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you could be a criminal without commiting a crime…


 

Is it possible that you could be liable to a criminal punishment without committing any crime and at the same time your conviction being considered as lawful i.e. according to law? Sometimes such type of cases may happen when there is a miscarriage of justice and abuse of power. When law enforcement officials and judges use their official power to attack an innocent person, at least they know it they are deliberately violating the law. But the question I raised above is totally different from these types of instances.

To make it clear here is the answer for the question. According to one provision of unusual and odd Ethiopian law, anyone could be convicted of a crime even though he has not committed a crime. This may be surprising, but it is true.

This law which makes a person a criminal in the absence of a crime and commission of a crime is ARTICLE 20 SUB ARTICLE 6 of Forest Development, Conservation and Utilization Proclamation No.542/2007.
In order to understand and relate the contents of this provision to other provisions, you should read the preceding five sub articles of the provision.

Article 20 of Forest Development, Conservation and Utilization Proclamation No.542/2007 titled ‘Penalty’ provides for the special criminal violations and penalties against the proclamation.
Here are the criminal violations listed under sub articles 1 up to 5 of article 20.

Article 20. Penalty


Unless otherwise the offence committed is punishable with greater penalty by the criminal law,
1/ Except pursuant to this proclamation and directives issued here in under, cuts trees or removes, processes or uses in any way forest products from a state forest shall be punishable with not less than 1 year and not exceeding 5 years imprisonment and with tine Birr 10,000.


2/ Destroy, damages or falsify forest boundary marks shall be punishable with not less than 1 year and not exceeding 5 years rigorous imprisonment;


3/ Causes damages to a forest by setting fire or in any other manner shall be punishable with not less than 10′ years and not exceeding 15 years rigorous imprisonment;


4/ Settles or expands farmland in a forest area without permit or undertakes the construction of any infrastructure in a forestland without having the necessary permit shall be punishable with not less than 2 years imprisonment and with fine Birr 20000;


5/ Provides assistance in any form to those who illegally cut forest trees or transport forest products to hide or take away the forest products shall be punishable with 5 years imprisonment and with fine Birr 5000;

So these are the crimes specifically listed by the proclamation. But it does not stop here.  As you can see, only five specific criminal violations is not sufficient compared to the extent of  the forests to preserved. Hence sub article 6 was added and it reads:

6/ Commits a fault that are not mentioned from Sub-Article (1) to (5) here in above and for which punishment is not imposed shall be punishable with not less than 6 months and not exceeding 5 years imprisonment and with fine Birr 30,000″

According to this provision, any one could be punished not less than 6 months and not exceeding 5 years imprisonment and fine Birr 30, 000 without violating any provision of law. “A fault not mentioned from Sub-Article (1) to (5)” does not specify any commission or omission of an act.

I don’t think it is necessary to make an analysis and argument to establish that this law is a clear violation of the cardinal principles of criminal law and fundamental provisions of F.D.R.E. Constitution.  Just in case, the principle of legality is found in article 2 of the criminal code.

Article 2.- Principle of Legality.
(1) Criminal law specifies the various crimes and the penalties and measures applicable to criminals.
(2) The Court may not treat as a crime and punish any act or omission which is not prohibited by law. The Court may not impose penalties or measures other than those prescribed by law.
(3) The Court may not create crimes by analogy.

“Criminal law specifies the various crimes…” i.e. the acts considered by law as violations entailing criminal liability.

An act is defined in article 23 of the code.

Article 23.- Crimes.
(1) A crime is an act which is prohibited and made punishable by law.
In this Code, an act consists of the, commission of what is prohibited or the omission of what is prescribed by law.

When you relate article 20 sub 6 of Forest Development, Conservation and Utilization Proclamation No.542/2007, you don’t find any specific act the  “commission of what is prohibited or the omission of what is prescribed by law”

 

 


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2 replies »

  1. YOU WILL BE A CRIMINAL IF YOU VIOLATE ARTICLE 14 of PROCLAMATION 542/2007. There is nothing wrong with the proclamation. Art 20(6) shall be interpreted along with Art 14 of the proclamation. Art 14 provides prohibitions while art 20 provides the specific penalties. For instance, cutting forest tree is prohibited under Art 14(3)a , the penalty is prescribed in Art 20 (1). Those who violate the prohibitions laid down under Art 14 and the penalty is not specified under Art 20(1)to (5) shall be punished in accordance with art 20 (6). There is no violation of the principle of legality, Art 20(6) is specifically dealing with the prohibitions mentioned in Art 14.

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  2. I feel Doubt about such proclamations many times for implementation.I hope you can find such type of penalties without clear stipulation of the crime. The custom proclamation has also same thing.Thank you Abrish

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