Journal of Ethiopian Law

How to Rescue Human Rights from Proactive Counterterrorism in Ethiopia

2019-03-22T10:55:54+00:00

Though, in theory, there is no trade-off between counterterrorism and the protection of human rghts, in practice their interaction has been problematic. Broadly, the problematic nature of counterterrorismf rom human rghts perspective is attributable to two factors. The first is lack of universally accepted definition of terrorism. The second is the proactive approach of counterterrorism - an approach that departs from the traditional reactive approach of the aiminal law and allows intervention against a conduct before it matures into a terrorist act. This paper is concerned ith Articles 4 and 7 of the Ethiopian Anti-terrorism Proclamation No 652/2009, which, respectively, aiminal e preparatory conduct to commit a terrorist act and membership in a terroist organization, and introduce a proactive approach to counterterrorism in Ethiopia. The applcation of these provisions involves prediction of future behaiours based on Lmited information, which makes them susceptible to misuse. This potential for abuse calls for maximum care in their implementation. This article explores how these provisions should be construed to mitigate human rghts casualty. Draning on the law and practice of counterterrorism in jurisdictions from which the Ethiopian
antiterrorism proclamation has been adapted, this article suggests a precautious reading of these pro visions. This path, which calls for the court to play its role in safeguarding human rights from proactive counterterrorism in Ethiopia, is not only desirable, but prudent and sufficienty mindful of the constitutional role of the judiciary.

"Over-criminalisation": A Review of Special Penal Legislation and Administrative Penal Provisions in Ethiopia

2019-03-22T10:56:03+00:00

Criminadsation is the most intrusive state action; as such, it requires strong justification. Looking merely at the doctrinalj ustifications, in the common-law system, harm is the single most important justification for criminadsation. In the continental system, however, there are positive and negative requirements to be compled with. The positive requirement is that the law is intended to protect 'legal good' Such legal good covers interests that are essential for the sodal existence of the individual. The negative requirement is ultima ratio. Further, when the criminal law is used, the means-end proportionaliky is required to be maintained. The criminal law is one body of law. Thus, the General Part of the criminal law is appdcable to offences stated both in the Speial Part of the Criminal Code and those stated in speial penal legislation or penal provisions contained in administrative regulatory legislation. The notion of legal good is incorporated into Art 1 of the Criminal Code in broader context as 'common good'. However, the law maker adopted several pieces ofpenal legislation and extensive penal
prod/ sions contained in administrative regulatory legislation contrary to such 'legislative promise' In those penal provisions, the law maker criminadses conducts that were already criminadsed in the Criminal Code, save they increase the punishment. The legislator aiminaises conducts contrary to the prinples of criminadsation, including the prinples in the General Part of the Criminal Code, such as, the priniple of legality and the prinple of lenigy. The legislator is consistent in choosing increased penal sentence both in absolute and relative standards. It is this excessive use of criminal law and excessive punishment that is presented as over-cimina/sation.

The Right to Defense Counsel in Ethiopia: A Quest for Perfection

2019-03-22T10:56:13+00:00

The tght to defense counsel is in short, an arrested or accused persons tght to hate a state appointed counsel when she cannot afford to hire one. Given its importance in administering an ideal criminal justice system, it is given recognition under major international human tghts instruments as well as constitutions and subsidiary laws of many countries. Despite such wide recognition, its implementation is fraught nith difficulties. Ethiopian laws, as well as regional and international human rights instruments to which Ethiopia is a party, also recognize this -ight. Nonetheless, the tght is availed by quite afew indidua who came into confict with the law. This piece attempts to show the legalframework that pertains to the tght under discussion, canvass the practice starting from 1965 to date from different academic researches, anaye data collected as recently as 2015 and indicate the shortcomings of both the laws and the practice. In doing so, it discusses the laws and practices of different countries with a vew to draw insight from their strengths. The paper identifies that the major hurdle in all
these is the lack of a dibrant Pubc Defenders Office and counseb, among others, and suggests that this institution shall be intgorated, and the relevant laws shall be amended to give full effect to the tght.

Reflections on Mrican Democracy: The Rugged Terrain of the Past, Current Challenges and Issues of Contextualization

2019-03-22T10:56:22+00:00

In Africa, the expectation was that decolonigation would be followed by democratization. However, this expectation was dashed particulary in the first three
decades following the independence of most African countries. Because of this, serious pro-democrag movements appeared in the continent starting from the late 1980s which resulted in meaningful improements. Nonetheless, the quest for genuine democrag has still been a real question throughout the continent. The purpose of this piece is to examine as to why the quest for democrag remained unfulflled to date, the trend of democrag since the 1990s, the gains and the shorfal, and the current challenges to democrag in the continent. It will also discuss whether accepting the Western Liberal democrag wholesale is rght or not and whether there is a need to make some sort of contextuaieation so that democrag can gain ground in the continent. The author argues that despite the challenges and obstacles to democrag in the Continent, Africa has to work hard to make democrag real since no other form of governance seems to be more
suitable to the continent. To this end, the countries of the continent should work aggressively and sincerely to entrench democrag by overcoming the challenges and removing the obstacles as much as possible. Nonetheless, the author bedeves that accepting the Western Liberal democrag without contextuaieation to the African readiy does not seem to be appropriate.

Christoph Van der Beken, Completing the Constitutional Architecture: A Comparative Analysis of Sub-national Constitutions in Ethiopia (Addis Ababa: Addis Ababa University Press; 2017), pp. 242; Price Birr 62.45.

2019-03-22T10:56:31+00:00