Constitutionality of Burden and Standard of Proof under Prevention and Suppression of Trafficking in Persons and Smuggling of Persons Proclamation No 1178/2020
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Date
2023-06
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Addis Ababa University
Abstract
Human trafficking and smuggling are growing challenges that affect the human rights of all. States
including Ethiopia have adopted the UN Convention against Transnational Organized Crime and
the Protocols thereto. Trafficking of person and smiling of migrants is also addressed under the
international and regional legal instruments that have an effect on the prevention and suppression
of such offences. Ethiopia has adopted a crime of trafficking legislation to prosecute and combat
the offences. The FDRE Constitution, Criminal Code of Ethiopia and Prevention and Suppression
of Trafficking in Persons and Smuggling of Person Proclamation No 1178/2020 are the prominent
ones. The study examines the constitutionality of burden and standard of proof under the
Proclamation No 1178/2020. To achieve, analyzing and examining the requirement of proof
beyond reasonable doubt in criminal proceedings and the right of presumption of innocence under
Art 20(3) of the FDRE Constitution is an important point. The study employed doctrinal research
methods and critically analyzed the principle/ right of presumption of innocence under the FDRE
Constitution and other international instruments. In addition, some interviews were conducted
based on purpose-based selection to find out the practical challenges in the prosecution of the
offences of trafficking and smuggling. After a critical examination of the modality of proving
through circumstantial evidence provided under Proclamation No 1178/2020, it found that the
burden of proof contradicts with the prosecutor’s obligation to prove each element of the crime on
requirement of proof beyond reasonable doubt. This indicates that presuming exploitation on the
basis of circumstantial evidence under Art 6 of the Proclamation No 1178/2020 is incompatible
with the principle of beyond reasonable doubt. It also undermines the constitutional right of the
accused to be presumed innocent. To fill the gap, the study recommends that the circumstantial
evidence employed under Art 6 of Proclamation No 1178/2020 does not sufficiently prove the
accused has committed the crime of trafficking in the required degree of proof and shall be replaced
by the prosecutor to prove every element of trafficking beyond reasonable doubt.
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Keywords
Burden of Proof, Standard of Proof, Beyond Reasonable Doubt, Presumption of Innocence