2 MIZAN LAW REVIEW, Vol. 8, No.1 September 2014
offence of possession of unexplained property has become a recurrent
phenomenon. This holds true both in the federal government and in various
regional states. Apart from the Workineh Kenbato & Amelework Dalie case,1
there are many other cases, some already decided and others still pending,
before federal and some regional states courts. In many of these cases, litigants
and judges are facing some practical problems, particularly regarding who must
prove what, and to what degree. There is an enormous confusion on whether an
accused in such prosecution bears some form of burden of proof and, if so,
whether the type of burden is evidential or persuasive. There is no sufficient
clarity on the idea of easing (“shifting” or reversal) of burden of “proof”, and
under what circumstances such an easing (reversal) of burden of proof comes to
be operational, as well as, as to what consequence(s) would ensue. There is a
crucial dilemma on whether the prosecution of illicit enrichment envisages a
different approach from other normal criminal proceedings. As the offence is
new to the Ethiopian legal system, legal professionals appear to be exceptionally
perplexed with these and related issues arising in the criminal process. Such
limitations and dilemmas have triggered crucial concerns and seem to pose
serious threats to the protection of the right to fair trial of accused persons and
the right to property of innocent persons.
In the fight against public corruption, the general public is interested in
seeing the enforcement of the criminal law against corrupt public servants (and
their criminal associates) and seeks the recovery of plundered public money and
other property. However, society does not want to attain such goals at any cost.
It seeks to realize these goals without setting aside other most cherished
fundamental values such as the protection of the right to fair trial of accused
persons. No society condones the erroneous (wrongful) conviction and
punishment of innocent individuals and the wrongful confiscation of their
legitimate private property.
Where public interest competes or clashes with the rights and interests of
individual accused persons, there is the need to strike a proper balance between
these rights and interests. This requires weighing all rights and interests
(individual and public) at stake, and forging an appropriate, reasonable and
proportional means toward an acceptable solution. As some court cases
including the Workineh Kenbato & Amelework Dalie case demonstrate, it is
very doubtful if due attention is given to competing and conflicting rights and
interests arising in the prosecution of illicit enrichment cases. This raises serious
concerns and provokes legitimate fears.
1 See the decision of the Cassation Division of the Federal Supreme Court in Cassation
File No. 63014, Judgment given on Miazia 9, 2004 E.C.