Ethiopian Criminal Procedure
Teaching Material
Prepared by: Aderajew Teklu
Kedir Mohammed
Sponsored by:
Justice and Legal System Research Institute
March, 2009
Addis Ababa
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Criminal Procedure, Basic Concepts, Different Jurisdictions, Understanding of the Law, Text and Materials, Reference Material, Constitutional and Statutory, Criminal Procedure Rules, School Library, Collection and Photocopying. This is not a lecture notes. Its teaching material for a complete course. It was prepared by faculty of law.
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Ethiopian Criminal Procedure
Teaching Material
Prepared by: Aderajew Teklu
Kedir Mohammed
Sponsored by:
Justice and Legal System Research Institute
March, 2009
Addis Ababa
i
Preface
Criminal procedure is one of the mandatory courses taken in undergraduate level legal studies. The subject matter is interconnected with human rights. As a result, it raises multifarious problems of constitutional and legal significance.
Addressing issues pertaining to criminal procedure of a certain country definitely requires dealing with basic concepts and rules on the area. In addition, exploring the way criminal cases being handled in different jurisdictions allows having a deeper understanding of the law. These in turn necessitate the presence of up-to- date text and materials.
The preparation of this work has been undertaken with a view to provide a text and compiled reference material so that students critically reflect on questions pertaining to Ethiopian constitutional and statutory criminal procedure rules.
At this stage, it is prudent to acknowledge the support of various persons for the successful accomplishment of the job. We wish to express our gratitude to Addis Ababa University Law School Library and Ethiopian Civil Service College Library staff members for their cooperation in the collection and photocopying of the relevant materials. We would like to thank W/o Fikirte Shiferaw and her brother Yeabsira Shiferaw for their writing and editing the document. Finally, we want to appreciate the facilitation work of the Justice and Legal System Research Institute Curriculum Implementation Committee members. Aderajew Teklu Kedir Mohammed March, 2009 Addis Ababa
iii
- 2.2. Summons and Arrest - 2.3. Police Investigation - 2.4. Confession - 2.5. Search and Seizure - III. Post Arrest Procedures - 3.1. Remand - 3.2. Release on Bail - 3.3. Habeas Corpus
- IV. Prosecution and Preliminary Inquiry - 4.1. Prosecution - 4.2. The Preliminary Inquiry
- V. The Charge - 5.1. Framing the Charge: Form and Content - 5.2. Amendment
- VI The Federal System and Jurisdiction of Courts
- 6.1. An Overview of the Court System in the Ethiopian Federal Set up
- 6.2. Criminal Jurisdiction of Courts
- VII. The Trial
- 7.1. Fair Trial Rights and Trial Proceedings
- 7.2. Preliminary Objections and their Consequences
- 7.3. Plea of accused
- 7.4. Opening of Cases and Presentation of Evidences. iv
- 7.5. Post Evidence Procedure
- VIII Special Procedures Leading to Judgment - 8.1. Private Prosecutions - 8.2. Default Proceedings - 8.3. Summary Proceedings: Petty Offences and Contempt - 8.4. Juvenile Procedures - 8.5. Corruption Crimes
- IX. Post Judgment Proceedings
- 9.1. Review of Judgment by the Court of Rendition
- 9.2. Right of Appeal and Powers of the Appellate Court
- 9.3. Review in Cassation
- 9.4. Execution
- 9.5. Pardon and amnesty
- IX. Post Judgment Proceedings
- References
INTRODUCTTORY MATTERS
1. Introduction
A crime is a socio-economic and political problem in any society. That is why actions thought to be against the interest of a community have been criminalized and punished since time immemorial. Be that as it may, care has to be taken in order to avoid or at least reduce the danger on human rights in the running of the criminal justice system. To what extent it is allowed to affect the rights of persons so as to maintain law and order is a controversial issue. This means- end and the related procedural and substantive justice debate underlying the study of criminal procedure.
To address systematically the salient aspects of the law of criminal procedure, the whole document is divided in to nine major chapters. The division is done mainly on the basis of the sequential orders of the whole process of the criminal justice.
The beginning chapter grapples with the background of the course. As can be observed from its content, it lays the foundation for the subsequent parts. It tries to highlight the concept, essence and development of criminal procedure, including history of Ethiopian criminal procedure. The legal source of the law both constitutional and statutory is also covered with particular emphasis on applying it to a federal system as our country follows that line. In addition, major orientations of criminal justice systems are included. These are the ‗Due Process‘ and ‗Crime Control‘ models. The adjudication process of the adversarial/ accusatorial, inquisitorial, and mixed systems is not also disregarded.
Chapter two directly indulges in to the main part of the course. It explores the early phases of the criminal justice system. Conditions leading to the functioning of the criminal justice system are treated. Besides, subsequent steps in the process, such as, summons, arrest, police investigation, confession, identification procedures, search and seizure, and remedies available for any kind of illegality committed on the process are discussed.
A person arrested has to be brought, as soon as possible, to the nearest court. Ascertaining the legality of the arrest, the court may allow bail or further investigation being in the hands of the police. In case the state authorities fail to bring the arrested person to court, one may use habeas corpus for that purpose. Thus, remand, bail, and habeas corpus are the subject matters of the third chapter.
Prosecution is one of the main activities done in the criminal justice process. It includes decision to prosecute or discontinue prosecution, ordering further investigation, preliminary hearing, etc. The fourth chapter grapples with these issues.
The fifth chapter is an extension of the fourth. It is restricted to the charge. It concerns how to frame a charge after the public prosecutor being convinced to do so, and its amendment.
The next chapter explores jurisdiction of courts, change of venue, and withdrawal of judges. It includes the three types of court jurisdiction, namely, judicial, material, and local jurisdiction.
Chapter seven is devoted to the trial. The trial can not be well conducted without the necessary preparations. Accordingly, it covers both the pre-trial procedures and the trial.
The gravity and complexity of crimes are not the same. For instance, murder rape, treason, robbery, corruption, etc are grave and complex. On the contrary, crimes, such as, insult, minor bodily harm, and violation of traffic regulations are less complex and grave. Besides, the perpetrators of crimes could be adults or minors. Juvenile delinquents require differential treatment due to the level of their psychological, social, mental and physical development. It is not prudent to handle every criminal case in a similar fashion. Accordingly, modern criminal justice system is in favor of differential treatment of criminal cases depending upon their complexity, gravity, and the nature of the perpetrators of a crime. Hence, chapter eight is about special criminal procedures like private prosecutions, default procedures, contraventions, court contempt, juvenile delinquency, and anti-corruption cases.
messages of the case. With regard to Ethiopian cases, we have tried to translate and brief the cases identifying the facts, issues, decision and reasoning of the court finally disposing the case. Foreign and Ethiopian court cases are presented in this way to save time and energy of students.
At this juncture, it is worth emphasizing the core guiding principles of the text and materials. The main objective is to help students in their effort towards understanding Ethiopian constitutional and statutory criminal procedure rules. As a result, the spring board is all the time the relevant provisions of the FDRE Constitution, the CC, and criminal procedure laws, basically, the CPC. This demands continuous reference to the appropriate laws. Internationally accepted criminal procedure values, principles, and rules as well as the laws and practices of other countries are explored to illuminate Ethiopian constitutional and statutory criminal law procedure. Thus, the course material does not have the purpose of disregarding the law. It is rather aims at exposing the law.
The other crucial point is grasping the function of the document. Although it has immense merit in providing easy reference material for the study of the course, it does not in any way gives answers to the contentious living issues surrounding the course. It is independent critical thinking that helps to address problems. In this regard, the course developers have attempted to coin discussion questions and problems. They are expected to provoke thought. Besides, the document is a mandatory material to be consulted, it is not an exclusive source. Students could make a further reference to any writing relevant to the topic. The wide reference materials indicated at the end of the document make the venture simpler.
Finally, the CPC is in the process of revision. However, this does not mean that totally a new law fundamentally different from the present or unrelated to basic values, principles and rules of criminal procedure will be issued. As it can be observed in due time, the CPC, though it has defects, contains core modern values, principles and rules of criminal procedure. These should be realized and applied.
The orientation adopted is not also restricted to the exposition of the CPC. It is to inculcate modern values, principles, and rules of criminal procedure. This enables to understand the gaps
and ambiguities found in the CPC so as to find solutions. Accordingly, students are supposed to view criminal procedure from a wider perspective.
Virginia statute provided that in certain cases the health of the patient and the welfare of society may be promoted by the sterilization of mental defectives. The superintendent of the state colony where Carrie resided could recommend to its board of directors that the sterilization occur. The sterilization was ordered, and although Carrie may have been mentally deficient, she understood what was about to happen to her and filed an appeal.
The country circuit court as well as the Virginia Supreme Court of Appeals both affirmed the sterilization decree, stating that the sterilization law was a ―blessing‖ for ―feebleminded persons‖ like Carrie Buck. Her lawyers then appealed to the U.S. Supreme Court on the grounds that the substance of the Virginia law represented a denial of due process, that the law was arbitrary, capricious, and unreasonable; and that it was a violation of the Fourteenth Amendment guarantee of equal protection. Chief Justice Oliver Wendell Holmes, Jr., upheld the Virginia statute, making the following comment:
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough.
Carrie Buck was ultimately sterilized, but the philosophy of Buck v. Bell has sing been subjected to heavy criticism. Nevertheless, the case illustrates the concept of substantive due process and its inherent problems.
In Skinner v. Oklahoma, which was a test of the constitutionality of Oklahoma‘s Habitual Criminal Sterilization Act in 1942, the Supreme Court ruled differently. Arthur Skinner was to be sterilized because he was a three-time habitual offender. (One of the felonies the prosecutor cited was the theft of three chickens.) The Court struck down the sterilization law because it denied both substantive due process and equal protection, since it applied only to felony offenses likely to be committed by poor people while not considering such felonies as embezzlement, political offenses, and other crimes likely to be committed by more affluent defendants. In
retrospect, the fact that Skinner was about to be sterilized party because he was a chicken thief points to the unfairness and cruelty inherent in the Oklahoma statute.
An interesting area of law that has raised questions of substantive due process involves the rape shield statutes that exist in most jurisdictions in the United States. Rape shield statutes are laws that protect alleged rape victims from questioning in Court (and depositions) about evidence of past sexual experiences that are not relevant to the case and that be prejudicial…
Procedural Due Process^3
Neither Buck v. Bell nor Skinner v. Oklahoma had any argument with procedures through which the decision to sterilize had been made. Rather, they were attacking the substance of the laws that demanded sterilization. By contrast, procedural due process is concerned with the notice, hearing, and other procedures that are required before the life, liberty, or property of a person may be taken by the government. 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
United States v. Valdovinos-Valdovinos represents a good case example involving violation of procedural due process. In fact, the U.S. District Court for the Northern District of California considered the government‘s conduct so outrageous that the charges had to be dismissed.
In Valdovinos-Valdovinos, the Immigration and Naturalization Service (INS) was attempting to stem the flow of illegal immigrants from Mexico. Its major method of doing so was a ―cold line,‖ an undercover telephone operation in which agents posing as U.S. employers offered to reimburse immigrants for their smuggling expenses and give them jobs. The INS used the
(^3) Id.
did not involve compensation to the victim. In short, the criminal law began to assume one of its most distinctive features, namely, that it is concerned with public wrongs. … The Civil Law^5
The civil law tradition is the most pervasive legal tradition in the world. It is found throughout Western Europe, in Latin America, and in parts of Africa and the Far East. Indeed, it was historically the basis of law in socialist countries, and socialist law, while classified separately, has many elements of the civil law remaining. As explained earlier, the civil law is sometimes called Romano-Germanic law because of its historical roots.
The Civil Law is code law. It is like the Ten Commandments of Moses that were published so that all people could know and follow them. Four major codifications of law, each building on the previous one, are involved in the history of the Civil Law. These are the Roman Law of the emperor Justinian, the Canon Law of the medieval Catholic Church, the Napoleonic Code of early nineteenth-century France, and the German Law of the people (Buergerliches Gesetzbuch) that was compiled under Bismarck after the German Empire was established in 1870. In each case, the legal code derived from earlier laws, customs, and informal regulations…
Writing a set of laws is not as simple as it may sound. As in writing constitutions, the framers must be concise, must cover all contingencies, and must not depart radically from accepted custom. The laws must be at once general enough to allow for particular cases to be fit into the scope of legal rules and specific enough to provide adequate guidance for those whose job it is to administer the law. The various incarnations of the Civil Law met these requirements with varying degrees of success.
(^5) Erica Faircild and Harry R. Dammer, Comparative Criminal Justice Systems , (Belmont: Wadsworth, 2nd (^) ed., 2001), pp. 47-48.
The Common Law^6
The common law is more ancient, more complex, and more difficult to deal with than the French or German Civil codes. In Anglo-Saxon countries, its relative peculiarities have shaped not only the legal tradition but also a good part of the legal education, criminal procedure, and general approach to law and government…
The Modern History of Common Law^7
With the decline in the power of the monarchy and the ascendancy of parliament, the English court system stabilized; judicial independence was taken for granted and no longer considered a problem by the English rules. Even Oliver Cromwell and his puritan followers, who overthrew the Stuart kings and established a commonwealth in England between 1648 and 1660, feared the possible destabilizing effects of sweeping changes in the law. Cromwell thus made no major effort to supersede the common law (Prall, 1966). The English legal system remained a complex system of rules and precedents, interpreted with small shades of meaning and requiring a body of legal expects to deal with it. These legal experts had to save long apprenticeships to become familiar with the vast number of cases and precedents that would govern their decisions.
The Development of Criminal Procedure^8
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
(^6) Ibid., p.51. (^7) Ibid. , pp. 52. (^8) Ibid. , pp. 52-53.
proceedings could result in deprivation of life, and liberty. Upon conviction, death penalty and imprisonment could be imposed. There could also be confiscation and fine. This loss of property is accompanied by social stigma. The situation is different for civil liability. The latter has predominantly pecuniary effect. So, criminal procedure is very much related with human rights.
Human rights are birth rights of every person. A state has the responsibility to respect and protect them. Limitations are permitted only for the sake of protecting the rights of others and public life in accordance with the law.
Given the value attached to human rights, they have constitutional significance in any society. That is why it is common to find bill of rights in most modern constitutions. They do have the nature of limiting state power. There should not be loss of life, liberty, and property without due process of law. This principle is a manifestation of rule of law. Thus, rule of law imposes upon a state the duty to respect and protect human rights.
Due process of law has two major components. These are substantive and procedural. The former 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. On the other hand, the latter pertains to the means of implementing them. It does not concern with the essence of the laws enforced. Rather the issue surrounds their mode of application. 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 addition, the formulation of substantive rules could affect procedural issues. For example, the penalty provided in the law is taken into account to decide bail or punishment. Thus, the distinction between substantive and procedural justice is elusive.
Criminal procedure and criminal law developed side by side. The primitive society relied on self- help. This was changed to compensating victims through public process. Then there was a shift
in the perception of crimes. They have been viewed as wrongs against the public instead of the person affected. This has made government to take the responsibility to have those in contravention of the criminal law to be judged through the efforts of government institutions. The protection of the rights of a suspect or accused has got attention through time. Thus, the development of criminal procedure rules is inseparable from the growth of substantive criminal law.
Therefore, criminal procedure rules govern the process of detecting, arrest, investigation, adjudication, punishment, and execution. It is connected with the enjoyment of human rights. Consequently, it is prohibited to restrict human rights without due process of law. For the promotion of rule of law, constitutional and other legal limitations have to be respected.
Discussion Questions
- Distinguish between criminal law and procedure.
- What is the nexus between criminal procedure and constitutional law?
- What is due process of law?
- Compare and contrast criminal procedure and due process of law?
- ―Substantive due process refers to the content or subject matter of a law‖. Explain
- ―…procedural due process is concerned with the notice, hearing, and other procedures that are required before the life, liberty, or property of a person may be taken by the government‖. Discuss.
- Explain the distinction between substantive and procedural due process of law in relation to the pertinent provisions of the FDRE Constitution, the CC, and CPC.
- Is criminal procedure a means or an end?
- Describe the role of criminal procedure in the promotion of rule of law.
- What is the purpose of criminal procedure?
- What is the significance of studying the history of criminal procedure?
- Describe the development of criminal procedure and identify the major differences between primitive and modern criminal justice systems.