On the power of the federal government to develop and enforce criminal laws

The following is an extract from a monograph that I am developing on Ethiopian criminal law. I posted it here with a view to soliciting views from readers. Ethiopia is a federal state. Hence, the first question that should be raised is as to how  trial jurisdiction is allocated between federal courts on the one hand and courts of regional states on the other.

Related to the jurisdiction to try criminal cases is the respective roles of federal and regional governments in the development of criminal laws. Article 51 of the Constitution enumerates the powers of the federal government. Since the federal government consists of legislative, executive and judicial arms, it can be assumed that, on these enumerated matters, the federal government will generally have legislative, executive and judicial powers. For example, the federal government is mandated to ‘determine matters relating to nationality’. On this basis, it may be submitted that, the federal government possesses legislative, judicial and executive powers over matters relating to nationality.

An exception is only with respect to certain matters. For example, the constitution authorizes the federal government to enact laws for the utilization and conservation of land and other natural resources. And regional states are entitled to administer land and other natural resources in accordance with federal laws. From these it follows that the federal government has only legislative power regarding utilization and conservation of natural resources. The power to administer such resources is left to regional states, except in relation to international rivers and waters or those crossing or linking two or more regional states. It can, therefore, be concluded that except in those cases where its power is specifically restricted, like in the case of natural resources, the federal government exercises legislative, judicial and executive powers over those matters enumerated in Article 51.

The Constitution goes further and explicitly deals with the powers of the House of Peoples’ Representatives, the legislative arm of the federal government. The House of Peoples’ Representatives is said have the power of legislation in all matters assigned by the constitution to federal jurisdiction. This is a reference to the twenty-one items enumerated in Article 51. Therefore, on these twenty-one items the House of Peoples’ Representatives exercises legislative power.

Article 55(2) states that consistent with Article 55(1), the House of Peoples Representatives shall enact specific laws on the following matters: utilization of land and other natural resources, of rivers and lakes crossing the boundaries of the national territorial jurisdiction or linking two or more States; inter-State commerce and foreign trade; air, rail, water and sea transport, major roads linking two or more States, postal and telecommunication services; enforcement of the political rights established by the Constitution and electoral laws and procedures; nationality, immigration, passport, exit from and entry into the country, the rights of refuges and of asylum; uniform standards of measurement and calendar; patents and copyrights; and the possession and bearing of arms. It appears that there is nothing new which is introduced by Article 55(2) as the matters which it enumerates are those already provided in Article 51. It is submitted here that Article 55(2) has only an illustrative purpose.

The problem lies regarding Articles 55(3), (4), and (5). Article 55(5) states that the federal government shall enact a penal code. Regional states may, however, enact penal laws on matters that are not specifically covered by federal penal legislation. There are two possible interpretations of this constitutional provision.

Broadly interpreted, this provision can be taken to mean that the federal government is entitled to enact criminal laws on any matter; and regional states enact criminal laws only on those matters not covered by the federal legislation. This interpretation has the effect of allowing the federal government (instead of the Constitution) to determine the powers of the regional states. Since the federal government and regional states are constitutionally equal, the allocation of powers among them ought to be determined by the Constitution. However, this broad interpretation of Article 55(5) has the effect of empowering the federal government to take whatever it would like and leave the rest to regional states. In addition, this broader interpretation will have the effect of giving the federal government the power to enact criminal law on a subject matter on which it cannot enact any other kind of law—this is anomalous.

It might be argued that Article 55(5) should be interpreted in light of Article 51 of the constitution. Consequently, the power of the federal government to enact criminal laws is restricted to those matters enumerated in Article 51 of the constitution. Therefore, as far as those matters in Article 51 are concerned, the House of Peoples’ Representatives may enact different kinds of laws including criminal law. If, on the other hand, a given matter is considered to be within the jurisdiction of regional states, the House of Peoples Representatives does not have a constitutional basis to enact any kind of law including criminal law. If this narrow interpretation is to be followed, then it might have the effect of invalidating certain parts of the Criminal Code as unconstitutional.

Following the adoption of the Constitution in 1995, the federal legislature, that is, the House of Peoples’ Representatives passed a law to determine the jurisdiction of the federal courts. This piece of legislation is known as the Federal Courts Proclamation No.25/1996. Article 3 of the Federal Courts Proclamation states that the federal courts shall have jurisdiction over: cases arising under the constitution, federal laws and international treaties; parties specified in federal laws; and places specified in the constitution or in the federal laws.

Since criminal law is largely federal on the basis of a broader interpretation of the constitution, it follows therefore that federal courts will have jurisdiction over all criminal cases. Against this sweeping interpretation lies, however, Article 4 of the Federal Courts Proclamation which states that federal courts shall have jurisdiction over offences: against constitutional order or against the internal security of the state; against foreign states; against the law of nations; against the fiscal and economic interests of the Federal Government; regarding counterfeit currency; regarding forgery of instruments of the federal government; regarding the security and freedom of communication services operating within more than one Region or at the international level; against the safety of aviation; that foreign nationals are charged with but not including petty offences; regarding illicit trafficking of dangerous drugs; falling under the jurisdiction of courts of different Regions or under the jurisdiction of both the federal and regional courts as well as concurrent offences; committed by officials and employees of the Federal Government in connection with their official responsibilities or duties.

It you adopt the broader interpretation and hold that the federal government can enact criminal laws even on those matters which are not provided in Article 51, then it should follow logically that the federal courts have jurisdiction over these criminal laws. If regional courts have jurisdiction over these cases, it is only on the basis of delegation of power stipulated in the constitution. On the contrary, the Federal Courts Proclamation divided offences in the criminal legislation enacted by the federal government as federal and state offences. This makes the division of powers over criminal matters at best muddy and needs to be clarified.

Here is my position. Criminal law is a form of law. In my view it is the subject matter that should be the basis for allocation of responsibilities between the federal government on the other hand, and regional states on the other. For example, insurance is a subject matter. Over the business of insurance, you may have different forms of law. If it is the federal government which has the power over regulation of insurance business, then it is also the federal government which has the power to develop and enforce criminal or other forms of laws relating to insurance. For example, at the moment, the use and sale of chat is not criminalized by the federal government. Assume that one regional state would like to criminalize it. The question is whether it can constitutionally do so. If you follow the broader interpretation above, yes it can do so since the current federal legislation does not cover chat. In my view, whether something is covered in the federal criminal legislation should not be the test. How do you determine if the thing which is placed under the federal criminal legislation is placed there constitutionally? The critical question is whether the regulation of the use and sale of chat is the federal or state subject matter. If it is a federal subject matter, then it is only the federal government which can legislate on this.

If this interpretation is adopted, the most difficult task will be to determine which of the offences in the current Criminal Code and other criminal legislation should be stricken out and be left to the determination of regional states? Take this illustration: federal legislation criminalizes and prescribes punishment for illegal cutting of trees. If, for example, one regional state, convinced that the punishment prescribed in the federal legislation is lenient, enacts for a more severe punishment, is it constitutional?