Limiting Criminalising Power of the State in Ethiopia
No Thumbnail Available
Date
2020-09-01
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Addis Ababa University
Abstract
Criminal law is the most effective social control tool discovered yet. It prohibits certain
conducts and punishes the violation of such prohibition. The legitimate end of criminal
law in society is the protection of the ‘common good’. As custodian of all public
coercive power, the state adopts criminal law. However, the instrumental and positive
nature of criminal law makes it malleable to excessive use; thus, in not few cases,
criminal law is used to achieve other ends.
This study is about limiting the state’s use of criminal law to achieve only the
legitimate end of criminal law by finding normative and procedural (formal)
limitations. The normative aspect of the doctrine of legal good is one substantive
limitation that is meant to guide the exercise of such coercive lawmaking power. This
doctrine maintains that criminal prohibitions and punishments could be justified by
the protection of the common good, provided there is no other less intrusive means.
Both the prohibition and the consequence part of the criminal rule is a limitation to the
individual right. The bill of rights is another substantive limitation which is given
effect through the doctrine of legal good. In the adoption of public policies, including
criminal lawmaking, the law of proportionality is used based on the principle theory
of rights. The bill of rights give the doctrine of legal good a constitutional foundation
making the latter beyond the reach of the lawmaker which might otherwise disregard
it at will.
Despite the content of the doctrine of legal good may be subject to a reasonable
disagreement, a fair and democratic lawmaking process helps to come up with
criminal law that is not so disagreeable. The formal limitations to the use of criminal
law relates to legislative and adjudicative methods in criminal law. Thus,
legisprudential methods help the lawmaker to come up with a rational law while the
jurisprudential methods help the court to render a fair judgment under the
circumstances. The judicial method is particularly guided by postulates, such as the
principle of legality, the principle of unity of legal system and the principle of lenity,
which define both the content and application of the criminal law.
This study is legal research. It examines the content of the positive criminal law, the
rules and processes of criminal lawmaking, and how the courts determine criminal
guilt and punishment in individual cases. As such, it relies on the dogmatic
interpretation of the positive criminal law, applying legal doctrines and principles.
However, as the Constitution adopts a non-positivist theory of law, the positive
criminal law is evaluated against those constitutional values. Because the legitimate
end of criminal law is protection of the common good, judicial interpretation also uses
hermeneutic interpretation method in order to better determine the content of the
common good.
The study finds that there is excessive use of criminal law by the lawmaker in order to
also achieve administrative and political ends in Ethiopia. This is because of the
excessive involvement of the executive in bill initiation and the lawmaking process,
including delegated criminal law making and the passive role of the lawmaker.
Besides, those doctrines, that guide the interpretation of criminal law would have
eased the negative impacts of the criminal law, are disregarded by the court. This
resulted in a situation of criminalisation by the court