Eritrean Customary Laws ‘Old-Modern’ Treasures For Introducing an Effective Sentencing Regime – the “Just Desert” System (original) (raw)

Paper No. 3 Ensuring Access to Justice Through Community Courts in Eritrea Traditional Justice

and Uganda, aimed at expanding the knowledge base regarding the relationship between the operation of customary justice systems and the legal empowerment of poor and marginalized populations. Articles in the series discuss key aspects of traditional justice, such as for example the rise of customary law in justice sector reform, the effectiveness of hybrid justice systems, access to justice through community courts, customary law and land tenure, land rights and nature conservation, and the analysis of policy proposals for justice reforms based on traditional justice. Discussions are informed by case studies in a number of countries, including Liberia, Eritrea, the Solomon Islands, Indonesia and the Peruvian Amazon. The project is implemented in partnership with the Van Vollenhoven Institute for Law, Governance and Development of Leiden University (http://law.leiden.edu/organization/metajuridica/vvi/), and it will culminate in the publication of an edited volume on the relationship between traditional justice and legal empowerment. The volume, featuring articles by some ten leading authors, country specialists and practitioners working in the areas of traditional justice and legal empowerment, will be the third in IDLO's book series Lessons Learned: Narrative Accounts of Legal Reform in Developing and Transition Countries. Consistent with the thrust of the series, IDLO's traditional justice book and online papers seek to identify successes, challenges and lessons springing from the integration of law and development. DONOR SUPPORT This publication is based on research funded by the Bill & Melinda Gates Foundation (http://www.gatesfoundation.org). The findings and conclusions contained within are those of the authors and do not necessarily reflect the positions or policies of the Bill & Melinda Gates Foundation.

“Over-criminalisation”: A Review of Special Penal Legislation and Administrative Penal Provisions in Ethiopia

Criminalisation is the most intrusive state action; as such, it requires strong justification. Looking merely at the doctrinal justifications, in the common-law system, harm is the single most important justification for criminalisation. In the continental system, however, there are positive and negative requirements to be complied with. The positive requirement is that the law is intended to protect ‘legal good’. Such legal good covers interests that are essential for the social existence of the individual. The negative requirement is ultima ratio. Further, when the criminal law is used, the means-end proportionality is required to be maintained. The criminal law is one body of law. Thus, the General Part of the criminal law is applicable to offences stated both in the Special Part of the Criminal Code and those stated in special penal legislation or penal provisions contained in administrative regulatory legislation. The notion of legal good is incorporated into Art 1 of the Criminal Code in broader context as ‘common good’. However, the law maker adopted several pieces of penal legislation and extensive penal provisions contained in administrative regulatory legislation contrary to such ‘legislative promise’. In those penal provisions, the law maker criminalises conducts that were already criminalised in the Criminal Code, save they increase the punishment. The legislator criminalises conducts contrary to the principles of criminalisation, including the principles in the General Part of the Criminal Code, such as, the principle of legality and the principle of lenity. The legislator is consistent in choosing increased penal sentence both in absolute and relative standards. It is this excessive use of criminal law and excessive punishment that is presented as over-criminalisation.

An Evidence Code for Eritrea: Towards More Predictable Trials and Fairer Judgments

International Commentary on Evidence, 2015

Eritrea does not yet have a comprehensive evidence law. Draft Evidence Rules were prepared in Ethiopia, whose legal system Eritrea has essentially adopted, but were not enacted and the void intended to be filled by those rules has not yet been filled. In this article the author first counters the reasons for absence of comprehensive evidence law for Eritrea. He argues that a separate evidence law fits into the Eritrean legal system and will contribute to uniform trials and fairer judgments in Eritrea and briefly describes the contents of the Draft Evidence Code of Eritrea.

Legal Theory in Interpretation of the Ethiopian Criminal Law

Mizan Law Review, 2020

The criminal law is adopted as a means of achieving the common good; it is interpreted and applied by the court. The judge chooses the type of legal theory and method to employ in the interpretation and application of the criminal law. Such theories may be acquired from higher norms or from the decision of the Supreme Court. Because such choice of theory and method determines the outcome of the case, the judge is also expected to be guided by the doctrines in criminal law inspired by the values of rule of law and respect for fundamental rights, enshrined in the Constitution. This article examines how courts harmonise the application of the positive criminal law with the non-positivist theories of higher norms. After reviewing various criminal rules and their judicial application, it finds that the court applies the criminal law as it is written in disregard of the non-positivist theories of higher norms, at times in contradiction to the basic doctrines of the criminal law itself.

Exploring the Success of Sentencing Guidelines

Exploring the English Model, 2013

To date, the literature on sentencing reform has largely focused on western jurisdictions, particularly the United States and Europe. Developments in other parts of the world, particularly on the African continent, have been overlooked. This article explores sentencing in a lesser-known African jurisdiction: Ethiopia. The focus of the essay is upon the issue of structured sentencing. Sentencing in Ethiopia, like most jurisdictions, has historically been a very discretionary stage of the criminal process. That has now changed with the introduction of a comprehensive guideline scheme. Although sentencing guidelines in the US and England and Wales have been the subject of much critical scrutiny, nonwestern guidelines have attracted very little attention from scholars. Although there are parallels between the structure of the Ethiopian system and guidelines in other countries, there are also important differences. Since they are more developed than guidelines in adjacent countries, the Ethiopian guidelines constitute a model for other regional nations, including those with a post-colonial legacy. After providing an overview of sentencing in Ethiopia, the article describes the origin, nature, and consequences of the Ethiopian guidelines. The guidelines provide sentence ranges for different levels of seriousness for many crimes, and also prescribe a methodology to guide courts sentencing for offences for which no such guidance exists. They also provide some structure for the judicial use of mitigating and aggravating factors at sentencing. We conclude by identifying some deficiencies of the current guidelines and propose some specific remedies.

Ethiopia's Criminal Law Evolution from the Perspectives of Major Legal Theories: An Overview

2022

This article reviews the various theories of law applied throughout the modern development of the Ethiopian system of rules from a criminal law perspective. As is elsewhere, the initial influences mainly relate to the natural law theory. Later, positivisation evolved as part of the modernisation of law. Further, as part of the modernisation of society, the social theory of law evolved. With the PMAC coming to power, the Marxist theory of law crept in. The excessive connection between law and politics glamoured the instrumentality of the law. This got prominence in the post-2005 election in Ethiopia. The theories of law are abstracted from the manner the laws were designed, or the way they are implemented. The discussion looks into the difference between the statutes and the application of criminal law. Further, it shows that legal theory has a method aspect. I finally argue for the pragmatic instrumentality of the law.