Case Comment on the Principle of Legality Under Ethiopian Legal System

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Principle of legality in criminal case: a comment on Ethiopian revenue and custom authority’s prosecutor Vs. Ato Daniel mekonin case* Salahadin Towfik

1. Synopsis of the case
The prosecutor of Ethiopian revenue and custom authority (prosecutor here in after) had brought a charge against Mr Daniel mekonin (the accused here after) before federal first instance court, alleging that the accused had been caught while transporting 46.96 KG of crude gold from Ethiopia to Djibouti, between walechit and metahara. The prosecutor asserted that the accused committed contraband crime by infringing custom authority proclamation number 60/97 and 368/2003 of article 2(28) & 66(2) respectively. in addition the prosecutor invoked alternative charge, which asserts the accused has committed crime against national economy by infringing article 1 & 2 of the directive number CTG/001/97 which is enacted by the Ethiopian national bank in accordance with article 59(2) (b) of finance and bank proclamation number 83/93. The accused had refused to accept the charge brought against him by the prosecutor. However, the first instance court after examining the allegation of both parties passed its decision as follows; as far as the first charge is concerned the court set the accused free by stating the fact that accused had successfully defend himself. Whereas, the court convicted the accused regarding the second charge by stating the fact that the accused was unable to rebut the evidences brought against him by the prosecutor. Dissatisfied by the decision of the lower court, the accused appealed to the federal high court by asserting that the lower court wrongly held him responsible for the alleged crime. Based on this the federal high court after considering the allegation of both parties thoroughly rendered its decision that reverses the decision of the lower court in relation to the second charge. This court reversed the decision of the lower court based on the reasoning that: (1) proclamation number 83/93 article 59(2) (b) does not specifically address the prohibition of gold. (2) directive number 001/97 is regarded as binding rule and entail criminal sanction, only when it is proclaimed by negarit gazet and interpreted in Amharic, in accordance to proclamation number 3/94 and 14/95. The prosecutor again brought his appeal to the federal Supreme Court. The court after examining both side to that effect gives its ruling that confirm the decision of high court based on the same reasoning. Finally, the Ethiopian revenue and custom authority prosecutor, dissatisfied by the decision of the above two appellate courts; took the case to the federal Supreme Court cassation bench. The prosecutor alleged that the federal high court and Supreme Court had made basic error of law in reversing the decision of the federal first instance court. In this bench the prosecutor argued for the applicability of the national bank directive number CTG/001/97 for the issue at hand, by asserting that the mere fact of not being promulgated in negarit gazet and interpreted in Amharic did not suffice to deny its application to the case at hand; so that the prosecutors urged the court to confirm the decision of the federal first instance court. The accused on his part argued that the above directive lacks legality to be applicable to the case at hand, thus asked the court to confirm the decision of federal high court and Supreme Court. 2. The decision of cassation division

Under the case at hand, the cassation division of federal Supreme Court had tried to pick the issue that the court deems worth considering, to make sure whether the above two appellate courts had made any error of law while deciding the case. The issues screened by the court were; (1) what is the status of national bank directive number CTG/001/97 in light of the case at hand (the effect of not being publicized and interpreted in Amharic), (2) the application of the above directive in relation to...
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