Criminal Investigation and Models of Litigation

The body of law that was indigenous to Ethiopia and that marked a significant development in the last decades of this century was the regime of law known in modern legal science as civil and criminal procedure laws. It had been transmitted from generation to generation by oral tradition.

Before the Italian occupation in 1936, it was the procedural law that was comparatively well developed and that had attained a high degree of excellence. It was also the same law that was more popular among the people than the substantive law, a fact that tends to show how much the people of Ethiopia give due respect and importance to the proper administration of justice. Judges and all other persons engaged in the administration of justice were respected and honoured. They were expected to live up to the then standard of justice and aspire to the attainment of this lofty goal.

This procedural law included the law of evidence, which incorporated techniques of investigation and highly sophisticated interrogation and cross-examination procedures, methods of interpretation of law and framing of issues, including principal and side issues (obiter dictum). All these fell under the administration of justice process of Ethiopia.

Criminal investigation devices

In criminal cases, court proceedings were often preceded by the investigation of the commission of the alleged crime.

There were three types of devices of crime investigation or detection under the old procedural law of Ethiopia. These were known as leba shay, afarsata, and the investigations undertaken by the “market guards” (arada zabagna) and secret guards (mist’ir zabagna).

(i) The Leba Shay: device for detecting criminals (c. 1900-1922)

Leba Shay was a method employed to identify a thief by using a young boy who had not attained the age of puberty. He was made to drink a beverage made of a certain herb. One end of a strip of a cloth would be tied around the waist of the boy and the chief of leba shay would follow the intoxicated boy wherever he went by holding the other end. Since it was believed that water would neutralize the effect that the herb would have no the boy, great care was taken to keep him away from it. In the house where he collapsed, he would again be made to drink the beverage so that he could identify the particular individual from among the inhabitants of the house. The boy would push aside any one he meets entering the house of the suspected culprit. Any person on whom he laid his hand would be taken as a suspect and brought before a court of law. At some stage of its development, supplying information to the boy was made a part of the practice. This brought more harm than the service it rendered, for it could easily be manipulated to serve individual interests.

During the reign Empress Zewditu (r. 1916-1930) an investigation for a thief who had stolen a garment from the palace was conducted by leba shay. The chief of leba shay hinted to the intoxicated boy to indicate someone as the person who had stolen the garment. The person thus picked was a well-known personality among the imperial courtiers but he was not on good terms with the chief of leba shay. This incident triggered a lot of controversy among the imperial courtiers, particularly when it was later discovered that the garment had been found after it was offered for sale at the market and that it had been stolen by a maid of the palace. Blaten Geta Mathteme-Sellassie recounted that this particular incident revealed the disadvantages of the institution, as a result of which Empress Zewditu abolished leba shay as a technique of criminal investigation.

Indeed leba shay is not by any standard a modern method of criminal investigation. Nonetheless, in the absence of such modern institutions as a police force and crime investigation, the institution of leba shay must, at the time, have served as a psychological deterrent in the minds of potentially dangerous people.

(ii) the Afarsata: gathering to screen criminals (c.1900-1960)

The afarsata was a device by which all male members of a community would assemble to identify an offender.

Whenever a person or a group of persons reported to the local chief or other official that cattle had been stolen, that they had been robbed or that one of their relatives had been murdered, the local chief ( chiqa shum ) or the village shum (dug) would call on all male members of the community in that locality to assemble in assemble in a  fixed place on a given date. In the assembly, the elders would call upon each person to tell whom he suspected. Every person would declare the identity of the person he suspected or what had been told to him by the “singing bird”. The person who would testify as to the identity of the criminal under oath was kept secret and referred to as “bird”. The person thus identified as the offender would be prosecuted and convicted before a court without having the chance to confront the witnesses for the prosecution.

In what is now the Gonder region, the person who said that he saw the commission of the crime was known as a “bird” (wof), while the one who testified as having heard it from another person was referred to as a “stone” (dingay). A prosecution would take place against the person who was identified as the offender by the testimony of the “bird” or the “stone”. It was an established practice not to allow anybody to go home until the identity of the criminal was established. As a result, a great deal of harm was done to innocent people. The following comment given by an elderly person on this institution leads to the same conclusion.

In a certain place, there were three well-known thieves who brought about untold harm to the people of the community. Their names were Lemma, Bitwe and Jenber. They lived in the community pretending to be law-abiding citizens. The people tolerated them quite a long time for fear of vengeance. However, in one of the public meetings, a certain witty man declared that in out community, the thief is flourishing (lemma), he better stop it (bitew yettew), if he does not, are we supposed to be kept on jammed in such a meeting every day (jenber bessereqe qutter).

Thus the witty man revealed the names of the thieves by the use of ambiguous phrases.

A law regulating afarsata meetings was issued on August 2, 1933. This law provided that gatherings be conducted on Sundays only. The person who revealed the identity of the suspect, pursuant to this law, was made to testify before the court. Hence, this law made it possible for the accused to confront witnesses for the prosecution. A person who failed to attend such gathering would be liable to a payment of a fine (adafagen). If the people failed to identify any person responsible for the alleged crime, the entire community would be liable to make the damage good. If the offence committed was homicide, members of the community had to contribute to redress the damage inflicted on the relatives of the deceased.

Later on, a circular letter was issued by the Ministry of Interior that required the attendance of a policeman in all such meetings. Furthermore, when the investigation was over, the so-called “bird” was required to testify openly before the court.

In times when modern techniques of criminal investigation were not sufficiently developed or totally absent, techniques such as the afarsata must have had their own reason deter. After the adoption of modern techniques of investigation and other rules of criminal justice, the decision to maintain such an institution was unwarranted, particularly when it is seen in the light of its negative effects. It was not deemed wise to maintain such an institution because it was not only a psychologically and socio-economically damaging practice, but also an ineffective method of screening criminals from amongst innocent persons. In fact, it allowed a great deal of lee-way for abuse and even corruption. Even where it was correctly applied, the very nature of the procedure went against the principle of due process of law. Since the leba shay assembly, by its nature, passed in to decline and since it was, at least by implication, repealed, there was nature, passed in to decline and since it was, at least by implication, repealed, there was no justification for its continuity after the promulgation of the 1955 Revised Constitution.

(iii) Market guard and secret guard (1909-1936)

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The market guard (arada Zebagna) was very close to what we now refer to as the metropolitan police force. The main responsibilities of the market guard were:

1)      to maintain peace and order in the city of Addis Ababa,

2)      to guard at night the shops in the market places (arada), and

3)      to detain any person who acted contrary to the law and the accepted ways of behavior, and cause such person to appear before the competent municipal court.

The market guard also had the power to arrest persons found committing, or suspected of committing, a crime. After the necessary investigation, the market guard could bring such persons before the market court. An appeal from the decisions of the market court was taken to the lord mayor of the city.

Where a person instituted a civil action for battery, the market court required a prior payment of the court fee. This was controversial. One person remarked: “what justice where the one injured is required to pay beforehand.”

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The secret guard (mist’ir zabagna) was a unit of the market guard that was charged with the responsibility of crime prevention.

The secret guard was charged with the crime prevention by moving around public squares, and in hotels and bars where alcohol was served. The inscription “Secret Guard” was engraved on the front of their identity (and “secrecy”), this was done to have a deterring effect on would-be criminals aware of their presence.

The secret guard remained a device of crime prevention and control during the period before 1936. It maintained peace and order, gave due warnings, reprimanded offenders who committed petty offences, and brought before a court of law those persons who were accused of committing serious crimes. In short, the institution can be said to have served as useful technique for the enforcement of enacted laws and customary laws.

Public prosecutor and legal Counselor

Not much is known regarding the establishment and development of the institution of public prosecutor in Ethiopia for the earlier period. One may find scattered facts that indicate the existence of a public prosecutor before the eighteenth century, the most vivid account of which was given by James Bruce, the eighteenth-century Scottish traveler who lived in Ethiopia for some years and wrote a book on his quest for the source of the Nile… the chief administration of prisons were customarily required to act on behalf of the government as a public prosecutor.

This practice was operative until finally a law establishing the office of public prosecutor was issued in 1943. According to this law, a public prosecutor should possess a sound knowledge of law or should have judicial experience. No person was to be appointed a public prosecutor other than those who had been an advocate, government official, or police officer who has above the rank of assistant inspector of police. According to this law, all prosecutions other than private complaints were to be conducted by a public prosecutor who could plead in any court where a criminal case was instituted.

Before 1943, the initiation of criminal proceedings was to a very large extent left to the aggrieved party or to his representative. It must have been the outcome of this procedure that the framing or handling of issues of fact or law required no special skill. Any person who attended court sessions and was gifted in oratory was considered as person skilled in the art of advocacy. Without the need to fulfil any formality, such a person could practice law both in civil or criminal proceedings. Legal counselors were free to enter in to contractual arrangements with individual litigants to be paid a fixed sum of money or to be given a plot of land in return for the services they rendered. In cases in forma pauperis, any person attending court litigation had the right to offer his legal service, known as voluntarily without payment (belich’egnannet), but such offer had to secure the consent of the accused party.

Legal skill was, in those days, acquired through frequent attendance at law courts and practice. As a result, except for complicated cases, every person who satisfied the minimum requirement could argue his case without the need of legal aid. The existence of such laissez-faire practice in the legal profession has accentuated the degree of refinement attained in the modes of litigation known as “be interrogated” (tat’ayyeqser’at), which is demonstrated below.

Features of court proceedings

Litigation, at its initial stage, was a voluntary and spontaneous form of arbitration. A party to a dispute was entitled by law to call upon any passer-by to decide his case. If the parties to the alleged dispute were satisfied by the rulings of the road-side courts, the matter would be considered settled. However, if a decision could not be obtained which was satisfactory to both parties, they would go to the regular court. Sometimes the person who acted as the road-side judge would take them to the lowest official judge.

Assessors (techewoch) stood next to the judge in order of importance. Some of them were selected by the contending parties, and some by the court from among those people attending court session.

The third typical feature of the judicial process was the production of guarantee (wass). The most frequent forms of guarantees were: (a) yesene-ser’al wass (a guarantee produced by both parties at the time of initiation of a case to ensure respect and fulfillment of all procedural requirements of the court and also to ensure the appearance of the party in question on the day fixed for the hearing); (b) yedagnennet wass (a guarantee produced by both parties at the initial stage of a proceeding for securing the payment of the court fee by the party who lost the case); (c) yewurered wass (a guarantee entered in to at the time of court proceeding to secure the payment of a wager or bet payable by the loser on and at the time of settlement of the issue under consideration; and (d) yebesselle wass, a guarantee to secure the payment of the value claimed in a civil suit, produced at the time of pronouncement of judgement).

The fourth and last element in a legal process involved in this system was the institution known then as nagarafaj (advocate or lawyer) that pertained to a person who usually had a fair knowledge of the law and who had agreed to represent a person before a court.

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In principle, a witness was not required to tender an oath before his testimony. He would, however, be warned to testify to the truth and only the truth. Failing this, the party against whom the witness testified had the right to request the court to require the witness to tender an oath. This was done during Holy Mass particularly, when the Holy Communion was offered. The witness would close the door of a church or hold the Holy Bible and say:

May he perforate me like his cross,

May he erase me like his picture,

May he chop me down in to pieces like his flesh,

May he spill me like his blood, and

May he choke me up as his alter is closed,

If I am not telling the truth.

In case of perjury a penalty, short of death sentence, would be imposed on him in secular courts. In ecclesiastical courts on the other hand, a clergy who is proved swearing falsely was expelled or deposed, according the provisions of the Fetha Negest.

If a witness had already testified out of court, the other party could impeach the credibility of his testimony or might claim that it could not be admissible at all. Consanguineous relationships and other relationships such as godfather, adopted child, godchild and the like were grounds that could be invoked to bar a person from testifying or to discredit his testimony. The party who called the witness would, before asking him to testify, warn him as follows:

One may go to hell after death;

One may be reduced to bones, laying sick in bed;

One may also be a permanent inmate of a hospital;

All the same, one is obliged to tell the truth.

In a similar manner, the defendant would advise the witness to tell the truth and ask him to testify that he did not know what was alleged by the plaintiff.

After the witnesses had given their testimony, the party that felt the most of the witnesses had testified in his favour would pray for judgement to be entered in the following manner: “threshing ground would go to the one who prepared it, judgement should be made in favour of one who had proved right”.

There were instances where each party to the suit would claim that the testimony given stood in his favour. In such a situation, contentions were settled by mere allocations of the testimony to this or that party by persons selected as new observers (irtibe emagne). Later on, however, a rule was made that required the witness who gave the testimony that had become the object of contention to be recalled to state whom his testimony favoured. His answer would automatically settle the matter.

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Appeal

Judicial and administrative functions were entrusted to governors and local chiefs such as grant land-holders (bale-gult), the head of a monastery or church, or the shum (chief) of court of first instance (yesir dagna) on matters of extra- contractual liabilities and matters connected with contract such as those arising out of betrothal or marriage relationships. An appeal against the decision of these courts was lodged to the destrict court (akaldagna). In regions administered by the officials of the palace (gann-geb), provincial governors (shaleqas) or persons appointed by them as representatives (messlenes)or as local officials (duges) used to have jurisidiction at the district level as a district court.

Appeals from the district court were taken to the governor’s (shaleqa-wambar) at the province level. From this it used to go to the provincial governor himself for review. Appeals from the provincial governor’s judgement were lodged with the chief justice and his judges. Cases of injury to the human body, arson and homicide were adjudicated by the chief justice and the senior judges (ras wambars) and not by local governors.

The court of the chief justice was therefore the supreme judicial body for all civil and criminal matters save crimes punishable by death. Sentences other than capital punishment passed by the chief justices were executable without the need for confirmation by the emperor. In some exceptional situation, however, the decisions of the chief justice were appealable to the Crown Court. In case where a person had lost a case in the court of the chief justice, and where such a person secured leave to take his case to the Crown Court, a note used to be issued enabling such a person to appear before that court.

Sentences of capital punishment were passed by the emperor only after the assessors gave their option in the crown court on every point of the case and the relevant provisions of the Fetha Negest which were read and interpreted by scholars.

An appeal could be based on any substantive or procedural issues, including interlocutory matters. Every complaint lodged against the judgements or interlocutory decisions of a court was examined not only by judges sitting in higher courts, but also by korqwaris (king of assessors) attending the court session.

Appeals made on interlocutory orders were not very frequent. However, whenever one of the parties felt such interlocutory decisions would be prejudicial to the principal issue, he was justified in making an interlocutory appeal. For example, if on a question of title, a ruling was given regarding the mode of proving such a subsidiary issue as the existence of a pre-emptive right in the customary law of a specific ethnic group, which would adversely affect the interest of the complainant unless immediately addressed, then this might be considered as a justifiable ground for lodging an interlocutory appeal.

Another matter that was taken to a higher court, particularly that of the Chief Justice, was the question of interpretation of the law. A dispute over who had the right to prove an allegation, and questions of interpretation of law were submitted to the Chief Justice, who was assisted by the senior judges. For instruction or guidance as to how a set of facts or questions of law was to be interpreted, it was to this court that judges of lower rank had to make reference.

In those days (before the Second World War), everyone had a chance to take his case on appeal as far as the emperor, when s/he was not satisfied with decision of lower courts. Regarding the procedure applicable in the Crown Court, for the earlier period, the Ser’ate Mengist, which is believed to have been an old legal text, provided the following order for assessors to speak:

The first ones to give their options are Shaleqas. Then follow Seyoum Musse. Then the Bejirond of Anbessa Bet and Bejirond of the palace followed suit. Next to them come Lique-Mequas, Balambaras, Fitawrari, Gerazmach, Blaten Geta of first rank, Tsehafi Te’ezaz, Ras Masserea and Basha. The next that would be allowed to speak are Dejazmach of Damot, of gojjam Amhara, Begameder, Semien and after them follows the Nebure-ed of  tigray, than comes Akabe Ser’at, Blaten Geta and finally Ras.

Regarding the nature of proceedings of the chilot in the recent past, Blaten Geta Mahteme-Sellassie gave the following account:

Criminal cases brought from various lower courts were read in the presence of the accused. Everyone listens to the case as one would do in Holy Mass. Where a case is sufficiently dealt with, the accused will be asked as to whether he admits or not. If he admitted all that had been said and if the case was instituted by a private complainant, the aggrieved party would plead that the verdict be given.

If the accused requested that his case be further investigated, then everybody attending the court would be allowed to ascertain the truth by way of examination and cross- examination. All persons skilled and experienced in this matter will make use of every bit of their wits and intelligence.

After conviction, the private complainant or official of the government demands that the accused be sentenced to death or to this and that type of punishment, while the accused pleads that his case does not carry such sentence or simply prays for mercy.

After this, the process of the sentencing starts.

Every person attending the court, starting from those who are standing and the shambles, would give his opinion when requested by the usher (agafari). Everybody does according to the practice of his locality. When doing so, one had to turn his face towards the emperor and stand close to the usher (agafari)….

After those who have stood gave their opinion, those who sat do the same starting from the lowest to the highest rank. Then follow the judges (wambars) in their order of rank. The Betwededs and Dejazmaches would give their opinion coming just before the judges of the first devision.

Then, the chief justice (afe-negus) gives his opinion. Everybody had to remain standing in the entire process, except for the emperor. Raising his head, the Emperor listens to them all attentively. The scholars having cited the appropriate provision from the Fetha Negast would read and translate and interpret it for the public and would decide whether the accused deserves capital punishment, imprisonment or any other punishment or no penalty at all. If the emperor finds any problem as to the interpretation of the cited provision, he may adjourn the case for the morrow. If the interpretation suggested is favoured, judgement would immediately be given and when the death sentence is pronounced, one hears the cheering of the family of the victim and the cry of the family of the condemned.

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Finally, the right to take cases to the crown court was, likewise, provided in the law. Hence, one may realize that a party to a suit had, in those days, as many as five stages of appeal.

The emperors of Ethiopia were reviewing cases in the Crown Court (Zufan Chilot) while seated. However, Emperor Haile Sellassie I, due to a vow he made to God while he was in exile in Britain during the Italian occupation from 1936 to 1941, reviewed cases in the Crown Court (in the period 1941-1974) standing up for hours.

Execution of judgments

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Judgements in minor criminal cases were executed then and there as the decision was made by lower courts. Serious criminal offences such as homicide, injury to the human body and arson, however, after being decided by the competent courts, would be sent to administrative bodies that had the responsibility and power to execute them. Blaten Geta Mahteme-Sellassie gave account of the execution of decisions rendered by the Crown Court as follows:

After the judgment had been rendered, an instruction is issued to the office of the ligaba [Lord Chamberlain] to execute the sentence. The ligaba would, on his part, according to the judgment, order the convicted person to face a firing squad, to be for life or for a given period. Immediately after a sentence of flogging is pronounced, the person’s hands and legs would be tied with a rope. Then, he would be pegged in the middle of a field where he would receive utmost forty lashes. The sentence of flogging was executed by an authorized person.

Capital punishment, when confirmed by the emperor, was executed around the area where the present Addis Ababa Qirqos Church is located. Later, it was executed in a building in the neighborhood of the present ammunition factory.

A convict against whom the death sentence had been passed and confirmed used to be given three days leave to take the traditional medicine against tapeworms (kosso, i.e. the plant Hagenia abyssinica). It was within this time that he was required to leave his will and to make a confession, if he wanted to do so. If he was to be killed by a firing squad, one of the relatives of the aggrieved party would be given a rifle to shoot and kill him. If the capital punishment was to be executed by hanging, it was usually done within the prison grounds by an authorized person. It is said that the act of hanging a convicted person used to take place in Addis Ababa on the branches of an oak tree that was found where the present statue of the Emperor Menilik II is located. If the rope broke loose when the convicted person was being hanged, he would be set tree. Many years ago a person was sentenced to face a firing squad, accordingly, he was shot at. However, he was only wounded and slowly recovered. The issue was raised as to whether he should be shot again. To cut the Gordian knot, a committee consisting of Ethiopians and foreigners was set up to decide the issue. The Ethiopian members of the committee drew an analogy between the customary usage that forbids the hanging of a convicted person for the second time in cases where he had been saved because the rope broke before he died. The foreigners, on the other hand, held that irrespective of time and other considerations, a judgment once passed should be executed. It was finally decided by the emperor that the opinion that conformed to the traditional practice should prevail.

Places where sentences of impersonment were executed were prisons known as government prisons (weheni bet), provincial prisons (isir bet) and gaols (zebetteya). Government prisons were established in Addis Abeba and other places and were administrated by a warden (weheni azazj). Government prisons were the central government’s prisons, whereas provincial prisons were under the control of provincial governors. Gaols (zebetteyas) were set up in Addis Abeba and Harar, they had the same function as modern police stations.

Thieves found in the market place in Addis Ababa were detained in the gaol. Many popular couplets (losing all flavour in translation) expressed the common feelings about the goal, e.g., “the market is nice, for eating meat and drinking mead (tej) but what makes one afraid is that one might have to spend a night in gaol.

In the period under discussion, persons accused of committing serious crimes were often kept in prison for undefined periods. Such persons used to petition the court to determine their status. The court had the right to release such prisoners when it deemed it appropriate. Detainees who had no relatives to bring them food were permitted, under guard, to go to the house of their relatives, friends and acquaintances in search for food and drink. Persons who could not pay the agreed amount of blood money (guma) would try to raise the required amount of money by going from village to village accompanied by a guard. To symbolise their distress, they used to tie their hands with iron chains.

Depending on the gravity of the crime committed, a prisoner could be sentenced to three different types of imprisonment. The first one was known as imprisonment by chaining leg and hand (igir teworch). This kind of the penalty was imposed on dangerous criminals such as habitual murderers and bandits. The second imprisonment by shackle (igir beret) was a measure taken against murder, mutilator of human body and persons who committed arson. The third kind of penalty that was taken against common criminals was chaining by the leg (igire mook).

Historical Introduction to the Criminal Procedure Code, 1961

Prior to the 1960 CPC there was no systematic body of legislation in the field. Only a few proclamations enacted early during the post Liberation era were in existence. These showed a strong Anglo-Indian influence, as might be expected from the British influence in the country at that time.

In the early 1950’s the Ethiopian government decided to adopt new codes in all major areas of the law, and for that purpose to call in foreign experts to do the drafting in close consultation with local Ethiopian and expatriate colleagues. The task of drafting the criminal procedure code fell initially to the eminent scholar of comparative penal law and procedure, Professor Jean Graven of Geneva. He was then also engaged in drafting the Ethiopian Penal Code of 1957. From the documents now available to the present writer, it appears that formal discussions of the CPC began on August 13, 1955-the date of the first process verbal-in a “commission of codification of procedure” presided over by the Minister of Justice. Notes of all commission discussions were taken by M. Philippe Graven, son of Professor Jean Graven and at that time an advisor to the Ministry of Justice. Virtually all of the codification materials were originally drafted in the French language, and French and Amharic were probably the languages of discussion at the commission sessions.

The commission’s first discussions took place until October, 1955; there was then a break until they resumed in July, 1956; they then carried on more or less continuously through February, 1957, when there was another hiatus. They resumed in August, 1958 and occurred through October of that year. Another period of commission inactivity on the project followed; this ended in October, 1960, when final discussions were held. These terminated in commission approval of the draft code, apparently in November, 1960. After submission of the code, parliament amended the draft in some respects; it was promulgated in 1961.

In its deliberations, the commission considered several drafts of a procedure code. Beginning with an initial draft of 241 articles (dated March 1, 1956), Professor Graven had presented to the commission an avant-project of 840 basic articles, and another 174 articles dealing with post-judgment proceedings by December 29, 1956. The next version of the code’s text was apparently the texte definitive, drafted by Professor Graven in two instalments, dated December 6, 1958 and July 23, 1959. This version consists of only 159 articles, and resembles the present code in content much more than did the first draft. The texte definitive also contains annotations by Professor Graven commenting on the changes he had made in the previous drafts. The last text version available to us is a very slightly modified English translation of the texte definitive; it is dated November 9, 1959, and consists of 158 unannotated articles.

The history of the CPC is in a way the story of a gradual discarding of Professor Graven’s initial drafting work, although it is clear that his draft did ultimately influence the code’s final structure, and in some respects its contents. A major alteration of the draft occurred when, apparently in 1957, the commission decided that the code should not contain the draft’s many general provisions dealing with judicial organization, jurisdiction, evidence, etc., but that those provisions, which constituted the first 443 articles, should be shifted to a separate code, the “code judiciaire,” which would govern these matters for both civil and criminal matters. During 1957 and 1958, Professor Graven drafted two versions of a code judiciaire, adapting the borrowed 443 articles as its core, but adding others to a grand total of 757 provisions. The commission sat to discuss this code between August 2, 1957 and August 12, 958, but eventually decided to drop it entirely. Seeing as the Civil Procedure Code appeared in 1965, and an evidence is reportedly now in the drafting stages, it seems doubtful that the code judiciaire will ever be revived.

The second factor which led to the partial abandonment of Professor Graven’s draft was the decision, reached apparently in late 1958, to abandon the initial project of an evenly “mixed” continental-common law procedure for an overall design more substantially adversary and thus less continental. A perusal of the commission debates reveals that even from the start there was some difference in views between those commission members who were trained in common law procedure, and those who were trained in continental procedure. This difference was of course to be expected. It may well have contributed to the creativeness with which the drafters approached the task, as they it, of constructing a truly Ethiopian procedure, which would not simply copy either continental or common law procedure, and those who were trained in continental procedure. This difference was of course to be expected. It may well have contributed to the creativeness with which the drafters approached the task, as they saw it, of constructing a truly Ethiopian procedure, which would not simply copy either continental or common law rules. Be that as it may, in October, 1958, the commission agreed to give Professor Graven’s avant-project to sir Charles Matcew for examination and proposed amendment. Sir Charles was a distinguished English jurist who had had wide experience in East Africa, Ethiopia (during the post-Liberation period), and Malaya prior to his renewed tenure in Ethiopia as Advisor to the Ministry of Justice. Sir Charles was asked to review Professor Graven’s draft with a view to simplifying it, and to making it less “inquisitorial” and more “adversary” than it was. A likely reason for both the referral to an English lawyer and the instructions given was that the Ethiopian courts had British-influenced, adversary procedures since 1941 at least; substantial alternation in procedure might have caused confusion to Ethiopia’s judges and advocates. It is most likely that professor Graven’s texte definitive, which so differed from the avant-project, was strongly, influenced by sir Charles’ proposals. Indeed, the November, 1959 English “version” of the texte definitive may have been drafted by sir Charles. Professor Graven had stopped attending the CPC commission discussion in August, 1956, and Sir Charles Mathew first began attending those meeting in early February, 11957, playing an important role until the deliberations ended in November , 1960. It appears that Professor Graven submitted his texte definitif to the commission from abroad, and that the whole movement towards a more adversary procedure and away from some of the continental institutions of his draft occurred after his departure from the scene.

Knowledge of this background to the code makes it easier to understand the code’s structure and sources. The unique organization is essentially based on Prof. Graven’s avant-project. Many code provisions, particularly those with continental sources, are also derived from his avant-project, but they have usually been lifted out of their original context and shortened almost beyond recognition. The Code’s sporadic relationship to Malayan, and therefore, ultimately, Indian law, derives from the influence of Sir Charles Mathew’s drafts. The overall flavor of the law is adversary, but the adversary system often contains fragments of “inquisitorial” procedure retained from the avant-project.

In my opinion, the criminal procedure Code is not very satisfactory. Indeed, it is hardly a “code” at all, if by that term we mean a consistent, integrated body of law whose coverage of the subject is reasonably comprehensive. The law especially suffers from being overly brief [only 224 articles as compared with the Civil Procedure Code’s 482 articles], and therefore from being too sparse, with too many crucial gaps. Filling the gaps by the interpretation is made extremely difficult because it is hard to extrapolate legislative intent from a body of law which so lacks cohesiveness. And, of course since no one foreign country’s legislation was substantially taken as a model, one cannot often resort to foreign commentaries or jurisprudence for aid, as one can for substantial portions of every other Ethiopian code.

Hopefully, the code will before too long receive a fresh appraisal, with a view towards comprehensive revision. Because the code is still somewhat new and is not yet followed everywhere in the country, there is still a period of “grace” in which to work...