The Use of Anonymous Witness Vis-À-Vis the Right of the Accused to Confrontation: The Law and the Practice at Ethiopian Federal High Court
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Date
2024-09-01
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Addis Ababa University
Abstract
The right to accused to confrontation is one of the fundamental constitutional rights that protect the defendants. Its scope is interpreted narrowly by some, while others have seen it more widely. It is however, generally thought to consist of three key elements: the right to a face-to-face trial, the right to demand that witnesses who are testifying against him appear in person for the duration of their evidence, and the right to cross-examine unfavorable witnesses. While the right of the accused to confrontation has long been recognized, it is also true that witnesses’ play a decisive role in the preservation of justice and thus, has to be provided with protection. However, in providing protection for witnesses, it is essential to adopt a balanced approach that safeguards the right of the accused to confrontation.
This study was aimed to assess the legal framework governing witness anonymity and examine the practices of the courts and prosecutors in applying witness anonymity in light of the accused’s right to confront their accusers. In doing so, the mixed methodology of both doctrinal and empirical legal research has been employed. The study’s key finding is that, in Ethiopia the legal frame works that deal witness protection, lacks to provide a proper delimitation of the application of witness anonymity. The WWPP that provides a number of protection measures to be provided to witnesses where they are prone to a serious danger fails to provide special justification or assessment mechanisms to grant these protection measures. It also creates complexity as to the power of granting protection measures, particularly those involving anonymity. From the practical stand point, benches yield different decisions regarding the application of witness anonymity, resulting in lack of uniformity in its implementation. While some benches require the application for witness anonymity be presented for them the others have ruled that the power to grant protective measure under the proclamation vests on the prosecutor. Additionally, the benches took different stand with regard to the criteria to be fulfilled in the process of granting witness anonymity. The lack of guidelines and common understanding of the application of witness anonymity in the judiciary, along with persistent challenges related to the power to grant such anonymity, and the gaps in the legal framework resulted to an imbalance that undermines the fundamental right of the accused to confrontation
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Keywords
Right to Confrontation, Witness Anonymity, fair Trial, balancing competing interests