COLLAGE OF SOCIAL SCIENCE AND HUMANITY

DEPARTMENT OF LAW

" CRIMINAL SENTENCING LAW IN ETHIOPIA: THE CASE OF KAFFA

ZONE "

A RESEARCH SUBMITTED TO BONGA UNIVERSITY DEPARTMENT OF

LAW IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR

BACHLORE OF LAWS(LLB)

BY:

1) DAGMAWI KINFE

2) EPHREM BAYIH

3) BELETE SHIFERAW

ADVISORE: -BESHEMO S.

JUNE,2023

BONGA, ETHIOPIA
DECLARATION
We declared that the research titled “criminal sentencing law in ethiopia: the case of kaffa zone "

This studyhas not been submitted for any degree in this University and any other Universities. It

is offered for the partial fulfillment of the degree of L.L. B in Law

By:

Place of submission………………… date of submission…………...

This research is submitted for examination with my approval as university advisor and examiner
Advisor ’name Signature Date

Examiner’ name………………………………………………Signature…………………….
Date…………………………………………

I
 ACKNOWLEGEMENT
First and for most, we would like to express my heart fully to our almighty God, Who helped us
to accomplish my study successfully through various ups and downs until the completion of this
study. Next, we would like to express our deepest gratitude toward our advisor Beshemo Solomon
for his valuable advice, comment, suggestions and encouragement through writing of research this
paper. Also, we would like to extend our heart full thanks towards for family hood treatment.

II
Contents
Declaration ....................................................................................................................................... I
ACKNOWLEGEMENT ................................................................................................................. II
Acronyms ....................................................................................................................................... V
Abstract ......................................................................................................................................... VI
CHAPTER ONE ............................................................................................................................. 1
INTRODUCTION .......................................................................................................................... 1
1.1 Background of the study ....................................................................................................... 1
1.2 Statement of problem ............................................................................................................ 3
1.3 Research question .................................................................................................................. 4
1.4 Objectives of the study .......................................................................................................... 4
1.4.1 General Objectives of the Study......................................................................................... 4
1.4.2 The Specific Objectives of the Study ............................................................................. 4
1.5 The Scope of the study .......................................................................................................... 5
1.6 Significance of the study ....................................................................................................... 5
1.7. Research Methodology ......................................................................................................... 5
1.7.1 Research Design ............................................................................................................. 5
1.7.2 Source and Types of Data .................................................................................................. 5
1.7.3 Primary Source of Data .................................................................................................. 6
1.7.4 Secondary Source of Data .............................................................................................. 6
1.7.5 Sampling Technique and Sample Size ........................................................................... 6
1.7.6 Data Analysis .................................................................................................................. 6
1.8 Limitation of the Study ......................................................................................................... 6
1.9 Organization of the Paper ...................................................................................................... 7
Chapter two ..................................................................................................................................... 8
Review of related literature ............................................................................................................. 8
2.1 Theories of Punishment ......................................................................................................... 8
2.1.1 Retribution Theory ............................................................................................................. 9
2.1.2 Theory of incapacity......................................................................................................... 10
2.1.3 Deterrence Theory ............................................................................................................ 11
2.1.4 Restoration of victim’s right theory ................................................................................. 12

III
 2.2 Principles of sentencing law ................................................................................................ 13
2.2.1 principle of legality ....................................................................................................... 13
2.2.2 principle of respect for human dignity ......................................................................... 14
2.2.3 principle of Consistency ............................................................................................... 15
2.2.4 principle of proportionality ........................................................................................... 15
2.2.5 principle of Transparency ............................................................................................. 16
2.2.6 Principle of Equality ..................................................................................................... 16
Chapter 3 ....................................................................................................................................... 18
Data and interpretation .................................................................................................................. 18
3.1 demography of Respondents ............................................................................................... 18
3.2 Descriptive analysis of the principle of proportionality and fairness, and predictability and
consistency and of sentencing passed by the Kaffa high court. ................................................ 20
3.3 The FSC Sentencing guideline implementation in Kaffa zone high court .......................... 22
3.4 Judicial freedom of judges at the time of passing criminal sentence .................................. 24
Chapter four .................................................................................................................................. 25
Conclusion and recommendation .................................................................................................. 25
4.1 Conclusion........................................................................................................................... 25
4.2 Recommendation ................................................................................................................. 25
References ................................................................................................................................. 26
Appendix ................................................................................................................................... 28

IV
Acronyms
➢ FDRE: - Federal democratic republic of Ethiopia
➢ FSCSG: - Federal supreme court sentencing guideline
➢ FSC: - Federal supreme court

V
Abstract
Sentencing is the most crucial stage in criminal justice system and crime is an inevitable
phenomenon in human social life. In addition, sentencing is a means designed to give notice for
the general public by described punishable crimes and to punish a criminal convicted by a court of
law. In ancient times, punishment was premised on the principle of “an eye for an eye, a tooth for
a tooth” and punishments were degrading and inhumane by today’s standard. Today’s punishments
are relatively humane and focus on rehabilitation. Many universal human right instruments provide
for the rights of convicted persons and many countries are members of these instruments.
Sentencing disparity is a problem everywhere and countries have adopted sentencing guidelines
to solve this problem. Ethiopia is one of them that adopted and revised the first and the second
sentencing guidelines in 2010 and 2013 respectively. Though there exist a law in the state there
some problems observed with regards to practice. Judges in many criminal trials are passing
sentencing’s which are not consistence and unpredictable. This is a clear indication that there is
sentencing disparity in the whole nation. This study is designed with the purpose of showing the
practical aspect the criminal sentencing law in Kaffa zone, specifically in high court. To show the
situation existed in kaffa zone high court the researchers designated three specific objectives.
These are to assess Consistence and fairness, proportionality, and predictability of the sentencing
given by the high court of Kaffa zone. To describe the challenges judge faced while implementing
the FSC sentencing guidelines in Kaffa zone high court and to assess the judicial freedom of judges
while giving sentences in different criminal sentences. In order to achieve these objectives, the
researchers used descriptive research design. Both primary and secondary source of data were used
to conduct the study. The data had both quantitative and qualitative nature thus the analysis was
made by using table, frequency and percentage. The finding of the research show that Kaffa zone
high court had criminal sentencing with problems associated with proportionality and fairness even
though not grave. With regards to consistency and predictability, despite the existence of some in
consistency the court’s criminal sentencing are quite consistent and predictable. The finding of the
study also showed the issue of judicial freedom with respect to passing sentencing. Finally, the
researchers stipulated recommendations which are helpful to change the situation existed in the
study area.

VI
CHAPTER ONE

INTRODUCTION

1.1 Background of the study

Crime is a public wrong that entails a consequence which may stretched to lose of personal liberty,
this infliction or consequence can be named as sentencing. Sentencing involves the imposition of
a punishment by a court upon a defendant who has been found guilty of or confessed to a violation
of the criminal law1.thus, sentencing refers to the act of the judiciary done for the protection of the
criminal legislation of the land. This sort of punishment ranges from binding over, probation,
caning, to fines, imprisonments and death penalty and others2. Generally, sentences are
punishments in which some will face , if the person act is out of the principle of Nulla poena sine
leges’ and nulla poena sine culpa.

criminal sentencing laws are legal frameworks which are comprised and organized with the
purpose of regulating the matter of criminal sentencing. Criminal sentences are required to
“reinforce collective values, physically incapacitate and rehabilitate offenders, deter misconduct,
provide restoration or compensation, and eliminate threats to the prevailing social order.”3
According to James A. Inciardi, “for more than 200 years, the public has alternated between
revulsion at inhuman sentencing practices and prison conditions (denounced as “barbaric” and”
uncivilized”) on the one hand and dissatisfaction with excessively compassionate treatment see as
“coddling criminals” on the other4. The fates of convicted criminals have repeatedly shifted
according to prevailing national values and current perceptions of danger and fear of crime 5.

1
J.C. Oleson (2017),Sentencing Theories, Practices, and Trends, research gate,p.2
2
Ikenga K.E. Oraegbunam (2010), Some Basic Principles of Penal Jurisprudence: An Analytical Approach,
JILJ,p.30
3
Terance D. Miethe and Hong Lu (2005), Punishment: A Comparative Historical Respective, Cambridge, p.10.
4
James A. Inciardi, (1984), Criminal Justice, Seventh Edition, Harcourt, Inc. pp. 424-425.
5
Robert M. Bohm and Keith N. Haley (2007), Introduction to Criminal Justice, fourth edition, McGraw Hill, p. 32.

1
Therefore, objectives of sentencing are based on six competing philosophies: retribution,
incapacity, deterrence, rehabilitation, restoration of victims” right, and all-inclusive theories

The composition of these sentencing laws may different as per to the legal system which these
laws are incorporated. The tradition of common law is based on precedent judgments. A number
of judicial decisions accumulate on a particular kind of dispute; general rules or precedents emerge
and become guidelines for judges to decide similar cases in the future. In contrast, in the civil law
countries, codification has played a vital role in the development of criminal law. The basic feature
of a civil law legal system is the presence of a written criminal code. The code is a systematic and
comprehensive compilation of legal rules and principles. Although the contents of the criminal
codes may vary widely from country to country, all codes are intended as a blueprint of social
regulation that attempts to guide individuals6.

Ethiopian legal system is hybrid of both civil law and common law legal philosophies. But in case
of sentencing law the influence civil law legal philosophy is largely observed. As the practice
of the civil law legal system, the criminal law of Ethiopia is accomplished by written laws. Those
written and codified criminal legislation are Penal Codes of 1930, 1957 and 2004.Additonal
indication for this is incorporation the principle of no crime committed; no punishment can be
imposed without having been prescribed by a previous penal law which is a basic principle of the
continental European legal thinking7.Additionally there are guidelines which are designed to
regulate and guide the judges that verdict sentencing on the perpetrators. The federal Supreme
Court is the one that prepares the sentencing guidelines under statute of the criminal law8.

Therefore, this study will try to assess the applicability of criminal sentencing legislations in
Kaffa Zone high court. This means the study will analyze how sentencing law is changed in to
practice in the courts of Kaffa zone and the challenges that hindered the proper applicability the
law in the study area.

6
Seifu Ayenew (2014),Ethiopian sentencing guidelines and their application: A case study in federal high courts, p.
19-20
7
Ibid,20-21
8
Art.88 (4) of the FDRE Criminal Law, 2004.

2
 1.2 Statement of problem
Prior to the introduction of the sentencing guideline, it was widely believed that sentencing
practices in Ethiopia were inconsistent and unpredictable. This perception was shared by the public
as well as legal professionals, and ultimately provoked the legislature to create a sentencing
guideline9. Reducing disparity was, therefore, one of the principal objectives of the sentencing
reform in Ethiopia, although the evidence for disparity was limited in scope. One reason for the
paucity of research is that, beyond a doctrinal analysis of legal provisions, there is no culture of
empirical research into the justice system. Gross disparity in sentencing was noted by the Supreme
Court committee constituted to draft the sentencing guideline. The Committee conducted a small
empirical study and concluded that sentencing disparity was a problem10.Following this in order
to overcome the problem designed sentencing guidelines in 2010 and revised it in 2013. However,
significant changes were not exhibited as the Ethiopian criminal justice expected11.As one part of
Ethiopia the kaffa zone courts experienced the same problem regarding sentencing. There were
instances in kaffa zone where judges give different sentencing for different cases that had the same
cause of action. Additionally, there were acquittals and guiltiness that unequivocally proof the
existence of invisible manipulator of the criminal justice system of the area. Therefore, this study
is designed with the purpose of clarifying the problem existing on the criminal justice system of
the area. the study critical examinees application of consistency and fairness, proportionality, and
predictability of sentencing in kaffa zone high court. Not only this it also provides the challenges
judges face while applying sentencing laws and factors that affect the judicial freedom of the
judges while they are passing criminal sentence.

10
Mekasha Abera,‘‘የ ቅጣት አወሳሰን ወጥነነትና ትክክለኛነትን ለማረጋገጥ የ ቅጣት ማነዋል ዝግጅት ጥናትና የ መፍትሄ አማራጮች", (
unpublished) at 25, at: https://www.abyssinialaw.com/codes-commentaries-and-exlanatory-
notes?download=1151:research-on-sentencing-guidline.
11
Seifu Ayenew (2014),Ethiopian sentencing guidelines and their application: A case study in federal high courts,
p. 2

3
 1.3 Research question
➢ What is the application of consistency and fairness, proportionality, and predictability
of sentencing in kaffa zone high court?
➢ What are the challenges faced by judges to implement the FSC sentencing guidelines in
kaffa zone high court?
➢ Are the judges in kaffa zone high court exercising their judicial freedom right at the time
of passing crimnal sentences ?

1.4 Objectives of the study

1.4.1 General Objectives of the Study

The general objective of the study is to assess criminal sentencing law in Ethiopia in case of
kaffa zone.

1.4.2 The Specific Objectives of the Study

The specific objectives of the study are the following: -

➢ To assess Consistence and fairness, proportionality, and predictability of the sentencing

given by the high court of Kaffa zone high court.
➢ To describe the challenges to implement the FSC sentencing guidelines in kaffa zone
high court.
➢ To examine whether the judges in kaffa zone high court exercising their judicial freedom
right at the time of passing crimnal sentences.

4
1.5 The Scope of the study

The study is primarily confined on assessing criminal sentencing law in case of Kaffa zone. The
delimitation of the study from subject matter perspective will be only the sentencing part of
criminal law. The area which the assessment will be made is limited to Kafka zone high court since
the researcher lacks enough financial resource and time to conduct further surveying on different
courts that trial criminal case.

1.6 Significance of the study

This study has significance to future researchers, policy makers, judges, and Courts whenever it
is necessary for them. it also helps the common people to have a better understanding about
sentencing laws and problems associated with the subject matter of the study. It paves away for
the relevant authorities to take necessary measures in order to avert problems related with the
applicability of sentencing law. Additionally, the study can serve as one complied document
which students can refer when they need expand their knowledge about Ethiopian criminal
sentencing law.

1.7. Research Methodology

1.7.1 Research Design

This study was conducted by using none -doctrinal research approach since it tried show the
practical aspect of the law different from the legislations theoretical dimension. In order to
accomplish the objective of the study, the researchers use descriptive research design. The reason
for using such type research design is that the objective of the study which is Assessing the status
of the Ethiopian criminal sentencing law, can be achieved by describing each every data prevailed
in the study area.

1.7.2 Source and Types of Data

This Study relied on Both qualitative and quantitative data in order to achieve its objective. the
reason is that all sort of data which were used for the study included both numeric and none
numeric character. The study was based on primary and secondary data since in order attain the
objective of the study the researchers should have to refer current legislations, oral interview of
respondents, journals and commentaries.

5
 1.7.3 Primary Source of Data
The primary sources which were used for the study includes the opinion of relevant personnel from
respondents and first-hand legislation. First hand legislation includes the 2004 criminal code, the
2010 & 2013 criminal sentencing guidelines and decision of the kaffa zone high court. The
opinions of the relevant personnel were collected by using questionaries and interviews.

1.7.4 Secondary Source of Data

Secondary sources which were used for the study includes reference books, commentaries,
journals, unpublished journals, newspaper internet sources.

1.7.5 Sampling Technique and Sample Size

In order to accomplish the research, the researchers employed non-probability sampling methods
specifically, judgmental sampling technique. The reason for choosing judgmental sampling
technique is the need to approach the persons who can give information and ignore those who can
be un wiling full to do so. Using this type of sampling technique is cost effective because the
researchers didn’t have to do anything in-order to meet its sample respondents since the technique
by its very allow to meet person which are already designed by the researcher himself. By the
virtue of this sampling technique the researcher will select 30 sample respondents, the sample
respondents will include judges, public prosecutors and lawyers.

1.7.6 Data Analysis

The Data which had been collected by the researcher were analyzed by using both qualitative data
and quantitative data analysis techniques. The reason for choosing this analysis technique is that
all data that were collected by the researchers had qualitative and quantitative nature. In order to
analyze the quantitative data, the researchers used table, percentage and frequency.

1.8 Limitation of the Study

While conducting this study the researchers faced several limitations throughout the whole
process. Some of them may include in accessibility of secondary source /related literature review/
for documentary analysis and primary sources specially respondents lack of interest to give
accurate and reliable information expected from them. Some of them were not volunteer to tell-
accurately what they have been asked. Moreover, financial problem was one of the great problems
that the researcher faced and lack of personal experience related with research skill hindered the
researcher from attaining the intended goal.

6
1.9 Organization of the Paper
The study is organized in to four chapters. Chapter one will deal about introduction of the study,
background, Objectives of the study, statement of the problem, research question, scope of the
study, significance of the study, limitation of the study, the research methodology. Chapter two
will be about review of all related literatures written on the subject matter of the study. Chapter 3
will assess criminal sentencing law in Ethiopia: in case of kaffa zone. Finally, the last chapter will
specify the conclusion and recommendation about the issue described and presented by the study.

7
Chapter two

Review of related literature

2.1 Theories of Punishment

A number of theories revolve in and around two extreme theories namely: Retribution
(deontological) and utilitarian (consequentiality) theories of punishment. Crime is an inevitable
phenomenon in the society. Some individuals have deviant behavior and the ultimate stage of
deviant behavior leads to commit crimes. Hence, law abiding people and the community at large
could have been harmed by the wrong doer and they would have sought legal remedy. Thus, the
theory of retribution-imposed punishment for its own sake that was motivated by revenge and
reciprocity which was equivalent to the committed crime. The harshness of punishment in some
cases extended to death penalty. On the other hand, the utilitarian theory of deterrence and
reformation used punishment as a means to an end –the end being community protection by
prevention of crime. It is believed on this theory that punishment should not be necessary equal to
the committed crime12.

According to James A. Inciardi, “for more than 200 years, the public has alternated between
revulsion at inhuman sentencing practices and prison conditions (denounced as “barbaric” and”
uncivilized”) on the one hand and dissatisfaction with excessively compassionate treatment see as
“coddling criminals” on the other.”13 The fates of convicted criminals have repeatedly shifted
according to prevailing national values and current perceptions of danger and fear of crime.
Therefore, objectives of sentencing are based on six competing philosophies: retribution,
incapacity, deterrence, rehabilitation, restoration of victims‟ right, and all-inclusive theories14

12
Ethiopian criminal law Digest Part I & II, St. Mary‟s University College Faculty of Law, Addis Ababa, p.21.
13
James A. Inciardi, (1984), Criminal Justice, Seventh Edition, Harcourt, Inc.p.424-425
14
Robert M. Bohm and Keith N. Haley (2007), Introduction to Criminal Justice, fourth edition, McGraw Hill, p.32

8
2.1.1 Retribution Theory
Although there is no complete unanimity among retributive theorists, yet “all such theories try to
establish an essential link between punishment and moral wrongdoing”.15 The exponents of
retribution as the justification for punishment can be categorized into three: (i) those who hold to
the theory of retribution simpliciter (e.g. Kant and Hegel), (ii) those who hold to the theory of
retribution as a kind of revenge (lex talionis) (eg Code of Hammurabi of the 18th century BC, and
the Mosaic Code), and (iii) those who hold to retribution which can at the same time be reconciled
with some utilitarian ends (cf. St. Augustine, Aquinas, Devlin, etc).

According to Dejene Girma, “retribution is also known as retaliation or vengeance, punishment is

imposed as retaliatory measure on a criminal for the wrong done to the society.” 16To use a 200-
year-old definition once offered by a classical scholar Cesare Beccaria, retribution is an effort” to
make the punishment as analogous as possible to the nature of the crime “In modern terminology
retribution involves creating an equal or proportionate relationship between the offense and the
punishment-an effort to ensure that an offender’s punishment is commensurate not only with the
crime, but also with his or her moral blame worthiness and prior criminal record. Rather than the
biblical “eye for eye, tooth for tooth”, the philosophy of retribution typically reflects a desire for
proportionality- a sentencing structure in which the most heinous offenders receive the harshest
punishments and the lesser criminals receive lesser punishments17.

15
C.L.Ten 1987, Crime, Guilt, and Punishment, Clarendon Press, Oxford,p. 38
16
Dejene Girma, 2013, A Hand book on the Criminal Code of Ethiopia, Addis Ababa, Fareast Trading, Plc, p.152.
17
James A. Inciardi, (1984), Criminal Justice, Seventh Edition, Harcourt, Inc.p.424-425

9
2.1.2 Theory of incapacity
Incapacitation is simply the removal of dangerous persons from the community18.It also refers to
the “restraint “or” isolation” philosophy. Its goal is community protection rather than revenge. In
this case the society gets relief from possible danger from criminals as the convicts are either sent
to jail or forced to live in exile. Consequently, the community will get relief from further criminal
activity19. The punishment philosophy asserts that if our goals are crime prevention and
community protection, “the sanctions would have to be quite severe to be effective, regardless of
the offense, executions would have to be quite strain that can guarantee the elimination of future
offenses against the community”20. The other alternatives of incapacitation of the offender are
temporary imprisonment until the society makes sure that future crimes can’t be committed.
However, the prediction of not committing further crimes could not be certain. There is also an
economic dimension that should be taken into consideration. Isolation of offenders requires
construction of more prison facilities, additional cost of supporting an increasing number of
warden staff. Nevertheless, the use of isolation as premise for sentencing is a common current
practice in any legal system.

Criticism: “life imprisonment without a possibility for parole and death penalty are the forms of
restraint that will not guarantee the elimination of future offences against the community.”21

18
Ibid, p. 425
19
Ibid
20
Ibid 426
21
Andargachew Tesfaye (2004), the Crime Problem and Its Correction, Addis Ababa University Press.p.88

10
2.1.3 Deterrence Theory
Deterrence is a utilitarian theory of punishment. Utilitarianism is a moral theory that states that the
ultimate good of society is to achieve happiness or pleasure and to avoid pain.22 It is governed
mainly by the principle of utility, which judges conduct by its ability to increase happiness or
reduce pain.23 An action is morally reasonable and defensible if it produces "the greatest happiness
to the greatest number" of people.24 As a utilitarian theory, deterrence justifies punishment by its
ability to prevent future crime in society.25 The punishment of an offender, though unpleasant and
bringing unhappiness to him, is justified by its overall benefit of increasing societal happiness
through crime prevention.26The theorization of deterrence is mainly attributed to the early works
of philosophers such as Thomas Hobbes, Cesare Beccaria and Jeremy Bentham. Deterrence occurs
when a person refrains from an action because of the fear of the possible unpleasant consequences
of that action. It assumes that offenders or potential offenders will not commit further offences for
fear of being punished. To achieve this, the punishment must be sufficient to outweigh the profit
of the offence. Deterrence depends on the frightening effect of punishment emanating from the
risk of discovery and punishment outweighing the temptation to commit an offence. Deterrence
can be specific or general. Specific deterrence aims to discourage the punished offender from re-
offending by instilling fear in the offender of being punished again while general deterrence aims
at preventing potential offenders from committing crimes27.

22
Bykvist K Utilitarianism. (2010): A Guide for the Perplexed Continuum International London ,p.16-30
23
Bentham J. (1982), An Introduction to the Principles of Morals and Legislation (edited by Burns JH and Hart
HLA) Methuen London, p.111-112
24
Bentham J(1977), "A Comment on the Commentaries and a Fragment on Government" edited by Burns JH and
Hart, HLA in The Collected Works of Jeremy Bentham ,Oxford University Press London, 393
25
Marsh I, Cochrane J and Melville G Criminal Justice(2004): An Introduction to Philosophies, Theories and
Practice Routledge London,38
26
Hospers J Human Conduct (1961): An Introduction to the Problems of Ethics Thomson Learning New York
1961,454
27
Cavadino M and Dignan J(2002), The Penal System: An Introduction, SAGE London,p.34

11
2.1.4 Restoration of victim’s right theory
“Victims of crime and their survivors have generally been forgotten or neglected in criminal
justice.”28The victims did not get attention that whether their case is properly adjudicated or not.
This problem was originated due to the public nature of crimes, the government was considered as
the sole institution to frame the criminal charge, present the case before the court of law and give
recommendations to the final judgment on behalf of individuals. This was the major thinking of
criminal case handling so far. Consequently, judicial proceedings failed to bring together the
offenders‟ and the victims‟ in harmony. On the other hand, the case of restoration was often
practiced to civil law; it could help to create smooth relationship between the offender and the
victim as well as their families. As the result, the victims and their survivors cease to revenge
against the offender and the offenders family. It is a new concept in the criminal law to consider
the repentance of the offender that is expressed in action. Besides, the victims and their survivor
have a right to get compensation from the wrong doer through reconciliation and negotiation. Thus,
the victim‟s and the offender‟s relationship could be reinstated in their former positions through
the means of formal and informal justice system.29 The global victim‟s rights movement is
relatively new phenomenon. The principles of restorative justice have been applied to the study of
both criminal and civil sanctions. For example, the institutionalized practice of “written apology”
and “letter of forgiveness” is the Japanese criminal justice system that is designed to express
remorse and make restoration. By accepting the apology, the victim forgives the offender.” In all
cases of restorative justice, the goal is to restore both the individual parties and their community‟s
in the sense of wholeness30.

Criticism: Most of the crimes cannot be compensated, especially once the victim has passed away
at the crime is committed. The life of the deceased can’t be returned. As a result, the victims or
their relatives‟ and the criminal relationship may not be smoothed like in the previous position. In
addition, some crimes can’t be measured in the exact monetary value such as bodily injury and the
value of the deceased’s life, due to such reasons, victims or their family may not always get fair
compensation easily. Therefore, restoration of the victim can’t be effective in some condition

28
James A. Inciardi, (1984), Criminal Justice, Seventh Edition, Harcourt, Inc.p.424-425
29
Robert M. Bohm and Keith N. Haley (2007), Introduction to Criminal Justice, fourth edition, McGraw Hill, p.38.
30
Terance D. Miethe and Hong Lu (2005), Punishment: A Comparative Historical Respective, Cambridge, 2005
p.23

12
2.2 Principles of sentencing law

2.2.1 principle of legality

It is desirable that those who are entrusted with the administration of justice carry out their duties
within well-defined limits. Principle of legality aims at protecting individuals from such arbitrary
action as they must be exposed to, should it not be provided that the written law is the only source
of criminal law. It is deep-rooted in Latin maxim: " nulla poena sine lege " or " no crime without
pre-existent law, no punishment without pre - existent law (crime)." In its modern form, it means
that criminal liability and punishment can be based only on prior legislative enactment of a
prohibition that is expressed with adequate precision and clarity. The same principle is
incorporated under the FDRE Criminal Code. Hence, the principle of legality stated in the code
prohibits the court from treating as a crime and punishes any act or omission which is not
prohibited by law31. Criminal law within the meaning of Articles 2 and 3 includes the very
Criminal Code of 2005, and any other penal legislation (regulations and special laws of criminal
nature). Therefore, any act or omission which is not prohibited as a crime either by Criminal Code
of 2005, or other penal legislation is not a crime no matter what the act (omission) is repellent. The
principle of legality under Article 2 also clearly prohibits the court from imposing penalties or
measures other than those prescribed by law. This means that the person who committed a crime
may not be subject to punishment other than which is provided for by law with respect to the
offence committed. Any judgment given in accordance with the law must be enforced in the
manner provided for by law, since failure to do so amount to creating new penalties. The principle
also prohibits the creation of crimes by analogy. The view that any act deserving punishment ought
to be punished even in the absence of legal provision to this effect resulted in formulating the so-
called principles of analogy, which is directly contrary to the principle of legality. Pursuant to this
principle of analogy, the penal provision in force may apply to any similar or analogous act, which
is not the offence under the law. Otherwise, the legal provision may be extended to cases which
were not contemplated by law maker. Nevertheless, compliance with the principle of legality does
not result in the courts being, so to speak, enslaved by the provisions of the law. In other words,

31
Article 2 of the FDRE criminal code

13
principle of legality does not preclude a court from interpreting the law in cases of need. In order
not to misuse such power, the court should observe rules of interpretation32.

2.2.2 principle of respect for human dignity

This principle focuses on the type of sentences which ought to be permitted /excluded. To that end,
the UDHR of 1948 under Art.5 declares that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. Similar prohibitions are incorporated into binding
international and local conventions. To cite some: ICCPR, Art.7, Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment, Africa Charter, Art.5; European
Convention on Human Rights, Art. 3. The American Constitution and England Bill of Right are in
similar terms. Likewise, The FDRE Constitution declares the prohibition of cruel, inhuman,
degrading treatment or punishment. This provision not only prohibits inhuman treatment but also
stated the exceptions for which the prohibition is not applicable33. Similarly, the FDRE Criminal
Code stipulates that the penalties and measures shall always be in keeping with the respect due to
human dignity34. The main practical application has been argument against amputation, corporal
punishment, and death penalty. Accordingly, individuals have a right not to be stripped of their
essential human dignity. This argument is quite independent of the proportion between the offence
and punishment, but whether certain types of sentences should be excluded absolutely There is
historical change in the acceptance of some of the punishment like the above, tunica are regarded
as barbaric, and unacceptable in a humanitarian sense, as things which is wrong to do deliberately
to human being in the name of the state. Nevertheless, there is no objective or times less benchmark
of what is inhuman or degrading; it is culturally specific35.

32
Dejene Girma & Mekonnen Feleke. (2009). Sentencing and Execution Teaching Material, the Justice and Legal
System Research Institute, p. 13-15
33
Art.18 of FDRE Constitution
34
Art.87 of the FDRE Criminal Code
35
Dejene Girma & Mekonnen Feleke. (2009). Sentencing and Execution Teaching Material, the Justice and Legal
System Research Institute, p.16-17

14
2.2.3 principle of Consistency
Consistency in sentencing is clearly an important objective or grounds of intrinsic fairness and
because inconsistency is a major source of public criticism. However, consistency is a slippery
concept and it is in fact no guarantor or rationality or fairness. Cases which appear to be
superficially similar often turn out to contain important differences, and sentencing policy should
be flexible enough to reflect. There has traditionally been argument in favor of broad judicial
discretion and this is one of the reasons for wide principle of rigid US style numerical guidelines
have been so widely criticized. Offenders who committed similar crime with similar circumstance
must get similar penalty. The court should justify (give reasons) the facts of the case before them
necessitate the sentence they have selected. The principle of consistency should be taken into
account when the case is of co-offenders. However, there is no general rule that same sentence
must be passed on co – accused. So, the court must take into account the sentence imposed on co
– offender so that there is no justifiable sense of grievance arising from sentence disparity. Where
matters such as age, background and previous criminal history (and all other subjective
characteristics of the offender) differ significantly between co – offenders, the court is not required
to equate the sentence though it should articulate the reasons for any disparity in the sentence. As
between offenders generally, the principle of consistency remains issue of general objective in
sentencing. Since unanimity is a matter of importance, court should look for the previous
sentencing when they come across with similar case with similar circumstance but where
circumstance around the present and the previous case differ, the court is duty bound to impose
different sentencing36.

2.2.4 principle of proportionality

Proportionality of sentencing, on the other hand, deals with the prohibition of excessive, arbitrary
and capricious punishment by requiring the punishment to be proportionate to or not exceed the
gravity of the offence. Proportionality has become a buzzword with the advent of the human right
act, making it important to consider both the traditional "just deserts" meaning of the term & its
specific "human rights" meaning. The former traditionally entails that the severity of a sentence
should be commensurate with the seriousness of the offence and the culpability of the offenders.
The latter requires that, the ends pursued must be legitimate, i.e., necessary in democratic society,

36
Ibid p.19

15
and the means used to achieve those ends must be the least restrictive possible, and must not be
applied in a discriminatory way. The recommendation that severity of sentence should be
proportionate, not only to the seriousness of offence under sentence and the culpability of the
offender, but also to the offender’s antecedent criminal conduct, has been proved (…) to lead to
unfairness, discrimination, and unnecessary increases in prison population. For instance, in 2000,
the Australian government was strongly criticized by the UN Committee on Racial Discrimination
for the discriminatory effects on the Aboriginal population of its policy of increasing sentence for
persistent offenders. Hence, Law Reform Commission of New South Wales (Australia) once
recommended that proportionality of a sentence should only consider the seriousness of the offence
in question37.

2.2.5 principle of Transparency

Transparency is one of the elements of good governance. It plays an important role in combating
arbitrary disparities in sentencing. It is also human rights requirement. Judges must not only give
reasons for their choice of sentence; they must also explain the purpose of the sentence imposed
and state why it is the least restrictive means of achieving that purpose. This type of information
is crucial for the public is to be sufficiently informed and to be able to contribute to meaningful
debate on the purpose of sentencing. By the same token the FDRE Constitution imposes the
obligation on the organs of the government to make their action transparent 38. Hence this will
ensure the right of the accused to have his case heard and decided in public trial39.

2.2.6 Principle of Equality

Sentencing decision should treat offenders equally irrespective of their wealth, race color, sex, or
family status. In English law precedent there is a principle like this: ' offenders with wealth should
not be allowed to buy themselves out of prison by playing large fine or compensation' & there is
some statutory recognition of the principle of non-discrimination. This principle demands some
degree of uniformity of treatment for those who commit a crime against society, i.e., same
punishment and treatment for offenders committed the same crime under similar circumstances.
This principle needs no justification for it is unjust that people should be penalized at the

37
Ibid p. 20
38
Art.12 of the FDRE Constitution
39
Dejene Girma & Mekonnen Feleke. (2009). Sentencing and Execution Teaching Material, the Justice and Legal
System Research Institute, p.21

16
sentencing stage for any of these reasons. The principle of Equality before law is also tailored in
the FDRE Constitution as: "All persons are equal before the law and are entitled without any
discrimination to the equal chilot.wordpress.com 16 protections of the law. In this respect the law
shall guarantee to all persons equal and effective protection with out discrimination on grounds of
race, nation, nationality, or other social origin, colure, sex, language, religion, political or other
opinion, property birth, or other status40.” The Criminal Code embodies the same principle with
similar tone41. It also goes far to prohibit difference in treatment of criminals, except as provided
by the Code which are derived from immunities sanctioned by international and constitutional law,
or relate to the gravity of the crime or the degree of guilt, the age circumstances or special personal
characteristics of the criminal, and the legal danger which he represents42.

40
Art. 25 of Ibid
41
Art. 4 of the Criminal code
42
Dejene Girma & Mekonnen Feleke. (2009). Sentencing and Execution Teaching Material, the Justice and Legal
System Research Institute, p.15

17
 Chapter 3
Data interpretation, Analyzation and Discussion
3.1 demography of Respondents
Table :1 Age group of respondents

No. Age group Frequency Percentage

1 25-30 2 7%
2 31-40 3 10%
3 41-50 14 46%
4 51 and above 11 37%
5 Total 30 100%

According to the table 46% of respondents are grouped in the age group of 41-50. 37 % of
respondents grouped in the age group of 51 and above. 10% of respondents grouped in the age
group of 31-40 and 7% respondents grouped in the age group of 25 up to 30. Generally, most of
the respondents who cooperated for this study belongs to the age group of 41- 50.

Table: - 2 Sex of respondents

NO. Sex Frequency Percentage

1 Male 21 70%
2 Female 9 30%
3 Total 30 100%

According to the table 70 % of respondents who cooperated for this study were males .30 % of the
respondents who communicated for this study were females. Therefore, most of the respondents
in which the based were males.

18
Table 4: - profession

No Profession of respondents Frequency Percentage

1 Judges 12 40%
2 Public prosecutors 7 23%
3 Lawyers 6 20 %
4 Registrars 2 7%
5 Police officers 3 10%
6 Total 30 100%

This table stipulated that 40% of respondents were judges. 23% of respondents were public
prosecutors.20% of respondents were lawyers .7% of them were court registrars and 10% of the
respondents were police officers. So, most of the respondent who cooperated for the study are
judges.

Table 4: - work experience 2 with in their field

No. Year of work experience Frequency Percentage

1 1-3 years 3 10%
2 4-6 years 5 17%
3 7-10 years 12 40%
4 Above 10 years 10 33%
5 Total 30 100%

According to the table about 40 % of respondents have a worked for 7-10 years.33% of respondents
worked in their carrier above 10 year. 17% of respondents worked for 4-6 years in their field .10
% of respondents worked for 1-3 years in their respective field. Generally, most of the respondents
are highly experienced in their work had experience which ranges from 7-10 years.

19
3.2 Descriptive analysis of the principle of proportionality and fairness, and
predictability and consistency and of sentencing passed by the Kaffa high court.
Table 5: - proportionality and fairness of sentencing passed by Kaffa zone high court: -

None Question Answer Frequency Percentage

1 Are the criminal Yes 12 40%
sentencings passed
by kaffa zone high
court fulfill the
principle of No 18 60%
proportionality and
fairness

2 Total 30 100%

the table indicated that for the question whether the criminal sentencings passed in kaffa zone high
court fulfill the principle of proportionality and fairness, about 40 % of respondents gave positive
answer and 60 % respondents didn’t give positive response and stipulated negatively. Generally,
the conclusion is that most of respondent doesn’t believe the decisions given by the high court are
proportional and fair.

Besides this opinion, the economy and tax attorney of the kaffa zone said that there are instances
where the Kaffa zone high court criminal sentencings came out to be unfair and disproportionate.
Even though the situation is available in many cases, the worst-case scenario is observed in crimes
related with car accident. In these cases, mostly judges confuse advertent and in advertent
negligence. there were situations where advertent negligence was ruled and sentenced by the law
that governs inadvertent negligence43.this resembles with unfair and disproportionate punishment.

43
Interview with Ato Andualem Assefa tax and economy attorney of kaffa zone

20
Table 6: Consistency and predictability of sentencing passed by Kaffa zone high court:-

No. Question Answer Frequency Percentage

1 Are the criminal Yes 17 57%
sentencings passed
by kaffa zone high
court fulfill the
principle of No 13 43%
predictability and
consistency

2 Total 30 100%

the table shows that for the question whether the criminal sentencings passed in kaffa zone high
court fulfill the principle of consistency and predictability, about 57% of respondents gave positive
answer and 43% respondents didn’t give positive response and stipulated negatively. Generally,
the conclusion is that most of respondent believe that the decision given by the high court are
predictable and consistent.

Beside the opinion of the respondents the tax and economy attorney of kaffa zone said that there
has been a good vibe with regards to predictability and consistency of criminal sentencings passed
in Kaffa zone high court. But there are instances where the predictability and consistency of the
decisions of the court came in to question. This is observed when judges accept and reject the same
aggravating and extenuating circumstances on different cases that have nearly the same cause of
action without any valid reason44.

This can be inferred from the comparison of the two cases decided by the Kaffa zone high court.
These cases are file no. 22575 and file no. 22780. In these cases, the court failed to take consistent
decision with regards to accepting and rejecting the time of the offence as aggravating
circumstance. The offence was committed at morning 11:00 P.M in local time. In the first case the
time of the offence was accepted as one aggravating circumstance but in the latter the court didn’t

44
Ibid

21
accept the matter as aggravating circumstance. this is clear evidence for the existence
inconsistency in the decision of kaffa zone high court.

3.3 The FSC Sentencing guideline implementation in Kaffa zone high court
Table 7: - whether the judges pertinently follow the FSC guideline or not

No. Question Answer Frequency Percentage

1 Do the judges Yes 22 73%
pertinently follow
the sentencing
guidelines given
by the Federal No 8 27
supreme court?

2 Total 30 100%

The table shows that for the question whether the judges in Kaffa zone high court pertinently
follow the FSCSG 73% of respondents answered that yes, they validly adhere the guideline while
they announce criminal sentencing on criminals. In contrary 23% of respondents answered that
judges do not pertinently adhere the FSCSG while they are passing criminal sentencing. Generally,
most of the respondents stipulated that the judges in Kaffa zone high court pass criminal sentencing
in line with the guidelines passed by the Federal supreme court.

Beside this, the general attorney of kaffa zone said that most of the sentencing decisions passed by
Kaffa zone high court are based on the sentencing guideline of the federal supreme court. But there
are scenario’s where the judges made sentencing disparity deviating from the guidelines. Such
deviation of the guideline is observed specially in case of attempt and murder cases45.

45
Interview with Ato Tariku Garkisho

22
The tax and economy attorney said that there were no grave deviation from the guideline. But there
are instances where the judges apt to rule differently without any reasonable ground.

Table 8: - the challenges judges face in order to pass sentencing based on the FSC guideline
given by the court

NO. Challenges the judges face while using Frequency Frequency

FSCS guidelines
1 Balancing consistency and individual 14 47%
justice
2 Lack of skill 6 20%
3 Miss ruling of facts 7 23%
4 Prevalence of crimes which are not 3 10%
covered by the guideline
5 Total 30 100%

According to the table about 47% of respondents proclaimed that the challenge that judges face
while using FSCSG in announcing criminal sentencing is that the issue of balancing consistency
with individual justice. 23% of respondent asserted that judges miss ruling of cause of action one
challenge judges face while applying criminal sentencing guidelines. About 20% of respondents
said that the problems were associated with skill of the judges. Lastly, 10% respondents announced
the problem judges face while applying the guideline emanate from prevalence of crime which are
not covered by the guidelines. Generally, most of the respondents proclaimed that the problem that
the judges faced while applying the FSCSG is related to the issue of balancing consistency with
individual justice.

23
 3.4 Judicial freedom of judges at the time of passing criminal sentence

Table: - 9 The judicial freedom judges

No. Question Answer Frequency Percentage

1 Do the judges freely give sentencing to any No 10 33%
criminal case in kaffa zone high court
without any intervention or manipulation?
Yes 20 67%

2 Total 30 100%

According to the table 33% of respondents agree that the judges in Kaffa zone high court
pronounce criminal sentencing judgment without any intervention and manipulation.67% of
respondents proclaimed that the judges in kaffa zone high court experienced intervention and
manipulation while pronouncing criminal sentencing.

In addition to these opinions, the Kaffa zone general attorney said that due to the fact that the legal
framework and institutional designation of the country protect the judicial freedom of judges, it
can be said that judges are freely disposing criminal sentences46. But in contrary the Economy and
Tax attorney of kaffa zone said that there exist some kind of invisible hand that manipulate the
sentencing specially when the cases are linked with expropriation, public nuisance and cases
related with high public officials. One judge from the high courts ascertained the prevalence of
cases where judges are forced to raise and down sentencings without any justifiable grounds.

46
Ibid

24
Chapter four
Conclusion and recommendation
4.1 Conclusion
The practicability of the criminal sentencing law in Kaffa zone seems quite good but not escaped
from some constraint. According to the data gathered from key personnel the criminal sentencings
in kaffa zone are in line with the principle of predictability and consistency but there are situation
where violation of these principles were observed. when we come according to the study conducted
their problems on judge with regards to upholding the principle of fairness and proportionality
there are problem observed in the decision of the court. File no. 22575 and file no. 22780 evident
where sentencing disparity was observed. while judges applying the new FSG faced different
challenged that hindered or impeded the proper implementation of the guideline. According to the
study the, the issue of balancing individual justice with consistency, lack of training, crimes not
covered by the scale of the guideline are the main challenges that made the judges not to properly
implement the guideline properly. When we assess the issue of judicial freedom the study is
evident that there is a problem in properly applying article 78 of the constitution since the survey
depicted that judges are subject to intervention and manipulation.

4.2 Recommendation
In order to deal with the problem observed by the researchers the following recommended
measures to be taken by the relevant authority: -

➢ The federal Supreme Court shall appoint the responsible department that enables to follow
up, consistency and fairness, proportionality, and predictability of sentencing.
➢ Unspecified and permissive aggravating and extenuating circumstances in the criminal
code shall be specified and criteria should be set in the sentencing guidelines either to
accept or to reject them.
➢ Periodic evaluation or assessment of the implementation of sentencing shall be done.
➢ The government should prepare platforms where the judges and other legal actors will be
get enough training in order to enhance their skill

25
References
Laws

✓ The FDRE Criminal Code

✓ The FDRE sentencing guideline

Books

➢ Terance D. Miethe and Hong Lu (2005), Punishment: A Comparative Historical

Respective, Cambridge
➢ James A. Inciardi, (1984), Criminal Justice, Seventh Edition, Harcourt, Inc.
➢ Robert M. Bohm and Keith N. Haley (2007), Introduction to Criminal Justice, fourth
edition, McGraw Hill
➢ Ethiopian criminal law Digest Part I & II, St. Mary‟s University College Faculty of Law,
Addis Ababa
➢ James A. Inciardi, (1984), Criminal Justice, Seventh Edition, Harcourt
➢ Dejene Girma & Mekonnen Feleke. (2009). Sentencing and Execution Teaching
Material, the Justice and Legal System Research Institute
➢ Robert M. Bohm and Keith N. Haley (2007), Introduction to Criminal Justice, fourth
edition,
➢ McGraw Hill Bykvist K Utilitarianism. (2010): A Guide for the Perplexed Continuum
International London ,p.16-30
➢ Bentham J. (1982), An Introduction to the Principles of Morals and Legislation (edited by
Burns JH and Hart HLA) Methuen London, p.111-112
➢ Bentham J(1977), "A Comment on the Commentaries and a Fragment on Government"
edited by Burns JH and Hart, HLA in The Collected Works of Jeremy Bentham ,Oxford
University Press London, 393
➢ Marsh I, Cochrane J and Melville G Criminal Justice(2004): An Introduction to
Philosophies, Theories and Practice Routledge London,38
➢ Hospers J Human Conduct (1961): An Introduction to the Problems of Ethics Thomson
Learning New York 1961,454
➢ Cavadino M and Dignan J(2002), The Penal System: An Introduction, SAGE London

26
Researches

➢ J.C. Oleson (2017),Sentencing Theories, Practices, and Trends, research gate

➢ Ikenga K.E. Oraegbunam (2010), Some Basic Principles of Penal Jurisprudence: An
Analytical Approach, JILJ
➢ Seifu Ayenew (2014),Ethiopian sentencing guidelines and their application: A case study
in federal high courts

Unpublished Materials

➢ Mekasha Abera,‘‘የ ቅጣት አወሳሰን ወጥነነትና ትክክለኛነትን ለማረጋገጥ የ ቅጣት ማነዋል ዝግጅት ጥናትና የ
መፍትሄ አማራጮች", ( unpublished) at 25, at: https://www.abyssinialaw.com/codes-
commentaries-and-exlanatory-notes?download=1151:research-on-sentencing-guidline.

27
Appendix

COLLAGE OF SOCIAL SCIENCE AND HUMANITY

DEPARTMENT OF LAW

Questionnaire

This questionnaire is prepared by Bonga university law student in order to study criminal
sentencing in law Ethiopia: the case of kaffa zone. So, we politely ask the respondents to answer
the interview questions based their true perception so that the study would achieve its intended
objectives.

Instructions

➢ Do not write your name

➢ by reading all questions, carefully thick or “x” on the given box.

I. Part one: - Back ground of respondents

1. Sex: - male female
2. Educational status: - diploma degree (LLB)

LLM and above

3. Profession: - Lawyer public prosecutor

registral police officer Judge

4. Work experience: - 1 year 3-year 5 year and above

28
Part II Questions

1. Are the criminal sentencings given by kaffa zone high court fulfill the principle of
consistency and fairness, proportionality, and predictability?
Yes No

2. Do you remember cases where the judges failed to give criminal sentences deviating the
above principles?
Yes NO

3. Do the judges pertinently follow the sentencing guidelines given by the Federal supreme
court?

Yes No
4. How do you characterize the current working of the judges with regards to sentencing in
kaffa zone high court?

I. Well-mannered and based on skill

II. Affected by personal perception than reality
III. Moderated

5. What are the challenges faced by judges to implement the FSC sentencing guidelines in
kaffa zone high court?

………………………………………………………………………………………………………
………………………………………………………………………………………………………
………………………………………………………………………………………………………
………………………………………………………………………………………………………
………………………………………………………………………………………………………
………………………………………………………………………………………………………
………………………………………………………………………………………………………
………………………………………………………………………………………………………
6. Do the judges freely give sentencing to any criminal cases in kaffa zone high courts or
they experienced manipulation or intervention?

Yes No

7. Is there any situation when you faced experienced governmental pressure while you were
giving criminal sentence?
Yes No

29