Search Knowledge Base
The Development Of Criminal Law Of Ethiopia
The history of Ethiopian Criminal law reveals the following important legislations incorporating the Criminal law of the country before the enactment of the existing Criminal Code of FDRE, 2005.
- The Fewuse Menfessawi,
- The Fetha Negest,
- The Ethiopian Penal Code, 1930.
- The Penal Code of the Empire of Ethiopia, 1957.
- The 1974 Revolution and Criminal Law
- Special Penal Code of 1981
The Fewuse Menfessawi (The Canonical Penance):
The first attempt to compile the law was made by the emperor zar‘a Ya‘equob (r.1434- 1468). Desiring to govern his realm by a written law rather than by amorphous customary law and oral tradition, the emperor ordered distinguished Ethiopian Orthodox Church Scholars to compile an authoritative written law. The compilation had 62 articles mainly on criminal matters. Since this was far less than comprehensive, it was not able to resolve many of the legal problems that arose during that period.
The Fetha Negest (The Law of the Kings):
The failure of the Fewuse Menfessawi led to the next codification by the same
Emperor Za‘ra Ya‘eqob . The Fetha Negest is a very interesting legal compilation.
As highlighted by Graven (year), Fetha Negest included the following important criminal law principles :
- those concerning ―intention‖ and ―negligence‖,
- relating to the proportion between the fault and sanction,
- the individualization of punishment,
- the forgiveness and redemption of offenders, and Øthe sharing of guilt case of fighting etc.
These solutions in case of fighting etc. are most current, familiar and understandable situations for the people.
The Fetha Negest was formally incorporated into the Ethiopian legal system in 1908 by Emperor Menelik II. It can be said that in most cases, the Fetha Negest has attempted to incorporate the most suitable legal principles, which could be conceived in the epoch of its emergence. However, it suffered from the following drawbacks:
- It lacked the systematization and other characteristics of modern codes,
- Neither the ‗specific‘ is differentiated from the ‗ general‘ nor the
‗exception‘ from the ‗rule‘,
- Aggravating and extenuating circumstances were not clearly provided for,
- In general, the arrangement of the provisions is so haphazard that it is hard to locate the most relevant provision ,and
- The Fetha Negest was accessible and understandable only to those who continuously studied it i.e. the clergy.
The criminal provisions of the Fetha Negest were applied in Ethiopia until they were replaced by the Penal Code.
The Ethiopian Penal Code of 1930:
The Penal Code of 1930 reflects the norms and values of the old absolutist monarchy of the generation of Emperor Menelik II and Emperor Zewditu (i.e. the era between 1889 and 1930). It was also drawn up in a less systematic and clear manner and did not follow the rules of a modern codification process.
The main attributes of the Code were as follows:
- The crimes and respective punishments were defined in exact fashion, and
- The penalties were considerably softened and improved by setting the fines in proportion to the then economic and monetary situations of Ethiopia.
- The Code under its Special Part protected the three great classic categories of interests. These were:
- The state and Community,
- Persons, and 3. Property.
Provisions of ―Petty Offences‖ were incorporated towards the end of …..? .The sources of the Penal Code of 1930 seem to have been the Fetha Negest and the Siamese Penal Code and the Penal Code of the French Indo-China of the time. The drafter of the Code is believed to have been a Frenchman. The Penal Code of 1930 was in force until it was repealed and replaced by the 1957 Penal Code of Ethiopia.
The Ethiopian Penal Code, 1957:
Criminal laws do indeed reflect the conditions generally prevailing in the country where they apply. Therefore, they necessarily change. If substantial changes occur in the society, substantial modifications also become necessary in the legal and other rules. The old codified laws used in Ethiopia, approximately between 1450 and 1931, did not follow the rules of modern codification process and thus eventually proved unsatisfactory. When the necessity was felt for transformation of legal system in the second half of the 20 century, the modern codification process was initiated.
The task of drafting a new comprehensive penal code was entrusted to Jean
Graven , a Swiss jurist who at that time had been the Dean of Faculty of Law and President of the Court of Cassation in Geneva , Switzerland.
The Sources and the Merits of the Penal Code Of 1957:
Obviously, the Criminal Code that appears in present-day society should be able to provide solutions to the complexities of modern life. In view of this fact, the drafter looked into the most modern penal codes that embodied the latest thinking in the sphere of criminal law. The primary source of the Code was the Swiss Penal Code of 1937 and the pre- 1957 Swiss Jurisprudence. The secondary sources were the French Penal Code of 1810 with respect to general format, the Yugoslav Penal Code of 1951 in relation to military offences, and more generally the code of Norway, Denmark, Poland the Federal Republic of Germany, the Netherlands, Portugal, Spain, Italy, Brazil and Greece. Some provisions of ‗the Universal Declaration of Human Rights‘ and ‗the Red Cross Geneva Convention‘ were also incorporated in the 1957 Penal Code of Ethiopia. The incorporation of the latest principles of law in present day jurisprudence made the penal code of Ethiopia one of the modern and sophisticated criminal codes of the time.
In addition to this, the drafter also included a wide range of provisions that covered legal institutions that might arise in the future. New concepts, not only juridical, also sociological and criminological were developed into a homogenous penal code, which aimed at the prevention of crimes and rehabilitation of criminals. The object of criminal law should not be retributive from the outset, despite the fact that punishment will serve as deterrent of prospective offenders.
It was the rationale of the penal code and the concepts embodied in some of its provisions that aroused bitter controversy among the members of the codification commission. The Fetha Negest, as well as the Penal Code of 1930, started from the presumption that criminals have to pay, i.e. have to be penalized for the injury they would cause to the individuals and to society at large. The objective of punishment was, according to these laws, in essence retributive. Now the draft penal code came up with new proposition with principal objective of that the prevention of crime and rehabilitation of criminals. It was this deviation from the traditional approach that took some members of the commission by surprise.
After an arduous exchange of arguments, the draft was accepted mainly because it aimed at not only satisfying the then state of affairs, but guiding society as an instrument of change. The new code was intended to affect national unity and to provide for the progressive development of Ethiopia. On some points, however, compromises had to be made. Some were the following:
- Collective Punishment: According to customary law, where offences had been committed by one or several persons, it was found impossible to ascertain which of the persons involved was the criminal, the court could, where equity so required, order ‗the damage‘ to be made good jointly by the group of persons who could have caused it and among whom the persons who caused the damage were certain to be found.
As this traditional practice seemed not be in line with rule of law and human rights, the compromise formula that was reached after a long debate between the foreign experts and the Ethiopian members of the codification commission was that, ‗where an offence is committed by a group of persons, the persons who proved to have taken no part in the commission of the offence shall not be punished.‘
- Mutilation of Human Body As Punishment-Abolished: According to the old practice, habitual offenders were punished by mutilating the human body so as to give it the maximum deterrent effect. There was a general consensus not to incorporate this form of punishment. However, flogging was to be inflicted on such offenders provided that it was medically ascertained that the life of the offender would not be endangered.
- ‗Presumption of Innocence‘- Introduced: In the past, the accused was required to prove his innocence. In modern penal legislation, however, the generally accepted principle is that the accused enjoys the presumption of innocence, according to which the burden of introducing evidence to prove the guilt of the accused is on the Prosecution. This is opposed to the previous principle of ―presumption of guilt‖. In addition to this, accused has the right to produce defense witnesses.
- Rules Applicable to Young Offenders: In the past, all offenders who were thought to have the capacity to discriminate between what is good and what is bad were brought before the regular courts. In the modern penal law, on the otherhand infants are completely exonerated from criminal provisions.
Infancy is according to art 52 of the Penal Code, ‗the period extending from birth up to nine years.‘ Infants are not deemed to be responsible for their acts under the law. The measures to be taken against such offenders should have curative, educational or corrective measures as may be necessary for their own good. Penalties and measures to be imposed on offenders between the ages of 9 and 15 years were those provided by Arts. 161-173 of the Penal Code. Thus, young persons were not subjected to the ordinary penalties applicable to adults nor should they be kept in custody with adult offenders. For purposes of the criminal law, the age of majority for young persons is 16 years.
- Probation and Suspension of Sentences: In the past all forms of sentences were executed. Present-day penal legislation provides that certain offenders may, under defined circumstances, be granted release on probation or the sentence may be suspended for a fixed time. Even after the execution of a sentence of imprisonment, one may be granted a reduction of the term which one is required to serve. In accordance with the rationale of modern principles of criminal law, the Ethiopian Penal Code aims at not punishing the offender, but at rehabilitating and educating him. As a result, it provides ample opportunities for probation and suspension of sentences.
- The Personal Nature of Criminal Punishments And Measures: If a convicted person died before the execution of a sentence, there was, according to customary laws, the possibility of proceeding against his property or the property of his next of kin. This was not retained in the Penal
Code of 1957. The principle is that, ‗crime is personal to the one who is found to have committed it‘, it is thus an innovation made in the present criminal law.
- The Punishment For Burning Of Crops (Arson): since Ethiopian society is predominantly an agricultural society, severe penalties are prescribed for offences relating to or committed on agricultural products. Recognizing this deep-seated value, burning of crops (arson) entailed more severe penalties than other comparable crimes provided in the new penal code. In addition to the above matters, drafter of the Code, Jean Graven, also pinpointed the following areas where new and old ideas have been reconciled:
- Capital punishment and corporal punishment (flogging) were maintained but with all the necessary precautions as to the instance of application and the conditions of administration.
- Pecuniary punishments particularly confiscation of property were made to be applicable in limited instances of serious crimes against the sovereign and the state
- The principle of collective responsibility for certain crimes involving tribes or anonymous criminals were made to rest on customary practices which had their own justification.
- The severe provisions on abduction and enslavement and the flexibility one sees with regard to adultery, concubine and illicit damage to property by stray animals of others are reflections of the changing modes of life of Ethiopia. In the words of the drafter while enacting the Penal Code :
“…the Ethiopian legislator has made every effort to construct a complete edifice, one maison mouvelle… where one can find order and peace security and progress, united in a single whole.”
Thus, the historical objective behind the enactment of the Penal Code of 1957 was to let it serve as a unifying force and as a machinery to enhance future development of the country the Penal Code of Ethiopia was promulgated on July 23, 1957 and came into force on May 5, 1958, and was in force until May 8th 2005.
E. The 1974 Revolution and Criminal Law:
Following the 1974 revolution, a “revolutionary” system of neighborhood justice emerged. It was difficult to distinguish between criminal acts and political offenses according to the definitions adopted in post-1974 revisions of the Penal Code. In November 1974, a proclamation which introduced Martial Law, was introduced. The martial law set up a system of military tribunals empowered to impose the death penalty or long prison terms for several political offenses. The Proclamation applied the law retroactively to the old regime’s officials. The revolutionary government these officials responsibility for famine deaths, corruption, and maladministration. Special three-member military tribunals sat in Addis Ababa and in each of the country’s fourteen administrative regions.
In July 1976, the government amended the Penal Code of 1957 to institute the death penalty for “anti-revolutionary activities” and ―economic crimes‖. Investigation of political crimes came under the overall direction of the Revolutionary Operations Coordinating Committee in each awraja. In political cases, the courts waived search warrants required by the Criminal Procedure Code. The government transferred jurisdiction from the military tribunals to kebele and peasant association tribunals.
Political trials constituted the main business of these tribunals until 1978.
Generally, the 1976 revision of the Penal Code empowered association tribunals to deal with criminal offenses. The revision limited the jurisdiction of association tribunals to their urban neighborhood or rural area. Elected magistrates, without formal legal training, conducted criminal trials. Procedures, precedents, and punishments varied widely from tribunal to tribunal, depending on the imperatives of the association involved. Peasant association tribunals accepted appeals at the Wereda (district) level. Appellate decisions were final. But decisions disputed between associations could be brought before peasant association courts at the Awraja level. In cities, Kebele tribunals were similarly organized in a three-tier system. Change of venue was arranged if a defendant committed an offense in another jurisdiction.
The judicial system was designed to be flexible. Magistrates could decide not to hear a case if the defendant pleaded guilty to minor charges and made a public apology. Nonetheless, torture was sometimes used to compel suspects and witnesses to testify. Penalties imposed at the local association level included fines of up to 300 birr. The tribunals could determine the amount of compensation to be paid to victims. The tribunals could impose imprisonment for up to three months and hard labor for up to fifteen days.
Association tribunals at the Awraja or Wereda level handled serious criminal cases. These tribunals were qualified to hand down higher sentences. Tribunal decisions were implemented through an association’s public safety committee and were enforced by the local People’s Protection Brigade. Without effective review of their actions, tribunals were known to order indefinite jailing.
The 1976 Special Penal Code, which was further elaborated in 1981, created new categories of so-called economic crimes. The list included hoarding, overcharging, and interfering with the distribution of consumer commodities. More serious offenses involved: engaging in sabotage at the work place or of agricultural production, conspiring to confuse work force members, and destroying vehicles and public property. Security sections of the Revolutionary Operations Coordinating Committee investigated economic crimes at the Awraja level and enforced land reform provisions through the peasant associations. These committees were empowered to charge suspects and held them for trial before local tribunals. Penalties could entail confiscation of property, a long prison term, or a death sentence.
F. Special Penal Code of 1981:
In 1981, the Revised Special Penal Code replaced the Special Penal Code. This amended Code included offenses against the government and the head of state, such as crimes against the state’s independence and territorial integrity, armed uprising, and commission of “counterrevolutionary” acts. The 1981 amendment also included breach of trust by public officials and economic offenses, grain hoarding, illegal currency transactions, and corruption; and abuse of authority, including “improper or brutal” treatment of a prisoner, unlawful detention of a prisoner, and creating or failing to control famine. The Amended Special Penal Code also abolished the Special Military Courts. The Code created new Special Courts to try offenses under the Amended Special Penal Code. Special Courts consisted of three civilian judges and applied the existing Criminal and Civil Procedure Codes. Defendants had the right to legal representation and to appeal to a Special Appeal Court.