UNIT-I

INTRODUCTION TO CRIMINAL LAW

“The criminal law represents the pathology of civilization.”
-Morris R. Cohen, Reason and Law 70 (1961)

Introduction:

Criminal Law is the body of law defining crimes against the community at large, regulating how
suspects are investigated, charged, and tried, and establishing punishments for convicted
criminals. Often the term ‘criminal law’ is used to include all that is involved in ‘the
administration of criminal justice’ in the broadest sense.
The criminal law identifies, defines and declares the conducts that it seeks to prevent and
prescribes the appropriate punishments for it.

Objectives:
The purpose of this chapter is to Help the students understand the concept of crime and its
transient nature, to define crime and distinguish it from other civil wrongs. The chapter also
discusses a brief outline of the historical development of the Criminal Law in Ethiopia.

Section 1: General Considerations:

1.1. The Place Of Criminal Law In Criminal Science:

“Crime” is an offence committed by an individual who is a basic unit of a society. Therefore,
study of crime i.e. Criminal Science” is a social study. The main aims of Criminal Science are:
1. To discover the causes of criminality,
2. To devise the most effective methods of reducing the amount of criminality,
3. To perfect the machinery for dealing with criminals.
Based on these three objectives, three main branches of Criminal Science have developed. They
are:

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1. Criminology: It is the study of crime and criminal punishment as social phenomena. This
branch of criminal science is concerned with causes of crimes and comprises of two different
branches.
a) Criminal Biology: This investigates causes of criminality, which may be found in the
mental or physical constitution of the delinquent himself such as hereditary tendencies
and physical defects.
b) Criminal Sociology: This deals with enquiries into the effects of environment as a
cause of criminality. This branch focuses on the objective factors like social, political and
economic conditions leading to criminality, also termed as criminal anthropology.

2. Criminal Policy or Penology: This branch of Criminal Science is concerned with limiting
harmful conduct in society. It makes use of the information provided by Criminology.
Therefore, the subjects of Criminal policy for investigation are:

a) The appropriate measures of social organization for preventing harmful activities,

b) The treatment to be given to those who have caused harm, whether the offenders are
to be given warnings, supervised probation, medical treatment, or more serious
deprivations of life or liberty, such as imprisonment or capital punishment.

This branch of study is also termed as ‘Penology’ and deals with treatment, prevention and
control of crimes.

3. Criminal Law: The Criminal Policies postulated by the above twin sister-branches i.e.
Criminology and Penology, are implemented through the instrumentality of ‘Criminal law’. In
other words, criminal policies are implemented through the agency of criminal law. The criminal
law decides the special sanctions appropriate in each case. These sanctions range from death
penalty through various kinds of degrees of deprivation of liberty, down to such measures as
medical treatment, supervision as in probation, fines and mere warnings (admonishment).

Branches of Criminal law: Criminal law in its wider sense consists of two branches.
a) Substantive Criminal Law,

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b) Adjective/Procedural Criminal law.

‘The Substantive Criminal law’ lays down the principles of criminal liability, defines offences
and prescribes punishments for the same. The Ethiopian Criminal Code does this business.
However, the substantive criminal law by its very nature cannot be self-operative.
It is for this reason that ‘Procedural Criminal law’ has been designed to look after the process of
the administration and enforcement of the substantive criminal law. In the absence of procedural
criminal Law, the substantive criminal Law would be almost worthless.
The scope of our study i.e. ‘Criminal law’ falls under the branch of substantive criminal Law.

1.2. Nature and Scope of Criminal Law:

Laws can be classified into different branches. For instance, Civil law spells out the duties that
exist between persons or between citizens and their government, excluding the duty not to
commit crimes, Contract law for example is a part of civil law. The whole body of tort law or
the law relating to Extra Contractual Liability, which deals with the infringement by one person
on the legally recognized right of another, is also an area of civil law. Criminal law has to do
with crimes, which are different from other wrongful acts such as torts and breaches of contract.
The distinct nature of Criminal Law can be understood by defining some of its unique features.
the whole body of criminal law to be efficient must have four important elements, viz.,
 Politically,
 Specificity,
 Uniformity, and
 Penal sanction

Politically implies that only the violations of rules made by the state are regarded as crimes.
Specificity of criminal law connotes that it strictly defines the act to be treated as crime. In other
words, the provisions of criminal law should be stated in specific terms. Uniformity of criminal
law implies its uniform application to all alike without any discrimination, thus imparting even-
handed justice to all alike. The idea is to eliminate judicial discretion in the field of
administration of criminal justice. It may, however, be noted that the recent legislations provide

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scope for more and more judicial discretion through judicial equity to attain criminal’s
reformation which is the ultimate goal of criminal justice. Finally, it is through ‘Penal sanctions’
imposed under the criminal law that the members of society are deterred from committing
crimes. It is, therefore, obvious that no law can be effective without adequate penal sanctions.

1.3. General Objectives of Criminal Law:

The objectives of Criminal law are the protection of persons and property, the deterrence of
criminal behavior, the punishment of criminal activity and rehabilitation of the criminal.

a. Protection of Persons and Property:

Safety and a sense of security are the most important things for the survival of any society.
Safety of a society includes personal safety i.e. safety of life and liberty and safety of property.
To ensure safety there is the necessity of maintaining peace and order. This is possible only by
an effective penal system, which is strong enough to deal with the violators of the law and enable
the people to live peacefully and without fear of injury to their lives and property.
Thus, the prime objective of criminal law is protection of the public by maintenance of law and
order.
b. Deterrence of Criminal Behavior:

A “deterrent” is a danger, difficulty or other consideration that stops or prevents a person from
acting. The presumption inherent in criminal law is that if we make the punishment sufficiently
harsh, persons who might do something criminal are prevented from doing so because they fear
punishment. If enough people fear punishment, there will be considerable reduction in criminal
activity.
c. Punishment of Criminal Activity:
Since we will most likely be unable to deter all criminal activity, our laws accept that a certain
level of criminal activity will exist in society. Accordingly, we punish criminal activity for
punishment’s sake. If a criminal takes something without paying for it or injures other without a
justification, the criminal law makes that individual pay for it through deprivation of liberty for a
period of time.

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d. Rehabilitation of the Criminal:

Once convicted, a criminal will begin to serve a sentence in a prison. But that is not where our
criminal justice system ends. Our government has designed various programs to educate and
train criminals in legitimate occupations during the period of incarceration. Upon release,
therefore, there should be no reason to return to a life of crime. Sometimes a sentence is
suspended (Arts. 190-210 of the Criminal Code); that is, it is not put into effect. In such cases,
the court supervises the individuals’ activities to ensure that they have learned from their
mistakes.

The specific purpose and function of Criminal Law are clearly stated in Art. 1 of the Criminal
Code of the Federal Democratic Republic of Ethiopia, 2004. Art. 1. Para 1 sets out the purpose
of criminal law (Code) as follows:

“The purpose of the Criminal Code of Federal Democratic Republic of Ethiopia is to ensure
order, peace and the security of the state, its peoples, and its inhabitants for the public good”.
The second paragraph of Art. 1 proceeds to state the type of activities it aims to take up in order
to achieve the purpose mentioned in the first para. Art. 1 Para 2 lays down that:
“It aims at the prevention of crimes by giving due notice of the crimes and penalties
prescribed by law and should this be ineffective by providing for punishment of criminals
in order to deter them from committing another crime and make them a lesson to others,
or by providing for their reform and measures to prevent the commission of further
crimes.”
1.4. Criminal Law, Private law and Morality-Distinguished:
For a proper appreciation of the distinction between criminal law, civil law and morality, it is
necessary to understand the “concept of wrongs” and their classification.
A wrong is an act forbidden by the society. In other words, it is a violation of rules, which are
accepted by the society. Society prohibits certain activities basing on the general conscience of
the society, which is found in the values and norms of the society. The concept of morality
explains the values of a particular society. This means that a given society declares certain acts,

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which offend the moral conscience of that society as forbidden. These forbidden acts can be
described as moral wrongs. However, all moral wrongs are not wrongs in the legal sense.

Since all violations of law cannot be characterized as crimes, there is a necessity to identify the
particular class of violations or forbidden acts or wrongs, to understand the concept of crime.
Therefore, we shall proceed to broadly classify the body of wrongs.

Classification of Wrongs:
Since all violations of law cannot be characterized as crimes, there is a necessity to identify the
particular class of violations or forbidden acts or wrongs for the purpose of defining what ‘crime’
is.
Wrongs

(Acts forbidden by the Society)

Moral wrongs Legal Wrongs

(Interference of law is considered (where the interference of law is necessary)
Unnecessary)

Civil wrongs Criminal wrongs

(Law interferes at the instance of
The injured party
(State as a matter of right interferes
in most of the cases)

 Moral wrong:
This is a wider term including a wide range of reprehensible acts, which tend to reduce human
happiness. There is a long list of such acts including ingratitude, hard-heartedness, absence of
natural love and affection, habitual idleness, sensuality, pride and all such sinful thoughts. Such

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acts are called wrongs and are looked upon with disapprobation. The evil tendencies of these
anti-social acts widely differ in degree and scope. Some of these wrongs such as lies, refusal to
give a morsel of food to save a fellow human being, omission on the part of a swimmer to rescue
a man from drowning, etc., are not considered sufficiently serious for the notice of law and are
merely disapproved. These acts are considered as moral or ethical wrongs and are checked to a
great extent by social and religious laws. Sinful thoughts and dispositions of mind might be the
subject of confession and penance but not of criminal proceeding.

 Legal Wrong:

The category of wrongs such as nuisance, deceit, libel (defamation in visual form) robbery,
murder, rape, kidnapping, etc., are considered to be sufficiently serious for legal action.
The state may respond to any of such acts in two different ways:-
(1) Where the state takes action against the wrong-doer at the instance of the injured
party, it is called the civil wrong, and
(2) Where the state by itself proceeds against the wrong-doer, the wrong is referred to as
criminal wrong.

o Civil Wrong:
Where the magnitude of injury is supposed to be more concentrated on the individual, the state,
at the instance of the injured individual or the group, directs the wrong doer to compensate the
injured in terms of money as in the case of deceit, libel, nuisance, negligence, etc. This type of
wrong is called civil wrong or Tort, for which civil remedy is open to the injured.

o Criminal Wrong:
Where the gravity of the injury is more directed to the public at large (including the specific
victim), the state by itself can take a direct action against the wrong-doer. In this instance public
condemnation or provision for compensation is ineffective as in the case of moral or civil wrong.
Wrongs, like dacoit, murder, kidnapping, sedition, treason and the like, disturb the very fabric of
law and order and jeopardize the state’s existence or create a wide spread panic. Therefore, the
state stresses the necessity of punishing the wrong-doer rather than concerning itself with the

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question of payment of compensation to the injured party by the wrong-doer. This category of
wrongs is called as “public wrongs” or “crimes” for which criminal proceedings are instituted by
the state and the culprit is punished.

 Relation between Morality and Criminal Law:

Though morality and law can be precisely distinguished, they are not totally distinct phenomena.
i. They are related to each other in that they both aim at maintaining social order.
ii. There is a category of wrongs towards which law and morality react with common
hatred. They are offences like murder, rape, arson, robbery, theft, etc. Law and morals
powerfully support and greatly intensify each other in this matter.
iii. Everything that is regarded as enhancing the moral guilt of a particular offence is
recognized as a reason for increasing the severity of the punishment awarded to it.

Sir Stephen year stated, “The sentence of the law is to the moral sentiment of the public in
relation to any offence”.

Review Questions:
1. Briefly discuss the scope of Criminal Law in the field of Criminal Science.
2. What are the main objectives of criminal law?
3. Explain the purpose and functions of Criminal Law in terms of the Revises Criminal
Code of 2004.
4. Explain the relationship between morality and criminality.

Brain Storming!
1. There were many people standing on the bank of the river Blue Nile. Among them there were
several people who knew swimming. Suddenly, a woman fell in to the water and started to
scream for help. None of the onlookers made a move to help her. In front of all of those people
the woman drowned and died. Answer the following Questions:
a. Did any one of the people standing on the bank of the river have duty to save the woman from
drowning?

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 b. If at all they committed a wrong, what kind of wrong was it? Can you prosecute any of those
people for the death of the woman?
2. Can the moral duties make legal duties?

Section 2: The Concept of Crime:

2.1. Crime is a Deceiving Concept:

There are no easy explanations for the phenomena collectively called crime. Crime is deceiving
concept because it covers an enormous range of human behavior. Crime may be associated in
the public mind with pick-pocketing, robberies, house-breakings, and riots, but crime is also a
businessman placing bribe to win a city contract. It is quiet a student suddenly a rifle to the top of
a university tower and begins shooting at those below.
Crime is often mistakenly thought of as the vice of the few. It is not. It is everywhere in the
society. It is in the bed room of a married couple where wife battering and marital rape happen,
among the family members where child abuse and incest happen on the road where eve teasing
and cheating happen, at work place where a variety of criminal behavior is found including abuse
of power, corruption and sexual harassment.
Therefore, trying to find a single comprehensive answer to “the crime problem” is, like trying to
lump together measles and schizophrenia, or lung cancer and a broken leg.

The concept of crime has always been dependent on public opinion. In fact “law” itself reflects
public opinion of the time. Obviously, every society formulates certain rules to regulate the
behavior of its members, the violation of which is forbidden. However, the problem arises as to
what acts should be forbidden, or what acts should be selected for punishment by the society or
the state, in other words what acts should be declared as crime.
According to Terence Morris, “Crime is what society says is crime by establishing that an act is
a violation of the criminal law. Without law there can be no crime at all, although there may be
moral indignation which results in law being enacted.”
But all violations of law are not crimes. Therefore, crime is an act which both forbidden by law
and the moral sentiments of the society.

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According to Wechsler, “The purpose of penal law is to express the social condemnation of
forbidden conduct, buttressed by sanctions calculated to prevent it”. To understand this
explanation of Penal law three questions have to be answered:
1. What kind of conduct is ‘forbidden’?
2. What kind of ‘formal social condemnation’ is considered appropriate to prevent such
conduct?
3. What kinds of ‘sanctions' are considered as best calculated to prevent officially out lawed
conduct?

 Forbidden Conduct:

The concept of forbidden conduct is not a static one; it changes with the change of social norms.
The very definition and concept of crime is not only according to the values of a particular group
and society, its ideals, faith, religious attitudes, customs, traditions and taboos but also according
to the form of government, political and economic structure of society and a number of other
factors. For instance, what is a sex crime in India and Eastern countries may be a sweet heart
virtue in West and Scandinavian countries. What is an offence against property in a capitalist
culture may be a lawful way of living in a socialist society. What is permissible in a free and
affluent society may be a pernicious vice in a conservative set up.

The notion about crime also changes with time. What is an offence today may not be an offence
tomorrow and what has not been an offence till yesterday may be declared a crime to day. For
example, polygamy, till the passing of the legislation prohibiting a man from marrying again
during the subsistence of the first marriage, marrying more than one wife was no crime. Now it
is a punishable crime under the Criminal Code. Another example is “abortion”. Forcibly
aborting the fetus from the womb of the mother for reasons whatsoever was considered as a great
sin against the humanity by all societies till recent past. Now, with the advancement of medical
sciences termination of pregnancy on medical grounds has been legalized and approved by many
though not all.

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Thus, the concept of crime is ever changing. What was not crime yesterday may be a crime
today and what is a crime today may not remain a crime tomorrow. Therefore, social changes
affect the criminal law in many ways. Such as:
 Through changes in structure of society, especially in its transition from rural self-
contained and relatively sparsely populated to a highly urbanized and industrial pattern.
 Through changes in the predominant moral and social philosophy.
 Through developments in science especially in Biology and Medicine.

 Impact of Social Change on the Law of Crimes:

Criminal offences dealing with protection of life and liberty have essentially remained
unchanged throughout all ages all over the civilized world. Only certain crimes against human
body like abortion and sexual crimes took new forms due to changes in the attitude of the society
towards such conduct.
The crimes against property have undergone a lot of profound changes mainly as a result of
transformation of a primitive agricultural society into a commercial or industrial society. The
original crime ‘theft’ has been widened to include embezzlement, fraudulent conversion that is
designated as “White Collar Crimes”. The concept of property has widened including not only
physical things but also varieties of other assets i.e. even the things which are not capable of
being taken away physically. These include electricity, shareholders claims, Copyrights, etc.,
which have become subjects of such crimes.

2.2. Crime is A Multidimensional Problem:

Crime is not just the responsibility of the police, the courts, and the prisons. Crime cannot be
controlled without the active support of individual private citizens, schools, businesses, and labor
unions. This is so because crime has its effects on everyone-not just the criminal and his victim.
The fear of crime has affected basic patterns of life of people. People in society are in need of an
efficient system that is capable of checking the incidence of crime in the society so that they can
feel a sense of safety and security which is essential for a peaceful living. Therefore, the problem
of crime has been the concern of more than the law enforcement machinery.
Clearly, then, crime has many dimensions.

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2.3 Definition of Crime:
The transient nature of crime makes it very difficult to derive any precise definition of the term.
In spite of the attempts made by various jurists, a satisfactory definition of crime has not been
achieved.

 Literal Meaning of Crime:

In common parlance the word crime is applied to those acts that go against social order and are
worthy of serious condemnation.

 General Meaning of Crime:

The Oxford English Dictionary defines crime as “an act punishable by law as forbidden by
statute or injurious to public welfare”. It is a very wide definition including many things in the
present day complex society.
Though there is no precise definition for crime, we can still have an understanding of the word
by examining different definitions put forward by different jurists.

 Crime is a “Public Wrong”—Blackstone:

Blackstone, (1968) has defined crime as “an act committed or omitted in violation of a public
law either forbidding or commanding it”. Thus, according to Blackstone crime is an act in
violation of public law. But what is ‘public law’? It has several accepted meanings. According
to Austin, public law is identical with “Constitutional law”. This being so, the crime would then
mean an act done in violation of Constitutional law. The definition would thus cover only
political crimes namely crimes against the state, and crimes like arbitrary deprivation of life,
personal liberty and property, leaving aside a vast area of other criminal behavior.
Thus it may be said that, whatever meaning we attach to the expression “public law”, the
definition of Blackstone proves unsatisfactory.

 CRIME is A “Moral wrong” – Stephen:

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According to Stephen, crime is “an act forbidden by law and which is at the same time revolting
to the moral sentiments of the society”. Defining crime, as something against the moral
sentiments cannot be accepted because there are acts though not immoral, classified as highly
criminal, e.g., Treason i.e. ‘Anything done to displace the governing body of state.’ Treason is
graded as a crime in the highest degree and considered as a heinous crime by all Penal Codes.
This is not because the moral sentiments of the society are being affected but for the security and
stability of the government. Similarly, there are acts, which are highly immoral but not criminal.
For example, an expert swimmer stands by the side of a river and sees a child drowning in the
river and makes no effort to save the child and the child dies by drowning. His act may be
highly immoral but it is neither a criminal nor a civil wrong.
 Crime is a “Creation of Government Policy”:

‘Russell’ has rightly observed that, “to define crime is a task which has so far not been
satisfactorily accomplished by any writer. In fact, criminal offences are basically the creation of
a criminal policy adopted from time to time by those sections of the community who are
powerful or astute enough to safeguard their own security and comfort by causing sovereign
power in the state to repress conduct which they feel may endanger their position”.
Therefore, Kenny, opined that, so long as crimes continue to be created by the government
policy, it was difficult to give a true definition of the nature of crime. Hence, he resorted to
broadly describing a crime as he realized that it is nearly impossible to give a scientific definition
of crime.

 Crime Is A “Legal Wrong”:

Since no satisfactory definition of crime acceptable and applicable to all situations could be
derived, penal statutes define, specifically, different criminal behaviors, which they purport to
check. Even the Criminal Code of FDRE, 2005, which has codified the great bulk of the
criminal law of the country, does not give any standard definition of crime. Art. 23(1) simply
states that,
“A crime is an act which is prohibited and made punishable by law.

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 In this Code, an act consists of the commission of what is prohibited or omission of
what is prescribed by law.”

2.4. ‘Crime’ Distinguished From ‘Civil Wrongs’:

the following are some more important legal aspects which distinguish these legal wrongs:

1. Nature of wrong:
Crime is a public wrong i.e. a harm done against the society. A ‘tort’ is a private wrong
committed against an individual generally or the public in a given locality. A ‘breach of
contract’ is committed when any term or condition of an agreement enforceable by law is
violated by any one of the parties to the agreement. Therefore, this too is a private wrong
committed against a specific individual.

2. Origin and Nature of the Duty:

Under criminal law the duty is towards the whole world and it arises on account of the
statutory enactments. In case of torts the duty is towards the public generally. Duty either
arises on the basis of statutory enactments (Art.2035ECC) or on the basis of general
responsibility towards the society and it is independent of any personal obligation under a
contract. Whereas, in case of breach of contract the duty is fixed as a result of contractual
relationship of the parties and the duty is specifically towards the contracting party. The
duty is breached as the result of failure to perform contractual obligation.

3. Consent of the Victim:

Consent of the victim to the injury caused is a qualified defense in criminal law. (Art 70
Criminal Code). In torts, consent of the plaintiff to the alleged injury nullifies right to
remedies. A contract it is founded upon consent. Therefore, if there is consent to the
breach of any term or condition of the contract, the plaintiff forgoes his right to claim the
remedies.

4. The Element of Intention:

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 Intention is an essential element of crime (Art.57 and 58 of Criminal Code). Intention
may form one of the ingredients of tort but not an essential precondition for the Tortious
liability. In an action for breach of contract whether the breach was intentional, is an
irrelevant question.

5. The Element of Negligence:

Negligence attended with criminal lack of foresight amounts to a crime (Art.59 Criminal
Code). Mere negligence may amount to a tort (Art.2029 ECC). There is no question of
negligence in an action for breach of the obligation arising out of a contract.

6. Relevancy of Motive:
Motive may be a factor for consideration in deciding the quantum of punishment in
criminal liability. Motive is taken into consideration in deciding tortious liability. Motive
is irrelevant (1717 ECC) in an action for breach of contract. A breach is a breach with
whatever motive it was committed.
7. Initiation of Legal Proceedings:
Criminal proceedings are conducted in the name of the state. The state steps into the
shoes of the victim as the protector of interests of its inhabitants. In case of the other two
civil wrongs, it is the injured party that brings the action against the wrong-doer.
8. Remedies Available:
The criminal is punished by the state. The punishments may range from fine,
compensation through imprisonment of different kinds to capital punishment. In torts the
remedies available are damages, compensation, restitution and injunction. For breach of
contract cancellation of contract, damages, specific performance and forced performance
of contract are the available remedies.

All these distinctions show a difference in the legal proceedings, which are taken upon the
commission of a wrong. But they do not indicate any essential intrinsic difference in the nature
of ‘crimes’ and ‘torts’. Sometimes the same injury such as negligence, defamation, amulet etc,
may fall under both the categories. Therefore, Kenny (year) rightly observes that, “in a way there
is no distinction between crime and tort in as much as a tort harms an individual, whereas crime

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is supposed to harm a society. But then a society is made up of individuals, harm to an
individual is ultimately harm to the society”. .
Section 3. The Development of Criminal Law of Ethiopia
3.1. Historical Background:

The history of Ethiopian Criminal law reveals the following important legislations incorporating
the Criminal law of the country before the enactment of the existing Criminal Code of FDRE,
2005.
A. The Fewuse Menfessawi,
B. The Fetha Negest,
C. The Ethiopian Penal Code, 1930.
D. The Penal Code of the Empire of Ethiopia, 1957.
E. The 1974 Revolution and Criminal Law
F. Special Penal Code of 1981

A. The Fewuse Menfessawi (The Canonical Penance):

The first attempt to compile the law was made by the emperor zar’a Ya’equob (r.1434- 1468).
Desiring to govern his realm by a written law rather than by amorphous customary law and oral
tradition, the emperor ordered distinguished Ethiopian Orthodox Church Scholars to compile an
authoritative written law. The compilation had 62 articles mainly on criminal matters. Since this
was far less than comprehensive, it was not able to resolve many of the legal problems that arose
during that period.

B. The Fetha Negest (The Law of the Kings):

The failure of the Fewuse Menfessawi led to the next codification by the same Emperor Za’ra
Ya’eqob. The Fetha Negest is considered a better legal compilation.
As highlighted by Graven, Fetha Negest included the following important criminal law
principles:
 those concerning “intention” and “negligence”,
 relating to the proportion between the fault and sanction,

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  the individualization of punishment,
 the forgiveness and redemption of offenders, and
 The sharing of guilt case of fighting etc.

These solutions in case of fighting etc. are most current, familiar and understandable situations
for the people.
The Fetha Negest was formally incorporated into the Ethiopian legal system in 1908 by Emperor
Menelik II. It can be said that in most cases, the Fetha Negest has attempted to incorporate the
most suitable legal principles, which could be conceived in the epoch of its emergence.
However, it suffered from the following drawbacks:
 It lacked the systematization and other characteristics of modern codes,
 Neither the ‘specific’ is differentiated from the ‘ general’ nor the ‘exception’ from the
‘rule’,
 Aggravating and extenuating circumstances were not clearly provided for,
 In general, the arrangement of the provisions is so haphazard that it is hard to locate
the most relevant provision ,and
 The Fetha Negest was accessible and understandable only to those who continuously
studied it i.e. the clergy.
The criminal provisions of the Fetha Negest were applied in Ethiopia until they were replaced by
the Penal Code.

C. The Ethiopian Penal Code of 1930:

The Penal Code of 1930 reflects the norms and values of the old absolutist monarchy of the
generation of Emperor Menelik II and Emperor Zewditu (i.e. the era between 1889 and 1930). It
was also drawn up in a less systematic and clear manner and did not follow the rules of a modern
codification process.
The main attributes of the Code were as follows:
 The crimes and respective punishments were defined in exact fashion, and
 The penalties were considerably softened and improved by setting the fines in
proportion to the then economic and monetary situations of Ethiopia.

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  The Code under its Special Part protected the three great classic categories of
interests. These were:
1. The state and Community,
2. Persons, and
3. Property.

Provisions of “Petty Offences” were incorporated towards the end of the code .The sources of the
Penal Code of 1930 seem to have been the Fetha Negest and the Siamese Penal Code and the
Penal Code of the French Indo-China of the time. The drafter of the Code is believed to have
been a Frenchman. The Penal Code of 1930 was in force until it was repealed and replaced by
the 1957 Penal Code of Ethiopia.
D. The Ethiopian Penal Code, 1957:
When the necessity was felt for transformation of legal system in the second half of the 20
century, the modern codification process was initiated. The task of drafting a new comprehensive
penal code was entrusted to Jean Graven, a Swiss jurist who at that time had been the Dean of
Faculty of Law and President of the Court of Cassation in Geneva, Switzerland.

The new code was intended to affect national unity and to provide for the progressive
development of Ethiopia. On some points, however, compromises had to be made. Some were
the following:

 Collective Punishment: According to customary law, where offences had been

committed by one or several persons, it was found impossible to ascertain which of the
persons involved was the criminal, the court could, where equity so required, order ‘the
damage’ to be made good jointly by the group of persons who could have caused it and
among whom the persons who caused the damage were certain to be found.

As this traditional practice seemed not be in line with rule of law and human rights, the
compromise formula that was reached after a long debate between the foreign experts and
the Ethiopian members of the codification commission was that, ‘where an offence is

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 committed by a group of persons, the persons who proved to have taken no part in the
commission of the offence shall not be punished.’

 Mutilation of Human Body As Punishment-Abolished: According to the old practice,

habitual offenders were punished by mutilating the human body so as to give it the
maximum deterrent effect. There was a general consensus not to incorporate this form of
punishment. However, flogging was to be inflicted on such offenders provided that it was
medically ascertained that the life of the offender would not be endangered.

 ‘Presumption of Innocence’- Introduced: In the past, the accused was required to

prove his innocence. In modern penal legislation, however, the generally accepted
principle is that the accused enjoys the presumption of innocence, according to which the
burden of introducing evidence to prove the guilt of the accused is on the Prosecution.
This is opposed to the previous principle of “presumption of guilt”. In addition to this,
accused has the right to produce defense witnesses.

 Rules Applicable to Young Offenders: In the past, all offenders who were thought to
have the capacity to discriminate between what is good and what is bad were brought
before the regular courts. In the modern penal law, on the other hand infants are
completely exonerated from criminal provisions. Thus, young persons (9-15) were not
subjected to the ordinary penalties applicable to adults nor should they be kept in custody
with adult offenders. For purposes of the criminal law, the age of majority for young
persons is 16 years.

 Probation and Suspension of Sentences: In the past all forms of sentences were
executed. Present-day penal legislation provides that certain offenders may, under
defined circumstances, be granted release on probation or the sentence may be suspended
for a fixed time. Even after the execution of a sentence of imprisonment, one may be
granted a reduction of the term which one is required to serve. In accordance with the
rationale of modern principles of criminal law, the Ethiopian Penal Code aims at not

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 punishing the offender, but at rehabilitating and educating him. As a result, it provides
ample opportunities for probation and suspension of sentences.

 The Personal Nature of Criminal Punishments and Measures: If a convicted person

died before the execution of a sentence, there was, according to customary laws, the
possibility of proceeding against his property or the property of his next of kin. This was
not retained in the Penal Code of 1957. The principle is that, ‘crime is personal to the one
who is found to have committed it’, it is thus an innovation made in the present criminal
law.

 The Punishment for Burning of Crops (Arson): since Ethiopian society is

predominantly an agricultural society, severe penalties are prescribed for offences
relating to or committed on agricultural products. Recognizing this deep-seated value,
burning of crops (arson) entailed more severe penalties than other comparable crimes
provided in the new penal code. In addition to the above matters, drafter of the Code,
Jean Graven, also pinpointed the following areas where new and old ideas have been
reconciled:

 Capital punishment and corporal punishment (flogging) were maintained but with
all the necessary precautions as to the instance of application and the conditions
of administration.
 Pecuniary punishments particularly confiscation of property were made to be
applicable in limited instances of serious crimes against the sovereign and the
state
 The principle of collective responsibility for certain crimes involving tribes or
anonymous criminals were made to rest on customary practices which had their
own justification.
 The severe provisions on abduction and enslavement and the flexibility one sees
with regard to adultery, concubine and illicit damage to property by stray animals
of others are reflections of the changing modes of life of Ethiopia. In the words of
the drafter while enacting the Penal Code :

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 “…the Ethiopian legislator has made every effort to construct a complete edifice,
one maison mouvelle… where one can find order and peace security and
progress, united in a single whole.”

Thus, the historical objective behind the enactment of the Penal Code of 1957 was to let it serve
as a unifying force and as a machinery to enhance future development of the country the Penal
Code of Ethiopia was promulgated on July 23, 1957 and came into force on May 5, 1958, and
was in force until May 8th 2005.

E. The 1974 Revolution and Criminal Law:

Following the 1974 revolution, a "revolutionary" system of neighborhood justice emerged. It was
difficult to distinguish between criminal acts and political offenses according to the definitions
adopted in post-1974 revisions of the Penal Code. In November 1974, a proclamation which
introduced Martial Law, was introduced. The martial law set up a system of military tribunals
empowered to impose the death penalty or long prison terms for several political offenses. The
Proclamation applied the law retroactively to the old regime's officials. The revolutionary
government these officials responsibility for famine deaths, corruption, and mal-administration.
Special three-member military tribunals sat in Addis Ababa and in each of the country's fourteen
administrative regions.

In July 1976, the government amended the Penal Code of 1957 to institute the death penalty for
"anti-revolutionary activities" and “economic crimes”. Investigation of political crimes came
under the overall direction of the Revolutionary Operations Coordinating Committee in each
awraja. In political cases, the courts waived search warrants required by the Criminal Procedure
Code. The government transferred jurisdiction from the military tribunals to kebele and peasant
association tribunals. Political trials constituted the main business of these tribunals until 1978.
F. Special Penal Code of 1981:
In 1981, the Revised Special Penal Code replaced the Special Penal Code. This amended Code
included offenses against the government and the head of state, such as crimes against the state's
independence and territorial integrity, armed uprising, and commission of "counterrevolutionary"

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acts. The 1981 amendment also included breach of trust by public officials and economic
offenses, grain hoarding, illegal currency transactions, and corruption; and abuse of authority,
including "improper or brutal" treatment of a prisoner, unlawful detention of a prisoner, and
creating or failing to control famine. The Amended Special Penal Code also abolished the
Special Military Courts. The Code created new Special Courts to try offenses under the
Amended Special Penal Code. Special Courts consisted of three civilian judges and applied the
existing Criminal and Civil Procedure Codes. Defendants had the right to legal representation
and to appeal to a Special Appeal Court.

3. 2.The Criminal Code of the Federal Democratic Republic of Ethiopia, 2005

Proclamation No. 414/ 2004

The 1957 Penal Code of Ethiopia, was on 9th May of 2005, and a new Criminal Code was
brought into enforcement. The factors that necessitated the revision of the Penal Law of Ethiopia
are as follows:

1. To Incorporate the Modern Legal Concepts: The important phenomena that have been
recognized in the Country in the recent past are:
 The equality between religions, nations, nationalities and peoples,
 The democratic rights and freedoms of citizens and residents,
 The Human rights,
 The rights of social groups like women and Children.

2. To Fill in the Lacunae: Some such areas are:

 The High Jacking of aircraft,
 Money laundering,
 Crimes related to corruption and drugs,
 Grave injuries and sufferings caused to women and children by reason of harmful
traditional practices.

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3. To Adopt a Comprehensive Criminal Code: It is desirable to adopt a comprehensive
Criminal Code by putting together various Criminal provisions in the Negarit Gazeta in a
disintegrated manner.
4. Punishments for Certain Offences Increased: On the basis of public opinion taken during
discussions on the draft Criminal Code, punishments in respect of crimes like rape and
aggravated theft have been increased.

5. Matters Concerning the Determination of Sentence Revised:

6. Purpose of Criminal Law and Objectives of Punishment Redefined:

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