Special Issue: Sentencing in Ethiopia: sanctions, guidelines and reform

• Author: Yilma, K.M.
• Pages: 148-167
• Date: 06 July 2020
• Published date: 06 July 2020

Sentencing in Ethiopia: Sanctions,

guidelines and reform

KASSAHUN MOLLA YILMA*

ABSTRACT

This art icle explores the Ethiopian sentencing framework. Ethiopia is one of

the few African jur isdictions to develop a systematic se ntencing guidelines

system. These guidel ines have been in operation for several year s now,

and represent a useful model for ot her African states to adop t. Although a

number of problems remain (and are di scussed in this article) the Ethiopian

guidelines follow a principled approach to sentenc ing and are likely to have

achieved benecial effects w ith respect to trial cou rt sentencing practices.

This positive development can be complemented by i ntroducing reform in

several other areas, which a re also suggested in th is article. These include

expanding the exist ing sanctions, establish ing institutiona l facilities for the

enforcement of alternative sanct ions, and establishing a cu stody threshold.

1 Introduction

Ethiopia is one of the few African jur isdictions to develop a systematic

sentencing guidelines system. These g uidelines have been in operation

for several years now and represent a useful model for other African

states to adopt. Although a number of problems remain (and are

discussed in th is article), the Ethiopian guidelines follow a principled

approach to sentencing and are likely to have achieved benecial

effects with respect to tr ial court sentencing practices. Thi s article

begins by providing some general inform ation about sentencing law

and practice in Ethiopia, before exami ning the sentencing guideline.

After working through a n offence for the purposes of illustration,

the essay offers some critical comments and proposes a num ber of

reforms.

The article proceeds in four par ts. Part I provides a general overview

of the sentencing framework in Ethiopia and describe s the purposes

of punishment and principal sanct ions. This part explain s that the

Ethiopian sentencing system is moving away from a system based

upon rehabilitation towards retribution. Part I I analyses the Ethiopian

sentencing guidelines. It demonstrates how the guideli nes work in

practice. Part III looks at the deciencies of the exi sting system and its

challenges. Part IV presents reform proposa ls suggested in this art icle.

* LLB LLM MS c [Vrije Universiteit Amster dam, The Netherland s], Legal Consultant at

International Tri bunal and Researcher, The H ague, Netherlands.

148

(2020) 33 SACJ 148

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2 Sentencing in Ethiopia

The Constitution of Ethiopia est ablishes a federal structure of

government consisting of the federal government and regional states.

It gives the former the power to legislate criminal law.1 This means

that the national parliament legislates cr iminal law and the states

do not have their own criminal codes.2 A s a result, both the federal

government and the regional states use the same Cr iminal Code and,

by extension, the same sentencing law. The organisation of courts

in Ethiopia also mir rors the federal structu re and each state and the

federal government have their own courts.

The Ethiopian Crim inal Code is the prima ry source of sentencing

rules. The Crim inal Code denes crimes, provides sentences, and r ules

regulating the determi nation of sentences. Under the current system,

crimes are classied i nto two categories: ordinary crimes, de ned by

the Crimina l Code, and petty offences, dened by the Petty C ode.3 As

is stated in the Petty Code, ‘Pett y offences differ from ordinar y crimes

by reason of the different penalties they mer it.’4

In connection with sentencing, the Crim inal Code recognises th ree

broad categories applicable to different categories of offenders and

offences: (i) adult offenders; (ii) young offenders; and (iii) sentences

applicable to petty offences. Age and gravity are therefore the t wo

factors used by the legislator to prescribe different sentences and

measures for different categories of offenders and offences. At present,

the Crimina l Code and the Ethiopian sentencing guidelines govern

the determination of sentences for adult offenders. Therefore, the

discussion in this ar ticle is restricted to analysing sentencing of adults.

2.1 Purpose and principles of sentencing: retributive or

preventive?

Although for centuries scholars have been debating the just ications

for punishment, little consensus ha s emerged.5 The debate is broadly

1 Article 55(5) of the Constit ution of the Federal Democratic Republic of Et hiopia 1 of

1995 .

2 Regional States, however, are empowered to enact pena l laws on residual matters .

According to art 55(5) of the C onstitution, ‘T he States may … enact pen al laws on

matters that ar e not specically covered by Fede ral penal legislation’.

3 According to art 733 of the Petty Cod e, a petty offence may be co mmitted when

a person infr inges a mandatory or pr ohibitive provision or regulat ion issued by

a competent authority or wh en a person commits a m inor offence that is not

punishable under the C riminal Co de.

4 Article 746 of the Crimi nal Code.

5 See MC Materni ‘Crimi nal punishment and the pursu it of justice’ (2013) 2 Brit J Amer

Legal Stud 263.

Sentencing in Ethiopia: Sanctions, guidelines and reform 149

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