Criminal Justice Systems in Federal Polities: Ethiopia in the Comparative Perspective
No Thumbnail Available
Date
2024-05
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Addis Ababa University
Abstract
The question ―who does what‖ in the criminal justice administration under the overall Ethiopian federal arrangement remains debatable viewed from a variety of perspectives. The FDRE Constitution mainly empowers the federal government to make a criminal law, on the one hand, and establishes a dual institutional structure, on the other. Such a monist-dualist binary approach to the criminal justice administration results in the complication of identifying the clear jurisdiction of the federal and state justice organs for tracing accountability and budgetary issues from among other things. This problem is compounded by the inadequate regulatory statutes of the federal government in delineating the specific jurisdiction of the state justice institutions. Consequently, it has become blurred whether the state justice sectors are administering the criminal laws made by the federal government in an exclusive, concurrent, or delegated mandate. Moreover, as both the federal and state governments engage in making criminal statutes albeit in different magnitudes, there have emerged contradictory provisions which need to be resolved. However, the FDRE Constitution keeps silent as to which law should prevail in inconsistent instances. While this is a major problem inherent in the Constitution, some approaches developed by the legislature, executive, and judiciary which prioritize the supremacy of the federal law over the state counterpart has become another challenge. In addition to the constitutionality question of the development of such practices, an empirical assessment on the subject suggests that the supremacy of the federal laws is sustained in all cases which may compromise the essence of federalism in general and legal pluralism in particular. These and other problems which could be attributed to the Constitution and relevant statutes are convoluted with the absence of conceptual and theoretical advancements of the subject of criminal justice within the wide spectrum of federalism, distribution of powers, and comparative perspectives. To this end, there is a scant literature which is dedicated to the conceptualization and theorization of criminal justice in the Ethiopian federal experimentation.
Therefore, the objective of this dissertation is to explore and critically appraise the Ethiopian federal approach to the criminal justice matters by putting it in the conceptual, theoretical, and comparative perspectives. More specifically, the study aims at exploring the correlation between federalism and criminal justice policy; collocating the subject of the criminal justice policy with the rationales, principles, and factors of the doctrine of distribution of powers; exploring approaches adopted by different federal systems and comparing with the Ethiopian
iv
counterpart; critically exploring the specific approaches to the division of criminal matters adopted under the Ethiopian federal practice; assessing the methods of allocating criminal jurisdiction between the federal and state justice institutions; and reappraising the inter-and intra-governmental criminal justice systems cooperation. In order to bring these objectives into fruition, a qualitative research method, and a doctrinal approach was specifically and dominantly used in the study. Descriptive, exploratory, case study, and comparative approaches were also employed as a research design. In this regard, the argument goes the policy and legislative aspect of the criminal justice under the Ethiopian federal and constitutional design is centralized, hence monist, top-down, or ‗one-size-fits-all‘ approach. This approach to the criminal justice in the cultural diversity and legal pluralism may be subjected to critical evaluation from the principles and values of federalism such as local policy innovation, and the principles and factors that affect the distribution of powers, from among others. By contrast, an institutional design portrays a dual approach which assumes the federal-state matters dichotomy. Such a dualist approach stands at an odd with the monist approach thereby putting the jurisdiction of the criminal administrative spheres of the state justice organs in the dark. A close look into the statutes made by the federal and state governments for defining the criminal jurisdiction of their respective justice institutions reveals the evolution of the third approach which could be designated as a progressive dichotomization. This approach is found again to be defective on many grounds. As a whole, there is a mismatch between the legislative mandate and institutional design over criminal matters that predispose the study of criminal justice under the Ethiopian federal system to be lacking in the systematic and linear approach. Therefore, it is recommended that criminal justice should be reconceptualised from the concepts, principles, and values of federalism, the principles, factors, and rationales of the distribution of powers, and comparative perspectives. To this end, the specific constitutional provision which deals with the legislative power of the criminal law (Art.55(5) of the FDRE Constitution) should be amended or interpreted by the HOF so that it could be aligned with the above-mentioned federal perspectives. In this respect, it would be suggested that the progressive dichotomization approach to the criminal justice be constitutionalized. The power to enact the code of criminal procedure should be left to the states. Federal laws which define the criminal jurisdiction should stipulate the clear mandate of the state justice institutions. Last but not least, prospective researchers are recommended to push the study of criminal justice forward.