The Principle of the Presumption of Innocence and its Challenges in the Ethiopian Criminal Process
| Author | Simeneh Kiros Assefa |
| Position | LL.B., AAU Law Faculty, 1998; LL.M., University of Pretoria, 2002; LL.M., Kyushu University, 2006; LL.M., University of San Francisco, 2008 |
| Pages | 273-310 |
T
HE
P
RINCIPLE OF THE
P
RESUMPTION OF
I
NNOCENCE AND ITS
C
HALLENGES IN THE
E
THIOPIAN
C
RIMINAL
P
ROCESS
Simeneh Kiros Assefa, Esq.
♣
Abstract
The administration of the criminal justice system tries to strike a balance
between the search for truth and the fairness of the process. To this end, the law
should protect individual rights and impose various legal burdens on the state.
One such tool is the principle of the presumption of innocence until proven
guilty. This is a constitutional principle under Ethiopian law and requires the
public prosecutor to prove each element constituting the crime which, as argued
in this article, should be proved beyond reasonable doubt. However, this
principle is being violated by various subsidiary laws, procedures and practices.
First, there are various provisions in the criminal law that limit (or arguably
disregard) this constitutional principle. Such criminal law provisions assume as
proved the existence of some of the elements of certain crimes without
requiring the public prosecutor to submit evidence. Second, the Criminal
Justice Administration Policy adopted in 2011 contemplates shifting the burden
of proof to the defendant in selected serious crimes. Third, the courts also
wrongly shift burden of proof to the accused regarding certain facts in various
court decisions. These laws and judicial practices deprive the accused of the
right to be presumed innocent until proven guilty. This article, inter alia,
examines the constitutionality of such shifting of the burden of proof and also
analyzes the standards of proof that are required in criminal cases in the
Ethiopian context.
Key words
Presumption of innocence, burden of proof, criminal process, criminal justice,
confessions, Ethiopia
DOI http://dx.doi.org/10.4314/mlr.v6i2.4
______________
Introduction
The state has the primary responsibility of detection, apprehension, prosecution
and conviction of offenders. In this process, the accused always faces the mighty
state and this challenges the fairness of the criminal justice system. Using
♣ LL.B., AAU Law Faculty, 1998; LL.M., University of Pretoria, 2002; LL.M., Kyushu
University, 2006; LL.M., University of San Francisco, 2008; practicing attorney
before the Federal Courts of Ethiopia, member of the State Bar of California, and
Lecturer at A.A.U. Law School. Contact: Simeneh@simenehlaw.com.
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Vol. 6 No.2, December 2012
various tools, the law tries to maintain the balance between the search for truth
and ensure the fairness of the process. The criminal justice system is expected to
maintain the rights of the individual even when this at times seems to go against
the search for truth. The law does so by affording the individual certain
protections, such as, the presumption of innocence until proven guilty before a
competent, independent and impartial court and by imposing on the state the
duty of proving each ingredient that constitutes the crime.
Presumption of innocence is a restatement of the rule that in criminal matters
the public prosecutor has the burden of proving guilt of the accused in order for
the accused to be convicted of the crime he is charged with. Burden of proof has
two elements: the first element is evidentiary burden, i.e. producing evidence in
support of one's allegation, while the second element relates to the burden of
persuasion (also referred to as the legal burden), which is the obligation of the
party to convince the court that the evidence tendered proves the party's
assertion of facts. This distinction and its consequences are not appreciated in
Ethiopia’s legal system.
The allocation of burden of proof is complicated by factors, such as,
affirmative defences and presumptions which are considered to be exceptions
thereby shifting the burden of proof to the defendant. Moreover, the
determination of the elements of the crime is a formidable task because often, all
the elements may not be found in a single provision that defines the crime.
There is also lack of clarity regarding the rules and/or the practice relating to the
standards of proof.
The central issue relating to the presumption of innocence and burden of
proof in Ethiopia’s legal system is a matter of constitutionality. The FDRE
Constitution recognises the principle of presumption of innocence and there is
no exception/limitation to this principle. However, there are provisions in the
Criminal Code that allow proof of facts constituting an element of a crime,
mainly intention or knowledge, by presumption. In some cases, the public
prosecutor does not even have to prove any basic facts for those facts to be
deemed to exist. Some of the provisions even preclude contrary proof of facts
that are presumed to exist. The Criminal Justice Administration Policy (the
Policy) adopted by the Council of Ministers in 2011 anticipates shifting the
burden of proof to the defendant in some serious crimes. Moreover, courts
routinely impose the burden of proof on the defendant. These state actions and
legislative provisions that shift the burden of proof to the defendant not only
restrict (and sometimes nullify) the constitutional principle of presumption of
innocence, but also negatively impact the fairness of the criminal justice system
administration in a fundamental way.
Section 1 of the article discusses the debate in the administration of criminal
justice. The themes of the discourse include how the criminal justice system
should balance the detection, apprehension, prosecution and conviction of
T
HE
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RINCIPLE OF
P
RESUMPTION OF
I
NNOCENCE AND
I
TS
C
HALLENGES IN THE
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THN
C
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.
P
ROCESS
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offenders and also ensure the rights of the suspect or accused. In so doing, it
examines some of the constitutional provisions that strike a balance between the
utilitarian approach to the crime control model and the process value model. It
further examines the challenges posed by the subsidiary laws and the practice
against such balance in value choices as enshrined in the Constitution. Section 2
highlights the concept of burden of proof, its elements, allocation of burden of
proof, presumption of innocence; elements that constitute an offence that need
proof and standards of proof. Section 3 dwells on whether such burden of proof
on the prosecution may be shifted to the defendant by affirmative defences and
presumptions. As the central theme of this article is shifting the burden of proof
to the defendant by presumptions, it discusses presumptions as they exist in the
law and as are contemplated in the Policy. Finally, the last section discusses
burden of proof where there is alleged coercion to extort confessions during
police investigation.
1. Values Choice Debates in Criminal Justice
Administration
The criminal process is tuned at a particular point in the continuum of two
extremes. On the one hand, it pursues the repression of criminal conduct by
“detection, apprehension, prosecution and punishment of offenders,” which is
sometimes referred to as the ‘crime control model;’ on the other hand, it deals
with the protection of the rights of the suspect in the administration of the
criminal justice, which is sometimes referred to as the ‘due process model’.
1
It
is a matter of policy of the state whether a criminal justice administration
inclines in the direction of crime control or due process. Even though, such
choice is certainly influenced by the political ideology of the system, the state
endeavours to maintain a balance between crime control and due process in
view of their interdependence.
2
Thus, the law keeps a balance between the two
values.
3
1 J. Griffiths (1970) “Ideology in Criminal Procedure or a Third ‘Model’ in the Criminal
Process” in 79 The Yale L.J No. 3, at 363, 364, 366.
2 The political ideology of a state manifests itself by (and very much influences) the
justice system, and especially in the administration of its criminal justice. A liberal
and democratic society, generally, inclines toward a liberal criminal justice system
administration; an authoritarian political system has an illiberal criminal process; and
there are those that are in between.
3 The adjective laws are addressed to officials who are “properly qualified to execute
the commands of the legislature” particularly in the administration of the criminal
justice. [footnotes omitted] G. J. Postema (1977) “The Principle of Utility and the Law
of Procedure: Bentham's Theory of Adjudication” in 11 Georgia L. Rev., at 1398.
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