Professional Documents
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The above procedure is only illustrative and does not represent the procedures in all cases.
Sometimes it might even be more complicated. The court may order the production of medical
evidences or the results of further police investigation. The defendant and/or witnesses may also
abscond and all these require additional time.
From the above analysis, we can conclude the following: First, the court passes most of its time
hearing the written submissions of the parties on objection to the charge. This consumes more
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time compared to the oral submission and also hides predictability since written statements are
only visible to the court and the parties.
Second, since hearing of witnesses takes long time, the witnesses are more likely to forget what
to testify or she may die or abscond. This may result in the conviction of an innocent (error of
due process) or acquittal of a guilty person (error of impunity). Even if an innocent is acquitted,
she might have remained in custody upon the denial of bail right.
Third, the court hears defense witnesses at a time different from the hearing of prosecution
witnesses. Since the evidences to be introduced are part and parcel of the same transaction
testified by prosecution witnesses, the court and the public cannot obtain the full image of the
matter. This hinders the continuity of the trial.
The concept of trial as can be observed from the spirit of the law constitutes:
Charge
trial
judgment
Contents of objection
Concerning objection to the charge, the practice reflects two main drawbacks. First, as
mentioned earlier, the objection is submitted in writing. With respect to the form, it is not a
necessary condition to make it in writing. It suffices that the presiding judge records it.
Second, the grounds are not limited to those listed under Article 130 of the criminal procedure
code or the grounds permissible by a necessary implication. Most of the time, the objection
constitutes the existence or otherwise of criminal liability. This, however, is different from
objection within the meaning of the law and is something to be proved at trial after thorough
consideration of evidences.
No case motion
After the prosecution witnesses are heard, the court has to decide whether the defendant has to
defend herself. This, in turn, depends on whether the prosecutor has proved beyond a reasonable
doubt. Depending on the weight attached to the prosecution evidence, the court has two optionsto acquit the defendant on the basis of no case motion or to order the defendant defend herself.
Assuming that the evidence adduced by the prosecution is not sufficient, Art. 141 of the criminal
procedure states:
Art. 141 Acquittal of accused when no case for prosecution
When the case for prosecution is concluded, the court, if it finds that no case against the accused
has been made which, if unrebutted, would warrant his conviction, shall record an order for
acquittal.
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The provision indicates what order the court need to pass upon no case motion. On the other
hand, Art. 142 of the same code govern the procedure to be followed where the prosecutor has
produced sufficient evidence. The full article reads:
If the defendant has to defend herself, it suffices that the court passes an order only orally
without the need to give a judgment on the point. The practice, however, indicates that the court
gives a judgment as to why and on what basis to defend, which adds no value except delay.
Examination of Witnesses
The practice shows that the court hears witnesses of the parties at two or more different times. Art. 124(1)
of the criminal procedure code, however, asserts the following.
Art. 142 Witness summonses
(1) So soon as the date of the trial has been fixed, the public prosecutor and the defendant shall
give the registrar a list f their witnesses and experts, if any, whose presence is necessary. The
registrar shall forthwith issue summonses in the form subscribed in the third schedule to this
code.
This article provides that on the date the public prosecutor appears with her witnesses, the
defendant must also be able to do the same. This enables the defendant to get justice within the
shortest possible time. Let alone hearing the witnesses of both parties at the same time, it takes
different adjournments to hear the prosecution witnesses. This produces the following effects:
Delayance of justice
Unfairness
The public lacks the whole image of the case
Evidences might be deteriorated
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As a result, the evidences might be destroyed or tampered with. This, in turn, makes Article 144
of the criminal procedure code ineffective.
This provision declares that in case the witnesses are not available for various reasons, the
preliminary inquiry record may be introduced at a trial. This is possible only if the preliminary
inquiry is conducted as speedily as possible. In addition, preliminary inquiry must also be
considered in line with the accuseds right to a speedy trial and habeas corpus. In one case, the
accused was remanded in custody for about fifty days pending inquiry for the alleged crime of
homicide. The accused begged the High Court for his release. The court, however, rejected the
application stating Art. 59 of the criminal procedure code which provides:
Art. 59 Detention
3) A remand may be granted in writing. No remand shall be granted for more than
fourteen days on each occasion.
This, however, must be considered in line with Art. 19(4) of the FDRE Constitution. The relevant
part of the constitution is reproduced below:
In determining the additional time necessary for investigation, the court shall insure that the
responsible law enforcement authorities carryout the investigation respecting the arrested
persons right to a speedy trial.
The fact that Art. 59 of the procedural law is not clear as to for how many occasions the remand
be made must not be interpreted to permit the police all the additional time she asked for further
investigation. If the police fail to gather the necessary evidences within the additional time
granted in line with the right to a speedy trial, the court should not hesitate to release the
defendant at least on bail.
Exhibits
The first deviation from the law concerning exhibit is its placement. Just like witnesses, exhibit
must also be recorded and placed at the courts registrar. This is clear from Art. 97 of the criminal
procedure code.
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Art. 97 Exhibits
. Such exhibits shall be kept by the registrar in a safe place and shall not be withdrawn
without an order of the court.
Practically, however, it is within the police that exhibit is placed. This is permitted nowhere
under the procedural law. The other point is concerning what objects to produce as an exhibit. It
is not necessary that every material involved in the commission of the alleged crime is brought.
Rather, the parties must produce only those things that are relevant to the crime and that can
prove its commission. It is also not required to produce an object if the commission of the crime
can be proved in its absence.
Hearsay Evidence
The other challenge in the criminal justice of the court is with regard to the interpretation of Art.
137(1) of the criminal procedure code. The provision reads as follows:
Art. 137 Form of questions put in examination-in-chief
(1) Questions put in examination-in-chief shall only relate to facts which are relevant to the issues
to be decided and to such facts only of which the witness has direct or indirect knowledge.
Before directly embarking on the application and interpretation of this provision it is advisable to
deal with the prosecutors duty to make sure that she has obtained sufficient evidence that can
bring about the conviction of the accused. This is particularly important since it has a lot to do
with the right of the accused. It may result in embarrassment and unwanted arrest and detention.
When we come back to the above provision, the phrase which reads indirect knowledge
deserves a special emphasis. Some legal professionals believe that the phrase refers to hearsay
evidence. This provision, however, is not clear in itself to arrive at this conclusion. Even if it is
said that it refers to hearsay evidence, any reliance on this evidence need to be considered
carefully and the court should order corroboration. In criminal cases, the prosecutor is duty
bound to prove the commission of the alleged crime beyond reasonable doubt. Though what is
meant by beyond reasonable doubt is determined on case by case basis, it must be proved in
such a way that, if unrebutted, would warrant the conviction of the suspected person.
Practically, however, prosecutors institute a charge without collecting the necessary evidences. In
one case, the prosecutor relied on hearsay evidence and caused the detention of the defendants
for about ten months in custody without conviction and sentence.
The case goes like this. On a specified date, the police arrested the two defendants upon a
suspicion that they committed a crime of homicide. Upon the submission of a police report, the
public prosecutor instituted a charge under Art. 539 of the FDRE Criminal Code. The detail of
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the charge was that the defendants beaten and stabbed the victim to death a week before he died.
The court heard the prosecution witnesses who testified that they heard from the victim the fact
that the defendants beaten him a week before his death. Medical evidence did not support the
allegation of the prosecution. The High Court to which the case was brought ordered no case
motion in accordance with Art. 141 of the Criminal Procedure Code. The public prosecutor
preferred appeal from the order of the court to the Oromia Supreme Court, Western Division.
The court reversed the decision of the lower court pursuant to Art. 195(2) (b) of the criminal
procedure code by a two-to-one majority and remanded the case to the High Court. The High
Court heard defense witnesses who disproved the allegation of the prosecution and testified that
the defendants were not present at the scene of the crime at the alleged time. Next, the High
Court ordered the acquittal of the defendants in accordance with Art. 149(2) of the criminal
procedure code.
From the above analysis, one can conclude that it is too difficult, though not impossible, for the
prosecutor to prove beyond reasonable doubt on the basis of hearsay evidence. Though that may
not mean anything to the prosecution department, it greatly affects the right of the accused. In the
case at hand, the defendants were denied their bail right on the mere reason that the alleged crime
was homicide. This trend, however, should be changed. If it is more likely that the evidences
would not warrant conviction, the court needs to be smart enough and should not hesitate to
release the accused at least on bail.
The following conclusions can be drawn from the provision. First, the court fixes a date to hear
the appeal. Second, no written document other than the memorandum of appeal is required on
the date of hearing. Third, both parties are heard on the same date.
Practically, however, the court follows the stance taken by the civil procedure code which
requires the appearance of only the appellant on the first time. The criminal procedure code
requires both parties to appear at the same time and be heard orally. Furthermore, the court
requires the parties to submit various written documents. This not only causes unnecessary delay
but also affects the party who cannot afford to read and write.