State run media also monitors Diaspora news sources and actively works to counter any information they deem inappropriate. To counter this disinformation, diaspora news sources make it a point to highlight misleading information in state media and attempt to explain the context or provide complete facts.125

123 Interview with exiled Eritrean journalist on 17 March 2014. 124 Interview with exiled Eritrean journalist on 17 March 2014. 125 Interview with exiled Eritrean journalist on 4 April 2014. 38

We have many listeners and get a lot of feedback. I run a programme on refugees and missing persons. I get phone calls from inside the country, families and friends reporting on their missing persons. We also have a Sunday programme where people call in to dedicate songs; this is very popular. They send to us through sms (cell phone texting) and via Facebook too. We have this well-known Eritrean singer who hosts the show. He calls ministers and other government officials, making crank calls. He is funny and people like that. People dedicate to their families inside and outside the country. We announce the first names only just to help protect identities because communicating with our radio would probably get people in the country into problems. Interview with exiled Eritrean journalist, 4 April 2014.

Reporting the work of the courts One of the ways in which the rule of law in a society is allowed to flourish is with the reporting of the work of the courts and the check and balance effect of various state institutions resolving their differences in the courts. This allows the people to see the moderating value of judicial institutions, witness the checking of excesses and gain confidence that the constitutional order is implemented without bias and in accordance with accepted principles. The reporting of judicial action is very rare in Eritrea, particularly of judicial control on the legality of government action. There is no information of such reporting except for family succession disputes and rare violent crimes. Instead, state media generally maintains that the country is peaceful and bereft of crime.126 Crime reporting depends on who did it: a ‘normal’ crime by an ordinary citizen is covered, but no one would dare report a story involving a party/ government official or suggest impropriety by government.127

126 Interview with exiled Eritrean journalist on 4 April 2014. 127 Interview with exiled Eritrean journalist on 17 March 2014. 39

Eritrea’s international relations How are Eritrea’s international relations depicted by state media? Eritrea has engaged in some form of armed conflict with all of its neighbours, save for Saudi Arabia: Ethiopia in 1998-2000, Sudan in 1997, Yemen in 1996 and Djibouti in 2008.128 Eritrea has been the subject of United Nations Security Council sanctions since 2009.129 Consistent with the practice of editorial spin, much of the information is either unreported or depicted as a ploy against a Global South nation’s sovereignty.130

Awareness of the dangers of refugee flight The Lampedusa boat tragedy in which at least 350 immigrants, mostly Eritreans, drowned while en route to Europe received much international media attention. These are but emblematic and recent events of a situation that has continued for several years. Yet, the severe situation of free expression in Eritrea has not left the people ignorant of the dangers of refugee flight. The perils in Sinai are household stories everywhere. Eritreans are aware of cultures outside Eritrea and the harsh conditions awaiting those who attempt the perilous flight through Sudan and Egypt for Europe or Israel. This is in no small part due to the reporting of diaspora radio. But Eritreans have become unparalleled risk-takers embittered by the government’s unyielding repression. It is worth mentioning that a significant number of those who flee Eritrea are minors.131

128 M Tadesse ‘The Djibouti-Eritrea conflict’ InterAfrica Group Briefing (October 2008) http://www.ssrnetwork.net/document_library/detail/4402/the-djibouti-eritreaconflict (accessed 10 April 2014); also, Interview with exiled Eritrean journalist, 25 February 2014, witnessing to having been detained incommunicado with Sudanese PoWs in Eritrea as late as 2001. 129 United Nations Security Council (UNSC) Res 1862 (2009) on conflict with Djibouti; UNSC Res 1907 (2009) flowing from arms embargo imposed on Somalia by UNSC Res 733 and 751 (1992); UNSC Res 2023 (2011) reinforcing sanctions imposed by UNSC Res 1907. 130 Interview with exiled Eritrean journalist on 17 March 2014. Also, Interview with exiled Eritrean journalist on 21 March 2014. 131 Interview with exiled Eritrean journalist on 21 March 2014. 40

Rebirth of independent journalism Since the Crackdown, the government has had exclusive control of the people’s access to information and capacity to express themselves. However, a new independent newspaper, the first since September 2001, was launched in Eritrea on 18 September 2013. The printing and circulation of MeqaleH Forto (Echoes of Forto),132 technically brought to an end, 12 years of restricted expression and access to information.133 Predictably, MeqaleH Forto remains an underground newspaper with limited circulation. Its publication is however testimony that, despite resource constraints, there is the will and capacity to revive the proper practice of journalism and with it, the free flow of information.

132 The newsletter is called MeqaleH Forto (Echoes of Forto), after the place that was the venue for the attempted resistance to the Eritrean regime by military officers in January 2013. Interview with exiled Eritrean journalist on 4 August 2014. 133 http://africanarguments.org/2013/09/18/underground-independent-newspaperlaunched-in-eritrea-by-meron-estefanos/ (accessed 4 August 2014). 41

RECOMMENDATIONS To the Government of Eritrea: For the restoration of free speech • • • • • •

•

Implement the 1997 Constitution of Eritrea, with due attention given to the establishment of the various independent institutions of state; Release or try before an impartial court of law, all journalists and political actors detained for their exercise of free speech; Allow for the establishment and editorial freedom of all media, independent and state owned, including publishers of academic and artistic works; Issue clear instructions to public officials and holders of information to share such information to all members of the public including the press and the citizenry at large; Allow for the establishment of tertiary level institutions for the training of journalists in true academic freedom; Implement Principle VI of the Declaration of Principles of Freedom of Expression in Africa of the African Commission by transforming state owned media into editorially independent and adequately funded public broadcasters as stipulated in the 2001 African Broadcasting Charter; Implement article 19(3) of the 1997 Constitution which corresponds with Principle VI of the Declaration of Principles of Freedom of Expression in Africa of the African Commission on the promotion of a diverse and independent private media with private broadcasting being regulated by a fair and transparent independent authority.

For the restoration of checks and balances as required by the rule of law •

•

Establish in the shortest possible time, the independent judiciary envisaged in the 1997 Constitution, to begin the task of defining, interpreting and enforcing the legal order according to the dictates of the rule of law; Allow for the establishment of an independent legislature, elected by popular vote in a fair and transparent manner.

42

For the restoration of personal liberties and a just social order • • •

Abolish the indefinite national service and release all persons from forced labour; Close all unofficial locations used for the deprivation of personal liberty and release unconditionally those detained therein; Abolish the exit visa.

To international human rights bodies • •

•

Continue to demand for the full implementation of decisions against Eritrea determined by the UN WGAD and the African Commission; Establish clear minimum goals to be achieved by Eritrea before considering any non-renewal of the mandate of the UN Special Rapporteur on the Human Rights Situation in Eritrea and the Commission of Inquiry. Among these should be: the release or fair trial of all persons detained in the post-independence era; the closure of all unofficial places of deprivation of liberty; the establishment of an independent impartial judiciary to oversee the establishment of the rule of law, the restoration of free speech and access to information, and the abolition of the indefinite national service; The African Commission should urgently consider taking action on the human rights situation in Eritrea under article 58(1) of the African Charter, that mandates the Commission to refer to the AU Assembly of Heads of State and Government special cases that reveal the existence of serious and massive violations of human and peoples’ rights.

To human rights defenders in civil society •

Agree on minimum standards of respect for the rule of law that ought to be demanded of Eritrea by the African Commission and the UNHRC based on absolute human rights standards: the prohibition of torture, cruel inhuman and degrading treatment or punishment; the right to fair trial; the prohibition of forced labour; and the right of habeas corpus. Among these minimum standards should be: The release or fair trial of all persons detained in the post-independence era; the closure of all unofficial places of detention; the establishment of an independent 43

•

impartial judiciary to oversee the establishment of the rule of law, the restoration of freedom of expression and access to information, and the abolition of the indefinite national service; Collaborate with the newly established Commission of Inquiry under the UNHRC by sending detailed reliable information on the freedom of speech and the media.

44

ANNEX I: COMPILATION OF RECORDED HUMAN RIGHTS VIOLATIONS RELATED TO FREE SPEECH Arbitrary arrest and detention The ‘G-15’ Prisoners: These are the 11 government/party critics who were arrested and are believed to have been held in solitary confinement since September 2001: (a) Mahmoud Ahmed Sherifo (born 1947), former foreign minister and former minister of local government; also former chairman of the committee drafting Eritrea’s proposed electoral law; (b) Haile Woldetensae (born 1947), former foreign minister and former minister of trade and industry; (c) Petros Solomon (born 1948), former minister of defence; former minister of maritime resources; former Eritrean People’s Liberation Front (EPLF) chief of intelligence; (d) Berakai Ghebreselassie (born 1946), former minister of information; former minister of education; ambassador to Germany; (e) Brigadier General Estifanos Seyoum (born 1947), former directorgeneral of inland-revenue and a veteran of the independence war, was relieved of his post in the ministry of finance in August 2001 after questioning the equity of tax collection from PFDJ-owned enterprises;134 (f) Major General Berhane Gerezgiher (born 1947), former commander of the armed forces; former head of the national reserve force; (g) Major General Ogbe Abraha (born 1948), former chief of staff of the armed forces; former minister of trade and industry; former minister of labour and social welfare; (h) Saleh Idris Kekya (born 1950), former minister of transport and communication; former director of the president’s office; (i) Aster Fezhazion (or Fesshatsion) (born 1951), Mahmoud Sherifo’s wife, the only woman arrested on September 18-19, former regional head of personnel;

134 Freedom House Report, ‘Eritrea’, 2011, http://www.freedomhouse.org/report/ countries-crossroads/2011/eritrea (accessed 9 March 2013). 45

(j) Hamed Himid Hamad (born 1955), former director of Arabic section of the ministry of foreign affairs; former member of the PFDJ Executive Council; (k) Germano Nati (born 1946), former regional director of social affairs.135

Ten journalists were picked up in night-time raids in the 10 days after the arrest of the G-15. They have also been held incommunicado since then and include: (a) Dawit Isaac, owner and co-founder, Setit, born 1968; (b) Fessehaye ‘Joshua’ Yohannes, co-founder, Setit, born 1956; also poet and playwright; (c) Emanuel Asrat, editor, Zemen [Time]; born 1967; (d) Medhanie Haile, deputy editor, Keste Debena [Rainbow]; born 1969; (e) Temesgen Gebreyesus, sports reporter, Keste Debena; born 1966; (f) Yusuf Mohamed Ali, editor, Tsegenai; born 1957; (g) Mattewos Habteab, co-founder and editor, Meqaleh [Echo]; born 1972;136 (h) Dawit Habtemichael, deputy editor and cofounder, Meqaleh; born 1972; (i) Said Abdulkader, founder and editor, Admas [Horizon]; born 1968; (j) Seyoum Tsehaye, freelance reporter and former director of the government’s television station, ERI-TV; producer of documentaries on the independence war; born 1953.137

Article 19 also reports the following were arrested in the Crackdown: (a) (b) (c) (d) (e) (f) (g)

Zemenfes Haile; Ghebrehiwet Keleta; Selamyinghes Beyene; Binyam Haile; Temesgen Gebreyesus; Hamid Mohammed Said; Saleh Aljezeeri;

135 HRW ‘Ten long years: A briefing on Eritrea’s missing political prisoners’ (September 2011). See also, Article 19 (n 45 above) 9, n 13. 136 Note: A separate report by the Committee to Protect Journalists (CPJ) states that Mattewos Habteab was arrested in July 2001. 137 Birth dates are derived from RSF ‘Eritrea: Journalists in Prison’ (September 2009) http://en.rsf.org/IMG/pdf/RSF_Eritrea_Prisoners_Sept_09-2.pdf as cited in HRW (n 135 above) n 17. 46

(h) Simret Seyoum; (i) Sahle Tsegazab.138

Reporters without Borders (RSF) and Committee to Protect Journalists (CPJ) have identified over 20 journalists arrested after September 2001. RSF stated in 2009 that over 30 are imprisoned incommunicado.139 Dawit Habtemichael was arrested on 21 September 2001 after hiding for three days in the school where he taught physics. Aged 30 at the time of his arrest, he was one of the youngest of the Eritrean journalists to be detained.140 Dawit Isaak (also spelt Dawit Isaac elsewhere) remains in detention and is in poor mental and physical health.141 A case was filed on 27 October 2012 before the African Commission by Swedish lawyers after filing a writ of habeas corpus in June 2011 at the Eritrean High Court. Communication heard Feb 18-25 2013. He has neither been charged nor sentenced, and is without access to family, lawyers, Swedish diplomats (he is also Swedish citizen).142 In February 2009, 38 journalists working for Radio Bana were arrested and detained during its closure. A few days following the arrests of the Radio Bana’s journalists, Isaac Abraham, a journalist on Eri-TV, Girmay Abraham, a journalist on Radio Dimtsi Hafash (The Voice of the Masses), Mulubrhan Habtegebriel, journalist, writer and translator, and Meles Negusse, a young writer and poet, Tsegay (Temere’o) Peot, Zemenfes Haile writer, Petros Teferi (Wedi Qeshi) both writer and 138 Article 19 (n 49 above) 9, n 12. 139 RSF ‘Prominent journalist arrested, ex-prison guard reveals fate of other detained journalists’, http://en.rsf.org/eritrea-prominent-journalist-arrested-ex-12-05-20 10,37459.html as cited in HRW (n 135 above) n 93. 140 RSF (n 108 above). 141 Amnesty International Annual report 2011 – Eritrea (13 May 2011) as cited in Article 19 (n 45 above) 8, n 15. 142 RSF ‘Dawit Isaac case presented to African Commission on Human and Peoples’ Rights in Banjul’ http://en.rsf.org/eritrea-dawit-isaac-case-presented-to-18-022013,44086.html (accessed 25 February 2013). See also RSF ‘Three jurists refer imprisoned journalist’s case to African human rights panel’ http://en.rsf.org/ erythree-three-jurists-refer-imprisoned-29-10-2012,43605.html (accessed 25 February 2013). 47

poet, Tesfagirgios Habte, Negassi Habtemariam veteran journalist at the state media, Mohammed Ali Dafla journalist from Radio Bana, Mohammed Said Osman a journalist and head of Tigre branch in Radio Bana and well known poet among the Tigre people, were arrested. It is not known where they are being held.143 All the journalists arrested in 2009 are accused of collaborating with western non-governmental organisations and government and with exile opposition groups. They are allowed no visits. On 21 January 2015, Ghirmay Abraham, Bereket Misghina (also known as Wedi Misghina), Meles Negusse, Petros Teferi (also known as Wedi Qeshi), Basilos Zemo and Yirgalem Fisseha were suddenly released from detention on bail.144 Eight of their colleagues had been released in April 2013.145 In February 2011, radio journalists Nebiel Edris, Ahmed Usman and Mohamed Osman were arrested. Tesfalidet ‘Topo’ Mebrahtu, sports journalist on Radio Dimtsi Hafash and Eri-TV was also arrested at the end of March 2011.146 He was ‘released on bond’ (he is still under surveillance, with relatives acting as guarantors) in early 2012 after being held for 10 months.147 Mattewos Habteab Meqaleh cofounder and editor was reportedly arrested in July 2001, the day after his newspaper published an editorial urging the government to stop its oppression of independent journalists. At the time, at least 15 journalists had been seized on the subterfuge that they needed to ‘complete’ their national service.148 He is also reported among the September 2001 detainees. Habteab and another journalist, Temesgen Gebreyesus, were transferred to a prison in the Dahlak Archipelago in late 2008 but 143 Article 19 (n 45 above) 9-10, n 20. 144 PEN International ‘Eritrea: Writers released after six years’ arbitrary detention’ Press Release 23 January 2015. 145 ‘CPJ welcomes release of six Eritrean journalists’ Press Statement 23 January 2015. 146 RSF (n 108 above); also cited in Article 19 (n 45 above) n 21. 147 RSF (n 108 above). 148 CPJ ‘Journalist abducted by security forces, many others still missing’ (6 August 2001) http://cpj.org/2001/08/journalist-abducted-by-security-forces-manyothers.php#more and Tronvoll ‘The Lasting Struggle for Freedom in Eritrea’, http://visendienable.no/oslocenter/www/images/stories/eritrearapport_2_ende lig_versjon.pdf, as cited in HRW (n 134 above) 68, n 26. 48

were subsequently brought back to the mainland, to Eiraeiro.149 Sahle Tsegazab, aka Wedi Itay, a freelance journalist and writer with Keste Debena as well as the Hadas Eritrea, were arrested in October 2001.150 Amnesty International reported that 14 journalists remained in prison without charge as at December 2003, including Aklilu Solomon, a reporter for Voice of America, who was detained the previous July after reporting adverse public reaction to the government's announcement that soldiers had been killed in the border war with Ethiopia.151

Torture and other cruel, inhuman or degrading treatment or punishment Singer Helen Berhane, who had released an album of Christian music, was arrested on 13 May 2004 and reportedly held in a shipping container at the Mai Srwa military camp.152 After 2 years of arbitrary detention, she was released in December 2006 and then fled to Sudan. She has since been granted asylum in Denmark.153 On July 30, 2001, the president of the University of Asmara Student Union, Semere Kesete, was arrested after criticising the forced labour imposed on students during the summer months. When University of Asmara students protested Semere Kesete’s July 30 2001 arrest the next day outside the High Court in Asmara, they were rounded up and sent to a summer work camp, where at least two died from extreme climate conditions. In the aftermath, the university's Student Union was disbanded by the authorities and replaced by a chapter of the PFDJ-controlled National Union of Eritrean Youth and Students.154 Yirgalem Fisseha Mebrahtu, a female journalist at Radio Bana, was arrested on February 2009,155 and reportedly placed in solitary 149 RSF (n 108 above). 150 RSF (n 108 above). 151 Freedom House ‘Eritrea’ (2005) http://www.freedomhouse.org/report/ countries-crossroads/2005/eritrea (accessed 27 February 2013). 152 As above. 153 BBC ‘Asylum for Eritrean gospel singer’ http://news.bbc.co.uk/2/hi/africa/ 7056120.stm (accessed 10 March 2013). 154 Freedom House 2005 (n 151 above). 155 RSF (n 108 above). 49

confinement in Mai Srwa Prison in May 2009. It is unclear what she was charged with. She is reported to have been released on 21 January 2015.156 However, an earlier report indicates her release on bond occurred in early 2012, after 10 months of detention.157 It is unclear whether she had been re-arrested in the intervening period. Dawit Isaak, arrested 2001, has been held since and allegedly in solitary confinement.158 Sahle Tsegazab aka Wedi Itay was seriously ill in custody from an identified illness and is believed to have died due to lack of medical treatment.159 Dawit Habtemichael’s mental health began to deteriorate in 2007, he became schizophrenic and finally lost all contact with reality in 2010. The failure to treat his steadily worsening mental condition is thought to have been the cause of his death.160 Berhane Afro, former guard at Adi Abeito military prison, where most of the journalists arrested at Radio Bana and other state media in February 2009 were being held (as at date of report), reports that detainees are subjected to various forms of torture and mistreatment including electric shock, beatings and solitary confinement. Food was sometimes withheld and they were denied medical care. He fled the country 2012 and is seeking asylum.161

Death in custody The death of Fessehaye ‘Joshua’ Yohannes was allegedly as a result of the treatment he had received under detention and the very harsh conditions in Dongolo prison.162 156 PEN International ‘Eritrea: Writers released after six years’ arbitrary detention’ Press Release 23 January 2015; ‘CPJ welcomes release of six Eritrean journalists’ Press Statement 23 January 2015. 157 RSF ‘Yirgalem Fisseha Mebrahtu 2009’ http://en.rsf.org/yirgalemfissehamebrahtu-01-04-2010,36910 as cited in Article 19 (n 45 above) 9, n 12. 158 RSF (n 139 above). 159 RSF (n 108 above). 160 RSF (n 108 above). 161 RSF (n 108 above). 162 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank De La Rue (A/HRC/14/23/Add.1). 50

Said Abdulkader, founder and editor of Admas and former journalist with public-owned Haddas Eritrea, was arrested on 20 September 2001 and believed to have died in detention in March 2005.163 Medhane Tewelde (or Medhane Haile), former deputy editor of Keste Debena, was arrested on 18 September 2001 and detained in cell no.8 in Eiraeiro Prison Camp. It has been reported that he died in February 2006, and that his body has never been handed over to his family.164 Reported in August 2012: 8 of the journalists detained in 2001 have since died in detention. They are: Temesgen Gebreyesus; Yosef Mohamed Ali.165 Fesshaye ‘Joshua’ Yohannes, journalist for Setit, died on an unknown date (death disclosed February 2007), in unknown location, Eritrea166 but RSF reported his death in detention.167 Reported 30 August 2012: Mattewos Habteab and Sahle Tsegazab aka Wedi Itay died in the northeastern prison camp of Eiraeiro. All three had been held since late 2001.168 Reported 30 August 2012: Medhanie Haile, Yusuf Mohamed Ali, Said Abdulkader – died in detention.169 Dawit Habtemichael reportedly died in the second half of 2010. He was prisoner No 12 at Eiraeiro.170 Another journalist arrested in February 2009, whose identity has not been established with certainty, has also reportedly died in detention – in his case, in Abi Abeito military prison near the capital, Asmara.171 Another report indicates that a journalist, identified only by the given name of 163 164 165 166 167 168 169

Report of Frank De La Rue (n 162 above). Report of Frank De La Rue (n 162 above). Article 19 (n 45 above) n 12. Article 19 (n 45 above) n 12. RSF (n 108 above). RSF (n 108 above). Deaths also reported in article 19 (n 49 above) 8. RSF (n 108 above). Fessehaye Yohannes and Seyoum Tsehaye fought with the EPLF. See as cited in HRW (n 135 above) n 18. Deaths also reported in Article 19 (n 45 above) 8. 170 RSF (n 108 above). 171 RSF (n 108 above). 51

Bereket, reportedly died at Abi Abieto prison (also spelt Adi Abieto elsewhere). It is believed that this journalist is Bereket Misghina, but RSF cannot confirm this with complete certainty.172 Paulos Kidane, journalist for Eri-TV, state run Radio Dimtsi Hafash (Voice of the Broad Masses) – killed in northwest Eritrea June 2007 while attempting to leave the country on foot. The circumstances surrounding his demise are unknown.173

172 RSF (n 108 above). 173 CPJ, http://cpj.org/killed/2007/paulos-kidane.php (accessed 24 February 2013). See also, Article 19 (n 45 above) 8, n 12. 52

ANNEX II: 2014 REPORT OF THE WORKING GROUP ON THE UNIVERSAL PERIODIC REVIEW: ERITREA174 1. The Government of the state of Eritrea has made a careful study of all the recommendations presented during the Working Group session of the UPR in February 2014. Eritrea broadly accepts the constructive recommendations in this category as a way forward for further efforts and broader cooperation in basic human right issues and fundamental freedoms. However some recommendations that do not enjoy the support of the Government of the State of Eritrea have been identified. 2. The GOE believes that the validity, relevance, practicality and timing of the recommendations must be predicated on meticulous appraisal of the prevailing institutional, human and organisational capacity in the country at this point in time and the associated challenges of implementation. 3. The following four Conventions that have been accepted in the First Cycle are at the final stage and they will soon be signed. • • • •

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Convention on the Rights of Persons with Disabilities; ILO Convention No 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour.

I. Recommendations accepted 122.2. Consider the possibility of acceding to all the international human rights treaties and conventions (Russian Federation). 174 Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review. UN Doc A/HRC/ 26/13/Add.1, 17 June 2014. [Editor’s note: This draft, sourced from www.ohchr.org was unedited. Non-substantive corrections on spelling have therefore been effected. Instances where phrases were unclear have been reproduced as they were.] 53

122.4. Consider accession to the Convention on the Prevention and Punishment of the Crime of Genocide (Armenia). 122.5, 122.7, 122.8, 122.9, 122.11, 122.13 and 122.14. Ratify Convention against Torture (Australia, Latvia, Paraguay and Slovakia). 122.22. Comply, in law and in practice, with its obligations under the International Covenant on Civil and Political Rights (Czech Republic). 122.23. Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Convention on the Rights of Persons with Disabilities (Ecuador). 122.24. and 122.28. Ratify the Convention on Disabilities and CAT (Gabon, Spain). 122.42. Continue efforts in strengthening democratic, institutions, including through capacity building in the state legislative, executive as well as judiciary system (Indonesia). 122.43. Enhance and implement domestic laws to further promote and protect the civil and political rights of the Eritrean people (Philippines). 122.44. Reform legislation in the area of the right to freedom of conscience and religion (Russian Federation). 122.52. Expedite the implementation of the accepted recommendations of the first UPR cycle, including the ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (Kenya). 122.50. Put in place mechanisms to follow-up on the recommendations of the UPR that promotes equality of rights and the non-discrimination of all citizens, in particular of vulnerable groups (Colombia). 122.67. Take necessary measures to ensure respect for human rights, 54

including the rights of women, political rights, the rights of persons in detention and the right of freedom of expression as it pertains to the press and other media (Canada). 122.68. Continue efforts aimed at the progressive realization of economic, social and cultural rights (Colombia). 122.69. Pursue all efforts to preserve the progress achieved in a number of areas such as culture, education, health and the fight against social inequality (Egypt). 122.70. Strengthen the social welfare system for protecting children in the most affected communities from harmful practices, violence and exploitation (South Sudan). 122.71. Strengthen its efforts aimed at enhancing human rights awareness to all sectors of the society (Sudan). 122.73, 122.76, 122.79, 122.81 and 122.82. On cooperation with the Office of the High Commissioner, Human Rights Council mechanism and the regional and international human rights bodies (Somalia, Kenya, Gabon, Ghana and Paraguay). 122.98. Further develop cooperation with the relevant United Nations bodies and is ready to support the country’s efforts in all aspects (Turkey). 122.108, 122.125, 122.126, 122.127, 122.128, 122.129, 122.130 and 122.131. Continue to make its best efforts to abolish all types of discriminatory practices against women and children, which notably includes FGM, early marriage and domestic violence (Republic of Korea, Chile, Croatia, France, Ireland, Uruguay, Slovenia, Argentina). 122.109, 122.110, 122.111 and 122.112. Continue its efforts to promote gender equality and the empowerment of women (Sudan, Singapore, Armenia and Luxembourg). 122.113. Provide adequate resources to implement awareness-raising activities on the role of women and strengthen the existing structures for the advancement of women in the country (Malaysia). 122.114. Continue to take more measures to promote gender equality 55

and protect women and children’s rights in practice (China). 122.124. Intensify efforts to combat child labour and trafficking in persons, especially women and children (Philippines). 122.132. Intensify its efforts to protect women from domestic and sexual violence (Lithuania). 122.133. Work with civil society organisations to assist and redress women affected by domestic violence (Thailand). 122.134 and 122.138. Improve the penitentiary system and the situation of detainees (Russian Federation, Egypt). 122.157. Guaranteeing the right to freedom of religion for the Eritrean citizens (Romania). 122.158, 122.159, 122.160 and 122.154. Ensure that the rights of all its people to freedom of expression, religion, and peaceful assembly are respected (Japan, Lithuania, Belgium and France). 122.169 and 122.170. Continue its endeavours to ensure access to food for all its citizens as a fundamental human right (Egypt, Mexico). 122.171, 122.172, 122.173, 122.175, 122.176, and122.177. Continue its efforts to realise these goals of poverty reduction and universal access to primary education (Bhutan, China, Yemen, Chile, Malaysia, Algeria). 122.174. Improve legal measures on poverty eradication and an adequate standard of living (Islamic Republic of Iran). 122.178. Continue progress towards the eradication of poverty, through the application of its laudable social policies, so as to improve the quality of life of its people, in particular in the areas most in need, with the cooperation and assistance as requested by this sovereign nation (Bolivarian Republic of Venezuela). 122.179. Continue its efforts on health, education and social service system, in order to help the vulnerable and disabled people particularly women and children (Islamic Republic of Iran). 122.180, 122.181 and 122.182. Give continuity and strengthen 56

positive measures underway to increase the quality of and accessibility of health services for all citizens (Cuba, Egypt and Singapore). 122.183. Train more professional health workers to fill and carry out the work of the newly established health centers (Uganda). 122.184, 122.189, 122.191 and 122.194. Continue to implement programmes aimed at improving the quality of and access to education, giving particular attention to the needs of children from underprivileged families, including those in the rural and underserved areas (Philippines, Sudan, Cuba, Luxembourg). 122.185, 122.190, 122.192 and 122.193. Allocate more resources to the education system, particularly education of girls, in order to achieve a successful social development level (Turkey, Afghanistan, Egypt, Togo). 122.151. Continue efforts aimed at improving the administration of justice system and the situation of persons deprived of their liberty (Ecuador). 122.153. Ensure the respect of the fundamental rights and freedoms of all the population, in particular women and children, and adopt all necessary measures to guarantee the fight against the impunity of the perpetrators of crimes, acts of violence and all human rights violations (Argentina). 122.198. Work with the international community to reduce the effects of climate change (Uganda). 122.199. That the working group adopts the report of the UPR of Eritrea (Islamic Republic of Iran). 122.200. Provide them with the appropriate technical assistance in order to enhance their capacities in this aspect (Saudi Arabia). 122.31. Apply all the provisions of the Constitution relevant to human rights and the rule of law (Tunisia). 122.32 and 122.41. Step-up efforts and take urgent measure for a rapid and definitive application of the country’s Constitution, ensuring that it incorporates the principles and commitments arising 57

from international human rights instruments to which Eritrea is signatory or has acceded to (Uruguay and Ghana). 122.74. Submit all the reports due under treaty bodies (Togo). 122.75. Cooperate with the High Commissioner for Human Rights, treaty bodies and special procedures mandate holders (Chad). 122.106. Submit without any delay the initial report on the Optional Protocol on the Involvement of Children in Armed Conflict (Belgium). 122.107. Harmonise national laws to incorporate the International Covenant on Civil and Political Rights, in particular articles 9, 12, 19, 21 (Mexico). Observation: (Article 9 does not have provisions for legitimate qualifications in conditions that impinge on matters of national security and harmonisation of national laws must take this factor into account. 122.152. Ensure that any physical or moral harm against journalists or human rights defenders is investigated and that the perpetrators are duly prosecuted (Belgium). Observation: The principle is acceptable but Eritrea rejects the implicit and baseless insinuation. 122.162. Take policy and other measures which ensure the enjoyment of freedom of expression, opinion and assembly (Botswana). 122.156. Take steps to improve the status of religious minorities and ensure protection for religious communities from persecution (Canada). Observation: Eritrea is secular state and religious rights are protected. 122.168. Ensure a conducive climate to the work of the human rights defenders and the civil society activists and journalists (Tunisia).

58

II. Recommendations that do not enjoy the support of Eritrea 122.1. Ratify the international human rights instruments which it is not yet a party to (Chad). 122.10, 122.12, 122.3, 122.6, 122.15, 122.25, 122.26, 122.27, 122.29, 122.51. Ratify Convention against Torture and Convention on Enforced Disappearance with their Protocols and the ICCPR optional Protocol (Lithuania, Uruguay, Brazil, Japan, Portugal, France, Estonia, and Czech Republic). 122.16, 122.17, 122.18, 122.19, 122.20. Ratification of Rome Statute and its harmonization with national legislations and cooperation with the ICC. (Croatia, Estonia, Latvia, Romania, Slovakia). 122.21. Withdraw existing reservations to ICCPR and ratify both ICCPR Optional Protocols (Estonia). 122.33, 122.34, 122.36, 122.30, 122.35, 122.37 122.40, 122.155, 122.116, 122.161. Expeditiously and fully implement the Constitution adopted in 1997 and strive for earliest adoption of a penal code and criminal procedure code as well as civil code and civil procedure code in accordance with international standards and provide clearly in new legislation for freedom of expression, assembly, movement, religion and belief (Slovakia, Sweden, Australia, Somalia, Namibia, Switzerland, UK and Spain and USA). Observation: The Civil and Criminal Codes with their procedural codes as well as laws relating to freedom of expressing, assembly movement, religion and beliefs are already in place. A new constitution is to be drafted. 122.45, 122.46, 122.47, 122.48, 122.49, 122.54. Establish and strengthen an independent Human Rights Institution and standing committee (Ghana, Indonesia, South Sudan, Algeria, Tunisia and Thailand). Observation: This will be seen with the new constitution. 122.38, 122.39, 122.61. Immediately lift the state of emergency, implement the 1997 Constitution and hold free and fair elections with 59

international monitoring (Germany, Czech Republic). Observation: there is no state of emergency and a constitution is to be drafted. 122.55, 122.57, 122.58, 122.59, 122.60, 122.62, 122.63, 122.65 and 122.66. Modify the law on national service and end indefinite national service, a phased demobilisation, allow substitute service for conscientious objectors, and ending the people’s militia (Norway, USA, Spain, Croatia, Germany, UK, Austria and Canada and Italy). 122.123, 122.56. Abolish military conscription and compulsory military training, particularly for children (Switzerland, Australia). Observation: No child is recruited in the military. 122.64, 122.149. Take appropriate steps with a view to releasing all imprisoned conscientious objectors without delay (Croatia, Spain). Observation: There are no conscientious prisoners. 122.80, 122.87, 122.88, 122.89, 122.90, 122.91, 122.92, 122.93, 122.94, 122.95, 122.96, 122.97, 122.99, 122.100, 122.101, 122.102, 122.103, 122.72, 122.77, 122.78, 122.83, 122.84, 122.85, and 122.86. Standing invitation to the UN Special Rapporteur on human rights in Eritrea and to all other UN special procedures mandate holders, and cooperate fully with the OHCHR (Republic of Korea, Germany, Norway, Romania, South Sudan, Togo, Italy, Montenegro, Sweden, Portugal, Namibia, France, Australia, Botswana, Netherlands, Portugal, Tunisia, Latvia, Somalia, Uruguay, Ireland, Portugal, Czech Republic, Brazil). Observation: Can only be seen case by case but country specific mandates are not accepted, Eritrea’s cooperation with international community should not be linked to the Special Rapporteur on Human Rights in Eritrea. 122.104. Accede to the request of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, introduced in 2003 and renewed in 2005, to visit the country (Belgium). 122.115. On LGBT persons (Italy). 122.117, 122.118, 122.119. Abolish the death penalty (France, Spain, 60

Montenegro). 122.120, 122.121. Put an end to the widespread use of torture and other cruel, inhuman or degrading treatments as well as to arbitrary and extrajudicial executions (Djibouti, Tunisia) Observation: There is no such practice in Eritrea. 122.136. Guarantee the physical integrity of all prisoners, improve conditions of detention in accordance with international standards and allow unhindered access by international monitors to all detention facilities (Slovenia). Observation: Physical integrity of prisoners is guaranteed. Invitation will be case by case. 122.135, 122.137, 122.163.Bring to an end inhumane detention conditions, release persons detained for exercising tier freedom of expression respect and ensure that all detainees are treated in accordance with international human rights standards (Germany, Norway and Sweden). Observation: Detainees are treated humanely. 122.139, 122.140, 122.145, 122.150.Be accountable for all the political prisoners, in particular the members of the ‘G-15’, and release them (Djibouti, Spain, France, USA). 122.141, 122.142. Allow the International Committee of the Red Cross (ICRC) to visit the places of detention and to visit prisoners of war from Djibouti (Djibouti, Somalia). 122.143. Indefinite National Service, migration and human trafficking. (France). 122.144, 122.146, 122.147, 122.148. Release or bring before a court all persons detained without a charge and to respect international standards in the treatment of detainees (Austria, Germany, Switzerland, Norway). 122.164, 122.167, 122.165, 122.166. Lift severe restrictions on freedom of expression, both online and offline, permit establishment of independent media outlet (Czech, Estonia, Austria and Belgium). 61

122.196. Take further measures to ensure protection of property rights, pursuant to international standards, including the provisions those provided by art. 14 and 21 of the ACHPR and art. 5 of the CERD (Italy). 122.186, 122.187, 122.188. Put an end to the obligation for children to follow their last year of school in the military camp of Sawa (Belgium, Luxembourg and Portugal). 122.195. Ensure safe repatriation and reintegration of Eritrean nationals without any fear of persecution in accordance with Eritrea’s obligations under international human rights law and allow for international monitoring (Germany). Observation: Safe repatriation is guaranteed with no prosecution. 122.197. Develop an institutional programme in partnership with the Eritrean Diaspora and local communities to develop programs for production, infrastructure and social development, eliminating the fee for residing outside of Eritrea (Mexico). 122.105. Address concerns regarding the promotion and protection of human rights expressed by the Human Rights Council in its resolutions (Namibia). 122.122. Investigate all pending reports of enforced or involuntary disappearances and punish the perpetrators of these crimes (Chile). Observation: The GOSE has no pending reports of enforced and involuntary disappearances. On 122.53175 (Somalia) – not recognised.

175 122.53 – Fully implement the UN resolution 2023 of 2011 which condemns Eritrea’s use of the ‘diaspora tax’ to destabilise the Horn of Africa region. Eritrea does not recognise this as a recommendation. 62