The Right to Cross-Examination and Witness Protection in Ethiopia: Comparative Overview

Author:Tadesse Melaku
Position:Tadesse Melaku (LLB, LLM); Assistant Professor at Hawassa University, College of Law and Governance, School of Law. I thank the anonymous reviewers for their comments and suggestions. Email: tadessehello@gmail.com
Pages:303-324
SUMMARY

Cross-examination particularly in the context of criminal trial is a human right recognized in international human rights law and the Ethiopian constitution. However, states are increasingly facing another pressing policy consideration – protecting prosecution witnesses who could otherwise be subject to intimidation, and who could even risk their lives for providing evidence in the administration ... (see full summary)

 
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The Right to Cross-Examination and
Witness Protection in Ethiopia:
Comparative Overview
Tadesse Melaku
Abstract
Cross-examination particularly in the context of criminal trial is a human right
recognized in international human rights law and the Ethiopian constitution.
However, states are increasingly facing another pressing policy consideration
protecting prosecution witnesses who could otherwise be subject to intimidation,
and who could even risk their lives for providing evidence in the administration of
criminal justice. Witness protection has become an important public interest that
justifies the restriction of the right to cross-examination. Without such protection,
witnesses could be uncooperative for fear of reprisal and, in view of this, many
countries (including Ethiopia) have introduced measures restricting face-to-face
examination through, among others, the suppression of witness identity. A review
of foreign academic literature and foreign case law reveals that, when considering
demands for anonymity, courts exercise maximum caution to ensure that the right
to cross-examine witnesses is not unduly infringed. The writer argues that a recent
constitutional ruling by the Council of Constitutional Inquiry in favor of
withholding the identity of prosecution witnesses has failed to properly balance
between the right to cross-examine against protecting witnesses. The ruling is
likely to have a negative effect on fair trial and can adversely affect the
fundamental rights of accused persons in Ethiopia
Key terms
Anti-Terrorism Proclamation · Council of Constitutional Inquiry · Right to
cross-examination · Ethiopian Constitution · Fair trial · Protection of witnesses
and whistleblowers
DOI http://dx.doi.org/10.4314/mlr.v12i2.3
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
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Introduction
This article seeks to explore the tension between the right of accused persons to
examine state witnesses face-to-face and the need for protectin the safety of
Tadesse Melaku (LLB, LLM); Assistant Professor at Hawassa University, Colle ge of Law
and Governance, School of Law. I thank the anonymous reviewers for their comments and
suggestions. Email: <tadessehello@gmail.com>
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).

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