The Penumbra of Wish-Washy Stands of FDRE Cassation Division on Corporate Criminal Liability Model of Ethiopia: Case Analysis

Introduction

This commentary analyses two self-contradictory criminal cases decision of Federal Democratic Republic of Ethiopia (FDRE)Supreme Court cassation division (hereinafter referred as the division) that have equal legal value on all subordinate courts of Federal as well as Regional States to date. The central issue of these cases was the model of corporate criminal liability in Ethiopian criminal justice system.

The first case, cassation criminal case No. 58008, involves Ersade Trading Plc. and Mr. Tsedake Markos (the applicants) v. Federal public prosecutor – now Federal General Attorney – (the respondent)case while the second case, cassation criminal case No. 69899, is Yosef Hailu General Trading Plc. and Mr. Yosef Hailu (the applicants) v. Federal public prosecutor – now Federal General Attorney – (the respondent) case.

In these two cases, a contradictory holding was held by cassation division within the span of seventy three days, and it was held with the same judges of the division unanimously. The first case was decided on 24 May 2011 while the second case was decided on 5 August 2011.

In this commentary, the writer argues the division erroneously decided the first case with erroneous assumption of non-Ethiopian model of corporate criminal liability in mind whereas insightfully decided the second case from Ethiopian corporate criminal liability model perspective but failed to revise (compromise with) the erstwhile case’s interpretation as it is empowered to do by its establishment proclamation. This failure creates penumbra on the model of corporate criminal liability in Ethiopian criminal justice system from cassation division’s interpretation perspective.

This failure, moreover, makes these two cassation division’s decisions a self-contradictory while they have equal binding legal force on the same legal issue. Furthermore, this makes the interpretation in these decisions confusing interpretation of cassation division on issue under consideration in lieu of its unifying duty.

 In doing so, the division creates distortion on the model of corporate criminal liability of Ethiopian criminal law.

Thu, to elucidate the distortion made by cassation division on the issue at hand, this analysis thrash out, primarily, the concept of corporate criminal liability in birds’ eye view while the model of corporate criminal liability in Ethiopian criminal justice in eagles’ eye views, and then turns to cases at issue for this analysis.

1. Conceptualization Of The Concept Of Corporate Criminal Liability
   • Corporate Criminal Liability

Conceptually and broadly, crimes are categorized into real and regulatory crime. Real crime is a mala in se (sin with legal definition).  It covers acts that the public generally assume as being criminal while Regulatory crimes is what generally termed as mala prohibita (conduct constitutes an unlawful act only by virtue of statutes). These latter categories of crimes are sometimes termed as public welfare or crimeless crime.

Hence, real crime is the act of criminalizing evil conduct based upon the morality of a society while regulatory crime is the act of criminalizing a conduct which is not an evil conduct in real sense but conducts which prohibited under penalty to preserve public interests.  

Regarding corporate crime, Black’s law dictionary defines corporate crime as a crime committed by corporations’ representatives on behalf of it.

Moreover, Kramer defines the notion of corporate criminal liability as criminal acts which are the result of deliberate decision making (or culpable negligence) by person who occupy structural position within the organization as corporate executives or managers. These decision are organizational in that they are organizationally based –made in accordance with the operative goals (primarily corporate profits), standard of operating procedures and cultural norms of the organization and are intended to benefit the corporation itself.

Hence, according to these dictionary and scholarly definition, corporate criminal liability is a strict criminal punishment that organizations bear because of one or more of its employees commit a criminal act that fall either in realm of real or regulatory crimes.

On the other hand, Fisse wrote that if one believes that offenses are ‘sins with definitions, [...] then one cannot believe in corporate criminal liability; corporations lack a conscience in any real sense and hence are incapable of committing sinful offenses. Here, he tries to indicate that crime is not only acts that are sin with its definitions (real crime) but also due to policy matter (regulatory crime).

Furthermore, one could synthesize this argument – Fisse’s argument – as to mean that corporate crime could only be regulatory crimes but real crimes. However, practice across the globe never verify this argument, rather beyond this stands one could in one piece defines the concept of corporate crimes as any crimes – may be real or regulatory crimes – that are committed by organizations.  

• Vying Views On The Status Of Corporate Criminal Liability

Century-old discourse of for and against the concept of corporate criminal liability could be subsumed under the umbrella of the arguments of ‘Fiction Theory’s and Real Entity Theory’s exponents. The partisan of ‘Fiction theory’ hold the argument that stands in sharp contradiction with that of Real Entity Theory’s promoter; and that of the vise verse is also the same.

Thus, for straightforwardness purpose, let we look the views of these two theories regarding the status of corporate criminal liability one after another. 

• Fiction Theory

The pioneer theorist of fiction theory, Savigny, maintained that criminal law has to do only with natural persons as thinking and feeling persons exercising their free will. A legal person, however, is not such persons, but merely a property owning being, with its reality based on representative will of certain individual persons, which, by way of fiction, is attributed to its own will. Following this theorist, other exponents of this theory contributed for its further development. E. Bekker et al., as an instance, argue corporations have a pure patrimonial character which is created for a particular commercial purpose and lacks juridical capacity; and then they conclude that it cannot be the subject of criminal law.

Indeed, the myth was that corporations are incapable of producing intentional attitude [mens rea] to commit a crime, and consequently, corporations cannot satisfy the requirement of criminal law. Moreover, due to corporation is a right-and-duty-bearing-unit, the key conceptual problem of corporate criminal liability is forging coherent link between the corpus of criminal law which has been developed in context of natural persons and to reflect the psychology of human beings and the reality of corporate. For this doctrinal issue, corporate liability was traditionally regulated by civil and administrative laws.

Like the development of legal system divided the globe into the trio of legal system sphere, Anglo-American, Romano-Germanic and African law legal system, the concept of corporate criminal liability also classes the world into tripartite jurisdictions – jurisdictions that recognized,  exempted the concept of Corporate Criminal liability, and jurisdictions introduced  alternative system, administrative penal,  to control the misconduct of corporate activities in lieu of the instrument of Corporate Criminal liability.

Some records indicate that jurisdictions like Brazil, Bulgaria, Luxembourg and the  list may go on do not recognize any form of corporate criminal liability while other jurisdiction like Germany, Greece, Hungary, Mexico and again the  list may go on uses administrative penalty to be imposed on corporations for their criminal acts [misconducts] of certain employees. 

The grand reasons of those jurisdictions that refused to recognize the concept of corporate criminal liability are, among others, the fictitiousness of corporation and the inconsistency of corporate criminal liability with principle of criminal law.

This group’s thesis begins from the premise that corporations are fictitious entities which have no existence apart from the various individuals who act on behalf of the fictitious entity. This theory assumes corporations as they are artificial, invisible, intangible and fictional. The core concept of it is that mankind alone is the focus of criminal law; only individuals have the capacity of self-determination and capacity of moral choice; and the essence of criminal liability relies upon the sum of physic-psychic unique to individuals.

In the narration of this theory, one could understand that as the fictive character of corporation stand, corporate could not bear criminal liability because it has no physical interaction with others which could be one among the others grounds for the commission of crime. Warding it differently, one elements of criminal guilt act requires physical existence of perpetrator(s).

The second thesis of this group, principle of criminal law, is the requirement of mens rea element for criminal blameworthiness. According to this principle, corporation doesn’t have mens rea and, therefore, cannot be blameworthy or guilty of criminal offenses. The mens rea element of criminal offense doesn’t belong to corporation but to the members who manage it. Criminal punishment, without blameworthy, is against the core values of criminal law principles.

• Real Entity Theory

In contrariwise to Savingy, the pioneer of Real Entity Theory theorist, Gierke, asserted that legal persons are not a fiction rather they are real and capable of possessing their own mind and will. [. . .] they enjoyed any rights and duties that they could exercise. Moreover, some proponents of this theory add that the notion individuals are real, observable, flesh and soul while corporations are legal fiction, is false. Then they argue that plainly many feature of corporation are observable (their assets, factories, decision making procedure) while many features of individuals are not (personality, intention, unconscious mind).    

On the other hand, some challenge the position of real entity theory by providing the practices of some jurisdictions like Germany that use administrative penalty to control corporate misconducts. These jurisdictions that refused to recognize the concept of corporate criminal liability believe that the administrative and civil liability is sufficient to deter corporate misconducts.

Against this argument, the partisan of the concept of corporate criminal liability, nevertheless, provide ‘Expressive Theory’ of criminal law to defend the need of the concept of corporate criminal liability. According to this theory, through criminal punishment, community can express its stance on conflict between; for example, profit seeking [of corporation] and the fundamental individual and social rights. Hence, criminal liability [of corporation] ‘send message’ that people matter more than profits and reaffirms the values of those who sacrificed to corporate greedy.

Once more, some explain the importance of this theory stating that civil proceedings [indirect sanctions] generally cannot result in the deprivation of life or liberty as a direct sanctions, but criminal proceedings [direct sanctions] can do it. This direct sanction has stigma or the reputational cost of criminal liability.  In the vein of this argument, others also maintained that most fundamental purpose of any criminal law is to induce external conformity with its [society’s] rules.

Beside these, it is also provided as a justification that holding corporate criminally liable is that it is often difficult to identify and convict the guilty individual, due to the complexities in the structures of large organizations. Even when it is often easy to tell that some individuals within a corporation committed a crime but it may not be clear who those people are.

Upholding the real entity theory advocators’ arguments, numerous jurisdictions recognized the concept of corporate criminal liability. The leading jurisdictions, among others, are USA, UK, Australia, Canada, Finland, Denmark and the list may go on is some of the jurisdictions that recognized the concept.

Still, however, there are controversies even within the jurisdictions that recognized the concept of corporate criminal liability. They have gigantic difference among themselves based upon which organizations are criminally liable, the typology of offenses attribute to corporate entities and criteria of attributing responsibility [mens rea] of corporation.

2. Ethiopian Model Of Corporate Criminal liability
   • Ethiopian Legal Framework of Corporate Criminal Liability

Pre-2004 Ethiopian criminal justice system was foreign to the concept of corporate criminal liability. Therefore, one could argue pre-2004 Ethiopian criminal justice system was the partisan of fiction theory. Ethiopian criminal justice system incorporated the concept of corporate criminal liability, substantively, through FDRE criminal code in 2004.  This plainly articulated by the drafters of the code  in the minute of FDRE criminal code which states that article 34 of FDRE criminal code is a newly included provision with the intention to punish juridical persons other than administrative bodies of the state for their criminal acts. 

The first paragraph of this article reads as ‘juridical person other than administrative bodies of the state is punishable as principal criminal, an instigator or accomplice where it is expressly provided by law. The structural engineering of this paragraph could inspire one to query the typology of corporate offenses and typology of organization subject to criminal liability under Ethiopian criminal justice system.

• Organizations Subject To Criminal Liability Under Ethiopian Criminal Law

In designing laws to subject organization to criminal law control, one of the primary tasks is to indentify organization subject to criminal liability. Comparative analysis of organizations subject to criminal liability suggests as there are three possible models/approaches available. The first approach is to use the term organization without any definition or restriction. The second approach is to list all specific types of organizations upon which criminal liability may be imposed. The third approach is to restrict liability only to juristic person.

The first approach is of providing general model in lieu of specific legislation on typology of punishable organization. The emblematic model of this approach is the Australian criminal law. It states this code [Australian criminal code act] applies to bodies corporate in the same ways it applies to individuals. This code doesn’t define the idiom body corporate. The second approach is USA’s and Canada’s model. These jurisdictions’ criminal law provides the lists of organization subject to criminal liability.  The third approach is a traditional bipartisan model that reflects the classical opposition between legal status and non-legal-status entities. This approach attributes corporate criminal liability only to legal person – juridical person. France is regarded as the representative of this approach. The relevant provision of its penal code states legal person, with the exception of the state, are criminally liable for the offence committed on their account by their organ or representative. 

Appraising article 34 of FDRE criminal code from the perspective of these trio models, one could simply observe while  Ethiopia follows the third model, specialty model, in general and article 34 of FDRE criminal code in particular is the verbatim copy of article 121-2 of the French Penal Code. This is because it clearly states only the juridical persons are subject to criminal liability.

However, some commentators censure this model arguing that limiting liability only to legal-status-entities lacks precise criteria of defining non-legal-status-entities creates uncertainty and also it creates discrimination between entities. 

A USA model penal code states as an unincorporated association may be convicted of the commission of an offense. This model indicates, in USA, both legal-status-entities  and non-legal-status-entities are subject to criminal law control.

Contrariwise to this, Gomez-Jara argues corporate subject to liability, like human being, must be categorized as mature and immature irrespective of their legal personhood. According to this scenario, even all corporations that are regarded as legal-status-entities may not subject to criminal liability unless they are mature corporations.   

In case of Ethiopia, article 34 of FDRE criminal code defines the idiom juridical person as a body which has governmental or non-governmental, public or private structure and includes any legally recognized institution or association set up for commercial, industrial, political, religious or any other purpose. 

Thus, in Ethiopia, all corporations that have legal-status are subject of criminal liability irrespective of their size but not non-legal-status-entities. This is to say that other organizations that do not regarded as legal person and those do not fulfill the prerequisite requirement to be assumed as legal person could not bear any criminal liability.

• Model Of Corporate Offenses Under Ethiopian Criminal Law

Mutatis mutandis to organization subject to corporate criminal liability, there are also different models of addressing the problem of which offenses ought to be attributed to corporate offenses. Here again, professor Maglie indentifies three models of determining offenses ought to be incorporated into corporate offenses.

The first system is a general or plenary system. It is a system of absolute personification of physical and juristic persons equally.  In view of this system, organizations are criminally liable for all the same offenses that can be attributed to individuals. This system adopted by Australian criminal code. It states a body corporate may be found guilty of any offenses. Correspondingly, England falls within this system with limited exceptions. These exceptions embrace crime punishable only with imprisonment and crime that legislators excluded it from the ambit of corporate crime.  Put simply, for the purpose of criminal liability, the general or plenary system treats human being and corporation as they are one and the same.

The second system is specialty principle, and it is principle found in jurisdiction like French legislations. According to this system, juristic persons are criminally liable only when the criminal law expressly provides for such criminal liability. Nonetheless, Maglie condemns this system because of its incomprehensiveness and there are no justifiable reasons of exclusion and inclusion of crime as non-corporate crimes and corporate crimes.  

The third system is system of clearly listing corporate crimes, and it’s the USA system. Accordingly, USA sentencing guideline provides detail list of corporate crimes.  This system is praised because it meets the requirement of clarity, predictability, efficiency, and consistency with general principle of criminal law. This is because it avoids the confusion of differentiating corporate crime and tedious searches in various legislations to indentify corporate crimes.  

Ethiopian criminal law adopted the second model - specialty model. This could be inferred from article 34 of FDRE criminal code which states juridical person [...] is punishable […] where it is expressly provided by law. The phrase, ‘expressly provided by law’, signifies that corporations bear criminal liability only when criminal code itself in its special part clearly holds specific provision that states corporations are subject to a given crime or when  other legislations’ penalty clauses are clearly designated by legislature as corporations are subject tospecified criminal liability.

Accordingly, some articles of FDRE criminal code, like article 354(2), [355]356-374, 505-512[513], 514-523[524], 525-529[530], [609]613-619, 626-628,631[632], 634-637[638], and 684(6), are indentified as corporate crimes by legislature in special part of FDRE criminal code.

On the other hand, some punitive legislation bear special penalty clause that clearly indicates corporate criminal liability or clearly provide in its general part that the legislation is similarly applicable, mutatis mutandis, to physical and juridical person.  Among these legislations, as an instance, Ethiopian trafficking in person and smuggling of migrant proclamation stipulates in its special part that if juristic persons directly or indirectly participate in crime of trafficking in person and smuggling of migrant, they will be punished by fine and in addition juristic person will be dissolved and its asset will be confiscated. Similarly, Corruption Crimes Proclamation provides in its general part those juristic persons that involved in corruption crimes are subject to criminal sanction – a fine.

3. Summary Of The Cases Under Consideration and Holdings Of The Courts
   • Of The First Case

In the first case, the applicants were charged for crime of storing and tendering coffee for sell outside the authorized place and time in violation of article 34(1) of FDRE criminal code and article 14(3) and 15(3) of coffee proclamation No.602/2008 at Federal First Instance Court. The court convicted and punished the first applicant, Ersade Trading Plc., with fine birr forty thousand and the second applicant, manager, with one year simple imprisonment and fine birr thirty thousand.

The applicants were being grieved of the decision appealed to high court but they were unsuccessful. Then applicants lodged their grievance to the cassation division to reverse the decision of the lower courts. The cassation division, in its part, affirmed the lower courts decisions simply stating the applicants had contravened the duty set by coffee proclamation and regulation.   

• Of The Second Case

In the second case, the applicants were charged for crime of intentionally violating trademark rights protected under article 26(1) (A) and 41(1) of trademark proclamation No.501/2006.  The federal high court which entertained the case in its first instance jurisdiction convicted and punished the first applicant, Yosef Hilu General Trading Plc.,    with fine fifteen thousand birr and the second applicant, manager, with five years rigorous imprisonment.

Then the applicants lodged their appeal to Federal Supreme Court but the court confirmed the lower court conviction and punishment. Subsequently, the applicants took their complaint to the cassation division. The division after analyzed their complaints, reversed the lower courts’ decision and acquitted the applicants for two reasons. The first applicant was acquitted, according to court analysis, because trademark proclamation No. 501/2006 is not applicable to juridical person while the second applicant was acquitted because there were not proved beyond reasonable doubt that he committed the said crime.

 

4. Critique

This section focuses on the analysis of whether the cassation division properly and persistently investigated, and similarly entertains cases with similar legal issue.

As highlighted just hereinabove, the applicants of the first case were charged and convicted under article 15(3) of coffee proclamation No. 602/2008. This article states any person who, without notifying appropriate body, stores and tenders for sell coffee outside the authorized place and time [. . .].Assessing this proclamation in general and article15(3) in particular reveals that this proclamation talks nothing about whether corporation bears criminal liability for acts that are criminalized as coffee offenses or not.

This proclamation, however, under its definitional provision (2(28)), defines the term person as it cuddles both natural and juridical person.The case provided for the court under this proclamation, Ersade trading Plc. case, was started at Federal First Instance Court where the court convicted the applicants and lastly the lower conviction was confirmed by the cassation division.

Now, the conundrum is whether we can say, by juxtaposing article 2(28) and 15(3) of this proclamation, the decision was according to the standard set by FDRE criminal law - expressly provided by law –the specialty model of corporate criminal liability of Ethiopian criminal justice system.

Though not specifically stated in the decision, the point of view of the decision implies either the cassation division shielded the juxtaposition of article 2(28) and 15(3) of coffee proclamation No.602/2008 as it satisfies Ethiopian specialty model of corporate criminal liability or the cassation division appreciated Ethiopian model of corporate criminal liability is general model type of corporate criminal liability.

Nevertheless, whatever the assumptions of the cassation division were either of these scenarios, its futile and erratic scenario when the decision is scrutinized with the stands of FDRE criminal law. The futility and errata of this decision is highly plain when one appraises how the cassation division was analyzed and decided the second case in-depth.

As aforementioned, the applicants of the second case were charged under article 26(2) (A) and 41(1) of trademark proclamation No.501/2006. While the former article is a general one, the latter one is a penalty clause. This latter provision states [. . .] whosoever intentionally violates a right protected under this proclamation shall be punished [. . .].

Like hereinabove discussed coffee proclamation No. 602/2008, trademark proclamation No.501/2006in its general and in article 26(2) (A) and 41(1) in particular talks nothing about whether juridical person bears criminal liability for acts that are criminalized as trademark offenses or not.

Yet again, like coffee proclamation No. 602/2008, definitional provision (2(9)) of trademark proclamation No.501/2006 defines the term person as it stands for both physical and juridical person.

Here once more, the puzzle is whether the concurrence reading of article 2(9) and 41(1) meet the criteria set by Ethiopian criminal law for corporate criminal liability – expressly provided by law – the specialty model of corporate criminal liability of Ethiopia.

The offshoot of this analysis plainly indicates, except the fact, the legal issue of both cases is one and the same – model of corporate criminal liability. Yet, in second case, the cassation division followed different track, reached to different conclusion and pronounced different decision with different legal effect to its precursor decision – the first case. 

In the first case, as the cassation division summarized it, the issue of corporate criminal liability model was not made an issue either by the applicants or all level courts.  

Indeed, FDRE cassation division was constitutionally established in view to review the decision of any court in Ethiopia if it manifests a prima facie case of basic error of law.

Hence, this constitutional power suffices for cassation division to assess whether there is basic error of law in any offered cases, particularly in criminal cases. This is because criminal case is not only the matter of parties to the case but issue of public in large. Thus, courts and prosecutors, like suspected or accused person, are duty bound to assess all issues of provided cases all in all from pertinent criminal law provision rather than rushing to pronounce judgment.

Cassation division, however, in the case at hand inarticulately confirmed the conviction and punishment given at federal first instance and confirmed at high court simply stating the decision of lower courts was in congruent to coffee proclamation No.602/2008.

Unlike first case, in the second case, applicants had made the model of corporate criminal liability issue of the case and the cassation division too appreciated it in-depth. Accordingly, the respondent was requested to respond for the argument raised by the applicants in relation to the model of corporate criminal liability. The respondent argued that the juxtaposition of article 2(9) and 41(1) of trademark proclamation No.501/2006 qualify for the standard of corporate criminal liability model set by article 34(1) of FDRE criminal code.

Nevertheless, cassation division in appreciating the case jettisoned the argument of the respondent stating the respondent’s argument emanated from rudimentary understanding of article 34(1) of FDRE criminal code.

On top of this, the cassation division by furthering its analysis of the case, the second case, elucidated the concept of corporate criminal liability, and explains its stand noting ‘juridical person bear criminal liability only when the legislature in criminal code or other legislations clearly indicate a given crime is corporate crime’. Moreover, the cassation division illustrated the concept taking the VAT law to demonstrate the concept in-depth.

Then, the cassation acquitted the applicants by reversing the lower courts decisions and censured the lower courts for their failure to analyze article 34 of FDRE criminal code properly. Lastly, the division concluded the lower courts had committed basic error of law in entertaining the applicants’ case.

Therefore, as this juncture, one could safely observe that there is discrepancy between the holdings held in these two cassation division decisions.  This is because the first case was decided according to general or plenary model of corporate criminal liability while the second case was decided according to special model of corporate criminal liability. Thus, from Ethiopian criminal law perspective, the first case’s decision was erroneous while that of the second case was in congruent to Ethiopian criminal liability model.

Then, the next query and qualm is which decision of these cases has binding force on the subordinate courts? Both decisions of the division or one of them? What would be our legal ground to sort out one of them?

One may say the conflict of cassation division decisions, as far as they are laws, ought to be resolved mutatis mutandis to the conflict of statutes. Yet, could we do so?

 Indisputably, interpretation of law rendered by FDRE cassation division has binding force on all level of Federal as well as all regional states courts – just as if it is a law. This binding force of interpretation of law is unconditional – without questioning its congruity with a given law. Like positivist courts, Ethiopian courts are compelled to give effect to all legislations of legislature unconditionally. Likewise, all subordinate courts ought to give effect to all FDRE cassation division’s interpretation of law (?).What if the subordinate courts face cases that contradict each other on the same legal issue like the cases under consideration? It is a penumbra.

Needles to say, as stated by Federal courts proclamation No.454/2005, cassation division is empowered to revise its prior interpretation of law some latter time. If so, to resolve the riddle of the conflict of cassation division’s interpretations, as pointed out earlier, one can propose following rule of legislative interpretation, above all, applying the rule of the latter legislation prevails over the prior legislation mutatis mutandis to cassation division’s interpretation of law. Accordingly, the latter cassation division’s interpretation of law prevails over the prior interpretation of cassation division.

However, this too doesn’t break away from another puzzle. Unlike statutory interpretation which could be repealed and/or amended by both expressly and impliedly, this principle could not be applied to FDRE cassation division’s interpretation mutatis mutandis. Though Cassation division of FDRE Supreme Court has empowered by legislature’s legislation, though not by constitution, to revise its prior interpretation at any latter time generously, Cassation division of FDRE Supreme Court has limited itself to only express system of revising its prior interpretation. The division, in cassation Civil Case No. 52530, preferred only express repealing or amending system either to repeal or amend its erstwhile decision. Some writers also advocate this system of reversing its prior interpretation as it is a better way to avoid confusion. 

At this juncture, therefore, one can safely and firmly conclude that according article 2(1) of Federal Court Proclamation No.454/2005 and cassation division interpretation – cassation Civil Case No. 52530 – any cassation division’s interpretations has binding force on the subordinate courts though they are self-contradictory. Nonetheless, acknowledging and ingesting this conclusion in and of itself has indistinguishable with the effect of admitting injustice law. 

For these reasons, the writer argues the interpretation of these cases, cases under analysis, are self – contradictory, confusing, and takes the unifying duty of FDRE cassation division and binding effect of its interpretation to betwixt and between situation.

Hence, the writer has an ‘either – or’ type of recommendation for FDRE cassation division in relation to cases under consideration.  Either to revise its holding that only express system of revising its interpretation of law held in Case No- 52530 or expressly revises its holding that was held in case No.58008 – interpretation of article 34(1) of FDRE criminal code.

wording it differently, FDRE cassation division to realize its main duty of unifying and making decision predictable, either it ought to interpret similar issue similarly, persistently and consistently and employ only express revision system of its prior interpretation of law – like it adopted today, or parallel to interpret similar issue similarly, persistently and consistently, as escort, should employ both express and implied revision system of prior interpretation by its latter interpretation of law – like statutory interpretation method.