Traditional Criminal Procedure in Ethiopia
"'No modern legislation which does not have its roots in the customs of those whom it governs can have a strong foundation."
Haile Sellassie I, Emperor of Ethiopia DOWNLOAD FILE
In the decade 1955-1965 the Ethiopian government completely revolutionized its legal system by promulgating comprehensive legal codes and a new constitution.1 These laws have a predominantly Western flavor, and seem to bear little relation to the traditional patterns of life which still prevail in the Empire-one of the least "developed" areas of Africa. This state of affairs has led some to characterize the new codes as "fantasy law," which may serve to put a modern "face" on the country but, at least for some time to come, will not have any serious impact on the conduct of its affairs.2
Ethiopia's policy in regard to customary law does seem to have been remarkably negative. The codifiers apparently made no attempt to review existing written sources on the customary legal systems in operation throughout the Empire, much less to initiate or en courage systematic studies to supplement the scanty information available. Post-hoc justifications of this policy have been published
by some of the code drafters as well as by scholars. They range from denial that customary law really existed in Ethiopia, to negative comments on its changeability, lack of uniformity, incompleteness, obscurity, and low status. These commentators also point out that some customs have been incorporated into the new laws, or otherwise permitted to operate within the new legal framework, that uniformity of laws is necessary and desirable for a country as heterogeneous as Ethiopia, and, finally, that the abandonment of custom is not a serious worry because for a long time to come the codes will not be applied in large parts of the Empire.3 These circumstances raise two important questions: first, what was "the customary law" of Ethiopia which the codes changed, and, second, how have the new codes changed it, both "on paper" and in practice? In this article we shall attempt to answer only the first of these questions, with regard to the law of criminal procedure. Drawing mainly upon scattered secondary sources,4 we shall attempt to construct a model of Ethiopian customary criminal procedure.
This model will hopefully provide some basis for future research assessing the Ethiopian Criminal Procedure Code of 19615 in the light of this background
Homicide in Ethiopia: Human Rights, Federalism, and Legal Pluralism DOLORES A. DONOVAN and GETACHEW ASSEFA
This is a paper about human rights, federalism and legal pluralism in Ethiopia. It is a deeply practical paper, in many ways a paper about the responsibilities and limits of state power. The topic is how the Ethiopian state can maintain the level of protection of human rights necessary to protect its standing in the international community while at the same time respecting and incorporating within its formal legal system the multiple customary law systems existing within its borders. The conclusion is that the key to success is adoption of a maximally flexible system of legislative federalism.
Ethiopia enjoys a rich heritage of customary law systems. There are more than sixty such legal systems in Ethiopia, some of them operating quite independently of the formal state legal system. There are two reasons for the relative autonomy of Ethiopia's customary law systems. First is that the state's resources are insufficient to extend the state legal system to every corner of its empire. Second is that the Ethiopian government has a real, though as yet unstructured, commitment to the preservation of the customary law systems within its boundaries.
The Ethiopian government also has a commitment to establishment of the rule of law in Ethiopia, in the conventional nineteenth-century European meaning of the term. A central attribute of that nineteenth-century European rule-of-law model is the notion of a unitary legal system generating uniform legal rules from a central state authority. Another attribute of that sort of rule of law is the guarantee of protection for individual rights, today better-known as human rights.
Tension exists between the Ethiopian government's commitment to the concept of uniform legal rules throughout its territory, including rules protecting human rights, and its commitment to preservation of the Ethiopian customary law systems. The Ethiopian Federal Constitution of 1994 guarantees protection for a broad range of human rights, incorporating by reference the major international human rights covenants signed and ratified by the Ethiopian government and repeating, verbatim, the language of the most important rights. The state constitutions - now in the process of adoption throughout Ethiopia - tend, on the whole, to mimic the federal constitution in this regard. The customary law systems, however, deviate in at least some ways from the norms set up by the federal and state constitutions.
The tension between the customary law systems and the statutory and constitutional norms of the Ethiopian government is most clearly seen in the rules and practices relating to the crime of homicide. The federal Penal Code, written in 1957 and still in force, purports to establish rules uniformly applicable throughout the geographic confines of the Ethiopian state.! Yet many, if not most, cases of homicide are dealt with by the sixty Ethiopian customary law systems.
In such a situation, the classical European goal of total certainty in the law, especially the criminal law, must necessarily be reconsidered. The nineteenth-century model of uniform legal rules, expressed by code and uniformly applied throughout the country, is not viable in large multicultural nations such as Ethiopia. The federal constitution adopted by Ethiopia in 1994 is the first legislative recognition of that fact. The second legislative recognition of that fact should be enactment of a flexible federal statutory framework conferring a high degree of legislative autonomy on the Ethiopian regions. Once federalism is decided upon, flexibility and local autonomy come into competition with certainty as desirable values informing the law(s). Even more flexibility, to allow for local variations in the law, is required when a federal government embraces, as has the Ethiopian government, the principle of preservation of its multiple customary law systems.
The Ethiopian government's commitment to establish the rule of law while protecting its customary law systems confronts it with three immediate tasks: 1) creating a federal framework of statutory law flexible enough to allow the nine Ethiopian state governments to enact their own statutory frameworks, in turn flexible enough to accommodate the customary law systems within their borders; 2) inventorying the more than sixty Ethiopian customary law systems, most of which have never been studied by legal anthropologists, to evaluate their procedures and practices and determine which are and which are not in conformance with the international human rights guarantees contained in the Ethiopian constitution; and 3) devising techniques to monitor the performance of the customary law regimes for compliance with minimal standards of human rights protection, and to upgrade their performance in that regard. Completion of these tasks requires reconciling competing pairs of values: rule of law and preservation of customary law, protection of human rights and protection of custom, certainty in the law and flexibility, uniformity in the law and local autonomy.
The crime of homicide has been chosen for a case study because it presents these tensions in their most extreme and hence most clear form. The substantive rules of law governing homicide are generally the same in both customary and modern legal systems. Unprovoked killings are wrong; self-defense is an excuse, and so on. Because of this high level of consensus, the variances, when they occur, are startling and crystal-clear. An example of such a variance, found not just in Ethiopia but also in many other parts of the world, is condonation at customary law of the killing of a witch or of revenge killings.
Where a variance such as that relating to witchcraft or revenge killing occurs, one is confronted with the situation of a nation-state tolerating the existence within its borders of a competing legal authority endorsing radically different norms relating to the taking of human life. On the one hand, tolerance of these radically different customary law norms is arguably the duty of a government that purports to be representative, for the customary law systems are more closely linked to and reflective of the traditions and expectations of the local peoples they serve than are the rules enacted by the nation-state. On the other hand, tolerance of these norms calls into question the sincerity of the formal government's constitutionally-expressed commitment to protection of the fundamental and universal human right to life and to equal protection of the laws. In the end, or so it is argued, the impact of multiple variances between the norms of the customary law systems and those of the modern nation-state can call into question the legitimacy of the formal, modern, legal system and eventually that of the modern nation-state itself.
Less is at stake when it comes to procedure. The procedures utilized by a society for dealing with killings are not so reflective of core social values as are the norms of conduct governing the killing of one human being by another. Nonetheless, even with respect to rules of procedure rather than those of substance, the legitimacy of the formal legal system can be cast into doubt when the people it purports to serve prefer and utilize the dispute resolution procedures familiar to them through their customary law rather than those set up by the modern state.
Such a situation exists in Ethiopia. Ethiopia is a vast and multi-ethnic nation. The modern European-style legal apparatus of the state, established in the mid-20th century, has only recently been extended to the more distant regions of the country. In those regions, the norms of behavior that govern the taking of human life, and the procedures that surround its sanctioning, are not those established by the Ethiopian Penal Code and the Ethiopian Criminal Procedure Code, but rather the norms and procedures of the ancient customary law systems of the Ethiopian peoples. Even in regions that for more than two thousand years have formed the nucleus of the Ethiopian state, loyalty to customary law norms and procedures continues to frustrate enforcement ofthe modern criminal law and to fuel dissatisfaction with the government's system of criminal justice.
A few generalizations about the customary law of homicide in Ethiopia are in order. First, the typical outcome of customary law homicide procedure is that the slayer is freed by the payment of compensation to the families of the victim. In other words the slayer does not encounter any loss of liberty as a penalty. Once the amount of compensation is paid out in full, the offender can engage himself in day-to-day activity as though nothing has happened. He is not to be put behind the bars as is the case where the written national laws apply. Second, there are variations as to the amount and mode of payment from one group (culture) to another. The slayer may be required to pay in compensation as many as a couple of hundreds heads of animal beginning with camels down the line to cattle, sheep and goats. Third, since the amount of compensation to be paid is extremely high, the slayer cannot pay it all by himself. It, therefore, is one of the principles of the law of homicide that the offender will be assisted by his clan, the members of which will contribute as much as they can to the full amount of the compensation fixed as payable. Responsibility for homicide is thus familial rather than individual. Fourth, the amount of compensation to be paid sometimes differs in the event of the homicide of a woman and that of a man. Among peoples adhering to this principle, the life of a woman is compensable with approximately fifty per cent fewer heads of animals than the life ofa man.
This paper examines customary law practices relating to homicide among three ethnic groups: the Show a Amhara of the Amhara Regional State; the Gumuz people in the Beneshangul and Gumuz Regional State; and the Somali people in the Somali Regional State of Ethiopia. The Amharas are the people most closely identified with the ancient and the modern Ethiopian State. The material on the Amharas focuses on the interaction between the state legal system and the Amhara customary law system in cases involving revenge killings. The Gumuz people are among the most removed from modern civilization of all Ethiopian ethnic groups. The section on the Gumuz considers sorcery and status (adventure) killings. The Somalis, who are nomadic pastoralists, are the people least assimilated into the modern Ethiopian State. The section on the Somali focuses on cases involving the killing of women and the related sentencing practices that discriminate against and devalue the lives of women. These three groups have been selected for study because each manifests a very different dimension of the problem of human rights, federalism and legal pluralism that confronts the Ethiopian State.
Part I of this paper describes the modern Ethiopian State, the ethnic composition of the Ethiopian people, with particular reference to the Amhara, Gumuz and Somali peoples, and the geography of their lands. Part II examines the treatment of homicide within the customary law systems of the Amhara, Gumuz and Somali peoples. At issue are the right to life, the protection of female children against exploitation, and the right of women not to be discriminated against on the basis of their gender. Part III, the heart of the paper, examines the interplay between these customary law systems, modern notions of human rights, federalism and legal pluralism. Part Three also considers procedural mechanisms useful for reconciling the formal Ethiopian legal system and the informal Ethiopian customary law systems. Part IV, the conclusion of the article, proposes a plan of action for the Ethiopian government that will respect and preserve the customary law systems while modifying them to effectuate the universal human rights norms contained in the Ethiopian constitution.
Confrontation and competition between a nation's formal legal system and its customary law systems is not inevitable. The tension between the two can be mediated by legislation artfully designed to promote the interests of both systems. The central vision of the proposed plan is the introduction of flexibility into Ethiopia's federal and state penal and criminal procedural law so as to permit co-existence and cooperation between the customary law systems and the state criminal justice system, subject to the authority of the human rights provisions of the state and federal constitutions. These new, flexible, legal norms would then be extended, in combination with or preceded by a campaign of community education, to those customary law systems heretofore untouched by or resistant to the legal authority of the state.
COMPARATIVE PERSPECTIVES ON EUTHANASIA IN NIGERIA AND ETHIOPIA ANTHONY O. NWAFOR
Discussions on euthanasia usually revolve around medical, legal and moral issues geared at determining the extent to which a physician may feel obliged to accede to the request of the terminally ill patient to bring to a graceful end his or her pain and suffering by assisting the patient to die. In some jurisdictions, physicians are statutorily conceded such rights in spite of the Hippocratic Oath. But the conservatively religious would have none of such as life is seen as sacred which only the Creator could terminate at the chosen time. This paper examines various views on euthanasia, zeroing in on criminal law regimes of two countries in Africa, namely Nigeria and Ethiopia. It is discovered that while the statutes and judicial decisions in these countries (especially in Nigeria) appear favourably disposed to the idea of passive euthanasia, active euthanasia is still criminalized whatever may be the intention of the doctor, and even at the request of the patient. A strong case is made for the need for these countries to borrow a leaf from some European countries, such as the Netherlands and Belgium, which have legalised euthanasia as a mark of respect to the right of the terminally ill to choose the most honourable way of passage to the Creator while putting an end to unceasing pain and suffering associated with the ailment.
CRITICAL APPRAISAL OF THE LAW ENFORCEMENT IN ABORTION CARE IN ETHIOPIA H.Y. LUKMAN and A.T. RAMADAN
Objective: To illustrate the disparity in the law enforcement in abortion care and the widely reported induced abortion rates.
Design: A descriptive study.
Setting: The computer-entered data from the Federal Democratic Republic of Ethiopia Police Information and Documentation Center.
Materials and Methods: Two hundred and sixteen case files handled by the police in the last two years. The data of 326 subjects accused of alleged abortion related legal wrong doings were analysed for age, marital status, educational level, occupation and the due process in the court of law. The magnitude of induced abortions is reviewed from the available institutional based studies.
Results: The majority of aborting mothers, the service providers and their accomplices are found to be young, unmarried, poorly educated and of low socio-economic profile. The files that are under investigation and pending court rulings are remarkably high. The published incidence of induced abortion ratio of 318 per 1,000 live births is disproportionately greater than those that actually come under the attention of the law. Conclusion: The 1957 law is not officially repealed and its restrictive nature is not influencing the prevalence of illicitly induced abortions since the legal instruments are not fully operational. This is the consequence of fewer complaints advanced to the police and/or lack of obligatory reporting system of the events by the service delivery points.
The Estimated Incidence of Induced Abortion in Ethiopia, 2008
Susheela Singh, Tamara Fetters, Hailemichael Gebreselassie, Ahmed Abdella, Yirgu Gebrehiwot, Solomon Kumbi, Suzette Audam
As part of law reform in Ethiopia in 2005, the penal code was revised to broaden the indications under which abortion is permitted. Termination of pregnancy is now legal when the pregnancy results from rape or incest, when continuation of the pregnancy endangers the health or life of the woman or the fetus, in cases of fetal impairment, for women with physical or mental disabilities, for minors who are physically or psychologically unprepared to raise a child and in cases of grave and imminent danger that can be averted only through immediate pregnancy termination. These are significant changes from the previous law, which permitted abortion only in cases of grave and imminent danger that could be averted only through immediate pregnancy termination
A second, related change was the 2006 publication by the Ministry of Health of technical and procedural guidelines for the provision of safe abortion services, to "translate the law into actionable measures" and to inform "women, health professionals, law enforcement agencies and all sectors of society" about implementation of the law. l However, various factors-the need to inform women and providers about the new law, a shortage of trained personnel and inadequacies in the country's health care infrastructure, especially in terms of coverage of the large rural population-mean that providing wide spread access to new services would take time and require efforts from many institutions and sectors of the population.
Prior studies have documented that unsafe abortion has been an important and ongoing health problem in Ethiopia. The 2005 Ethiopian Demographic and Health Survey (DHS) estimates that 673 women died of pregnancy-related causes for every 100,000 live births in the six years prior to the survey.2 The World Health Organization (WHO) estimates that in Eastern Africa, unsafe abortion accounts for one in seven maternal deaths.3 In a 2001-2002 study in a major university hospital in Addis Ababa, post abortion complications were one of the three leading causes of maternal mortality. According to a large-scale study in 2000 of 15 hospitals in nine of the country's 11 regions, more than half of women treated for complications of induced abortion had gone to an untrained provider or had induced the abortion themselves.5 A bibliographic review spanning 1985-2000 indicates that many attitudinal and organizational barriers prevented women from obtaining post abortion services without delay and that these barriers resulted in low-quality increasing.
The desire for smaller families is increasing, which reflects broader social and economic changes in the country: The average desired family size declined from 4.9 in 2000 to 4.0 in 2005. And although contraceptive use has increased, unmet need for contraception has remained high. Women in Addis Ababa and other urban areas are delaying marriage into their 20s, probably in response to adverse economic conditions. This delay in marriage may result in increased sexual activity among unmarried young women, raising their risk of unintended pregnancy as well as abortion, given that childbearing outside of marriage is highly stigmatized. In DHS surveys, few unmarried women report ever having been sexually active, but data from other, smaller-scale studies suggest that sexual activity among the unmarried is not uncommon.
The present study was undertaken to estimate abortion incidence in Ethiopia, to shed light on the extent to which unsafe abortion is occurring and to estimate the level of use of legal abortion procedures following the 2005 change in the abortion law and the 2006 Ministry of Health safe abortion guidelines. Better documentation of the overall incidence of abortion and of its two components-clandestine or unsafe abortion and legal abortion-is essential for informing policy decisions and program design, and for monitoring the impact of existing policies and programs in Ethiopia. Data on the overall incidence of induced abortion is a crucial indicator of women's and couples' difficulties in preventing unintended pregnancies, and of their need for better contraceptive services. Information on the level of unsafe abortion and post abortion complications can be used to help focus public attention on this issue. In addition, it can help the government design improved post abortion care services (including the provision of contraceptive services as part of post abortion care), and programs to educate women and couples about legal provision of abortion and how to obtain the procedure. National data on the incidence of legal abortion is an important indicator of women's access to services under the new criteria and of women's, providers' and the general public's awareness of the abortion law.
ABORTION LAW IN ETHIOPIA: A Comparative Perspective Tsehai Wada
Induced abortion or the deliberate termination of pregnancy is one of the most controversial issues in legal discourse. As a legal issue, abortion is usually discussed in light of the principles of criminal law. Depending on circumstances, however, abortion can also be discussed from the standpoint of constitutional law. In the former case, the issue usually takes the form of criminalizing or decriminalizing the act, while in the latter, the issue becomes whether a pregnant woman has a constitutional right to terminate her pregnancy. The issue thus usually involves the competing arguments in favour of the “right” of the fetus to be brought onto life (i.e. personhood) vis-à-vis the right of the mother to abortion based on her interests and choice.
Although many factors have contributed to the debate, it appears that religious outlooks permeate the controversy pertaining to criminalizing and decriminalizing abortion. Major religions still hold that abortion is the deliberate taking away of life and, therefore, not condoned under any circumstance. On the other side of the spectrum, advocates of women’s rights, argue that when the interests of the fetus comes into conflict with the rights of the pregnant woman, the latter should take precedence and it is the woman’s decision that should count in the end.
The issue whether a fetus has a life of its own that is worthy of protection under the law, is found to be another issue of contention. Some argue that a fetus has no life of its own for some weeks while others contend that life starts from the very moment of the union of the sperm and the egg, which according to this view is a scientific truth. One of the major aspects of the debate on abortion is the mindset of these perspectives of thought influenced by different values.
Abortion is an issue, which affects every country in the globe. In countries that have decriminalized abortion, women are spared of the dire consequences of illegal abortion. In many other countries wherein abortion is a criminal act, however, illegal abortion is the major cause of maternal mortality and other serious health problems, as is to be discussed at a later stage.
Given the nature of abortion as an act as well as a point of debate, the issue deserves discussion from a comparative perspective.
This article attempts to shed light on the historical development of the laws of various countries and the effects of illegal abortion in many countries. Religious positions are the main catalysts that fuel the debate on abortion, and the article will thus attempt to highlight the positions of some of the major religions.
Ethiopia’s legal regime pertaining to abortion has been changing through time. In 2004, Ethiopia has enacted a new Criminal Code that has radically (albeit inadequately) reversed the highly restrictive position of previous laws on abortion. The process had involved a lively and heated public debate on the pros and cons of criminalizing / decriminalizing abortion. In addition to changes in the law, therefore, the debate has enhanced public awareness and concern over the issue. Thus, the new law and the setting of public discourse which accompanied its enactment will definitely influence the conduct of many individuals including pregnant women, physicians, illegal abortionists, etc. for the years and decades to come. This article, therefore, attempts to show the nature of the debate and critically examines whether the new law has appropriately and adequately addressed the issue.
This article encourages readers towards informed judgment rather than polarized recriminations. The first and second sections of this article discuss the history of abortion and the positions of major religions on abortion. The third section addresses the legal regime and its impact in various countries. And the last three sections deal with Ethiopia’s abortion law and the public debate that surrounded the 2004 Criminal Code, followed by conclusions and recommendations.