Burdens and Standards of Proof in Possession of Unexplained Property Prosecutions

Author:WY Wodage
Position:LLB, LLM, Assistant Professor of Law, Bahir Dar University, School of Law. E-mail: workusos@yahoo.com
Pages:1-44
SUMMARY

While possession of unexplained property (illicit enrichment) is expressly criminalized under Article 419 of the 2004 Criminal Code of Ethiopia, there are practical problems in its prosecution, inter alia, regarding burden and standards of proof. Cases such as Workineh Kenbato & Amelework Dalie demonstrate the confusion regarding who bears what burden, for which facts the burden would apply and... (see full summary)

 
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1
Burdens and Standards of Proof in
Possession of Unexplained Property
Prosecutions
Worku Yaze Wodage
Abstract
While possession of unexplained property (illicit enrichment) is expressly
criminalized under Article 419 of the 2004 Criminal Code of Ethiopia, there are
practical problems in its prosecution, inter alia, regarding burden and standards
of proof. Cases such as Workineh Kenbato & Amelework Dalie demonstrate the
confusion regarding who bears what burden, for which facts the burden would
apply and the required standard of proof thereof. Despite efforts to use the
prosecution of illicit enrichment as a weapon in the combat against corruption,
there are concerns triggered by such prosecutions. There is public interest to
punish and deter corruption and seize and confiscate the proceeds of
corruption; meanwhile there is the need for precaution against endangering the
right to fair trial of the accused (especially the right to presumption of
innocence, right to remain silent, right against self-incrimination) and property
rights of innocent persons. This Article examines issues of the allocation of
burdens and standards of proof in the prosecution of illicit enrichment cases. It
assesses the relevant legal framework in Ethiopia and examines some court
practices. The author argues that the binding interpretation adopted in
Workineh Kenbato & Amelework Dalie case is erroneous and calls for its
rectification in future cases that involve similar issues.
Key words
Possession of Unexplained Property, illicit enrichment, burden of proof,
standard of proof, easing of burden of proof, Criminal Code of Ethiopia
DOI http://dx.doi.org/10.4314/mlr.v8i1.1
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Introduction
Since the entry into force of the 2004 Criminal Code of Ethiopia (as of the 9th
of May 2005), prosecution of public servants for alleged commission of the
LLB, LLM, Assistant Professor of Law, Bahir Dar University, School of Law. E-mail:
workusos@yahoo.com. I am very grateful to Ato Alemseged A., Ato Moges W., H. E
Ato Tarkegn A., Ato Waltanigus F., and my brother Masresha Yaze for helping me in
the collection of court cases referred to in this work. I am also indebted to Dr. Elias N.
Stebek and the two anonymous reviewers for their scholarly insights and constructive
comments on an earlier draft of this work. Any error remains my responsibility.
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.
Burdens and Standards of Proof in Possession of Unexplained Property Prosecutions 3
This Article sets out to examine the various burdens and standards of proof
that arise in the prosecution of possession of unexplained property cases. The
first section analyzes issues of burdens of proof. Section 2 is devoted to the
analysis of issues of standard of proof arising in such prosecutions. Section 3
assesses the legal framework while Section 4 considers some court practices
relating to issues of burden and standard of proof in Ethiopia. Finally, the author
suggests that the binding interpretation adopted by the Cassation Division of the
Federal Supreme Court be reconsidered in future cases.
1. Burdens of Proof in Illicit Enrichment Prosecutions
In this Section we shall closely examine how allocation of burdens of proof and
presumption are embedded in the offence of illicit enrichment cases. Such an
examination need to take into account the existence of varieties of ‘burdens of
proof’ that become operational in different contexts. This author has tried to
offer a succinct overview of the nature and operations of these varieties of
burdens in a separate note which is concurrently published with this article.
Such a general background of the nature and operations of evidential, tactical
and persuasive burdens of proof facilitates our investigation of the specific
nature and operations of the different forms of burdens of proof arising in the
prosecution of illicit enrichment cases. This investigation also presupposes a
sound knowledge of the relationship and mutual interactions between burdens of
proof and various forms of presumptions. In this regard, it is necessary to pay
attention of the form of presumption that is embodied in an offence-enacting
provision. Furthermore, one has to carefully follow up the realization of the
possible legal effect(s) which is/are intended to result from the interplay of the
form of presumption with the form of burden of proof envisaged in a particular
statutory provision.
1.1 Allocation of Burdens of Proof in the offence of Illicit
Enrichment
There is the need to carefully examine the manner in which burdens of proof are
allocated (in illicit enrichment cases) between prosecuting authorities and the
accused. This issue further evokes questions such as who bears what burden and
for which facts? Apart from other constitutive elements discussed elsewhere,2
2 These pertain to ‘persons of interest’ and ‘period of check’. The other constitutive
elements fall within the actus reus and mens rea elements of the offence.
‘Disproportionate assets’ and ‘absence of justifications’ are components of the actus
reus element of the offence. For a detailed discussion of the constitutive elements see
this author’s article “Criminalization of ‘Possession of Unexplained Property’ and the

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