Jawar Mohammed and Bekele Gerba

By Jetu Edosa @JChewaka

Addis Abeba, August 07/2020 – After a number of weeks of remand in custody of Jawar Mohammed et al., because of the non-completion of police investigation report, the Federal its listening to yesterday, the Federal First Occasion Courtroom dominated the Federal Lawyer Common Workplace to carry Preliminary Inquiry.  The Courtroom’s ruling has created speculations aired in numerous Ethiopian social media platforms. This brief writing will examine the authorized deserves of why the Lawyer Common’s workplace resorted to Preliminary Inquiry when the trial may be held instantly in any case this time and after the police completed its investigations. This piece additionally inquires the aim of conducting preliminary inquiry as enshrined below the 1961 Felony Process Code of Ethiopia. 

Which means and goal of Preliminary Inquiry

In precept, a Preliminary Inquiry (PI) because the identify signifies, is a preliminary judicial listening to that’s utilized in critical felony circumstances reminiscent of ‘homicide in the first degree’ or ‘aggravated homicide’ (CPC, 1961: artwork 80.1) to find out whether or not the proof adduced by the general public prosecutor in opposition to the accused is sufficient or enough to require a trial in a court docket having jurisdiction. Nonetheless, additionally it is doable to conduct PI in case the Public Prosecutor orders {that a} PI be held (CPC, 1961: arts 80.2 Cum 38.b). In numerous felony justice programs, additionally it is known as ‘preliminary hearing’ preliminary examination’, ‘evidentiary hearing’ or ‘probable cause hearing’.

The PI doesn’t represent a trial and that the choice as to the guilt or innocence of the accused particular person shall be taken by a court docket having jurisdiction and never by the committing court docket – court docket that’s conducting PI (CPC, 1961: artwork 85.2). In most nations, the aim of PI is simply to function a ‘venue of discovery’, which is ancillary to the primary goal of listening to on the trial. However, within the case of Ethiopian felony justice, PI is only a venue for ‘recording evidence of the prosecution’ and there’s no judicial discretion of the committal court docket choose to find out whether or not there’s enough and admissible proof which may, if it have been believed, end in conviction of the accused particular person.

The pertinent query is: why has it out of the blue turn out to be mandatory right now to conduct a PI in Jawar Mohammed et al. case, the place the apply of conducting such sorts of listening to is uncommon within the Ethiopian felony justice system? Is it mandatory to comprehend ‘expeditious charge-screening mechanism’? If the reply to this query is affirmative why did the prosecution take so lengthy to order PI given the truth that each public prosecutor and the investigating police have been engaged on the case on the identical time? Or is it mandatory ‘to protect the accused from a needless, and indeed, improper, exposure to public trial where the law enforcement is not in possession of evidence to warrant the continuation of the process’? The reply to this query couldn’t be within the affirmative given the truth that the court docket inquiring the case on the preliminary stage will not be empowered to dismiss the case for lack of enough proof or inadmissibility. The truth is the ability to institute felony proceedings after figuring out ‘whether there are sufficient grounds for prosecuting the accused’ is the final word discretion of the prosecution (CPC, 1961: artwork 40.1).

Thus, in view of the final word discretion of the general public prosecutor to institute or to not institute felony proceedings in opposition to Jawar Mohammed et al Case, conducting PI serves no goal than shopping for or delaying the time earlier than the precise public trial earlier than the precise court docket having felony jurisdiction over the case is about in movement. So long as the prosecution will not be placing its proof for judicial scrutiny earlier than the committal court docket, there is no such thing as a significant goal of ordering PI. The prosecution relatively ‘order further investigation’ in case she or he is of the opinion that there needs to be further proof to justify a conviction. It’s for this very purpose that a part of the PI provisions within the present Felony Process Code will not be included within the draft Felony Process Code below reform.

Courts having jurisdiction to conduct PI

In precept the odd place of trial is ‘by the court within the local limits of whose jurisdiction it was committed’ (CPC, 1961: artwork 99). In different phrases, the accused particular person needs to be ‘triable in a place where act is done or where the consequences ensued’ (CPC, 1961: artwork 100). The court docket having jurisdiction to conduct PI is the court docket ‘within whose area of jurisdiction the offense was committed’ (CPC, 1961: artwork 81). One ought to be aware that if the ability to dispose the case belongs to the jurisdiction of the Federal Excessive Courtroom, the committal court docket shall be Federal First Occasion Courtroom. Because of this the court docket that disposes the case via trial process and the court docket that conducts PI shouldn’t be one and the identical. Within the present context of Jawar Mohammed et al Case, the function of Federal First Occasion Courtroom Lideta Felony Bench is taken into account because the committal court docket to conduct PI (CPC, 1961: artwork 83.1).  It’s unprecedented why the prosecution out of the blue turned to PI in a Federal First Occasion Courtroom to which the case was initially directed to dispose via public trial.

The recording of proof throughout PI

The rationale why PI in Ethiopian felony justice system is simply redundancy is the truth that it’s only a venue for taking proof of the prosecution which might nevertheless be conveniently taken on the precise court docket having jurisdiction to dispose the case for the sake of speedy trial. The rationale for this assertion is that precisely the identical process that ought to have occurred in federal excessive court docket could be repeated throughout PI. As an example, recording of proof, taking assertion of the accused, summoning further witness (arts 85 & 86), remand in custody (artwork 90.2) and adjournments (artwork 82.2) are just some to say which are much like precise path process.

The well-known authorized notion – proper to ‘equality of arms’ underlines accused individuals proper to get full entry to any proof offered by the prosecutor as a side of truthful public trial on equal footing with the prosecution

Cross examination of witnesses by the accused particular person throughout PI

It needs to be famous that cross-examination is vital to a good court docket trial course of which supplies a chance to problem the trustworthiness of prosecution witness and expose lies and contradictions within the oral account. For this actual fact, cross-examination is dubbed as ‘the greatest legal engine ever invented for the discovery of truth’ which is assured in worldwide human rights legislation and the FDRE Structure. The FDRE Structure supplies that ‘accused persons have the right to full access to any evidence presented against them, to examine witnesses testifying against them, to adduce or to have evidence produced in their own defense, and to obtain the attendance of and examination of witnesses on their behalf before the court’ (artwork 20.4). The Felony Process Code additionally acknowledges the precise to cross examination with the aim to ‘show to the court what is erroneous, doubtful or untrue in the answers given in examination-in-chief’ (artwork 136). The well-known authorized notion – proper to ‘equality of arms’ underlines accused individuals proper to get full entry to any proof offered by the prosecutor as a side of truthful public trial on equal footing with the prosecution. If conducting PI has one thing to do with searching for the reality, cross-examination of prosecution witness supplies accused individuals or counsel and even the judges with the chance to determine the veracity of the testimony by taking a look at ‘the demeanor of the witness, the manner of giving testimony, physical and emotional reaction to questions’.[1]

Nonetheless, some writers argue that ‘the accused cannot cross-examine the witness at the preliminary inquiry- [he/she] is a passive observer while the prosecutor and the judge are the main actors’.[2] In fact there is no such thing as a specific provision that gives for the precise of the accused particular person to cross-examine witness or ‘objects to the admission of any evidence or the putting of a question to a witness by the prosecution’ through the PI within the CPC. The provisions of the Felony Process Code regulating PI dominantly outlines the taking or recordings of prosecution witness whereas the accused individuals are entitled to make a press release (arts 85 & 86). It’s only via cross reference to article 147 that one could make a constructive interpretation that cross-examination of prosecution witness through the PI by the accused particular person could also be realized (artwork 88). It is because the committal court docket is required to document prosecution proof and every witness in accordance to the foundations indicated below article 147 of the CPC. This provision below sub-article three stipulates that the recording of ‘the evidence shall be divided into evidence in chief, cross examination and re-examination with a note as to where the cross examination and re-examination begin and end.’ Subsequently, given the significance of cross-examination, it may be strongly argued that the accused particular person needs to be supplied with the chance to confront prosecution witness through the recording of proof within the PI. That is particularly essential in case the recorded evidences taken throughout PI are unexamined by the trial court docket for its admissibility.

Preliminary Inquiry:  tactical or technical process?

It’s unprecedented why the general public prosecutor orders the Preliminary Inquiry on the time when the general public prosecutor has to institute a cost or drop the case for lack of enough proof in opposition to Jawar Mohammed et al. Given the minimal function of conducting PI – only for the mere goal of recording prosecution proof, one can solely ponder that such transfer is simply a tactical transfer to maintain the accused individuals in custody till that precise trial begins (CPC, 1961: artwork 93). The order to conduct PI within the committal court docket within the current context couldn’t be moderately justified by any authorized maxim as a ‘venue for discovery of truth’ within the face of the final word procedural discretion of the general public prosecutor to order additional police investigation – which was already executed via critical of remands in police custody in case coverage investigation was not accomplished. The transfer of the general public prosecutor to conduct PI will not be even technical given the restricted contribution of conducting PI in Ethiopian Felony Justice System. For these practitioners and lecturers acquainted with the each day use of the 1961 CPC, the provisions governing PI is already ‘repealed by disuse’. Beneath the present Felony Justice Process reform, it’s a concern of the previous as the brand new draft already discarded it.

For these practitioners and lecturers acquainted with the each day use of the 1961 CPC, the provisions governing PI is already ‘repealed by disuse’. Beneath the present Felony Justice Process reform, it’s a concern of the previous as the brand new draft already discarded it.

But its tactical nature is extra obvious given the ability of the court docket to adjourn the case and remand the accused individuals in police custody for added situations of adjournment throughout PI. In regular circumstances of remand in police custody, the court docket adjourns the accused individuals below the guise of non-completion of police investigation report as stipulated below the notorious article 59 (2) of the CPC. It is because since adjournment situations below article 94 of the CPC that usually apply throughout precise trial may also apply throughout PI. One can think about the time it’d take to finalize PI given the listing of situations for adjournment below article 94 of the CPC. Subsequently, the order of PI in Jawar Mohammed et al. case provides solely one other layer to the felony investigation process with no worth including goal each for the accused individuals and the general public seen from the vantage factors of time and useful resource use. Given the restricted goal of PI within the Ethiopian felony justice system as solely for the judicial recording of prosecution proof, the order of PI in Jawar Mohammed et al. case solely serves the meant or unintended functions of delaying justice, to not point out the large involvement of public assets earlier than the precise trial showdown begins. The irony is that the accused individuals are usually not even entitled for ‘specific charge or charges on which he or she is committed for trial’ (CPC, 1961: artwork 89.1). It’s excruciating expertise for any particular person to stay in police custody with out understanding the cost introduced in opposition to you. AS

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Editor’s Word: Jetu Edosa, Assistant Professor of Legislation, is a school member on the Addis Abeba College (AAU) College of Legislation. He may be reached at:jetulaw@gmail.com

[1]Tadesse
Melaku, The Proper to Cross-Examination and Witness Safety in Ethiopia:
Comparative Overview, (Mizan Legislation Assessment, Vol. 12, No.2, December 2018.

[2] Ibid
The publish Evaluation: Conducting Preliminary Inquiry in ‘Jawar Mohammed et al. v. Ethiopia’: Tactical or Technical Process?  appeared first on Addis Commonplace.

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