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:
- What kind of conduct is ‘forbidden’?
- What kind of ‘formal social condemnation’ is considered appropriate to prevent such conduct?
- 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:
- A crime is a harm brought about by human conduct, which the sovereign power in the state desires to prevent,
- Among the measures of prevention there is threat of punishment,
- 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.
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.’
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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.
(Acts forbidden by the Society)
Moral wrongs Legal Wrongs
(Interference of law is considered (where the interference of law is necessary)
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.,
- 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.
Criminal Investigation and Models of Litigation
The body of law that was indigenous to Ethiopia and that marked a significant development in the last decades of this century was the regime of law known in modern legal science as civil and criminal procedure laws. It had been transmitted from generation to generation by oral tradition.
Before the Italian occupation in 1936, it was the procedural law that was comparatively well developed and that had attained a high degree of excellence. It was also the same law that was more popular among the people than the substantive law, a fact that tends to show how much the people of Ethiopia give due respect and importance to the proper administration of justice. Judges and all other persons engaged in the administration of justice were respected and honoured. They were expected to live up to the then standard of justice and aspire to the attainment of this lofty goal.
This procedural law included the law of evidence, which incorporated techniques of investigation and highly sophisticated interrogation and cross-examination procedures, methods of interpretation of law and framing of issues, including principal and side issues (obiter dictum). All these fell under the administration of justice process of Ethiopia.
Criminal investigation devices
In criminal cases, court proceedings were often preceded by the investigation of the commission of the alleged crime.
There were three types of devices of crime investigation or detection under the old procedural law of Ethiopia. These were known as leba shay, afarsata, and the investigations undertaken by the “market guards” (arada zabagna) and secret guards (mist’ir zabagna).
(i) The Leba Shay: device for detecting criminals (c. 1900-1922)
Leba Shay was a method employed to identify a thief by using a young boy who had not attained the age of puberty. He was made to drink a beverage made of a certain herb. One end of a strip of a cloth would be tied around the waist of the boy and the chief of leba shay would follow the intoxicated boy wherever he went by holding the other end. Since it was believed that water would neutralize the effect that the herb would have no the boy, great care was taken to keep him away from it. In the house where he collapsed, he would again be made to drink the beverage so that he could identify the particular individual from among the inhabitants of the house. The boy would push aside any one he meets entering the house of the suspected culprit. Any person on whom he laid his hand would be taken as a suspect and brought before a court of law. At some stage of its development, supplying information to the boy was made a part of the practice. This brought more harm than the service it rendered, for it could easily be manipulated to serve individual interests.
During the reign Empress Zewditu (r. 1916-1930) an investigation for a thief who had stolen a garment from the palace was conducted by leba shay. The chief of leba shay hinted to the intoxicated boy to indicate someone as the person who had stolen the garment. The person thus picked was a well-known personality among the imperial courtiers but he was not on good terms with the chief of leba shay. This incident triggered a lot of controversy among the imperial courtiers, particularly when it was later discovered that the garment had been found after it was offered for sale at the market and that it had been stolen by a maid of the palace. Blaten Geta Mathteme-Sellassie recounted that this particular incident revealed the disadvantages of the institution, as a result of which Empress Zewditu abolished leba shay as a technique of criminal investigation.
Indeed leba shay is not by any standard a modern method of criminal investigation. Nonetheless, in the absence of such modern institutions as a police force and crime investigation, the institution of leba shay must, at the time, have served as a psychological deterrent in the minds of potentially dangerous people.
(ii) the Afarsata: gathering to screen criminals (c.1900-1960)
The afarsata was a device by which all male members of a community would assemble to identify an offender.
Whenever a person or a group of persons reported to the local chief or other official that cattle had been stolen, that they had been robbed or that one of their relatives had been murdered, the local chief ( chiqa shum ) or the village shum (dug) would call on all male members of the community in that locality to assemble in assemble in a fixed place on a given date. In the assembly, the elders would call upon each person to tell whom he suspected. Every person would declare the identity of the person he suspected or what had been told to him by the “singing bird”. The person who would testify as to the identity of the criminal under oath was kept secret and referred to as “bird”. The person thus identified as the offender would be prosecuted and convicted before a court without having the chance to confront the witnesses for the prosecution.
In what is now the Gonder region, the person who said that he saw the commission of the crime was known as a “bird” (wof), while the one who testified as having heard it from another person was referred to as a “stone” (dingay). A prosecution would take place against the person who was identified as the offender by the testimony of the “bird” or the “stone”. It was an established practice not to allow anybody to go home until the identity of the criminal was established. As a result, a great deal of harm was done to innocent people. The following comment given by an elderly person on this institution leads to the same conclusion.
In a certain place, there were three well-known thieves who brought about untold harm to the people of the community. Their names were Lemma, Bitwe and Jenber. They lived in the community pretending to be law-abiding citizens. The people tolerated them quite a long time for fear of vengeance. However, in one of the public meetings, a certain witty man declared that in out community, the thief is flourishing (lemma), he better stop it (bitew yettew), if he does not, are we supposed to be kept on jammed in such a meeting every day (jenber bessereqe qutter).
Thus the witty man revealed the names of the thieves by the use of ambiguous phrases.
A law regulating afarsata meetings was issued on August 2, 1933. This law provided that gatherings be conducted on Sundays only. The person who revealed the identity of the suspect, pursuant to this law, was made to testify before the court. Hence, this law made it possible for the accused to confront witnesses for the prosecution. A person who failed to attend such gathering would be liable to a payment of a fine (adafagen). If the people failed to identify any person responsible for the alleged crime, the entire community would be liable to make the damage good. If the offence committed was homicide, members of the community had to contribute to redress the damage inflicted on the relatives of the deceased.
Later on, a circular letter was issued by the Ministry of Interior that required the attendance of a policeman in all such meetings. Furthermore, when the investigation was over, the so-called “bird” was required to testify openly before the court.
In times when modern techniques of criminal investigation were not sufficiently developed or totally absent, techniques such as the afarsata must have had their own reason deter. After the adoption of modern techniques of investigation and other rules of criminal justice, the decision to maintain such an institution was unwarranted, particularly when it is seen in the light of its negative effects. It was not deemed wise to maintain such an institution because it was not only a psychologically and socio-economically damaging practice, but also an ineffective method of screening criminals from amongst innocent persons. In fact, it allowed a great deal of lee-way for abuse and even corruption. Even where it was correctly applied, the very nature of the procedure went against the principle of due process of law. Since the leba shay assembly, by its nature, passed in to decline and since it was, at least by implication, repealed, there was nature, passed in to decline and since it was, at least by implication, repealed, there was no justification for its continuity after the promulgation of the 1955 Revised Constitution.
(iii) Market guard and secret guard (1909-1936)
The market guard (arada Zebagna) was very close to what we now refer to as the metropolitan police force. The main responsibilities of the market guard were:
1) to maintain peace and order in the city of Addis Ababa,
2) to guard at night the shops in the market places (arada), and
3) to detain any person who acted contrary to the law and the accepted ways of behavior, and cause such person to appear before the competent municipal court.
The market guard also had the power to arrest persons found committing, or suspected of committing, a crime. After the necessary investigation, the market guard could bring such persons before the market court. An appeal from the decisions of the market court was taken to the lord mayor of the city.
Where a person instituted a civil action for battery, the market court required a prior payment of the court fee. This was controversial. One person remarked: “what justice where the one injured is required to pay beforehand.”
The secret guard (mist’ir zabagna) was a unit of the market guard that was charged with the responsibility of crime prevention.
The secret guard was charged with the crime prevention by moving around public squares, and in hotels and bars where alcohol was served. The inscription “Secret Guard” was engraved on the front of their identity (and “secrecy”), this was done to have a deterring effect on would-be criminals aware of their presence.
The secret guard remained a device of crime prevention and control during the period before 1936. It maintained peace and order, gave due warnings, reprimanded offenders who committed petty offences, and brought before a court of law those persons who were accused of committing serious crimes. In short, the institution can be said to have served as useful technique for the enforcement of enacted laws and customary laws.
Public prosecutor and legal Counselor
Not much is known regarding the establishment and development of the institution of public prosecutor in Ethiopia for the earlier period. One may find scattered facts that indicate the existence of a public prosecutor before the eighteenth century, the most vivid account of which was given by James Bruce, the eighteenth-century Scottish traveler who lived in Ethiopia for some years and wrote a book on his quest for the source of the Nile… the chief administration of prisons were customarily required to act on behalf of the government as a public prosecutor.
This practice was operative until finally a law establishing the office of public prosecutor was issued in 1943. According to this law, a public prosecutor should possess a sound knowledge of law or should have judicial experience. No person was to be appointed a public prosecutor other than those who had been an advocate, government official, or police officer who has above the rank of assistant inspector of police. According to this law, all prosecutions other than private complaints were to be conducted by a public prosecutor who could plead in any court where a criminal case was instituted.
Before 1943, the initiation of criminal proceedings was to a very large extent left to the aggrieved party or to his representative. It must have been the outcome of this procedure that the framing or handling of issues of fact or law required no special skill. Any person who attended court sessions and was gifted in oratory was considered as person skilled in the art of advocacy. Without the need to fulfil any formality, such a person could practice law both in civil or criminal proceedings. Legal counselors were free to enter in to contractual arrangements with individual litigants to be paid a fixed sum of money or to be given a plot of land in return for the services they rendered. In cases in forma pauperis, any person attending court litigation had the right to offer his legal service, known as voluntarily without payment (belich’egnannet), but such offer had to secure the consent of the accused party.
Legal skill was, in those days, acquired through frequent attendance at law courts and practice. As a result, except for complicated cases, every person who satisfied the minimum requirement could argue his case without the need of legal aid. The existence of such laissez-faire practice in the legal profession has accentuated the degree of refinement attained in the modes of litigation known as “be interrogated” (tat’ayyeqser’at), which is demonstrated below.
Features of court proceedings
Litigation, at its initial stage, was a voluntary and spontaneous form of arbitration. A party to a dispute was entitled by law to call upon any passer-by to decide his case. If the parties to the alleged dispute were satisfied by the rulings of the road-side courts, the matter would be considered settled. However, if a decision could not be obtained which was satisfactory to both parties, they would go to the regular court. Sometimes the person who acted as the road-side judge would take them to the lowest official judge.
Assessors (techewoch) stood next to the judge in order of importance. Some of them were selected by the contending parties, and some by the court from among those people attending court session.
The third typical feature of the judicial process was the production of guarantee (wass). The most frequent forms of guarantees were: (a) yesene-ser’al wass (a guarantee produced by both parties at the time of initiation of a case to ensure respect and fulfillment of all procedural requirements of the court and also to ensure the appearance of the party in question on the day fixed for the hearing); (b) yedagnennet wass (a guarantee produced by both parties at the initial stage of a proceeding for securing the payment of the court fee by the party who lost the case); (c) yewurered wass (a guarantee entered in to at the time of court proceeding to secure the payment of a wager or bet payable by the loser on and at the time of settlement of the issue under consideration; and (d) yebesselle wass, a guarantee to secure the payment of the value claimed in a civil suit, produced at the time of pronouncement of judgement).
The fourth and last element in a legal process involved in this system was the institution known then as nagarafaj (advocate or lawyer) that pertained to a person who usually had a fair knowledge of the law and who had agreed to represent a person before a court.
In principle, a witness was not required to tender an oath before his testimony. He would, however, be warned to testify to the truth and only the truth. Failing this, the party against whom the witness testified had the right to request the court to require the witness to tender an oath. This was done during Holy Mass particularly, when the Holy Communion was offered. The witness would close the door of a church or hold the Holy Bible and say:
May he perforate me like his cross,
May he erase me like his picture,
May he chop me down in to pieces like his flesh,
May he spill me like his blood, and
May he choke me up as his alter is closed,
If I am not telling the truth.
In case of perjury a penalty, short of death sentence, would be imposed on him in secular courts. In ecclesiastical courts on the other hand, a clergy who is proved swearing falsely was expelled or deposed, according the provisions of the Fetha Negest.
If a witness had already testified out of court, the other party could impeach the credibility of his testimony or might claim that it could not be admissible at all. Consanguineous relationships and other relationships such as godfather, adopted child, godchild and the like were grounds that could be invoked to bar a person from testifying or to discredit his testimony. The party who called the witness would, before asking him to testify, warn him as follows:
One may go to hell after death;
One may be reduced to bones, laying sick in bed;
One may also be a permanent inmate of a hospital;
All the same, one is obliged to tell the truth.
In a similar manner, the defendant would advise the witness to tell the truth and ask him to testify that he did not know what was alleged by the plaintiff.
After the witnesses had given their testimony, the party that felt the most of the witnesses had testified in his favour would pray for judgement to be entered in the following manner: “threshing ground would go to the one who prepared it, judgement should be made in favour of one who had proved right”.
There were instances where each party to the suit would claim that the testimony given stood in his favour. In such a situation, contentions were settled by mere allocations of the testimony to this or that party by persons selected as new observers (irtibe emagne). Later on, however, a rule was made that required the witness who gave the testimony that had become the object of contention to be recalled to state whom his testimony favoured. His answer would automatically settle the matter.
Judicial and administrative functions were entrusted to governors and local chiefs such as grant land-holders (bale-gult), the head of a monastery or church, or the shum (chief) of court of first instance (yesir dagna) on matters of extra- contractual liabilities and matters connected with contract such as those arising out of betrothal or marriage relationships. An appeal against the decision of these courts was lodged to the destrict court (akaldagna). In regions administered by the officials of the palace (gann-geb), provincial governors (shaleqas) or persons appointed by them as representatives (messlenes)or as local officials (duges) used to have jurisidiction at the district level as a district court.
Appeals from the district court were taken to the governor’s (shaleqa-wambar) at the province level. From this it used to go to the provincial governor himself for review. Appeals from the provincial governor’s judgement were lodged with the chief justice and his judges. Cases of injury to the human body, arson and homicide were adjudicated by the chief justice and the senior judges (ras wambars) and not by local governors.
The court of the chief justice was therefore the supreme judicial body for all civil and criminal matters save crimes punishable by death. Sentences other than capital punishment passed by the chief justices were executable without the need for confirmation by the emperor. In some exceptional situation, however, the decisions of the chief justice were appealable to the Crown Court. In case where a person had lost a case in the court of the chief justice, and where such a person secured leave to take his case to the Crown Court, a note used to be issued enabling such a person to appear before that court.
Sentences of capital punishment were passed by the emperor only after the assessors gave their option in the crown court on every point of the case and the relevant provisions of the Fetha Negest which were read and interpreted by scholars.
An appeal could be based on any substantive or procedural issues, including interlocutory matters. Every complaint lodged against the judgements or interlocutory decisions of a court was examined not only by judges sitting in higher courts, but also by korqwaris (king of assessors) attending the court session.
Appeals made on interlocutory orders were not very frequent. However, whenever one of the parties felt such interlocutory decisions would be prejudicial to the principal issue, he was justified in making an interlocutory appeal. For example, if on a question of title, a ruling was given regarding the mode of proving such a subsidiary issue as the existence of a pre-emptive right in the customary law of a specific ethnic group, which would adversely affect the interest of the complainant unless immediately addressed, then this might be considered as a justifiable ground for lodging an interlocutory appeal.
Another matter that was taken to a higher court, particularly that of the Chief Justice, was the question of interpretation of the law. A dispute over who had the right to prove an allegation, and questions of interpretation of law were submitted to the Chief Justice, who was assisted by the senior judges. For instruction or guidance as to how a set of facts or questions of law was to be interpreted, it was to this court that judges of lower rank had to make reference.
In those days (before the Second World War), everyone had a chance to take his case on appeal as far as the emperor, when s/he was not satisfied with decision of lower courts. Regarding the procedure applicable in the Crown Court, for the earlier period, the Ser’ate Mengist, which is believed to have been an old legal text, provided the following order for assessors to speak:
The first ones to give their options are Shaleqas. Then follow Seyoum Musse. Then the Bejirond of Anbessa Bet and Bejirond of the palace followed suit. Next to them come Lique-Mequas, Balambaras, Fitawrari, Gerazmach, Blaten Geta of first rank, Tsehafi Te’ezaz, Ras Masserea and Basha. The next that would be allowed to speak are Dejazmach of Damot, of gojjam Amhara, Begameder, Semien and after them follows the Nebure-ed of tigray, than comes Akabe Ser’at, Blaten Geta and finally Ras.
Regarding the nature of proceedings of the chilot in the recent past, Blaten Geta Mahteme-Sellassie gave the following account:
Criminal cases brought from various lower courts were read in the presence of the accused. Everyone listens to the case as one would do in Holy Mass. Where a case is sufficiently dealt with, the accused will be asked as to whether he admits or not. If he admitted all that had been said and if the case was instituted by a private complainant, the aggrieved party would plead that the verdict be given.
If the accused requested that his case be further investigated, then everybody attending the court would be allowed to ascertain the truth by way of examination and cross- examination. All persons skilled and experienced in this matter will make use of every bit of their wits and intelligence.
After conviction, the private complainant or official of the government demands that the accused be sentenced to death or to this and that type of punishment, while the accused pleads that his case does not carry such sentence or simply prays for mercy.
After this, the process of the sentencing starts.
Every person attending the court, starting from those who are standing and the shambles, would give his opinion when requested by the usher (agafari). Everybody does according to the practice of his locality. When doing so, one had to turn his face towards the emperor and stand close to the usher (agafari)….
After those who have stood gave their opinion, those who sat do the same starting from the lowest to the highest rank. Then follow the judges (wambars) in their order of rank. The Betwededs and Dejazmaches would give their opinion coming just before the judges of the first devision.
Then, the chief justice (afe-negus) gives his opinion. Everybody had to remain standing in the entire process, except for the emperor. Raising his head, the Emperor listens to them all attentively. The scholars having cited the appropriate provision from the Fetha Negast would read and translate and interpret it for the public and would decide whether the accused deserves capital punishment, imprisonment or any other punishment or no penalty at all. If the emperor finds any problem as to the interpretation of the cited provision, he may adjourn the case for the morrow. If the interpretation suggested is favoured, judgement would immediately be given and when the death sentence is pronounced, one hears the cheering of the family of the victim and the cry of the family of the condemned.
Finally, the right to take cases to the crown court was, likewise, provided in the law. Hence, one may realize that a party to a suit had, in those days, as many as five stages of appeal.
The emperors of Ethiopia were reviewing cases in the Crown Court (Zufan Chilot) while seated. However, Emperor Haile Sellassie I, due to a vow he made to God while he was in exile in Britain during the Italian occupation from 1936 to 1941, reviewed cases in the Crown Court (in the period 1941-1974) standing up for hours.
Execution of judgments
Judgements in minor criminal cases were executed then and there as the decision was made by lower courts. Serious criminal offences such as homicide, injury to the human body and arson, however, after being decided by the competent courts, would be sent to administrative bodies that had the responsibility and power to execute them. Blaten Geta Mahteme-Sellassie gave account of the execution of decisions rendered by the Crown Court as follows:
After the judgment had been rendered, an instruction is issued to the office of the ligaba [Lord Chamberlain] to execute the sentence. The ligaba would, on his part, according to the judgment, order the convicted person to face a firing squad, to be for life or for a given period. Immediately after a sentence of flogging is pronounced, the person’s hands and legs would be tied with a rope. Then, he would be pegged in the middle of a field where he would receive utmost forty lashes. The sentence of flogging was executed by an authorized person.
Capital punishment, when confirmed by the emperor, was executed around the area where the present Addis Ababa Qirqos Church is located. Later, it was executed in a building in the neighborhood of the present ammunition factory.
A convict against whom the death sentence had been passed and confirmed used to be given three days leave to take the traditional medicine against tapeworms (kosso, i.e. the plant Hagenia abyssinica). It was within this time that he was required to leave his will and to make a confession, if he wanted to do so. If he was to be killed by a firing squad, one of the relatives of the aggrieved party would be given a rifle to shoot and kill him. If the capital punishment was to be executed by hanging, it was usually done within the prison grounds by an authorized person. It is said that the act of hanging a convicted person used to take place in Addis Ababa on the branches of an oak tree that was found where the present statue of the Emperor Menilik II is located. If the rope broke loose when the convicted person was being hanged, he would be set tree. Many years ago a person was sentenced to face a firing squad, accordingly, he was shot at. However, he was only wounded and slowly recovered. The issue was raised as to whether he should be shot again. To cut the Gordian knot, a committee consisting of Ethiopians and foreigners was set up to decide the issue. The Ethiopian members of the committee drew an analogy between the customary usage that forbids the hanging of a convicted person for the second time in cases where he had been saved because the rope broke before he died. The foreigners, on the other hand, held that irrespective of time and other considerations, a judgment once passed should be executed. It was finally decided by the emperor that the opinion that conformed to the traditional practice should prevail.
Places where sentences of impersonment were executed were prisons known as government prisons (weheni bet), provincial prisons (isir bet) and gaols (zebetteya). Government prisons were established in Addis Abeba and other places and were administrated by a warden (weheni azazj). Government prisons were the central government’s prisons, whereas provincial prisons were under the control of provincial governors. Gaols (zebetteyas) were set up in Addis Abeba and Harar, they had the same function as modern police stations.
Thieves found in the market place in Addis Ababa were detained in the gaol. Many popular couplets (losing all flavour in translation) expressed the common feelings about the goal, e.g., “the market is nice, for eating meat and drinking mead (tej) but what makes one afraid is that one might have to spend a night in gaol.
In the period under discussion, persons accused of committing serious crimes were often kept in prison for undefined periods. Such persons used to petition the court to determine their status. The court had the right to release such prisoners when it deemed it appropriate. Detainees who had no relatives to bring them food were permitted, under guard, to go to the house of their relatives, friends and acquaintances in search for food and drink. Persons who could not pay the agreed amount of blood money (guma) would try to raise the required amount of money by going from village to village accompanied by a guard. To symbolise their distress, they used to tie their hands with iron chains.
Depending on the gravity of the crime committed, a prisoner could be sentenced to three different types of imprisonment. The first one was known as imprisonment by chaining leg and hand (igir teworch). This kind of the penalty was imposed on dangerous criminals such as habitual murderers and bandits. The second imprisonment by shackle (igir beret) was a measure taken against murder, mutilator of human body and persons who committed arson. The third kind of penalty that was taken against common criminals was chaining by the leg (igire mook).
Historical Introduction to the Criminal Procedure Code, 1961
Prior to the 1960 CPC there was no systematic body of legislation in the field. Only a few proclamations enacted early during the post Liberation era were in existence. These showed a strong Anglo-Indian influence, as might be expected from the British influence in the country at that time.
In the early 1950’s the Ethiopian government decided to adopt new codes in all major areas of the law, and for that purpose to call in foreign experts to do the drafting in close consultation with local Ethiopian and expatriate colleagues. The task of drafting the criminal procedure code fell initially to the eminent scholar of comparative penal law and procedure, Professor Jean Graven of Geneva. He was then also engaged in drafting the Ethiopian Penal Code of 1957. From the documents now available to the present writer, it appears that formal discussions of the CPC began on August 13, 1955-the date of the first process verbal-in a “commission of codification of procedure” presided over by the Minister of Justice. Notes of all commission discussions were taken by M. Philippe Graven, son of Professor Jean Graven and at that time an advisor to the Ministry of Justice. Virtually all of the codification materials were originally drafted in the French language, and French and Amharic were probably the languages of discussion at the commission sessions.
The commission’s first discussions took place until October, 1955; there was then a break until they resumed in July, 1956; they then carried on more or less continuously through February, 1957, when there was another hiatus. They resumed in August, 1958 and occurred through October of that year. Another period of commission inactivity on the project followed; this ended in October, 1960, when final discussions were held. These terminated in commission approval of the draft code, apparently in November, 1960. After submission of the code, parliament amended the draft in some respects; it was promulgated in 1961.
In its deliberations, the commission considered several drafts of a procedure code. Beginning with an initial draft of 241 articles (dated March 1, 1956), Professor Graven had presented to the commission an avant-project of 840 basic articles, and another 174 articles dealing with post-judgment proceedings by December 29, 1956. The next version of the code’s text was apparently the texte definitive, drafted by Professor Graven in two instalments, dated December 6, 1958 and July 23, 1959. This version consists of only 159 articles, and resembles the present code in content much more than did the first draft. The texte definitive also contains annotations by Professor Graven commenting on the changes he had made in the previous drafts. The last text version available to us is a very slightly modified English translation of the texte definitive; it is dated November 9, 1959, and consists of 158 unannotated articles.
The history of the CPC is in a way the story of a gradual discarding of Professor Graven’s initial drafting work, although it is clear that his draft did ultimately influence the code’s final structure, and in some respects its contents. A major alteration of the draft occurred when, apparently in 1957, the commission decided that the code should not contain the draft’s many general provisions dealing with judicial organization, jurisdiction, evidence, etc., but that those provisions, which constituted the first 443 articles, should be shifted to a separate code, the “code judiciaire,” which would govern these matters for both civil and criminal matters. During 1957 and 1958, Professor Graven drafted two versions of a code judiciaire, adapting the borrowed 443 articles as its core, but adding others to a grand total of 757 provisions. The commission sat to discuss this code between August 2, 1957 and August 12, 958, but eventually decided to drop it entirely. Seeing as the Civil Procedure Code appeared in 1965, and an evidence is reportedly now in the drafting stages, it seems doubtful that the code judiciaire will ever be revived.
The second factor which led to the partial abandonment of Professor Graven’s draft was the decision, reached apparently in late 1958, to abandon the initial project of an evenly “mixed” continental-common law procedure for an overall design more substantially adversary and thus less continental. A perusal of the commission debates reveals that even from the start there was some difference in views between those commission members who were trained in common law procedure, and those who were trained in continental procedure. This difference was of course to be expected. It may well have contributed to the creativeness with which the drafters approached the task, as they it, of constructing a truly Ethiopian procedure, which would not simply copy either continental or common law procedure, and those who were trained in continental procedure. This difference was of course to be expected. It may well have contributed to the creativeness with which the drafters approached the task, as they saw it, of constructing a truly Ethiopian procedure, which would not simply copy either continental or common law rules. Be that as it may, in October, 1958, the commission agreed to give Professor Graven’s avant-project to sir Charles Matcew for examination and proposed amendment. Sir Charles was a distinguished English jurist who had had wide experience in East Africa, Ethiopia (during the post-Liberation period), and Malaya prior to his renewed tenure in Ethiopia as Advisor to the Ministry of Justice. Sir Charles was asked to review Professor Graven’s draft with a view to simplifying it, and to making it less “inquisitorial” and more “adversary” than it was. A likely reason for both the referral to an English lawyer and the instructions given was that the Ethiopian courts had British-influenced, adversary procedures since 1941 at least; substantial alternation in procedure might have caused confusion to Ethiopia’s judges and advocates. It is most likely that professor Graven’s texte definitive, which so differed from the avant-project, was strongly, influenced by sir Charles’ proposals. Indeed, the November, 1959 English “version” of the texte definitive may have been drafted by sir Charles. Professor Graven had stopped attending the CPC commission discussion in August, 1956, and Sir Charles Mathew first began attending those meeting in early February, 11957, playing an important role until the deliberations ended in November , 1960. It appears that Professor Graven submitted his texte definitif to the commission from abroad, and that the whole movement towards a more adversary procedure and away from some of the continental institutions of his draft occurred after his departure from the scene.
Knowledge of this background to the code makes it easier to understand the code’s structure and sources. The unique organization is essentially based on Prof. Graven’s avant-project. Many code provisions, particularly those with continental sources, are also derived from his avant-project, but they have usually been lifted out of their original context and shortened almost beyond recognition. The Code’s sporadic relationship to Malayan, and therefore, ultimately, Indian law, derives from the influence of Sir Charles Mathew’s drafts. The overall flavor of the law is adversary, but the adversary system often contains fragments of “inquisitorial” procedure retained from the avant-project.
In my opinion, the criminal procedure Code is not very satisfactory. Indeed, it is hardly a “code” at all, if by that term we mean a consistent, integrated body of law whose coverage of the subject is reasonably comprehensive. The law especially suffers from being overly brief [only 224 articles as compared with the Civil Procedure Code’s 482 articles], and therefore from being too sparse, with too many crucial gaps. Filling the gaps by the interpretation is made extremely difficult because it is hard to extrapolate legislative intent from a body of law which so lacks cohesiveness. And, of course since no one foreign country’s legislation was substantially taken as a model, one cannot often resort to foreign commentaries or jurisprudence for aid, as one can for substantial portions of every other Ethiopian code.
Hopefully, the code will before too long receive a fresh appraisal, with a view towards comprehensive revision. Because the code is still somewhat new and is not yet followed everywhere in the country, there is still a period of “grace” in which to work...