Criminal Law

3.1. Historical Background:

The history of Ethiopian Criminal law reveals the following important legislations incorporating the Criminal law of the country before the enactment of the existing Criminal Code of FDRE, 2005.

A. The Fewuse Menfessawi,

B. The Fetha  Negest,

C. The Ethiopian Penal Code, 1930.

D. The Penal Code of the Empire of Ethiopia, 1957.

E.  The 1974 Revolution and Criminal Law

F.  Special Penal Code of 1981

A. The Fewuse Menfessawi (The Canonical Penance):

The first attempt to compile the law was made by the emperor zar’a  Ya’equob (r.1434- 1468).  Desiring to govern his realm by a written law rather than by amorphous customary law and oral tradition, the emperor ordered distinguished Ethiopian Orthodox Church Scholars to compile an authoritative written law. The compilation had 62 articles mainly on criminal matters. Since this was far less than comprehensive, it was not able to resolve many of the legal problems that arose during that period.

B. The Fetha  Negest (The Law of the Kings):

The failure of the Fewuse Menfessawi led to the next codification by the same Emperor Za’ra Ya’eqob . The Fetha Negest is a very interesting legal compilation.

 

As highlighted by Graven (year), Fetha Negest included the following important criminal law principles :

  • those concerning “intention” and “negligence”,
  • relating to the proportion  between the fault and sanction,
  • the individualization of punishment,
  • the forgiveness and redemption of offenders, and
  • the sharing of guilt case of fighting etc.

These solutions in case of fighting etc. are most current, familiar and understandable situations for the people.

The Fetha Negest was formally incorporated into the Ethiopian legal system in 1908 by Emperor Menelik II. It can be said that in most cases, the Fetha Negest has attempted to incorporate the most suitable legal principles, which could be conceived in the epoch of its emergence. However, it suffered from the following drawbacks:

  • It lacked the systematization and other characteristics of modern codes,
  • Neither the ‘specific’ is differentiated from the ‘ general’ nor the ‘exception’ from the ‘rule’,
  • Aggravating and extenuating circumstances were not clearly provided for,
  • In general, the arrangement of the provisions is so haphazard that it is hard to locate  the most relevant provision ,and
  • The Fetha Negest was accessible and understandable only to those who continuously studied it i.e. the clergy.

The criminal provisions of the Fetha Negest were applied in Ethiopia until they were replaced by the Penal Code.

C. The Ethiopian Penal Code of 1930:

The Penal Code of 1930 reflects the norms and values of the old absolutist monarchy of the generation of Emperor Menelik II and Emperor Zewditu (i.e. the era between 1889 and 1930). It was also drawn up in a less systematic and clear manner and did not follow the rules of a modern codification process.

The main attributes of the Code were as follows:

  • The crimes and respective punishments were defined in exact fashion, and
  • The penalties were considerably softened and improved by setting the fines in proportion to the then economic and monetary situations of Ethiopia.
  • The Code under its Special Part protected the three great classic categories of interests. These were:

1. The state and Community,

2. Persons, and

3. Property.

Provisions of “Petty Offences” were incorporated towards the end of …..? .The sources of the Penal Code of 1930 seem to have been the Fetha Negest and the Siamese Penal Code and the Penal Code of the French Indo-China of the time. The drafter of the Code is believed to have been a Frenchman. The Penal Code of 1930 was in force until it was repealed and replaced by the 1957 Penal Code of Ethiopia.

D. The Ethiopian Penal Code, 1957:

Criminal laws do indeed reflect the conditions generally prevailing in the country where they apply. Therefore, they necessarily change. If substantial changes occur in the society, substantial modifications also become necessary in the legal and other rules. The old codified laws used in Ethiopia, approximately between 1450 and 1931, did not follow the rules of modern codification process and thus eventually proved unsatisfactory. When the necessity was felt for transformation of legal system in the second half of the 20 century, the modern codification process was initiated.

The task of drafting a new comprehensive penal code was entrusted to Jean Graven , a Swiss jurist who at that time had been the Dean of Faculty of Law and President of the Court of Cassation in Geneva , Switzerland.

The Sources and the Merits of the Penal Code Of 1957:

Obviously, the Criminal Code that appears in present-day society should be able to provide solutions to the complexities of modern life. In view of this fact, the drafter looked into the most modern penal codes that embodied the latest thinking in the sphere of criminal law. The primary source of the Code was the Swiss Penal Code of 1937 and the pre- 1957 Swiss Jurisprudence. The secondary sources were the French Penal Code of 1810 with respect to general format, the Yugoslav Penal Code of 1951 in relation to military offences, and more generally the code of Norway, Denmark, Poland the Federal Republic of Germany, the Netherlands, Portugal, Spain, Italy, Brazil and Greece. Some provisions of ‘the Universal Declaration of Human Rights’ and ‘the Red Cross Geneva Convention’ were also incorporated in the 1957 Penal Code of Ethiopia. The incorporation of   the latest principles of law in present day jurisprudence made the penal code of Ethiopia one of the modern and sophisticated criminal codes of the time.

In addition to this, the drafter also included a wide range of provisions that covered legal institutions that might arise in the future. New concepts, not   only juridical, also sociological and criminological were developed into a homogenous penal code, which aimed at the prevention of crimes and rehabilitation of criminals. The object of criminal law should not be retributive from the outset, despite the fact that punishment will serve as deterrent of prospective offenders.

It was the rationale of the penal code and the concepts embodied in some of its provisions that aroused bitter controversy among the members of the codification commission. The Fetha Negest, as well as the Penal Code of 1930, started from the presumption that criminals have to pay, i.e. have to be penalized for the injury they would cause to the individuals and to society at large. The objective of punishment was, according to these laws, in essence retributive. Now the draft penal code came up with new proposition with principal objective of  that the prevention of crime and rehabilitation of criminals. It was this deviation from the traditional approach that took some members of the commission by surprise.

After an arduous exchange of arguments, the draft was accepted mainly because it aimed at not only satisfying the then state of affairs, but guiding society as an instrument of change. The new code was intended to affect national unity and to provide for the progressive development of Ethiopia. On some points, however, compromises had to be made. Some were the following:

  • Collective Punishment: According to customary law, where offences had been committed by one or several persons, it was found impossible to ascertain which of the persons involved was the criminal, the court could, where equity so required, order ‘the damage’ to be made good jointly by the group of persons who could have caused it and among whom the persons who caused the damage were certain to be found.

As this traditional practice seemed not be in line with rule of law and human rights, the compromise formula that was reached after a long debate between the foreign experts and the Ethiopian members of the codification commission was that, ‘where an offence is committed by a group of persons, the persons who proved to have taken no part in the commission of the offence shall not be punished.’

  • Mutilation of Human Body As Punishment-Abolished: According to the old practice, habitual offenders were punished by mutilating the human body so as to give it the maximum deterrent effect. There was a general consensus not to incorporate this form of punishment. However, flogging was to be inflicted on such offenders provided that it was medically ascertained that the life of the offender would not be endangered.

  • ‘Presumption of Innocence’- Introduced: In the past, the accused was required to prove his innocence. In modern penal legislation, however, the generally accepted principle is that the accused enjoys the presumption of innocence, according to which the burden of introducing evidence to prove the guilt of the accused is on the Prosecution. This is opposed to the previous principle of “presumption of guilt”. In addition to this, accused has the right to produce defense witnesses.

  • Rules Applicable to Young Offenders: In the past, all offenders who were thought to have the capacity to discriminate between what is good and what is bad were brought before the regular courts. In the modern penal law, on the otherhand infants are completely exonerated from criminal provisions. Infancy is according to art 52 of the Penal Code, ‘the period extending from birth up to nine years.’ Infants are not deemed to be responsible for their acts under the law. The measures to be taken against such offenders should have curative, educational or corrective measures as may be necessary for their own good. Penalties and measures to be imposed on offenders between the ages of 9 and 15 years were those provided by Arts. 161-173 of the Penal Code. Thus, young persons were not subjected to the ordinary penalties applicable to adults nor should they be kept in custody with adult offenders. For purposes of the criminal law, the age of majority for young persons is 16 years.

  • Probation and Suspension of Sentences: In the past all forms of sentences were executed. Present-day penal legislation provides that certain offenders may, under defined circumstances, be granted release on probation or the sentence may be suspended for a fixed time. Even after the execution of a sentence of imprisonment, one may be granted a reduction of the term which one is required to serve. In accordance with the rationale of modern principles of criminal law, the Ethiopian Penal Code aims at not punishing the offender, but at rehabilitating and educating him. As a result, it provides ample opportunities for probation and suspension of sentences.

  • The Personal Nature of Criminal Punishments And Measures: If a convicted person died before the execution of a sentence, there was, according to customary laws, the possibility of proceeding against his property or the property of his next of kin. This was not retained in the Penal Code of 1957. The principle is that, ‘crime is personal to the one who is found to have committed it’, it is thus an innovation made in the present criminal law.

  • The Punishment For Burning Of Crops (Arson): since Ethiopian society is predominantly an agricultural society, severe penalties are prescribed for offences relating to or committed on agricultural products. Recognizing this deep-seated value, burning of crops (arson) entailed more severe penalties than other comparable crimes provided in the new penal code. In addition to the above matters, drafter of the Code, Jean Graven, also pinpointed the following areas where new and old ideas have been reconciled:

  • Capital punishment and corporal punishment (flogging) were maintained but with all the necessary precautions as to the instance of application and the conditions of administration.
  • Pecuniary punishments particularly confiscation of property were made to be applicable in limited instances of serious crimes against the sovereign and the state
  • The principle of collective responsibility for certain crimes involving tribes or anonymous criminals were made to rest on customary practices which had their own justification.
  • The severe provisions on abduction and enslavement and the flexibility one sees with regard to adultery, concubine and illicit damage to property by stray animals of others are reflections of the changing modes of life of Ethiopia. In the words of the drafter while enacting the Penal Code :

“…the Ethiopian legislator has made every effort to construct a complete edifice, one maison mouvelle…   where one can find order and peace security and progress, united in a single whole.”

Thus, the historical objective behind the enactment of the Penal Code of 1957 was to let it serve as a unifying force and as a machinery to enhance future development of the country the Penal Code of Ethiopia was promulgated on July 23, 1957 and came into force on May 5, 1958, and was in force until May 8th 2005.

E. The 1974 Revolution and Criminal Law:

Following the 1974 revolution, a "revolutionary" system of neighborhood justice emerged. It was difficult to distinguish between criminal acts and political offenses according to the definitions adopted in post-1974 revisions of the Penal Code. In November 1974, a proclamation which introduced Martial Law, was introduced. The martial law set up a system of military tribunals empowered to impose the death penalty or long prison terms for several political offenses. The Proclamation applied the law retroactively to the old regime's officials. The revolutionary government these officials responsibility for famine deaths, corruption, and mal-administration. Special three-member military tribunals sat in Addis Ababa and in each of the country's fourteen administrative regions.

In July 1976, the government amended the Penal Code of 1957 to institute the death penalty for "anti-revolutionary activities" and “economic crimes”. Investigation of political crimes came under the overall direction of the Revolutionary Operations Coordinating Committee in each awraja. In political cases, the courts waived search warrants required by the Criminal Procedure Code. The government transferred jurisdiction from the military tribunals to kebele and peasant association tribunals. Political trials constituted the main business of these tribunals until 1978.

Generally, the 1976 revision of the Penal Code empowered association tribunals to deal with criminal offenses. The revision limited the jurisdiction of association tribunals to their urban neighborhood or rural area. Elected magistrates, without formal legal training, conducted criminal trials. Procedures, precedents, and punishments varied widely from tribunal to tribunal, depending on the imperatives of the association involved. Peasant association tribunals accepted appeals at the Wereda (district) level. Appellate decisions were final. But decisions disputed between associations could be brought before peasant association courts at the Awraja level. In cities, Kebele tribunals were similarly organized in a three-tier system. Change of venue was arranged if a defendant committed an offense in another jurisdiction.

The judicial system was designed to be flexible. Magistrates could decide not to hear a case if the defendant pleaded guilty to minor charges and made a public apology. Nonetheless, torture was sometimes used to compel suspects and witnesses to testify. Penalties imposed at the local association level included fines of up to 300 birr. The tribunals could determine the amount of compensation to be paid to victims. The tribunals could impose imprisonment for up to three months and hard labor for up to fifteen days.

Association tribunals at the Awraja or Wereda level handled serious criminal cases. These tribunals were qualified to hand down higher sentences. Tribunal decisions were implemented through an association's public safety committee and were enforced by the local People's Protection Brigade. Without effective review of their actions, tribunals were known to order indefinite jailing.

The 1976 Special Penal Code, which was further elaborated in 1981, created new categories of so-called economic crimes. The list included hoarding, overcharging, and interfering with the distribution of consumer commodities. More serious offenses involved: engaging in sabotage at the work place or of agricultural production, conspiring to confuse work force members, and destroying vehicles and public property. Security sections of the Revolutionary Operations Coordinating Committee investigated economic crimes at the Awraja level and enforced land reform provisions through the peasant associations. These committees were empowered to charge suspects and held them for trial before local tribunals. Penalties could entail confiscation of property, a long prison term, or a death sentence.


F. Special Penal Code of 1981:


In 1981, the Revised Special Penal Code replaced the Special Penal Code. This amended Code included offenses against the government and the head of state, such as crimes against the state's independence and territorial integrity, armed uprising, and commission of "counterrevolutionary" acts. The 1981 amendment also included breach of trust by public officials and economic offenses, grain hoarding, illegal currency transactions, and corruption; and abuse of authority, including "improper or brutal" treatment of a prisoner, unlawful detention of a prisoner, and creating or failing to control famine. The Amended Special Penal Code also abolished the Special Military Courts. The Code created new Special Courts to try offenses under the Amended Special Penal Code. Special Courts consisted of three civilian judges and applied the existing Criminal and Civil Procedure Codes. Defendants had the right to legal representation and to appeal to a Special Appeal Court.

3. 2.The Criminal Code of the Federal Democratic Republic of Ethiopia, 2005 Proclamation No. 414/ 2004

The 1957 Penal Code of Ethiopia, was on 9th May of 2005, and a new Criminal Code was  brought into enforcement. The factors that necessitated the revision of the Penal Law of Ethiopia are as follows:

1. To Incorporate the Modern Legal Concepts: During, nearly half a century? Since the 1957 Penal Code came into enforcement, several radical political, economic and social changes have taken place in Ethiopia. Among the factors that brought the changes, recognition of modern legal concepts by the Constitution and the international agreements ratified by Ethiopia were the major. The important phenomena that have been recognized in the Country in the recent past are:

  • The equality between religions, nations, nationalities and peoples,
  • The democratic rights and freedoms of citizens and residents,
  • The Human rights,
  • The rights of social groups like women and Children.

 

2. To Fill in the Lacunae: The 1957 Penal Code fails to properly address some of the criminal behavior arising out of advances in technology, the complexities of modern life as well as sufferings caused by reason of harmful traditional practices. Some such areas are:

  • The High Jacking of aircraft,
  • Money laundering,
  • Crimes related to corruption and drugs,
  • Grave injuries and sufferings caused to women and children by reason of harmful traditional practices.

It is true that the Constitution guarantees respect for the cultures of peoples, surely it does not intend to support those practices which are scientifically proved to be harmful. It is the responsibility of the legislature, by adopting progressive legislations, to educate and guide the public to discontinue such harmful traditional practices.

3. To Adopt a Comprehensive Criminal Code: It is desirable to adopt a comprehensive Criminal Code by putting together various Criminal provisions in the Negarit Gazeta in a disintegrated manner.  Similarly, since the parallel application of the regular Penal Code, 1957 and the Revised Special Penal Code of the Provisional Military Administration Council 1982 (Proclamation No. 214/1982), in respect of similar matters disregards equality among citizens. The Comprehensive Criminal Code, 2005 is intended to put an end to such practice.

4. Punishments for Certain Offences Increased: On the basis of public opinion taken during discussions on the draft Criminal Code, punishments in respect of crimes like rape and aggravated theft have been increased.

5. Matters Concerning the Determination of Sentence Revised: Since it is essential to facilitate the method by which the courts can pass similar punishments on similar cases, some major changes have been made in the provisions of the Code. Provisions of the Penal Code that used to make sentencing complicated and difficult have been amended. Provisions have been inserted which enables the courts to pass the appropriate penalty for each case by carefully examining from the lightest to the severe most punishment. A provision (Art. 88/4) has been introduced requiring the Federal Supreme Court to issue sentencing manual to ensure and control the correctness and uniformity of sentencing.

6. Purpose of Criminal Law and Objectives of Punishment Redefined: Another important point in respect of the determination of sentence is that, the purpose of Criminal Law is to preserve the peace and security by preventing the commission of crimes and a major means of preventing the commission of crime is punishment. Punishment can deter wrongdoers from committing other crimes; it can also serve as a warning to prospective wrongdoers. Although imprisonment and death are enforced in respect to certain crimes the main objective is to prevent wrongdoers temporarily or permanently from committing further crimes against society. And in such cases with the exception of the death sentence even criminals sentenced to life imprisonment can be released on parole before serving the whole term. In certain instances, convicts can be released on probation without enforcement of the sentence pronounced. This helps wrongdoers to lead a peaceful life and it indicates the major place which the Criminal Law has allocated for their rehabilitation. The fact that wrongdoers, instead of being made to suffer while in prison, take vocational training and participate in academic education, which would benefit them upon their release, reaffirms the great concern  envisaged by the Criminal Code about the reform of criminals. These express provisions in the new Code are included with intention that the Courts should, on passing sentence, take into account the purpose of the Criminal Law and the different aims of punishment.

In order to introduce all the above mentioned revisions and to adopt a comprehensive Criminal Code, substantive activities have been undertaken throughout the country. Discussions have been held on the draft Criminal Code prepared by the Ministry of Justice and the Justice and Legal System Research Institute. Legal and medical professionals, psychiatrists, different institutions of higher education and professional associations have made significant contributions through the opinions they have to the enactment of the law.  Representatives of the people selected from different sectors and associations have forwarded important views in discussion forums on the draft laws conducted in Addis Ababa and the regions. Moreover, the opinions of legal scholars and the laws and exigencies of foreign countries have been consulted to enrich the content of the Criminal Code.

It is hoped that the new Code will ensure respect for order, peace and security of the state and its peoples as well as respect for the rights and freedoms of its citizens and inhabitants. The Code is also expected to accelerate the economic progress of the State, strengthen   a steady order of free market and above all contribute towards the promotion of a fair judicial system in the country.

3.3. Scheme of the Criminal Code of FDRE, 2005:

The Criminal Code of 2005 has incorporated the Ethiopian Criminal law systematically, coherently and comprehensively. The Code is organized into three main parts.

I. General Part:

Part I of the Criminal Code is entitled “General Principles of Criminal Liability”, Part II Special Part and Part III is Petty Code. The General Part has two Books, namely:

Book. I. Arts. 1-86 “Crimes and the Criminal”. It lays down the general principles relating to “Criminal law and its Scope”(Art. 1-22), “The Crime and its Commission” (Art. 23-47), and the “Conditions of Liability to Punishment” (Art. 48-86).The General Part of the Criminal Code is the most technical part of the Code and the basic tool in the interpretation of any provision that embodies a specific crime. Issues such as the principle of legality, negligence, criminal responsibility, participation, lawful acts, justifiable and excusable acts, extenuating and aggravating circumstances etc, are covered in Book I.

Book. II (Arts. 87-237) is titled “The Criminal punishment and its Application”. This book deals with calculation of sentences, kinds of punishment, ordinary punishments applicable to adults, special measures applicable to adults, penalties applicable to young persons and also rules regarding determination , suspension, discontinuance and extinction of penalty.


II. The Special Part:

The “SPECIAL PART” of the code embodies ‘Specific Crimes’ which are organized under different titles systematically. This part of the Code includes four books. Each Book is sub – divided into Titles, chapters, sections, paragraphs and finally Articles. The Books of part II of the Code are follows.

Book III (Arts.238-374) incorporates ‘Crimes against the State or National or International Interests’. Book IV (Arts.375-537) deals with ‘Crimes against Public Interest or the Community’, Book V (Arts. 538-661) embodies ‘Crimes against Individuals and the Family’, and ‘Crimes against Property’ are found in Book VI (Arts. 662-733) of the Code.

Part III of the Criminal Code incorporates “The Code of Petty Offences”. This part of the Code also has two subdivisions, a General Part and a Special Part. The General Part embodies the rules governing liability to punishments and the Special Part deals with “Petty Offences” under specific heads.

The Criminal Code of FDRE, 2005, on the whole, consists of three parts, eight books, twenty eight Titles which include 865 Articles arranged in seventy two Chapters.

  • Relation between General and Special Parts of the Code:

The ‘General Part’ of the Criminal Code sets out the general principles of liability which are common to all serious crimes. This part explains what is meant by a criminal intention, negligence, imprisonment, probation and the like. The ‘Special Part’ describes the various acts which are deemed to be ‘criminal’ and lays down the penalties applicable to them. It defines the essential elements of each crime such as murder, theft, robbery etc, and prescribes appropriate punishments for each of such crimes. However, the said penalties cannot be ordered unless the conditions prescribed by the General Part with respect to liability to punishment are fulfilled. In other words, the Special Part does not operate by itself but has to be considered together with the General Part. This means, a person who behaves in a manner contrary to provisions of the Special Part is not automatically punishable. He shall be punishable only where his conduct is found guilty in accordance with the general principles of criminal liability laid down in the General Part of the Code.

Furthermore, even after the liability to punishment is established, mechanical imposition of sentence is not what is expected of a Judge, simply by referring to the punishment mentioned in the pertinent article of the Special Part. Those who administer justice are in fact dealing with ‘criminals’ rather than ‘crimes’ with ‘human beings’ rather than with ‘cases’. They are expected to individualize their decisions. To this end, they must bear in mind the provisions of the General Part; since these provisions, more than those of Special Part, will enable them to arrive at a decision truly reflecting the circumstances of each individual case. For example, Art.665 of the Special Part prescribes 5 years imprisonment for an crime of Theft. It does not mean that whoever commits theft should be sentenced for 5 years imprisonment.  Therefore, in order to decide whether, in a particular case, imprisonment should be ordered for 5 years or for six months, or less than that, the Court must of necessity, has to make reference to the General Part. Moreover, as any action taken under the law must serve the purposes of law, those who administer justice will have to satisfy themselves that their decisions are really capable of achieving these purposes as defined in the General Part. In other words “punishments have to be tailor-made” for each and every criminal having regard to his personal circumstances and other relevant matters in order to bring him back to the society as a law abiding citizen.

3. 4. Classification of Crimes under the Criminal Code

Generally, offences may be classified based on two criteria:

1. Classification based on the “Seriousness of the Crimes”.

2. Classification based on the “Subject matter” of the Crime.

  • Classification based on the ‘seriousness of the Crime’:

Crimes are generally classified into different categories according to varying degrees of seriousness. For example, English Law classifies offences into treason, felony and misdemeanors.

Treasons are the most heinous, although the rarest species of felony. Anything done in the nature of an attempt to displace the governing body is classed as Treason. It is a breach of duty of allegiance to the sate. This crime finds its place in the penal codes of every country ‘as a crime against the state’. ‘Felony’ is a serious criminal offence punishable by at least one year imprisonment. ‘Misdemeanor’ is a criminal offence which is less serious than a felony, and is usually punishable by no more than a year in a country jail, and /or a fine, restitution or some other minor penalty. These include all offences which are not felonies and treasons.

The Criminal Code of FDRE has not adopted such a ‘tripartite’ distinction but simply classifies crimes into various titles on the basis of content rather than on the scale of punishment. Although an explicit distinction is not made between crimes, the range of punishment implies the gravity of crimes. “Crimes of very grave nature” are punishable with ‘rigorous imprisonment’ in Central Prisons for a period of one to twenty five years (Art.108) “A crime of not very serious nature” may subject to special provisions that may face ‘simple imprisonment’ for a term of ten days to three years (Art. 106), subject to Special provisions that may extend the period beyond three years. “Petty offences” on the other hand, are punishable with fine or arrest for a relatively shorter period of one day to three months (Art .747), subject to certain aggravating exceptions (Art.767-769).

The three variations in the deprivation of liberty , namely, ‘rigorous imprisonment’, ‘simple imprisonment’ and ‘arrest’ apparently  denote a de facto classification into ‘very serious crimes’, ‘not very serious crimes, and ‘petty offences’.

  • Classification Based On the “Subject Matter” Of The Crime:

A more clear cut and explicit kind of classification of crimes that is found in the Criminal Code is based on the content or subject matter of the crime. The object of the criminal law is to protect the “interests” of the state, the community and the interests of the individual in order to ensure peace and security .Therefore, crimes against such interests are kept under various Titles. The classification mainly makes distinction between “crimes” in Part II   (special part) of the Code and ‘Petty offences’ embodied in Part III of the Code entitled ‘The Code of Petty Offences. Further, the Special Part of the Code organizes the various interests to be protected in the following order:

  • Interests of the ‘State’: Crimes against state or against National or international interests, Arts. 237-374.
  • Interests of the ‘Community’: Crimes against the Public Interests or the Community Arts.378 – 537.
  • Interests of the ‘Individual’: Crimes against the individuals and the Family Arts.538-733.

The individual interests of a person   protected under the Code include his life, his person (body), his liberty, his honor, his morals, his family, his property etc.


  • The Petty Offences:

A ‘petty offence’ is an infringement of a mandatory or prohibitory provision of a law or regulation issued by a competent authority or a minor offence which is not punishable under the Criminal Law. Such acts or omissions are made punishable under the Petty Code.

The policy underlying the classification of crimes under the Criminal Code of FDRE, 2005, can be better understood from the following observation made by the drafter of the 1957 Penal Code Prof. Jean Graven in this regard…

“… abandoning the famous ‘tripartite division’ of the offences according to their supposedly different natures into felonies, misdemeanors and petty offences, the new Ethiopian law has deliberately enthroned the identity of the nature of the offences retained in the Penal Code, all of them simply called “offences”, and the unity of all general principles, which are applicable to them. On the other hand, it has detached from them the minor, formal and petty offences, which form the subject matter of the Code of Petty Offences. Here the natural distinction between evidently different fields is instantly perceptible…”


2.1. Crime is a Deceiving Concept

There are no easy explanations for the phenomena collectively called crime. Crime is deceiving concept because it covers an enormous range of human behaviour. Crime may be associated in the public mind with pick-pocketing, robberies, house-breakings, and riots, but crime is also a businessman placing bribe to win a city contract. It is also syndicate-controlled loan shark taking over a business from a businessman who couldn’t meet the exorbitant repayment schedule. It is quiet a student suddenly a rifle to the top of a university tower and begins shooting at those below. Crime is often mistakenly thought of as the vice of the few. It is not. It is everywhere in the society. It is in the bed room of a married couple where wife battering and marital rape happen, among the family members where child abuse and incest happen on the road where eve teasing and cheating happen, at work place where a variety of criminal behaviour is found including abuse of power, corruption and sexual harassment. Therefore, trying to find a single comprehensive answer to “the crime problem” is, like trying to lump together measles and schizophrenia, or lung cancer and a broken leg.

The concept of crime has always been dependent on public opinion.  In fact “law” itself reflects public opinion of the time.  Obviously, every society formulates certain rules to regulate the behavior of its members, the violation of which is forbidden.  However, the problem arises as to what acts should be forbidden, or what acts should be selected for punishment by the society or the state, in other words what acts should be declared as crime.  According to Terence Morris, “Crime is what society says is crime by establishing that an act is a violation of the criminal law.  Without law there can be no crime at all, although there may be moral indignation which results in law being enacted.”  Therefore, in order to know the nature and the content of crime we must first of all know what ‘Law’ is, because the two questions “Crime” and “Law” are so closely related with each other that it is very difficult to understand one without knowing the other.  “Law”, is the aggregate of rules set by men politically superior, or sovereign, to men as politically subject.  Law is a command enjoining a course of conduct to be observed by all the members of the society and is backed by a sanction.  The command may be of a sovereign or the command of a political superior to political inferiors, or the command of a legally constituted body or the legislation duly enacted by a legally constituted legislature and addressed to the members of the society in general.  That being the definition of law, disobedience or violation of law may be termed as crime.  But all violations of law are not crimes for an act done in breach of law of contract, personal law or a civil law, are only civil wrongs leading to civil proceedings. Only such violations, which endanger the safety of individual, his liberty and property, are crimes. To common man crimes are those acts which people in society “consider worthy of serious condemnation”. Therefore, crime is an act which both forbidden by law and the moral sentiments of the society.

According to Wechsler, “the purpose of penal law is to express the social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it”.  To understand this explanation of Penal law three questions have to be answered:

  1. What kind of conduct is ‘forbidden’?
  2. What kind of ‘formal social condemnation’ is considered appropriate to prevent such conduct?
  3. What kinds of ‘sanctions' are considered as best calculated to prevent officially out lawed conduct?

  • Forbidden Conduct:

The concept of forbidden conduct is not a static one; it changes with the change of social norms. The very definition and concept of crime is not only according to the values of a particular group and society, its ideals, faith, religious attitudes, customs, traditions and taboos but also according to the form of government, political and economic structure of society and a number of other factors. For instance, what is a sex crime in India and Eastern countries may be a sweet heart virtue in West and Scandinavian countries.  What is an offence against property in a capitalist culture may be a lawful way of living in a socialist society.  What is permissible in a free and affluent society may be a pernicious vice in a conservative set up.

The notion about crime also changes with time.  What is an offence today may not be an offence tomorrow and what has not been an offence till yesterday may be declared a crime to day.  For example, polygamy, till the passing of the legislation prohibiting a man from marrying again during the subsistence of the first marriage, marrying more than one wife was no crime. Now it is a punishable crime under the Criminal Code.  Another example is “abortion”.  Forcibly aborting the foetus from the womb of the mother for reasons whatsoever was considered as a great sin against the humanity by all societies till recent past.  Now, with the advancement of medical sciences termination of pregnancy on medical grounds has been legalized and approved by many though not all.

Thus, the concept of crime is ever changing.  What was not crime yesterday may be a crime today and what is a crime today may not remain a crime tomorrow.  Therefore, social changes affect the criminal law in many ways, such as:

  • Through changes in structure of society, especially in its transition from rural self-contained and relatively sparsely populated to a highly urbanized and industrial pattern.
  • Through changes in the predominant moral and social philosophy.
  • Through developments in science especially in Biology and Medicine.

  • Impact of Social Change on the Law of Crimes:

Criminal offences dealing with protection of life and liberty have essentially remained unchanged throughout all ages all over the civilized world.  Only certain crimes against human body like abortion and sexual crimes took new forms due to changes in the attitude of the society towards such conduct.

The crimes against property have undergone a lot of profound changes mainly as a result of transformation of a primitive agricultural society into a commercial or industrial society.  The original crime ‘theft’ has been widened to include embezzlement, fraudulent conversion that is designated as “White Collar Crimes”.  The concept of property has widened including not only physical things but also varieties of other assets i.e. even the things which are not capable of being taken away physically.  These include electricity, shareholders claims, Copyrights, etc., which have become subjects of such crimes.


2.2. Crime is A Multidimensional Problem:

Crime is not just the responsibility of the police, the courts, and the prisons. Crime cannot be controlled without the active support of individual private citizens, schools, businesses, and labour unions. This is so because crime has its effects on everyone-not just the criminal and his victim. The fear of crime has affected basic patterns of life of people. People in society are in need of an efficient system that is capable of checking the incidence of crime in the society so that they can feel a sense of safety and security which is essential for a peaceful living. Therefore, the problem of crime has been the concern of more than the law enforcement machinery.

Clearly, then, crime has many dimensions.  To the student of crime, it is a problem of explanation and interpretation.  To the legislator, it is a problem in definition and articulation. To the police, it is a problem in detection and apprehension.  To the judge, it is a problem of due process and of punishment.  But, it is a problem too for more than these.  It is a problem to the person who is engaged in breaking the law; it is a problem to the victim who may be deprived by it of life, possessions and even the pursuit of happiness.  And finally to others it is a threat to tranquility and a disturbance in the social order.  (__Robert Quiney)


2.3 Definition of Crime:

The transient nature of crime makes it very difficult to derive any precise definition of the term.  In spite of the attempts made by various jurists, a satisfactory definition of crime has not been achieved.

  • Literal Meaning of Crime:

The word “Crime” was originally taken from a Latin term “Crimen” which means “to charge”.  The Greek expression “Krimos” is synonymous to a Sanskrit word ‘Krama’ which means “Social order”.  Therefore, in common parlance the word crime is applied to those acts that go against social order and are worthy of serious condemnation.


  • General Meaning of Crime:

The Oxford English Dictionary defines crime as “an act punishable by law as forbidden by statute or injurious to public welfare”.  It is a very wide definition including many things in the present day complex society.  Any act like selling adulterated food, molestation of women or young children in buses and railways, misleading advertisements can be said to be injurious to public welfare.  It is too wide a definition and fails to precisely identify the thing it purports to define.  Though there is no precise definition for crime, we can still have an understanding of the word by examining different definitions put forward by different jurists.

  • Crime is a “Public Wrong”—Blackstone:

Blackstone, (1968) has defined crime as an act committed or omitted in violation of a public law either forbidding or commanding it”. Thus, according to Blackstone crime is an act in violation of public law.  But what is ‘public law’?  It has several accepted meanings.  According to Austin, (yrar) public law is identical with “Constitutional law”.  This being so, the crime would then mean an act done in violation of Constitutional law.  The definition would thus cover only political crimes namely crimes against the state, and crimes like arbitrary deprivation of life, personal liberty and property, leaving aside a vast area of other criminal behavior.  Germans interpret public law to include both constitutional law and criminal law.  As we have already seen, it is fallacious to define crime with the help of constitutional law.  And it would be meaningless to define crime using the expression “criminal law”. It would rather amount to arguing in a circle. What is a crime? - Violation of criminal law.  What is criminal law? -The law that deals with “Crimes”.  In this sense also Blackstone’s definition fails to define crime satisfactorily.  There is yet another accepted meaning of public law given by Kenny, (year) According to him, public law means all “positive law” or “municipal law” which means “any law made by the state”.  Then crime would mean an act done in violation of all positive law which is not true for many acts though done in breach of law are not crimes.  Thus it may be said that, whatever meaning we attach to the expression “public law”, the definition of Blackstone proves unsatisfactory.

Blackstone, (year) perhaps visualizing the inadequacy of his first definition of crime tried to give a modified definition and said, “A crime is a violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity”.

The second definition of Blackstone proceeds in terms of “public rights and duties” replacing the phrase “public law”.  In fact even this definition is not without error.  In addition to that Stephen, while editing Blackstone’s Commentaries committed further error as he slightly modified the definition and reconstructed it in the following words: “A crime is a violation of a right, considered in reference to the evil tendency of such violation as regards the community at large.”

Stephen (year) committed two errors in modifying Blackstone’s second definition:

1. He dropped the word ‘duties’ from Blackstone’s definition narrowing down the scope of crime to the violation of rights only, whereas criminal law fastens criminal liability even on those persons who omit to perform duty required by law, for example, failure to report the preparation or commission of an crime (Art. 39 & 443 of the Criminal Code) failure to appear before courts as a witness or an accused person (Art.448 of the Criminal Code) a parent’s gross neglect in bringing up a child (Art. 659 of the Criminal Code), failure to provide the maintenance allowances stipulated under (Art. 658 of the Criminal Code), etc.

Similarly, are other acts, which do not violate any one’s right but are nevertheless crimes, e.g., being in possession of arms and ammunition, (Art.808 of the Criminal Code) carrying of prohibited arms (Art. 809 of the Criminal Code).

2. The second error committed by Stephen in editing Blackstone’s definition lies in the expression evil tendency of such violation as regards the community at large.  It means that crimes are breaches of those laws, which injure the community.  However, all the acts that are injurious to the community are not necessarily crimes.  Even transactions of civil nature can injure community.  For example, where the Directors of a company fail to manage its affairs properly, the mill is closed, workers are rendered unemployed, production of a commodity essential for the society is stopped—will it not be an act which is injurious to the society?  But can we prosecute the Directors for any crime?    The answer to this will probably be “NO”.

Thus, as has been rightly pointed out by Kenny, “it is possible that, without committing any crime at all, a man may by breach of trust or by negligent mismanagement of a company’s affairs, bring about a calamity incomparably more wide spread and more severe than that produced by stealing a cotton pocket hand-kerchief, though that petty theft is a crime.”  Therefore, to define crimes as those breaches of law which injure the community is not completely true.


  • CRIME is A “Moral wrong” – Stephen:

According to Stephen (year) crime is “an act forbidden by law and which is at the same time revolting to the moral sentiments of the society”.  Defining crime, as something against the moral sentiments cannot be accepted because there are acts though not immoral, classified as highly criminal, e.g., Treason i.e.  ‘anything done to displace the governing body of state.’  Treason is graded as a crime in the highest degree and considered as a heinous crime by all Penal Codes.  This is not because the moral sentiments of the society are being affected but for the security and stability of the government.  Similarly, there are acts, which are highly immoral but not criminal. For example, an expert swimmer stands by the side of a river and sees a child drowning in the river and makes no effort to save the child and the child dies by drowning.  His act may be highly immoral but it is neither a criminal nor a civil wrong.

  • Crime is A “Procedural Wrong” –John Austin:

Austin (year) and some writers (e.g.…) define crime in terms of the proceedings adopted in such cases.  Austin defined crime while making a distinction between civil and criminal wrongs.  He observed, “A wrong which is pursued by the sovereign or his subordinates is a crime.  A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury”.

The definition does not explain a number of crimes under the Criminal Code in which the prosecution could be initiated only at the instance of injured party as is done in the case of civil wrongs.  For example, in case of Adultery (Art. 618 Criminal Code) no court shall take cognizance of the crime except on a complaint made by the injured spouse (Art 13 Cr. P. C). Thus, even Austin’s definition of crime in terms of procedural wrong also is not without defect.

  • Crime is a “Creation of Government Policy”:

‘Russell’ has rightly observed that, “to define crime is a task which has so far not been satisfactorily accomplished by any writer.  In fact, criminal offences are basically the creation of a criminal policy adopted from time to time by those sections of the community who are powerful or astute enough to safeguard their own security and comfort by causing sovereign power in the state to repress conduct which they feel may endanger their position”. We find ample evidences supporting the observation made by some of these are Kenny’s “Outlines of Criminal Law” (1966, 19th ed., by J.W. Cecil Turner, Cambridge University Press, UK) brings out the following examples in this regard.

In the first place, as the history of the early Roman law reveals, an offensive conduct may become recognized as a crime as a result of the combined effect of a number of different social forces.  For instance, in a primitive monarchy or Oligarchy when all nominal state power rested in the hands of a personal sovereign or a small group of men, anything done in the nature of an attempt to displace the governing body was classed as “Treason” and such   behavior is criminal in the highest degree.  Such an attempt would be repressed by all means available to the ruling element.  The person who commits treason is called a traitor; and any one who slew him was held guiltless.

Another example is that of the English Law of Outlawry.  The ancient city-states of Europe depended largely on the strength and construction of their “City Walls”.  For this reason erecting private buildings near the City Walls was prohibited since these might hinder the movements of defending troops within the city walls and offer cover to approaching enemies from outside.  The maintenance of these walls in a state of efficiency was so important that at Rome religious superstition was invoked for their protection and they were classed as “res sanctae” (things sacred).  It was a capital offence to harm them or even to climb over them to enter the city instead of coming through the gates in the proper way.

Different social forces and impulses affected the development of law everywhere.  Such forces varied from the legislative power of the dictator to the unidentified pressure of public opinion.  An illustration of the dictator’s power bringing a change in the law is of Emperor Claudius for his private purposes.  Desirous of marrying his brother’s daughter Aggrippina, he brought a change in the ‘law of incest’, permitting marriage between a niece and her uncle leaving the rest of the law relating to such prohibited marriages i.e. between uncles and nieces or aunts and nephews incestuous.

Therefore, Kenny (year) opined that, so long as crimes continue to be created by the government policy, it was difficult to give a true definition of the nature of crime.  Hence, he resorted to broadly describing a crime as he realized that it is nearly impossible to give a scientific definition of crime.  While doing so, he kept in view an all-important aspect of the matter i.e. “the controlling power of the state with regard to criminal prosecution is an undeniable fact”.  According to him “Crime” has the following three characteristics:

  1. A crime is a harm brought about by human conduct, which the sovereign power in the state desires to prevent,
  2. Among the measures of prevention there is threat of punishment,
  3. Legal proceedings of special kind (criminal proceedings) are employed to decide whether the person accused did in fact cause the harm and is according to law to be held legally punishable for doing so.

  • Crime Is A “Legal Wrong”:

Since no satisfactory definition of crime acceptable and applicable to all situations could be derived, penal statutes define, specifically, different criminal behaviors, which they purport to check.  Even the Criminal Code of FDRE, 2005, which has codified the great bulk of the criminal law of the country, does not give any standard definition of crime.  Art. 23(1) simply states that,

A crime is an act which is prohibited and made punishable by law.

In this Code, an act consists of the commission of what is prohibited or omission of what is prescribed by law.”

This provision is nothing but a statement of fact, which is made for the purposes of the Code, and cannot be regarded as a definition of crime. It refers to the specific kinds of conduct prohibited under the Special Part of the Code.


‘Crime’ Distinguished From ‘Civil Wrongs’:

“Crimes” are said to be harms against the society and are therefore, considered as graver wrongs. “Torts” (cases of non-contractual liability) are wrongs against individuals and are treated as lesser wrongs. “Breaches of contract” are also civil wrongs, which result from non-performance of contractual obligation.

“Tort” is a private wrong and the remedy available is reparation for the injury suffered and not punishment.  “Breach of contract” entails civil liability of the defaulter that may result in forced (specific) performance, cancellation of the contract or payment of damages.  But unlike criminal law, the state will not be involved in the dispute or litigation other than legislating the legal framework that facilitates contractual transactions, providing remedies in case of non-performance and adjudicating over the case if the creditor files a suit.  Moreover, the remedies unlike criminal law do not involve punishment but performance of obligations and payment of damages.

There are several factors that distinguish torts from crimes.  However, torts also include certain harms or damages caused by fault that are designated as offences like assault, defamation, negligence etc.  But unlike criminal offences non-contractual liability may arise irrespective of fault (strict liability) or due to harm caused by others for whom a person is answerable (vicarious liability) as in the case of harm caused by one’s child, one’s employee in due course of his work, etc., Tortious liability is said to be “strict” (or irrespective of fault) in the following instances.

a)      If it arises from acts that do not constitute fault, or

b)      Due to harm caused by things owned or possessed by a person namely, animals, buildings, machines, and vehicles and manufactured goods.

Further, faults that result in tortious liability are wider in scope of application than offences, because in addition to offences the term “fault” for the purpose of “tortious liability” may include violations of private law (Art. 2035 ECC), Professional fault (Art. 2031, ECC) and other faults that are considered to be faults on the basis of the “standard of a reasonable man’s conduct under similar circumstances” (Art. 2030 ECC).  In short, criminal liability invariably requires moral guilt (intention or negligence) and personal act or omission while non-contractual liability doesn’t.

Another important difference lies in the fact that “analogy” is forbidden in criminal cases (Art. 2 (1), The Criminal Code, 2005), but may be permissible in Civil (i.e. contractual and tort) cases where legal provisions embody illustrative (rather than exhaustive) lists.  The distinction between the two also lies in the degree of certainty of evidence.  Criminal cases require certainty beyond reasonable doubt while the preponderance of evidence in the balance of probability suffices in civil cases.

In addition to these, the following are some more important legal aspects which distinguish these legal wrongs:

Nature of wrong:

Crime is a public wrong i.e. a harm done against the society. A ‘tort’ is a private wrong committed against an individual generally or the public in a given locality. A ‘breach of contract’ is committed when any term or condition of an agreement enforceable by law is violated by any one of the parties to the agreement. Therefore, this too is a private wrong committed against a specific individual.

Nature of the Right Violated:

In a crime and a tort there is a breach of ‘right in rem’ whereas in a breach of contract there is breach of ‘right in personum’.

Origin and Nature of the Duty:

In a crime the duty not to cause harm is fixed by the state. In tort such Duty is fixed generally by the operation of law where the law of non-contractual liability remains un-codified and by the state where it has been incorporated in codified law (Art.2035ECC).Under criminal law the duty is towards the whole world and it arises on account of the statutory enactments. In case of torts the duty is towards the public generally. Duty either arises on the basis of statutory enactments (Art.2035ECC) or on the basis of general responsibility towards the society and it is independent of any personal obligation under a contract. Whereas, in case of breach of contract the duty is fixed as a result of contractual relationship of the parties and the duty is specifically towards the contracting party. The duty is breached as the result of failure to perform contractual obligation.

Consent of the Victim:

Consent of the victim to the injury caused is a qualified defence in criminal law. (Art 70 Criminal Code). In torts, consent of the plaintiff to the alleged injury nullifies right to remedies. A contract it is founded upon consent. Therefore, if there is consent to the breach of any term or condition of the contract, the plaintiff forgoes his right to claim the remedies.

The Element of Intention:

Intention is an essential element of crime (Art.57 and 58 of Criminal Code).  Intention may form one of the ingredients of tort but not an essential precondition for the Tortious liability.  In an action for breach of contract whether the breach   was intentional, is an irrelevant question.

The Element of Negligence:

Negligence attended with criminal lack of foresight amounts to a crime (Art.59 Criminal Code). Mere negligence may amount to a tort (Art.2029 ECC). There is no question of negligence in an action for breach of the obligation arising out of a contract.

Relevancy of Motive:

Motive may be a factor for consideration in deciding the quantum of punishment in criminal liability. Motive is taken into consideration in deciding tortious liability. Motive is irrelevant (1717 ECC) in an action for breach of contract. A breach is a breach with whatever motive it was committed.

 

Initiation of Legal Proceedings:

Criminal proceedings are conducted in the name of the state. The state steps into the shoes of the victim as the protector of interests of its inhabitants. In case of the other two civil wrongs, it is the injured party that brings the action against the wrong-doer.

Remedies Available:

The criminal is punished by the state. The punishments may range from fine, compensation through imprisonment of different kinds to capital punishment. In torts the remedies available are damages, compensation, restitution and injunction. For breach of contract cancellation of contract, damages, specific performance and forced performance of contract are the available remedies.

All these distinctions show a difference in the legal proceedings, which are taken upon the commission of a wrong.  But they do not indicate any essential intrinsic difference in the nature of ‘crimes’ and ‘torts’.  Some times the same injury such as negligence, defamation, amulet etc, may fall under both the categories. Therefore, Kenny (year) rightly observes that, “in a way there is no distinction between crime and tort in as much as a tort harms an individual, where as crime is supposed to harm a society.  But then a society is made up of individuals, harm to an individual is ultimately harm to the society”. Writers on English legal history have often mentioned that in early law there was no clear distinction between criminal and civil offences. The two have been called ‘a viscous intermixture’, and it has been explained that the affinity between tort and crime is not the least surprising when we remember in the history of law how late in the history of law there emerged any clear conception of difference between them; this is more, not a peculiarity of the English system, as was pointed out by Maine (year). There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore all that is true to say of crime that it is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of emotion than as terms of scientific classification. Thus the word ‘felony’ originally indicated something cruel, fierce, wicked or base. As Maitland (year) says: ‘In general it is as bad a word a as you can give to man or thing, and it will stand equally well for many kinds of badness, for ferocity, cowardice, craft.’


For a proper appreciation of the distinction between criminal law, civil law and morality, it is necessary to understand the “concept of wrongs” and their classification.

A wrong is an act forbidden by the society. In other words, it is a violation of rules, which are accepted by the society.  Society prohibits certain activities basing on the general conscience of the society, which is found in the values and norms of the society.  The concept of morality explains the values of a particular society.  This means that a given society declares certain acts, which offend the moral conscience of that society as forbidden. These forbidden acts can be described as moral wrongs. However, All moral wrongs are not wrongs in the legal sense.

Since all violations of law cannot be characterized as crimes, there is a necessity to identify the particular class of violations or forbidden acts or wrongs, to understand the concept of crime.  Therefore, we shall proceed to broadly classify the body of wrongs.

Classification of Wrongs:

Since all violations of law cannot be characterized as crimes, there is a necessity to identify the particular class of violations or forbidden acts or wrongs for the purpose of defining what ‘crime’ is.

Wrongs

(Acts forbidden by the Society)

Moral wrongs              Legal Wrongs

(Interference of law is considered              (where the interference of law is necessary)

unnecessary)

Civil wrongs          Criminal wrongs

(Law interferes at the     (State as a matter of right  interferes in most of the cases)

instance of the injured party)


ü  Moral wrong:

This is a wider term including a wide range of reprehensible acts, which tend to reduce human happiness.  There is a long list of such acts including ingratitude, hard-heartedness, absence of natural love and affection, habitual idleness, sensuality, pride and all such sinful thoughts.  Such acts are called wrongs and are looked upon with disapprobation. The evil tendencies of these anti-social acts widely differ in degree and scope. Some of these wrongs such as lies, refusal to give a morsel of food to save a fellow human being, omission on the part of a swimmer to rescue a man from drowning, etc., are not considered sufficiently serious for the notice of law and are merely disapproved. These acts are considered as moral or ethical wrongs and are checked to a great extent by social and religious laws. Sinful thoughts and dispositions of mind might be the subject of confession and penance but not of criminal proceeding.

ü  Legal Wrong:

The category of wrongs such as nuisance, deceit, libel (defamation in visual form) robbery, dacoity, murder, rape, kidnapping, etc., are considered to be sufficiently serious for legal action. The state may respond to any of such acts in two different ways: (1) Where the state takes action against the wrong-doer at the instance of the injured party, it is called the civil wrong, and (2) Where the state by itself proceeds against the wrong-doer, the wrong is referred to as criminal wrong.

  • Civil Wrong:

Where the magnitude of injury is supposed to be more concentrated on the individual, the state, at the instance of the injured individual or the group, directs the wrong doer to compensate the injured in terms of money as in the case of deceit, libel, nuisance, negligence, etc. This type of wrong is called civil wrong or Tort, for which civil remedy is open to the injured.

  • Criminal Wrong:

Where the gravity of the injury is more directed to the public at large (including the specific victim), the state by itself can take a direct action against the wrong-doer. In this instance public condemnation or provision for compensation is ineffective as in the case of moral or civil wrong. Wrongs, like dacoity, murder, kidnapping, sedition, treason and the like, disturb the very fabric of law and order and jeopardize the state’s existence or create a wide spread panic. Therefore, the state stresses the necessity of punishing the wrong-doer rather than concerning itself with the question of payment of compensation to the injured party by the wrong-doer. This category of wrongs is called as “public wrongs” or “crimes” for which criminal proceedings are instituted by the state and the culprit is punished.


  • Relation between Morality and Criminal Law:

Though morality and law can be precisely distinguished, they are not totally distinct phenomena. They are related to each other in that they both aim at maintaining social order. There is a category of wrongs towards which law and morality react with common hatred. They are offences like murder, rape, arson, robbery, theft, etc. Law and morals powerfully support and greatly intensify each other in this matter. Everything that is regarded as enhancing the moral guilt of a particular offence is recognized as a reason for increasing the severity of the punishment awarded to it.

Sir Stephen year stated, “the sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax”. When a member of the society does a wrong involving serious moral guilt, the moral sentiment of the society gets offended so seriously that the whole society waits in all its eagerness to see that the offender is punished severely. This general disapprobation excited against the wrong doer may pass away with time.  But the fact that he has been convicted and punished as a “thief” or “murderer” or “cheat” or “rapist” stamps a mark upon him for life.  Thus the moral sentiment of the public gets converted into a permanent final judgment what might otherwise be a transient sentiment.

Thus, according to the author the criminal law proceeds upon the principle that “it is morally right to hate criminals and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it.”  However, the recent tendency of the reformists is on the opposite lines, they say “hate the crime not the criminal” basing their argument on the Gandhian philosophy i.e. “hate the sin not the sinner”, because a criminal is not born, he is made. Different circumstances and experiences after his birth in the society become responsible for his becoming a criminal.  Thus, today the “Reformative Justice” is the philosophy of the state.

Cohen, in his article “Moral Aspects of the Criminal Law” (49 Yale L.J.989-990 (1940) observes “ …… what I wish to insist on is that the criminal law is an integral part of the legal system and is subject to same considerations which do and should influence the whole. More specifically, the criminal law cannot be distinguished from the rest by any   difference of moral principle. Some crimes, to be sure, are shocking; but there are many crimes that are felt to be much less reprehensible than many outrageous forms of injustice, cruelty or fraud, which the law does not punish at all, or else makes their perpetrator liable to money damages in a civil suit….”

 

The definition of a crime has always been regarded as a matter of great difficulty. Where the task of definition is difficult, it is advisable that a student should not address himself to it until he has acquired some considerable knowledge of the subject matter to be defined. Therefore, before making an attempt to understand the definition of crime, we shall endeavor to have some basic information relating to crime and criminal law.

“Crime” is an offence committed by an individual who is a basic unit of a society.  Therefore, study of crime i.e. Criminal Science” is a social study. The main aims of Criminal Science are:

To discover the causes of criminality,

To devise the most effective methods of reducing the amount of criminality,

To perfect the machinery for dealing with criminals

Based on these three objectives, three main branches of Criminal Science have developed.  They are:

1.  Criminology:  It is the study of crime and criminal punishment as social phenomena. This branch of criminal science is concerned with causes of crimes and comprises of two different branches.

a) Criminal Biology:  This investigates causes of criminality, which may be found in the mental or physical constitution of the delinquent himself such as hereditary tendencies and physical defects.

b) Criminal Sociology:  This deals with enquiries into the effects of environment as a cause of criminality. This branch focuses on the objective factors like social, political and economic conditions leading to criminality, also termed as criminal anthropology.

2.  Criminal Policy or Penology: This branch of Criminal Science is concerned with limiting harmful conduct in society.  It makes use of the information provided by Criminology.  Therefore, the subjects of Criminal policy for investigation are:

a)       The appropriate measures of social organization for preventing harmful activities,

b)    The treatment to be given to those who have caused harm, whether the offenders are to be given warnings, supervised probation, medical treatment, or more serious deprivations of life or liberty, such as imprisonment or capital punishment.

This branch of study is also termed as ‘Penology’ and deals with treatment, prevention and control of crimes.

3.  Criminal Law: The Criminal Policies postulated by the above twin sister-branches i.e. Criminology and Penology, are implemented through the instrumentality of ‘Criminal law’.  In other words, criminal policies are implemented through the agency of criminal law.  The criminal law decides the special sanctions appropriate in each case.  These sanctions range from death penalty through various kinds of degrees of deprivation of liberty, down to such measures as medical treatment, supervision as in probation, fines and mere warnings (admonishment).

Branches of Criminal law: Criminal law in its wider sense consists of two branches.

a)      Substantive Criminal Law,

b)      Adjective/Procedural Criminal law

‘The Substantive Criminal law’ lays down the principles of criminal liability, defines offences and prescribes punishments for the same.  The Ethiopian Criminal Code does this business.  However, the substantive criminal law by its very nature cannot be self-operative.  A person committing a crime is not automatically stigmatized and punished.  At the same time, generally, a criminal would not be interested in confessing his guilt and receiving the punishment.  It is for this reason that ‘Procedural Criminal law’ has been designed to look after the process of the administration and enforcement of the substantive criminal law.  In the absence of procedural criminal Law, the substantive criminal Law would be almost worthless.  because without the enforcement mechanism the threat of punishment held out to the lawbreakers by the substantive criminal law would remain empty in practice.  Thus, the procedural criminal law is to administer the substantive criminal law and give enforcement to it.  The scope of our study i.e. ‘Criminal law’ falls under the branch of substantive criminal Law.

 

Nature and Scope of Criminal Law

 

Laws can be classified into different branches.  For instance, Civil law spells out the duties that exist between persons or between citizens and their government, excluding the duty not to commit crimes, Contract law for example is a part of civil law. The whole body of tort law or the law relating to Extra Contractual Liability, which deals with the infringement by one person on the legally recognized right of another, is also an area of civil law. Criminal law has to do with crimes, which are different from other wrongful acts such as torts and breaches of contract. The distinct nature of Criminal Law can be understood by defining some of its unique features.  According to Edwin Sutherland, Criminal Law of a place can be defined as “a body of special rules regulating human conduct promulgated by state and uniformly applicable to all classes to which it refers and is enforced by punishment.”  It means the whole body of criminal law to be efficient must have four important elements, viz.,

  • Politicality,
  • Specificity,
  • Uniformity, and
  • Penal sanction

Politicality implies that only the violations of rules made by the state are regarded as crimes.  Specificity of criminal law connotes that it strictly defines the act to be treated as crime.   In other words, the provisions of criminal law should be stated in specific terms.  Uniformity of criminal law implies its uniform application to all alike without any discrimination, thus imparting even-handed justice to all alike. The idea is to eliminate judicial discretion in the field of administration of criminal justice.  It may, however, be noted that the recent legislations provide scope for more and more judicial discretion through judicial equity to attain criminal’s reformation which is the ultimate goal of criminal justice. Finally, it is through ‘Penal sanctions’ imposed under the criminal law that the members of society are deterred from committing crimes.  It is, therefore, obvious that no law can be effective without adequate penal sanctions.

 

General Objectives of Criminal Law:

The objectives of Criminal law are the protection of persons and property, the deterrence of criminal behavior, the punishment of criminal activity and rehabilitation of the criminal.

a. Protection of Persons and Property:

Safety and a sense of security are the most important things for the survival of any society.  Safety of a society includes personal safety i.e. safety of life and liberty and safety of property.  To ensure safety there is the necessity of maintaining peace and order.  This is possible only by an effective penal system, which is strong enough to deal with the violators of the law and enable the people to live peacefully and without fear of injury to their lives and property.  Thus, the prime objective of criminal law is protection of the public by maintenance of law and order.

“Tort law”, a branch of civil law, also protects persons and property.  The difference between tort law and criminal law is that tort law results in money damages, whereas criminal law results in loss of freedom by sending a person to jail or prison.  Private interests are served through the awarding of damages.  The public interests are served by punishing criminal activity. If all persons respected everyone else’s person or property, there would be very little reason for criminal law.


b. Deterrence of Criminal Behavior:

A key to the hoped-for reduction in criminal behavior is that our criminal laws present a sufficient deterrent to antisocial behavior.  A “deterrent” is a danger, difficulty or other consideration that stops or prevents a person from acting.  The presumption inherent in criminal law is that if we make the punishment sufficiently harsh, persons who might do something criminal are prevented from doing so because they fear punishment.  If enough people fear punishment, there will be considerable reduction in criminal activity.

However, our Constitution states in Art. 18 that, there shall be no cruel and unusual punishment.  Certainly if our laws allowed the death penalty for even minor offences, there would probably be fewer minor offences.  But is that just?  To lose one’s life for stealing a loaf of bread seems too high a price to pay for fewer loaves of bread being stolen.  The problem is to decide how much punishment will deter criminal behavior without going too far.

c.   Punishment of Criminal Activity:

Since we will most likely be unable to deter all criminal activity, our laws accept that a certain level of criminal activity will exist in society.  Accordingly, we punish criminal activity for punishment’s sake.  If a criminal takes something without paying for it or injures other without a justification, the criminal law makes that individual pay for it through deprivation of liberty for a period of time.

d. Rehabilitation of the Criminal:

Once convicted, a criminal will begin to serve a sentence in a prison.  But that is not where our criminal justice system ends.  Our government has designed various programs to educate and train criminals in legitimate occupations during the period of incarceration.  Upon release, therefore, there should be no reason to return to a life of crime.  Sometimes a sentence is suspended (Arts. 190-210 of the Criminal Code); that is, it is not put into effect.  In such cases, the court supervises the individuals’ activities to ensure that they have learned from their mistakes.

The specific purpose and function of Criminal Law are clearly stated in Art. 1 of the Criminal Code of the Federal Democratic Republic of Ethiopia, 2004.  Art. 1. Para 1 sets out the purpose of criminal law (Code) as follows:

“The purpose of the Criminal Code of Federal Democratic Republic of Ethiopia is to ensure order, peace and the security of the state, its peoples, and its inhabitants for the public good”.

‘Purpose’ can be defined as the ultimate objective to be attained.  The above provision embodies ensuring order, peace and security of the state and the people of the country as its ultimate end to be achieved.  The second paragraph of Art. 1 proceeds to state the type of activities it aims to take up in order to achieve the purpose mentioned in the first para.  Art. 1 Para 2 lays down that:

It aims at the prevention of crimes by giving due notice of the crimes and penalties prescribed by law and should this be ineffective by providing for punishment of criminals in order to deter them from committing another crime and make them a lesson to others, or by providing for their reform and measures to prevent the commission of further crimes.”

This paragraph states “What” the function of criminal law is … it is a prevention crime. It also states How” the Criminal Code undertakes this function i.e. the methods adopted in performing this function, they are_

  • Giving due notice of the crimes and penalties prescribed by the law.
  • If such declaration of the punishable acts does not deter people from committing of crimes then the following methods are employed to deal with the criminals:

a)      Provide for punishment and reform of criminals, and

b)      Provide for measures to prevent the commission of further crimes.

Therefore, the function of a thing is ‘what it is meant to actually do’ towards a certain purpose.  Function is thus a special activity or task while purpose is the ultimate objective to be achieved.  Therefore, it follows that the Criminal Code of Ethiopia endeavors to achieve the purpose of “ensuring order, peace and security of the state and its inhabitants for the public good” through declaration of forbidden conduct, providing for suitable punishment, reform of criminals and preventive measures to control the commission of crimes.

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