Freedom of expression and its boundaries 

Freedom of expression 

In addition to talking and writing which are considered the typical ways, expression includes acts such as displaying posters, painting and sculpturing, dancing, and the publication of photographs, symbolic acts such as burning of flag, wearing of certain items of closing and physical gestures. In Principle, every act which a person attempts to express some emotion, belief or grievance should qualify as expression. Expression clearly includes conduct that seeks to communicate. 

Generally speaking, the closer expression comes to action, and the further it drifts from conveying ideas and opinions, the more it crosses the boundaries of expression to become something else and the less protection it receives by the law. It is likely that expressive conduct will be more easily subjected to limitation than a mere speech. 

Scholars identify two categories into which the various justifications for freedom of expression fit in: the instrumental and the constitutive. Instrumental arguments defend free speech because of what it can do for us: free speech is important not because people have any intrinsic moral right to say what they wish, but because allowing them to do so will produce good effects for the rest of us. The second constitutive justification of free speech sees it as valuable because expression is an important part of what it means to human. In this regard, freedom of expression is valuable, not just because of the contribution it makes, but because it is an essential and constitutive feature of a just political society. Both justification are however very necessary for the conception of the freedom of expression. 

The instrumental justification of expression is also often used to pose limitation on the right to freedom of expression – expression that cannot help society can be subject to limitation. There is a tendency in many jurisdictions to valorise political expressions and to place comparatively less value on other forms. The South African Constitutional Court, for example, distinguished between the ‘core values’ of freedom of expression and ‘expression of little value which is found at the periphery of the right’. The latter type of expression receives less protection because its limitation by law is relatively easily justified, compared to limitations on expression at the core. Clearly, political expression is at the core of the right. 

Freedom of press 

The usual rationale for constitutional protection of freedom of press is the important contribution made by the press to one of the goals of freedom of expression in general – establishing and maintaining an open and democratic society. This means that the press is both protected by the right to freedom of expression and has duties to promote it on behalf of the rest of the society. In this regard the South African Constitutional Court in one case observed: 

The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate … The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression. 

Does the specific protection of freedom of press as a component of freedom of expression warrant special status to press or are freedom of press and freedom of expression merely synonyms? In one case, the US Supreme Court has taken the view that the press is not entitled to any special rights or protection – that the specific reference to freedom of the press does not give the press more rights than other speakers. Similarly, the South African Constitutional Court affirmed that journalist must not enjoy special constitutional immunity beyond that accorded to ordinary citizens.  

Boundaries of the freedom of expression 

Many jurisdictions provide double limitations of the freedom of expression. Expression that fall into few listed categories is clearly beyond the boundaries of the right to freedom of expression. These categories include (1) propaganda for war; (2) incitement of imminent violence and (3) advocacy for hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. According to the South African Constitutional Court, the categories of expression enumerated above are not to be regarded as constitutionally protected speech but rather defines the boundaries beyond which the right to freedom of expression does not extend. Implicit in this demarcation is an acknowledgment that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm. Legal restriction of expression falling into one of the categories is not limitations of freedom of expression and requires no justification. 

The formulation of the ‘propaganda for war’ as exception to freedom of expression is influenced by the International Covenant on Civil and Political Rights (1996) – article 20(1) – which prohibits any propaganda for war. In this regard the term war refers to acts of external aggression, and not-violent internal resistances to the government of the day. 

Drafted with the devastating consequences of the use of raciest propaganda during the Nazi era fresh in mind, a number of the post-war human rights instruments restrict the scope of freedom of expression by preventing the incitement of racial hatred. Article 20(2) of the International Covenant on Civil and Political Rights (1966) and article 4 of the International Convention on the Elimination of all forms of Racial Discrimination (1965) are good examples. National laws of many democracies do also restrict hate speech. One of the strong justifications for taking hate speech out of the ambit of freedom of expression is that this type of behaviour would not be tolerated in a democratic society where equality and human dignity are fundamental values.  

Under the South African Constitution, hate speech includes advocacy based on race, ethnicity, gender and religion that amounts to incitement to cause harm from the ambit of the right to freedom of expression. To advocate hatred is to propose or call for it, to make a case for it. Hatred is an extreme emotion and advocacy of hatred should be confined to statements manifesting detestation, enmity, ill-will and malevolence. In one case it was held that the political slogan ‘Kill the farmer, kill the Boer’ (Boer is a derogatory epithet for Afrikaner) was advocacy of hatred arguing that to call for the killing of people because they belong to a particular community or race must amount to advocacy of hatred. In another case, a derogatory and inflammatory statement about the Indian population in a Zulu song were advocacy for hatred based on race.  

Nevertheless, advocacy of hatred does not raise to the level of hate speech unless incitement to cause harm is present; and in one case it was ruled that ‘harm’ cannot be confined to physical harm, but should also be taken to include psychological and emotional harm. It must also be noted that it is the expression itself, and not the audience who may or may not be sufficiently fired up to translate the message into violent action, that cause the social and psychological harm. It is sufficient that advocacy of hatred intended to cause harm to dignity is hate speech.  

Defamation and freedom of expression 

Generally, in law, defamation is the communication of expression that makes a false claim, expressly stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against criticism. Civil defamation (torts) is also divided into slander and libel each of which gives a right of action. The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander. If it is published in more durable form, for example in written words, film, compact disc (CD), DVD, blogging and the like, then it is considered libel. Defamation is the general term used internationally where it is not necessary to distinguish between slander and libel. Libel and slander both require publication. Many nations have criminal penalties for defamation in some situations. 

The law of defamation lies at the intersection of the freedom of speech and the protection of human dignity. Generally, to succeed in a defamation action a plaintiff must prove, on a balance of probabilities, that the information was made public; the defendant was directly or indirectly identified; that a reasonable person of ordinary intelligence might reasonably understand the information to convey a meaning defamatory of the plaintiff’s reputation, the published information is false, and that the defendant is at fault. Once the plaintiff establishes this, it gives rise to a presumption of wrongfulness and intention, which the defendant is under a full onus to rebut by providing the existence of one or more of many grounds I have outlined below as defences.

In most legal systems the courts give the benefit of the doubt to the defendant. In criminal law, he or she is presumed innocent until the prosecution can prove guilt beyond a reasonable doubt; whereas in civil suit, he or she is presumed innocent until the plaintiff can show liability on a balance of probabilities. However, in many countries, defamation contains a kind of reverse-onus feature: a defamatory statement is presumed to be false unless the defendant can prove its truth.

Defamation law is increasingly becoming less plaintiff-friendly in this era when freedom of expression is increasingly getting prominence. Within communities such as the Eritrean society, however, it remains very important. One very important point that we need to consider is that at present the European and Commonwealth jurisdictions adhere to a theory that defamation on the Internet could be sued on in any country in which it was read.

Defenses 

It is highly important that in our engagement on the available websites we know the factors that can save us from committing crimes or civil wrongs (torts). The best and handy guideline of course is our morality. If we step over with clean conscience with the aim of positive contribution, the likelihood of infringing law and morality is very less. Yet, law is not always morality or logic. The most common justifications to defamatory expressions are generally the fallowing: 

Truth: The truth of what has been expressed is an absolute defense in many countries. In such jurisdiction a defendant only need to show that his expression is true however defamatory it may be. Thus one can say Mr. X lied and remain without liability if he can prove that.  

Expressions made in a good faith and reasonable belief that they were true are generally treated the same as true statements. However, the court may inquire into the reasonableness of the belief. The degree of care expected will vary with the nature of the defendant. For example, an ordinary person might safely rely on a single newspaper report, while the newspaper and website stations would be expected to carefully check multiple sources.  

Public Interest: In some systems, truth alone is not a defense. It is also necessary in these jurisdictions to show that there is a well-founded public interest in the specific information being widely known. Public interest is generally not that which the public is interested in, but rather that which is in the interest of the public. Certainly many Eritreans might be interested to know with whom PIA has sex affairs and information of this nature is highly attractive for audience but not apparently of public interest. Generally, the stake of public interest is high when expression is made with regard to individuals that intend to step into leadership position; and less against ordinary citizens with low profile. Thus an expression ‘she is prostitute’ can be in the public interest when made with reference to a candidate for Eritrean President. The same expression could be of lesser public interest when made with reference to a lady who is engaged in prostitution for living. Generally, the stake of public interest is high when expression is made with regard to national matter than too specific issues. I stand corrected if I am wrong, but I believe that under the relevant provisions of the Transitional Civil Code of Eritrea related to tort (extra-contractual liabilities) one has to establish the truth and public interest of his expression in order to avoid liability from defamation. 

Privilege: Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted. There are many forms of privileges and they include privileges given to expressions in sessions of parliament, court rooms, and schools and training centers … etc. I think none of these privileges feature in our engagement on the websites.  

Opinion: Opinion is a defense recognized in nearly every jurisdiction. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. Whether an expression is of a fact or opinion features in relation to whether the expression is false or true. Expressions made as facts, when happen to be false, are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. In order to win damages in defamation case, the plaintiff must first show that the statements were statements of fact and second that these statements were false. Conversely, a typical defense to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law.  

The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. Differentiating opinion from facts is tricky in many respects. Perhaps it is an opinion to say that Mr. X is not a high caliber individual to be president of Eritrea. But if you say that Mr. X’s academic achievement in certain university is less than 50% on average, this is really verifiable fact that if proved to be false will entail liability. Take also this example – one posting on a website as below in reaction to what has been posted: 

I read your article posted on (name of website) in depth. It is well copied and pasted from a text box. The substance is not there. 

The bolded text is a statement of fact which can be proved or disproved and when the author fails to establish the truth of his statement, he is liable for defamation. The italicized text is good example of opinion.

Fair comment on a matter of public interest: Under this category are expressions made with an honest belief in their truth on a matter of public interest (official acts) and are defenses to a defamation claim. Even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected.  

Innocent dissemination: Innocent dissemination is a defense available when a defendant had no actual knowledge of the defamatory expression or no reason to believe the expression was defamatory. The defense can be defeated if the lack of knowledge was due to negligence. For example, a person who addresses another using nickname believing that he is using the name of the addressee might have a valid defense.  

Precise target: The more the defamed are identifiable, the more the offense of defamation is committed. On the other hand expression against a broad group is less likely to be defamatory. One can for example say that the present Eritrean youths are selfish. Eritrean politicians are power hungry or lawyers are waste of oxygen as my best friend used to say. Targeting a small group of people could however be defamatory. In this context, hiding defamatory remarks behind pronouns, such as some individuals … etc, in spite of the fact that the target is clear, could not avoid the specificity requirement. If some one is well know for propounding a specific theory, for example, an expression ‘those who propound this theory are illiterate’ is very precise as to its target.    

Civil and criminal responsibility with regard to transgression of freedom of expression and press  

Criminal responsibility is always personal. The rear exception where criminal responsibility is transferred to another (limited to crimes of strict liability – often petty crimes) is exceptional. In civil matters, generally three sources of liability are recognised: (1) one can be liable for his own fault (2) one can be liable for the faults of others to whom the one is responsible and (3) one can be liable for the damage his property causes to others. This is clearly the case under the Transitional Civil Code of Eritrea.   

My target in this rather jumbled article is liability related to transgression of the right to freedom of expression and press – defamation to be specific. Defamation could be a civil wrong (tort) or a crime. Torts and crimes share common boundary and there is a grey area where drawing the distinction is blurred. Torts or civil wrongs only entail compensation for the damage caused. Sometimes, however, torts entail punitive damages (fees) although there is no harm sustained. Crimes go one step further. The offender is not only responsible to pay compensation for the damage he causes, often than not, the offender is punished either by prison terms or fines or other forms.  

Who is liable? 

With some level of generalisation, liability emanating from transgression of the right to freedom of expression lies on the author. When the author cannot be found or traced, liability lies on the publisher, distributor or whosoever brought the defamatory material to public. Speaking about news papers and nowadays websites, when the author cannot be identified, liability falls on the owners and managers of the websites. Although copyright related laws generally permit authors of expression to hide their real identity by using pennames or screen names, it is important that website owners insist on getting real identities of writers and their full address for their record. In the event defamatory expression is published and the author cannot be traced, liability rests on the publishers (owners of the medium through which defamatory expression is published’. Disclaimer provisions are not excuse; nor posting guidelines that often fall short of the legal standards and also rampantly not enforced by the websites.  

The Eritrean cyber debate 

In my opinion, one important feature of Eritreans at this critical moment is that those of us with access to internet are tuned to the main Eritrean websites. Another positive feature is the high level of participation in and contribution to the websites. The way articles are written, although often not well researched and highly opinionated, show huge effort. The scale of participation is exceptionally high. The major websites are indeed overloaded with wealth of articles; their content regardless. At a critical juncture when we are in need of undergoing socio-political fermentation, this feature is indeed an asset that we need to exploit to its maximum. It is an opportunity which we can use to practice and nurture democratic principles. In this critical situation in which our country finds itself at crossroads, this asset is also a double edged sword. Not only we must use the opportunity but we must use it responsibility. Otherwise we all are engaged in the destruction of our country. Misuse resulting as a result of mismanagement, irresponsibility and lack of civility can turn the positive opportunity to an instrument of national disaster. We need to think how the tragic events happened in Rwanda with that kind of ugliness.    

So what are the downsides of our cyber engagement? I have listed my observation below in brief. The sequence does not show any level of importance.   

Organisation 

Our engagements are not organised but rather grossly sporadic. They are not organised, at least to my satisfaction, thematically and timely. We are not channelling wider focus and attention to specific issues at a given time. One ill consequences of this feature is that specific issues are not discussed in detail as they require. So persistence and brainstorming is lacking. For the same reason, pro and con on one particular issue is lacking. Largely, we have not been able to see one issue from different angles. We have not been able to solicit more contribution from different quarter on one point. We write on too many issues at one particular time. Worst, at a time we need to reach into agreement and unity, it is common to see two quite opposite proposal being tabled at one particular time – proposals that tend to destroy each other – partly because we are not trying to give separate chapters to sense of reconciliation and animosity as they deserve. One smartly attempts to put the atmosphere for national reconciliation. At the same time, another comes with totally different proposal that defy the first. No blame goes to the contributors. The flaw is lack of organisation.    

The few instances of debating a specific issue persistently have been confined to exchange of reactions between few writers. Perhaps the feature on asmarino that allows everybody to comments on what is posted is designed to meet to the many of the advantages I am trying to outline. I agree that it has served this purpose to some extent. But, for the points I elaborate below, it has been counter-productive. May be the ‘baitos’ meskerem has is designed to this end. I have not familiarised my self with the baitos and my comments can only be incomplete. 

To remedy this problem, I believe that two elements are important: organisation and management of our debates. We need to organise our debates thematically with reference to timeframe so that we can brainstorm, give more attention, benefit from different viewpoints and wealth of information and ask questions and seek answers. Organisation is also important to reach to agreement. The more we exhaust points, the more informed decision we take.   

In my opinion, one of the few issues debated persistently within a short period of time is the matter of ‘Eritrea vis-à-vis designation of sponsor of terrorism’. Many writers did exchange their views, tried to answer question posed on them; elaborated lack of clarities; supplied more information; there were pro and con arguments … I will note the weakness I observed with regard to this issue in each relevant corner. Nevertheless, this is the kind of debate, particularly in terms of depth, persistence and exchange of ideas that I am suggesting. I have been reading many of the contributions and there was a flow of convincing points from all sides (those who supported, opposed or welcomed or rejected both options). We can only learn from such persistent interaction.         

How can we organise our engagement is the cardinal point. To do this, we need a single forum for more convenience and other benefits. One of the websites or a new one designed for this purposes can do the job. Another thing that is needed is a body that manages the national debates. What is needed thereafter is to generate a thematically and sequentially organised list of issues that we need to discuss each at one time. The managing body can solicit for issues of national concern. Topic of the month can be tabled for discussion. Experts can be invited to either comment or lead the debate.  

Management 

Because much of the discussion is to be of national interest, the EDA website and the EDA itself are the appropriate forum and body respectively to run this project. There is an assumption beneath this proposal – PIA’s government would not be willing to debate on other forums nor open its forums to others. Hence, the proposal can be considered as confined to the opposition. The central position EDA holds at least within the opposition camp is important for the legitimacy such project needs. In addition, such leadership role can give the EDA more prominence and it can be a tool through which the EDA engages with Eritrean academics and statesman. This can also help to internalise the boy of cyber critiques that have hitherto opted to stay outside the organised opposition.  

In the alternative, civic organisation such as EMDHR and even the well established websites such awate and asmarino can also handle the job. EMDHR in particular appears better option because of its constituency that can start the debate with the critically needed inclusive approach. Moreover, this organisation has big pool of educated mind that I believe has not been fully exploited. This proposal is thus on auction.  

The management body need to be innovative in handling the debate in a lively manner … The management body need to follow the flow of debates closely; identify areas of consensus, differences, ambiguities … and what ever is necessary. On certain issues, tools such as the voting mechanism awate recently introduced could be very handy. We should remember that this is an era of technology and big task can be done through yahoo chat and other means that are easily at our disposal.   

Supervision:  

In addition to the management body, a small body – a committee of five members can do – is very essential to supervise the debates. In this regard compatriots have outlined a proposal which I found quite agreeable. Members of this committee could be Eritrean statesman with integrity; preferably not affiliated to any political party, having education relevant to their function. It is highly important that such supervisory body operate as both legislative and judicial tribunal. The body should focus on holding politicians and political activists to current legal standards related to freedom of expression and press; establish standards of conduct, and make sure that civil behaviour is nurtured. The body in particular can from time to time provide general advice to websites, politicians and political activists in determining their legal responsibilities pertaining to defamation while engaging in public campaigns and give remedial commentary on expressions that may run afoul of defamation laws or venture on sensitive national issues. We need to bear in mined that even the established democracies have established bodies to require their media outlets to adhere to legal and ethical standards.  

How do we establish such committee? This is not presidential election thus we can even use awate’s ballot box. We can nominate people familiar to the cyber space and let the top five who got the most votes form the committee. Ones formed the body can adopt important bylaws.  

Substance  

The substance of our debates is another important area that needs improvement. We tend to sideline important issues from our debates. I believe the main cause for sidelining main issues is the character of the political parties which seems to stash issues. I think there is dearth of engagement between the political parties. Or are they presenting their positions using pennames or in disguise? Is there wisdom in hiding their identity or in remaining silent? Should not they ferment issues? Or are they afraid of polarisation that can ensue from engagements? But is artificial unity constructive? PIA’s government has remained the main unifying factor in the Eritrean political landscape; and there is high aspiration to see PIA’s demise. What next? What will Eritrea look like after that? How are the opposition parties preparing for PIA’s exit if they are to survive PIA after all? What if PIA leaves the country in a much divided setting tempting to power struggle among the generals and rivalry politicians – divided political forces at home and divided Diaspora political forces? Do the political parties have genuine differences of ideals? What do they stand for? Or are they camps of few political elites egger to come to power?   

Discussing contentious issues during a volatile atmosphere is very risky. Discussing issues at the verge of blood shed is very risky. Time itself has many benefits when it comes to settling difference. Long periods of deadlock, for example, help negotiating parties to appreciate reaching into agreement and it tends to contribute to offering concessions.   

Unity must come after intensive engagement; and unity is not being one but trying to be one in diversity. Agreement is not getting all what you want but committing yourself to accept what you don’t like as well. There are many issues we need to discuss. The discussion must aim at producing a body of agreements – a national covenant. The Constitution PIA’s government produced could have been a unifying factor. But the opposition has opened a Pandora Box with little contribution to close it. At least from the opposition’s side, there is virtually no unifying factor except dictator, dictator, dictator … These should have forced the opposition to engage intensively to produce one.  

If we take the Constitution as it is, there remains a lot to debate on to supplement it, elaborate it, study it … We should start enlisting points that go to the domain of constitutional law and consider them one by one. We may not reach into agreement. But we can identify differences and subsequently think about abridging them or identifying middle ground. Nowadays, there seems to be a rush to see a regime collapse. But what do we have in the alternative? The opposition need to do something at least to produce a national covenant that will enable to handle such atmosphere. The organised debate I wish to see is aimed towards producing a covenant.   

In the Constitution itself, there are some points we read superficially and out of context. I can mention few: ‘The equality of all Eritrean languages is guaranteed’; ‘All land and all natural resources below and above the surface of the territory of Eritrea belong to the State’ the colour of the flag, issues of ethnic, religious and cultural identities … etc. These are blown beyond proportion as controversial points. However, these provisions, with out elaborations, are bereft of any meaning. The more we analyse them and flesh them, we can find middle ground. Often, those of us who magnify these issues as points of difference do not even know them. I can draw a comparison here. When politicians are tasked to draw a national charter, spontaneously they will not miss to state ‘equality before the law’. But they hardly visualize what these four terms mean in detail?  

Focus on language than substance 

So far, our engagement seem to focus on strong language and abstractness; two undesirable features aimed at showing ones mastery of English language. Increasingly, we write articles that manifest our linguistic and literally skills and in doing so we scarify substance.   

Dearth of research and uniformed contribution 

This is another big problem. Researched contribution is more educative and convincing than personal opinion. History has huge lesson to teach us. The experience and current practices of other countries have huge lessons to teach us. It would be much helpful to refer to history and experiences of other countries to inform our debates.  

Lack of civility 

Nothing is more severe than our imperfections in this area. Apart from noting the prevalence of acute problem I lack the skill to articulate the whole domain. I can however share few observations.  

Disrespect of knowledge and profession  

We don’t respect knowledge and professionals. Rather, we all tend to posses monopoly of wisdom. I believe this negative attitude is promoted by the EPLF/PFDJ in a bid to marginalise and even annihilate the informed and the learned. ‘Temahirna bahalti, seb bajla, felatat ina bahalti … are few of the dogma the PIA government promoted. This is very visible in the attitude PIA sow in the minds of the dominant majority of the youths in the National Service vis-à-vis students or graduates of the University of Asmara. To make matters worse, those who pursue higher education also lose humility and indulge in righteousness – pay more attention to putting white shirts than mental maturity. The consequence is we, the empty vessels, make a lot of noise than our distinguished professors. We even say ‘shut up, I know better than you’ to the Doctor and professor. We don’t give value to education and the number of years one spends in colleagues and related practice. It is true that knowledge and certificates may not always match; nor is knowledge acquired in school compounds only. Life itself is great teacher we all experience. Yet, the principle should be those who studied and specialised in one area are the first authorities.  I am sure many of us have witnessed gross naivety in some of the articles we read. The main reason is we cross over boundaries; we write on areas we don’t know well. Let’s leave the area of psychology to the psychologist, the law to the lawyer; the economy to the economist … The domain of knowledge is infinite. To maximise our knowledge we can only specialises in very specific areas and then work based on interdependency. Outside our specialities, we are layperson and we should limit ourselves to what a layperson can contribute – perhaps ask or provoke the experts. 

Style 

Perhaps my attempt under this title is one example of me writing in area which I am not well versed. In my naïve attempt, let me jumble many shortcomings that I believe have been featuring in our debates.  

Exclusive attitude: At a time preserving and promoting unity is highly important, we need inclusive style of engagement than exclusiveness and polarisation. Perhaps one helpful approach is to separate the writer from his contribution – very difficult task I guess. Treat the contributor as a compatriot first and then you can offer your differed view. In this regard, choice of words and language are very important. We have many inclusive and polite words.  

Conclusiveness: We also show tendencies of absoluteness, conclusiveness, unquestionableness … in our contributions. Unfortunately, the areas we often engage on are not susceptible to 2+2 = 4 equation; they are not subject to litmus test, prove or disprove. Facts can be proved or disproved; value judgments or opinions cannot. On such areas, one can only express opinion. It is generally understood that even if one uses exclusive terms (the truth is, the reality is, only, absolutely, completely …) the one is expressing opinion. However, one can be more humble when he employs hedging - (I think, I believe, in my opinion …).  

Convincing manners: In every field, I believe there are more authoritative ways of arguing matters with the ultimate aim of convincing or winning over an adversary. We should resort to those mechanisms. I provided one example here. Imagine two people brawling:  

“You are short!” “No, I am tall” “You are short!” “I am tall!” “I am telling you, you are short; very very short indeed!” “I am telling you too! I am tall, very very tall indeed” “How on earth can you tell me that you are tall?” “How on earth can you tell me that I am short?” 

There is no engagement in theses style of brawling; nor can convince or educate the parties engaged in it. Channelling the above brawling towards convincing conclusion would for example require agreeing on standards or benchmarks in the first place: what human height is considered tall or short; who sets standards and whose reading of the standards are authoritative …? 

In legal dispute, for example, although the law being part of social science is not subject to litmus test, there are nonetheless standards that are always applied. The first standard one should mention to back his line of argument is the law itself. Laws have hierarch in terms, for example, one being superior, the other subsidiary; the one of general application, the other of specific application and one being recent, and the other older legislations. Using this and other criteria, a party in any argument must select the best applicable law. In many cases the plain language of the law settles a dispute. In other cases, how a particular law is interpreted can be disputable. In such situation the disputing parties have to identify who authoritatively interprets (tells the meaning of the) law. In most cases, judicial and quasi-judicial tribunals are welded with this power. Below this level inevitably comes the writing of noted publicists – their opinion so to speak - as the erudite in the field. This is not a closed list but certainly the top authoritative. I believe there are convincing or reasonable way of engagement in all fields.  

Margin of appreciation: In many subject matters that we debate on, ‘yes or no’ or ‘true or false’ … kinds of conclusions are not possible. In political analysis, for example, often many lines of argumentation can be equally or at varying levels reasonable to one or many individuals. It is very naïve to say ‘my point is valid; yours is rubbish’. Tolerance and appreciation of the position of others is highly important. When one now scans the pro and con arguments forwarded on the issues of Eritrea vis-à-vis state sponsor of terrorism, one can see lack of margin of appreciation – trying to win arguments, exclusiveness and polarisation.  

Irresponsibility and impunity: There is unparalleled ugliness in some of our websites. I attribute this to attitudes of irresponsibility both from the contributors’ side and the managers of the websites. The design of some of the websites has been serving for irresponsible contributors than anything else. It is not right to blame the managers outright without knowing their circumstances. Perhaps they are only devoted citizens that are working over-stretched to give service. Perhaps they are more inclined to provide the chance for citizens to express themselves than in controlling the excesses of the right.  

One feature I critic is the one that allows individuals to comment without identifying themselves. The websites that have this feature are thus the main avenues for irresponsible posting. Their managers are absorbing responsibility for the actions of others. We can take asmarino as an example. Under the column called ‘hdmo wufyat’, under many of the articles posted, voluminous ‘comments’ do follow. The idea of providing the opportunity for others to react to ones contribution is very noble. Has the purpose being served is however the critical question. Often, unrelated text is posted; there is a lot of repetition; and worst ugly remarks and statements are hosted there. Perhaps the contributors have consented to such feature. Perhaps the contributors do not care whether they get insulted or not. This however is irrelevant as the vicious remarks posted are not only directed to the contributors but also to others including certain Eritrean ethnic groups or regions.  

Humans have a tendency to take what they frequently see or observe as normal. Thus with our little experience with freedom of expression and press, the bad side of such discourse is that many will consider democracy as equivalent to anarchy and stupidity. In this experimental stage, it is very important that we adhere to civility. It is not enough to post a cautionary statement or plead customers to be responsible. When they have proved irresponsible, they should not be treated as responsible. With all due respect, I suggest that the websites restrict posting from an identified authors. Individuals are free to hide their identity from the public but they are not permitted to hide from the law.             

As some writers have noted, the main cause for the lack of civility in our cyber engagements is a perception of the participants that they are operating in a legal vacuum or there is no effective enforcement mechanism. It should be however clear that we are not operating in legal vacuum; nor is enforcement a big challenge. To the contrary, internet based defamation related offences are considered as committed wherever the defamatory material is accessed. In civil matters, the place where the defendant resides is the primary place where legal action can be taken. Offenders residing in the Americas and Europe, where the rule of law is well established, are thus well within the reach of the law. There are many actionable defamation cases and fortunately the receivers are well qualified to go to court. They should help us in setting precedent with deterrence effect. A single case against an irresponsible person either in Europe or America can have all the deterrence effect needed.  

In the alternative, considering the strong effect our debates have on the home land (Eritrea) the websites can thus be taken as papers in circulation in Eritrea thus subject to Eritrean laws which includes the international treaties Eritrea has ratified. It is very important that we all note that the Transitional Penal Code of Eritrea clearly provides for liability emanating from press related offences. Would this have the effect of submitting our freedoms to the repressive laws decreed in Eritrea by PIA himself? Certainly not! At this era, international treaties and peremptory norms of customary international law are supreme to municipal law including constitutions – although many of the latter assert their supremacy. Thus, on this particular issue, the International Covenant on Civil and Political Rights is the supreme law against which all other national laws must be measured. The repressive laws, such as the Press Proclamation, in so far as they are not in conformity with the covenant are void. To the extent the rest of our laws are inconformity, we are bound by them. 

Conclusion  

Democratic ideals are perfected more in practice. At present, it seems that considerable percentage of Eritreans with internet access is tuned to the main Eritrean websites to follow up events pertaining to Eritrea. There is also considerable level of engagement although we need to undergo greater level of engagement. This factor coupled with the need to discuss national matters offers great opportunity not only to for us to train ourselves in democratic attitudes but also produce from our deliberations something our country needs. In many respects, we have differences because we have not being engaged. Likewise, in many respects, we are in certain camps although we have different ideals. We need to ferment; and ferment quickly before events beat us.  

Various factors are however destructing the progress we can achieve. The factors pertain to lack of organisation, management and supervision of the engagement; sidelining important issues; low level of civility which in turn is aggravated by dearth of experience with freedom of expression and understanding of the right, feeling of impunity resulting to gross manifestation of irresponsibility and calculated destructive injections. Many of the omissions or flaws are possible of quick correction. In general, however, the growth of many Eritrean websites focus on the socio-political arena remain one of the notable achievements towards building a democratic Eritrea.