The Proposed Plea Bargaining in Ethiopia: How it Fares with Fundamental Principles of Criminal law and Procedure

Author:Alemu Meheretu
Position:Alemu Meheretu Negash (PhD), Assistant Professor of Law, JU. Email: alemeheret@gmail.com.
Pages:400-429
SUMMARY

The FDRE Criminal Justice Policy embodies multiple reforms that are meant to address the various problems in the Ethiopian criminal justice system. The reforms include the introduction of plea bargaining which represents an unprecedented and ambitious development in the realm of the criminal justice system in Ethiopia. This article examines plea bargaining as envisaged in the FDRE Criminal... (see full summary)

 
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The Proposed Plea Bargaining in
Ethiopia:
How it Fares with Fundamental Principles of
Criminal law and Procedure
Alemu Meheretu
Abstract
The FDRE Criminal Justice Policy embodies multiple reforms that are meant to
address the various problems in the Ethiopian criminal justice system. The reforms
include the introduction of plea bargaining which represents an unprecedented and
ambitious development in the realm of the criminal justice system in Ethiopia.
This article examines plea bargaining as envisaged in the FDRE Criminal Justice
Policy and the Draft Criminal Procedure Code, from a principle based approach
and argues that it hardly lives up to many of the fundamental principles of criminal
law and procedure recognised under Ethiopian law. The most affected
principles/rights include: the principle of presumption of innocence, the principle
of equality, the principle of equality of arms, the principle of truth discovery, the
privilege against self-incrimination and the right to silence, and the right to appeal.
Key terms
Plea bargaining, models of plea bargaining, the proposed plea bargaining,
efficiency, fairness, accuracy, Ethiopia
DOI http://dx.doi.org/10.4314/mlr.v10i2.5
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Introduction
Plea bargaining not only occupies a central position in many adversarial
jurisdictions,1 but also transcends diverse jurisdictions including the inquisitorial
Alemu Meheretu Negash (PhD), Assistant Professor of Law, JU. Email:
alemeheret@gmail.com.
I am grateful to the anony mous reviewers for their incisive comments. I also thank
Gossaye Ayele for commenting on the initial draft of this Article.This Article is partly
based on my PhD thesis titled: ` Introducing Plea bargaining in Ethiopia: Concerns and
prospects`. PhD thesis, University of Warwick, UK, 2014.
1 No jurisdiction relies on plea bargaining as the USA does –more than 90 percent of
criminal cases are disposed of using plea bargaining. See United States Sentencing
Commission, Statistical Information packet, Fiscal Year 2009 at:
<http://www.ussc.gov/JUDPACK/JP2009.htm> (visited on July 14, 2010). While
researches indicate that about 50% of c ases have been settled through plea agreements in
The Proposed Plea Bargaining in Ethiopia … 401
structures. Ethiopia is not an exception. Inspired by such developments, it has
adopted plea bargaining at policy level. It is also reflected in some
proclamations, albeit not detailed. While defining the powers and duties of the
Ministry of Justice (currently restructured as the Federal Attorney General),
Proclamation No. 691/2010 and Proclamation No. 943/2016 entrust the latter
with the power to plea bargain. This power goes to the newly established
Federal Attorney General. This together with the policy represents a step
towards providing a legal/policy framework for plea bargaining in Ethiopia,
pending the issuance of the new criminal procedure code which is expected to
address the concept in detail. However, this power of the Federal Attorney
General is yet to be enforced.2
This is not to suggest that plea bargaining has no room for application in
Ethiopia. Some studies reveal that an informal and rudimentary form of plea
bargaining exists at the investigative stage, usually the suspect being
unrepresented.3 Prosecutors justify this practice in terms of efficiency and the
difficulty in obtaining evidence in particular that of witnesses (half a loaf is
better than none). The practice of plea bargaining has the following general
features4: (a) it applies to any crime, (b) the defendant obtains a range of
concessions from total immunity to sentence or charge reductions, (c) it does not
involve defence attorneys, (d) it is not enforceable, nor does it form part of the
record either in the investigation file or in the judgment.
What is more, cooperation agreements5 are recognized through the Anti-
Corruption6, Anti-terrorism7, and Witness and whistleblowers protection
Germany; around 90% of cases in magistrates’ courts and 67 % in Crown courts get
disposed of through guilty pleas without a trial. See Maike Frommann (2009), `Regulating
plea bargaining in Germany: Can the It alian approach serve as a Model to guarantee the
independence of German Judges`, Hanse Law Review , Vol. 5, p. 200; A. Ashworth and M.
Redmayne (2010) , The Criminal Process, 4th ed, Oxford University Press, p. 418.
2 Probably, the fact that the law is generic and the absence of procedural law on the subject
matter could be partly responsible for this. As a law meant to define the power and duties
of the AG/the Ministry, the proclamation simply lists the power and duties of the AG, the
power to allow plea bargaining being one of them.
3 See for example Alemu Meheretu (2014), ‘Introducing plea bargaining in Ethiopia:
concerns and prospects’, (PhD thesis, University of Warwick, UK); UNODC (2011),
‘Assessment of the Criminal Justice system in Ethiopia; in support of the Government`s
reform efforts towards an effective and effi cient criminal justice system’, p. 54.
4 Alemu M., supra note 3, ch. 5.
5 Cooperation agreements are agreements whereby a defendant agrees to cooperate in the
prosecution of co-offenders by supplyin g a testimony so that he/she receives l enient
treatment or immunity. Some literatures see cooperation agreements as one form of plea
bargaining. But this is not sound because cooperation agreements are about finding
evidence that will be tested in full scale trials while plea bargaining is about avoiding full
scale trials. However, it is important to note that the two may overlap in a sense that a

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