Criminalization of ?Possession of Unexplained Property' and the Fight against Public Corruption: Identifying the Elements of the Offence under the Criminal Code of Ethiopia

Author:WY Wodage
Position:LLB, LLM, Assistant Professor, Bahir Dar University, School of Law.
Pages:45-83
SUMMARY

Despite countervailing arguments, there is a growing national and global trend of criminalization of ‘possession of unexplained property’. Since the end of the 20th century, many national, regional and global instruments that deal with corruption have criminalized possession of unexplained property (illicit enrichment). It is believed that this would facilitate deterrence and the recovery of... (see full summary)

 
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Criminalization of ‘Possession of
Unexplained Property’ and the Fight
against Public Corruption:
Identifying the Elements of the Offence under the Criminal
Code of Ethiopia
Worku Yaze Wodage
Abstract
Despite countervailing arguments, there is a growing national and global trend
of criminalization of ‘possession of unexplained property’. Since the end of the
20th century, many national, regional and global instruments that deal with
corruption have criminalized possession of unexplained property (illicit
enrichment). It is believed that this would facilitate deterrence and the recovery
of public money/assets. It is further assumed that such measure would help
facilitate investigatory, prosecutorial and adjudicatory activities in corruption
cases. Ethiopia has joined these pursuits, and has criminalized ‘possession of
unexplained property’ under the 2004 Criminal Code. The proper interpretation
and application of this law presupposes sound understanding of the notion of the
offence of illicit enrichment and the rationales that justify its criminalization. It
also presupposes the proper identification of its constitutive elements and an
appreciation of the contexts in which the offence can be invoked. This Article
examines the reasons for the criminalization of possession of unexplained
property, discusses the nature and salient elements of this crime and related
issues of concern. The aim of the Article is to examine the notion of illicit
enrichment, its criminalization and ingredients with a view to contributing
toward the proper interpretation and enforcement of the law in Ethiopia.
Key words
Possession of unexplained Property, illicit enrichment, corruption, Criminal
Code of Ethiopia
DOI http://dx.doi.org/10.4314/mlr.v8i1.2
LLB, LLM, Assistant Professor, Bahir Dar University, School of Law. I am very
grateful to those who helped me in the collection of court cases referred to in this
work. I am also indebted to Dr. Elias N. Stebek and to the two anonymous reviewers
for their meticulous readings and scholarly comments on an earlier draft of this work.
Any error or misconception remains the responsibility of the author. Email:
workusos@yahoo.com; or, workishalaw@gmail.com.
46 MIZAN LAW REVIEW, Vol. 8, No.1 September 2014
Introduction
The problem of public corruption is one of the pressing issues in Ethiopia today.
The legal and institutional frameworks that combat against corruption1 include
Ethiopia’s substantive criminal law that criminalizes forms of corruptive and
abusive behavior. The Criminal Code defines specific forms of wrongdoing that
constitute crimes of corruption and prescribes respective sanctions.2 Special
procedural and evidentiary rules and provisions are also put in place to facilitate
the effective prevention, detection, prosecution and/or adjudication of corruption
crimes.3 Some of these laws encompass provisions which facilitate the
investigation and prosecution of corruption crimes.
‘Possession of unexplained property’ is one of the kinds of corruption
offence that is expressly proscribed by the Criminal Code. This is a new form of
offence introduced since 2004. Since the entry into force of the new Criminal
Code in May 2005, the Federal Ethics and Anti-Corruption Commission
(FEACC) and the Ethics and Anti-Corruption commissions of some regional
states have started prosecuting suspected public officials/servants and other
individuals (alleged to have some form of participation with the former ones)
under Art 419 of the Criminal Code.
As some of the court cases involving ‘possession of unexplained property’
demonstrate, there are some confusions and dilemmas on certain crucial aspects
of the concept of ‘possession of unexplained property’ and its prosecution. The
confusion particularly relates to ‘period of interest’ and relevant ‘money’ or
‘property’ that should be part of the criminal investigation, prosecution,
adjudication and confiscation. There is no sufficient clarity regarding the
temporal scope of the offence and the circumstances that justify initiating and
1 Currently there are various institutional, administrative and regulatory measures that
are put in place. These include: the Revised Federal Ethics and Anti-Corruption
Commission Establishment Proclamation No. 433/2005, Federal Negarit Gazeta, 11th
Year No.18; the Disclosure and Registration of Assets Proclamation, No.668/2010,
Federal Negarit Gazeta, 16th Year No.18; the Ethiopian Federal Government
Procurement and Property Administration Proclamation No.649/2009, Federal
Negarit Gazeta, 15th Year No. 60. Ethiopia is also a party to both the United Nations
Convention against Corruption (UNCAC) and the African Union Convention on
Preventing and Combating Corruption (AUCPCC).
2 See Book IV, Title III of the Criminal Code (2004) of the Federal Democratic of
Ethiopia, Proclamation No 414/2004, (hereinafter to be referred to as the FDRE
Criminal Code or the Criminal Code) from Chapter I through Chapter III especially
Arts 402- 431 and other cross-referred provisions such as Art 684.
3 The Revised Anti-Corruption Special Procedure and Rules of Evidence Proclamation
No. 434/2005, Federal Negarit Gazeta, 11th Year No.19; Also see the proclamations
mentioned above at supra note 1.
Criminalization of Possession of Unexplained Property and the Fight against Corruption 47
continuing criminal investigation, prosecution and adjudication. There are
enormous confusions and dilemmas relating to issues of burdens and standards
of proof. The major sources of confusions and dilemmas seem to arise from
misconceptions on the notion of the crime of ‘possession of unexplained
property’ and its peculiar features, such as nature of the crime, the justifications
of its criminalization, the specific material and mental conditions that constitute
the offence, and other crucial issues.
This Article examines the notion of ‘possession of unexplained property’ and
the rationales justifying its criminalization. It outlines the constitutive elements
of the offence and highlights its distinctive features. The importance of enforcing
the law dealing with this offence meanwhile evokes the need for caution against
violating the principle of legality and other components of the right to a fair trial
as well as other fundamental human rights. The perpetrators the law seeks to
deter as well as the property or money that can be recovered in such criminal
proceedings should also be clearly identified.
The first section of the article examines the concept and nature of the offence
of ‘possession of unexplained property’. Section 2 outlines the basic ingredients
of this offence in the light of some regional and international conventions that
deal with the fight against corruption. In addition to identifying the basic
constitutive elements of the offence, this section highlights the particular contexts
in which the offence can arise, and considers major issues of concern which
emanate from the criminalization of illicit enrichment. In the light of the
discussion in these two sections, Section 3 makes a brief analysis of the
constitutive elements of this offence under the Ethiopian Criminal Code.
1. The Concept and Nature of the Crime of ‘Possession of
Unexplained Property’
1.1 Historical Origin and Definition
Possession of unexplained property, also known as illicit enrichment or
possession of unexplained wealth, or possession of inexplicable wealth, or
possession of excessive wealth,4 is a relatively new form of crime when
compared with other forms of corruption offences such as bribery, fraud and
embezzlement. It was unknown as a punishable form of corruption offence until
4 Nihal Jayawicrama, Jeremy Pope & Oliver Stolpe (2002), ‘Legal Provisions to
Facilitate the Gathering of Evidence in Corruption Cases: Easing the Burden of
Proof’, 2 Forum on Crime & Society, No. 1, at 24 (hereinafter Jayawicrama et al).
Thus in this piece the terms “illicit enrichment”, “possession of unexplained wealth”,
“possession of unexplained property” or “possession of unexplained assets” are
employed interchangeably to refer to same idea.

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