News Analysis: Rights Commission recommends several changes to improve draft Criminal Procedure Code

By Siyanne Mekonnen @siyaanne

Addis Abeba, January 14/2021 – The Ethiopian Human Rights Commission (EHRC) said that the newly drafted Criminal Procedure Code and Evidence Law presented to the House of People’s representatives (HoPR) for discussion and approval needs to be improved in accordance with human rights laws and principles.

On September 26 last year, during its 90th regular meeting, the Council of Ministers has discussed and referred the draft Criminal Procedure Code, which was last enacted in 1961, to the HoPR. The major reconsideration in the existing Criminal Code is that it follows a unitary system of government and does not take the federal system and international and regional treaties that Ethiopia has since adopted as part of the country’s law into account.

The cabinet also pointed out the lack of clarity, inconsistencies with modern criminal science as a fundamental gap, as well as its failure to meet modern and cultural norms and values of the Ethiopian people.

Subsequently, on December 21, the Legal, Justice and Democracy Standing Committee of the HoPR held a discussion aimed at gathering input from various stakeholders.

The participants including representatives of the EHRC presented their views to the Standing Committee, and further suggestions were submitted in writing. 

Strength of draft law

In a 33-page report, EHRC made more than 30 recommendations along with explanations to be considered and presented it to the Legal, Justice and Democracy Standing Committee of the HoPR and to the Office of the Attorney General.

The EHRC’s recommendations report has analyzed the strengths and weaknesses of the draft law. The EHRC commended the strength in the draft Criminal Procedure Code such as clearly stateing the purpose of criminal proceedings which is the respect of human rights enshrined in the constitution. This shows the great consideration given to human rights, according to EHRC. It is also important that the criminal justice system included truthfulness and the rule of law in the draft. The clear stipulation that crime investigations should precede the arrest of suspects, the time limits for criminal investigation and prosecution and indications to the proportionality of use of force during arrests were among the strengths of the draft law according to the report.

“The draft criminal procedure and the law of evidence should be amended in terms of human rights. The right to bail and the conditions of detention require special attention.”

EHRC

The draft also put forward the procedure of reviewing the case of wrongly convicted individuals and guarantee of the right to compensation. The principles of innocence until proven guilty, the right to be represented by a lawyer, and the equal rights of plaintiffs and defendants were also clearly stipulated by the draft.

Another strength of the draft law is that it guarantees suspects and defendants the protection against human rights abuses, cruel or degrading treatment in detention. The draft also laid out directives regarding the rehabilitation and reintegration of ex-inmates upon release. The postponement of arrest for convicts considering their health status, occupation and at times importance/irreplaceability of their jobs was also among the positive aspects of the draft law as stated by the report.

Gaps to be considered

The gaps identified by the report and provided with recommendations for amendment include, the use of force and interrogation during arrests, searches and at times of special crime investigations which must be amended in order to make sure that the use of force is applicable only in the absolute absence of other alternatives and in a process where accountability is ensured, as well as in order to meet the international human rights law standards to ensure accountability through a procedure of filing a complaint.

The principles of precaution, legality, necessity, proportionality and non-discrimination must also be included in relation to the use of force. Additionally, the part of the draft about concluding a criminal investigation before arresting a suspect undermines the provisions related to arrests and investigation, EHRC said, and recommended that pretrial detentions of suspects or defendants should be under exceptional circumstances. There should be improvements in the draft to include a system of accountability to ensure the process of extracting statements from suspects of crimes and the human rights violations during detentions.

“The practice of prosecutor’s appeal against bail must come to an end”

EHRC

“The practice of prosecutor’s appeal against bail must come to an end” the report demanded, adding “a system should also be set up to facilitate an immediate bail to women who are pregnant, have children under 9 years of age and a child with disability.” It also recommends “non-custodial measures,” to be applicable during convictions. With regard to time served, if a suspect is convicted to a maximum period of time that is equivalent to the time already served, convicted person should be set free immediately. And that a system should be in place where individuals illegally detained can receive compensations.

Furthermore, EHRC also suggested that provisions of an open trial should be amended in accordance with international human rights law to ensure the right of suspects to a fair trial. It was stated that the practice of assuming a suspect who fails to provide evidence of innocence during investigations as guilty violates the right to self-defense and the prosecutor’s responsibility to prove a defendant guilty beyond reasonable doubt.

The draft law also failed to include provisions that take into account the rights and interests of vulnerable groups including children, juvenile delinquents, victims of sexual assault and people with disabilities especially during arrests, criminal investigations, testimony and issuance of bail. Concerns about negotiations and traditional judicial systems were likely to put a strain on human rights, according to the EHRC.

Daniel Bekele, EHRC Chief Commissioner, told Addis Standard that he is optimistic that the Parliament would consider to implement the recommendations. The commission has previously seen instances of acceptance on its recommendations with regards to the newly enacted Hate Speech Proclamations and amendments on establishment of the Commission itself which were implemented by the HoPR.

With regard to arresting individuals, the decree that states “no one should be arrested without finding sufficient suspicion” is recommended to replace “sufficient suspicion” with “reasonable suspicion” by EHRC. This amendment, according to Dr. Daniel, is especially applicable to the case of journalists whose reason for arrest is normally their published works, which is readily available to be used as evidence. AS

Please click her to download the full version EHRC’s recommendations.