The draft criminal procedure and evidence code must be approved to ensure the legitimacy of trials in the transitional justice process.

Criminal accountability is a crucial step in addressing Ethiopia’s past atrocities, which have deeply injured the nation and impaired its people’s peaceful coexistence. This accountability is promised in the country’s ongoing transitional justice process.

The forthcoming transitional justice policy proposes a dual approach to prosecute international crimes, such as crimes against humanity, torture, enforced disappearances, war crimes, and genocide. It advocates for a special court and prosecutor to focus on the most responsible individuals. The regular prosecutorial system will target lesser offenders unwilling to cooperate with the envisioned truth-finding commission. The draft policy also requires victim-centred trials and involves traditional dispute resolution mechanisms.

While stressing the necessity of independent and impartial judicial and prosecution institutions, the draft transitional justice policy remains silent on particular issues of fair trial standards set forth by international human rights and humanitarian laws. These issues were absent not only in the draft policy but also in the public consultations report that informed its development.

Previous international criminal trials in Ethiopia have been neither victim-centred nor fully compliant with international fair trial standards. Effective implementation of transitional justice requires a policy that addresses these deficiencies. This includes reliance on the 1961 criminal procedure code and the legal system’s lack of comprehensive rules of evidence.

In Ethiopia, trials fail to uphold the right to timely resolution, especially in cases involving complex and large-scale crimes that the transitional justice process intends to tackle. The post-1991 trials of the Dergue, some lasting over 12 years, were criticised by the African Commission on Human and Peoples’ Rights for involving a violation of the accused’s right to a speedy trial.

Ethiopia’s criminal procedure code, drafted when electronic evidence was non-existent, notably lacks explicit provisions for admitting and authenticating such forms of evidence. Now, as witnessed in reports of the post-2018 armed conflicts and the pre-2018 youth-led protests, personal cell phones and cameras have become central in documenting evidence of war crimes and human rights violations. The absence of a clear set of rules on digital evidence raises doubts about the fairness of forthcoming criminal trials.

Another key challenge is the ‘arrest-first, investigate-later’ practice, which undermines the presumption of innocence and the right to prompt notification of charges. Post-1991, this methodology resulted in the detention of over 2 000 people allegedly affiliated with the Dergue regime, some of whom were released later due to lack of evidence. This practice still prevails despite the criminal justice policy’s call for intelligence-led investigations.

The ‘arrest-first, investigate-later’ strategy has far-reaching consequences as investigators are often reluctant to release suspects for lack of evidence, says a former senior prosecutor who requested anonymity. The practice denies accused’s entitlement to immediate and free legal assistance and sometimes leads to the fabrication of evidence or unlawful investigation techniques to extract confessions. This results in prolonged investigations that some sources liken to psychological torture.

In the Ethiopian criminal justice system, allegations of human rights violations occurring during investigation and arrest phases – such as beatings and torture by police during interrogation – seldom find redress during subsequent criminal trials. Not every defendant reports such abuses. They are therefore rarely used to challenge the admissibility of their confessions in court. Those who claim mistreatment during trials often face judicial indifference. Some judges point out the lack of explicit procedural rules that would empower courts to commission investigations on reported abuses.

These challenges impeding fair trials in Ethiopia’s criminal justice system are well documented. They were highlighted in a 2009 study by the Justice and Legal System Research Institute, serving as primary reference for the ongoing promulgation of a new code of criminal procedure and evidence.

The draft code not only remedies existing gaps but also offers procedural rules for novel proposals in the draft transitional justice policy. First, it provides procedural guidelines integrating traditional dispute resolution mechanisms into criminal proceedings. Second, it grants procedural standing to victims, aligning with recent trends in international and domestic criminal trials, and enables them to participate meaningfully, including by introducing additional evidence.

Unlike many other legislative processes in the country’s history, the promulgation of a new code of criminal procedure and evidence has dragged on for over two decades. This has frustrated experts, prosecutors, and judges and left Ethiopian criminal trials in situations where they continue violating fair trial guarantees and denying active participation of victims.

Insiders familiar with the drafting process attribute the delay in parliamentary approval of the draft code of criminal procedure and evidence not to legal disputes but to political considerations. Two contentious issues stand out. One is delineating roles and relationships between the police and the prosecution department during criminal investigations. The second is the debate over whether the Oromia regional state, with Addis Ababa as its regional capital, should be allowed to establish its courts in the city to adjudicate crimes occurring within its offices.

Irrespective of political considerations, ensuring fair and victim-centred trials in Ethiopia’s judicial proceedings is paramount. This priority gains even greater significance as the country navigates policy decisions to prosecute perpetrators of gross human rights violations as part of possible transitional justice processes. It’s crucial to recognise that trials conducted in breach of fair trial guarantees effectively constitute human rights violations in themselves.

Should political obstacles persist in the adoption of the draft code, Ethiopia must promptly consider implementing a distinct rule of procedure and evidence. This rule would be applied by both the planned special and regular courts when trying perpetrators within the transitional justice framework. This is crucial to uphold fair trial standards and victims’ participation. Failure to do so risks compromising the legitimacy of such trials, making them no different from a lack of trials at all.

Written by Tadesse Simie Metekia Senior Researcher, Rule of law, ISS Addis Ababa​