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Some Points on Remand

Under the Ethiopian Criminal Justice System, delivery of criminal justice is a process. It starts from setting justice on motion. Some person or government official may give information about the commission or omission of a crime. The person need not necessarily be the victim of a crime. He or she may be any concerned person or whistle blower. After the police get such information, the police start criminal investigation. In principle and from the point of view of human rights, no one should be arrested before the necessary investigation is done and the appropriate evidence is collected. The arrest if necessary should follow the investigation. Thus, investigation should, in principle, precede arrest. However there may be some cases that the suspect is under custody until the completion of the investigation. Article 59(1) of the criminal procedure code rules “The court before which the arrested person is brought (article 29) shall decide whether such person shall be kept in custody or be released on bail.” Sub article 2 rules “Where the police investigation is not completed the investigating police officer may apply for a remand for a sufficient time to enable the investigation to be completed.” Sub article 3 rules “A remand may be granted in writing. No remand shall be granted for more than fourteen days on each occasion.” Oftentimes a person suspected of committing a criminal offence or omitting any duty deemed under the law to be a crime may be held under police custody. Most of the time, the police arrests suspects before collecting enough prima facie evidence. Article 29 (1) of the criminal procedure code of Ethiopia rules “where the accused has been arrested by the police or a private person and handed over to the police (art. 58), the police shall bring him before the nearest court within forty eight hours of his arrest or so soon thereafter as local circumstances and communications permit.” This is a clear rule that the police must bring the suspect to a court of justice within forty eight hours of the arrest. The purpose of this is to make the arrest be known by the court of law and by so doing the police may require the court additional time to do further criminal investigation holding the suspect under custody. During this time, the suspect may request the court to be released on bail pending the remaining investigation.The court may or may not allow the time requested by the police based on some conditions. Basically, if the remaining investigation can be done without the need to keep the suspect under arrest, the court may grant bail pending the remaining investigation. A police requests the suspect to remain under custody doesn’t necessarily mean the court permits it. It is the discretion of the court to permit or decline based on the conditions of the particular case. It is a common practice but one that needs to be abandoned that police often request the suspect to remain under custody without assuring that the remaining investigation can be obstacle if the suspect is released on bail. Howevee, there are some investigators that frankly explain that the remaining investigation can be done even if the suspect is released on bail. Doing so is fair as the police are deemed also to stand for fair justice but not merely for unnecessarily arresting suspects. The other point that requires to be taken seriously is whether the police have started investigation, showen diligence and progress in the task of investigation. The court needs to check what has been done so far not only by orally asking the investigator but also by ordering the investigator to bring the investigation file and by examining its contents. This needs to be done because it should never be forgotten that the time given for the investigator is for no other purpose but to complete the investigation. Since the suspect is under custody, the investigator needs to show due diligence in using the time given for investigation appropriately. The criminal procedure code stipulates that fourteen days may be given for investigation. This fourteen days is the maximum number of days that may be permitted for investigation. Thus, the court need not necessarily permit all the fourteen days requested in every case. Rather, the court needs to check the particulars of the case and permit the time flexibly based on whether the remaining investigation is simple or complex and the number of days it may require to complete the investigation. Thus, for example, even if the investigating police officer requests fourteen days the court may permit only a day or two or so if the remaining investigation is simple or uncomplicated. However it may also permit the full fourteen days requested if the investigation is somehow complex and the tasks remaining are many or time taking. The code doesn’t limit how many times the fourteen days time may be requested and granted. Some police officers often request the fourteen days time repeatedly. If it is so repeatedly requested and given, it may become not only months but also years. With this regard, the new draft criminal procedure code and the new anti terrorism proclamation has put limit on the maximum period of time that may be given for investigating. There is a potential legal loop hole for human rights abuse if it is not implemented carefully. The other point often raised by investigators is that the suspect may disappear or go out of the country if released on bail. If no other argument is raised that the suspect may interfere in the process of the evidence collection or misapproch witnesses and the only argument is that the suspect may go out of the country, it is possible to release the suspect on bail and to give an injunction order to the concerned authorities temporarily prohibiting any foreign trip out of the country. The other point that needs attention is if the court permits the suspect to be released on bail, the amount of money that is to be secured for the bail must be proportionate with the gravity of the crime suspected and also the capacity of payment by the suspect. Sometimes, prmittng the bail but with an exaggerated amount of money may amount to prohibiting bail. The other point often raised by the police is there are other suspects (accomplice) not yet arrested or being searched .Thus, the now arrested suspect be under custody until all the remaining suspects are arrested. From the point of view of human rights, if a court permits time based on this reason, it is unfair because this suspect is being under custody for the sole reason that other suspects are not yet arrested. This means the suspect may stay under custody if the other suspects are not arrested. The question that comes to a reasonable mind is how long? Finally, if the police informs the court that there is no sufficient evidence on the suspect or there is lack of due diligence on the part of the police doing inestigation, oftentimes courts close the remand file but without saying anything about bail. If no other time is permitted, bail right must be given. Otherwise, the human rights of the suspect may be violated because there is no order that the suspect be released on bail or there is no time given for further investigation. This is a dilemmatic situation even for the police.Thus, there must be order either permitting bail or giving extra time for criminal investigation. If the police frankly assure that there is not sufficient evidence on the suspect, the court may order the release of the suspect even without bail. Thus the writer believes that a remand file should never ever be closed without a clear order.

Some points about Declaration of State of emergency

Ethiopia has declared state of emergency a number of times. The Ethiopian constitution allows the declaration of state of emergency when man made or natural disasters occour.Currently,the Ethiopian government has declared a state of emergency on Amhara region. The main feature of state of emergency is that some rights may be limited to enable the restoration of law and order.Under Ethiopian constitution some rights cannot be limited or violated even during state of emergency. Furthermore,some procedures previously followed to ensure due process of law may not be followed during state of emergency. This opens a hole for a potential violation of human rights if the implementation process of the state of emergency is not done with due care. That is why a board that follows up implementation of state of emergency is established every time a state of emergency is declared.

RULE OF LAW VERSUS Rule by Law

In both rule of law and rule by law there is rule i.e. positive law but the two are different in the purposes they serve.

If a government makes laws by its legislators and the law serves for all people to bring peace and stability and if all the people are equally treated and benefited from the law, this is called Rule of Law.

On the other hand if a government makes laws that benefit a certain group of people or only the ruling class disregarding the equality of people before the law, this is Rule by Law.
One common example of rule by law is the rule of the nazi’s regime in Germany.
Let us work together to ensure rule of law but not rule by law everywhere.

Force Majeure and Hardship under UNCISG and Ethiopian law (By our professional guest author Yidnekachew Tadele - LL.B., LL.M (Federalism Studies) and LL.M Candidate (International Investment Law) Honourable yidnekachew is currently working as a judge at Addis Ababa City Appelate Court.

Introduction

The article that is entitled Force Majeure and Hardship under UNCISG and Ethiopian law discusses only about UNCISG and Ethiopian law. The paper doesn’t discuss about other UN convection or other countries’ laws.

The article has five parts. The first part discuss about the general concept of force majeure and hardships. The second part discusses about the similarity and differences of force majeure and hardship.  The Third one discusses about force majeure and hardship under UNCISG. The fourth part discusses about force majeure and hardship under Ethiopian law. Under the fifth and the last part the article the writer concludes the paper and gives some recommendations. 

Towards a Comprehensive Prosecution Service in Ethiopia: Noting the New Developments by Leake Mekonen Tesfay

Abstract  Although Ethiopia’s public prosecution is a recent development, continuous changes have been made since the first public prosecution department was established. While the prosecution service has been wavering between centralized prosecution department at times and specialized prosecution institutions in another, a new comprehensive prosecution department – the Federal Attorney General has been recently established in the federal government taking almost all prosecution powers to it. This article briefly reviews the historical development of the prosecution department, the ups and downs between centralized and specialized prosecution institutions and the new developments related to the establishment of the Federal Attorney General as a comprehensive prosecution institution. Key Words Public Prosecution, Specialized Prosecution Institutions, Centralized Prosecution, Ethiopia

A point about some traffic police corruption

            Our traffic police are not clean handed. This doesn’t mean all traffic police are corrupt. There are many ethical and professional and country-loving traffic police as opposed to the corrupt ones. I have been traveling from Addis to the South region and back to Addis many times. It is a very common practice for the drivers to give Birr 50 or 100 to the traffic police to have a ‘safe’ pass besides overloading passengers,missing dispatch paper(‘mewicha’),driving above the speed limit, driving a technically deficient car, overpricing the transportation fee above the tariff,etc. These faults of the driver are ignored as seen in return to the Birr 50 or 100 bribe.The drivers have told me that the traffic police do collect the money from each public transport car. What an ashaming practice! If our law enforcement organs are corrupt, then who can enforce the law? Will these corrupt ones will enforce it? No. A serious measure has to be taken on this problem. Let you share us your opinions on what measure should be taken to get rid of this problem.

Forgery is a real threat to our Justice System

Nowadays,documents submitted to employers as evidence of education and work experience,driving licenses,ID cards,certificates of ownership,business licenses,etc are prepared in a forged way.Such forged documents are often submitted to courts and administrative tribunals as evidence resulting in miscarriage of justice.So,all of us have to fight against this threat to our justice system.The Federal Police forensic directorate documents investigation department is making a great contribution in fighting forgery. Each and every one of us should also contribute our share in fighting forgery.Otherwise,injustice will triumph over justice.What is your opinion on the issue?

Unsolicited Mobile Text Messages

        Day in and day out,a lot of text messages pop into our mobile phones. These are not from family or friends. Some of the text messages are sent from the telecom operator ,Ethiotelecom;Others are sent from government offices to convey a certain message and others are sent from organizations that run ads.,etc...Whoever is the sender,there is no a request given by us to get these messages. We are rarely asked whether or not we are interested to receive such messages.Nor anyone of us has given permission to the senders to send messages to our phones. In my opinion,our phones are ours;your phone is yours.So sending unsolicited text messages may amount to infringement of our privacy rights something like somebody entering our house without permission.The problem related to this issue is that there is no a clear law which directly regulates such privacy issues. I think it needs regulation.What is your opinion on the issue?

Let all police respect Human Rights in the New Year ('' ስትገረፍ፤ታወራዋለህ '' ቢቀር)...

It is a common complaint in Ethiopia that some police officers violate human rights of suspects and/or sentenced persons. Our FDRE constitution has clear provisions concerning the human rights of suspects and even of convicted and sentenced persons.For example,use of force to get evidence is prohibited because torture is a crime against humanity. Even evidence found by use of force has no acceptance.Ethiopia has accepted all basic international human rights treaties and incorporated them to be part and parcel of the constitution. Even though the law is clear,some police members violate it and violate human rights.Some do so out of lack of awareness;some do this out of lack of the proper criminal investigation skills and some do so just to abuse their power.Law enforcement should be done respecting constitutionally guaranteed human rights and following the legal procedures in the criminal procedure code.Otherwise,it is unconstitutional.It must be corrected in the new year!What is your opinion on the issue?

Probono Service of some Ethiopian Federal Lawyers

As it is well known,lawyering is not a solid for profit business.It is rather a profession by which the lawyer gives legal advice representing clients at courts of law or administrative tribunals and in return,gets remuneration or payment for the services delivered.Even though payment of money is involved in the contract of service,it doesn't mean a lawyer needs payment in every case.Since lawyering is a profession one pursues to stand for justice,lawyers must give free legal service to those who can't afford to pay.Actually,it is being done in Ethiopia too.In Ethiopia,every federal lawyer must give 50 hours of free service to those who can't pay.But the problem is not on the time or hours spent but the problem of not giving equal weight to paid and free services.If it is free service,some lawyers prepare poor statements of claim and/or defense,miss court sessions and and even if they appear,they come unprepared.This is unethical. It needs correction.What is your opinion on the issue? P

Opinion Versus Defamation

If you say that you think somebody is a thief,it is your opinion but if you say you saw somebody steal,you are alleging a fact. If what you thought is proven wrong,it is not a crime because you have freedom of thought. But if what you alleged as a fact is proven false,then this constitutes the crime known as defamation. Have a good day!!!

Concept of terrorism

      Terrorism is related with trying to get a certain aim succeed by means of intimidation and force,by means of making people fear a certain actual or potential threat. The basic problem of terrorism is that it is often indiscriminate about targets. For example,if a bomb exploded in a public place,those who may die or be damaged are most of the time civilians,women,and children etc...who have no thing to do with politics. So,the effect of terrorism is harmful. That is why countries need anti-terrorism law. That is why we also have this law. So,the need for anti-terrorism law is vivid.

What do you think about the Independence of the Judiciary in Ethiopia?

 
       As it is well-known the principles of separation of powers and independence of the judiciary are key to ensure a real democracy and rule of law. To that end,there must be clear legal instruments and institutions that ensure the independence of the judiciary. The 1995 Constitution unequivocally declares the independence of the Ethiopian judicial branch(See article 78 of the FDRE constitution). .In and of itself ,however,the declaration of independence does not equate to the creation of independence if institutions and systems are unable or unwilling to shoulder the burdens and share the power in a practical and well-established procedure. 

     The Judiciary at the Federal and Regional levels are administered by their own Judicial administration Councils.Thus, this is what we call self-regulation which by itself is a good tool for securing the independence of the judiciary.In this regard the selection,recruitment,promotion,demotion,etc...of judges in Ethiopia are handled by this council.

      While we discuss this issue there are other very important points that must be put in perspective such as the salary and benefits package of judges,the amount and the administration of court budgets, etc...which have either a direct or indirect impact on resolving the issue.

                You can share us facts and your own opinions on the issue at hand.

Restorative Justice For All!

           
       In response to the ever-increasing  problems such as inefficient court processes and prison crowding, countries throughout Africa are looking to revive traditional justice processes and implement restorative practices as an alternative to incarceration.Basically,customary dispute settlement mechanisms and laws play the key role in many African countries including Ethiopia.These must be systematized and used side by side with the regular state laws and institutions.There is multiplicity of laws in Ethiopia,which includes cultural laws(such as The 'Geda' System of the Oromos and the 'Kicha' and 'Yegordena Sera' of the Gurages to mention but a few) and religious laws(such as Sharia Law and the laws of the Ethiopian Orthodox Tewahdo Church), which needs to be wisely used for both civil and criminal cases to bring restorative justice in the country.What do you think on the issue? Feel free to share us your opinions.

A Point about ''Freedom of Expression''

Freedom of expression is the key for building a real democracy in any country.It is also a human right.However,there should be a limit to it as there is a limit on any right.For example,defamatory,libel,riot-provoking expressions need not be permitted by the guise of freedom of expression. In Ethiopia,there are nations and nationalities with their own identities. If one person tries to say something like "This type of nation or nationality is non-existent '' or if the person speaks something similar to this that degrades the identity of a certain nation or nationality,etc,is this something that falls within the legitimate right to freedom of expression? The right to freedom of expression should never ever be a tool for the abuse of others' rights. If abused,the legitimate right starts to constitute a crime. Nowadays,there are many posts on social media that degrade a certain ethnic,religious or political ideology groups. Constructive analysis and criticism is an  encouragable culture but blatant insult is not. What do you think about this issue?

My view about what free and balanced press media means.

 Free media is a forum where people can express their opinions unabridged and whereby the journalist is only a professional mediator to give them the forum the people need. Balanced media is the media which is unbiased;which exercises independent investigative journalism;which is always trying to collect information and present it from diverse sources and perspectives.

 In my opinion,I still stick to the idea that a journalist must necessarily present ideas in a balanced way. Otherwise, we are gonna hear watch and read only one side of the coin. For example almost all the so-called free media in Ethiopia are obsessed with contents that are anti-government( opposition). But need they be so?  Concerning whether a journalist doesn't need the forum for himself/herself,he/she can actually use the forum but only in unbiased way.Otherwise,if they present their mere opinions as facts,they have a great potential of misleading people in the wrong way.Thus,if a journalist wants to use the media as any person, he/she needs to separate opinions from facts; substantiate or support facts or statements with the necessary evidence and make the forum open for further comment by others.


In light of this,"How free and balanced are the so-called FREE PRESS in Ethiopia?"

The constitutional basis of delegated legislation in Ethiopia

Article 77(13) of the Ethiopian Federal constitution provides as the power and function of the Council of Minsters "It shall enact regulations pursuant to powers vested in it by the House of People's Representatives."This provision is the constitutional basis for delegated legislation in Ethiopia.It has legalized delegated legislation on the condition of a case by case delegation is expressly given by the House.The House enables the delegation by specifically mentioning in a part of the proclamations it makes that the Council of Ministers shall make regulations.Thus,the purpose of the delegation is to enable the House to make the skeleton and the Council of Ministers fills it with the flesh.

Uniformity of criminal penalities in Ethiopia

In Ethiopia,there is poor uniformity and predictability of criminal penalties.One of the causes for this problem is the fact that the criminal code gives the judges a wide discretion in determining the criminal penalty or imprisonment. Due to this two persons may receive different sentences for the materially the same criminal act. In order to mitigate this problem,the Federal Supreme Court has made Sentencing Guidelines. I think these guidelines has improved and also will improve the uniformity of criminal penalties in Ethiopia.