Ethiopian Criminal Procedure Law Short Note

Ambo University, School of Law

May, 2020

CHAPTER ONE

GENERAL OVERVIEW

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This chapter lays the foundation for the subsequent discussions on different subject matters of
criminal procedure. The theoretical and legal bases of criminal procedure are analyzed. It also
describes the trends of criminal procedure in the world and Ethiopia since time immemorial;
models of criminal justice; major criminal justice systems of the world and their structure.

1.1. Definition, Nature, Purpose, and Development of Criminal Procedure

Definition

The rules governing the mechanisms, under which crimes are investigated, prosecuted,
adjudicated, and punished. It includes the protection of accused persons' constitutional rights.

The main actors in the criminal justice system are:-

 Police
 prosecution, and
 courts
A criminal justice system has dual purposes. These are protection of the public against criminal
harm and suspects or accused against unfair treatment along the process. Hence, it is all about
striking a balance between these two interests.
Law is broadly divided into substantive and adjective. The latter is also divided into procedural
and evidence. The substantive law defines rights, duties, and liabilities. But, its implementation
calls for the adjective laws. Procedure and evidence laws are corollaries of substantive rules.
Hence, criminal procedure is part of adjective laws.
Due process of law has two major components. These are substantive and procedural.
1. Substantive Due Process

Substantive due process refers to the content or subject matter of a law. It protects people against
unreasonable, arbitrary, or capricious laws or acts of government. Moreover substantive law
refers to the laws governing rights, duties, and liabilities. The legal provisions set a limit for their
application. Their substance can also be subject to dispute. For instance, vague, ambiguous,
discriminatory, or unreasonable criminal laws may be challenged on the grounds of their
constitutionality.

2. Procedural Due Process

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Procedural due process is concerned with the notice, hearing, and other procedures (Opportunity
to present a defense, an impartial tribunal & fairness) those are required before the life, liberty,
or property of a person may be taken by the government.
The substantive justice is more of an end. But, the procedural one is mainly a means to achieve
that end. Nevertheless, procedural matters may be ends in themselves. Fair trial, the right to be
heard, etc are rights to be upheld for their own sake besides their instrumentality in attaining a
fair result. In general, procedural due process requires the following:
 Notice of the proceedings
 A hearing
 Opportunity to present a defense
 An impartial tribunal
 An atmosphere of fairness

1.2. Models of Criminal Justice Systems

A criminal justice system has dual purposes. These are protection of the public against criminal
harm and suspects or accused against unfair treatment along the process. It is not easy to
reconcile these two competing and, at times, conflicting values. A state is expected to strike a
balance between the two. But, it is unthinkable to achieve absolute balance. The balance could
tilt towards one over the other. Consequently, depending upon the approach of the state towards
the two interests, two models of criminal justice system have been developed. These are the due
process model and crime control model.

1. The Due Process Model

This model stresses the possibility of error in the stages leading to trial. It therefore emphasizes
the need to protect procedural rights even if this prevents the legal system from operating with
maximum efficiency. Thus, the due process model is distinguished for its emphasis on the
avoidance of convicting innocent. It tolerates the escape of criminals for the sake of not harming
innocents. This may affect the public interest as offenders are sent free.

2. The Crime Control Model

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This model emphasizes efficiency and is based on the view that the most important function of
the criminal process is repression of criminal conduct. Proponents of this model put a premium
on speed and finally, and cannot understand why obviously guilty defendants should go free
simply because of errors by police or court personnel. Thus, the policy of the crime control
model, as its name implies, is the prevention of crime. It gives lesser emphasis to the protection
of the rights of a suspect or accused. There is a possibility to convict innocent persons since the
major target is repressing crime.

Determining the orientation of a jurisdiction is not an easy task. Comprehensive understanding

requires the examination of a constitution, statutes, case laws, and law enforcement activities.
The approach cannot be static amidst the dynamism of socio-economic and political reality.
Thus, the policy of the criminal justice system has to be seen in light of the overall arrangement
and operation of the justice system.

1.3. The Development of Criminal Procedure

The fact that the common law is based on precedent does not mean that this law is not written
down in one place. In the eighteenth century, William Blackstone set out to compile all the laws
in effect in England up to that time. His monumental work Blackstone‘s Commentaries
constituted a major step forward in English legal history. Since Blackstone‘s time, the common
law has continued to be compiled and brought up to date in various collections.

For most of its existence, the common law addressed all matters likely to need settlement in
court-not only private concerns such as contracts, property disputes, family questions, and torts
against individuals but also criminal; offenses. But more important than the actual delineation of
criminal offenses was the development of common law criminal procedure. Most of the criminal
procedure rules that are set forth in the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S.
constitution, as well as the rules about bringing the accused before a judge to question his
incarceration (habeas corpus), were adapted from common law rules and from parliamentary
decrees based on the common law. The concern in U.S. courts with criminal procedure, which
often seems excessive to people in civil law countries, has its origin in the English common law
criminal procedure.

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1.4. Sources of Criminal Procedure Rules

A source of law could refer to the legally competent authorities to enact it or the formal sources
into which the provisions of the law are found. They are two sides of the same coin. The legal
instruments cannot be valid without enactment by the proper government organ. In this section,
we have seen the sources of criminal procedure laws of other countries and Ethiopia.

The extracted writings deal with the sources of criminal procedure in Britannia, France,
Germany, and the United States, respectively. The materials show that sources of criminal
procedure rules are inseparable from the political and legal system of a country. Thus, the
sources of criminal procedure laws have to be seen in the context of the political and legal set up
of nations.

In the United Kingdom, the sovereignty of parliament has an impact over criminal procedure.
There is no formally adopted written constitution known in other parts of the world. Parliament
can enact any law limiting the constitutional protection of suspected or accused persons.
However, this does not mean that the country does not have criminal procedure principles and
rules having constitutional significance. In the absence of a formal constitutional document,
principles and rules of criminal procedure have developed over a long period of time. For
example, the Magna Carta incorporates the constitutional principle of due process of law. Thus,
in Britannia, there are criminal procedure principles and rules dispersed in various laws. They are
comparable to those found in modern constitutions.

The other major sources of criminal procedure rules are a myriad of statures enacted by
parliament and delegated legislations. The role of court rulings based on common law power and
interpretation of legislations cannot also be undermined.

In France, the sources of criminal procedure rules are mainly the constitution, legislations and
decisions of the constitutional court. As United Kingdom and France are unitary state, the
criminal procedure rules tend to be uniform. The situation is quite different in Germany and the
United States. These countries have adopted a federal arrangement. In a federation, there are two
or more sovereign orders of government sharing legislative and executive power with the federal
government. Each tier of government has to exercise the powers delimited in a federal
constitution. Accordingly, in a federation, one has to identify the role of the different orders of
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government over the functioning of the criminal justice system. Thus, the political system has an
implication over the nature and application of criminal procedure.

In Germany, the sources of criminal procedure are the basic law (constitution of Germany),
decisions of the constitutional court, federal statutes, and Lander laws. The federal arrangement
is also well reflected in the United States criminal justice system. At the federal level, the federal
Constitution, federal legislations and case laws are the primary sources of criminal procedure. At
the state level, the federal constitution, federal laws, state constitution, state legislations and case
laws of both Federal Supreme Court as well as state courts regulate the criminal justice system.

When we come to our country, the FDRE Constitution has formally adopted a federal system.
The level of government having the responsibility of enforcing the criminal law has to be
distinguished. The FDRE Constitution lacks clarity in this regard. Enacting a criminal law is the
mandate of the Federal government pursuant to Art 55(5) of the FDRE Constitution. But, regions
can enact criminal law on matters not covered by federal criminal law. However, the constitution
is not clear about the jurisdiction of the two tiers of government over the implementation of the
criminal law. Different arguments are forwarded. Some argue that the federal government should
have the mandate to apply the criminal law it has enacted. Others say that even though the
federal government enacted it, the regions have the responsibility to apply it. According to Art
52(2) (g) of the FDRE Constitution, the regions have the power to organize police force and
maintain law and order. These functions are highly connected with the application of the
criminal law.

Unlike the criminal law, the FDRE Constitution is silent about the layer of government having
the mandate to enact criminal procedure rules. It might be argued that the level of government
responsible for the enforcement of the criminal law should have also the mandate to proclaim
criminal procedure rules.

Like other federations, criminal procedure rules are found in regional constitutions. Some
regions have also enacted criminal procedure rules. For example, Tigray Regional State has
issued a proclamation empowering social courts to entertain petty offences. Addis Ababa City
Administration has also enacted a similar proclamation.

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At the federal level, the sources of criminal procedure rules are the FDRE constitution, federal
legislations, sentencing guideline to be enacted by the Federal Supreme Court, Federal Supreme
Court cassation division decisions, criminal justice and prosecution policies to be enacted, etc. At
state level, besides the federal sources mentioned, the sources include regional constitutions,
policies and legislations.

To sum up, the sources of criminal procedure principles and rules have to be seen the overall
political, constitutional, and legal system of a country. In every nation, the constitution is the first
legal document to be referred to. In many countries, there has been a trend of institutionalization
of criminal procedure rules. Legislation's also play a crucial role. The statutory sources of
criminal procedure rules come next to constitutional criminal procedure rules. There may also be
case laws. These are dependent upon the legal tradition of a state. In a federal set up, there is a
proliferation of criminal procedure rules due to the presence of two or more orders of
government. There may also be regional constitutions governing the criminal justice system. The
situation found in Ethiopia has to be viewed from these perspectives.

1.5. Systems of Criminal Procedure: the Adversarial/Accusatorial, the

Inquisitorial, and the Mixed Systems

Adjudicatory Processes

The process of adjudication is typically either adversarial (also called accusatorial) or

inquisitorial in nature. Both systems have the finding of truth as a fundamental aim, and each is
guided by the principle that the guilty should be punished and the innocent left alone. The
differences between the two are in their assumptions about the best way to find the truth.

The adversarial system is often considered the successor to the private vengeance. As societies
evolve, the power to initiate action first lies with the wronged person (the accuser). That power
eventually extends to relatives of the ―victim, then to all members of the person‘s group, and
finally to the government responsible for the well-being of the person. In time, then, the accuser
moves from being the individual to being the state. The setting for the accusation is before an
impartial official serving as referee (judge). Because the disputing parties (the state and the
accused) behave in a manner similar to a contest, they are considered adversaries.

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The inquisitorial process also shows societal evolution but along a different path. Here, the
wronged person is eliminated as a private accuser and replaced with a public official. Unlike the
adversarial process, the inquisitorial process does not keep the public official in the role of
accuser. Instead of accusation, there is now, investigation. Because the parties are not engaged in
a contest, a referee is not necessary. Instead, the impartial official (judge) serves as an inquisitor
actively seeking to determine what transpired.

In general terms, the common legal tradition uses the adversarial process, whereas the civil legal
tradition follows one of inquisition. Because of its civil roots, the socialist tradition also
exemplifies the inquisitorial process. The Islamic legal tradition offers a unique combination
relying on the private accusation in an inquisitorial-type setting.

1. The Adversarial System

The adversarial system is often compared to a game or contest in which both sides are trying to
win and a neutral umpire decides two things: (1) whether they are playing by the rules and (2)
which side wins. Often, the judge acts as umpire for both these aspects of the contest. In some
cases, the judge‘s chief responsibility is to make decisions that ensure a fair contest, while a jury
declares the actual winner.

The analogy to a game is not inappropriate when analogy to a game is not inappropriate when
describing an adversary system. Not only is the accused not obligated to cooperate with the
government in a case, but the government may fail to disclose crucial elements of its case against
the accused. This does not mean that the government has the right to ignore or suppress evidence
that would help the other side in the case-only the accused has that right. But it does mean that
the prosecutor, who represents the government, is expected to devote his or her efforts to
providing guilt rather than potential innocence once an individual has been indicted and is
moving toward trial.

Another way to understand the adversarial system is to compare it to its philosophical opposite
the non adversarial or inquisitorial system. Advocates of the adversarial systems of justice
believe that the competition between the two parties is the best process for obtaining truth.
Advocates of the non adversarial system, which we will discuss later, believe that judicial control
of the investigative process is the best way to uncover the truth. These fundamental beliefs create
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the differences in the role of witnesses, attorneys, and judges found in the common and civil law
systems.

In the adversarial system, most of the procedural advantages are on the side of the accused. The
right to an attorney, the right to remain silent, the right to be free of unwarranted searches and
arrests, the right to compel witnesses to appear for the defense, the right to confront one‘s
accuser, the right to appeal-these and other rules of criminal process help keep the prosecutor
from automatically winning a case. These rules have been developed over centuries as a response
to abuses of citizens by monarchs and governments in dealing with their citizens, and these rules
recognize that arbitrary government action remains real possibility.

There is concern that correct criminal procedure has become so extreme that predatory criminals
who learn to manipulate the rules of the system are likely to win the game despite their obvious
guilt. Such criticism often does not take in to consideration mitigating factors that counteract
excessive manipulation of criminal procedure. In the first place, a vast majority of cases that
occur in common law countries are settled through guilty pleas rather than through court trials.
Students of criminal justice in the United States are well aware of the importance of plea
bargaining and sentence bargaining in the settlement of criminal cases. In these cases, the
accused agrees to plead guilty in return for various concessions, such as a lesser charge or a
reduced sentence. On an aggregate basis, it is estimated that over 90 percent of criminal cases are
settled through plea bargains in the United States.

In common law jurisprudence, a prosecutor has the obligation not to accept a guilty plea if there
is no evidence to support it. However, once a guilty plea is accepted and made before a judge, no
further trial is held.

America‘s overt, and by now legitimized, plea bargaining seems unique in modern legal systems.
Nevertheless, we find that most cases in other common law countries are also settled through
guilty pleas, despite the claims of legal system personnel that no plea bargaining exists.

2. The Inquisitorial System

U.S. Supreme Court Justice Warren Burger once remarked that ―if he were innocent, he would
prefer to be tried by a civil law court, but…if he were guilty, he would prefer to be tried by a

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common law court. This remark is in some ways an indictment of the Common Law procedure
in its suggestion that it is less likely than the civil law procedure to arrive at the truth of a case.
We can weigh the validity of this statement as we examine some of the details of civil law
procedure.

One way to anger a scholar of the civil law is to claim that a major contrast between Common
Law and Civil Law criminal procedure is that in the former the accused is innocent until proven
guilty while in the latter the accused is guilty until proven innocent. This is indeed not
necessarily true, since both kinds of procedure are theoretically based on a presumption of
innocence. Nevertheless, the extensive pretrial investigation that characterizes Civil Law systems
gives rise to the feeling that defendants who actually are brought to trial are most likely to be
guilty.

Criminal procedure in civil law countries is characterized as inquisitorial, as opposed to

adversarial, in nature. This characterization evokes unfortunate images of the inquisition, that
notorious and cruel institution that persecuted alleged heretics during the sixteenth and
subsequent centuries in Spain and other Catholic countries, extorting confessions through brutal
tortures and executing its victims, often by burning. In fact, however, confessions resulting from
torture were the norm in both England and Continental Europe for secular as well as religious
crimes until the right to remain silent becomes the distinguishing characteristic of the adversarial
system of procedure.

In modern civil law systems, the inquisitorial system refers not to any legacy of the inquisition
but to the extensive pretrial investigation and interrogations that are designed to ensure that no
innocent person is brought to trial. Even to this extent, inquisitorial is a misleading term that does
not truly describe the rather hybrid procedure that developed in civil law systems, often in
emulation of common law procedural rights, during the nineteenth and twentieth century’s.

Many countries of the world can be classified as having inquisitorial systems, including our
model countries of France, Germany, China, and even, in some respects, Japan. But there are
important disparities in criminal procedure among them. France and Germany have long civil
law traditions but differ from each other with respect to some aspects of criminal procedure, such
as the use of a prosecutor in Germany and an examining magistrate in France. Italy another civil

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law country, changed much of its pretrial process in 1988, and its system now resembles
Common Law procedures in many ways. The Italians call this ―process Perry Mason.

3. Mixed System

Islamic procedural law is a mixed system combining adversarial and inquisitorial aspects.
Because the Shari‘a is a religious law based on divine command and revelation, it did not
develop through judicial precedent or legislative codification. Furthermore, it does not require
administration of justice to be a combined office (for example, the inquisitorial judge) or divide
in too many (for example, the adversarial attorney, judge, and jury). Identifying Islamic
procedural law is not so easy. Though the sacred law prescribes penalties for criminal acts, it
does not specify the means used to apprehend the offender and bring him to justice. The matter is
left to the discretion of the state

Because of this discretion, Islamic law has features of both procedural types. The inquisitorial
process seems to predominate, because historically there has been little division between the
judge and the investigator. In addition, the defense attorney‘s role is not so much adversarial as it
is one of presenting favorable evidence, safeguarding against improper incrimination, and
overseeing the criminal judgments. Simultaneously, such adversarial provisions as the right to
confront accusers, maintain silence, and a modified presumption of innocence reflect adversarial
interests.

A peculiar twist given procedural law by Islamic justice is the differing provisions for separate
categories of offenders and its impact on the presumption of innocence. Shari‘a judges place
suspects in to one of three categories:-<<(1) the accused is from the pious and righteous group;
(2) he is among the disobedient and immoral; or (3) his character is unknown though neither
righteous nor immoral>>. These categories help judges decide the appropriate procedures to
follow when a person is accused of a crime. When presented with a person of the first category,
jurists usually give no credibility to the accusations. After all, the person is pious and righteous
and therefore deserves the benefit of doubt. Because accusation against the sinful and immoral
person are more likely to be true, given his or her lifestyle, limiting the accused‘s rights and
freedoms in the quest for truth is permissible. Persons in the third category are generally placed
with the moral and subjected to the same restrictions.

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As these examples from several countries show, there is greater diversity among nations in terms
of procedural criminal law than we found on issues of substantive criminal law. However, this
focus on the adjudicatory process might lead us to believe that procedural law issues are
essentially differentiated on the basis of which legal tradition a country follows. That assumption
would be incorrect because there are differences in procedural law both among and between the
legal traditions. One area of variation is linked to the concept of judicial review. As we
considered that topic, we will see that procedural criminal law shoes variation beyond that which
is explained by legal tradition affiliation.

1.6. History of Ethiopian Criminal Procedure

1.6.1. Criminal Investigation and Models of Litigation

General remarks

The body of law that was indigenous to Ethiopia and that marked a significant development in
the last decades of this century was the regime of law known in modern legal science as civil and
criminal procedure laws. It had been transmitted from generation to generation by oral tradition.

Before the Italian occupation in 1936, it was the procedural law that was comparatively well
developed and that had attained a high degree of excellence. It was also the same law that was
more popular among the people than the substantive law, a fact that tends to show how much the
people of Ethiopia give due respect and importance to the proper administration of justice.
Judges and all other persons engaged in the administration of justice were respected and
honored. They were expected to live up to the then standard of justice and aspire to the
attainment of this lofty goal.

This procedural law included the law of evidence, which incorporated techniques of
investigation and highly sophisticated interrogation and cross-examination procedures, methods
of interpretation of law and framing of issues, including principal and side issues (obiter dictum).
All these fell under the administration of justice process of Ethiopia. Criminal investigation
devices in criminal cases, court proceedings were often preceded by the investigation of the
commission of the alleged crime.

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There were three types of devices of crime investigation or detection under the old procedural
law of Ethiopia. These were known as leba shay, afarsata, and the investigations undertaken by
the market guards (arada zabagna) and secret guards (mistir zabagna).

(i) The Leba Shay: device for detecting criminals (c. 1900-1922)

Leba Shay was a method employed to identify a thief by using a young boy who had not
attained the age of puberty. He was made to drink a beverage made of a certain herb. One end of
a strip of a cloth would be tied around the waist of the boy and the chief of leba shay would
follow the intoxicated boy wherever he went by holding the other end. Since it was believed that
water would neutralize the effect that the herb would have no the boy, great care was taken to
keep him away from it. In the house where he collapsed, he would again be made to drink the
beverage so that he could identify the particular individual from among the inhabitants of the
house. The boy would push aside any one he meets entering the house of the suspected culprit.
Any person on whom he laid his hand would be taken as a suspect and brought before a court of
law. At some stage of its development, supplying information to the boy was made a part of the
practice. This brought more harm than the service it rendered, for it could easily be manipulated
to serve individual interests.

During the reign Empress Zewditu (r. 1916-1930) an investigation for a thief who had stolen a
garment from the palace was conducted by leba shay. The chief of leba shay hinted to the
intoxicated boy to indicate someone as the person who had stolen the garment. The person thus
picked was a well-known personality among the imperial courtiers but he was not on good terms
with the chief of leba shay. This incident triggered a lot of controversy among the imperial
courtiers, particularly when it was later discovered that the garment had been found after it was
offered for sale at the market and that it had been stolen by a maid of the palace. Blaten Geta
Mathteme-Sellassie recounted that this particular incident revealed the disadvantages of the
institution, as a result of which Empress Zewditu abolished leba shay as a technique of criminal
investigation.

Indeed leba shay is not by any standard a modern method of criminal investigation. Nonetheless,
in the absence of such modern institutions as a police force and crime investigation, the

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institution of leba shay must, at the time, have served as a psychological deterrent in the minds of
potentially dangerous people.

(ii) The Afarsata: gathering to screen criminals (c.1900-1960)

The afarsata was a device by which all male members of a community would assemble to
identify an offender. Whenever a person or a group of persons reported to the local chief or other
official that cattle had been stolen, that they had been robbed or that one of their relatives had
been murdered, the local chief ( chiqa shum ) or the village shum (dug) would call on all male
members of the community in that locality to assemble in assemble in a fixed place on a given
date. In the assembly, the elders would call upon each person to tell whom he suspected. Every
person would declare the identity of the person he suspected or what had been told to him by the
“singing bird”. The person who would testify as to the identity of the criminal under oath was
kept secret and referred to as “bird”. The person thus identified as the offender would be
prosecuted and convicted before a court without having the chance to confront the witnesses for
the prosecution.

In what is now the Gonder region, the person who said that he saw the commission of the crime
was known as a “bird”(wof), while the one who testified as having heard it from another person
was referred to as a “stone”(dingay). A prosecution would take place against the person who was
identified as the offender by the testimony of the “bird” or the “stone”. It was an established
practice not to allow anybody to go home until the identity of the criminal was established. As a
result, a great deal of harm was done to innocent people. The following comment given by an
elderly person on this institution leads to the same conclusion.

In a certain place, there were three well-known thieves who brought about untold harm to the
people of the community. Their names were Lemma, Bitwe and Jenber. They lived in the
community pretending to be law-abiding citizens. The people tolerated them quite a long time
for fear of vengeance. However, in one of the public meetings, a certain witty man declared that
in our community, the thief is flourishing (lemma), he better stop it (bitew yettew), if he does
not, are we supposed to be kept on jammed in such a meeting every day (jenber bessereqe
qutter).

Thus the witty man revealed the names of the thieves by the use of ambiguous phrases.

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A law regulating afarsata meetings was issued on August 2, 1933. This law provided that
gatherings be conducted on Sundays only. The person who revealed the identity of the suspect,
pursuant to this law, was made to testify before the court. Hence, this law made it possible for
the accused to confront witnesses for the prosecution. A person who failed to attend such
gathering would be liable to a payment of a fine (adafagen). If the people failed to identify any
person responsible for the alleged crime, the entire community would be liable to make the
damage good. If the offence committed was homicide, members of the community had to
contribute to redress the damage inflicted on the relatives of the deceased. Later on, a circular
letter was issued by the Ministry of Interior that required the attendance of a policeman in all
such meetings. Furthermore, when the investigation was over, the so-called “bird” was required
to testify openly before the court.

In times when modern techniques of criminal investigation were not sufficiently developed or
totally absent, techniques such as the afarsata must have had their own reason deter. After the
adoption of modern techniques of investigation and other rules of criminal justice, the decision to
maintain such an institution was unwarranted, particularly when it is seen in the light of its
negative effects. It was not deemed wise to maintain such an institution because it was not only a
psychologically and socio-economically damaging practice, but also an ineffective method of
screening criminals from amongst innocent persons. In fact, it allowed a great deal of lee-way for
abuse and even corruption. Even where it was correctly applied, the very nature of the procedure
went against the principle of due process of law. Since the leba shay assembly, by its nature,
passed in to decline and since it was, at least by implication, repealed, there was nature, passed in
to decline and since it was, at least by implication, repealed, there was no justification for its
continuity after the promulgation of the 1955 Revised Constitution.

(iii) Market guard and secret guard (1909-1936). The market guard (arada Zebagna) was very
close to what we now refer to as the metropolitan police force. The main responsibilities of the
market guard were:

1) To maintain peace and order in the city of Addis Ababa,

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2) To guard at night the shops in the market places (arada), and 3) to detain any person who
acted contrary to the law and the accepted ways of behavior, and cause such person to appear
before the competent municipal court.

The market guard also had the power to arrest persons found committing, or suspected of
committing, a crime. After the necessary investigation, the market guard could bring such
persons before the market court. An appeal from the decisions of the market court was taken to
the lord mayor of the city.

Where a person instituted a civil action for battery, the market court required a prior payment of
the court fee. This was controversial. One person remarked: ―what justice where the one injured
is required to pay beforehand. The secret guard (mistir zabagna) was a unit of the market guard
that was charged with the responsibility of crime prevention.

The secret guard remained a device of crime prevention and control during the period before
1936. It maintained peace and order, gave due warnings, reprimanded offenders who committed
petty offences, and brought before a court of law those persons who were accused of committing
serious crimes. In short, the institution can be said to have served as useful technique for the
enforcement of enacted laws and customary laws.

CHAPTER TWO

SETTING JUSTICE IN MOTION: IN TAKE PROCEDURES AND INVESTIGATIVE

ACTIVITIES

The operation of criminal procedure begins with the reception of information about the
commission of a crime. The information could reach the police through different channels. These
are complaint, accusation and the occurrence of flagrant offences. They serve as condition
precedents to set criminal justice in motion. Once the criminal justice is triggered, it is often
followed by investigation to substantiate the case with evidence to prove guilt. Arresting the
suspect could also be made whenever the law requires or circumstances justify.

The investigation may be made before the arrest of a suspect or after the arrest. The police are
supposed to hear witnesses and gather other real evidences like exhibit, finger print, blood test,
etc. The gathering of evidence sometimes requires search and seizure. The information source

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could be either from the suspect or out of the suspect. The process of undertaking the criminal
investigation raises the constitutional issues of the right to life, liberty, privacy, against self
incrimination, etc. Their violation also brings to the fore front the problem of remedial measures.
The task of this part of the document is exposing the legal principles and rules facilitating the
initiation and investigation of crimes as well as protecting the interests of the suspected persons.

2.1. Complaint, Accusation, and Flagrant Offences

Relevant Laws Art 11-21, 50, 150-153,165-166, CPC

1.1.1. Prosecuting Criminal Offences Punishable only upon Complaint

Article 1 of the Criminal Code states that “the purpose of criminal law is to ensure order, peace
and the security of the state and its inhabitants for the public good” The code achieves this
purpose by laying down prohibitions from acting or act whenever it is in the general interest that
one should act or retain from acting. Whosoever commits a criminal offence by disregarding
these prohibitions or obligations is answerable, therefore, to the community. Hence the principle
that criminal offence is prosecuted and punished, on behalf of the public, by the state acting as
the agent of the citizens. There are offences, however, which do not jeopardize the order, peace
and security of the state and its inhabitants but are contrary solely to the rights of a given
individual. There are offences of a purely private or personal character, the effect of which does
not extend beyond the individual there by injured. In such cases, the state, though it is generally
responsible for instituting criminal proceedings whether or not the victim of the offence agrees
thereto, will not carry out this duty unless the victim indicates affirmatively that he wants the
offender to be prosecuted.

The prior consent of the injured party is required, firstly, because public interests are not at risk
as the offence does not endanger the society at large, and secondly, because the institution of
proceedings, against the will of the injured party, might often be more harmful to him than the
commission of the offence, for it might draw the attention of society to certain facts, such as his
spouse‘s unfaithfulness or his child‘s dishonesty, which are precisely what he does not want
known publicity. In these situations, the institution of criminal proceedings is conditional upon a
complaint first being made by the individual concerned. Where he makes a request to this effect,
the state then acts, not on behalf of the public, but as the custodian of his rights for the purpose of
17
prosecution and punishment insofar as this is possible. This raises two questions: which are these
offences so punishable on complaint and what are the effects of such a complaint being made?

The Criminal Code does not specifically set out a complete list of offences punishable only on
compliant and Article 212 confines itself to making reference to the special part of the code or
any other law defining ―offences of a predominantly nature which cannot be prosecuted except
upon a formal accusation or request, or a complaint in the strict sense of the term, of the
aggrieved party or those claiming under him.

Whenever an offence is committed offences punishable only on compliant no action may be

taken except at the initiative of the person qualified under the law of making the necessary
complaint. If the offence is a flagrant one, the offender may not, it seems, be arrested without a
warrant unless a complaint is first made. Article 21 of the CPC states (1) that, in cases of flagrant
or quasi-flagrant offences, proceedings may be instituted without an accusation or complaint (in
the general sense of information) being made, unless the offence is punishable on complaint (in
the technical sense of the term) and (2) that the offender may in such cases be arrested without a
warrant in accordance with Articles 49 ff. It may be argued that sub-article (2) dealing with
arrest is as general as it could be and that had it been intended to prohibit an arrest without a
warrant from being made when the flagrant or quasi-flagrant offence is punishable on complaint,
this prohibition would have been expressly laid down in sub-article (2) or, like the prohibition
from instituting proceedings, in sub-article (1) of the said Article 21. There are however, a
number of reasons which militate towards a different construction of this Article. Firstly, it is
debatable as to whether the words ―in such cases appearing in sub-article (2) are meant to refer
to all cases of flagrant and quasi-flagrant offices or only to those where proceedings may be
instituted without an accusation or complaint being made, i.e., all cases where the offence is not
punishable on complaint (stricto sensu). Secondly, when a flagrant offence is committed, justice
is set in motion by the mere fact of the arrest; to allow an arrest without a warrant when the
offence is punishable on complaint would be inconsistent with the principle that it is for the
injured party to set justice in motion. Thirdly, one of the purpose of an arrest without a warrant in
flagrant cases is to prevent public order from being disturbed or further disturbed; yet, he who is
about to commit or is committing an offence punishable on complaint does not disturb public
order. Finally, to permit an arrest without a warrant when the flagrant or quasi-flagrant offence is

18
punishable on complaint would as often as not result in defeating one of the main purpose of the
complaint, that is, to avoid scandal when the injured party does not want certain things known.
This is probably the strongest argument against taking the said Article 21 to mean that such an
arrest is permitted. It is undesirable, to say the least, that any one whether a member of the police
or a private person (see Article 50 of the CPC) should be entitled, for instance, to grab by the
neck and bring to the nearest police station, coram populo, two persons he finds in the act of
committing adultery. It seems that an arrest should not be made in such a case except by, or at
her request of, the injured spouse. For obvious reasons of convenience, the complaint should
then be made orally to the police, and not in writing as required by Article 14 of the CPC, so that
the arrest, if to be made by the police, may be made forthwith. This oral complaint should
thereafter be confirmed in writing.

It must be clear that the sole purpose and effect of the complaint is to enable the public
prosecutor to institute proceedings. It may not be held that offences punishable on complaint are
offences which may be prosecuted only by the injured party. Article 212 of the criminal code
states that ―this form of … complaint upon which… the bringing of the public action depends.
The bringing of the public action obviously means the institution of proceedings by the public
prosecutor. It is quite true, as will be seen later, that a private prosecution may be instituted with
regard to offences punishable on complaint, but this is permissible only after the public
prosecutor has found himself unable to carry out his duty to institute proceedings as he is bound
by Article 40 of the CPC to do whenever any breach of the law occurs. As noted above, the
public prosecutor will act as custodian of the injured party‘s rights insofar as is possible; only
when this is not possible may the injured party substitute himself for the prosecutor.

Regarding the manner in which offences punishable on complaint are to be prosecuted, the
Criminal code and CPC must be read together. Thus, the person or persons against whom an
offence punishable on complaint has been committed may set justice in motion by making a
complaint in accordance with Article 13 ff. of the CPC unless the offender is a juvenile, in which
case the provisions of Article 172 of the CPC will apply.

The complaint must be made within three months of the injured party‘s knowledge of the offence
(as a complaint may, according to Article 15 of the CPC be, made against an unknown offender)
or that of the offender, unless the law itself makes it clear that this period of three months begins

19
to run from a different date. After a complaint has been made, a police investigation will be held
as provided for by Article 22 ff. of the CPC. After considering the findings of the police, the
public prosecutor, ordering further investigations in questionable cases, will either close the
police investigation file with an un appealable decision (Article 39 of the CPC) or institute
proceedings unless there are reasons why proceeding may not or cannot be instituted (Article 42
of the same code).

When the public prosecutor institutes proceedings with respect to an offence punishable on
complaint, the ordinary provisions regarding the charge and the trial will apply (Articles 94 ff. of
the CPC) or, where appropriate, those regarding petty offences. (Article 67-170 of the same
code).

However, as the public prosecutor prosecutes only because the injured party has expressly
requested him to do so, it follows that, where the complainant declares that he no longer wants
the offender to be prosecuted, i.e., where he withdraws his complaint as he entitled to do the
public prosecutor is compelled to withdraw the charge. The accused may not, as a rule, object to
such withdrawal and demand that the case should be carried forward.

Where, for reasons which are to be given in writing to the injured party (Article 43 of the CPC)
in the manner prescribed by form V in Third Schedule to the said code, the public prosecutor
refuses to institute proceedings with respect to an offence punishable on complaint, proceedings
may nonetheless be instituted, depending on the reasons upon which this refusal is based. If the
public prosecutor refuses to prosecute for any of the reasons set out in Article 42 (1) (b)-(d) of
the CPC, his refusal is final (as it is, also, when the offence is not punishable on complaint). But
if the prosecutor refuses to institute proceedings because he is of the opinion that there is not
sufficient evidence to justify a conviction, that is, he considers in accordance with Article 42 (1)
(a) of the CPC that he is unable to prove that the offender is guilty of the offence to which the
complaint relates, a remedy is available to the injured party. What then is the nature of this
remedy and what are its effects?

The remedy consists of providing the injured party with a certificate specifying the offence to
which the refusal relates, stating that public proceedings will not be instituted with regard to such
offence, and authorizing the injured party to conduct a private prosecution with respect thereto

20
(Article 44 (1) of the CPC) at his peril and at his own expense (Articles 46 and 221 of the same
code). A copy of the certificate, for which there is unfortunately no form in the Third Schedule to
the CPC, will be sent to the court having jurisdiction, enabling it to ascertain, in accordance with
Article 150 (2) of the CPC, that the offence charged by the private prosecutor actually is the
offence in respect of which he has been authorized, under the certificate, to institute private
proceedings.

The question may be asked whether the certificate is to be automatically issued upon the public
prosecutor‘s refusal to prosecute, in which case it ought to be attached to the copy of the decision
sent to the injured party in accordance with Article 43 (2) of the CPC, or whether it is issued only
at the request of the injured party, in which case this request ought presumably to be made within
the same period of time as an appeal under Article 44 (2) of the said code. Although the law
makes no specific provision on this point, the first solution should prevail. Since the public
prosecutor may, in no case, object to the institution of private proceedings after he has declined
to prosecute on the ground of lack of evidence, it is of little importance whether the certificates is
issued automatically or on application. This being so, the more convenient practice of giving the
certificate immediately, regardless of whether the injured party intends to make use of it, ought
to be followed.

Another question is whether, as of the time that he has been issued a certificate, the private
complainant may exercise all the rights which the public prosecutor would have in public
proceedings. Although a provision like Article 153 (1) of the CPC would induce one to answer in
the affirmative, it seems more responsible to consider that certain powers. And particularly the
power to select the court have local jurisdiction, are retained by the public prosecutor even
though he does not prosecute. If a reasonable doubt arises as to the place where the offence
punishable on complaint was committed (see Article 102 of the CPC), it should not be held that
the power to direct the place of trial, which is normally exercised by the public prosecutor in
accordance with Article 107 of the said code, passes to the private prosecutor, for this might
cause confusion. It should rather be held that, in such a case, the public prosecutor must, prior to
issuing the certificate, decide as to the court in which the complainant will file his charge, and
such court ought, therefore, to be mentioned in the certificate. This interpretation is confirmed by
Article 44 (1) of the said code which, as has been seen, compels the public prosecutor to send a

21
copy of the certificate to the court having jurisdiction, which term does not mean only material
jurisdiction but includes personal and local jurisdiction, also. Should several courts have local
jurisdiction, the public prosecutor would clearly be unable to comply with this duty if it were not
for he and he alone to decide in which of these courts the private prosecution would have to be
conducted.

The effect of a certificate having been issued is that the injured party or his representative, as
defined in Article 47 of the CPC, may institute proceedings in the court mentioned in the
certificate. He will frame a charge, and the case will then proceed in accordance with the
provisions of Article 150-153 of the CPC. It will be noted that even in these cases the injured
party may apply to be allowed to claim compensation while at the same time conducting the
prosecution (Article 154 (3) of the CPC). Unless the accused is a juvenile (Article 155 (1)(a) of
the same code).

The above explanations are without prejudice to the provisions of Article 48 of the CPC.
According to which a private prosecution may be stayed at any stage thereof at the request of the
public prosecutor, if it appears in the course of such prosecution that the accused committed a
more serious offence than that for which the certificate had been issued under Article 44 (1) of
the said code.

2.2. Summons and Arrest

Relevant Laws Art 3, 5, 8, 9, 11, and 12, UDHR

Art 9 and 14, ICCPR

Art 16-21, 26, 32, FDRE Constitution

Art 19-21, 49-59, CPC

2.2.1. Warrant or Summons Issued on the Complaint

Once the magistrate has determined from the complaint and accompanying affidavits that there is
probable cause to believe that an offense has been committed and that an offense has been
committed and that the defendant committed it, the magistrate issues either a summons or an

22
arrest warrant for the defendant‘s appearance in court. If the defendant is already before the
court, no summons or warrant is necessary.

Once the summons or warrant is issued, the law enforcement officer must serve the summons or
execute the warrant by arresting the defendant and bringing the defendant before a judicial
officer as commanded in the warrant.

Some Aspects of Ethiopian Arrest Law

The law of arrest: importance The immediate efficiency and utility of any system of criminal
procedure must be measured according to two goals, each equally important to society: the
extent to which the system facilitates the enforcement of the penal law, by bringing offenders to
speedy justice, and the extent to which innocent citizens are left undisturbed. In fact, the chief
task of the system is to provide effective procedures for accurately selecting out of the
community those who have offended against the penal law, and seeing that they are subjected to
the prescribed sanctions. At the same time, the methods employed by the state to enforce the
penal law must be of a sort to safeguard other, equally important, values of society, chief among
which is human dignity, and to engender in people attitudes of trust in the government. But,
given these aims, it is clear that in no system will the selection process be completely accurate-
some offenders will be left undisturbed, and some innocent persons will be mistakenly selected
and subjected to the unpleasant ordeal of criminal proceedings. In recognition of this latter fact,
most procedural systems provide various post-arrest “screening devices” the most rigorous of
which is the trial hearing itself in order to “de-select” or sift out of the criminal process those
who, because they are innocent, ought not originally to have been brought in to it.

Thus, for example, Anglo-American system of criminal procedure ordinarily provides two post
arrests, pre-trial ―screens for the arrested accused in serious cases. First, an arrested person will
immediately be brought before a court, which after a ―preliminary hearing may order his
discharge if upon the evidence the court finds that there is no sufficient ground to believe him
guilty of any crime. If at this stage the accused is not ―de-selected out of the criminal process he
will either remain in custody or be released on bail until the public prosecutor decides whether or
not to institute proceedings against him by framing a charge. This is the second opportunity, now
at prosecutor‘s discretion, to secure the discharge of an innocent accused before trial. Since the

23
latter screen is administrative rather than judicial, and since in any case it comes in to operation
relatively late in the criminal process (a considerable delay may occur between the time of arrest
and that of the prosecutor‘s decision to frame a charge) the first screen is, from the point of view
of an innocent accused, of much greater value.

In the continental systems, too, post arrest-judicial screens play a vital part in serious criminal
cases. In France, for example, there is not only a preliminary judicial hearing, to determine
whether or not the accused should be committed for trial and on what charge, but a second
screening by the ―Chambre “daccusation” of the court of Appeals, which must ratify the
examining magistrate‘s decision to commit.

But, turning to Ethiopian law, we find that it is doubtful whether any post arrest judicial screen
exists short of the trial itself. The code is not very clear whether the court before which an
accused is brought immediately after his arrest has the power to pass on the grounds for the
arrest and to order the discharge of the accused should it find them inadequate; and it is fairly
clear that the preliminary inquiry court lacks that power. Thus, whether legal case exists or not,
once in custody the innocent accused in Ethiopia possibly has no opportunity to win a discharge
at any time prior to the trial itself, should the public prosecutor decide to institute proceedings. In
such a case, during the months or possibly years which elapse between arrest and trial an
innocent accused ordinarily might have no access to any judicial forum before which he might
demonstrate his innocence, or the prosecution be compelled to justify his selection of innocence.

Noting the possible lack in Ethiopian criminal procedure of any post-arrest judicial screen short
of the trial itself, the student is led to focus his attention on the initial selection process: how does
one become liable to arrest and detention? How do we ensure that only probable offenders are
caught up in the process? What safeguards does the law provide to minimize the risk that through
inadvertence or excess of zeal on the part of informant, police or judges, the “wrong man” will
be taken in to custody, with possibly no opportunity to prove his innocence to a court until the
trial hearing some uncomfortable months hence? We will discuss these questions under the
following heads: arrest by court warrant, use of the summons, and arrest without warrant.

1. Arrest by court warrant

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The ordinary procedure for issuing warrants is prescribed by Article 53 and 54. Recognizing the
extreme gravity of the decision to order the arrest of an individual, the code has strictly limited
that power. Although any court may issue a warrant, its power may be exercised only upon the
application of an investigating police officer. And then the warrant may issue only if the police
officer is able to demonstrate two facts to the court: [1] that it is absolutely necessary that the
person whose arrest is desired appear before the court and [2] that his attendance before the court
cannot be obtained in any other way. The meaning of these criteria and the method of proving
their satisfaction in any particular case are not explained. Nor has the author knowledge of any
foreign sources on point, for the language of Article 54 is apparently Sui generic in the Code. In
the absence of further legislative guidance, then, it is for the courts to decide how best to
administer these requirements in keeping with the spirit of the Code and Constitution.

The criterion of absolute necessity

How can the court decide whether or not the attendance of a person before it is ―absolutely
necessary? We must note at the outset that these words imply a very rigorous test, and in
combination with the preceding word only clearly suggest that the court is to exercise a
screening function; it is not supposed automatically to issue warrants arresting whomever the
police suspect of an offence. It is a fair inference that, as a minimum standard, the court must be
satisfied that there is sufficient evidence to believe that the suspected person has probably
committed the offence. By requiring the applicant to produce some credible evidence to support
that belief, the code has established an impartial judicial check on the weighty power of arrest.

After the court is satisfied that the suspect is a proper target for criminal prosecution, then it
becomes necessary for the court to obtain physical jurisdiction and control over him. Once the
suspect is before it, the court can take steps to ensure the continued availability of his person to
the judicial process: this is accomplished either by keeping him in custody or by granting him
conditional liberty on bail. Therefore, in a sense it is absolutely necessary that every probable
offender against whom criminal proceedings are contemplated appear before the court. But
where an investigating police officer applies for a warrant to arrest a person as to whom there is
shown no substantial evidence of criminal activity it follows that no prosecution in justified and,
therefore, that the presence of that individual before the court is not [absolutely] necessary.
Concededly, this interpretation requires that a somewhat special meaning be given to the phrase,

25
absolutely necessary. It is, however, supported by the limitation placed on the power of the
police to summon a suspect to appear, that there be reason to believe that he has committed an
offence. Unless absolutely necessary is interpreted in the manner suggested here, we would have
the anomalous situation that a suspect could not be requested to appear unless there was
substantial evidence indicating his guilt, but he could be brought to the police station by force on
the basis of the slightest evidence, or on the basis of no evidence at all.

It remains to consider by what means the applicant might demonstrate the reasonableness of
suspecting a particular person to the court. Although on this point to the Code is silent it seems
that the application for a warrant could be supported by the submission of various sorts of proofs.
Some of these might be: (a) a copy of the accusation or complaint (as recorded under Article
14) ; (b) the presence in court of the party who signed the accusation or complaint, and his
availability for questioning by the judge; (c) copies of any other statements obtained from
witness during the police investigation (Arts. 24, 30(3)); (d) written statements of the results of
any other investigatory activities conducted by police such as searches (Arts. 32, 33) and
physical examinations (Art. 34).

Cannot otherwise be obtained

The second requirement of Art 54 of Criminal Procedural Code. We have mentioned a second
criterion which must be satisfied before the court may issue an arrest warrant: that the presence
of the accused before the court cannot be obtained in any other way. The apparent basis of this
reluctance to authorize arrest when there is some alternative way to get the accused before the
court is that arrest, involving as it does the possible use before, is a drastic procedure, to be
avoided if possible. Among the inherent disadvantages of arrest are (a) the use of time and
energy on the part of the police who must physically go find the accused and bring him to court
under supervision; (b) possible embarrassment to an innocent accused in being publicly arrested
and escorted by the police; and (c) the possibility of resistance to arrest with attendant injuries to
the accused and others. For these reasons the Code prefers that the accused‘s presence in court be
obtained by ―polite‖ means, reserving the use of arrest for those cases where it is the only
practicable alternative. The preferred method is for the police to summon the accused
―voluntarily‖ to appear at the police station, a method which has none of the cited disadvantages
of arrest.

26
As a general rule, then, the court may not issue a warrant of arrest unless the accused has already
been summoned without success. For, until a summons has been tried it is possible that the
accused‘s attendance in court can otherwise be obtained and therefore resort to arrest is
forbidden by Art 54. Of course if the accused has already been summoned and has deliberately
failed to appear the investigating police officer has the duty to arrest him by applying for an
arrest warrant if necessary, and the court should issue it, assuming that ― absolute necessity‖ has
been shown.

There are, however, cases imaginable in which the court would be justified in issuing an arrest
warrant even though the summons method had not been tried. If, for example, the applicant
could by reliable evidence convince the court that summoning the accused would be completely
futile because the latter had already planned or begun to flee the empire, or because receipt of a
summons would likely induce him to flee, the court would be justified in ordering arrest because
the accused‘s attendance could not otherwise be obtained. But unless such exceptional
circumstances are shown, the police should always first proceed by summons.

According to Lord Devlin, [t] the distinction between the process begun by arrest and that begun
by summons is that the latter leaves the accused completely at liberty until he is convicted.‖ In
England, perhaps, but not in Ethiopia. For, although, as we have said, the summons method is
free from many of the coercive aspects of arrest, under Ethiopian law it leads just as surely to
immediate custody, with perhaps no possibility of discharge before trial. Even assuming the
summoned accused‘s readiness and ability to convince the police of his absolute innocence of the
offence with respect to which he was summoned, the Code does not permit the police to
discharge him. Rather, they have the option to release him conditionally on bond or bring him
before a court. In this respect, and in all others, response to a summons entails the identical
consequences for the accused as does subjection to arrest: the court before which the police take
him has no explicit authority to discharge him even if convinced of innocence, and the
preliminary inquiry court clearly has none. In other words, summons differs arrest under
Ethiopian law only in that it draws one into custody “voluntarily” rather than by force; it is, once
the accused arrives at the police station and is detained there involuntarily, transformed in to
arrest.

27
This conclusion, that summons under the code holds practically identical consequences for the
accused as does arrest, provokes the question whether the code adequately controls and limits the
power to issue summons. We find that in contrast to the practice of other procedural systems,
both Anglo- American and continental, where a summons, like an arrest is issued by the courts,
in Ethiopia the power is given to the police themselves. The only limitation imposed by Article
25 is that the investigating police officer should have reason to believe, that the accused has
committed an offence. While that standard is not precise it can at least be said that Article 25
prohibits the summoning of an accused where the evidence is of very questionable reliability
such as anonymous or ambiguous information, hearsay un sustained by factual investigation, etc.

Of course the existence of a criterion and its proper application are two different things, and it
may be asked whether it is wise to delegate this power to the police rather than to the courts. The
decision whether or not there is sufficient reason to believe to justify the issuance of a summons
calls for a weighing of the evidence of criminal guilt against the presumption of innocence and
the right to freedom. In the hands of the police this delicate discretion, which entails the same
serious consequences for an accused as does the decision to issue a warrant, is likely to be
exercised less dispassionately than if left with the judiciary. For, those whose difficult job it is to
apprehend criminals are understandably prone to resolve doubts in favor of the government, not
the individual.

It is submitted, therefore, that both for the sake of internal consistency and in order to safeguard
the rights of citizens the code should be amended so as to transfer the summons power from the
police to the courts. If that were done, judges would issue either warrants of arrest or summonses
upon application, after reviewing evidence of the accused‘s criminal conduct and in accordance
with the feasibility of obtaining custody of him without the use of force. They, not the police,
would decide before issuing a summons whether or not there or not there were ―reason to
believe‖ the accused guilty of an offence, just as they now decide before issuing warrants
whether or not his presence before the court is absolutely necessary. The decision as to which
form of process to use in a particular case would never arise until after a judicial determination
had been made that the accused was probably guilty of a criminal offence.

Assuming, though, that the above recommendation is rejected, and it is decided to leave the
summons power in police hands, there might be another acceptable way to alleviate the present

28
law‘s harshness. That is, to amend the Code to allow the police to discharge summoned suspects
whose innocence becomes apparent to them.

There are two foreseeable objections to granting the police this power. It might be argued, first,
that by allowing police discharge the process would thereby become obscured from judicial
review and supervision. The police would be free upon the flimsiest suspicion to summon
suspects “arbitrarily” for questioning, and then discharge them when the interrogation proves
fruitless. This fear of police abuse underlies the common requirement that persons arrested
without warrant must, despite their apparent innocence or the illegality of their arrest, be taken
before a court to have the facts judicially established. Where the arrest has been illegal, a judicial
finding to that effect might lay the basis for a successful civil or penal action against the
offender. But these arguments are not so strong when applied to the wrongful summons which,
up until the time it ripens into arrest (involuntary custody), is far less an invasion of the citizen‘s
rights.

It might also be argued that the Code omits to authorize police discharge of a summoned accused
for a very sound reason: that the rank and file police officer is not sufficiently educated and
trained in law to exercise this discretion competently; that we cannot ‘trust’ him to decide which
accused to discharge and which to hold or bound for further investigation. The obvious reply is
to point out that if the police are not sufficiently competent to decide that a summoned accused is
innocent and ought therefore to be discharged, then that a summoned accused is innocent and
ought therefore to be discharged, then they are equally incompetent in the first place to issue a
summons on the ground that there is reason to believe the accused guilty of a crime, and the
power to issue summonses ought to be vested in the judiciary instead of the police. This solution
has been proposed above. But, it is submitted; unless and until the Code is so amended the police
ought at least to have the power to undo the consequences of their own erroneous actions.

In summary, it has been suggested that since from the accused‘s point of view the same serious
consequences which follow from the execution of an arrest warrant against him also follow
response to a summons, both forms of process ought to be issued by the same authority- the
courts - on similar criteria. Failing this reform, the police at least ought to be given the authority
to discharge apparently innocent accused whom they have summoned.

29
If the latter change were made, the police would have three options at their disposal for dealing
with a summoned accused, one of which would have to be acted for dealing with a summoned
accused within forty-eight hours of his voluntary appearance at the police station: discharge,
conditional release on bond, and presentation before the nearest court.

2. Arrest without warrant

Having thus far considered arrest under court warrant and the use of police summonses let us
turn to the third and last method by which physical custody over suspected offenders is obtained
- arrest without warrant. The governing rules are found in both the Constitution and the Code.

2.3. Flagrant offences

Criminal Procedural Code Art 19-21 and 50 define flagrant offences and declare that any person
may arrest a flagrant offender. A comparison of these provisions with Article 53, 67 and 73 of
the French Criminal Procedure Code demonstrates unquestionably the continental source of this
portion of Ethiopian arrest law. We may approach the comparison by first noting the differences
between the two sets of rules.

The French law adopts a bi-partite division of flagrant offences in to ‘flagrant’ and ’assimilated’
ones. To these the Ethiopian code adds a third category, ‘quasi-flagrant’ offences. One should
note, however, that these labels are of no functional consequence, since the Code treats all three
categories in exactly the same way.

(i) Definition

Regarding the definition of ‘flagrant offence’ (including sub-categories) the Ethiopian codifiers
both added to and omitted from the continental model. To the standard definition of ‘flagrant
offence’ as one which ‘is being committed or has just been committed’ Art 19 (1) has added
flagrant attempts. This probably is not a substantial change in the old formula because an attempt
to commit an offence is in itself a penal offence, and therefore needs no separate mention.
Another ‘addition’ to the traditional concept is found in Article 19 (2), which includes situation
where a ‘hue and cry’ has been raised. This, again, is not a substantial addition, since it merely
duplicates the first part of the same sentence when… the offender who has escaped is chased by
witnesses or by members of the public.’ As for the Ethiopian Code‘s seeming omission of

30
important circumstance covered by the French law, where the suspect is ‘found in possession of
objects, or presents traces or indications, leading to the belief that he has participated in the
felony or misdemeanor,’ this was no doubt motivated by the consideration that the English
Common wealth formulas of Article 51 (1) (f)-(g) adequately provide for them.

The ‘assimilated cases’ of Art 20 are in form different but in essence quite similar to the
‘assimilated cases’ of Article 53, second paragraph, of the French Code. Although the Ethiopian
provision covers a bit more ground than the French, it serves the same object of allowing
immediate action where attention is called to the offence at a time soon after its occurrence.

Having in Art 19 and 20 established the definition of ‘flagrant offence’ the code goes on in
Articles 21 and 50 to state the procedural consequences thereof: in the case of ordinary flagrant
offences proceedings may be instituted without an accusation being lodged; and, both ordinary
and compliant offences, if flagrant, subject the offender to arrest without warrant by any police
officer or private citizen if the offence carries a possible maximum punishment of three months
simple imprisonment or a more severe penalty. We have seen that in French law, arrest without
warrant is allowed for flagrant felonies (crimes) and certain misdemeanors (delits) but not in
flagrant petty offences (contraventions). Granted the conditional derivation of the Ethiopian
provisions it is probable that ‘serious’ was meant to denote offences corresponding to the
continental categories of crimes and delits. In fact, by excluding all offences with a maximum
punishment of less than three months simple imprisonment Article 50 does very closely
approximate the French rule, for contraventions are punishable by imprisonment for not more
than two months and a fine of not more than 2,000 new francs.

(ii) Application: immediacy and publicity

There are two other matters in connection with flagrant offences which deserve discussion,
corresponding to the two elements which are central to the notion of flagrancy: immediacy in
time and publicity. The first element is apparent in such phrases as ‘has just committed the
offence, ‘after it has been committed, ‘the police are immediately called, and ‘a cry…has been
raised.’ (Emphases added.) The obvious crucial questions are how long a time is ‘after’? How
soon is ‘immediate’? Etc. If, two weeks after the commission of theft, the victim thinks he
recognizes the offender walking on a public thoroughfare may he legally invite passers-by to

31
chase the suspect and arrest him? Or does ‘after it has been committed’ in Article 19(2) mean
‘immediately after…? Does Article 19(1) (in combination, always, with Article 50) authorize a
police officer to arrest without warrant an offender who re-appears at the scene of the crime
twelve hours after commission of the offence? twenty-four? forty-eight? The answering of such
questions demands a line-drawing which is never easy.

Appropriate guides might be sought not only in foreign law but by reference to the purposes of
the provisions in question. Why does the law permit these exceptions to the general rule that no
one may suffer arrest without prior court scrutiny and approval of the grounds therefore? The
obvious advantages of arrest without warrant over arrest by warrant is that the former allows
prompt action by avoiding that delay involved in traveling to the court and applying for a
warrant. According to continental writers, flagrant offences require or permit the omission of
such time-consuming formalities on three grounds: prevention, detection and certainty.
Prevention applies where immediate arrest is the only way to prevent the offender from carrying
off the fruits of his crime. Detection refers to the need for arrest in order to stop the offender
from escaping, and to preserve evidence. Certainty refers to the fact where an offender if found
‘red-handed’ there is no possibility that he is innocent, so there is no need for such judicial
safeguards as a warrant.

It should be noted that although these arguments are offered in support of allowing wide arrest
powers in flagrant cases, the first two may be equally applicable to non-flagrant offences. A
police officer who, for example, some months or years after an offence spots the suspected
offender in a railroad station, risks his escape if he delays for the time necessary to procure an
arrest warrant. Similarly, an officer who three weeks after an offence learns that the suspected
offender is about to check out of his hotel room, risks his escape with fruits of his crime if he
forbears from rushing in to the room and arresting the suspect without a warrant. Nevertheless,
although it might be advantageous from some points of view to execute an arrest without warrant
in such exceptional (but non flagrant) cases, one must keep in mind the extraordinary nature of
this procedure and the danger that in the progressive extension of its scope to cover more and
more ‘exceptional cases,’ … That, and the fact that the ‘certainty’ rationale grows weaker with
each passing moment after the completion of the criminal act, argues for a very strict
construction of Article 19 and 20. Therefore, it would be best if the proximity in time required by

32
Art 19and 20 were interpreted narrowly, that is, a matter of only a few hours at most after the
commission of the offence.

The second element of flagrancy, that the commission of the offence or its aftermath be in some
sense ‘public,’ is apparent in such requirements as that the offender be ‘found’ committing or
attempting to commit the offence, that he be ‘chased by witness or by members of the public,
that a ―hue and cry has been raised, that the police have been ―called to the place where the
offence has been committed, or that a ‘cry for help has been raised’ from the place of the
offence. (Emphases added.) The policy allowing free arrests in such cases can be justified, not
only by the added certainty which ‘publicity’ lends, but also, often, by the need promptly to
restore disturbed public order and tranquility by removing the cause from the scene. Such prompt
action might also be necessary, in some cases, to avert further public disturbance in the form of
lynching or other violence committed by the offender or his pursuers. Thus it is easy to
understand why the concurrence of a ‘public’ offence, together, frequently, with an opportunity
to terminate a resulting disturbance while it is in the course of happening, should qualify as an
exception to the rule requiring prior court approval of all arrests.

Granted that ‘public’ commission or consequences are essential to flagrancy let us consider the
application of Art 19 and 20 to a particular case. Suppose there is a disturbance during an
authorized public meeting, and a police officer comes upon X and Y pushing and shouting at
each other in the assembly. Three of four of the bystanders tell the officer that X is a
troublemaking intruder, so the officer arrests him for having been ‘found committing’ an offence
under Article 484 of the PC, for which arrest without warrant is authorized by Art 19 and 50.
Later it turns out that Y was the real intruder- X was really the meeting‘s chairman, who had
been trying to eject Y when the policeman arrived and, owing to the false accusations of
unsympathetic bystanders, arrested the wrong man. Was the arrest lawful?

It seems clear that in order to protect the police officer, who acted very reasonably under the
circumstances, we would have to say that it is immaterial that the arrested person was not truly
‘found committing’ an offence. Rather, he was ‘apparently’ committing an offence, and the
proper interpretation of every requirement under Art 19 and 20 must be so viewed not ‘found…
attempting to commit the offence’ but ‘found apparently attempting to commit the offence,’ not
‘has just committed the offence’ but ‘has apparently just committed the offence’ and so on. So

33
long as the test of Art 19 or Art 20 reasonably appears to be satisfied in any particular case the
power of arrest without warrant granted by Art 50 must be seen in law as applicable, even if it
should later develop that the test was not actually satisfied.

Similarly, the converse must be true of arrests without warrant which do not reasonably appear
legal at the time of execution but which are justified, post facto, by the results. In those cases the
arrest must be seen as illegal, and the officer held liable for his misconduct. Thus, for example,
should a police officer in the circumstances described above arrest peaceful on looker, simply for
the unsatisfactory reason that the officer dislikes his appearance, the arrest cannot be justified
under Art 50 even should it later develop that the arrestee was the ringleader of the intruders, and
in fact guilty of an offence under PC Art 484. For, in order to protect innocent citizens, one
cannot allow arrests which, from the point of view of the arresting party at the time of the arrest,
were legally unjustifiable, even though subsequent developments justify prosecution and
conviction of the arrestee. The proper test of the legality of any arrest under Art 50 must be the
apparent, not actual, existence of a flagrant offence.

Article 51 Criminal Procedural Code

We have so far considered one group of Code provisions which permit arrest without warrant-
Art 19-21 and 50 and have demonstrated their origin in continental legal systems… We may now
turn to the second ‘cluster’ of provisions allowing arrest without warrant, those contained in
Article 51.

Although space does not permit detailed consideration here of each rule contained in Article 51,
a few general comments, illustrated by reference to particular rules, and might be helpful.

We might note first that in contrast to the ‘flagrancy’ provisions considered above, the various
elements of Art 51 are derived from English-Commonwealth, not continental law. The
immediate source of Art 51 is apparently section 23 of the Malayan Criminal Procedure Code,
which in turn is closely based upon section 54 of the India Criminal Procedure Code.

2.4. Real Time Dispatch

In France, toward the end of 1994, real time dispatch technique has been developed and
progressively extended to the all French Police, Prosecution Offices and Courts with the view of

34
reducing the length of criminal proceedings while securing the quality of decision-making.
Adopting ‘next day justice’ as called in the United Kingdom by 2006 will bring about a huge
improvement.

The procedure is called ‘next day justice’ in Britannia and ―real time dispatch‖ in France. It is
not a special procedure as such. It is rather a technique. The police and the prosecution office
have to exchange information from the moment of reporting of a crime. The two should act as
one. The court has to be also ready to hear the case whenever the prosecution files a charge.
There has to be a coordinated effort on the part of the stake holders. One should not hinder the
efficient and effective performance of the other. The legal procedure followed is ordinary. The
crucial factor is the attitudinal change towards implementation of the criminal procedure. It is a
kind of differentiated case management technique adopted to tackle flagrant offenses taking into
consideration their particular nature.

In Ethiopia, the procedure had been limited to the Christian religious ceremony at Qulibi Gebriel
by establishing temporary police, prosecution and court to speedily handle flagrant offenses.
Now, beginning from the eve of Ethiopian Millennium in Addis Ababa, different specialized
benches entertaining flagrant offenses have been set up. The regions have also started applying
the system. Practice has proved that pleading guilty is the norm. The prosecution and defence
witnesses are made ready on the moment of pleading guilty or not guilty. The accused will be
forced to plead guilty as the possibility to hear the case and decide is nearer. Even pleading
guilty is one of the major mitigating factors under Art 82/1/e of the CC.

Now, it is even possible to have a criminal case decided on the very date of the crime committed
using the real time dispatch technique. Within hours, the victim could hear the final
determination of the criminal case in a court of law. Here, it should be underlined that the
constitutional and legal guarantees for the suspect or accused remain intact. For instance, the
accused can ask adjournment to prepare and bring defense. Indeed, Art 94/2/b does not require a
justification for not bringing evidence on the first day of appearance in court. Art 94/2/a clarifies
the interpretation adopted. The prosecutor (public or private) or the accused should have good
cause not to attend a court session. For the case of evidence on the first appearance, the mere
failure of the party supposed to present evidence is enough to get adjournment. The court should

35
give adjournment for at least one reasonable time. It may order the police to help the accused in
bringing defense in case bail is denied or unable to obtain.

Therefore, the police have to take the necessary precaution before deciding to have the body of a
person and the means used has to also be carefully evaluated. As much as possible the use of
summons should be given precedence over arrest. In case of flagrant offence, institutions
involved in the criminal justice system have to act in a coordinated manner to ensure speedy
trial.

2.5. Police Investigation

Relevant Laws Art 3, 5, 8, 9, 11, and 12, UDHR

Art 9 and 14, ICCPR

Art 16-21, 26, 32 FDRE Constitution

Art 12, 22-31, CPC

Investigation is required to substantiate the information pertaining to the commission of crime.

The police have to undertake interrogation to the suspect as well as witnesses; gather real
evidence, such as exhibit, finger print, etc. In the process, the police have to refrain from illegal
activities leading to the rebuttal of the evidence in court. It has to avoid the use of the ―third
degree‖ to elicit information from the suspect and witnesses. Otherwise, the fate of evidence
collected violating the rights of persons might be rejection. In addition, the police could face
administrative, civil, and criminal sanctions.

While taking information as well as examination of witnesses, the police have to act in such a
way that it is possible to protect the rights of innocent persons. To the extent possible, the
informant or the witness has to explain the facts taking any kind of responsibility that might
follow. To achieve this purpose, the police have to register the facts known to the informant or
the witness acquired through the five senses. Unless the witness is expert, it is wrong to take the
mere opinion of a witness. For example, the informant or the witness should not be allowed to
say that I know the commission of a crime and who did it. One has to state the facts as they are
acquired through the five senses. Arriving at a conclusion based on the facts obtained is the

36
business of the competent authorities. Thus, the police have to handle criminal investigation with
due care not to bypass legal restrictions in place to protect the rights of innocent persons and
suspects. Attention has to be given for both the means and the end of the criminal justice system.

Art. 27. - Interrogation.

(I) any person summoned under Art. 25 of criminal procedural code or arrested under Art. 26, 50
or 51 shall, after his identity and address have been established, be asked to answer the
accusation or complaint made against him.
(2) He shall not be compelled to answer and should be informed that he has the right not to
answer and that any statement he may make may be used in evidence.

2.6. Confession

Relevant Laws Art 3, 5, 8, 11, and 12, UDHR

Art 7, 9, 14, ICCPR Art 18-19, FDRE Constitution

Art 27, 34 and 35, CPC

2.6.1.The Right to Remain Silent (Common Law)

Since passage of the Criminal Justice and Public Order Act in 1994, the status of the right to
silence in England has been altered. Previously, the accused could not be required to incriminate
him-or herself, and silence could not be taken to infer guilt. But since passage of the act, it is
possible for guilt to be inferred by silence, and so there is pressure on the accused to waive the
right to silence when being questioned by police.

Yet, the right to remain silent is at the heart of common law criminal procedure. The Fifth
Amendment to the U.S. Constitution puts it this way: “No person…shall be compelled in any
criminal case to be witness against himself…”. Thus the states must prove its case without the
help of the accused if the accused chooses not to give that help. At its most basic level, the right
to remain silent is designed to protect individuals against forced confessions obtained through
torture, threats, or other undue pressures. It also means, however, that the accused can remain
silent throughout the pretrial or trial phase of his or her criminal proceedings. In other words, the
state must prove that an individual is guilty without the help of that individual.

2.6.2. The Right to Remain Silent (Civil Law)

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In addition to requiring the presence of an attorney, French law requires that the accused be
informed of his or her right to remain silent during the pretrial proceedings. This right, so
integral to the adversarial system, represents another modification of the inquisitorial procedure.
However, it does not have the stature that the similar right has in common law countries, and the
presumption on the part of all parties is that the accused will cooperate in the investigation by
answering questions and raising points that might help in the defense.

Despite the presence of an attorney, the pretrial investigation of the accused by a magistrate can
be an intimidating process for one who is inexperienced in criminal cases. The French process of
inquiry appears to be principally concerned with the attempt to obtain an admission of the truth
of the charge from a person reasonably believed to be guilty; confession is self evidently, surely,
the most proper result of a properly conducted instruction which does not end in a discharge.

At the same time, except in minor cases, the accused has to be proven guilty through the entire
process of developing a dossier and going through a trial. If the accused chooses to make a
statement at trial, he or she is not under oath, as in common law procedure, and is not subject to
cross-examination. Any confession in the pretrial or trial process is treated as part of the
evidence included in the dossier. This is a major difference from many common law countries,
especially in the United States, where plea bargaining is the norm.

2.6.3. Fruit of Poisonous Tree Doctrine

The exclusionary rule is not limited to evidence that is the direct product of illegal police
behavior, such as a coerced confession or the items seized as a result of an illegal search. The
rule also requires exclusion of evidence that is obtained indirectly when one‘s constitutional
rights are violated. This type of evidence is sometimes called derivative evidence or secondary
evidence.

The essence of a provision forbidding the acquisition of evidence in a certain way is that not
merely evidence so acquired shall not be used before the court but that it shall not be used at all.
Of course this does not mean that the facts thus obtained become sacred and inaccessible. If

38
knowledge of them is gained from independent source they may be like any others, but the
knowledge gained by the government‘s own wrong cannot be used by it in the way proposed.

Thus, the prosecution may not use in court evidence obtained directly or indirectly from an
unconstitutional search. The prohibition against using this derivative or secondary evidence is
often called the rule against admission of ‘fruit of the poisonous tree.’ The tree being the illegal
search and the fruit being the evidence obtained as an indirect result of that search. The fruit, or
the evidence indirectly obtained, is sometimes referred to as tainted evidence. Although the rule
against the admission of fruit of the poisonous tree was originally developed in applying the
exclusionary rule to unconstitutional searches, it has been applied equally to evidence obtained
as the indirect result of other constitutional violations. Thus, evidence may be inadmissible if it is
acquired indirectly as a result of an illegal stop, an illegal arrest, an illegal identification
procedure, or an involuntary confession.

The fruit of the poisonous tree doctrine applies only when a person‘s constitutional rights have
been violated. Neither the exclusionary rule nor the fruit of the poisonous tree doctrine applies
when a violation of rights is not of constitutional dimensions. Nevertheless, the fruit of the
poisonous tree doctrine may apply in different ways depending on the type and severity of the
underlying violation of constitutional rights. As the U.S. Supreme Court stated with respect to
the fruit of the poisonous tree doctrine, ‘unreasonable searches under the Fourth Amendment are
different from unwarned interrogation under the Fifth Amendment.’

Involuntary Confessions and Art 35 Ethiopia Criminal Procedural Code

Coercive interrogation: ineffective and unlawful

Improper methods of police interrogation are known to every country in the world. And
everywhere, it is agreed that an accused‘s confession of guilt which has been procured through
physical violence, psychological intimidation, or improper inducements or promises cannot be
considered in evidence against him at trial. The primary reason why involuntary confessions are
excluded from evidence is that they are unreliable indices of truth: men have been known to

39
admit crimes of which they are innocent, simply to escape the pain of torture or to obtain an
irresistible benefit.

The exclusionary practice also expresses society‘s condemnation of police ‘third degree’
methods, which not only violate the accused‘s privilege against self-incrimination, but, by
inflicting harm on one merely suspected, not convicted, of crime, nullify his constitutional right
to the presumption of innocence. Thus the practice serves purposes other than the mere need to
decide cases upon trustworthy evidence: by removing the ultimate incentive it serves to
discourage the police from using illegal questioning methods.

In light of these considerations it is understandable that Ethiopian law frowns severely upon the
use of coercion against persons being investigated under suspicion of crime. The Criminal
Procedural Code states quite clearly that ‘no police officer or person in authority shall offer or
use or make or cause to be offered, made or used any inducement, threat, promise or any other
improper method to any person examined by the police.’ Violation of this command subjects the
police officer to both civil and penal sanctions. And, of course, the courts do not allow into
evidence confessions which have been obtained by force.

But, it must be asked, are the exclusion of coerced confessions and the threat of sanctions having
their intended effect? To judge from what one sees and hears, no. In many cases in the High
Court, convictions are based wholly or in part upon confessions given by the accused to the
police while in their custody. And, in many cases, the accused repudiates his confession at trial,
claiming it was the result of coercion, while the police in truth insist it was not. Even granting
that many or even most of these claims of beatings and torture are untrue (it is hard to believe
that all are), the vital question is: how is the trial court to distinguish between the free confession
and the forced one? It seems that cases are rare in which the accused is able to convince the court
to exclude the confession, and no wonder: When the police interrogate a suspect there are no
witnesses, no friends, and no family present. Therefore it inevitably boils down to the word of
the accused against that of the police, and how many of us will believe the accused?

Foreign ‘solutions’ to the third degree

This problem of distinguishing voluntary from involuntary confessions is not unique to the
Empire. It has been faced in many other countries, and ‘solutions’ worked out. In England, for

40
example, the rule excluding involuntary confessions was not, by itself, felt sufficient to deter the
police from coercive methods. Therefore, in the well-known ‘Judges‘ Rules,’ it is laid down that
the police must inform a suspect of his privilege against self-incrimination as soon as the police
officer decides in his mind to charge him, and, once the suspect is in custody, he may not be
questioned at all. Extraction of a confession in violation of the Rules confers upon the trial court
discretion to exclude it from evidence. Thus the English system tries to avoid the possibility of
improper police interrogation, by forbidding all interrogation of the accused while he is in
custody-the time when the ‘third degree’ generally takes place.

The Americans have resorted to other means of deterring the police from using improper
methods. In addition to the rule excluding involuntary confessions from evidence, the federal
courts automatically exclude any confession, ‘voluntary’ or ‘involuntary,’ which is obtained
while the police are unlawfully holding the accused-e.g., during a period of ‘unnecessary delay’
between his arrest and his appearance in court. And for the state courts, a federally-imposed rule
is now evolving which probably will exclude any confession made by an accused while in police
custody if his right to counsel was denied at that time. Like the English approach, both of these
rules attempt to discourage coercive police methods by denying the police the right to interrogate
suspects secretly and at length, for under those conditions the ‘third degree’ flourishes.

Lastly, let us mention the Indian approach. Under the Indian Criminal Procedure Code the police
are permitted to question a suspect at length, and need not caution him to remain silent. But
generally, no confession the accused makes to the police or while in police custody is admissible
against him at trial; to be admissible it must be made before a magistrate, who will ensure that
the accused is making it voluntarily and with knowledge of his right to remain silent before
recording it. The theory of this rule is, apparently, that the only confessions which are certain to
be voluntary are those made to a court, and that confessions made to the police are bound to be
tainted with the suspicion of coercion. To discourage police coercion, then the Indians do not
recognize as evidence the results of police interrogations.

The Ethiopian approach; Article 35 of Criminal Procedural Code

What is the purpose of this article? In view of its strong similarity to section 164 of the Indian
Code, it is unquestionable that the drafters of Ethiopian‘s Code were to some extent looking

41
towards the Indian system. And in Indian law, as we have seen, the reason why the magistrate is
given power to record confessions is that only confessions so recorded are admissible in
evidence at trial. It was the intention of drafters of our CPC, I submit, to require all confessions
which the police wish to have proved at trial, recorded and certified ‘voluntary’ under Article 35.
Confessions not so recorded should be inadmissible against the accused, as they are in India.

Miranda v. Arizona

The warning of the right to remain silent must be accompanied by the explanation that anything
said can and will be used against the individual in court. This warning is needed in order to make
him aware not only of the privilege, but also of the consequences of forgoing it. It is only
through an awareness of these consequences that there can be any assurance of real
understanding and intelligent exercise of the privilege.

In order fully to apprise a person interrogated of the extent of his rights under this system then, it
is necessary to warn him not only that he has the right to consult with an attorney, but also that if
he is indigent a lawyer will be appointed to represent him. Without this additional warning, the
admonition of the right to consult with counsel would often be understood as meaning only that
he can consult with a lawyer if he has one or has the funds to obtain one.

"Presuming waiver from a silent record is impermissible. The record must show, or there must be
an allegation and evidence which show, that an accused was offered counsel but intelligently and
understandingly rejected the offer. Anything less is not waiver."

To summarize he must be warned prior to any questioning that he has the right to remain silent,
that anything he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to
him throughout the interrogation. After such warnings have been given, and such opportunity
afforded him, the individual may knowingly and intelligently waive these rights and agree to
answer questions or make a statement. But unless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be
used against him.

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Look this Example:

Abebe Esubalew vs Public Prosecutor

Facts- The appellant was accused of killing his wife violating Art 522/1/a of the PC and
discarding her corpse transgressing Art 487/2 of the PC. He pleaded not guilty and the evidence
of the prosecution was heard. There were two prosecution witnesses. One of the witnesses
testified that he saw the appellant and the deceased going to a forest one day. The other witness,
chairman of the rural kebele, expressed that the appellant told him that his wife had absconded
stealing 50 birr denying guilt for her disappearance and then searching the forest a human bone
was found.

There were also two documentary evidences. The first was the confession of the appellant
administered in accordance with Art 35 of the CPC in the wereda court. The second was expert
evidence proving that the bone found is that of a human being.

Then the accused was told to defend. His defense was based on alibi and proving the use of force
before the confession in the wereda court. He had four witnesses. Two of them proved the alibi.
The remaining testified the torture committed on the appellant at the police station to make him
confess in the wereda court.

The High Court found him guilty under Art 523 and 487/2 of the PC and sentenced him to 15
years rigorous imprisonment. He appealed to the Supreme Court.

Issue- Whether the accused is guilty of the two offenses?

Decision- The Central Supreme Court reversed the judgment and sent the appellant free.

Reasoning of the Supreme Court- The Court argued that evidences other than the confession
were not sufficient to warrant conviction. As regards the confession, the appellant had proved the
use of force to obtain it. He had told to one of the prosecution witness before the confession that
he had no responsibility for what happened. The Court determined unconvincing the content of
the confession alleging that he killed his wife as a result of her communication to the appellant
the fact of secret love affair and giving birth to one child in that relationship. The Court said that

43
it is unthinkable to expect a woman exposing such kind of affair to her husband. It took it for
granted that the appellant was coerced to speak.

The Court asserted that it would have accepted the confession, had the appellant shown the
corpse of the deceased and instruments utilized for the crime. What matters is the fruit of the
third degree. The bone was found by another person. As a result, the confession could not be
admissible.

The Court also touched the problem of rejecting a confession administered by wereda court. It
underlined the possibility of coercion following return from the wereda court to the police
station. Hence, the justification for rejecting confession given to the wereda court.

2.7. Search and Seizure

Relevant Laws Art 3, 5, 8, 11, and 12, UDHR

Art 17, ICCPR

Art 26, FDRE Constitution

Art 32-33, CPC

Any investigating police officer or member of the police may make searches or seizures in
accordance with the provisions which follow:
(I) No arrested person shall be searched except where it is reasonably suspected that he has about
his person any articles which may be material as evidence in respect of the offence with which
he is accused or is suspected to have committed. A search shall be made by a person of the same
sex as the arrested person.
(2) No premises may be searched unless the police officer or member of the police is in
possession of a search warrant in the form prescribed in the Third Schedule to this Code except
where:
(a) An offender is followed in hot pursuit and enters premises or disposes of articles the subject
matter of an offence in premises;

44
(b) information is given to an investigating police officer or member of the police that there is
reasonable cause for suspecting that articles which may be material as evidence in respect of an
offence in respect if which an accusation or complaint has been made under Art. 14 of this
Code and the offence is punishable with more than three years imprisonment, are concealed or
lodged in any place and he has good grounds for believing that by reason of the delay in
obtaining a search warrant such articles are likely to be removed.
Art. 33. - Issue of search warrant.
1) A search warrant may be issued by any court. No search warrant shall be issued unless the
court is satisfied that the purposes of justice or of any inquiry, trial or other proceedings under
this Code will be served by the issue of such warrant.
(2) Every search warrant issued shall specify the property to be searched for and seized and no
investigating police officer or member of the police may seize any property other than that
specified in such warrant.
(3) On seizing any property such investigating police officer or member of the police shall make
a list of the property seized and where possible shall have the list checked and signed by an
independent person. Any property seized which is required for the trial shall be preserved in a
safe place until handed over to the court as an exhibit. Any property not so required may be
returned to the person from whom it was taken and a receipt shall be taken.
(4) In ‘effecting a search the investigating police officer or member of the police may use such
force as is necessary and may where access to premises is denied use reasonable force to effect
entry.
(5) Unless otherwise expressly ordered by the Court, searches shall be carried out only between
the hours of 6 A.M. and 6 P.M. Like the case of arrest, search and seizure have to be undertaken
only by the order of the court (search warrant). The mere existence of a court order is not enough
to guarantee the legality of search and seizure. It has to be also executed properly. But,
exceptionally search and seizure in certain justified circumstances may conduct without search
warrant.
In our country, the rules governing search and seizure are scanty (inadequate). Unlike the case of
forced confession, the FDRE Constitution does not contain rules making inadmissible illegal
search and seizure. The Constitution devotes one third of its part to the protection of human
rights. Given the value attached to the cause of human rights, it seems justified to seriously

45
scrutinize and reject illegally obtained evidence. Otherwise, the protection of human rights
becomes exposed to risk. This might discourage the police from resorting to illegal means to
secure legal end. The end should not justify the means. The police should also be liable
administratively, civilly as well as criminally.
The scope of the search; because “nothing is left to the discretion of the officer executing the
warrant,” police may only search the premises described in the warrant and may only search for
the items listed in the warrant.
Possible effect of an illegal search and seizure
 Inadmissibility of the evidence
 The civil or criminal liability of the officer conducting the search and seizure.

CHAPTER THREE

POST ARREST PROCEDURES

After the arrest of a person, the major procedures are bail, remand and habeas corpus. There is a
possibility for the individual detained to be releases by the police or taken to court within the
limit of time set by the law. The court may either permit or deny the bail question and order
remand. Appeal lies from such a decision. In case a person is detained unlawfully, one may
request habeas corpus. Thus, this chapter discusses the procedures following arrest.

3.1. Remand

Relevant Laws Art 3, 5, 8, 9, 11, and 12, UDHR

Art 9 and 14, ICCPR

Art 19-21, FDRE Constitution

Art 29, 59-62, CPC

To protect the rights of suspected persons, it is a constitutional requirement to bring the detained
individual within a reasonable time to the nearest court. The court has to ascertain the legality of
the arrest. It cannot enter into the business of weighing evidence like a trial. This is an early
stage. The police usually have to gather further evidence. The court should limit itself to

46
checking a prima-facie case against the suspect. It is difficult to formulate a clear rule for every
matter. It should be seen on a case by case basis. The court must allow the detention of the
person unless there are legal grounds to deny bail or it is necessary till the completion of the
investigation. This demands responsible handling of each and every case. Limiting the time to
finalize the investigation has the advantage of protecting the rights of the suspect. But, it might
create difficulty in cases of exceptional complexity. It seems prudent to leave room for such
kinds of unique situations.

To sum up, bringing a suspect to court immediately after arrest guarantees the rights of
individuals from not being curved by the state. The court has to ascertain the legality of the
arrest. However, it should not unnecessarily hamper the legal efforts of the police to prevent and
investigate crime. The court should appraise each and every case striking a balance between the
interests of individuals and that of the community.

3.2. Release on Bail

Relevant Laws Art 3, 8, 11, UDHR

Art 9, ICCPR

Art 17, 19-21, FDRE Constitution

Bail

In principle, every one arrested suspected of a crime has the right to be released upon conditions
set. Denial of bail should be an exception. The accepted grounds for denying release are
possibility of absconding, tampering with evidence, commission of other offences, gravity of an
offence, etc. In case a court determines to release the suspect, it has to take into account several
factors, such as, the nature of the offence, social ties of the suspect, and capacity to bring
guarantee. The court could also impose further conditions on the released person. Their purpose
is to limit the danger of absconding, for the protection of the suspects themselves, and danger to
the public. This could be prohibition of emigration, going to certain places, not contacting
victims, electronic monitoring, etc. These non-monetary restrictions are particularly helpful to
protect victims of rape from potential harassment from the suspect.

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 The release of a suspect could take several forms. These include bond, surety, personal
recognizance, and cash. Generally, they can be classified into monetary and non-monetary. To
ensure transparency, accountability and predictability, many jurisdictions adopt guidelines to
handle bail issues.

Release on bail is a conditional undertaking. The suspect or accused has to comply with the
terms of the release. One should attend each and every proceeding of a court. Besides, the non
monetary conditions have to be respected. Otherwise, it could result in different financial and
non-financial consequences. There may be forfeiture of the amount of money set as a bail. The
released person may also be detained as the case may be. Besides, in some jurisdictions, failure
to comply with bail obligation may entail criminal liability.

The FDRE Constitution guarantees the right to bail. But, it can be denied on certain
circumstances. Whether the Constitution allows automatic denial of bail by law is not clear. Its
formulation seems to restrict dis allowance of bail on a case by case basis by court. In this
regard, the laws pertaining to vagrancy and corruption are contestable. The CPC has also
provisions regulating bail matters. Therefore, bail is a constitutional right. It could be limited by
law on justifiable grounds. It takes different forms.

Release on Bail
Persons accused, convicted or under arrest for an offence may be granted bail, which means they
are released under a duty to attend court or the police station at a given time.
Art 17, 19-21, FDRE Constitution
Art 28, 59-79, Cr Pr C
There is a general presumption in favor of bail for un convicted defendants, but there are some
important exceptions. Bail need not be granted where there are substantial grounds for believing
that, unless kept in custody, the accused would fail to surrender to bail, or would commit an
offence, interfere with witnesses or otherwise obstruct the course of justice. In assessing these
risks, the court may take account of the nature and seriousness of the offence and the probable
sentence, along with the character, antecedents, associations and community ties of the
defendant. “Persons arrested have the right to be released on bail. Except,…”Art.19 (6) Z cons.
Bail can be granted subject to conditions, such as bail bond, personal (subjective) characteristics
of z arrested person & z type of z crime under question.

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Cases in which bail is not allowed
Art.63 & 67 of cr.pr.c and also
The courts need not grant bail when the accused should be kept in custody for their own
protection The legal provision cited in the charge affects the granting or denial of bail. For
instance, there is no bail for a corruption case entailing more than ten years imprisonment
(Art 4/1, Revised Anti-Corruption Special Procedure and Rules of Evidence
Proclamation No. 434/05).
Art. 63. - Principle.
(I) whosoever has been arrested may be released on bail where the offence with which he is
charged does not carry the death penalty or rigorous imprisonment for fifteen years or more and
where there is no possibility of the person in respect of whom the offence was committed dying.
(2) No person shall be released on bail unless he has entered into a bail bond, With or without
sureties, which, in the opinion of the Court, is sufficient to secure 'his attendance at the court
when so required appearing.
(3) Nothing in this Article shall affect the provisions of Art. 67.
Art. 67. - Bail not allowed
An application for bail shall not be allowed where:
(a) The applicant is of such nature that it is unlikely that he will comply with the conditions laid
down in the bail bond;
(b) The applicant, if set at liberty, is likely to commit other offences;
(c) The applicant is likely to interfere with witnesses or tamper with the evidence.
Forms of bail
 Recognizance — a promise made by the accused to the court that he/she will attend all
required judicial proceedings and will not engage in illegal activity or other prohibited conduct
as set by the court. Typically a monetary amount is set by the court, but is not paid by the
defendant unless the court orders it forfeited; this is denominated an unsecured appearance bond
or release on one's own recognizance.
 Surety — when a third party agrees to be responsible for the debt or obligation of the
defendant. In many jurisdictions this service is provided commercially by a bail
bondsman, where the agent will receive 10% of the bail amount up front and will keep
that amount regardless of whether the defendant appears in court. The court in many

49
 jurisdictions, especially jurisdictions that prohibit bail bondsmen, may demand a certain
amount of the total bail (typically 10%) be given to the court, which, unlike with bail
bondsmen, is returned if the defendant does not violate the conditions of bail. This also
known as surety on the bond.
 Conditions of release - many varied non-monetary conditions and restrictions on liberty
can be imposed by a court to ensure that a person released into the community will
appear in court and not commit any more crimes. Common examples include: mandatory
calls to the police, surrendering passports, home detention, electronic monitoring, drug
testing, alcohol counseling and surrendering firearms.
 Protective order-also called an Order of protection- one very common feature of any
conditional release, whether on bail, bond or condition, is a court order requiring the
defendant to refrain from criminal activity against the alleged crime victim, or stay away
from and have no contact with the alleged crime victim. The former is a limited order, the
latter a full order. Violation of the order can subject the defendant to automatic forfeiture
of bail and further fine or imprisonment.
 Cash — typically "cash-only," where the only form of bail that the Court will accept is
cash.
 Combinations - courts often allow defendants to post cash bail or bond, and then impose
further conditions, as mentioned above, in order to protect the community or ensure
attendance.
Bail may be forfeited, and the defendant remanded to jail, for failure to appear when required.
Summary
In principle, every one arrested suspected of a crime has the right to be released upon conditions
set. Denial of bail should be an exception. The accepted grounds for denying release are
possibility of absconding, tampering with evidence, commission of other offences, gravity of an
offence, etc. In case a court determines to release the suspect, it has to take into account several
factors, such as, the nature of the offence, social ties of the suspect, and capacity to bring
guarantee. The court could also impose further conditions on the released person. Their purpose
is to limit the danger of absconding, for the protection of the suspects themselves, and danger to
the public. This could be prohibition of emigration, going to certain places, not contacting
victims, electronic monitoring, etc.

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The release of a suspect could take several forms. These include bond, surety, personal
recognizance, and cash. Generally, they can be classified into monetary and non-monetary.
Release on bail is a conditional undertaking. The suspect or accused has to comply with the
terms of the release. One should attend each and every proceeding of a court. Besides, the non-
monetary conditions have to be respected. Otherwise, it could result in different financial and
non-financial consequences. There may be forfeiture of the amount of money set as a bail. The
released person may also be detained as the case may be.
The FDRE Constitution guarantees the right to bail. But, it can be denied on certain
circumstances. Therefore, bail is a constitutional right. It could be limited by law on justifiable
grounds. It takes different forms. Failure to comply with bail obligation could entail civil and
criminal liability.
3.3. Habeas Corpus

Relevant Laws Art 3, 8, 9, 11, and 12, UDHR

Art 9, ICCPR Art 19 and 21, FDRE Constitution

Art 15/2/I, 177-179, Civil Procedure Code

Federal Courts Proclamation No. 25/96 (as amended)

Habeas Corpus (literally, in Latin, ‘you have the body’) is the procedure by which a person
illegally detained may obtain release from such detention. It is a civil remedy, although in most
cases the person seeking release from custody will have been detained on a charge of committing
a criminal offence. A discussion of the grounds for granting the application of habeas corpus,
that is, of what constitutes an illegal detention, is beyond the scope of this book. We will merely
be concerned with the procedure for filling the application. However, it may be observed that in
England and United States, this procedure has proved very valuable in protecting individuals
from arbitrary restraint by government officials. There was some doubt as to whether the
procedure was available in Ethiopia, and the Civil Procedure Code makes it clear that it is.

An application for habeas corpus comes within the exclusive jurisdiction of the High Court. It
may be made by any person who has been restrained otherwise than in pursuance of an order
duly made under the Civil Procedure Code or Criminal procedure Code. It does not matter that

51
the order was made under legal authority; if, in fact, the nature of the restraint or the means by
which it was imposed is in violation of the law, the application is proper. The application must
be accompanied by an affidavit of the applicant stating the name of the person under whose
custody he is, the nature and place of the restraint and the names of any persons who can testify
to the facts alleged in the application. If the person restrained is unable to make the application
himself, e.g., if he is restrained in a remote area or is prevented by his custodian from making the
application, the application may be made by any person on his behalf; in such cases, the
application must state the name of the person restrained and that he is unable to make the
application and/or affidavit himself.

On receiving the application, the High Court immediately issues a summons directing the person
having custody over the restrained person to appear before the court together with the person
restrained on day to be fixed in the summons and to show cause why the restrained person
should not be released. The court will also issue a summons for the appearance of any person
who may be able to testify to the facts alleged in the application. On the day of the hearing, the
court investigates the truth of the allegations and may make such orders with regard to evidence
as it thinks fit. The sole question before the court is whether the restraint is unlawful. If it
concludes that the restraint is unlawful, it must order the immediate release of the person in
custody, and the custodian must immediately release him notwithstanding any orders or
instructions to the contrary. Suppose that the applicant was arrested and detained in the prison on
a charge of homicide and the prison director was instructed by the Minister of the Interior not to
release him under any circumstances. If the court finds that the detention is unlawful, the director
must release him despite the instructions of the Minister, and if he fails to do so, he will be held
in contempt. On the other hand, it may be that court is in doubt as to the truth of the facts alleged
in the application and wishes to adjourn the case until a later date, when more evidence can be
presented. It may then order the release of the person restrained upon his executing a bond, with
or without sureties that he will appear in court on any future day on which his appearance may be
required and will comply with such other orders that the court ordering the release may think fit
to make in the circumstances. It would seem that the court is not required to order his release on
bound, but if it fails to do so, it should make a decision on the application as soon as practicable
thereafter.

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 This brief discussion of the procedure to be followed upon an application for habeas corpus
should not be taken as minimizing the importance of this remedy. It is available to test the
legality of any detention, either pursuant to a charge of the commission of a criminal offence or
for any other person. It operates to protect the liberty of all persons from legal governmental and
private action. The inclusion of this remedy in the Civil Procedure Code makes it clear that this
remedy is to be available in Ethiopia, and it may prove to be a most important one.

CHAPTER FOUR

PROSECUTION AND PRELIMINARY INQUIRY

4.1. Prosecution

Relevant Laws Art 37-48, 122, CPC

In Ethiopia, the decision to prosecute or not has now been left to the public prosecution office.
Anyone aggrieved has to follow the hierarchical channel till the general attorney, now head of
the Ministry of Justice and justice bureau heads at the federal and regional levels, respectively. It
appears that there is no judicial review. The possibility for court intervention in the process is
debatable. The CPC contains provisions regulating the manner of deciding whether to charge or
not.

As the law stands, there is no law clearly empowering the public prosecutor to drop charges. Art
122 of the CPC has been repealed by Proclamation No. 39/93. Art 23/3 of Proclamation No.
471/2005 allows withdrawal based on a law. It implies that there is another law defining the
conditions necessary to terminate the prosecution. There is up to now no law allowing that. But,
this law permits automatic interruption of a criminal investigation for due cause. Once a charge
is filed, it does not seem legal to drop charges. Art 16/2/b/2 of Proclamation No. 587/2008 also
contains similar provisions regarding interruption of criminal investigation and charges
pertaining to revenues and customs related offences.

The case of upon complaint cases is different. It is the absolute right of the victim to decide the
fate of the case until a judgment is entered.

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To sum up, the public prosecutor has the key role in the determination of case to be brought to
court or discontinued. But, the police and courts have also some role. In our country, the legal
regime regulating prosecution and interruption is found in the constitution, CPC and many
statutes. There is controversy over the power to discontinue charges filed in court.

4.2. The Preliminary Inquiry

Article 80-93, Cr Pr C
One of the essential events in the criminal justice process is the preliminary hearing. It is the
procedure for hearing evidence before charge or trial. It has various functions such as filtering,
discovery, basis for future impeachment, and preservation of testimonial evidence.
The Cr P r C also recognizes this procedure. Its main purpose is preservation of evidence. Other
purposes can also be inferred from the provisions of the law. But, it is not a screening
mechanism used by the courts found in other jurisdictions. The criminal bench entertaining a
preliminary hearing cannot have a say in deciding whether there is sufficient evidence against the
suspect. In fact, the primary responsibility of the court is notifying the purpose of the preliminary
hearing to the suspect at the earliest possible opportunity before starting taking evidence. So, the
preliminary hearing is undertaken for various purposes. In our country, its functions are limited.

CHAPTER FIVE

THE CHARGE

5.1. Framing the Charge: Form and Content

Relevant Laws Art 108-122 and Second Schedule of the Cr.P.C

Art 20 of FDRE Constitution

The Charge

The provisions relating to ‘charges’ are intended to provide that the <<charge>> shall give the
accused full notice of the offence charged against him.

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The purpose of a charge is to tell an accused person as precisely and concisely as possible of the
matter with which he is charged and must convey to him with sufficient clearness and certainty
what the prosecution intends to prove against him and of which he will have to clear himself. It
has been repeatedly held that the framing of a proper charge is vital to a criminal trial and that
this is a matter on which the Judge should bestow the most careful attention.

Art. 111. - Contents and form of the charge.

(I) every charge shall be dated and signed and shall contain:
(a) The name of the accused; and
(b) The offence with which the accused is charged and its legal and material ingredients; and
(c) The time and place of the offence and, where appropriate, the person against whom or the
property in respect of which the offence was committed; and
(d) The law and article of the law against which the offence is said to have been committed.
(2) The charge shall be in the form set out in the Second Schedule to this Code or shall conform
thereto as nearly as may be.
Art. 112.- Description of circumstances.
Each charge shall describe the offence and its circumstances so as to enable the accused to know
exactly what charge he has to answer. Such description shall follow as closely as may be the
words of the law creating the offence.
The provisions relating to “charges” are intended to provide that the “charge” shall give the
accused full notice of the offence charged against him. Thus, framing a charge is a requirement
of due process of law. After the preparation of the charge, the suspect becomes an accused. A
charge should be precise. But, it should not be general. It must explain with reasonable clarity
the alleged offence with its particulars.
A charge could contain several counts against a single accused in the case of concurrent crimes.
But, one count should be restricted to the case of violation of an independent offence. It is also
possible to charge several persons at a time in case there is a link between them with the alleged
crime. A court could order separate trial whenever justice requires it. It is also possible to convict
a person for an offence not mentioned in the indictment, with the fulfillment of certain
requirements.
 There is a possibility of Conviction of a Crime Different from that Charged Art.
113(2)

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Duplicity and Multiplicity
A duplicitous indictment or information is one that unites two or more separate and distinct
offenses in the same count. By obscuring the exact charge, duplicitous indictments or
information’s may violate the defendant‘s constitutional right to notice of charges and may
violate the defendant‘s constitutional right to notice of charges and may impair the defendant‘s
ability to plead double jeopardy in a subsequent prosecution. A multiplicities indictment or
information is one that charges the commission of a single offense in several counts. The evil of
a multiplicities indictment is that it may lead to multiple sentences for the same offense, or it
may have some psychological effect on a jury by suggesting that the defendant has committed
more than one crime. If a duplicitous or multiplicities indictment or information is prejudicial to
the defendant and the prejudice is not corrected, the indictment may be dismissed.

Joinder of Parties:-Where several persons have participated in a single offense or a serious of

related offenses the law grants the prosecutor discretion to prosecute them jointly or separately.
Joinder of Offenses:-A defendant’s action in the course of a single criminal episode may result
in several violations of the law.
The FDRE Constitution has guaranteed for the accused persons to be informed of criminal
charges in writing. The CPC, too, has provisions dealing with the charge. But it lacks the
necessary detail and some clarity. Unlike the Civil Procedure Code, the CPC does not authorize
the registrar and court to enforce the formal and legal requirement of a charge. It seems prudent
to assume the power. But, the registrar should be limited to checking technicality. For instance,
the registrar can order correction or reject a charge not mentioning a criminal law violated. It
does not have the mandate to evaluate the appropriateness of a law cited. In case no criminal law
is stated, it becomes a technical matter.
The prosecution has to frame and file a criminal charge within 15 days. The absence of a clear
sanction has the effect of disregarding it. Like many other jurisdictions, the Cr Pr C separately
treats the charge and evidence brought to substantiate or refute it. Art 124 of the CPC imposes a
duty on both parties to make sure that evidence is ready for trial. Other jurisdictions adopt a pre-
trial conference system to facilitate the exchange of evidence between the parties. Pre-trial
discovery is a reciprocal duty. The CPC does not also have the procedure before full scale trial,
i.e., arraignment. It is used to ascertain pleading of guilty or not and make the necessary

56
preparation for the trial. Had the CPC had the arraignment stage, it could have been used for
sharing of evidence between the parties. There should not be surprise during the trial. Everyone
has to be ready knowing the charge and the kind and identities of evidence to be confronted. Art
94/2/e requires adjournment in case any evidence unexpected by either party is produced. Taking
by surprise is not allowed.
Forced by the absence of a clear provision regulating pre-trial discovery in the CPC, the practice
of stating and attaching evidence to a charge has developed. The need for exchange of
information between the parties is out of question. Now, the situation is completely changed. The
charge and evidence submitted to court and given to the accused are similar.
The mode of production and exchange of criminal evidence is not well addressed under the
Criminal Procedural Code.
In practice, evidence is made part of the charge. There is also variation as regards the levels of
details of the evidence included in the charge.
Amendment of Charge
Art 118-119, CPC
Prosecutors are human beings. It is possible to make error during the preparation of a charge. As
a result many jurisdictions allow amendment of indictment. But, it should be made before
judgment is given. The order could be given upon the initiation of the court, prosecution, or
accused.

The CPC is not clear with regard to the ground for amendment. It seems to benefit the accused. It
is possible that a public prosecutor may cite an improper provision. But the amendment is
prejudicial to the accused. The charge is clear on every standard but the problem is only with the
severity of the provision of the criminal law cited. Thus, amendment of a charge is possible at
any time before judgment. But, the purpose for which the amendment allowed is not clear under
the CPC. It seems to prohibit amending the charge to cite a more severe penal provision.

CHAPTER SIX

THE FEDERAL SYSTEM AND JURISDICTION OF COURTS

6.1. An Overview of the Court System in the Ethiopian Federal Set-up

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The 1995 Constitution of the FDRE provides for a federal state structure with nine member
states making up the federation. It has thus brought in to being two layers of administration i.e.
the federal government on the one hand and self-governing regional states on the other hand. The
regional units are formally designated as national regional states.

The three branches (organs) of the government i.e. legislative, executive and judiciary are
established at both levels of the government having their own powers and responsibilities
constitutionally defined. The Constitution allocates power between the federal government and
regional governments. Powers not specifically allocated for either or both of them (concurrent)
or what is called residual power are left by the Constitution to the regional states.

Judicial organ is one among the fundamental organs of the republic. Hence, the Constitution
enshrines a broad range of principles of constitutional importance regarding on the organization
and function of the judiciary. One of these principles is the establishment of the independence of
the judiciary. By so doing, it puts on a firmer pedestal both on institutional and personal
autonomy.

FDRE Constitution also incorporates specific provisions that are recognized in different human
rights conventions and other organs of the state. It also provides the specific reasons for
retirement of judges.

Special or ad hoc courts that take away judicial powers and do not follow legally prescribed
procedures may not be established. Further, no judge may be relieved of duty unless it is
established by the federal judicial council that he has either violated disciplinary rules, or is
adjudged to be incompetent to carry out his responsibilities or is unable to work as a judge
because of a falling health subject of the approval by the House of People Representatives.

As mentioned earlier, FDRE Constitution established judicial organ both at federal and state
levels. So, we have federal courts on the one hand and regional courts on the other hand.

Federal judicial authority is vested in federal courts tiered along three layers based on their
competence as provided for by law. By virtue of this arrangement, we have the Federal Supreme
Court, which is the highest federal judicial organ, the Federal High Court and Federal First
Instance Court.

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State judicial power on the other hand is vested in state courts. The structure of state courts
comprises state supreme court, state high court and woreda courts. In principle these courts
exercise jurisdiction within the concerned state jurisdictions only. Besides these matters which in
principle fall under the jurisdiction of Federal High Court and First Instance Court at the state
level is to be exercised by state supreme and state high courts respectively, because of the
delegation given under the Constitution.

6.2. Criminal Jurisdiction of Courts

We have seen that two sets of courts are established under the federal form of government each
having three layers of courts and that they are empowered to exercise judicial power over
offenses. Issues on how this power of adjudication over offences is apportioned as between
federal and regional courts, and even among the federal courts on the one hand and the state
courts on those matters is jurisdiction over offences.

The appointment of jurisdiction over offences between the federal and state courts is dependant
up on some factors. In principle federal courts have jurisdiction over offences based on three
major grounds:

a. law

b. Parties to the case, and

c. Places of commission

Thus, whether a particular case is within the jurisdiction of federal courts or not is to be
determined by first, ascertaining that it arises under the federal constitution, the federal laws and
international treaties or that parties are those specified in the federal laws to be subject to the
jurisdiction of the federal courts or the case occurs in places specified in the Constitution or in
other federal laws.

On the other hand, the law lists down specific cases which fall within the exclusive jurisdiction
of federal courts. In doing so it would be obvious that cases not specifically allocated to federal
courts are left to regional courts.

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Apart from these apportionment of jurisdiction among the federal and state courts, there is a
delegation of power because of the fact that we do not have yet established federal courts all over
the country. Hence, matters which in principle fall within the jurisdiction of Federal First
Instance and Federal High Courts may come within the jurisdiction of state high court and state
supreme courts respectively, if they are committed in regions or there is any other ground
justifying delegation. It is designed for the purpose of convenience, both for the parties and the
court as well.

So far issues as to how jurisdiction over offences is apportioned as between federal and regional
courts have been examined. The point, however, does not stop there for the issue as to which
particular court of a federal court or regional courts i.e. Supreme Court, high court or first
instance/ woreda court has the pertinent jurisdiction over the case has to be addressed. It is only
by then that one can say question of determination of jurisdiction is exhausted.

The above issue, hence, refers to local jurisdiction, which is about the specific place of the court
in which the case is going to be entertained (tried).

All what we have been looking presupposes the fact that Ethiopian courts have judicial
jurisdiction to adjudicate the case. The meaning of judicial jurisdiction is left to the subsequent
discussion.

Jurisdiction has three elements:

1. Judicial
2. Material, and
3. Local

A court is said to have jurisdiction over a particular offence only when it has the judicial,
material and local jurisdiction of adjudication.

6.2.1. Judicial Jurisdiction

In short, judicial jurisdiction is all about whether Ethiopian courts have power to see and then
adjudicate a case or not. Hence, it is related to issue of whether a person is subject to the criminal

60
law of Ethiopia or subject to the jurisdiction of Ethiopian courts and therefore they may be tried
by Ethiopian courts for violation of the Ethiopian criminal laws.

Though normally the issue of jurisdiction is a subject matter of criminal procedure law, both the
previous and the current criminal code of Ethiopia has provisions dealing with the issue of
jurisdiction.

Art 11-20 of the Criminal Code are devoted to issues of judicial jurisdiction of Ethiopian courts
over offences. Thus, whether or not a person is subject to the Criminal Code of Ethiopia depends
on:

1. The place where the offence was committed;

2. The nationality of the accused, and;

3. The kind of the offence that has been committed.

In certain circumstances, an accused is said to be subject to Ethiopia‘s principal jurisdiction; in

other circumstances, although he is not subject to Ethiopia‘s principal jurisdiction, he is subject
to Ethiopia‘s subsidiary jurisdiction. Most significantly, whether a person is subject to Ethiopia‘s
principal jurisdiction, discharge or acquittal in a foreign country does not prevent a prosecution
for the same offences in Ethiopia. However, if he is subject only to Ethiopian subsidiary
jurisdiction, no fresh prosecution if discharged or acquitted before.

I. Principal jurisdiction

According to Art 11-16 of the Criminal Code principal jurisdiction, which is one form of judicial
jurisdiction exists in cases where the accused is:.

1. Charged with the commission of an offence in Ethiopia

2. Charged with the commission of certain offences against Ethiopia in a foreign country.

3. Charged with the commission of an offence in a foreign country where he possesses

immunity from prosecution by virtue of his status as an Ethiopian official.

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4. charged with the commission of certain offences in a foreign country while a member of the
Ethiopian armed forces.

Herein below we shall first consider the conditions when an accused is subject to Ethiopia‘s
principal jurisdiction; and then we will consider the conditions for the exercise of principal
jurisdiction as being incorporated under the current criminal code.

Persons Subject to Ethiopia’s Principal Jurisdiction. Under this section we have two kinds of
jurisdictions, territorial and extra territorial.

A. Territorial jurisdiction

Art 11 and 12 of the Cr.Code are about territorial jurisdiction. According to this principle, which
has almost gained universal acceptance, the Ethiopian courts shall have principal jurisdiction
over offences specified in the Criminal Code committed by any person on Ethiopian territory.
Territory consists of land, sea and air.

Examples Mr. Wayne, English national, living here in Ethiopia killed Ato Habtamu thereby
violated Art 539 of the Cr.Code. Art 11 of the code, therefore, makes him subject to the
jurisdiction of Ethiopian courts because the alleged offence, aggravated homicide, had been
committed within the Ethiopian territory. Hence, he may be tried here in Ethiopia for violation of
the article mentioned above.

While a Sudan air craft flight is passing over Ethiopia, a Sudanese national abroad the flight
allegedly assaults a fellow passenger, who is a Kenyan national. Since Ethiopian air space is part
of the Ethiopian territory, which subjects the accused to the criminal code, and he may be tried in
the Ethiopian courts for violation of Art 560 of the Criminal Code.

Art 11(2) of the Criminal Code is an exception to the above principle, i.e. Art 11(1) of the
Criminal Code. Consequently, certain persons such as diplomatic officials are immune from
criminal prosecutions in the country to which they are accredited under principles of public
international law. Any person who enjoys such immunity, therefore, is not subject to the CC, and
thus, not subject to the jurisdiction of the Ethiopian courts.

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For instance, Kenyan ambassador to Ethiopia recklessly driving his automobile in Addis Ababa
killed an Ethiopian. His conduct is a violation of Art 543 of the Criminal Code- homicide by
negligence. Under principles of public international law, ambassadors are not subject to criminal
law of the country to which they are accredited. Thus, the ambassador may not be tried under
Ethiopian courts for violation of Ethiopian law. This, however, does not mean that he will never
be asked for his wrong rather there is a principle by which such individual would be tried. We
will be looking in to it.

The principal jurisdiction of Ethiopian courts to trie offences committed in Ethiopian territory
presupposes the offenders presence within the Ethiopian territory, the request of his extradition
to Ethiopia or the possibility of trial in absentia as per the provisions of (Art 160-161) of the
Criminal Procedural Code.

B. Extra-Territorial Jurisdiction

Any Ethiopian or a foreigner having no immunity is obviously subject to an Ethiopian

jurisdiction for violation of Ethiopian criminal laws provided that he is in Ethiopia. However,
people may after having committed an offence in Ethiopia may have successfully escaped and
taken refuge in a foreign country. In such a case, the Ethiopian authorities are directed under Art
11(3) of the Criminal Code to request his extradition so that he may be tried in Ethiopia under
Ethiopian law.

What is extradition? With which countries did Ethiopia conclude extradition treaties (if any)?

Art 21(2) of the Criminal Code which reads as: No Ethiopian national having that status at the
time of the commission of the crime or at the time of the request for his extradition may be
handed over to a foreign court. However, he shall be tried by Ethiopian courts under Ethiopian
law.

No agreement with any country for the purpose of extradition concluded therefore it becomes a
plain fact that extradition under Art 11(3) is ineffective by virtue of Art 21(2).

Where extradition cannot be obtained, Art 12(1) directs the Ethiopian authorities to request that
the suspect be tried in the country of refugee. If that request is honored by the country in which
the offender has taken refugee and he is tried and acquitted there, he cannot be tried again for the

63
same offence in Ethiopia if he is subsequently apprehended here. This is also true if his sentence
has been remitted there or if enforcement of the sentence is barred by limitation, Art 12(2) of the
Criminal Code. Had no request been made or the request had not been honored, Art 12(2) is not
applicable and that he could be retried in Ethiopia though he had been tried and acquitted for the
same offence abroad according to Art 16 of the code.

Where the offender has been convicted following a request of the Ethiopian authority and has
served out his sentence, he cannot again be punished in Ethiopia for the same act (omission). But
if he has been convicted and has not undergone any of the punishment or has undergone only
part of, and if he is apprehended in Ethiopia, the remainder (the un served sentence) shall be
enforced in Ethiopia provided that enforcement of the punishment is not barred by Ethiopia‘s law
of limitation.

Art 13 of the Criminal Code Crimes committed against Ethiopia outside its territory

Under this provision, crimes committed in a foreign country which have their effects in Ethiopia
are dealt. However, not all such offences are covered. Accordingly, only offences prohibited by
Art 238-260 and Art 355-374, i.e. crimes against the state (crimes against the constitutional order
and the internal security of the state), and crimes against currencies, government bonds or
security documents, official seals, stamps or instruments, respectively, are subject matters of the
Ethiopian principal jurisdiction. The offender of such offences is subject to Ethiopian principal
jurisdiction.

Article 14 and 15 of Criminal Code Crimes committed in a foreign country by an Ethiopian

enjoying immunity and by a member of the Ethiopian defense force.

It is normal that Ethiopian officials and members of defense force goes to another country
temporarily. This, however, does not exonerate them from becoming liable for their
acts/omissions happened in their stay. Art 14 and 15 is designed to make Ethiopian officials and
members of the Ethiopian defense force subject to the Ethiopian principal jurisdiction for certain
offences they committed while abroad.

Members of the Ethiopian diplomatic or consular service, an Ethiopian official or agent who
cannot be prosecuted at the place of commission of the crime by virtue of international principles

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of immunity are subject to the Ethiopian‘s jurisdiction for offences other than those provided
under Art 13 of the Criminal Code provided that the offence is punishable both under the
Ethiopian criminal law and the law of the place of commission. If the offence is punishable only
upon complaint under either law, no proceedings may be instituted until such complaint is
lodged.

Ethiopian defense force may for some time stationed abroad as in the case of Somalia and
Rwanda and a member (members) of the defense force may commit offences which are against
international law or crimes specifically mentioned as military offences under Art 269-322 of the
code under such circumstances Art 15 makes the offender(s) subject to the Ethiopian principal
jurisdiction and be tried by Ethiopian military courts. In other cases, the offender shall remain
subject to the ordinary laws and territorial jurisdiction of the country where he committed the
crime if he is arrested there. If he has taken refuge in Ethiopia, he shall be tried in accordance
with the principles of extradition provided under Art 21(2) of the code.

Under the aforementioned circumstances, we have been looking in to the kinds of offences that
fall under the Ethiopian principal jurisdiction. A person is subject to the Ethiopian principal
jurisdiction. This is because of the belief that Ethiopia is the country most affected by the alleged
commission of the offence. Any person subject to Ethiopia‘s principal jurisdiction, if found in
Ethiopia or extradited to Ethiopia, may be tried in Ethiopia for the offence, whether or not he
was not tried in a foreign country for the same offence and if he was tried, whether or not he was
discharged or acquitted. If, however, he has been convicted of the offence abroad, any part of the
punishment he already served shall be deducted from the new sentence.

It should also be noted that where the person had been tried abroad on the request of the
Ethiopian authorities pursuant to Art 12 of the code, he is no longer subject to Ethiopia‘s
principal jurisdiction.

II. Subsidiary Jurisdiction

With regard to offences that do not directly and chiefly concern Ethiopia, our courts have
subsidiary jurisdiction which is derivative-not original. Under these circumstances, Ethiopian
courts substitute foreign courts in trying offenders who must have been (but have not been) tried
in a foreign country.

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Subsidiary jurisdiction exists as to an accused who is charged with:

 Offences committed by members of the armed forces against the ordinary laws of a
foreign country, Art 15(1) of Criminal Code.
 Offences committed in a foreign country against international law or international
offences specified in Ethiopian legislation, or/ and international treaty or a convention to
which Ethiopia has adhered, Art 17(1) (a) of Criminal Code.
 Offences committed in a foreign country against public health and morals specified in Art
525, 599, 635, 636, 640 or 641 of the code, 17(1)(b) of Criminal Code.
 Offences committed abroad against an Ethiopian national or offences committed by
Ethiopians while abroad, if the offence is punishable under both laws and is grave enough
to justify extradition, Art 18(1) and
 Other offences punishable by rigorous imprisonment of not less than ten years)
committed abroad by non- extradited foreigners, Art 18(2) of Criminal Code.

An Ethiopian accused is subject to Ethiopia‘s subsidiary jurisdiction pursuant to the Art if except
that he is enjoying immunity and that he is a member of the Ethiopian defense force. Besides,
those who are subject to Ethiopia‘s principal jurisdiction under Art 13 of the code are not subject
to Ethiopia‘s subsidiary jurisdiction.

For Art 18 of Criminal Code to be applicable, i.e. in order for a person to be subject to Ethiopia‘s
subsidiary jurisdiction, two conditions must be satisfied. First, the act for which he is charged
must be prohibited by the law of the state where it was committed and by Ethiopian law.
Secondly, the act must be of a sufficient gravity under Ethiopian law to justify extradition.
How can a country determine whether an act is of sufficient gravity to justify extradition or not?

There are two types situations covered under Art 18. The first one is where the crime is
committed in a foreign country either by a foreigner against an Ethiopian or by an Ethiopian. In
order to make a suspect subject to Ethiopia‘s subsidiary jurisdiction, it is only necessary that the
conditions referred previously be satisfied. As long as the offences are of sufficient gravity to
justify extradition, it subjects the offender to Ethiopia‘s subsidiary jurisdiction (if prohibited by
law of the place of commission and Ethiopian law) irrespective of the punishment authorized.
The questions to be asked in such a situation are:

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 1. Was the offence committed in a foreign country against an Ethiopian or by an Ethiopian?

2. Is the offence prohibited by the law of the country where it was committed and by Ethiopian
law?

3. Is the offence extraditable under any of Ethiopia‘s extradition treaties or legislation? If the
answer to each of the three questions is in the affirmative, the accused is subject to Ethiopia‘s
subsidiary jurisdiction and may be tried here for the commission of the offence.

The second type of situation covered under Art 18 is the commission of a very serious offence in
a foreign country by a foreigner. The commission of such an act by a foreigner against anyone in
a foreign country subjects him to Ethiopia‘s jurisdiction if:

1. The act is prohibited both by the law of the state of commission and by Ethiopian law;

2. It is extraditable under Ethiopian law; and

3. It is punishable under Ethiopian law by death or rigorous imprisonment for not less than ten
years.

The second situation thus differs from the first in two respects;

1. It is not necessary that the offence have been committed against an Ethiopian and

2. It is necessary that the offence is sufficiently serious so that it is punishable under Ethiopian
law by death or rigorous imprisonment for more than ten years.

Which offences are punishable for more than 10 years?

Mr. Roberto who is a French national committed aggravated robbery against a British national in
France. Roberto‘s act is a crime under his country‘s law punishable by death penalty or rigorous
imprisonment for life. Once after the commission of the offence, Roberto flees to Ethiopia,
where he is apprehended. Ethiopia had extradition treaty with Sudan pursuant to this treaty;
aggravated robbery is an extraditable offence. Consequently, Roberto is subject to Ethiopia‘s
subsidiary jurisdiction because:

i. The act is prohibited both by law of the place of commission i.e. France and by Ethiopian law.

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 ii. It is extraditable under Ethiopian law and,

iii. It is punishable under Ethiopian law by death or rigorous imprisonment for life, which is
obviously for more than 10 years.

Art 19(3), 19(4) and 20 put some conditions which in fact are limitations upon the exercise of
subsidiary jurisdiction. Sub-article 3 of Art 19, which does not exist under the PC, stipulates that
no prosecution shall be instituted before consulting the Ministry of Justice, the supreme
prosecution organ at the federal level, to this effect.

Another restriction provided under Art 19(4) of Criminal Code has to do with the principle of
legality. Hence, an offender tried in Ethiopia pursuant to its subsidiary jurisdiction shall not be
punished more severely than he could expect to be at the time when and the place where he
committed the offence. Thus, in case of disparity between the punishment prescribed under the
criminal code of Ethiopia and the law of the country of commission, the punishment to be
imposed by the Ethiopian courts must be the one which is more favorable to the accused.

It has been seen that in cases of principal jurisdiction a person‘s discharge, acquittal or
conviction abroad is no bar to proceedings being instituted a new in Ethiopia, provided that
where the suspect is convicted and new sentence is passed, the term of the sentence already
served abroad will be deducted from such new sentence.

The effect of foreign sentence in the case of offences to which Ethiopia has only subsidiary
jurisdiction is different. Ethiopian courts may only exercise their subsidiary jurisdiction only
insofar as no action has been taken against the offender in a foreign country in general. Offences
as defined under Art 15(1), 17 and 18 are not triable in Ethiopia if the offender was previous
prosecuted abroad, whatever the result of the proceedings (acquittal, discharge, conviction and
also, presumably, nolle prosequi). If the offender was tried and sentenced in a foreign country
but did not undergo his punishment, or served only part of it in the said country, Art 20(2) of the
code states that the punishment, to the remaining part thereof, may be enforced in Ethiopia
unless otherwise it is barred by limitation under either of the Ethiopian law or the law of the
country of commission. Thus, Art 12(3) is applicable to such cases mutatis mutandis.

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It should be noted that there are other conditions to be fulfilled for Ethiopia to exercise
subsidiary jurisdiction over certain offenders. These conditions are found scattered under
different provisions dealing with such type of jurisdiction for instance Art 19(1) (2) of Criminal
Code.

6.2.2. Material Jurisdiction.

So far, we have been discussing on the issue of judicial jurisdiction with the view of determining
cases upon which Ethiopian courts have power of prosecution i.e. whether Ethiopian courts in
general have power (competence) to see and then adjudicate the case or not. Determination of
such issue though crucial is not conclusive. The question of which particular court in Ethiopia
has jurisdiction to hear specific case should be answered subsequently. The issue of material
jurisdiction and local jurisdiction, hence, comes in to being.

Material jurisdiction is concerned with the level of courts, and the type of court that should hear
the case. Thus, the issue of material jurisdiction should be seen the light of structure of courts.

Before the early 1990‘s the judicial system in Ethiopia was of a monolithic structure reflecting
the unitary system of government; we had one Supreme Court, high courts and awraja courts
parallel to the regional administrative and awraja administrative units.

The 1994 FDRE Constitution takes Ethiopia in to a federal form of government. Hence, the
organization of courts had been changed accordingly. Art 78 of the FDRE Constitution created a
two tiered court system, i.e. federal and state courts. At federal level, we have the Federal
Supreme Court, the Federal High Court and the Federal First Instance Court. At state level, too,
we have the state supreme court, the state high court and the state woreda court. There are no
specialized courts currently in Ethiopia except administrative courts like the tax appeal
commission.

In countries like ours where a federal /state court system is found, the next point once after the
determination of the issue of judicial jurisdiction is whether the case at hand is under federal or
state jurisdiction or state courts. We have to ascertain where it falls specifically.

The apportionment of jurisdiction is first determined on the basis of subject matter which in turn
is to be determined based on law, parties and places. Our Constitution nowhere defines federal

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matters and state matters; hence, this is left to the determination of the legislator. If the
legislature decides that such certain matters be under federal jurisdiction, then such matter would
be regarded as federal matters. But there are matters which as a rule must be categorized as
federal matters or state matters. Under such rule a case is a federal matter if it arises on federal
law and a case is a state case if it arises on state law. We may, therefore, conclude that all cases
that arise or all claims that are based on federal law may be called federal matters and the rest
may be categorized as state matters.

All laws made by the House of Peoples‘ Representatives under its enumerated power of
legislation and laws made by the council of ministers are referred to as Federal laws; and all laws
made by the state legislative bodies under their residual power of legislation are state laws.
Article 80(1) (2) of FDRE Constitution;

 The federal Supreme Court shall have the highest and final judicial power over federal
matters.
 The state supreme courts shall have the highest and final judicial power over state
matters.

Federal Courts Proclamation No. 25/96 and 322/2003 sets out the rules for allocation of common
and specific jurisdictions to federal courts on the basis of three grounds; laws, parties

Jurisdiction of State Courts

In the foregoing discussion, we have seen that Proclamation No. 25/96 sets the rules that
apportioned jurisdiction between federal courts and state courts. It enumerates the cases where
the federal courts would assume jurisdiction. The areas that are not specifically mentioned to fall
under federal court jurisdiction are therefore presumed to be under jurisdiction of state courts.
Thus, it may be argued that there is no need of enumerating the jurisdiction of state courts. The
way FDRE Constitution did the residual jurisdiction is left to regional courts.

Concept of Delegation (delegated jurisdiction)

Art 78(2) of FDRE Constitution provides that the jurisdiction of federal high court and of the
first instance courts is delegated to state courts. Art 80 of the same also provides that state high
courts in addition to state jurisdiction shall exercise the jurisdiction of the federal first instance

70
court. State supreme courts then shall exercise the jurisdiction of the federal high court because
of the delegated authority.

We have seen the principle under Art 3(1) of the Federal Courts Proclamation and the specific
jurisdictions over offences that are provided under Art 8, 12 and 15 of the same. However, there
seems a contradiction to exist in the manner the principle and the specific jurisdiction is
provided.

6.2.3. Local Jurisdiction

Local jurisdiction refers to the area of Ethiopia in which the case is to be tried. If jurisdiction
over the offence is in the Awraja court, the question is in which Awraja court the particular case
is to be tried. Art 6 of criminal procedural Code provides that the court shall exercise local
jurisdiction in accordance with the provisions of Art 99-107 criminal procedural code. The
general principle, embodied in the Art 99 cr.pro.code is that every offence shall be tried by the
court within the local limits of whose jurisdiction the offence is committed. In this connection
where an offence is triable before the high court, which now sits in some of the provincial – now
zonal, capitals, the <<local limits of whose jurisdiction>> should be interpreted to mean within
the local limits of the province- now zone, in which the High Court is sitting.

6.2.4. Change of Venue and Withdrawal of Judges.

The issue of determination of the pertinent jurisdiction is of vital importance in that judicial
jurisdiction determines to know whether Ethiopian courts in general have power to see the case,
material jurisdiction, which is a reflection of court, the court system in Ethiopia. It is , therefore,
about among different levels of courts to which court shall the case be submitted and most
importantly local jurisdiction determines to which particular court can the public prosecutor or
the private person can take his charge is to be ascertained.

The system of apportionment of cases to different courts is established with the view of having
cases be properly adjudicated by the trial court. Nonetheless, sometimes proper adjudication of
cases by the court having jurisdiction might not be possible for reasons attributable to that court
as an institution or a judge(s) as an individual in which case change of court (venue) or
withdrawal of that particular judge could be sought.

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6.2.4.1. Change of Venue

Assuming that a public prosecutor/ private person prepared his charge as against an accused
pursuant to Art 111 and 112 of the Criminal Procedural Code and then submitted the same to the
court which according to the law has judicial, material and local jurisdiction to see and decide
the case. Once after this, the next step normally is what we call going to the trial stage because it
is presumed that such court is competent enough to properly adjudicate the case. This, however,
may not always hold true. One of the parties to the case, i.e. the public prosecutor or the accused,
may come up with reasons to show that the said court cannot properly and impartially adjudicate
the case thereby protest that court from entertaining the case. In cognizance of this, we have
different laws as to how such protections are addressed.

Change of venue, therefore become a process by which a case is to be transferred from one court
that have jurisdiction to another court having the same jurisdiction for good cause.

Note that change of venue is possible only for valid reason and that only if the conditions
provided by law are complied with, hence, it should be exercised in relation to cases triable
before a court in so far as there is a court empowered to entertain the question (application for
change of venue).

Art 106 of the Criminal Procedural Code states that application for change of venue shall only be
made to high court. By implication the code permits application for change of venue only in
respect of cases which are within the jurisdiction of woreda courts only. Normally application in
such a case should be made to a higher court because the court from which the applicant sought
change is already trying the case for it has jurisdiction. Hence, it is better for a higher court to go
through the reasons of the applicant and grant him or not. Besides, it is obvious that application
for change of venue from Supreme Court cannot be made to a high court as a river never flows
up a hill. Above all the law is clear in a way it says ―… to high court. Consequently, the
literary meaning of the article seems that it does not permit application for change of venue in
respect of cases triable before high court and Supreme Court.

Do you think this is fair?

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What possible rational could the legislature have?

Accordingly (Art 106 of criminal procedural code), the accused or public prosecutor can make
an application to the high court, before the commencement of trial and the court has to accept the
application and permit change of venue if it ascertained that :

 A fair and impartial trial cannot be held in the subordinate court, as against which the
application has been made
 A question of law of unusual difficulty is to arise
 Where such an order is necessary for the general convenience of the parties or witnesses
 Such and order is expedient for the ends of justice or is required by any provisions of the
CPC. The high court, which following the application, realized that one/more of the
above mentioned consequences is to happen would decide that the case be transferred to
another subordinate court, which have both judicial and material jurisdiction or try it by
itself.

According to the existing laws of Ethiopia, application for change of venue is admissible only if
brought before the commencement of trial of the case. The fact that there is not outlet for late
applicants should be reconsidered so that applicants who knew the cause of the application at the
stage of the trial or sometime latter or applicants who for good cause cannot lodge their
application before the stage of trial could be permitted to submit their application for change of
venue. Nonetheless, the writers agree that the right of making application should be subject to
period of limitation. Depending on the nature of the cause an applicant should be permitted to
make out of time application if brought before witnesses are heard by the trial court. In fact Art
124 of the CPC anticipates that the witnesses of both parties be heard at the first date fixed for
hearing in which case the phrase ―before trial started‖ and before evidences are examined
becomes the same but in times when witnesses of either parties could not be heard at the first
date for hearing late applicants would be allowed to submit their application for good cause.

Even though the CPC narrowed that application for change of venue within the ambit of high
courts only, Proclamation No. 25/96 widens its scope in a way that such application is made to
Federal Supreme Court and Federal High Court.

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Art 8(3) of the Courts Proclamation No. 25/96 provides that the Federal Supreme Court has first
instance jurisdiction over application for change of venue from one Federal High Court to
another Federal High Court or to itself (Federal Supreme Court), in accordance with the law.

First instance civil jurisdiction of the Federal High Court is provided under Art 11 of
Proclamation No. 25/96. Sub-article 2(d) of the same grants the same power to the Federal High
Court, the power of entertaining application for change of venue from one Federal First Instance
Court to another or to itself, in accordance with the law. Note such provision of the proclamation
dealing with criminal jurisdiction of federal high court. These writers dare to say that similar
provision is omitted only by oversight not to deny Federal High Court such right. Art 12(2) reads
as … Federal High Court has jurisdiction over cases falling under the jurisdiction of the high
court pursuant to other laws in force.

The CPC is still in force and this code makes application for change of venue fall within the
jurisdiction of high court. Thus, it is possible to conclude that Art 12(2) makes cross reference to
provisions of the CPC thereby granting Federal High Court the power of entertaining application
for change of venue. In the same token, then phrase ―in accordance with law ―under Art 8(3)
refers to the CPC, among other laws.

Details of when application for change of venue is possible and that admissible by the courts is
not provided under Proclamation No. 25/96 yet one can infer that the provisions of the
proclamation are making cross reference in a way that Art 106 of the CPC holds true.

Whenever application for change of venue has been made, Art 106 of the CPC has to be closely
examined. It would be only then after that a court can permit the same. The decision of the court
is then final i.e. not appealable.

The concept of change of venue is an exception to local jurisdiction in general and material
jurisdiction in cases where the court decides the case be committed for itself i.e. transferred to
itself from the subordinate court.

Explain change of venue in the light of delegation of power. In your opinion, when does a
court order that an accused committed for trial to itself i.e. the case be transferred to itself from

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the subordinate court? Comment on the grounds for a court to grant change of venue provided
under Art 106(a-d) of the CPC.

Example: Mr. A, president of West shoa High Court negligently killed Ato Habtamu.
Investigation conducted by police and the public prosecutor charged Mr. A citing Art 543(1) of
the CC. Mr. A now wants the case to be transferred to another court and makes application for
change of venue. On account of the fact that he is the president of such court and that impartial
trial could not be held.

6.2.4.2. Withdrawal of a Judge

Withdrawal of a judge is also another procedure to secure justice. It is related to a particular

judge who would have seen the case. Art 27-30 of Proclamation No. 25/96 deals with the issue
of withdrawal of judges. Thus, sub- article 1 of Art 27 lists the grounds of withdrawal of judges.
It reads as: No judge of a federal court shall sit in any case where:

A. He is related to one of the parties or the advocate thereof by consanguinity or by affinity.

B. The dispute relates to a case in which one of the parties is a person for whom he acted as
tutor, legal representative or advocate.

C .He has previously acted in some capacity in connection with the case or the subject matter of
the dispute.

D. He has a case pending in court with one of the parties or the advocate thereof.

E. There are sufficient reasons, other than those specified under sub-article (1), (a) to (d) hereof,
to conclude that injustice may be done.

Whenever one or more of the above conditions exists, a judge, who was to see the case should
withdraw himself or be removed from entertaining the case.

The grounds listed above seem to envisage only civil cases conditions when withdrawal of judge
is possible in civil case for instance under a and d we have seen that a judge being related to one
of the parties i.e. the accused and the public prosecutor and that the judge has case with one of
the parties. The public prosecutor, in criminal cases, becomes a party not because his personal

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interests have been affected but representing the state at large so anything a particular judge has
with a particular public prosecutor cannot be a ground of change of venue in criminal cases. That
is merely personal. In case of private prosecution, however, the provision holds true as it is the
victim in criminal case, in principle, is not a party to the litigation.

A judge who knew the existence of one or more of the situations provided under sub-article of
Art 27(1) is supposed to withdraw himself from the case soon upon his own motion and be
replaced by another.

Though the law anticipates voluntary withdrawal this may not be always true. Art 28 addresses
this application for removal of a judge. Thus, where a party is of the opinion that a judge should
not sit to see a case for one of the reasons specified under Art 27 of the proclamation, he shall
submit a written application to the court requesting that the judge be removed.

Such application shall be in writing and be made before the opening of the trial or soon after the
applicant becomes aware of the ground for making such an application.

Sub-article 3 and 4 of Art 28 addresses the issue of how the application be considered. Hence,
where the judge against whom the application is made is sitting alone, he shall, after considering
the application, either withdraw or refer the matter for decision to another division of the same
court or where there is no other division to the court in which appeal lies from the decision of his
court. However, if the judge is sitting with other judges, he shall withdraw and the remaining
judges shall hear the application and give a decision there on.

For withdrawal of a judge to be granted the conditions under Art 27 should be complied with.
The applicant, therefore, should have good cause. If not the application would be dismissed. In
addition to the dismissal of the application, Art 30 provides that application for withdrawal of a
judge without good cause might even resulted in a penalty of fine not exceeding 500 birr (five
hundred birr).

The CPC has no provision dealing with withdrawal of judge. This, however, should be
considered in the new criminal procedure code to be enacted in the near future.

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 CHAPTER SEVEN

THE TRIAL

7.1. Fair Trial Rights and Trial Proceedings

The trial stage is critical stage at which the guilt or innocence of the defendant is established.
Despite the remarkable diversity, the practice between and within the various legal systems of
the world as to the composition of the tribunal and the laws of evidence to be brought before the
court, the essence of the right of the accused at this stage is related to the adequate time and
facilities given to him to defend himself and that these facilities must be at least equal to those
enjoyed by the prosecuting or any other party at trial.

Often the following are mentioned as rights of the accused:

* Right to speedy trial

*Right to public trial

*Right to counsel or legal assistance

*Right to obtain a copy of the charge

*Right to be presumed innocent

*Prohibition of self incrimination

7.1.1. The Right to Defense Counsel

It has been discussed that often accused are layman who lack the relevant knowledge of law to
bring and defend causes of actions brought against them. Consequently, they are urged to seek
lawyers/advocates/ to defend causes on their behalf. To this end most legal systems allow
accused persons to have the service of lawyers of their choice or appointed by the state so that
they will be able to protect their liberty at stake.

Lawyers then are duty bound to cooperate in the realization of such rights by effectively and
diligently discharge their responsibilities.

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In principle Art 20(5) of FDRE Constitution is extended to every accused in that it grants the
right to be represented by legal counsel of their choice at their own expenses. However, a state
should provide defense legal counsel only to those who are not able to pay for it, even though,
only if miscarriage of justice is believed to have resulted had defense counsel not been provided.
In all others cases, no legal counsel be provided to the accused at the expense of the state.

Practically, however, such right is not being exercised by all accused persons. Obviously those
who can afford to appoint a legal counsel at their own expense can do so without any restriction.
The only condition precedent in such case is that the person to be appointed should have a valid
advocate license from the pertinent authority.

The problem is in connection with the above notes. Thus, though it is a constitutional right for an
accused to be provided with legal counsel (representative) at the state expense provided that
miscarriage of justice is to occur unless a legal counsel is provided to him, it is often only in
some limited cases that such right is exercised.

7.1.2. The Right to Obtain Copy of the Charge

It has been discussed that upon the receipt of the report of police investigation, the public
prosecutor may prosecute the accused on a charge drawn up by him pursuant to Articles 108-122
of the Criminal Procedural Code among others.

Charge could be defined as a formal document containing an allegation that a person named
therein has committed a crime by describing the necessary facts and evidence implying that such
person deserves punishment as provided for under the relevant article that has been violated.

Charge describes the necessary facts and evidences implying the person deserve punishment.
Mere charge, however, will not necessarily result in punishment. The accused (defendant) has a
constitutional right to examine witnesses testifying against him to adduce or to have evidence
produced in his own defense and to obtain the attendance of an examination of witnesses on his
behalf before the trial court. Hence, the right of the accused to obtain a copy of the charge is of
high importance in the exercise of all these rights and in his decision whether to plea guilty or
not and to properly defend him by not pleading guilty.

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Note: a charge is not exclusively prepared by a public prosecutor it could also be framed by
private prosecutor.

Under Art 20(2) of FDRE Constitution, the fact that an accused person has the right to be
informed with sufficient particulars of the charge brought against him and to be given the charge
in writing has been stated.

Hence, the institution of a charge in written form and obtaining the same is a constitutional right
of any accused.

The Criminal Procedural Code under Art 109/4/ stated that a copy of every charge shall be given
to the accused free of cost which at the same time indicates that a charge be in writing.

What purpose would it serve to the accused?

Discuss when private prosecution is possible?

7. 1 .3. The Right to Public Trial

The FDRE Constitution makes trial to be <<public>>, i.e. in an open court before ordinary court
in principle. Ordinary court should be understood to mean a court having both judicial, material
and local jurisdiction to adjudicate the case based on the grounds discussed under the preceding
chapter. No special tribunal is assigned for a particular case.

Article 20/1/, however, is not limited to the accused‘s right to public trial. It also guaranteed that
trial be undertaken speedily – speedy trial. Speedy trial is to mean trial which avoids unnecessary
and unreasonable delay, i.e. decision rendered within the possible reasonable period of time.

Proclamation No. 25/96, which is subordinate to the Constitution, also provides that cases be
heard in open court.

Yet, both the Constitution under Art 20 and the Courts Proclamation under Art 26 put exceptions
to this right. The Constitution provides that a court could hear cases in a closed session only with
a view of protecting the rights to privacy of the concerned parties, public morals and national
security. Sub Art 2 of article 26 of Proclamation No. 25/96 lists two grounds for a court to hear
cases in a closed session <<in camera>> these are:

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 i. Public and state safety, and
ii. ii. Public morality and decency.

Under Art 176 of the Criminal Procedural Code:

Where the young person is brought before the court all the proceedings shall be held in
chambers. Nobody shall be present at any hearing except witnesses, experts, parents or guardian
or representatives of welfare organizations. The public prosecutor shall be present at any hearing
in the high court. Hence, the criminal procedure code states that prosecution in cases of young
offenders be semi closed.

In all cases, therefore, the accused has the bright to open court – public trial as a rule and that
trial are in closed session i.e. in camera, is possible only under some exceptional situations
provided by law.

Discus when trial in camera is possible. Can the public prosecutor attend trial held at wereda
or Federal First Instance Court dealing with juvenile delinquency?

7.1.4. The Presumption of Innocence

The presumption of innocence – being innocent until proven guilty – is a legal right that the
accused in a criminal trial in many modern nations. The burden of proof is thus, on the
prosecution, which has to collect and present enough compelling evidence to convince the
judges, who are restrained and ordered by law to consider only actual evidence and testimony
that is legally admissible, and in most cases lawfully obtained, that the accused is beyond
reasonable doubt guilty. In case of remaining doubt, the accused is to be acquitted.

The presumption of innocence is in fact a legal instrument created by law to favor the accused
based on the legal inference that most people are not criminal. It is literally considered as
favorable evidence for the accused that automatically attaches at the trial. It requires that the trier
of fact, be it a juror, begin with the presumption that the state is unable to support its assertion.

The fact that investigation is being conducted or the public prosecutor framed a charge, submit
the same to the court and trial being undergone does not mean that the person against whom
these proceedings are being carried on is guilty. All such proceedings are endeavors to ascertain

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whether that person committed a crime or not .This is to be decided only by the trial court. Up
until that decision, therefore, nobody can be certain that the accused person is guilty.

Article 20/3/ of FDRE Constitution, in this connection states that during proceedings any
accused person has the right to be presumed innocent until proven guilty according to law.

Courts are, therefore, the only competent organs to declare that a person is guilty. Though it has
been said that everybody is presumed to be innocent, it does not mean that, that particular person
is in fact innocent. He could be in reality guilty but the law says ―he shall be presumed innocent
until proven guilty – until his guilt is declared by the court in accordance with law, which
everyone should respect.

7.1.5. Privilege against Self Incrimination

The protection against self incrimination is an important one for any procedural system which
attempts to reach a just result and its importance is recognized in all inquisitorial as well as in
accusatorial systems. The core of this protection in almost all systems is the desire to prevent
investigation or adjudication procedures from coercing unreliable confession from the mouths of
accused persons. It is not the desire to prevent investigators from asking accused or suspected
persons questions relating to the crime, not the desire to keep the person from answering them
(although defendants are usually given the option of doing so), not the desire to keep people
from drawing adverse inferences from an accused persons‘ refusal to answer question. If there
are procedure rules which seek to accomplish these ancillary objectives, they are intended to
make it more certain that the core objective will be realized.

In all the systems of the civilized world, a defendant has the right of silence in this narrow sense
at least throughout the entirety of the criminal proceedings he or she has the right to refuse to
answer question and may not be exposed to criminal sanctions for exercising this right much less
to torture by order of the authorities.

The use in evidence of statements obtained from the defendant in breach of his right to silence is
an important aspect of the problem of improperly obtained evidence. The question most
frequently discussed in this connection is whether a suspect‘s statement may be used in evidence
where he made it without first being warned that he has a right not to talk. The question

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potentially raises the issue of evidence illegally obtained. In different systems the solution
depends on whether there was a legal duty to warn the suspect of his right to silence in the case
in question, the terms of this duty if it exists, and the attitude of the court to breach of this
obligation and as might be expected, the courts where the inquisitional tradition is strongest are
the least sympathetic to the defendant in this respect.

The Fifth Amendment to the United States Constitution provides that ―no person…shall be
compelled in any criminal case to be a witness against himself. Art 19(5), FDRE Constitution in
the same token provides that: Persons arrested shall not be compelled to make confessions or
admissions which could be used in evidence against them. Any evidence obtained under coercion
shall not be admissible.

Article 19/5 thus, guaranteed right not to be compelled to make confessions or admissions to
arrested persons and the same right is extended to accused persons too Art 20(3) of the FDRE
Constitution provides: During proceeding accused persons have the right to
be presumed innocent until proven guilty according to law and not to be compelled to testify
against themselves.

Consequently, one may say that privilege against self-incrimination is a constitutional right given
to arrest as well as accused persons. The Constitution does not stop in guaranteeing this right. It
also makes that any evidence obtained in violation of this right inadmissible, which could be
considered as signal not to compel persons with the view of obtaining evidences for it would be
useless.

7.2. Preliminary Objections and their Consequences.

A prosecutor (public or private) frames his charge and submit the same to the registrar of the
court having jurisdiction to adjudicate the case. It is only when the public prosecutor files a
charge in a court having jurisdiction that the charge be accepted by the registrar.

Where the charge has been filed to the court having jurisdiction, the court shall forthwith fix the
date of trial and cause the accused and the prosecutor to be summoned to appear on the date and
at the time fixed. It is at this juncture that the accused be served with summons along with the
charge. This takes as to the stage of trial.

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The accused is supposed to personally appear before the trial court on the date fixed. If he
appears, the court shall first verify the accused‘s identity –his name, address, occupation and
other information the court deems necessary relating to his identity be asked and recorded. This
is to ascertain that the person in the dock (stood before the court) is really he whose name is
mentioned in the charge. Thus, it would refrain from going deep in to the merit of the case if it
came to know that he who is before it is another person.

Assuming that what the person is responding fits with that mentioned in the charge, the presiding
judge shall read out the charge to such person (the accused) and ask if he has any objection to the
charge. The objection may be based on the form or content of the charge or any other substantive
matter. If the objection is based on the form and content of the charge, the provisions of the CPC
on amendments of charges (alteration of an addition to charges) and their effects shall apply.
Consequently, the court shall order (if the objection is valid) the charge to be amended within a
reasonable period of time it fixes.

Under Art 130 of the Criminal Procedural Code, the grounds of objections to a charge are listed.
Thus,

 That the case is pending before another court; or

 That he has previously been acquitted or convicted on the same charge; or
 That the charge against him has been barred by limitation or offence with which he has
been charged made the subject of pardon or amnesty; or
 That he will be embarrassed in his defense if he is not granted a separate trial, where he is
tried with others; or
 That no permission to prosecute as required by law has been obtained; or
 That the decision in the criminal case against him cannot be given until other proceedings
have been completed: or
 That he is not responsible for his acts.

The accused may raise one or more of the objections provided above. One may ask whether the
list is exhaustive or enumerative. Would it be possible for the accused to raise the issue of
jurisdiction as a preliminary objection?

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The right of the accused to raise such objections is not unlimited. Where no objection is raised
after it has been required by court to state objections (if any) the accused is barred from raising
any such objections at any latter stage in the trial. Yet if the objection is of a nature that could
prevent valid judgment being given the accused could be allowed to raise such objections even
out of time.

Among the objections listed above, which do you think is better allowed to be raised even out of
time? Do you think is there any ground of objection that does not prevent valid judgment from
being given?

Where objections are raised, the court shall take down the same and ask the prosecutor whether
he has any statement to make in relation to such objection. Then the court shall decide forthwith
on such objection where the objection can be disposed of by reference to the law or the facts.
This is where the other party, prosecutor admits the objection(s) as appropriate and valid.
However where the prosecutor does not admit or where the court cannot decide on the objection
forthwith, the court shall order the production of necessary evidences without delay and shall
forthwith decide on the objection upon the receipt of such relevant evidences.

7.3. Plea of accused

Once after a charge has been read out and explained by the presiding judge, the latter shall also
ask the accused whether he pleads guilty or not guilty, i.e. whether he admits or denies the
charge. Where there is more than one charge, the judge shall read each charge one by one and
ask, then record the plea of the accused in respect of each charge separately.

It is the duty of the judge to record the plea of the accused without including or substituting any
word of his own to what is stated by the accused. It should however be neither condensed nor
extended. It should be clear enough in deciding that there is plea of guilty or not.

Where the accused denies the charge or admits the same with reservation or if the accused says
nothing in answer to the charge the plea of not guilty shall be entered.

Consequently, the plea of guilty-admission shall be entered only where the accused admits the
charge without reservation either by stating the offence in its terms or by admitting every
ingredients of the offence charged.

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However, it should be noted that even if the accused pleads guilty, the judge need not accept the
plea. If from the behavior, appearance or words of the defendant during the
pleading/arraignment/ process, the judge is led to believe that a defendant is mentally
incompetent, or somehow does not seem to understand what is happening or that the plea may be
involuntary or greatly inaccurate in terms of what actually happened. The court may not accept
the plea of guilty or delay its acceptance. This is to allow psychiatric diagnosis or to enable the
accused confer with counsel. If the judge simply rejects the guilty plea, it shall set a trial date as
if the accused had pleaded not guilty.

In deciding whether to accept a plea of guilty, judges are required to personally address the
accused and make inquiries to establish:

1. The accused knows of his/her right to a trial and that a guilty plea is a waiver of this right

2. The accused is pleading guilty voluntarily (i.e. was not forced or threatened into the plea)

3. The accused understands the nature of the charge.

4. The accused is aware of the possible maximum sentence that can be imposed if he pleads
guilty.

As being discussed above after the accused pleads not guilty, it is obvious that the next process is
that the prosecutor be ordered to produces evidence, oral witnesses in particular because he is
alleged a commission /omission/ of a crime the burden of proof lies on him. However, if the
accused pleads guilty and it has been recorded by the court, the prosecutor shall be asked his
opinion which normally be demanding the court to convict the accused forthwith. The court may
on its own discretion either convict the accused forthwith or demand the prosecutor to produce
evidence and corroborate the plea. This depends on how that particular judge (s) is/are
convinced.

What possible grounds would lead the court demand production of further evidence in disregard
of the accused’s plea of guilty?

Practically the nature of the offence has an impact on the decision of the court to accept or not
the plea of guilt by the accused. In most serious offences, such as aggravated homicide, our

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courts opt in the production of corroborating evidence though the accused pleads guilty and the
prosecutor requests for immediate conviction.

State the possible rationales do you envisage for the courts to demand corroborating evidences
even no matter how the accused pleaded guilty?

Sometimes prosecutors request the introduction of evidences after the accused pleads guilty with
the view of showing the criminal disposition or demeanor of the accused so that punishment
would be aggravated in serious offences.

In the course of proceeding after the court entered the plea of guilty of the accused, the court
may amend the plea on its own motion or upon the application of the accused pursuant to Art
135 of the CPC. The court may then change the plea to one of not guilty. Where a plea of guilty
had been entered following which the suspect had been convicted, sub article 2 of Art 135
provides that the conviction shall be set aside.

The CPC allows amendment of peal from guilty to not guilty. How about the vice versa?

7.4. Opening of Cases and Presentation of Evidences.

It has been discussed that the court which has jurisdiction over the case shall fix a date for
hearing and sends a summons with the view of notifying the accused that a charge as against him
is field and he shall appear personally on such a date as mentioned in the summons. On such date
the accused may appear in person or not for different reasons. If he appears what the court should
do first is establishment of his identity thus, his name, address, occupation, age and other
relevant information could be asked with the view of clearly identifying the person‘s identity. In
case any of these do not fit to what has been provided by the public prosecutor in the charge, it
may not be necessary even to deep into the merit of the case unless otherwise the public
prosecutor makes a valid objection to this effect, in which case the court would order as it thinks
just.

Once after the identity of the accused is established and the information fit to what is already in
the charge, the court has to read out and explain the charge to the accused. Then ask him if he
understood what charge he has to answer and if he has got any objection to the charge.

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Refer to our discussion on different kinds of objections.

If the accused raises any objection the court has to take down the objection and ask the public
prosecutor if he has anything to say in relation to the objection. The public prosecutor may
admit the objection as appropriate in which case the court would settle it without further
complication. However, if the public prosecutor challenges the objection of the accused, where it
is possible for the court to decide on objection(s) by having regard to the evidences already
produced and the law, the court shall decide forthwith. Where the decision cannot be made
forthwith Art 131 of the CPC provides that where the decision cannot be made forthwith for lack
of evidence, the court may order that the necessary evidence be produced. If the objection is
made based on the fact that the case is pending before another court, for instance, the accused
must produce the appropriate evidence to show the alleged fact and the court shall make its
decision as soon as the necessary evidence is produced. It is, therefore, only after the court settle
such objection that it can go in to the merit of the case. Then, the presiding judge asks the
accused whether he pleads guilty or not guilty.

Where there are more than one charge the judge –the presiding judge as the law envisages, shall
read these charges one by one and the accused‘s plea accordingly. The judge should not only
read the charge but explain the same to the accused, too, if then the accused admits the court
must be sure that such admission is with full understanding of the charge, hence, the court may
even be required to ask the existence of every elements of the offence only after which the plea
of guilty be entered.

Once after the accused pleads guilty and this has been recorded by the court, then later on by its
own discretion either convicts the accused forthwith or demand the prosecution to corroborate
the plea with evidence. If the court is convinced that the crime has actually been committed and
it has been committed by the accused and the latter has made convincing statements and show
that it was him and no one else committed the crime, it shall convict the accused forthwith. If not
however, it shall order the evidence be produced by the prosecutor.

In your opinion when do you think the court would order the public prosecutor produce
evidence irrespective of the accused’s plea?

Do you think that the nature of the offence has an in pact on the discretion of the court? yes

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It is only then after that the issues of opening of cases comes in to being. Thus, the prosecutor in
opening his case, shall state the charge(s) he proposes to prove and the nature of evidences he
tenders in respect of each fact in doing so the public prosecutor is supposed to do in an impartial
way as being provided under Art 136/1/ of our CPC.

7.4.1. Presentation of evidence

As mentioned before, if the court recorded/entered the plea of not guilty or where the plea of
guilty has been entered but the court orders the plea be corroborated with evidence, the court
shall, call up on the prosecutor to produce his evidences. Thus, the public prosecutor shall give
the registrar list of witnesses and experts, if he has any, who shall testify in respect of the
charges, and the latter shall issue summons to them requiring appearing on such day and hour as
fixed by the court. The public prosecutor also has the responsibility for ensuring that all exhibits
are produced at the trial in the court the day fixed for hearing. If any documentary evidence they
are annexed to the charge.

Evidences to be produced by the public prosecutor in support of his allegations are oral, in most
cases, documentary, and exhibits. As documentary evidences are normally annexed (not to the
copy which is to be given to the accused in the earlier practice) to the charge, the court has the
opportunity to examine it in time. Exhibits also as supported by witnesses who explain about the
exhibit shall be produced for the examination of both the court and the accused during the trial
when it is appropriate.

However it should be noted that production of evidence is to be produced not by the public
prosecutor only for the accused, too, can do the same in support of defense but only after the
prosecutor proves his case to the satisfaction of the court beyond shadow of doubt normally
proof beyond reasonable doubt.

The major types of evidences in criminal cases are oral evidence and the law provides for
relatively detailed rules on examination of witnesses.

7.4.2. Examination of Witnesses

On the date fixed for hearing after the case has been opened and the court ordered the production
of evidences, the public prosecutor who normally begins the case shall call up on all relevant

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witnesses so as to prove his case and explain about the issues to be proved by the witnesses or
separately if the issues to be proved are different. Such witnesses then shall tender an oath or
make an affirmation one by one, by a lay or expert witness before giving testimony. Witness
shall be:

 examined – in-chief by the public prosecutor

 cross-examined by the accused or his advocate
 Re-examined by the public prosecutor. This is applicable to witness called by the accused
mutate mutandis.

The public prosecutor conducts examination – in - chief to his witness to enable him tell the
court whatever he knows about the offence. Thus, questions may be related to any fact that is
directly or indirectly related to the offence that is to be proved. During examination-in-chief,
however, leading questions are prohibited. This is because what the court wants to hear is the
testimony of the witness and not that of the proponent. Rather, neutral questions only directing to
him as to what about the witness shall testify, as he is to give testimony and not to deliver speech
before the court may be put to him to make him free to use his own words and explain the facts
in his own way.

The Criminal Procedural Code Art 137 provides the forms of questions to be put during
examination-in-chief, it states that:

i. questions put in examination-in-chief shall only relate to facts which are relevant to the issues
to be decided and such facts only of which the witness has direct or indirect knowledge .
ii. No leading questions shall be put to a witness without the permission of the accused or his
advocate or the public prosecutor, as the case may be.

Hence, only questions shall relate to facts which are relevant and to the knowledge of the witness
that are to be asked during examination-in-chief. Relevant facts having to do with what is stated
in the charge or which are important to prove the allegation of the prosecutor/proponent. Thus,
where the proponent puts a questions relating to a fact which is not important may raise the
objection of relevancy. The other rule in examination-in-chief is that questions to be asked at this
stage should relate to facts of which the witness has direct or indirect knowledge. Direct
knowledge is acquired by that witness through personal observation. Depending on the nature of

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the fact, the witness should observe the fact in any of or any combination of the five sense
organs. To say that a witness has direct knowledge, he must personally have sense, heard smelt
touched/felt or tested the fact if it is perceivable in such away. It is believed that the witness can
give reliable testimony in relation to such facts.

Questions during examination-in-chief may also relate to facts of which the witness has indirect
knowledge. A witness is said to have indirect knowledge where he has heard about the fact from
another person who has observed the fact and does not personally observe it.

Often it is argued that testimony given based on indirect knowledge is not acceptable as it is
hearsay for it is based on the testimony of another party who never appears before the court to be
thereby the truthfulness of his testimony is not tested. They even go ahead in saying that making
hearsay evidences admissible is against the accused‘s constitutional right. But, the CPC does not
accept the hearsay rule.

How do you see the latter argument in the light of FDRE Constitution?

In principle leading questions are prohibited during examination–in-chief, however, there are
exceptional circumstances where such questions could be asked at this stage if:

1. The accused or his advocate gives his permission; or

2. The question is related only to introductory matter such as the name, occupation and address
of the witness and not the substance of the testimony; or

3. The witness is a minor who does not have good command of language for the purpose of
assisting him; or

4. The witness does not know as to where to start, to refresh his memory; or

5. The witness turns out to be hostile.

When is a witness said to be hostile?

In the normal course of things, a proponent calls a witness believing that he will testify in his
favor. Exceptionally, however, the witness turns out to be hostile to the person who called him.
Had the calling party known before that the witness is going to be hostile to him, he would not

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have called him at least. Yet just it happens before the court. When this happens and makes the
proponent surprise, he may, up on the permission of the court put leading questions to such
witness during examination –in- chief, hence the examination turns to cross-examination.

Once the prosecutor is over with the examination-in-chief, the accused or his advocate
may/emphasis added / conduct cross-examination. The purpose of cross-examination being to
destroy what has already been established during the examination-in-chief by showing the
testimony is not true; it is contradictory or not reliable, i.e. destroying, falsifying or shading
doubt on what has been established during the examination –in –chief.

Art 137/3/ of the CPC provides questions to be put by the adversary/opponent shall tend to show
to the court what is erroneous, doubtful or untrue in the answer given during examination-in
chief.

If the purpose of cross-examination is to destroy/falsify what has been established during

examination- in- chief by showing that is not reliable questions asked at this stage should base
much as possible related to facts testified during examination-in-chief. Leading questions are
allowed to be put at this stage because as in most cases such witness is hostile to the adverse
party seems very unlikely for such party to find a suggested answer from the witness.

To ask questions during cross-examination or not is discretional to the adverse party but it should
be noted that asking or not in most cases has a very significant impact on the outcome of the
case, hence advisable to raise as much relevant questions as possible. However, the fact that
cross-examination is not conducted at all or no question has been put to the witness during cross
examination in respect of certain facts does not constitute an admission of the truth of the point
(s) by the person who would have cross-examined the witness – the proponent.

The third stage of examination of witness is that of re-examination. Re-examination is to be

conducted by the party who conducted the examination-in-chief once after cross examination is
over. The purpose of re-examination is to reestablish what has been demolished during the cross
examination or to clarify what has been confused during cross-examination. In view of its
purpose, therefore, the facts that are to be raised during re-examination are limited to those,
which were raised during the cross-examination. If there is no cross-examination at all, again

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there cannot be a re-examination as nothing has been destroyed by cross-examination from what
has been established by the examination-in-chief.

Art 136/4 / of the CPC provides that the court may put any relevant- questions which appear
necessary for the just decision of the case, question to the witness any time. The testimony of the
witness, therefore, should be recorded by the court accordingly. The record shall start with the
name, address, occupation and age of the witness and there shall be an indication whether he has
sworn or affirmed. The evidence of each witness shall be written down by the presiding judge. If
he is unable to write for whatever reason, it may be recorded by another judge or clerk under his
personal direction and superintendence. Because it is difficult to record every statement of the
witness during the hearing the judge often writes the answers of the witness only in a form of
narration and points which he thinks have to do with the questions asked. However, recently, a
transcribing machine has been fixed in many federal and regional courts to record court
proceedings.

Witnesses are to be called by parties as there are also court witnesses who are called by the court
on its own motion if it deems their presence vital for it would enable the court render just
decision. Such witnesses could be called any time before judgment is given. In which case
obviously it is going to be the court that would conduct examination in – chief and that the party
against whom these witnesses testify would conduct cross-examination. The court may ask in
place of the parties or disallow the question in its discretion.

In principle, the public prosecutor shall state all the witnesses in his charge according to the
practice. However, Art 143 of the CPC widens the prosecutors right to call witnesses whose
name does not appear in the list of witnesses mentioned in his charge provided the court is
satisfied that the person is material witness and the prosecutor informs the accused in writing that
the name of the witness he proposes to call and of the nature of the testimony he will give.

What would happen if the witness-all or some fail to appear for different reasons such as
death, absence in capacity cannot be found?

Art 144 of the CPC has some solution to this

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7.5. Post Evidence Procedure

Evidences that could be produced before the court to prove the commission on an alleged crime
by the accused could be documentary and/or oral. Documentary evidence could be the
confession of the accused either before the investigating police officer as per Art 27/2/ or before
a court by virtue of Art 35 or any other document, which may be material proof to the fact in
issue. It may also be an exhibit, which has been used as a means for the commission of the crime
like knife or gun, or a thing which is the fruit of an offence such as a stolen or robbed property or
a document produced illegally or a thing against which the crime has been committed such as a
document which has been forged, or an item from which its parts are looted.

The court after going through all admissible evidences produced by the public prosecutor
primarily and examining where relevance to the proof of the fact (s) in issues shall reach in to a
decision, which is referred as “Beyen” in Amharic.

7.5.1. No Case Motion and Acquittal

The court has to evaluate the weight of the evidences based on a certain standard. In the
continental Europe for the accused to be convicted a judge needs to have the <<interim
conviction>> which is literarily mean internal conviction. In Anglo American system, on the
other hand, the court must be convinced to the degree of <<beyond reasonable doubt>> that the
accused is guilty. In our legal system there is no such fixed standard of proof required but it can
be said that the Anglo-American system has a significant influence and practically we have the
standard called <<beyond reasonable doubt>> degree of proof.

What does beyond reasonable doubt mean? Does it mean no doubt at all? In your opinion, is it
possible to have proof with absolute certainty?

In criminal cases, it is the public prosecutor that has the duty to prove his case and only if he
proved his case with the required degree of proof that the accused would be given the chance to
defend him by producing witnesses if he has or if he wishes to do so. The contrary reading of this
is that unless the evidences produced by the public prosecutor proves the case to the satisfaction
of the court that the accused committed the alleged crime the later shall be set free thus, no case
motion/no case for prosecution.

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7.5.2. Case for Prosecution

Where the case is not dispensed pursuant to the above discussion, i.e. Art 141, in other words, if
the court is satisfied with evidences produced and is convinced that the accused had committed
the alleged crime unless rebutted by the evidences to be produced by him it shall require him to
produce all possible evidences he has to defend himself.

Art142 of the CPC:

Where the court finds that a case against the accused has been made out and the witnesses for the
injured party, if any, have been heard it shall call on the accused to enter up on his defense and
shall inform that he may make a statement in answer to the charge and may call witness in his
defense.

It is this, i.e. the fact that the court orders the accused to produce his evidences and defend
himself that we call “case for prosecution”. The Accused then shall give the list of all relevant
evidences he has to the registrar of the court and the latter shall give him summons requiring
witnesses, ordinary and/or experts to appear on the date fixed for hearing in case he has not done
at the earliest possible opportunity.

Here it should be noted that the court should be cautious before passing an order for the accused
to produce his evidences i.e. ‗for the case for prosecution‘. In doing so, the court must believe
that based on the evidences of the prosecution, that the accused would be convicted if he fails to
rebut the case made against him. The writers of this material believe that the fact that accused
ordered to defend himself i.e. a case for prosecution, is no less that giving the final judgment
because as the foregoing discussion the court shall order the accused defend himself only when it
believes that “based on the evidences of the prosecutor the accused is guilty”, hence, the purpose
of giving the accused this the right to defend himself has is to see if he can rebut this strong
believe and show that he /the accused did not committed the alleged crime or show that
somebody else committed that crime, if in fact is referred as the best defense. Look, the accused,
specially he who has no lawyer, in doing so is going to be confronted with the judge, who though
is duty bound to be impartial and avoid any bias, is now of the opinion that the accused
committed the crime –in fact waiting if he can rebut and the public prosecutor who is skilled and
experienced what to ask and how to challenge testimonies all this makes the assignment of the

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accused too hard to be successful and we observe that a very insignificant number of accused
were lucky to be set free /acquitted once after the case has been set for prosecution and they
produced their defense. Therefore, we would like to say that judges should seriously consider
things before reaching on such decisions in particular.

7.5.3. Judgment: Conviction/Acquittal

All the criminal prosecutions are made with the ultimate destination of rendering judgment
which would either be conviction or acquittal. To put it in simple terms, the accused would be
convicted if the evidences produced by the prosecutor convinced the court to the extent of the
required degree that the accused committed the alleged crime and his evidence, if any, could not
rebut such evidences and affects the court‘s conviction. On the other hand, is the defense
evidence(s) produced by the accused can falsify the evidence of the prosecution or at least shad a
reasonable doubt, the court must decide for the acquittal of the accused and be released from
prison if had been in custody. It is one of the responsibilities of a judge to give reason for any of
its decisions

7.5.4. Sentencing

Where the accused is found guilty, the court shall ask the prosecutor whether he has anything to
say as regards sentence by way of aggravation or mitigation as being provided under Art 149/3/
of the CPC. It is at this stage of the procedure that public prosecutor could reveal to the court
aggravating grounds such as previous conviction(s) of the accused so that the court could take
this fact in to consideration in the determination of the sentence.

Once after the public prosecutor is given the chance to mention aggravating or mitigating
grounds to the court the later shall give to the accused so that he can reply and mention any
mitigating grounds he could raise, if any. The court may demand the production of evidences to
prove these grounds. In practice most of our courts do not ask the production of prove to
mitigating/aggravating ground mentioned by the parties. The prosecution also tends to state only
aggravating circumstances while the law requires him to mention mitigating circumstances as
well.

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 CHAPTER EIGHT

SPECIAL PROCEDURES LEADING TO JUDGMENT

So far we have seen the ordinary criminal proceedings but there are cases where all these
proceedings may not be applicable for different reasons in the following sections we shall see
some of the special proceeding.

8.1. Private Prosecutions

Even though the CPC has provisions governing private prosecution, it is not realized in practice.
It has also lost much significance in other parts of the world.

8.2. Default Proceedings

Under the ordinary proceeding, which we have been looking above, the accused is required by
law to attend the trial personally not through representative. However, a representative can
appear before the trial court and explain the reason(s) for the accused‗s non appearance and
request an adjournment of the case until the accused will be able to appear only. The court then if
satisfied with the reason for the non-appearance of the accused as explained by the representative
would adjourn the case by virtue of Art 94/2/a/ of the CPC. However, if no representative
appeared to explain the reason why the accused fail to appear or the reason is not satisfactory, the
court shall issue arrest warrant for the accused‘s arrest presuming that he is hiding himself from
the court /justice. Normally arrest warrant is issued up on the request of the public prosecutor
and be executed by the police officer as the latter can find the accused. If the accused cannot be
found of known to have fled abroad the court has to resort to Art 160/3/ of the CPC and see if it
can see the case even in the absence of the accused i.e. if trial in absentia/default proceeding is
possible.

Trial in absentia may be held only in respect of certain grave offences, of specific offences that
are committed by adult offenders. Such offences are either punishable with rigorous
imprisonment for not less than twelve years or offences that are provided for under Art 354-365
0f the PC ( Offences against the fiscal and economic interest of the state), which are punishable
with rigorous imprisonment of fine exceeding five thousand birr. Even then, default judgment
possible if the accused is not young person.

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After going through the law, the court shall decide for the trial of the case in absentia and then,
shall order the publication of the summons which shall show the date fixed for hearing. Though
the law says the court shall order summons published, it does not mention as to how such
summons be published. Practically, however, it is normally published in a national newspaper
often Addis Zemen Gazette.

Once after this the court shall continue to see the case just like any other ordinary cases no matter
how the accused fails to appear regardless of all these proceedings pursuant to Art 163/1/ of the
CPC. The court then will render a judgment –convicting or acquitting the accused after
evaluating all the evidences the prosecutor produces.

Should one see the minimum or maximum punishment to determine cases to be tried in absentia?
What happen if the person who has been convicted in a proceeding held in his absence appears?
What if a person absconds being on bail? Is publicity still required?

Art 197-202 of the CPC provides the possibility of making an application to set aside judgment
made in default where the accused has been convicted in his absence and now appears and make
an application with good cause for his non appearance. Such application is made to the rendition
court within thirty days from the date on which the applicant became aware of the judgment
given in his absence. Where the applicant is aware and is not able to file an application within
those thirty days, his advocate may file the application and the applicant may have afterwards a
sufficient time to appear before the court as his personal presence. Obviously, such application
should be based on a reason (s) and the law under Art 198 of the CPC recognizes only two
reasons. These are:

i. the accused has not received summons to appear ; or

ii. The accused has received the summons but prevented by force majeure from
appearing in person or by advocate.

Once after such application is made, the court shall order it be given to the public prosecutor
fixing a date for its hearing. The court then enters a decision after hearing the parties on the date
fixed and its decision could either be accepting or not the application to set aside the decision
given in default. If the court accepts the reason and grant the setting aside of the judgment, it
shall order the retrial of the case and the public prosecutor institutes a charge before the pertinent

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court. The decision of the court on the application is final, therefore, the accused cannot go
anywhere if his application to set aside the judgment given in absentia is not acceptable yet he
can lodge an appeal as against the sentence that has been determined in the judgment rendered in
default within fifteen days of the dismissal of the judgment rendered in default. However, it
should be noted that no appeal is possible in respect of the conviction for it would amount to
granting the application to set aside the application. .

As we have seen before, there is what we call private prosecutions. In such prosecution, it is a
private person who is a party to the case taking the position of the public prosecutor. If the
private prosecutor fails to appear the court shall strikeout the case unless someone appears before
it and explain the reason why the private prosecutor failed to appear to the satisfaction of the
court, in which case the court may adjourn the case pursuant to Art 165/1/ of the CPC.

8.3. Summary Proceedings:

Petty Offences and Contempt Contraventions are minor crimes. Pursuant to Art 735 of the CC,
contraventions are violation of administrative regulations or the rules of the CC relating to petty
offences. They may entail loss of liberty or payment of fine. But, the arrest ordered is not
comparable to that of normal crime. It is undertaken in a detention center for that purpose. The
penalty ranges from one day to three months.

The CPC regulates its enforcement. For petty offenses, the law follows a simplified procedure.
For example one may not be supposed to go to court. It is possible to send a document certifying
guilt. The court should not call upon the accused unless it intends to impose arrest. The
proceeding can be held orally. Thus, the law wants to simplify the procedure for contraventions.

With regard to court contempt, unlike the civil procedure code, the CPC does not have
provisions regulating it. However, court contempt can happen in a criminal court. The CC has
procedural provisions regulating the summary handling of such cases. So, a criminal bench can
use the provisions of the CC in case any person commits court contempt in the process of
adjudication.

Read Art 167-170 of the Criminal Procedural Code and

Art 734-865 and 449 of the Criminal Code

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What is the rationale for treating contraventions separately? What are the procedures followed in
petty offence cases?

8.4. Juvenile Procedures

In many countries, there is what we call juvenile court which is a special court designed to see
cases in which young person’s juveniles are parties. Such courts grew up as a reaction to the
traditional practice, which used to adjudicate young offenders under ordinary courts where adults
are tried. Some of the innovations claimed for juvenile court have been: specialization of judges,
informality of the court room and of other aspects of the proceedings, rigid segregation of
juveniles from adult subjects of the criminal process at all pre-trial and post-trial stages,
protection of juvenile offenders from publicity, emphasis on discovering the cause of anti-social
behavior in the juvenile, and on the rehabilitating him through affecting his environmental rather
than on fixing his blame and punishment. In most countries the non punitive philosophy of the
juvenile court has led to the discarding of such criminal court nomenclature as <<charge>>,
<<offence>>, <<plea>>, <<conviction>>, and <<sentence>> in favor of more neutral words
with the view of protecting the juvenile from any connotation of crime and punishment.

In general, juvenile courts and boards, which have the same function in some countries,
frequently dispense procedural protections for the juvenile who is subject to such treatment as
being provided by law.

Coming to the existing Ethiopian laws, we find chapter ten of the CPC that deals about
procedures concerning young persons. Thus, issues concerning complaint and accusation, arrest,
investigation, charge, plea, trial, judgment, sentence and appeal are dealt and supposed to be
governed pursuant to provisions listed therein.

8.5. Corruption Crimes

Relevant Laws Revised Anti-Corruption Special Procedure and Rules of Evidence Proclamation
No. 434/2005 , Art 402-419 of the Ethiopia Criminal Code.

The last type of special criminal procedure to be discussed in this document is corruption
offences. Separate rules are enacted to regulate the arrest, investigation, search and seizure, bail,
injunction, restraining order, remand, prosecution, trial, evidence, standard of proof,

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confiscation, appeal, etc of corruption crimes. These provisions are mainly found under the
proclamation dealing with procedural and evidentiary matters of corruption cases and the CC.
Thus, there are special procedural and evidentiary rules pertaining to corruption offences.

An arrested person on corruption case has bail right. But, there will not be bail if the crime
entails more than 10 years imprisonment. It is not clear whether the minimum or maximum
penalty should be considered to determine bail matters. Both sides could appeal on the decision
of bail question. If there is appeal on the release of the suspect or accused on bail, it will not be
enforced in case the investigator or prosecutor brings appeal. The court has to wait for reasonable
time to let the appeal is filed. The investigator may also release the suspect on legally set
grounds. Unlike other criminal cases, the court is empowered to order other conditions besides
the bail. These conditions are prohibition of tampering with evidence, restriction of movement to
certain places, periodic reporting obligation, and prohibition of leaving the country. The court
may also grant restraining order on the properties of the suspect or accused upon request
supported by affidavit. There are also specific provisions dealing with search and seizure. The
court handling matters related to investigation of corruption crimes is only the Federal High
Court and regional high courts in their respective jurisdiction.

There are two modes of handling the trial. These are the ordinary criminal procedure approach
and the special procedure designed for conducting trial for corruption offences. The choice is
dependent upon the complexity of the matter. The purpose of the special procedure is to facilitate
the process, easy understanding of the matter and clarification of issues. For complex matters,
there will be pre-trial hearing. At this stage, there will be mainly exchange of evidence as well as
ruling on the admissibility of evidence and issue of law. There could be appeal on the rulings
made. The elements to be proved and the standard of proof are also different from other criminal
cases. The law also protects prosecution witnesses from possible attack. It tries to encourage
whistle blowing.

To sum up, like other developed criminal justice systems, the Ethiopian criminal procedure
adopts differentiated case management system. Corruption offences are one of the specially
treated areas. Even the law identifies simple and complex corruption crimes and stipulates
separate procedures to be followed. The system is like a modern high way devising different
ways to allow smooth traffic.

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 CHAPTER NINE

POST JUDGMENT PROCEEDINGS

So far we have seen that following the accusation/complaint /personal observation a police
undergone investigation and submit the report of the investigation to public prosecutor who in
turn shall take the appropriate step among which is framing a charge and file the same to the
court with jurisdiction. The court then follows the procedures and finally decides the case
according to the law. The case is decided may not be it is over there for the parties –both or one
of them may not be satisfied with the decision of the court for whatever reason. The public
prosecutor may not be happy because the accused is acquitted or discharged or has been
convicted under an article which is of lesser gravity than which he has been charged with or a
lesser penalty has been imposed on him. The accused on the other hand may not be happy on the
conviction at all or he thinks he is convicted under an article, which is more graver in nature, and
the penalty it carries or he might think the penalty, which has been passed on him is more than
what he actually deserves. The parties may feel these things and look for a means with which
they could rectify the unfairness there by look for the review of the judgment. Where no review
is sought for the parties are not unsatisfied or not interested the next step is the execution of the
judgment. There is also a possibility for pardon and amnesty. These matters are highlighted in
this chapter.

9.1. Review of Judgment by the Court of Rendition

Review of judgment by the court of rendition is a procedure, which is about reopening of a case,
by the trial court once after it pronounced judgment for various reasons. In our legal system,
however, there is no law enforce that envisaged such proceeding. The draft code prepared by the
Justice and Legal System Research Institute, however, introduces this idea of “review of
judgment” and it provides under Art 237 that ―an application to reopen a case after final
judgment may be submitted by the defendant (the convicted person) on any of the grounds
provided for by the law to the court that renders the judgment that is sought to be reopened.

The Draft Code also provided that the application for the reopening of the case is to be filed
before the court that renders the judgment against which such application is made. It also
provides that the application for review of judgment be prepared in the form of memorandum of

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appeal containing such grounds as are provided for the law as grounds of the review of the case
and to which evidence of such facts are annexed. Art 239/2/ of the draft provides that such
application be filed within sixty days of the discovery of or knowledge of the new evidence or
the discovery of the falsity of the testimony of a witness or the opinion of the expert, an
evidentiary document or a translation.

Once the application is submitted and the court received the same, the latter shall send a copy of
such application and the evidence supporting the allegation to the prosecutor to submit to the
court any objection to reopening of the case if he has any on the date fixed. However from the
reading of the provision, it is not clear as to what the ground of objection of the public prosecutor
could be. The absence of those grounds on which the application for the reopening of the case
may be based, seem to be ground for the public prosecutor to object the reopening of the case.
After evaluating the evidence(s) produced by the two parties for and against the reopening of the
case, the court shall give a ruling granting or refusing the application. Should the court grant the
review of the judgment; it shall rehear the case again. If it refuses it on the other hand, the
applicant may lodge an appeal to the next higher court as any other appeal.

What do you think is the rationale for allowing review by the court of rendition? Read Art of the
draft Criminal Procedure Code and try to find if application for reopening of a case once a
decision, which convicted the accused is rendered is possible. If so, how do you see it with the
constitutional principle of the prohibition of double jeopardy?

Art 238 of the Code provides the grounds of the application for reopening of the case once after
final judgment. These are:

I. Discovery of new circumstances, after the exercise of due diligence, were not in the
knowledge of the defendant at the time of the giving of the judgment.
II. the establishment of the falsity of the testimony of the witness or the opinion of an
expert, an evidentiary document or of a translation which has resulted in the delivery
of the judgment and which, after the exercise of due diligence, was not within the
knowledge of the public prosecutor or the defendant now the convicted person at the
time of the giving of the judgment. In times when the convicted person is unable to
file an application for reopening of a judgment for different reasons beyond his

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 control, such as, not being in a position to give his consent, his legal representatives,
spouse, ascendants or descendants, as the case may be may apply for the reopening of
the case on his behalf. It is also provided that the public prosecutor could apply on
behalf of the convicted person in the interest of justice.

9.2. Right of Appeal and Powers Appellate Court.

All the above proceedings would ultimately take us to the decision of the court. Once after the
court render decision one or both of the parties may not be satisfied with such decision, in other
words the public prosecutor may not be happy because the accused is acquitted or has been
convicted with under an article which is of lesser gravity than which he has been charged with or
a lesser penalty has been imposed on him. On the other hand the accused may not be happy on
the conviction at all or he thinks that he is convicted under an article, which is more grave that it
carries greater penalty or that the penalty imposed on to him is more than what he deserves.
Under such cases, the party may sought for remedy, one of which is lodging appeal.

Thus, appeal may be lodged either by the accused or the public prosecutor or by both as the case
may be .The convicted person obviously may appeal against his conviction or the sentence that
has been passed on him or against both. If the accused pleaded guilty as per Art 134 of the
Criminal Procedural Code, such admission serve as estoppel and the convicted person cannot
appeal against his conviction rather only in respect of the extent and legality of the sentence. In
cases of joinder of civil and criminal cases, where the court granted joinder, it shall decide on
the issues whether to grant compensation to the victim, if so the amount to be awarded as well.
Thus, if the court decided refusing the compensation, the victim may appeal against such
decision (refusal). However, where the court grants the compensation, the convicted person, who
is supposed to pay the compensation to the victim, may lodge an appeal against such decision.

It should be noted that the right of lodging appeal is given not only to the accused and victim but
it could also be made by the public or private prosecutor as against the decision of the court on
the acquittal of the accused person or on the sentence that has been passed on the convicted
person.

Though appeal is recognized as a fundamental right, constitutional right, too, of any aggrieved
party to the case there are certain legal conditions and limitations to the exercise or this right.

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The law provides that there is no interlocutory appeal or there is no appeal on decisions on
interlocutory matters. Stated other ways appeal is possible only in respect of final decisions.
Can a person convicted on a guilty plea challenge the conviction on the ground that the plea of
guilty is not properly handled? What is meant by interlocutory matter? Art 184 of the CPC
provides only three classes of interlocutory matters from the decision of which no appeal lies.
These are:

i) granting or refusing an adjournment under Art 94 of criminal procedural code; or

ii) regarding an objection under Art 131 of criminal procedural code; or
iii) Regarding the admissibility or non admissibility of evidences under Art 146 of criminal
procedural code.

Thus, we can understand that interlocutory decisions are decisions which do not dispose the case
finally- finally in respect of that particular court which is trying the case. An adjournment may
be granted or refused; the objection of the accused saying, for instance, the case is pending in
another court or he has been charged and acquitted or convicted for the same offence may be
sustained or granted; the objection of the party on the admissibility of item of evidence may be
sustained or rejected by the court.

We have seen that appeal is a right of any aggrieved party yet it could only be exercised once. A
person can make an appeal from the decision of Federal First Instance Court to Federal High
Court and from decision of the Federal High Court to Federal Supreme Court. However, there is
what we call “second appeal” in respect of matters that were decided by Federal First Instance
Court. That is if the Federal High Court, in its appellate jurisdiction varies or reverses the
decision of the Federal First Instance Court, a party dissatisfied with such decision may lodge his
appeal to Federal Supreme Court. Whatever the decision of the Federal Supreme Court may be,
its decision is final legally and practically as there is no higher court. If the Federal High Court,
on the other hand, confirms the decision of the Federal First Instance Court, however, there is no
second appeal to the Federal Supreme Court.

It has been provided that the party who is not satisfied with the decision of a court, if he wants to
lodge his appeal to the next higher court, it shall submit his notice of appeal to the court which
renders the judgment in respect of which appeal is sought . Such notice, however, shall be filed

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to the court within fifteen days of the delivery of the judgment. The court then prepares the copy
of the judgment appealed against and hands to the appellant or his advocate without delay.
Where the appellant is in custody the copy shall be sent to the superintendent of the prison,
where he is confined in, for service on the appellant. The date on which the copy is handed to the
appellant, his lawyer or the superintendent of the prison shall be fixed on the copy by the
registrar of the court.

The law provides that the memorandum of appeal, the notice of appeal and the copy of the
judgment shall be filed in the registrar of the court, which renders the judgment appealed against.
Where the appellant is in custody, the superintendent of the prison where in the appellant is
confined shall forward the memorandum of appeal without delay to the court against whose
decision an appeal is made. It sounds that the law envisages an integrated work between the
different level of courts and the court which renders the judgment against which the appeal is
made shall forward the memorandum of appeal as accompanied by the notice of appeal and the
copy of the judgment.

Memorandum of appeal shall contain the grounds of objection to the judgment appealed against
in a very concise way and without argument. If the objections are more than one, they shall be
listed under separate headings and numbered consecutively. It shall also state the nature of the
relief sought and be accompanied by the judgment. Finally, it shall be signed by the appellant
and his advocate, if he has any.

For appeal is to be lodged to the next higher court, first instance courts do not have appellate
jurisdiction. Appeal from the decision of Federal First Instance Court lies to the Federal High
Court. Appeal form Federal High in its first instance or appellate jurisdiction where it reversed or
varied the decision of the Federal First Instance Court lies to Federal Supreme Court. If the case
has been tried by regional high court, in its delegated jurisdiction appeal lies to the Regional
Supreme Court. Once the case is taken to the Supreme Court, both Federal and Regional, no
appeal lies for there is no higher court. There is but a possibility for cassation.

Up on receipt of the memorandum of appeal, if the appeal is based on the record of the court and,
if the court, after going through the documents produced, is satisfied that the grounds of the
appeal are not justified, some argue that, the court may dismiss the case even without calling the

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respondent. Where the appellant relies, however, also on other things such as calling additional
witnesses or producing other evidences, a copy of the statement of appeal shall be served on the
respondent.

The appellant in filing his appeal primarily sought for the review of the judgment but if he has
been so convicted and is serving the sentence, he may also request for the stay of the execution
of the sentence of imprisonment. Such application, for stay of execution of the judgment may be
made to the court of appeal at any time before the appeal is heard or during the hearing of the
appeal. No guideline as to how or on what grounds the court has to grant or deny the application
for the stay of execution.

Is it legal for the appellate court to reject appeal without calling the other party like that of the
law and the practice in a civil case? What possible grounds do you envisage for the court to grant
stay of execution of the judgment rendered as against which appeal is lodged?

Though the law specified the period within which a person could legally file his appeal, it may
not be possible for the appellants to do so because of some reasons in which case Art 191 of the
Criminal Procedural Code provides solutions, which would enable late appellants file an
application for leave to appeal out of time. Thus, the appellate court may grant the appellant
lodge his appeal even after the lapse of the time provided by the law if it is satisfied with the
reasons the appellant stated in his application. Before granting such appeal be made, the court
must be satisfied that the cause for the appellants delay is not within his control. Whilst the court
grants leave to appeal out of time, it shall fix the date within which the memorandum of appeal
be field to the registrar.

If appeal is field to the court, the later shall fix the date for hearing and the parties be notified of
such date so that they can appear. It is the appellant who shall normally open his case then, the
respondent reply and the appellant be given to reply. If the appellant or his advocate fail to
appear after dully being notified of the date for hearing, the appeal shall be struck off, unless he
can show to the satisfaction of the court that he was absent for reasons that are beyond his
control, after which the case may be restored to the list. However, if the respondent fails to
appear, the appeal shall be heard in his absence.

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Normally, appeal is based on facts and evidences which were raised during the lower court but if
the appellate court deems the production of additional evidences is necessary for justice, it may
order the production of such additional evidences on its own motion or accept the application of
the parties to this effect.

Pursuant to Art 195 /2/ of the Criminal Procedural Code, the possible decision of the appellate
court once after going through the appeal as:

i). on an appeal from an order of acquittal or discharge reverse such order and direct that the
accused be tried by a court of competent jurisdiction or find him guilty and sentence him
according to the law ; or

ii). on an appeal from conviction and sentence

a). reverse the finding and sentence and acquit the accused; or

b). with or without altering the finding maintain, increase or reduce the sentence.
iii). on an appeal from conviction only reverse the finding and sentence and acquit the accused;
iv). On an appeal from the sentence, only maintain, increase or reduce the sentence .

Where the court confirms the decision appealed against, there is no second appeal. If the
appellate court reverses or varies the decision of the lower court, be it on guilt or sentence, a
second appeal lies to the next higher court.

Sometimes an appeal may concern several convicted persons but only one of them lodged the
appeal, the court may order that the judgment be applied also to the other convicted persons as
though they had appealed where: a. the judgment is to the benefit to the appellant; and, had the
accused been appealed they would have been benefited similarly.

Do you think that the appellant court can render decision which is prejudicial to the appellant i.e.
to the convicted person? How is the practice in your locality? If your answer to the above is in
affirmative, is not the court giving a decision on issues up on which no appeal lies, for the
public/private prosecutor did not lodged an appeal?

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9.3. Review in cassation

Be it once or twice for appeal a case has to come to an end sometime. This, however, does not
mean that the case is dispensed correctly nor that the parties are satisfied with such decision.
Thus, leaving the case untouched might result in further injustice. To combat this, the law
devises a mechanism for review of cases finally decided by way of cassation.

Review of cases by cassation is the power of the supreme judicial bodies be it federal or regional.
Thus, it is the power of the federal or regional supreme courts to review cases that were finally
decided by subordinate courts or itself and which have exhausted appeal.

Art78/2/ of the FDRE Constitution provides that the supreme federal judicial authority is vested
in the Federal Supreme Court and thus, it has the power of cassation over any final court;
decision containing basic error of law.

Decisions over which the Federal Supreme Court has cassation power are listed under Art 80/3/a/
of the FDRE Constitution as:

 final decision of the Federal High Court rendered in its appellate jurisdiction;
 final decision of the regular division of the Federal Supreme Court; and
 Final decision of the regional Supreme Court rendered as a regular division or in its
appellate jurisdiction.

Does state supreme courts have inherent cassation power?

Once a case has been decided by a court finally but one or both of the parties are dissatisfied and
want to lodge appeal, appeal lies to the next higher court on the issues of either law or facts or
both. Upon receipt of the memorandum of appeal the appellate court may dispose the case
having regard to the preliminary matters or consider the merit of the case depending on the
grounds of the application. The court may reject the appeal, or upon the admitting, the appeal
court may confirm, vary or reverse the decision of the lower court based on issue of law or fact
in respect of both or either issue guilt or sentence.

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For the Federal Supreme Court to review a case by cassation, first the case must be finally
decided by the subordinate court or by itself as in the cases discussed above and the decision
should contain fundamental error or law.

To see whether the conditions required for a case to be reviewed by cassation are fulfilled or not,
a panel of three judges of the Federal Supreme Court sees the application. The three judges then
evaluate whether there is a fundamental error of law, in the absence of which they shall reject the
application as implied from the provisions. In doing so they are making a kind of some
preliminary selection of cases which may be reviewed by cassation and which are not. Thus, the
application should contain the reasons for claiming the grounds for review by cassation i.e. there
is a fundamental error of law in the final judgment against which review is claimed in which it is
implicit that appeal has been exhausted and the case has been finally decided. An application
for review of a case by way of cassation shall be filed within ninety days from the date of final
judgment against which the applicant is claiming review and such application shall be
accompanied by copes of such judgment and the judgment of the first lower court in respect of
which appeal had been lodged before the second lower court, which rendered the final judgment.

The cassation court reviews a case only if it contains fundamental error of law and not error of
law(s). Though the law says this, the cassation courts practically reviews fundamental errors of
facts in not few cases.

Define what fundamental error of law mean

The five, at least, judges at the cassation division then may reject the application on the ground
that there is no error of law or the said error of law is not fundamental, however, if it finds the
application valid it would accept and examine the case, then finally renders a judgment, confirm,
reverse or vary the decision of the appellate court. Ethiopia is getting the common law legal
system in to it by making the decision of the Federal Supreme Court decision in their cassation
power to be final and binding up on all other similar cases to be decided by subordinate court.
Thus, such decisions are becoming what we call case laws or judge made laws. Any subordinate
court, therefore, is duty bound to refer to these kinds of decisions in dealing with cases of similar
nature and has to cite such decisions in their judgments, just like it cites any other relevant laws.

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9.4. Execution

A judge at the end of the judgment in general and the sentence in particular write, among other
things an order to the pertinent organ normally prison administration or police to effect the
execution of the judgment for a mere decision without it being executed is nothing. Readers are
advised to read the material on Law of Execution and Enforcement prepared by Justice and
Legal System Research Institute.

9.5. Pardon and Amnesty

Relevant Laws Art 28, 74/7, FDRE Constitution Art 229-231, Criminal Code, Procedure of
Pardon Proclamation No. 395/2004

Pardon and amnesty are possible avenues for persons convicted and sentenced for committing
crime. Amnesty can be available before prosecution or judgment. The other major distinction
between the two lies on their effect on the criminal record. Pardon does not cancel the criminal
record. However, in case of amnesty, the convicted persons will be made free of negative
consequences of criminal record which is considered to be absent.

Both may be granted conditionally or unconditionally. In case it is given upon the fulfillment of
certain conditions, there is a possibility for the enforcement of the judgment for failure to comply
with those conditions. They may also be made for the whole or part of the penalty.

However, there is a limitation upon the power of the government to grant pardon and amnesty.
The FDRE Constitution prohibits pardon and amnesty for crimes against humanity as defined by
international agreements ratified by Ethiopia and other laws of the country. These include
genocide, summary executions, forcible disappearances and torture. But, the President of the
nation could commute death penalty into life imprisonment.

As regards their effect on civil liability, the Criminal Code provides that the civil remedy is not
affected. The law tries to distinguish between reparations made and damages paid to private
persons and the state. Unless there is reservation on the order granting pardon and amnesty,
damages to be paid to the state will be remitted automatically. But, the wording of the law is
subject to controversy. It says costs payable to the state. It may be costs of the criminal
proceeding or the damage incurred due to the commission of the offence.

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Thus, pardon is available for convicted and sentenced persons. Amnesty is possible for persons
not yet prosecuted or convicted. Committing certain categories of crime could be a ground to
absolutely bar the possibility of pardon and amnesty. They could be made conditionally or
unconditionally. The civil effects remain in relation to private persons. Amnesty has the
advantage of deleting criminal record.

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