Legisprudential Evaluation of Ethiopian Criminal Law-Making (original) (raw)
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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.
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.
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.
The change in the political landscape always affects the criminal justice system one-way or the other. The adoption of FDRE Constitution is meant to mark a clear break from the past. A third of the Constitution is devoted to fundamental rights and freedoms. The Constitution incorporates the “process values” in the administration of the criminal justice. The basic framework of the criminal procedure laid in the Constitution is much more detailed than what is common for a constitution. More than a decade after the adoption of the Constitution, however, the administration of criminal justice system is not any different from what it was before the adoption of the Constitution making the functional addition of the Constitution marginal. This is attributable to numerous inseparably connected legal and non-legal variables which have significant impact in the administration of the criminal justice. Those variables relate both to the norms and institutions of the criminal process, can generally be put under three categories: legal gaps, lack of proper understanding of the criminal process and politicisation or disregard of the criminal procedure law – creating a significant discordance of the law and the practice. This short essay highlights some of the challenges in the administration of the criminal justice system. The first two sections deal with the norms. As the basic framework of the criminal justice administration is laid down in the Constitution, it is the single most important document for the criminal justice process. Thus, Section I deals with the challenges in the interpretation and application of the constitutional provisions regarding the criminal process. Section II dwells on the politics of the criminal process by examining the role of the lawmaker in the administration of the criminal justice through its lawmaking power. Section III deals with matters of enforcement; it examines the courts and prosecution office – the two important legal actors.
Bahir Dar University Journal of Law , 2024
While a constitution vests (limited) power on a government, criminal law may be used to effectively deny power to any contending party (group). This article argues that besides achieving its legitimate ends of prevention of crime, the criminal law is used to govern the country by denying power to contending parties. This is done based on the analysis of the adoption of the respective constitutions, the adoption of the criminal laws and the attending sociopolitical circumstances of the adoption of the criminal law.Emperor Haile Selassie adopted the 1930 Penal Code on the day of his coronation which is later sanctioned by the 1931 Constitution which makes his power perpetual "divine right". When the Provisional Military Government had come to power, it adopted a Special Penal Code to be applied by a Special Courts-Martial, and the PDRE Constitution came only 13 years later. Likewise, as soon as EPRDF came to power, it detained the previous regime officials, both civilian and military, in the first few days. It is only after such action that the Transitional Period Charter was drawn up.
Over Criminalisation 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
2013
The administration of the criminal justice system t ries to strike a balance between the search for truth and the fairness of th e process. To this end, the law should protect individual rights and impose various legal burdens on the state. One such tool is the principle of the presumption of innocence until proven guilty. This is a constitutional principle under Ethiopia n l w and requires the public prosecutor to prove each element constitutin g the crime which, as argued in this article, should be proved beyond reasonable doubt. However, this principle is being violated by various subsidiary l aws, procedures and practices. First, there are various provisions in the criminal law that limit (or arguably disregard) this constitutional principle. Such crim inal law provisions assume as proved the existence of some of the elements of cer tain crimes without requiring the public prosecutor to submit evidence. S cond, the Criminal Justice Administration Policy adopted in 2011 conte mpl...