Walking in the Dark: Lack in the Use of Criminal Statistics for Public Policy and Legislative Actions
| Author | Simeneh Kiros Assefa |
| Position | Simeneh Kiros Assefa: LL.B (Addis Ababa University), LL.M (University of Pretoria), LL.M (Kyushu University), LL.M (University of San Francisco); Assistant Professor of Law at AAU Law School, Attorney-at-Law and member of California State Bar (inactive). I thank Hirko Alemu for his extraordinary assistance in data collection. Email: simeneh... |
| Pages | 371-400 |
371
Walking in the Dark:
Lack in the Use of Criminal Statistics for
Public Policy and Legislative Actions
Simeneh Kiros Assefa
Abstract
As an exercise of sovereign power, the lawmaker adopts public policies to achieve
certain ends. However, public policies need justifications. One such public policy is
criminalisation of conduct whereby the lawmaker may have to use both doctrinal
and empirical justifications. Such empirical justification is criminal statistics. All
the three organs – the police, the prosecution office and the court – are required by
law to collect and keep criminal statistics. Statistical data may not be available for
initial adoption of legislation; yet they are essential inputs during the revision
process. Even though criminal statistics do not define the outcome of the decision
of the lawmaker, one would expect that they would be used as one major input for
the continuous evaluation of such law. This article examines the use of criminal
statistics in the adoption/revision of criminal provisions and finds that no criminal
statistics is presented in the legislative process. This appears to be for two reasons.
First, the various bills were drawn up and presented by agencies claiming to have
specialisation on the subject; often, such agencies do not possess criminal statistics.
Second, even for those bills drawn up by agencies with potential criminal statistics,
the lawmaking process is skewed, that it does not demand aspiration to make
„good‟ laws.
Key terms
Criminal statistics · Criminalisation · Legislative reform · Legislative rationality
DOI http://dx.doi.org/10.4314/mlr.v12i2.6
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
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Introduction
Public policy decisions are made to attain certain social, political and economic
ends. Criminal law is one such tool of social control and criminalisation is one
such public policy decision. When the government decides to criminalise a
Simeneh Kiros Assefa: LL.B (Addis Ababa University), LL.M (University of Preto ria),
LL.M (Kyushu University), LL.M (University of San Francisco); Assistant Professor of
Law at AAU Law School, Attorney -at-Law and member of California State Bar
(inactive). I thank Hirko Ale mu for his extraordinary assistance in data collection.
Email: simeneh@simenehlaw.com
372 MIZAN LAW REVIEW, Vol. 12, No.2 December 2018
particular conduct, it may be guided by normative (doctrinal) and empirical
standards. Criminalisation of conduct is made based on the basic assumption
that the criminal law deters such conduct of potential actors. Once the conduct is
criminalised, such legislation remains under constant potential revision; such
evaluation is made based on evidence of the need to reform.1 One such evidence
is criminal statistics. The criminal statistics may be used, as part of the public
policy revision, to criminalise or to decriminalise conduct, and to increase or to
decrease the punishment for such crime.
Such data may be collected at different stages of the process. It may be
collected by the police, the office of the Attorney General or the court. Each of
them may report to the House of Peoples‟ Representatives about their
performance. Included in the report is the analysis and presentation of criminal
statistics, which is required by law to be a part of „the report‟. In this report,
those agencies presumably identify problems and challenges in the
administration of the criminal justice for which they need to provide solutions.
If one of the solutions is legislative action, it is the Attorney General‟s Office –
as the legal advisor of the Federal Government– that proposes such public
policy action (of criminalisation or decriminalisation, increase or decrease of
criminal punishment) in order to address such identified social ill.
However, there are two major shortcomings regarding the practice of use of
criminal statistics. First, there are no records that show data were properly
collected and utilised for such public policy action. Second, sometimes, the
agency which recommends legislative action is not the Federal Attorney General
(formerly Ministry of Justice), the legal advisor for the Federal Government.
Depending on their claimed area of expertise, it is other administrative agencies,
such as, the Ministry of Trade and Industry, and Ministry of Finance and
Economic Development, who do not possess such data and could not establish
the facts for proper action by the legislative body that propose a bill.2
1 Wintgens cogently argues that the law should not only be formally valid in its initial
adoption, but it must al so be effective in order to justify its continued existence. A norm
may become effective and justify its co ntinued existence when it is supported by the facts.
When a given norm is not supported by t he facts, the legislato r needs to react; otherwise,
the norm beco mes unconstitutional b y mere passage of time and change of circumstances.
L.J. Wintgens (2013) “The Rational Legislation Revisited. Bounded Rationality and
Legisprudence” In L.J. Wintgens and A.D. Oliver-Lalana (Eds.) The Rationality a nd
Justification of Legislation: Essa ys in Legisprudence, Heidelberg: Springer, 24, 26-28.
2 Arts 30 and 38 of the Council of Ministers Working Directives (Addis Ababa, 2003)
authorise every Minister to have the power and responsibility to initiate policies and laws,
regarding the Ministry s/he leads. This, in turn g ives the impression that only the
government a gencies initiate bills. See the p rocess of the adoption of laws under art 40.
Further, art 43 provides that such draft bills shall be dra wn up by professionals of such
agency. This is what is referred to as „Government Draft Law‟ in the Federal Democratic
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