304 MIZAN LAW REVIEW, Vol. 12, No.2 December 2018
witnesses. In doing so, the study focuses on examining the validity of the
recommendation by the Council of Constitutional Inquiry (hereinafter CCI) that
upheld the withdrawal of witness identity in a criminal case. The ruling was
made following a petition contesting the validity of the anti-terrorism and the
witness protection proclamations by MehadiAley and others who were charged
with terror-related crimes. The ruling has a direct impact on –if not complete
deprivation of – the right of the accused to cross-examine. With a view to draw
lessons from other jurisdictions and Ethiopia‟s tradition, the writer has reviewed
the experience of other countries. The choice of foreign jurisdictions is,
however, based on availability of source materials.
Cross-examination is key to a fair court trial process. It provides an
opportunity to challenge the trustworthiness of a witness and expose lies and
contradictions in the oral account by a witness. The demeanor of the witness, the
manner of giving her testimony, her physical and emotional reaction to
questions in cross-examination may hold the key to ascertaining the veracity of
the testimony. The significance of confrontation for the defense is, therefore,
very critical. In view of this, the Constitution of the Federal Democratic
Republic of Ethiopia and the International Covenant on Civil and Political
Rights (ICCPR) embody the right of the accused to cross-examine witnesses.
However, guaranteeing the well-being of those who give evidence essential
to establish a criminal act is (and should be) an equally important public policy.
If the witness refuses to come forward and give evidence for fear of revenge by
the accused and his associates, that would have a chilling effect on the criminal
justice system. Accordingly, many states, including Ethiopia, have enacted laws
providing for the protection of witnesses. The Ethiopian proclamations on
witness protection and terrorism authorize the suppression of information about
witness identity and admissibility of hearsay and intelligence reports as evidence
in court, thus, restricting the right to confront and examine one‟s accusers.
Cross-examination is said to be “basic to any civilized notion of a fair trial”,
“of paramount importance to the rights of the defense and the fairness of the
trial”1 and “the greatest legal engine ever invented for the discovery of truth”.2
Cross-examination is one aspect of the right to a fair and public trial guaranteed
in international human rights law3 and under the Ethiopian constitution.4 Art
1 Footnotes omitted. David Lusty (2002), “Anonymous Accusers: An Historical and
Comparative Analysis of Secret Witnesses in Criminal Trial”, Sydney Law Review, vol. 24
<http://www.austlii.edu.au/au/journals/SydLawRw/2002/17.pdf > accessed 23 September
2017, pp. 361-362.
2 Footnotes omitted. Ibid.
3 Uni versal Declaration of Human Rights (1948), Art 10; International Covenant on Civil
and Political Rights (ICCPR) (1966), Art 14(5).
4 Constitution of Federa l Democratic Republic of Ethiopia (1995), Art 20(4).