Justice in Law 

Justice in Law

The series of visuals in this section illustrate how the justice system ought to function according to the laws of Ethiopia. Each procedure is set down according to the legal proclamation by which it is governed.

So the review of each stage of the criminal justice process is set down with direct reference to the Criminal Procedure Code Proclamation 1961, so to with the Sharia courts, Child justice and Chartered Cities.

The illustration to show the hierarchy of courts shows how each branch of the law mirrors another in terms of procedure. The Federal court structure is mirrored at the regional level. The Sharia courts also reflect the federal hierarchy, though otherwise quite distinct. The Sharia and regional courts have their own Supreme Courts where all matters are finalized – save for the Cassation division in the Federal Supreme Court which can review questions of law from any other court, including a Social court in a kebele in Makelle.

LAW MAKING IN ETHIOPIA

Before the 2018 Political Reform

Law making is apportioned between the federal government and regional states in accordance with Article 51 and 52 of the FDRE Constitution.

In matters falling under the jurisdiction of the federal government, the House of Peoples’ Representatives, the parliament, has the power to enact laws in the form of proclamation (the primary legislation in Ethiopia) which includes the following matters (Art. 55 of the FDRE Const.):

• Natural resources of the Federal State;
• Inter-region and foreign trade law;
• Federal transportation laws;
• Electoral laws and other laws with regard to the enforcement of political rights;
• Nationality and other laws;
• Standard and calendar;
• Patent and copyright laws.

The House of People’s Representatives is also empowered to enact laws in the form of codes on (Art. 55(3), (4) and (5), (6) of FDRE Constitution):

• Labor Code;
• Commercial Code;
• Criminal Code;

Civil laws necessary to establish and sustain one economic community. As per Article 62(8) of the Constitution, the House of Federation has the power to determine civil matters on which the House of Peoples’ Representatives makes laws.

In addition to the House of Peoples’ Representatives, executive organs have also given the power to enact regulations and directives. The provision of Article 77(3) of the FDRE Constitution states that the Council of Ministers shall enact regulations pursuant to powers vested in it by the House of Peoples’ Representatives. Here, the provision makes clear that legislative power vested to the Council of Ministers is legislative power delegated from the legislature (i.e. the House of Peoples’ Representative). According to Article 74(5) of the Constitution, the Prime Minister has the power to supervise the implementation of regulations and directives adopted by the Council of Ministers. The provision of Art. 74(5) of the same implies that the Council of Ministers has the power to enact directives in addition to regulations. Ministries are also given the power to enact directives to implement the powers given under proclamations and regulations.

Who initiates laws?

The Constitution clearly provides that the Council of Ministers “shall submit draft laws to the House of Peoples’ Representatives on any matter falling within its competence, including draft laws on a declaration of war” (Art. 77(11) of the Constitution). Thus, the Council of Ministers has the power to initiate draft laws on matters that fall under the jurisdiction of the federal Government.

Further, each ministry has the power to initiate policies and laws (Proc. No. 471/2005, Art. 10). According to Art. 4 of Proc. No 470/2005, the Government; the House of Federation; the Speaker; and the Federal Supreme Court; members of the House; Committees of the House; and other governmental institutions directly accountable to the House have the power to initiate and submit draft bills to the House on matters within their jurisdictions. Any draft bill must be made in writing and be submitted to the Speaker to its presentation to the House. Then the Speaker must present the summary of the draft law and deliberation on the content in general must be held (Proc. No. 470/2005, Art. 7(a)). Then, the Speaker will refer it to the concerned standing committee (Proc. No 470/2005; Art. 7(b)).

The committee which took the assignment will present it to the House with its proposal after 20 working days (Pro. No 470/2005; Art. 8). Thus, second reading will be held in the House (Proc. No 470/2005; Art 9). If the deliberation cannot be exhausted, the bill shall be referred for further scrutiny to the pertinent committee (Art. 9(c) of the same). The committee who received for the second time shall read out the amended version and its final decision to the House. (Proc. No 470/2005; Art. 10(a)). Then, the House shall pass the bill (draft law) after a through discussion on the final proposal (Art. 10(b)). Then, the Speaker shall send the draft to the president for signature (Art 11(a)).

The President is required to sign the bill within 15 days; otherwise, the bill will be effective after 15 days if the President fails to sign it (Proc. No 470/2005; Art. 11(b)). What is more, the ratified law must be numbered by the Speaker and thereby published in the Federal Negarit Gazeta (Art. 11(c)).

After the 2018 Political Reform

The law-making process after the 2018 political reform is similar to the pre-reform period except that the Government established the Law and Justice Affairs Advisory Council.

In 2018, the Office of the FDRE Attorney General established the Legal and Justice Affairs Advisory Council. It is an ad hoc organ that was created in order to facilitate legislative reform, and the group is made up of legal experts from universities. They have produced a road map to detail proposed reforms for Ethiopia’s legal system.

The advisory council also establishes ad hoc committees of subject matter experts on discreet topic areas (e.g., freedom of assembly). The committee performs a diagnostic study to understand the gaps and challenges in legislative design (and implementation) and submits their recommendations for a draft legislation to the advisory council. Then, the council will then submit a proposal to the Attorney-General, and if they approve, it will be sent to the Council of Ministers, and then Parliament, to become a formal rule. This process was intended to expedite the legislative reform process, but the counsel’s tenure is coming to an end.

Civil Law

Ethiopia is a mostly civil law system. It is code based, and they intend to have legislation for every matter. However, a decision in federal cassation set the precedent that when the law is silent or ambiguous, courts should consider previous rulings on similar topics (which is a departure from an entirely civil law system).

CHILD JUSTICE

General

In March 2021, The SRS Security Bureau and ICRC held a workshop on juveniles in detention in Jigjiga, Somali region.

One of the presenters noted the authorities are facing a serious challenge on management of juveniles. Rural urban migration has increased ‘juvenile prevalences’. Juvenile detention is common in major cities and more so in Jijiga. The causes of juvenile delinquency include neglect of parental role, drug abuse, poor school environment etc. These issues are covered in the Security Bureau 10-year strategic plan, but the budget is inadequate for justice and security sectors (the full report is in the Library_Regions_Somali).

The law on juveniles

There is no specific law governing young persons in conflict with the law. The relevant provisions are contained in the Penal Code (PC), 2004 and Criminal Procedure Code (CPC) 1961 (relevant extracts are contained in the Library – see Federal Laws_Juvenile Justice).

For purposes of criminal liability, the PC classifies child offenders into three distinct age groups and prescribes distinct measures for their reform and rehabilitation. The first group, called “infants”, is totally exonerated from application of the penal law as infants not having attained the age of nine years are not criminally responsible for their acts and where an offence is committed by an infant appropriate steps may be taken by the family, school or guardianship authority to ensure their proper upbringing (Art. 52 PC).

The second group, called ‘young persons’ are children between the ages of 9 and 15 inclusive. For them, the PC provides special punishments and measures upon conviction. (Art. 53, PC).

The third group are young persons between the ages of 15 and 18 and are treated under the ordinary provisions of the PC as having full liability of persons aged 18 and above (Art. 56 (4)). However, the law provides that mitigation of the penalty is always permitted, the death penalty may never be imposed (Art 176 PC).

A child may be deprived of his liberty according to the Criminal Procedure Code (CPC) and the PC in the following circumstances:

• Where the condition of the young offender involves a mental health problem, the court is bound to order his/her admission to a suitable institution (Art. 158, PC) where s/he is deprived of his liberty;
• School or home arrest where the offence is of less serious (Art 161, PC);
• If the court finds that the character and disposition of the young offender are bad, it may exercise its discretion to order such person to be admitted to a special institution designed for the correction and rehabilitation of young offenders. The duration of such deprivation of liberty cannot exceed five years or be less than one year. The offender in a corrective institution should be provided with general, moral and vocational education (Art 162, PC)
• Supervised education where the child offender is morally abandoned or is exposed to the danger of corruption (Art 159, PC);
• Prison if the young offender is ‘incorrigible’ and ‘likely to be a cause of trouble’ to others up to 10 years (Art 168(1)(b), PC) – and the principle of segregation applies (ie s/he should be kept separately from adults).

Note: There is only one curative institution with a limited capacity and only one remand home in Addis Ababa for young male offenders.

Addis Ababa Women Children & Social Affairs Bureau Rehabilitation Center for Children in Conflict with the Law

The center is under the authority of the Addis Ababa Women and Children Affairs Bureau. It is the only detention center for young persons in the country. It has adequate utilities (water and electricity) and health care services for the 87 young persons accommodated there as of October 2021. The institution has a library and internet service and a minibus which is not fit for purpose. When a young person needs medical treatment outside s/he is usually transported via Uber. There are no workshops for vocational training. There is a telephone and detainees are allowed to call their families twice a week.
Capacity and space are considered a problem by the administration. Officially it can hold 100 but the space is described as ‘limited’. There is a staff of 97 (no breakdown provided) and the salary is described as ‘very low’. The population was provided as follows: Total population: 87 (Boys: 85, Girls: 2) Sentenced: 59 (Boys: 58, Girls: 1) Unsentenced: 32 (Boys) Note: there are data mismatches: 1) the sentenced + unsentenced total 91 (versus 87 provided) and there is no accounting for 1 of the 2 girls).

The process

Cases of young, or juvenile (as used in the English translations), offenders are heard both in regular courts and in a juvenile court established in Addis Ababa. This court is empowered to hear and decide cases of young offenders. Juvenile cases outside the capital city are handled by woreda courts.

The CPC provides that in cases where a young person is involved in commission of a crime he shall be taken immediately before the nearest woreda court (first instance court) by the police, the public prosecutor, the parent or guardian or the complainant. Arrest (“taking”) warrant must be obtained in the manner prescribed for adult cases. The police shall also make every possible use of summons in order to avoid the publicity and the adverse psychological effects on the juvenile which are inherent in the use of arrest (Art. 172 (1).

The woreda court shall ask the person bringing the young person to state the particulars and the witnesses, if any, of the alleged offence or to make a formal complaint. It is the woreda court which, after the young person has been brought before it, records the accusation or complaint against him, and directs the police to conduct any investigations the court thinks necessary (Art. 172 (2)). The police may not, on their own initiative, undertake any investigative steps which involve custody of the accused. They must, by whatever means, immediately take him before the nearest woreda court. If the accusation relates to an offence punishable with rigorous imprisonment exceeding 10 years or with death, the court shall direct the public prosecutor to frame a charge (Art. 172 (3)). In such a case the juvenile will be tried in the High Court on a formal charge drawn by a public prosecutor.

The woreda court can hear cases where the accusation relates to an offence ordinarily punishable by up to 10 years of rigorous imprisonment, while any grave cases have to be heard before the High Court. If the case is less serious and is to be heard by the woreda court, the juvenile is tried without any formal charge and usually without the participation of the public prosecutor. There is a special division in the High Court that hears cases of juveniles charged with serious crimes.

Where the case requires an adjournment or transfer to a higher court for trial, the young person shall be handed over to the care of his parents, guardian or relative or, in default of any such person, to a reliable person who shall be responsible for ensuring his attendance at the trial (Art. 172 (4)).

When a young person is brought before the woreda court his parent, guardian or other person in loco shall be summoned without delay (Art. 173). This is done to inquire whether his parents, etc., can represent him or not and to release him on bail upon their recognizance.

The court shall appoint an advocate to assist the young person where no parent, guardian or other person in loco parentis appears to represent the young person or the young person is charged with an offence punishable with imprisonment exceeding 10 years or with death (Art 174).

All proceedings shall be held in chambers. Nobody shall be present at any hearing except witnesses, experts, the parent or guardian or representatives of welfare organizations (Art 176 (1)). The public prosecutor shall be present at any hearing in the High Court.

The accusation, or complaint or charge, is then read to the young person and s/he is asked what s/he has to say (Art. 176 (4)). If it is clear to the court from what is said the young person fully understands and admits the accusation or charge, the court may convict him/her immediately (Art. 176 (4)). Before sentencing, however, the judge usually adjourns the case for about a week and asks the probation officers to prepare a pre-sentence report. Meanwhile, the young person is either remanded in custody or on bail on the parent’s or guardian’s recognizance.

If the young person denies the accusation or charge, witnesses have to be summoned. The witnesses are to be examined by the court and cross-examined by the defence. Finally, the court may give judgement specifying the provision of the law on which it is based. If the young person is found not guilty, s/he shall be acquitted immediately; if s/he is found guilty, the court may impose appropriate measures or penalty (Article 162 ff. PC).

In order to arrive at a decision which is in the best interest of the young person, the court may call before it any person or representative of any institution with a view to obtaining information concerning the character and antecedents of the juvenile (Art. 177 (2)). In assessing the sentence the court shall also take into account the age, character, degree of mental and moral development of the young offender as well as the educational value of the measures to be applied.
When the young person is convicted of a criminal offence, the court shall order one of the treatment measures designed by law to rehabilitate the offender after having ordered all necessary inquiries for its information and guidance. The court may sentence the juvenile to special penalties where the measures ‘have been applied and have failed’ (Art. 166).

The treatment measure may be in a free or closed environment. The free environment treatment measure is either supervised education or reprimand or probation. If the young offender is in need of care and protection, measures for his/her education under supervision shall be ordered. S/he shall be entrusted either to relatives, or to a person (guardian or protector), a reliable family, home or an organization for the education and protection of children (Art. 159 (1)).

Specific conditions of supervised education may also be ordered. The specific conditions may be regular attendance at a school or the obligation to undergo an apprenticeship for a trade, the prohibition to associate with certain persons or resort to certain places, the obligation to appear personally before or to report on certain dates to the supervisory authority (Art. 159 (2)).

Where appropriate and designed to produce good results the court may also reprimand the young offender (Art. 160 (1)). A reprimand measure may be coupled with any other penalty or measure and may be applied alone (Art. 160 (2)). The court may also suspend the sentence, placing the young offender under a specific period of probation (Art. 171). The duration of the period of probation should be between one and three years.

The treatment measures in a closed environment is either school or home arrest or admission to a curative institution or admission to a corrective institution. School or home arrest is ordered in less serious cases, or when the young offender seems likely to reform. In such a case, the court may order the young offender to be kept at school or in his/her home during free hours or holidays and perform a specific task adapted to age and circumstances. The court shall determine the duration of the restraint in a manner appropriate to the circumstances of the case and the degree of gravity of the offence committed (Art. 161).

Admission to a curative institution may be ordered if the condition of the young offender requires treatment (mental illness or addicition to a substance, or disabled). In such a case, the court shall order the young offender to be admitted to a suitable institution where s/he shall receive the medical care required by his condition. The treatment shall, where possible, include education and instruction (Art. 158).

Observation of the Juvenile court in Addis Ababa (September 2021)

The court was arranged as a circle and quite different from a normal court. There was no superior position for the judge. The judge sat in a position that did not reflect a hierarchy – again quite different from the formal court lay-out. The judge wore a normal suit without tie.

The judge’s approach was friendly and professional: use of language and gestures were appropriate and serious at the same time. Most of the presented cases were theft. A male social worker was there at the court proceeding at the time.

The courtroom was not open to everyone. Other people present were relatives, witnesses, one person from the rehabilitation center (checking whether all juveniles were presented at court), police (depending on the case), and court staff.. A female prosecutor was present for a homicide case. 

Interpretation was not available. In more than one case, the young accused person spoke in broken Amharic and the judge took the time to explain the meaning of what was said.

None of the young persons were produced before the court in police custody and none were observed to be wearing any kind of restraint (such as handcuffs).

All juvenile offenders observed were represented by the lawyer appointed by the court.

CHARTERED CITIES

Addis Ababa is one of the two federal cities that are accountable to the Federal Government of Ethiopia. The other city with the same status is Dire Dawa and both are federal cities.

The structure of both cities government organs of power are as follows:

(a) City Council;

(b) Mayor;

(c) City Cabinet;

(d) City Judicial Organs; and

(e) Office of the City Chief Auditor.

Here they differ. Addis has sub-cities and then kebeles as follows:

(a) Sub-City Council;

(b) Sub-City Chief Executive; and

(c) Sub-City Standing Committee.

The organis of power of Kebele administration are as follows:

(a) Kebele Council;

(b) Kebele Chief Executive;

(c) Kebele Standing Committee; and

(d) Kebele Social Courts.

In Dire Dawa the administration moves from the city to the qebeles (different spelling in the Proclamation – see Library_Laws). The organs of power of qebele administration are the following:

(a) Qebele Council,

(b) Qebele chief executive,

(c) Qebele standing committee, and

(d) Qebele social Court.

Both city governments have wide ranging powers to develop policy and plans for the development of each city, organize services and administer available resources and the budget of the city, as well as expropriate private property and/or clear and takeover land holdings designated as an object of public interest, subject to payment of commensurate compensation in accordance with the law.

Justice services in both cities are provided by

• City Police Commissions. They are accountable primarly to the Federal Police Commission and, by delegation, to the City Government.
  • Appointment of the City Police Commissioner and Deputy Commissioner is by the Minister of Federal Affairs.
  • Responsibility for the daily operations of the City Police Commission rest with the Mayor.

• Public Prosecution Office of the City Government
• City Courts and
• Kebele Social Courts whose organization and procedure are determined by the City Council.

Note Social Courts are also present in some regions, namely: Tigray, Amhara, Oromia, Southern Nations, Nationalities and Peoples and Harari.