UNIT-I guilty for a crime for which the society does

not blame them as a criminal.

CRIMINAL
It is the basic principle of criminal law that
RESPONSIBILITY there is no crime unless all its elements are
Introduction: fulfilled. Article 23(2) of the Criminal Code

Defenses for criminal liability are provides that a crime is only completed

circumstances that relieve an accused from when all its legal, material and moral

conviction of guilt and its consequent ingredients are present. The absence of one

penalty. These circumstances exempt a of these ingredients necessarily implies the

criminal from criminal liability or entitle absence of crime.

him/her to a reduced punishment. Objectives of the unit

 Define criminal responsibility

Defenses for criminal liability are  Know that an insane person is criminally

incorporated in criminal law in different irresponsible

ways. Some are clearly provided by the law  Know that a person who is criminally

as defenses while others are not. The latter irresponsible for his acts shall not be

categories are special defenses. They are punished

defenses that apply in particular crime.  Understand the conditions under which an

Special defenses could be non-fulfillment of adult may be regarded as irresponsible

essential conditions of the crimes provided  Know the legal effects of criminal

in the special part of the Criminal Code. irresponsibility.

The other categories of defenses are those

expressly provided by law as defense. They Burden of Proof in Cases of Defences:

are general defenses. They are applicable to The general rule is that it is the duty of the

all crimes. They are excuses and prosecution to prove the accused’s guilt and

justifications. The Criminal Code of 2005 if at the end of and on the whole of the case,

does not follow this dichotomy. there is a reasonable doubt created by the
evidence, given by either the prosecution or

 Justification for Defences: the defence, as to whether the accused had

The basic reason for the existence of the committed the crime or not, the accused is

defense is that it is not just to hold persons

 entitled to acquittal on the ground of benefit punishment within the meaning of Art.49/1
of doubt. are established the in the following way:
Section 1: Criminal Responsibility 1. The proof that the act was done by the

and Irresponsibility accused---It is the burden of the prosecutor.

2. The fact that the accused is responsible for
Responsibility is a person’s mental fitness to
his acts—This is presumed by the Court.
answer in a court for his/her action. Persons
However, the question of irresponsibility
are criminally liable only if they are
arises in any of the following two situations:
responsible for their acts. Thus, the court
 When the accused invokes it, particularly,
should not punish the criminals unless it
during the preliminary objections as per Art.
finds them responsible for their acts.
130/2/g of the Criminal Procedure Code, on
Therefore, to determine the guilt of persons
the first day of the criminal Proceeding.
it is necessary to ascertain their
 When the Court is doubtful about the mental
responsibility. Responsibility or
condition of the accused due to partial or
irresponsibility is concerned with the
complete deprivation of mental faculties.
criminals’ awareness and their capabilities
The Court may entertain such a doubt at any
to control their action. If the criminal do not
stage of the trail from the conduct of the
know the nature and consequences of their
accused on the trial.
act or if they cannot control their acts
Once the ‘question’ arises it becomes
despite their awareness, they should not be
necessary to decide the facts in the light of
responsible for the result of their acts.
Arts. 48 and 49. Then it becomes the burden
of the defence to prove the accused is
Irresponsibility may arise in three cases.
irresponsibility beyond reasonable doubt.
With regards to adults, it may arise from
Then the burden of the prosecution is only to
insanity or intoxication, and with regards to
raise a reasonable doubt in the mind of the
infants, it may arise from their immaturity.
Court that the accused is responsible and
 Responsibility is Presumed By the Court:
deserves punishment.
Generally, when a person is accused of a
crime his/her responsibility is presumed by 1.1. Absolute Irresponsibility: Art. 48
the Court. The prosecution need not prove it. According to Art. 23 (3), a criminal offense

This means that of the important things is not punishable unless the accused is found

necessary to make a person liable for guilty. Moreover, no person is liable to

 punishment unless he is found responsible to the requirements of the law…as a result
for his acts (Art. 48). of mental disease or defect.”
1.1.1. Insanity:
 Essential Conditions to Establish the

Insanity is a complete defense to a criminal Defence of Insanity:

charge. It is based on the assumption that Art. 48(2) requires the proof of the defence

one who is insane has no mind and hence of irresponsibility i.e. the incapacity of the

cannot have the necessary mens rea to defendant to form a guilty intention basing

commit a crime. on the following important things:

Insanity, according to medical science, is a 1. Nature of the incapacity: That the accuses

disease of the mind, which impairs the is incapable of understanding the nature or

mental faculty of man. In law, insanity consequences of his act or of regulating his

means a disease of mind, which impairs the conduct according to such understanding,

cognitive faculty, namely, the reasoning 2. Reason of the incapacity: That such

capacity of a man to such an extent as to incapacity is due to age, illness, abnormal

render him incapable of understanding the delay in his development or deterioration of

nature and consequences of his act. his mental faculties, (one of the causes
specified under Art. 49 (1) i.e. a

The following are some of the short-lived derangement or an abnormal or deficient

insanity tests: condition).

 The irresistible impulse addition to the 3. Time of the incapacity: That such

M’Naghten test: A defendant may be incapacity exists at the time of his act that

acquitted if he or she was unable to control produced the consequences in question.

the action due to mental illness. The Code resorted to one of the three

 The Durham Rule, or “product test” (1954): principal methods of defining criminal

The defendant must be responsibility, namely: The biological

acquitted if the crime was the method, the psychological method and the

product of mental disease or defect. bio-psychological method. The three

 The Currens Test (1961): The defendant methods differ on factors that deem to be the

must be acquitted if he or she “lacked source of irresponsibility. The biological

substantial capacity to conform his conduct method consists in specifying a number of

 physical or mental disabilities or defects  Deterioration of mental faculties of the
deemed to render the person concerned offender due to poison, intoxication by
irresponsible. The psychological method on alcohol or drugs, hypnosis or
the other hand consists in prescribing that a somnambulism;
person incurs no liability that, at the time of The sub-provision further cross-referred to
the offense, was incapable of understanding the unlimited biological causes recognized
the nature of his acts or of controlling under Article 49 as capable of affecting
himself. And according to the bio- person’s state of mind.
psychological method, followed in many Regarding the psychological consequences
modern Codes including the Criminal Code in most legal systems two different mental
of Ethiopia, a person is regarded as conditions are recognized to claim
irresponsible only if, at the time of the exemption from criminal liability.
commission of the crime, he was deprived of
his mental faculties in consequence of These are:
certain biological defects. a) the accused was incapable of
Sub-Article 2 of the provision clearly knowing the nature of the act, owing to
unsoundness of mind, or
provides the test of insanity. It provides both
b) the accused was precluded by reason
the biological and psychological tests, which
of unsoundness of mind from understanding
are enumerated below: that what he was doing was either wrong or
contrary to law.
 Age: refers to old age, for senility may
affect a person’s mental faculties;
In this regard, our law in the same sub-
 Illness: refers to any form of mental as well
Article specifies three manifestations.
as physical disease as a result of which a
person is deprived of his mental faculties.
They are:
 An abnormal delay in the offender’s
development, which includes cases such as  inability to understand the nature of the act.
idiotism, cretinism, the consequences of For example, if person strikes another, and
deafness, dumbness sleeping sickness, and in consequence of an insane delusion he
the like; thinks that he is breaking a jar.
 inability to understand the consequences of presence of one type of disease at the time
the act for example a person may kill a child of the act is relevant.
under an insane delusion that he is saving 1.1.2. Legal Effects of Criminal
him from sin and sending him to heaven Irresponsibility:
 inability to regulate one’s conduct according The legal effects of criminal irresponsibility
to such understanding (some suggests this are of two kinds. One is that an irresponsible
implies the notion of ‘irresistible impulse’ person incurs no liability since, according to
which includes cases where the offender is sub-art. (1), “the criminal who is responsible
deprived of the power of controlling his for his acts alone liable to punishment. The
conduct/Graven) by disease. other is that hand the law required the court
These psychological failures can also be to ensure the irresponsible person will not be
categorized into lack of intelligence and any more a menace for others. . Therefore,
absence of will power. In the first category, sub-art. 3 authorizes the court to make
due to some kind of disease the doer is orders under Arts. 129-131, whenever these
deprived of minimum of intelligence, which measures are necessary for the treatment of
should be present in a responsible person so the offender or the protection of the public
as to enable him to know what he is doing. or both.
In the second category, the doer is deprived 1.2. Limited Responsibility: Art. 49
minimum of ‘power of will’, which should
between insanity and sanity, there exists
be presented in a responsible person so as to
intermediary stages where an offenders
enable him to make a reasonable decision or
faculties are affected to such an extent that,
to act in accordance therewith. For a person
although he is certainly able to understand
to be regarded as criminally irresponsible, it
what he does and to act accordingly, it is
is not necessary that both his intelligence
equally certain that his intelligence or will-
and volition should have been abolished. It
power is not that of a “normal” person and
is sufficient to show that the offender at the
that his degree of guilt is consequently lesser
time of the act was totally deprived of either
than that of such a person.
his intelligence or volition. Further, it is of
Unlike irresponsible persons, who are for
no importance whether the biological causes
some biological reasons totally deprived of
are temporary or permanent nature. Only the
their mental faculties, semi-responsible
offenders are persons who are for some
biological reason only partially deprived of not fully responsible for their acts may,
their understanding or volition. like irresponsible persons, be in need of
1.2.1. Characteristics of Limited medical treatment or threaten public
Responsibility safety, the court must, whenever the
It was believed that some biological diseases necessity is present make an order under
or defects are less serious to cause absolute Art. 130 or 131, as the case may be.
irresponsibility. Accordingly it was Thus, unlike other defenses, the legal effects
proposed that the biological causes of of insanity, whether absolute or limited,
limited responsibility described under Art. shows that the court is duty bound to deal
49, stated as a derangement of the mind or with the causes of the insanity. If the court
understanding (e.g. hysteria), an arrested orders confinement or compulsory
mental development (e.g. imbecility) and an treatment, that is for the benefit of the
abnormal or deficient condition (e.g. offender himself or the community in which
alcoholic intoxication) do not have the the defendant is living.
effects specified under Art. 48. Section.2. Intoxication-Intentional
But according to the contemporary view, the or Culpable Irresponsibility: Art.
causes and characteristic ingredients of
50
limited responsibility are similar to those of
Alcoholism may constitute a disease
irresponsibility.
provided it has damaged the brain to an
1.2.2. Legal Effects of Limited
extent as to grossly impair the ability to
Responsibility:
make rational judgment and emotional
Like that of irresponsibility, the legal effects
responses.
of limited responsibility are of two kinds:
2.1 Voluntary and Involuntary
1. The accused is liable to punishment
Intoxication:
since he was not irresponsible at the time
Regarding intoxication, whether voluntary
of the act and he is capable of
or involuntary, most penal codes flatly state
understanding the meaning and purpose of
that intoxication is not defense which is
punishment; however, the penalty must be
actually, not true. Involuntary intoxication,
reduced because the offender’s
for example, because of prescription
responsibility, and consequently his degree
medication or coercion can constitute a
of guilt, is reduced. Since persons who are
defense. Where an offense is committed
under intoxication caused due to fraud or Generally the development of the law on
coercion, the intoxicated man may not be drunkenness has passed through the
said to have acted on his own accord, and following three stages:
therefore, is not responsible for the
consequences of his acts. The justification 1. That insanity, whether produced by
for such a provision is based on the drunkenness or otherwise, is a defense. The
contention that the accused had himself not distinction between the defense of insanity
contributed to his drunkenness, which was in the true sense caused by excessive
not likely to be repeated as in case of drinking, and the defense of drunkenness,
voluntary drunkenness. which produces a condition such that the
drunken man’s mind becomes incapable of
Most courts in America have held that even forming specific intention, has been
voluntary intoxication, when sever, may preserved throughout the case. The insane
render a person incapable of forming certain person cannot be convicted of a crime.
specific types of criminal intent, which is an There was no law that takes note of the
ingredient element of the crime in question. cause of insanity. If actual insanity in fact
For example, murder in the first degree supervenes as a result of alcoholic excess, it
requires, among other things, premeditation furnishes as complete an answer to a
and deliberation. Many courts have also held criminal charge as insanity induced by any
that if a defendant was so grossly other cause.
intoxicated that he or she could not
premeditate and deliberate, he or she can at 2. That evidence of drunkenness, which
best found guilty of murder in the second renders the accused incapable of forming the
degree. To that extent, the law on specific intent essential to constitute the
intoxication conforms to the mens rea crime should be taken into consideration
principle. But American law does not with the other facts, proved in order to
absolve intoxicated perpetrators of all determine whether or not he had the intent.
criminal liability: gross voluntary
intoxication may simply lower the degree of 3. That evidence of drunkenness falling
the crime committed. (Adler, Mueller and short of a proved incapacity in the accused
Laufer) to form the intent necessary to constitute the
crime, and merely establishing that his mind mentally deficient a person regardless of the
was affected by drink so that he more fact that he himself deliberately created this
readily gave way to some violent passion, abnormal condition. But speaking
does not rebut the presumption that a man subjectively, intent existed before the
intends the natural consequences of his acts. offence was committed, since the accused
(Gaur) was capable of forming a specific intention
The defense of drunkenness and its legal prior to intoxicating himself. Under this
effects in Ethiopia is prescribed under Art. condition, the person not only did he
50 and the discussion are followed here voluntarily place himself in an abnormal
after. The provision is chiefly intended for condition, but he did so in order to carry out
persons who with some state of mind a decision which he had freely made. This is
contravene the law while under voluntary also applicable to circumstances under
influence of alcohol or drugs or any other which a person voluntarily places himself in
means. It is based on the rule that a state of irresponsibility when he knows
intoxication is no defense if caused by the and accepts the possibility of doing wrong.
offenders’ voluntary act. Therefore, in the cases coming under this
condition, the court must ensure that the
The main deference between Art. 50 and 48, case actually committed is that which the
49 is not the bio-psychological condition of accused directly or indirectly intended when
the offender but it is the condition, that he intoxicated himself. This is applicable in
creates the irresponsible nature of the relation to both offenses of commission (if A
offender. Unlike the legally recognized drinks in order to kill B) or omission (if A, a
causes under the preceding articles, under soldier on leave drinks so as to disable
this article, it is the doer who puts himself himself from going back to his unit). Art.
into a condition of irresponsibility or of 50(1) supports the second conception, which
limited responsibility by means of alcohol or prevents an accused benefiting from the
drugs or by any other means. Speaking provisions of Arts.48 and 49 on the sole
objectively, the doer’s condition at the time ground that he committed an offence, while
of the offence was that of a mentally in an abnormal condition that was created by
deficient person and may lead to say he himself. Thus, the fault of the doer operates
should be treated in the same manner as the as an absolute prohibition from invoking
Arts.48 and 49. Instead, in such cases, the have foreseen the possibility of committing
offender may be convicted and sentenced as it. For instance a person may in a particular
though he had been fully responsible at the quite and cold evening staying home alone
time of the act. begin to drink with intent to get himself
warm and relaxed but may get completely
The second condition by which an offender drunk and commit a punishable act. In such
shall not be benefited from the provisions instances, the accused is not liable to
excluding or reducing the punishment is punishment under sub-art.3, as the person
when a person who commits an offence in a has neither criminal intention nor criminal
state of partial or complete irresponsibility negligence existed before he intoxicated
in which he placed himself, not for the himself. According to Art.57 (1), he should,
purpose of committing an offence, but when therefore, go free because he is not guilty of
he knew or should and could have known the offence committed. However, the need
that he was apt to do wrong while being in to ensure the peace of the public justifies
an abnormal condition (Art.50/2). Under this that the offender should be punished and
sub-article, a person drinks or consume should not be permitted to excuse himself on
drugs, though he foresees, but rejects, the the ground that he did not mean to do any
possibility of doing wrong or he is not, but harm prior to getting drunk. Under sub-art.3,
should and could be aware that he may do this conflict is solved by holding the doer
wrong. This therefore is applicable to states not of the offence actually he committed but
of negligence—advertent and inadvertent. of a special offence against public safety
The implication here is that the doer will not (Art.491). Art.491 is based on the
be held liable if the wrong he has done is not assumption that anyone who intoxicates
punishable. himself is always a latent menace for others
and that he is punishable as soon as he
The third situation with which Art.50 deals creates a concrete danger, i.e. he commits an
is that of an accused who, having placed offence.
himself in a condition of complete
irresponsibility commits or attempts to
commit an offence with which he did not
intend to commit; nor could and should he
 The Defence of Intoxication At A Glance: conditions identified by law are found. And
Sub State of the State Crime Legal the court cannot proceed before clearing the
- Defendant Induced By Committed Consequence
Art. doubt either through medical examination and
Art. Absolute or Own fault Intentionally Fully liable to inquiry into the character, antecedent and
50/1 Limited (Voluntary (In order punishment
circumstances of the accused.
irresponsibilit Intoxication) to…)
y Section. 3. Infancy/Immaturity:
Art Absolute or Own fault Negligently Punishable for
50/2 Limited (Negligence) negligent
Art. 52
irresponsibilit commission of Accordingly, the Criminal Code of Ethiopia
y the crime
deals with infancy (which ends at the age of
Art. Absolute Own fault Accidentally Punishable
50/3 irresponsibilit (Neither under Art. 491 nine years), adolescence (which extends
y contemplated provided the
from nine to fifteen years, this being the
nor intended) crime is
punishable with limit of penal majority), and an intermediary
at least 1 year.
period extending between penal and civil
Art. Absolute No fault on While Shall not be
50/4 irresponsibilit his part incapable of liable to
majority, i.e., between fifteen and eighteen
y (i.e. has forming any punishment years of age.
been mental
coerced) element It is also common in many jurisdictions to
have different age groups for young offenders
2.1.1 Doubtful Cases (Art. 51 cr.c) with different treatment and punishment

Although nowhere in the Code specifically prescribed.

said so, every accused is presumed to be 3.1. Infancy under Ethiopian Law:

responsible for his acts. Therefore, as a

According to Art.52 of the Ethiopian Criminal
general rule, the alleging party need not prove
Code, infants are completely exonerated from
that the accused was capable, at the time of
criminal provisions. The lower limit of penal
the offence, of understanding what he was
majority is made nine years under this article.
doing and of behaving accordingly. This
Therefore, the Ethiopian criminal code never
presumption, however, is destroyed if doubt
applies to children who commit an offence
arises regarding the offender’s mental
before having completed their ninth year.

3
stability. The court may fall in doubt about the
.1.2. Classification of Young
responsibility of the accused as there are
offenders under the Code:
objective reasons to doubt or any of the
Immaturity refers to inability to appreciate intelligence and volition develop and
the nature and consequences of an act due to become gradually closer to those of adults.
early age. It includes infancy, young Secondly, the commission of a crime shows
criminal and persons in the transitory age. that the time has come to take action
because no action has been taken at home or
3.1.2.1. Infancy school or it has failed.

Infancy is the period extending from birth to The objective of subjecting young persons to

what might be called criminal majority. The any action is to turn juveniles into useful

age limit that marks the end of infancy citizens. Therefore, the primary aims of any

varies from one country to another. In our action taken with respect to young persons

country, infancy ends at the attainment of are and must be education and correction.

ninth year (article 52). The infants who have 3.1.2.3. Transitory Age:

not attained the age of nine years are The criminal responsibility and guilt of

exonerated from criminal liability. persons between the age of fifteen and

3.1.2.2. Young Persons: eighteen years are determined as though

Young persons are persons whose age is they were an adult, but the punishment that

between nine and fifteen (article 53(1)). may be ordered is not necessary that which

Young persons don not enjoy complete would be ordered if they were adults. As a

immunity from criminal liability. They are result, the court has three options. First, it

considered responsible for their acts. may order any of the penalties applicable to

However, the court may not treat young adults and mitigate it according to article

persons in the same manner as it does adults. 179. However, the mitigation is not

The court orders the penalties and measures compulsory. In such case, the court may not

provided under article 157-168 rather than sentence the criminal to death penalty.

the punishments provided under the special Second, the court may order one of the

part of the Criminal Code. special penalties applicable to young

Young persons are criminally liable for two persons. Finally, the court may order special

reasons. First, persons begin to understand measures applicable to young criminals

the nature of their acts, to be able to form a based on the conditions laid down under

decision and to keep to it between the age of article 177.

nine and fifteen. During this period, their

 3.2. Special Provisions Applicable to
Young Persons: (Art. 157-168 cr. Cc )

Complete immunity from criminal liability sixteenth year), young offenders, known in
is enjoyed only by infants and ceases to the Code as “young persons”, are no longer
operate when they attain their tenth year. exonerated from criminal provisions, though
Thereafter and until they reach penal they may not be treated in the same manner
majority (i.e., when they attain their as adults.

3.3. Reasons for Young Persons Criminal action has been taken at home or at school
or it has failed.
Liability
3.5 Measures for the Problem of the
There are two basic reasons that underlie Young Criminals
why young persons have to be held
criminally liable. First, young persons are N Problems Measur Articles Duration of
assumed to begin to understand the nature of o. of young es Measures
their acts and able to form a decision and persons
keep to it.
Second, the commission of an offence by
them calls action by the society because no
Feeble When the purpose 3 places school
mindedness, is served or when
Dangerous Between one to
arrested Treatment 158 the court ordered
disposition, Admission to 162 five years or when
1 development, or when the 4 commission of corrective the young criminal
mental disease, criminal attained
grave crime institution attaines 18 years
epilepsy, 18 years (article
(article 164(2))
addiction to 164(1))
5 Any other Reprimand 160 No duration
drink etc.
problems and censure
Moral When the purpose
abandonment, Supervised is served or when The court may impose penalties on young
2 corruption, education 159 the court ordered
criminals. These penalties as provided under
absence of care or when the
and protection criminal attained article 166-168, are of two kinds. These are
18 years (article
fine and imprisonment.
164(1))

Spending free Keeping the The duration is Unit Summary:

hours and young fixed by the court
holidays with criminal at 161 (article 161)
bad friends and home or
General defenses for criminal liability are immunity under Art 50/4. If the absolute
circumstances that relieve an accused from irresponsibility is the result of coercion or
conviction of guilt and its consequent according to a strategy for which the
penalty. These circumstances exempt a accused has no fault it amounts to in
criminal from criminal liability or entitle voluntary intoxication. Voluntary
him/her to a reduced punishment. These intoxication as a basic rule is no defence for
defences arise either due to negation of mens criminal liability. But it might become a
rea i.e. moral ingredient of crime in case of qualified defence under the circumstances
irresponsible persons. Insane persons, mentioned in Sub-articles (2) and (3) of Art
intoxicated persons and infants are 50. Where a person is voluntarily
exempted from criminal liability due to the intoxicated in order to commit a crime, the
fact that they lack the capacity to form the person becomes completely liable for
mental element required for attaching any punishment whether the irresponsibility
criminal liability. produced due to intoxication is an absolute
one or partial (Art 50/1). However if the
The defence of insanity includes two
voluntary intoxication falls under Sub-Art.
different grounds. There are, absolute
(2) the person is liable for negligent
irresponsibility under Art 48 and limited
commission of the crime as per Art 59.
responsibility under Art 49. In case of
absolute irresponsibility the accused is Infancy under Ethiopian Criminal Code has
absolutely immune from any criminal been dealt with very carefully. The young
liability but shall be subjected to special offenders fall under three categories: infants,
treatment as provided under Arts 129-132. young offenders and of intermediary age
Where as, in case of limited responsibility group. Infants under nine years of age are
the court shall freely mitigate his penalty as completely exempt from any criminal
per the provisions of Art 180. In addition to liability. Young offenders falling in between
that the accused is subject to the treatment nine and 15 years are liable criminally but
specifies under Arts 129-133. are not punished on par with adult criminals.
The Code designed special types of
The defence of intoxication has been dealt
measures with curative, educational and
with in the Criminal Code under Art 50.
corrective values. Young persons above the
Involuntary intoxication leading to an
age of 15 but below 18 fall under
absolute irresponsibility is an absolute
 intermediary age group. They are normally vary. In some jurisdictions, for example, the
liable to penalties as adults but in cases of only distinction is between justifications and
abnormal delay in mental development the excuses (e.g. France). The first one
measures designed for the below 15 may be comprises of acts required or authorized by
applied to them. law, legitimate defense, necessary acts and
acts done with the consent of the injured
UNIT-II
party, while the second ones, which are said
AFFIRMATIVE DEFENSES
to be either absolutoires or attenantes
Objectives: according to their effect on the penalty, are
 Understand the meaning and essence of similar to the circumstances with the
affirmative defenses Ethiopian Code regards as general or
 Identify the categories of affirmative extenuating circumstances.
defenses
The Ethiopian Code does not follow any of
 To make distinction between absolute
the above-mentioned models but provides
defenses and limited defenses
for three classes of acts with respect to
Discuss the ideal time in the process where
which the ordinary rules concerning
the defenses could have been invoked.
criminal guilt do not apply or fully apply,
Section.1. Lawful, Justifiable and namely lawful acts (acts done in

Excusable Acts: circumstances which legitimate them),

justifiable acts (acts done in circumstances
excluding intentional guilt) and excusable
 The Ethiopian Criminal Code on the
acts (acts done in circumstances reducing
Subject:
the degree of guilt).
According to Art.58 (2), a person who
intentionally commits an offence is always 1.1. Lawful Acts
punishable except where he acts in A lawful act is an act, which a person is
circumstances providing him with a legally authorized to do. Even in some
justification or an excuse that is in any of the circumstances the law provides more than
circumstances defined in Arts.68-81. authorization and obliges a person to behave
in contradiction to the law.
The definition and classification of lawful,
justifiable and excusable acts sometimes
The defense of lawful acts therefore C. Acts of private justice.
provides a counter-law to the prohibitory
A. Acts Relating to Public, State or
law.
Military Duties:
On the other hand, the availability of the
defense is conditioned upon the fulfillment The defense is nowhere applied more
of two conditions. Firstly, one cannot claim appropriately than in conjunction with the
protection under the defense unless he/she is defense of public duty. Furthermore a legal
one who has acquired the status required in obligation or permission to do an act
the law. connected with public duties is a complete
Secondly, the mere fact of having the status justification when the doer complies with
envisaged in a law does not entitle the the legal requirements governing the doing
person to act in contradiction to the of this act. However, the Art.68 is silent as
prohibitory law. Instead the objective to what constitutes “acts in respect to public
circumstances that necessitate the action in duties”.
question must be present. Therefore, despite The defense of State or military duties on
the fact that the doer is one envisaged in the the other hand is available when the doers
law, his act would remain a punishable possess an official status, either civil or
crime so long as it is committed in the military, and act in discharge of their duty.
absence of objective circumstances the Acts of a public servant or a member of the
necessitate the act. armed forces are therefore do not constitute
Acts Required or Authorized by Law: an offense and are not punishable so long as
they are done in accordance the terms of the
Art.68
relevant law.
Under Art.68 of the Criminal Code of
B. Right of Correction or Discipline:
Ethiopia, lawful acts comprise of particular There are some kinds of measures that can
be possibly administered for the purpose of
acts connected with:
correction or discipline but inevitably result
A. Public, state or military duties, in some harm to the individual subjected to
B. Acts done in the exercise of a right of such measures.

correction or discipline, and

for instance, Art.2039(c) of the Civil Code In the absence permission by law to
impliedly authorizing the parents, guardians contradict itself any act done in the exercise
and masters to use reasonable use of force of such professional duties would thus
for the purposes of chastisement. remain criminal and punishable.
Accordingly, Art.576/3 of the Criminal Acts done in the exercise of a professional
Code dealing with maltreatment of minors duty come within the general category of
expressly limits the right of correction or acts authorized by law.
discipline. Thus, there shall be no criminal
1.2.1. Defining ‘Profession’:
liability against those legally authorized for
Only a person entitled to practice a
their acts unless they have gone beyond
profession is exempted from criminal
legal limit, namely the reasonableness of the
liability. Thus, if an eye-doctor should cause
action vis a vis the seriousness of the fault
the death of a person in attempting to
sought to be corrected.
remove the appendix of this person, he could
C. Exercising Private Rights:
obviously not be deemed to have acted in
The last type of lawful acts expressly
the exercise of his profession, and would
provided under this defense is that of acts
therefore not justified under Art.69.
done in exercising private rights recognized
Similarly only an advocate filling a petition
by law, the acts that are sometimes referred
for divorce on the ground of adultery does
to acts of private justice. Thus, Arts.1148
not commit defamation; only a surgeon
and 2076(2) are just some provisions of the
performing an operation does not commit an
Civil Code that justify the protective actions
offence of bodily injury and only a
of a holder of a thing and a possessor of a
mechanic dismantling a car entrusted to him
land however their action may cause harm to
for repair may not be punished for damage
others. In both cases, the doer is not guilty
to property. In all the above cases, only a
of an offense of bodily injury or damage to
person who acquired the required profession
property, since the law expressly authorizes
is allowed in the law to perform the acts.
him to act as he does.
1.2.2. Justification for a Harm
1.2 Professional Duty: Art. 69 Caused by a Person in the Exercise of
Certain socially beneficial professional Professional Duty:
duties can only be discharged in Whenever a person is exempted from
contravention to what is prohibited by law. criminal liability for the acts he has done in
discharge of his professional duty, the under its Arty 66 categorically stated that
justifications is not the fact that the doer consent is no defence for criminal liability.
carries out a professional duty; it is rather But in fact that was a technically wrong
the fact that the act is ordered by law. If it statement since there are crimes such as
were not due to the law, the doer would rape, theft etc. for which ‘lack of consent’ is
remain criminally liable regardless of the an essential element of the crime.
fact that the act is necessary in carrying out However, consent is a qualified immunity to
his profession. criminal liability.
The law not only authorizes some acts to be Limitation to Consent as a Defence: Art
done in the exercise of some professions but 70/2 places an important limitation to this
also prescribe the conditions under which defence. Consenting to donate any of his
the authorization is valid. bodily parts while alive or after his death or
Any act, though may be required under the his body after his death for any commercial
profession is therefore not justified unless it purposes is absolutely prohibited. This is a
is done only within the legal boundary set punishable crime under Art 573.
for such acts in legislations pertaining to 1.3. Coercion/Duress: Arts. 71 & 72
each act. In this respect, even the consent of Generally law, and in particular criminal law
the person to whom harm is done may not is always expected to attempt regulating the
be regarded as the source of justification. behaviors of only an average person. The
1.2.3 Conditions where Professional Duty law shall expect neither extreme heroism

is not Justified: from individuals nor encourage cowardice.

It shall give due notice of an average person
Art.69 applies only when the doer acts in the criminal behaviors together with the
accordance with the accepted practice of the consequential penalties.
One common circumstance where one
profession and does not commit any grave
disregards the law out of his free will is
professional fault. when he/she is compelled by another to
violate the law. In these situations the
2.3 Consent As a Defence: Art. 70
criminal law lets them go unpunished.
This provision is inserted by the Revised
The defense of coercion is therefore, a
Criminal Code. The previous Penal Code
defense that the actor engaged in the
 conduct charged to constitute an offense intended to break the will of a person and
because he is coerced to do so by the use of, make him yield to the demands of the person
or a threat to use, unlawful force against his exercising the coercion.
person or the person of another, which a 1.4.3. Resistible Coercion:
person of reasonable firmness in his Resistible coercion, with which Art.72 deals
situation would have been unable to resist. without distinguishing whether it is of a
A coerced person is justified first, because physical or moral nature, is a coercion of
like an insane person or intoxicated person intensity such that the coerced person could
he is totally deprived of his freedom of reasonably be expected “to resist or avoid
choice and therefore equally deserves the committing the act”. In other words, Art.72
same treatment as long as the loss of will is applicable when the coerced person, by
power is involuntary. reason of his strength, age, or sex and
 The Defense of Coercion under Ethiopian having regard to the strength, age or sex of
Law: the person exercising the coercion, is
1.4.1. Absolute Coercion: capable of resisting the coercion. Coercion
Regarding the degree of coercion required to can be resistible when it is physical as well
justify the wrongful act of a person under as moral.
compulsion, Art.71 requires that to be 1.4. Superior/Subordinate
‘absolute’. Therefore, coercion is no defense
Relation: Arts. 73 & 74
unless it is absolute.
The problem of superior subordinate relation
1.4.2. Coercion under Art.71 can be of either arises when a person commits an offense on
physical or moral. Physical coercion is the order of someone to whom he owes
“violence exercised by someone in obedience. This can happen in numerous
consequence of which a human agent is occasions. It can happen for example in
materially obliged to commit an offence”. family administration between parents and
children, and in the previous times between
Moral coercion on the other hand is landlords and the serf. Arts.73/74 are not
exercised when an act is which does not applicable with regard to orders given by
render the agent’s movements involuntary is any “master”.
done, but deprives him of his freedom of Arts.73/74 on the other hand are applicable
choice. It is usually in the form of threats only to specific types of relation, i.e.
administrative and military superior neither “in respect of public, state or military
subordinate relation. duties” nor “within the limits permitted by
1.5.1. Responsibility of a Person Giving law”.

an Order: Besides, for Art.73 to be applicable, it is not

required that the superior should be a high-
In both administrative and military superior
ranking official or military commander. It
subordinate relation, the orders that can be
rather suffices that he/she should be of a
given to a superior are unlimited. Instead
higher rank than the person executing the
they are restricted to fit two essential
order, i.e. he/she should have the right to
conditions. Firstly, orders may be given only
give orders and that his subordinate should
with regard to the so called “service
have corresponding duty to obey. He who
matters”, that is matters concerning the
gives the order must, therefore, be a person
business transacted by the organization to
in authority. But his being in a position to
which the superior and subordinate belong.
give orders does not entitle him to demand
An order of hospital administrator to evict
from his subordinates that he should act in
residents from certain area is therefore
violation of the law.
susceptible of being regarded as unlawful
Further, the superior who orders an act to be
and punishable. The same is true with an
done, which is unlawful, is liable only for
order of a higher rank military officer to
those acts. This is to say that, if the
release tons of wheat stored for state of
subordinate exceeds or departs from the
emergency. Secondly, only such acts may be
order, the superior is not answerable for the
ordered as must be done so that the said
excess or departure unless he directly or
business is properly transacted. If the act
indirectly intended it to occur.
ordered has little or no significance at all to
the proper functioning of the transaction in 1.5.2. Responsibility of the Subordinate:
question, the likelihood for unlawfulness is Art.74, the subordinate who has carried out
higher. Generally, a superior, who gives an an order to commit an offense shall be liable
order with full knowledge of the fact that the to punishment on the following three
above conditions are not fulfilled, may not conditions:
invoke the defense mentioned under 68 and a) When the subordinate is aware of the
escape punishment since the act ordered is illegal nature of the order,
 The defense of necessity is not available
unless some basic requirements, which are
b) When the subordinate knows that the enumerated below are not satisfied. It is true
order is given without authority, or that, whichever of the conditions below is
c) When the subordinate knows the missing; the justification of necessity may
criminal nature of the act ordered, not be invoked. Thus, some of the following
conditions are expressed under Art.75 and
Art.76 and others are just implied from.
In the first condition it is a subordinate who
a) There must be a Danger:
knows that his superior is not allowed by
b) The Danger must be Imminent:
law to give an order of the type in question.
c) The Danger must be Serious:
Section: 2. Necessity and Legitimate
d) The Danger Could Not Otherwise Be
Defence:
Averted:
 General State of Necessity: Arts.75-76
e) The Harm must be Proportional:
A necessary act is an act performed in a so
f) The Exception: Fault
critical situation that the doing of harm is the
Under Art.76 of the code, it is provided that
only alternative to the suffering of harm.
the defense of necessity ceases to exist if the
The rule for the defense of necessity is
emergency situation is created by the fault
similar to that of legitimate defense. In fact
of the actor. Therefore, the absence of fault
in cases of necessity the threat to the actor
on the side of the doer is another
comes from nature. It is sometimes called an
requirement to avail himself of the defense
“act of God,” and it may be a fire, a storm,
of necessity.
and an earthquake, or a shipwreck that
At any rate, if the requirements provided
compels the actor to do something that
both under Art.75 and Art.76, either
otherwise would be illegal.
expressly or impliedly, are met, necessity
2.1 The Defense of Necessity under
can successfully be raised as a defense. The
Ethiopian Law (Art. 75)
types of harms avoided and caused are
2.1.1 Scope of the Defense:
irrelevant. If the requirements are, however,
2.1.1.2. Conditions of the Defense:
not satisfied, the defense does not exist.
Instead, excess of necessity may exist like if
 the state of necessity does not exist because cases. Hence, the fact is that, in the criminal
the danger is not imminent, or is created by
law, the requirements of self-defense are not
the fault of the actor, or the measure taken is
identical to those of necessity.
in excess of what is necessary. Excess of
necessity entitles the actor only to a 2.2.1. Legitimate Defense under Ethiopian
mitigated penalty.
Law
2.2 Legitimate Defense: Arts. 78, 79
Legitimate defense is one specific type of  Conditions Required for the Defence;
necessity, and therefore has much in The right to repulse attacks, which are
common. In both cases, a situation of contrary to the law, is not unrestricted. Its
distress arises which cannot be solved exercise is governed by the following
otherwise than by the doing of harm. But conditions.
there also some fundamental difference 1. There must be an imminent attack or
between general state of necessity and a threat of an attack
legitimate defense. Some of the differences 2. The attack must be unlawful
are as follows: 3. The attack must be proportional
(i) necessity is basically one of aggression 4. The attack could not have been
while an act under Art 78 is one of otherwise averted
defense, 5. Rights Protected:
(ii) the doer of a necessary act, unlike a person Legitimate defense exists against attacks
who defends himself, is not resisting an endangering any right, i.e. in Jherig’s terms,
unlawful assault. any interest is protected by law, such as life,
(iii) in the case of necessity the conflict bodily integrity, honour, sexual liberty or
occurs is between two legitimate interests property.
but in the case of legitimate-defense the 2.2.3. Excess in Self-Defense:
conflict occurs is not between two legitimate
interests. This entails that in the first case it Under Art.79, the defender is deemed to
is strength, while in the second case it is the exceed the limits of legitimate defense in the
law, which has the last word. following two conditions:
From whichever angle one looks at it, the 1. Uses disproportionate means. (Want of

position, therefore, is not the same in both proportionality requirement):

What Art.79 (1) actually implies, is that an rea) required for the crime. The mistake or
act of defense is not lawful when the ignorance must be both honest and
defender causes more harm than that which reasonable.
he had reason to fear, i.e. when the defense Under Art.80, a mistake must be one of fact
is, “manifestly excessive” and not of law.
3.1. 1The Meaning of ‘Fact’:
2. Does more than should reasonably be A “fact” within the meaning of Art.80 is any
done to avert the danger (want of event, circumstance or quality of a material
necessity requirement): of personal nature the existence or non-
The second case in which an act of defense existence of which affects the court’s
is unlawful is that where the defender goes decision on guilt and /or sentence.
beyond what is necessary to repel the A fact may consists of:
unlawful assault. Although there may appear 1. a phenomenon perceptible by the sense.
to be no difference between this situation ( e.g. the doer mistakes arsenic for sugar) or
and the preceding one, what is meant is that 2. a state of mind (e.g. the doer believes that
the doer is not justified whether the excess someone intends to kill him)
accompanies or follows the attack. In the 3.1.2. When Mistake of Fact May be
first case, the defender is punishable because Invoked (Applicable):
the defense itself is disproportionate while in According to Art. 80 of the criminal code, a
the second case he is punishable because he person who commits an offence in
continues to do harm even though this is not consequences of erroneous appreciation of
necessary since the assault has already been the true facts of the situation must be tried as
repelled in an adequate manner. though the situation, which he believes to
Section. 3. Mistake of Fact, Mistake exist, did actually exist. Art 58 (3) of the

of Law and Ignorance of law: criminal code supports this rule stating that “
no person shall be convicted for what he
Arts.80&81
neither knew of or intended, nor for what
3.1 Mistake of Fact and Mistake
goes beyond what he intended either directly
of Law: or as possibility, subject to the provisions
Mistake or ignorance of fact can serve as a governing negligence “ because the “
defense if it negates the state of mind (mens
awareness” ( mens rea) component of consequences of erroneous appreciation of
intentional guilt is vitiated by the mistake. the true facts of the situation shall be
Article 80 therefore may be invoked on the excluded from punishment but, the doer may
following cases: nonetheless be punished for having
1. When the doer is mistaken as to a fact, committed this offence because of
which is a material ingredient of an negligence, he could have avoided the
offence. mistake by excreting the care which could
reasonably be expected of him in the
2. When the doer is mistaken as to fact, circumstances (Art.80 (1), second aliena.
which did it, exist, would legitimate or 3.1.4. Separate and Independent Offence
justify his act. shall be Punishable: Art.80 (2)
Mistakes in doing an act of the nature The doer of an act who is free from any
defined in Art.68: as imaginary necessity; punishment due to the mistake of fact is not
imaginary legitimate defense. free from punishment of another offence
This Article excuses a person who has done which in themselves constitute a separate
what by law is an offence, under a offence Art.80 (2).
misconception of facts, leading him to Example I
believe in good faith that he was Suppose A, in sight of the public, has sexual
commanded by law to do it. intercourse with a girl whose age he is
3. When the actor is unaware of the fact mistaken. He A is punishable for
that he acts in aggravating circumstances: committing an offense of public indecency
Example intentionally committed even though he is
A insults B, not knowing that the latter is a not punishable for sexual intercourse.
public servant on duty. In this case, A is not Example II
liable to the aggravated punishment as he Suppose A, deliberately fails to come to the
dose not know of the fact in consequences of assistance of B, whom he has wounded in a
which the penalty is increased, namely the state of imaginary legitimate defense that
special status the victim has. brought about by an unavoidable mistake or

3.1.3. Negligence (Bad–faith): Punishable uses, in defending himself in such a state, an

According to Art.80 of the criminal code, a unlicensed gun he is punishable for having

person who commits an offence in acted in violation the relevant provision in

the special part, even though he is not subject as well as mistake as to what the law
punishable for having, caused bodily injury. is.
3.1.5. Mistake of the Identity of the Ignorance of the law has rarely been
Victim or the Objective of the Offense: sufficient to excuse criminal conduct. It is
permitted as a defense only in situation in
According to Art.80 (3), a mistake as to a which the law is not widely known and a
fact, such as a mistake concerning the person cannot be expected to be aware of a
identity of the victim or the object of the particular law. These situations are not
offense is not to be taken into account. common because citizens are generally
Mistake of this kind are sometimes referred expected to know the law and a claim of
to as non-fundamental mistakes, in ignorance could be used to excuse virtually
opposition to fundamental or essential any type of illegal conduct.
mistakes which are the only ones that which
3.2.1. Schools of Law Regarding the
Art.80 is concerned with.
Rule of Ignorance of Law is No
Illustration: Excuse:
‘A’ waits near B’s house with intention of The question of whether mistake of law and
shooting him when he comes home. Seeing ignorance of law is excusable has been a
someone approaching the house, he shoots C controversial issue for a long time. With
thinking that it is B C. In this case, A is regards to this question, there are two main
guilty of intentional homicide and he cannot schools of thought.
invoke Art.80. Since the identity of human a) The first school supports the general rule:
being one kills is not an ingredient of the that states “Ignorance of Law is no Excuse.”
offense of homicide. According to this school of thought an
3.2. Mistake of Law and Ignorance of offender is not justified by his unawareness
Law: or misconception of a legal provision.
Whether or not he actually knows the law is
Mistake from the point of view of the law in
immaterial for he is in any event
a criminal case is no defense.
conclusively presumed to know it. This
Mistake of law ordinarily means mistake as
presumption will make the courts free from
to the existence of any law on a relevant
ascertaining whether the offender knows his
act is contrary to the law or not which is
 almost impossible. This presumption is laid Thus a mistake of law, like a mistake of fact,
down in the general interest, regardless of affects the “knowledge” component of
the fact that the consequences may be intentional guilt. When it entails that “there
hardship upon individuals, so that social is no criminal intention” (Art.80 (1) second
peace and order be not constantly disrupted aliena), it should produce the same juridical
with impunity. “Every person must be taken effects as a mistake of fact.
to be cognizant of the law; otherwise there is Unit Summary:
no knowing to what extent the excuse of Defenses for criminal liability are
ignorance might be carried”. For purposes of circumstances that relief an accused from
criminal liability, therefore, it is irrelevant conviction of guilt and its consequent
whether the doer is aware of the penalty. These circumstances exempt a
unlawfulness of his act or not. criminal from criminal liability or entitle
b) The second school supports an exception him/her to a reduced punishment.
to the general rule and states: “Ignorance of Criminal law recognizes two categories of
Law May be an Excuse in Certain defenses for criminal liability. These are
Circumstances” special defenses and general defenses.
According to this school of thought, the Although our Criminal Code does not follow
maxim “ignorance of law is not an excuse” this dichotomy, general defenses are
It is not acceptable on the following categorized into justifications and excuses.
grounds: Criminal law provides for defenses because
(1) The complexities of modern life and the of two main reasons. First, justice requires
consequent increase in the volume of laws, the provisions of defenses for certain
makes it completely impossible for anyone criminals. Secondly, a crime is not complete
to know the laws, be it be the laws of his when there are defenses available to the
own country, let alone to understand them. accused.
(2) It is inconsistent with the principle “nulla Excuses are the defects and unusual
poena sine culpa” (no penalty without conditions of the criminal during the
intentional guilty) upon which so many commission of the crime. Thus, if persons
modern codes, including Ethiopian criminal commit crime unwillingly, without
code, are based. understanding the nature and consequences
of their act, with mistaken belief of facts or
law, the law excuses them from criminal UNIT-III
liability. In the cases of the excuses, the
CRIMINAL PUNISHMENT
focus is on the individual criminal rather
than on the crime committed. AND ITS APPLICATION
Justifications are another category of Introduction:
defense for criminal liability. In cases of In this unit, you will study how a court
justifications, there are preliminary passes sentence or penalty on an accused
conditions that enable the doer of the act to that is found guilty beyond reasonable
take necessary and proportionate action. doubt. Once a person is found guilty of the
Thus, when there is an attack on legally crime he/she is accused of, the next thing to
protected rights, the steps taken to reverse do for the court is to pass sentence and
the attack is justifiable act. Similarly, if the penalty that it deems appropriate for the
persons found themselves in imminent and crime committed. The court takes many
serious danger and their only choice is to things into consideration before passing the
avoid this situation by committing a crime, sentence because punishment is a very
their act is justifiable if they have chosen the decisive step on the life, liberty and property
lesser harm. In justifications, the focus is on rights of the accused.
the act rather than on the criminal. The
Objectives:
society encourages those acts. Justifications
 Define and understand the purposes of
include acts required or authorized by law,
punishment in general and as it is
legitimate defense, necessity and
incorporated in the Criminal Code;
professional duty.
 Know the different types of punishment
Persons who raise defenses for criminal
incorporated in our Criminal Code and their
liability in the courts of law admit that they
application;
have done the crime that they are charged
 Identify the principles guiding the
with. However, they claim that their acts are
determination of punishment;
justifiable or excusable in the eyes of the
 Identify the circumstances which may lead
law because of the conditions of the criminal
to the reduction of penalty ((extenuating
and circumstances in which they are
circumstances); and
committed.
 Identify the circumstances which may lead It largely stems from the Biblical saying of
to the increase of penalty (aggravating “an eye for an eye: a tooth for tooth; and life
circumstances). for life”.
Section. 1. Definition and Purpose of 1.2.2. Deterrence:
punishment: The purpose of the punishment is to deter
1.1. Definition of Punishment: the criminal from committing crime in
It is not easy to give a precise definition to future and to set as an example to the
the word “punishment”. since because its prospective criminals.
meaning is highly interrelated with what is Punishment serves as deterrence in two
considered to be the purpose of punishment. ways:
In this regard punishment could be taken to A. General Deterrence:
mean the major mechanism by which the The punishment of one criminal and the
purposes of criminal law are achieved. publicity given to it are assumed to
But let us try to understand some discourage other potential law breakers.
conceptions about the meaning of the term B. Specific / Individual Deterrence:
punishment. Broadly speaking punishment Punishment of the criminal is assumed to
is the response of the society to socially keep that specific criminal from committing
dangerous behavior. It is intended to make other crimes in the future. Some theories
the offender no more dangerous to the assume that criminals lack internal
integrity of the society. But if it is not inhibitors, and hence unpleasant sanctions
imposed according to certain reasonable must be used to teach them a lesson.
principles it might even produce unwanted 1.2.3. Prevention/Incapacitation:
effects. “Punishment in all its forms is a loss According to this conception, the purpose of
of rights or advantages consequent on a punishment is to prevent the criminal from
breach of law. When it loses this quality it committing crimes by physically disabling
degenerates into an arbitrary act of violence him by separating him and keeping him in
that can produce nothing but bad social seclusion from the society for a certain
effects.” period of time.
1.2. Purpose of Punishment: 1.2.4. Reformation /Rehabilitations:
1.2.1. Retribution:
Punishment satisfies the feeling of revenge.
Punishment the purpose of which is to relating to different types of punishments.
change the character of the offender is Let us see some of them:
known as reformative punishment. Art. 87 The Criminal Punishment And
This theory is also known as corrective or Its Application- Principle.
rehabilitative theory'. Reformation means Article. 107: Substitution of Compulsory
“the effort to restore a man to society as a Labour for Simple Imprisonment.
better and wiser man and as a good citizen.” Article. 108 Rigorous Imprisonment.
Rehabilitative element of the punishment Art. 190 Conditional Suspension of
includes restoration of the criminal to Penalty:
effectiveness or normal life by training etc.
In modern time’s reformative measures are Now, let us find the provisions of the Code
adopted in cases of juvenile offenders. In which advocate for the principle of
prison they are given some education and individualization of punishment.
are subjected to some such prison programs
so that they can learn some kind of work Art.88 Calculation of Sentence.
which may help them in earning their Sub. Art (2)"The penalty shall be
livelihood after coming out of the prison. determined according to the degree of
1.2.5. The Integrative view: individual guilt, taking in to account the
It is now recognized that ‘the prevention of dangerous disposition of the criminal, his
crime and protection of society' are ends antecedents, motive and purpose, his
asserted by everyone. Thus, an inclusive personal circumstances and standard of
theory' which is a cultivation of all the education, as well as the gravity of the crime
elements of retribution, deterrence, and the circumstances of its commission."
prevention and reformation has been gaining 1.2. The Principle of Individualization
ground in recent years. of Punishment:
Purposes of Punishment under the 2. universalization of punishment is
Criminal Code of 2004:/Art. ½ of cr.c impossible. Therefore, we have to study
Further, the purposes of deterrence, the criminal before prescribing the
prevention, reformation and rehabilitation proper form of punishment to him
are specifically mentioned in the provisions according to his physical, social,
educational or cultural make-up to
 design a punishment that suits him  Punishments Restricting or Depriving
perfectly to achieve the specific Liberty – Art. 103-116
objectives of criminal justice. Modern  Death Penalty – Art. 117-120.
criminal law, therefore, emphasizes up 2.1.1. Pecuniary Penalties:
on the individualization of punishment The Criminal Code includes the following
although there are difficulties in its types of penalties which are payable in
implementation. terms of money:
Section.2. Kinds Of Punishments: a) Fine
The Criminal Code carefully designs and b) Sequestration
prescribes punishments for crimes of various c) Other pecuniary effects
kinds and criminals of various categories.  In case the Criminal is a Natural
Thus, there are three different sets of Person:
punishments under the code. -The degree of guilt.
 Ordinary punishments applicable to -His/her financial condition
Adults –Book II, Title I, Articles 90-156. -His/her family responsibilities
 Measures and penalties applicable to -His/her occupation and earning
young persons-Book II, Title I Articles 57- -His/her age and health.
177. -His/her age and health.
 Penalties and measures applicable to  In case the Criminal is a Juridical
Petty offences-Petty Code, Book VII Title II Person:
Articles 746-764. Where a juridical person (Art. 90(3)) such as
Punishment applicable to adults: a corporation is convicted of a crime
We find three categories of punishments punishable by only imprisonment it shall be
mentioned in Articles 90-156: converted in to fine.
I. Principal penalties B. Confiscation of Property: Art.98
II. Secondary penalties ‘Confiscation’ means, “appropriation of
III. Special measures applicable to Adults private property to the public treasury by
2.1. Principal Penalties way of penalty.” The Court may order
Principal penalties can be put under the confiscation any of the following properties
following heads: of the criminal:
 Pecuniary Penalties-art. 90-102. o His estate or part of his estate.
 o Any property of the criminal:  Conspiring or engaging in hostile acts
-Acquired in the commission of the again to the internal and external security of
crime directly or indirectly. the state.
- Acquired lawfully by the criminal,  Sequestration may be ordered subject to
if necessary. the following conditions:
 Property Exempt from Confiscation:  The criminal should have been convicted
Sub. Art (3) 98 exempts the following and sentenced in his absence,
properties of the criminal from confiscation:  Sequestration of the property of the
 Articles necessary for the livelihood of criminal may be ordered in addition to any
the criminal and his family, include: other penalty.
- domestic articles normally in use, The properties of the criminal which are
- instruments of trade or profession exempted from confiscation under Art. 98(3)
and agricultural implements; are also exempt from sequestration.
- Food stuffs and money as are D. Other Pecuniary Effects:
necessary for the support of the family of the The pecuniary penalties include the
criminal for a period of not less than 6 following ‘other pecuniary effects’. These
months or for a longer period that the court are:
regards just and reasonable having regard to 1. Forfeiture of material benefits to the state
the circumstances. 2. Compensation for damages caused to the
C. Sequestration of property: victim.
‘Sequestration’, is ‘a legal process a. To be paid by the criminal Art.101.
consisting of temporary deprivation of a b. To be paid form the proceeds of sale of
person or his property, until the claims on confiscated property, etc. Art 102.
such property are settled or to make him to The following are the important points
do or abstain from doing an act within a relating to these pecuniary effects:
specified time.” This penalty is resorted to in  Forfeiture to the state:
the case of specific category of crimes Any material benefits given or intended to
mentioned in Art 99, namely: be given to a criminal to commit a crime
 Conspiring or engaging in hostile acts shall be forfeited to the state. (Art.100). If
against the constitutional order, or, such materials do not exist in the form they
are acquired, the person who received them
 shall be ordered to refund their value. (Art. ‘Damage’ means “loss or injury to person or
100(1)) property.”
Forfeiture of the ‘crime proceeds’ to the 2.1.2. Penalties Resulting in Restriction or
state is subject to the following provided by Loss of Liberty:
Art. 100(2): Compulsory Labour:
 Any fruits of a crime shall be In cases of minor crimes which are
returned to the owner or any other punishable with simple imprisonment for a
claimant. term not exceeding 6 months; the court may
 Where the owner of such property sentence the criminal to compulsory labour
recovered under sub. Art(1), is not with the following variations:
found the following steps shall be  Compulsory labour with deduction of
taken by the court: wages to the benefit of the state, (Art, 103)
o A notice shall be published notifying the  Compulsory labour with restriction of
recovery of such property. personal liberty (Art. 104)
o In case the owner or other claimant of the Imprisonment:
property does not appear to claim them There are two kinds of imprisonment. These
within 5 years from the date of publication are:
of notice, the fruits of crime shall be 1. Simple Imprisonment
forfeited to the state. 2. Rigorous Imprisonment.
o If such property is a perishable property it ‘Imprisonment’, as a punishment, is defined
shall be sold in accordance with the usual as the deprivation of the liberty of the
procedure. The money shall be entrusted to a criminal by detaining him in prison. The
competent authority for a period not expression ‘imprison’ literally means, to
exceeding 5 years. After this period it shall confine, to incarcerate or to deprive one of
be forfeited to the state(Art 100(2)) his liberty.
 Compensation to the Injured: Art. 101 1. Simple Imprisonment:
A. To Be Paid by the Criminal or Those The rules relating to simple imprisonment are
Liable on His Behalf: laid down in Articles. 106 and 107 as
Article.101. intends to compensate the follows:
injured party for the ‘damage’ he suffered.  The sentence is applicable to less serious
crimes which are committed by persons
 who are not serious dangers to the  Such substitution is possible only in respect
society. to crimes for which the special part of the
 The duration of this sentence ranges code provides for a term of simple
shall be fixed by the court in its imprisonment not exceeding six months.
judgment. The period shall be:  The substitution of simple imprisonment by
Normally, ten days minimum and three compulsory labour under Art. 107 is
years maximum. possible though no such reference is made
Exceptionally, it may extend up to five under the special part of the Criminal Code.
years under the following circumstances: 2. Rigorous Imprisonment:
o Where it is prescribed so by the Special Part ‘Rigour’ here means ‘the quality of being
of the Code owing to the gravity of the strict.’ Art.108 expressly speaks about the
crime, or nature of the rigorous imprisonment, but not
o Where there are concurrent crimes very clearly. It says that this sentence is
punishable with simple imprisonment, or intended to provide for:
o Where the criminal has been punished  A strict confinement of the criminal,
repeatedly.  Special protection to society, and
o The sentence of simple imprisonment  The punishment and rehabilitation of the

shall be served in a prison which is criminal.

specially kept for the purpose of simple  The duration of rigorous

imprisonment imprisonment is:

o In certain cases simple imprisonment  Normally, ranges from a minimum of

may be substituted by compulsory one year to twenty five years.

labour. For two important reasons  Exceptionally, it may be “for life”,

substitution may be given (Art.107): where it is expressly laid down by law

o If by reason of local administrative (Art. 108(1).

 The sentence of rigorous imprisonment
difficulties, the execution of the sentence
shall be served in those prisons which
of simple imprisonment is not possible.
are established for the purpose.
o If it is found that the carrying out of such
(Art.108(2)).
sentence is not conducive to the reform
or the rehabilitation of the criminal.
 Provisions Common for both ‘Simple’ limits on the way in which the death penalty
and ‘Rigorous’ Imprisonments: can be imposed. Capital punishment:
Articles 109-116 lay down the following 1. May only be imposed for the most serious
provisions which are commonly applicable crimes, pursuant to a final judgment
to both forms of imprisonment: rendered by a court and providing it is not
2.1.3. Death Penalty: contrary to the provisions of human rights

This is state imposed death as punishment law e.g. not a crime of genocide.

for a serious crime and is also termed 2. Anyone sentenced to death has the right to

"capital punishment". seek pardon or commutation of the sentence;

2.1.3.3Constitutionality of Death Penalty: 3. Death sentence is not to be imposed on

The death penalty or capital punishment as it anyone below the age of 18 or carried out on

Is, otherwise known, continues to be pregnant women.

legitimate and practiced in a number of 3. Right to Survival:

states around the world. Some states have When talking about children, the right to life

outlawed the death penalty except for most can often mean the right to survival. Human

extreme cases e.g. crimes committed during rights law already forbids the use of the

war. Other states while they may not have death penalty for children. However, child

outlawed the death penalty are in practice rights treaties impose another obligation on

abolitionist by not actually sentencing states to meet the basic needs of the child in

offenders to death. Some of the earliest terms of nutrition, health, food, shelter etc.

human rights activism, for example, by to enable the child's survival.

Amnesty International concerned with 4. Rights of Victims

protecting political prisoners from being Victims of extrajudicial, summary or

sentenced to death for their political beliefs. arbitrary executions are entitled to adequate

The death penalty might appear to constitute compensation from the state where the

a violation of the right to life but human violation was committed. Granting

rights law falls short of insisting that it does. compensation is separate from the additional

It leaves states the option to impose the obligation on states to conduct

death penalty but urges them to move investigations and punish perpetrators.

towards abolition and also imposes certain

5. International and Regional Instruments as the death penalty persists, innocent
for Protection and Promotion: people will be executed.
International legal instruments take the form o It is also discriminatory and is often used
of a treaty (also called agreement, disproportionately against the poor, the
convention, or protocol) that binds the powerless and the marginalized, as well as
contracting states to the negotiated terms. against people whom repressive
When negotiations are completed, the text of governments want to eliminate.
a treaty is established as authentic and o The death penalty does not deter crime more
definitive and is "signed" by the than other punishments. In Canada the
representatives of states. A state can agree to homicide rate has fallen by 40 per cent since
be bound to a treaty in various ways. The 1975; the death penalty was abolished for
most common are ratification or accession. murder in 1976.
When a state ratifies or accedes to a treaty, o International human rights treaties prohibit
that state may make reservations to one or courts sentencing anyone who was under 18
more articles of the treaty, unless years old at the time of the crime to death, or
reservations are prohibited by the treaty. executing them. But a small number of
Reservations may normally be withdrawn at countries continue to execute child
any time. offenders, violating their obligations under
6. Ethiopia’s Obligation to Stand international law.
Committed to the International Treaties o Methods of Execution:
and Instruments: There are eight main methods of execution
”. Amnesty International works for an end to in current use worldwide:
executions and the abolition of the death o Beheading: Only two countries execute
penalty everywhere. The major grounds for people by chopping their head off: Saudi
this argument are: Arabia and Iraq.
o An execution, just like torture, involves a Electric chair: (US only) Nobody knows
deliberate assault on a prisoner. Even so- how quickly a person dies from the electric
called 'humane' methods such as lethal shock, or what they experience.
injection can entail excruciating suffering. Firing squad: The prisoner is bound and
o Capital punishment is irrevocable. All shot through the heart by multiple
judicial systems make mistakes, and as long marksmen. Death appears to be quick,
 assuming the killers don't miss. In the U.S., equal to primary punishment. Thus, before
only Utah used this method. imposing a secondary penalty the court has
Guillotine: A famous French invention, not to pronounce a primary penalty, which it
used in North America. It severs the neck. deems to be appropriate for a crime.
Death comes very quickly. However, they may replace the principal
o Hanging: if properly conducted, this is a penalty under the conditions stated by the
humane method. The neck is broken and provision of article 122(2).
death comes quickly. However, if the free-  If such is specifically laid down by the
fall distance is inadequate, the prisoner ends law; or
up slowly being strangled to death. If it is  Where there are extenuating
too great, the rope will tear his/her head off. circumstances; or
This method is used in Egypt, Ethiopia, Iran,  Where the law provides for a free
India, Japan, Jordan, Pakistan, Singapore mitigation of the punishment (article 82
and others. &83); or
Lethal injection: Lethal drugs are injected Where enforcement of the sentence is
into the prisoner while he lays strapped postponed.
down to a table. 2.2.1. Types of Secondary Penalties:
Poison gas: Cyanide capsules are dropped There are different types of secondary
into acid producing Hydrogen Cyanide, a penalties. These are:
deadly gas. This takes many minutes of A. Caution, Reprimand, Admonishment
agony before a person dies. (Article 122):
Stoning: The prisoner is often buried up to b) Caution: warning
her or his neck and pelted with rocks until c) Admonishment: expression of
they eventually die. disapproval of ones actions or behavior
2.1.3.4. General Principles Relating to d) Reprimand: strong official disapproval
Death Penalty Arts. 117-120: of some one
e) Public apology (Article. 122)
2.2. Secondary Penalitites The criminal does this to the person injured
A court may impose a secondary penalty on at the order of a court.
a criminal in addition to the primary A. Deprivation of rights (Art.123)
punishment. Secondary penalties are not
2.3 Special Measures Applicable to safety or order or if he proves to be

Adults: dangerous to the persons living with him,

the court shall order his confinement in a
Our law does not only penalize a criminal
suitable institution. As per article 131, if
but it also has designed protective measures
such criminal is suffering from a mental
specially to achieve reformative and
disease or deficiency, deaf and dumbness,
rehabilitatory purposes.
epilepsy, chronic alcoholism, intoxication
Measures could be imposed both on a
due to the abuse of narcotics or any other
person convicted for a crime and those not
pathological deficiency and requires to be
responsible for a crime because it is a
treated or placed in a hospital or asylum, the
protective step. However, for the sake of
court shall order his treatment in a suitable
clarity and understanding our code has three
institution or department of an institution.
categories of measures. These are dealt with
2.3.2. General Measures for the Purposes
as follows:
of Prevention and Protection:
These types of measures are applied together
2.3.1. Measures applicable Irresponsible
with principal penalties when the
persons and criminals with limited
circumstances of the case justify them in the
responsibility:
opinion of the court. They are applied even
if they are not mentioned in the special part
For a person to be punished for a crime he
of the code. Such measures are divided into
should be responsible i.e. there should be no
three categories
irresponsibility. If a person commits a crime
2.3.3. Measures of a Material Nature:
for which he is absolutely irresponsible or
 Guarantee of Good Conduct (Article
responsible in a limited manner, then he is
135)
either not punishable or the penalty is
 Seizure of Dangerous Article (140)
reduced as the case may be. However, there
2.3.4. Measures Entailing Restriction on
will be protective measures to be imposed
Activities:
on such persons.
 Suspension and withdrawal of a
license (Article 142):
Theses are the measures of confinement and
 Prohibition and closing of an
treatment. According to articles 130(1), if a
undertaking (article 143):
criminal is found to be a threat to public
2.3.5. Measures Entailing a Restriction on 3.3. Extenuating Circumstances:
Personal Liberty: The punishments to be imposed on a
 Prohibition from resorting to certain criminal need not necessarily be exactly the
places (Article 145): one which is prescribed for the specific
Prohibition to settle down or reside in a crime. It can be mitigated (or extenuated or
place (Article 146): reduced) or aggravated (increased) in the
Obligation to Reside in Special Place or circumstances listed out by the Criminal
Area Article. 147: Code. Arts. 82-86 categorize the
 Placing under Supervision (Article circumstances into the following groups:
148)  General Extenuating Circumstances-
 Withdrawal of Official Papers Article. Art.82
149:  Special Mitigating Circumstances- Art.
 Expulsion (Article 150) 83
 General Aggravating Circumstances-
2.3.6. Measures for the Purpose of Art. 84
Information:  Special Aggravating Circumstances- Art.
These are of three types: 85
 Notification to the Competent  Other General Extenuating and
Authority Article. 154: Aggravating Circumstances- Art. 86
 Publication of the Judgment Article. Let us first see the main categories of
155: extenuating circumstances:
 Entry in the Judgment Register Section.4. Post Conviction
Article. 156:
Processes:
 Section.3. Determination Of
The following are the ‘post conviction
Punishment: procedures’:
 Suspension of penalty and conditional
3.1. General Principles of Determination release,
of Punishment: Arts. 87-89:  Pardon and Amnesty,
 Reinstatement.
 1.1.1. Suspension of Penalty: Pardon may be defined as “the act or
instance of officially nullifying punishment
 Meaning and Purpose: Art. 190 or other legal consequences of crime”. The
The principle of conditional suspension of chief executive of a government usually
penalty is for the promotion of the reform grants a pardon. The president has the sole
and reinstatement of the criminal by giving power to issue pardons.
him room to help himself in his own Pardon may be defined as “the act or
reformation. There are two kinds of instance of officially nullifying punishment
suspension of penalties under the Criminal or other legal consequences of crime”. The
Code. These are: chief executive of a government usually
grants a pardon. The president has the sole
 Suspension of Pronouncement of power to issue pardons.
Penalty, Art. 191
 Suspension of Enforcement of Amnesty is also a species of pardon but
Penalty, Art. 192 applies to a certain classes of criminals and
4.1.3 Essential Conditions for Suspension specific type of crimes only. Amnesty
of Pronouncement of Penalty :Art. 191 means, “a pardon extended by the
government to a group or class of persons
 The criminal must not have any usually for a political offense; the act of a
previous conviction i.e. he must be a first sovereign power officially forgiving certain
offender, classes of persons who are subject to trail
 He should not appear to be of dangerous but have not yet been convicted. Unlike an
character, ordinary pardon, amnesty is usually
 The crime he is convicted of should be addressed to crimes against state sovereignty
punishable only with fine, Art. 90 i.e. to political offences with respect to
compulsory labour, Art. 103 and 104, or which forgiveness is deemed more
 Simple imprisonment for less than 3 expedient for the public welfare than
years, Art. 106 prosecution and punishment. Amnesty is
usually general, addressed to classes or even
4.2. Pardon and Amnesty: communities, which also termed as ‘general
pardon’.
Pardon may be defined as “the act or Differences between Pardon and
instance of officially nullifying punishment Amnesty:
or other legal consequences of crime”. The  Pardon is remittance of penalty while
chief executive of a government usually amnesty is a general pardon especially for
grants a pardon. The president has the sole political crimes against government.
power to issue pardons.  Pardon is granted by the competent authority
where as amnesty is granted by the
Amnesty is also a species of pardon but appropriate competent authority.
applies to a certain classes of criminals and  In pardon, the remission of sentence may be
specific type of crimes only. Amnesty whole or in part and in amnesty, it is always
means, “a pardon extended by the complete remission.
government to a group or class of persons  Pardon may completely remit the penalty or
usually for a political offense; the act of a commute the same to a penalty of lesser
sovereign power officially forgiving certain nature or gravity.
classes of persons who are subject to trail  Pardon may apply to all penalties and
but have not yet been convicted. Unlike an measures whether principal or secondary.
ordinary pardon, amnesty is usually But amnesty may be granted in respect to
addressed to crimes against state sovereignty certain crimes and certain classes of
i.e. to political offences with respect to criminals only.
which forgiveness is deemed more  The order of pardon may determine the
expedient for the public welfare than conditions to which it is subjected to and its
prosecution and punishment. Amnesty is scope. Amnesty may be either absolute or
usually general, addressed to classes or even subject to certain conditions and obligations.
communities, which also termed as ‘general  Pardon shall not cancel the sentence. The
pardon’. entry of sentence shall remain in the
Articles. 229 and 230 of the Criminal judgment register of the criminal and
Code deal with the concepts of ‘Pardon’ continue to produce its other effects.
and ‘Amnesty’. However, amnesty, cancels both the
indictment and the sentence and bars or
discontinues any prosecution from the
moment of its promulgation. If the sentence
 is already, passed amnesty cancels it as well
as all its consequences under the criminal Section. 5. Disposition of the
law. The conviction shall be presumed non-
Criminal
existent and the entry shall be deleted from
5.1. Systems of Determination of
the judgment register of the criminal.
Penalty:
4.4 Conditional Release: Art. 201 To understand the modern system of

This is provided towards the end of the determination of penalties it is necessary to

enforcement of the penalty. This provision examine the two systems which are

may be applied in all cases where a penalty theoretically opposed as to the determination

or measure resulting in ‘loss of liberty’ is of penalty.

imposed. Conditional release also is base on 1. System of Discretionary Penalties:

the consideration that it serves as a means of This system was applied in Pre-

reform and social reinstatement. Therefore, Revolutionary French law.

it must be awarded in case of criminals who The penalty is not determined by the law;

satisfy the conditions laid down by the Code the judge establishes it taking into account

under Art. 202. Further, conditional release the particular circumstances under which the

should be adopted only in cases where it crime was committed and the personality if

affords a reasonable chance of success. the criminal. He may, for instance, take into
account the background of the criminal, his
general character, the reasons for which the
4.3. Reinstatement: Arts.232-237
crime was committed, etc. This system
4.3.1. Meaning of Reinstatement:
would allow the penalty to be fitted to the
guilt of the criminal, to the possibilities of
Principle: Article 232
his reform or, as we would say today to, the
Conditions for Reinstatement: Article 233
needs of “social rehabilitation”-in brief-to
6. Reinstatement in Cases where the
accomplish “an individualization of the
Penalty is time barred: Article 234
penalty”. It has, on the other hand, the
4.3.4 Effects of Reinstatement: Article 235
disadvantage of tending towards the
 Dismissal and Renewal of the
arbitrary and of weakening of the
Request: Article 236
intimidation value of the penalty.
 Revocation of the Decision: Article 237
2. The System of Fixed Penalties: providing, when necessary, very severe
This system is adopted by the legislators of penalties. In establishing the scale of
the French Revolutionary period which penalties the legislator tries to set the
consists in the legislative determination of penalty according to the seriousness of the
the penalty to be applied to the crime crime.
without any possible modification designed The Role of the Judge:
to fit the personality of the criminal. This Judge plays a key role in the application of
system has the advantage of being strongly penalties. He is required to exercise his
deterrent and therefore of maintaining the discretion in identifying the following
full intimidation value of the penalty. important factors;
However, it has the disadvantage of being 1. The circumstances of commission of the
unjust and even ineffectual by not allowing crime
the penalty to be fitted to the crime 2. The personal circumstances of the
committed by the criminal and his chances criminal.
to reform. The Role of the Judge:
The Modern System: Judge plays a key role in the application of
Modern penal law has endeavored to borrow penalties. He is required to exercise his
from both the systems; thus the penalty is in discretion in identifying the following
principle established by the legislature but important factors;
individualized significantly in its application 1. The circumstances of commission of the
by the judge or the executive, to the specific crime
criminal. This allows for the successive 2. The personal circumstances of the
participation of the legislator, the judge and criminal.
the administrative authorities. He has the guidelines enlisted in this regards
The Role of the Legislator: under the heads of aggravating
The legislator enacts the basic penalties. The circumstances, mitigating circumstances as
scheme guarantees against arbitrary action well as Art 86 giving him extra discretionary
by judges, at least in the sense that the power to identify any other aggravating or
judges cannot sentence beyond the mitigating circumstances. Arts 86, 87 and 88
maximum penalty provided by law. Such a give reasonable guidance for the judge to
scheme also allows for deterrence by play his role effectively.
 Role of the Administrator: but a combination of purposes according to
The prison authorities are sufficiently the individual circumstances of each case.
empowered by the Criminal Code to make Thus, punishment has the purpose of
rules and regulations that are required to deterring the criminal from committing
make the enforcement of punishment meet another crime in the future, the purpose of
objectives of punishment as well as the ends separating criminal from mixing with the
of justice. The Court makes variations in the society they have disturbed for a certain
sentences either to make them stricter or less time or indefinitely. Punishment also has the
harsh at the recommendation of the prison purpose of reforming or teaching the
management. The administrative criminal so that he can rectify his criminal
individualization of punishment is very behavior to integrate himself back to the
evident in the following three measures: society.
 Pardon and Amnesty
 Prison Administration Our Criminal Code provides for three
 Conditional release categories of penalties. These are primary

Unit Summary: penalties, secondary penalties and measures.

Primary penalties can affect the property of
Once a person is found guilty of the crime
the criminal (fines), or liberty of the criminal
he is accused of, the court will pass sentence
(imprisonment), and the life of the criminal
penalizing him with fine or imprisonment or
(death penalty). There is also one special
both, which it deems, is appropriate for the
category of penalties specially designed for
crime committed. The definition of
the young offenders. These have been dealt
punishment is linked with what is
with in the first part of this module.
considered to be purpose of the punishment.
Secondary penalties are not imposed as
In this regard punishment could be taken to
punishment by themselves. They are
mean the major mechanism by which the
imposed in addition to at least one primary
purposes of criminal law are achieved.
penalty. The court has the discretion to
In the history of criminal law there have
impose or not to impose secondary
been many conceptions as to what the
penalties. Caution, reprimand, admonition,
purpose of punishment should be. But
public apology and deprivation of rights are
modem criminal laws now consider that
criminal law cannot have a single purpose
the secondary penalties recognized under for extending protection to its subjects and
our Criminal Code. other inhabitants of the State. A State which
is unstable and is experiencing threats from
Measures are not strictly speaking penalties. inside and outside can not devote itself to
They are ordered for the reformation or the welfare of the people. Therefore, the law
protection of the offender and for the that protects the interests of the State is of
protection of the society from the effects of utmost priority in criminal law. The crimes
criminal behaviors. The Code has three that affect the general interests of the
categories of measure namely: those community occupy the next place in the
applicable to adult offenders in special Criminal Code. The crimes against the
circumstances i.e. recidivists and habitual public order, morality, public health etc are
offenders and irresponsible offenders and found in the second place. The crimes
offenders with limited responsibility; those affecting the life, personal liberty, property,
applicable to young persons and those marriage and honor of an individual fall in
general measures taken for the purpose of the subsequent sections of the Criminal
prevention and protection. Code. Finally, the offences of petty nature
are incorporated in the Petty Code.
UNIT– IV
The newly incorporated crimes such as
SPECIAL PART OF PENAL CODE harmful traditional practices, cyber crimes,
hijacking of air crafts, money laundering,
Introduction:
crimes related to corruption of drugs
The crucial part of the Criminal Code is the
indicate a remarkable progress in the
Special Part that enumerates the conducts
development of criminal law of our country.
that should be prohibited for the purpose of
protecting various interests of the society in
general and the individual interests of a Section.1. General Considerations:
person in particular. The special Part 1.1. The Relationship of the General

systematically arranges the crimes affecting and Special Parts:

different interests in a logical order. The The first most important thing that the

crimes affecting the ‘interests of the State’ criminal law students should understand is

take the first place in the order as the safety, the relationship between different parts of

security and stability of the State are crucial the Criminal Code. The ‘General Part’ of the
 Criminal Code sets out the general for example, homicide, theft, robbery,
principles of criminal liability which are adultery etc., and the material and moral
common to all crimes. This part explains the ingredients essential for the commission of
meaning of criminal act, criminal intention such crimes are laid down clearly in those
or negligence i.e. ‘the guilt’ and lays down articles defining crimes. Further, the articles
the principles following which an accused’s prescribe the punishment considered
act can be declared punishable. Further, the appropriate for each crime. The two parts of
general part prescribes and defines the kinds the Code do not operate independently. The
of punishments and measures to be applied applicability of the General Part to the
in each case. The concepts like probation, Special Part can be understood in the
suspension of sentences, periods of following ways:
limitation for prosecution as well as a. Establishing the Commission of the
enforcement of punishment and conditions Crime:/General part of the code/
relating to pardon and amnesty are clearly b. To Fulfill the Requirements of the
provided for in the general part. All these Principle of Individualization of Criminal
provisions are commonly applicable to all Punishment:
crimes and are essential for two important Once the criminal liability of the accused is
purposes of a criminal trail: established the next important question is to
 To establish the ‘criminal liability’ by determine his sentence. The provisions of
finding the concurrence of the ‘act’ and the the Special Part not only define the crimes
‘guilty mind’ of the accused but also prescribe the appropriate
 To determine the type and the quantum of punishment for the crime.
punishment to be applied to the criminal i.e.
the convict( the guilty) The principal guiding principles relating to
The ‘Special Part’ of the Code describes the how the sentences are calculated are found
various acts which are considered harmful in the following important provisions:
and thereby, criminal. This part of the Code 1. Article 87 of the Criminal Code: It
clearly identifies the conduct it seeks to refers to Article 1 and says that “the
prohibit and defines the essential elements penalties and measures provided by this
of each of such crimes. Each of the Code punishment must be applied in
prohibited conduct is given a specific name, accordance with the spirit of the Code
 and so as to achieve the purpose it has Section 2. Crimes against the State:
in view”. 3.1 Treason And Its Kinds:
2. Article 88 of the Criminal Code: This  Treason under Criminal Code of Ethiopia
provision lays down very important Articles 248-250 of the Criminal Code of
guidelines relating to calculation of Ethiopia define three types of treasons
sentences including the individualization of namely, high treason, treason and economic
criminal justice and further emphasize the treason.
relationship between the General and 3.2 Espionage:
Special Parts of the Criminal Code:  Espionage-Meaning and Definition:
3. Aggravating and Mitigating Espionage is the practice of obtaining
Circumstances: information about an organization or a
Arts 82-86 enumerate the circumstances in society that is considered secret or
which the punishment to a crime may be confidential (spying) without the permission
increased or decreased as the circumstances of the holder of the information.
warrant in each case though the provision Espionage is usually thought of as part of an
defining that crime suggests a specific institutional effort (i.e., governmental or
punishment. These provisions thus give corporate espionage). The term espionage is
further guidance to the application of the most readily associated with state spying on
principle of individualization of criminal potential or actual enemies, primarily for
justice. military purposes, but this has been
4. Special Treatment for Young extended to spying involving corporations,
Criminals, Women and Mentally known specifically as industrial espionage.
Challenged: A ‘spy’ is an agent employed to obtain such
The provisions of Criminal Code that secrets.
provide for the special treatment of these  Espionage and Spies:
special groups also emphasize the need to Espionage occurs in societies at peace and at
make references to the General Part of the war. Nations at peace use spies to gather
Code while deciding the cases involving information on a country's military
women, children and the feeble minded. preparations and plans for war. During war
espionage is used to gather information
about opposing armies and to mislead
 opponents through counterintelligence.
Civil and Political Rights
Those engaged in spying risk imprisonment
Every human being has the inherent right to
and death if convicted of treason.
life and this right must be protected by law.
 Espionage Under the Criminal Code: Art.
However, this right is not as sacrosanct and
252
inviolable as it sounds. The main principle
in human rights law is that no-one shall be
Section. 3. Crimes Against life: arbitrarily deprived of life meaning that
3.4. Right to Life Under the states can take human life providing laws
Constitution and the Constitutionality of and procedures are followed.
the ‘Death Penalty’:
 Right to Life: Deprivation of life resulting from the use of
Right to life is a phrase that describes the force which is no more than absolutely
belief that a human being has an essential necessary; includes:
right to live, particularly that a human being a. In defence of any person from unlawful
has the right not to be killed by another violence;
human being. The concept of a right to life b. In order to effect a lawful arrest or to
is central to debates on the issues of capital prevent the escape of a person lawfully
punishment, euthanasia, self defense, detained;
abortion and war. The right to life is c. In action lawfully taken for the purpose
enshrined in Article 3 of the United Nations' of quelling a riot or insurrection.
Universal Declaration of Human Rights and Human rights law is silent on other
in Article 6 of the International Covenant on controversial areas concerning the right to
Civil and Political Rights, making it a life, namely abortion and the right of the
legally enforceable right in every United unborn child and euthanasia.
Nations member state:  Homicide-Meaning of the Term:
Homicide is a neutral term. It describes an act
“ Every human being has the inherent
with no moral judgment. Murder is the term
right to life. This right shall be that is non-neutral. It describes an act with

protected by law. No one shall be moral judgment.

arbitrarily deprived of his life.”

—Article 6.1 of the International Covenant on 1. Justifiable Homicides:

These are "no fault" homicides. They d. Involuntary Manslaughter:
ordinarily involve the death of someone This is the crime of Criminal Negligence,
under circumstances of necessity or duty sometimes called misdemeanor
(commanded or authorized by law). manslaughter. It's the least serious offense in
Examples would be self-defense, capital the law of homicide.
punishment, and police shootings. 3.2. Homicide and its Forms Under The
2. Excusable Homicides: Criminal Code of Ethiopia: Arts-538-544
These are misadventures, accidents, or acts of
insanity.
3.2.2. Infanticide:
3. Criminal or Culpable Homicides:
The tragedy of maternal filicide, or child
a. First Degree Criminal Homicide
murder by mothers, has occurred throughout
(Murder):
history and throughout the world. Maternal
These are acts involving the death of
filicide is defined as child murder by the
someone in "cold-blood" or by "lying in
mother. Infanticide is child murder in the
wait". They are distinguishable a mental
first year of life. The term neonaticide was
state of "purposely" which is having three
coined by Resnick to describe murder of an
(3) elements: (a) premeditated -- meaning
infant within the first 24 hours of life.
fixed or obsessed; (b) deliberate -- meaning
 Socio-economic Reasons for
"cool"; and (c) malicious -- meaning
Infanticide:
scheming or clever. Also, the crime of
Mothers who were poor, socially isolated,
felony murder (someone dies during
full-time caregivers, who and were victims
commission of a felony) is automatically
of domestic violence or had other
first degree homicide.
relationship problems, were found among
b. Second Degree Criminal Homicide
the perpetrators of infanticide.
(Murder):
Disadvantaged socioeconomic backgrounds
These are acts involving the death of
and primary responsibility for the children
someone in the "heat of passion".
were common reasons for infanticide.
c. Voluntary Manslaughter:
Manslaughter, in general, involves acts
involving the death of someone without
 Infanticide Laws:
thinking. It involves "sudden passion".
There's no premeditated deliberation.
 Infanticide laws often reduce the penalty for The principles relating to crimes against
mothers who kill their children up to one person and health are laid down in Article
year of age, based on the principle that a 553. Intentional or negligent causing of
woman who commits infanticide does so bodily injury or impairing of another’s
because "the balance of her mind is health no matter whatever means or manner
disturbed by reason of her not having fully used is punishable under this part of the
recovered from the effect of giving birth to Code. Causing of any manner of whatsoever
the child" . including bodily assaults, blows, wounds,
maiming, injuries or harm and all damage to
 The Ethiopian Law on Infanticide: the physical and mental health of an
Under the Art 544/1 of the Criminal Code, individual is prohibited. Therefore, injury
to constitute a crime of infanticide the under the Code means both ‘physical’ and
following essential elements must be ‘mental injury’.
fulfilled: 4.1.Grave Willful Injury: Art. 555
1. There should be an intentional killing of The expression ‘grave or serious injury’
an infant covers the following types of injuries within
2.By its mother under either of the two the meaning of clauses (a) to (c):
conditions:  Wounds that endanger life
A. while she is in labour, or  Injuries that jeopardize physical or
B. while still suffering from the mental health
direct effects of labour  Maiming of body or one of the essential
limbs of body
 Punishment for Infanticide:  Disabling body or limbs
1. Simple imprisonment for the completed  Grave or conspicuous disfiguration of a
crime, having regard to the circumstances person
of the case.  Infliction of any other injury or disease
2. Mitigated punishment under Art 180, for of a serious nature
an attempted infanticide, if the infant has Punishment: Simple imprisonment not less
suffered no injury after the attack by the than 1 year to rigorous imprisonment not
mother. exceeding 15 years.
Section.4. Crimes against Persons 1.1. Common Willful Injury: Art. 556
All other injuries to the person other than underscored the responsibility of
those that fall under the specific descriptions governments to not only respect those rights
under Article 555 are common willful but also to create the legal and policy
injuries. environment for their realization.
1.1. Injuries by Negligence: Art. 559 Articles 14, 15, and 16 under Section I
(Human Rights) of the Constitution refer to
4.4.Assaults: Art 560 the rights to life, liberty, and security of the
person. Article 35 refers to women’s
Section.5. Crimes against Women equality with men and their rights to

and Children: information and the capacity to be protected

from the dangers of pregnancy and
5.1. Constitutional Principles Relating to
childbirth.
the Protection of Women and Children:
Art 35/4 of the Constitution of FDRE,
Ethiopia has ratified international human
1995: “The State shall enforce the right of
rights conventions and treaties that are
women to eliminate the influences of
legally binding and that form international
harmful customs. Laws, customs and
law. The Convention on the Elimination of
practices that oppress or cause bodily or
All Forms of Discrimination Against
mental harm to women are prohibited.”
Women (CEDAW), which provides the
Art 36/1 the Constitution of FDRE, 1995:
foundation for reproductive rights, is one
“Every child has the right:
such notable convention. The Tehran
Proclamation, the International Conference
A. To life;
on Population and Development (ICPD), the
B. To a name and nationality;
Fourth World Congress on Women, and the
C. To know and be cared for by his
2000 United Nations (UN) Summit are some
or her parents or legal guardians;
of the major forums at which national
D. Not to be subjected to
governments have expressed their
exploitative practices, neither to
commitment to improving the status of
be required nor permitted to
women in society. These and other
perform work which may be
international initiatives have yielded wider
hazardous or harmful to his or
recognition of individuals’ rights to lead safe
and responsible reproductive lives and have
 her education, health or well- provides for the Procedure of Terminating
being; Pregnancy and the penalty of violating the
E. To be free of corporal Procedure.
punishment or cruel and 5.2.2. Harmful Traditional Practices:
inhumane treatment in schools
and other institutions responsible  Meaning:
for the care of children.” Harmful traditional practices include female
circumcision/genital mutilation, facial
5.2. Some Serious Crimes Committed scarring, and the force-feeding of women,
Against Women and Children: early or forced marriage, and nutritional
5. 2.1.Abortion: taboos, traditional practices associated with
childbirth, dowry-related crimes, honor
“Abortion is more than a medical issue, or crimes, and the consequences of son
an ethical issue, or a legal issue. It is, above preference. These practices adversely affect
all, a human issue, involving women and the health of women and children. Through
men as individuals, as couples, and as controlling women’s bodies for men’s
members of societies” (Tietze, 1978). benefit and through ensuring the political
and economic subordination of women,
 Definition of Abortion: harmful traditional practices perpetuate the
Abortion is the termination of pregnancy inferior status of women. Despite their
before fetal viability, which is harmful nature and their violation of
conventionally taken to be less than 28 international human rights laws, such
weeks from the last normal menstrual period practices persist because of the fact that they
(LNMP). are not questioned.
There is an encouraging and a growing
 Where Abortion Is Legal: international awareness that harmful
Article 551 of the Criminal Code of the traditional values and practices act as root
FDRE lists out the conditions in which causes for discrimination and violence
termination of pregnancy may be allowed. against girls. Several studies both scientific
Abortion performed under those and social attest the fact that value based
circumstances is not a crime. Article 552 discrimination is systemic and universal.
 Harmful Traditional Practices Prohibited  Exception to Bigamy: Article 651
Under the Criminal Code of Ethiopia: Marrying again during the subsistence of a
Arts 561-570 valid marriage may not amount the crime of
bigamy where it is in conformity with
 5.2.3.Bigamy: religious or traditional practices recognized
Bigamy is the condition of having two wives by law. This provision is in fact in line with
or two husbands at the same time. A the Constitutional provisions Art. 34 (4) and
marriage in which one of the parties is (5). Under Art 34/4 the Constitution
already legally married is bigamous, void, provides that, laws may be enacted to give
and ground for annulment. The one who recognition to religious and customary
knowingly enters into a bigamous marriage marriages.
is guilty of the crime of bigamy. Article 78(5) of the Constitution provides
Unfortunately, it is seldom prosecuted that “…the Council of people’s
unless it is part of a fraudulent scheme to get Representatives and state councils can
another's property or some other crime. establish or give official recognition to
Having several wives at the same time is religions and cultural courts.”
called "polygamy" and being married to Therefore, under Ethiopian law, marriage
several husbands is "polyandry." could be concluded in anyone of the
Bigamy Jeopardizes Traditional following three ways:
Institution of Marriage:  before an officer of civil status,
Bigamy Under Ethiopian Family Law:  according to the religion of the parties,
Article 650-651 or
Article 650 requires the following essential  according to local custom (Art.577 of
elements to constitute a crime of bigamy: the Civil Code).
1. Intentionally contracting another marriage All these types of marriages produce the
2. While still being tied by the bond of a same legal effects (Art.625 of the Civil
valid marriage i.e. before the first union has Code). Arts. 605(2) and 606(2) specifically
been dissolved or annulled provide that religious and customary
marriages are subject to the conditions
common to all forms of marriage, most
important of which are age, prohibition of
marriage between persons related by and Art 561 of the Criminal Code should be
consanguinity and affinity, the prohibition of seriously considered in order to meet the
bigamy, and the requirement of consent of standards of the international instruments on
the spouses. If this is so, Art 561 of the the point. In other words, Art.34(5) of the
Criminal code seems to be contradicting FDRE Constitution which allows
with the provisions of Art 606/2 of the Civil adjudication of personal or family disputes
Code which makes even the customary by religious or cultural laws is by itself
marriages subject to the common conditions contrary to our treaty obligations.
of a valid marriage and thereby being in a 5. Rape:
valid marriage is a disqualification for a Rape is an act of sexual intercourse without
subsequent customary marriage. women's consent. It is a pervasive form of
gender-based violence. As a result, women
Art. 34(5) of the Constitution fails to protect suffer physically, socially, psychologically
the rights of women. Art.34(1) of the and emotionally. Rape is simply the ultimate
Constitution gives women equal rights as weapon that men use to exercise their power
regards to marriage, during marriage and at over women and to exhibit their alleged
its dissolution, and if religious laws, which natural domination.
are given recognition according to Art. 34(5)  Causes of Rape:
discriminate against women; it can be Even though the potential causes of rape are
argued that they are unconstitutional. varied and controversial, because of
The Civil Code prohibits bigamy (Art. 588). personal and cultural beliefs as well as
Bigamous marriages are dissolvable on the economic status, the most commonly
request of either spouse or the public attributed causes of rape are inequality in
prosecutor; and non-conformity with Art. gender power relations and the anger and
585of the Civil Code is punishable. sadism of the rapists.
In Ethiopia's case there is a range of other
Since bigamy is an indignity to women and complex contributing factors for raping,
a violation of CEDAW Art.5(a) which such as culture and tradition, poverty and
requires the modification of cultural war.
practices which are prejudicial to women,  Consequences of Rape:
the revision of Art 34/5 of the Constitution 1. Psychological Injury:
 Though the complications of raping vary To establish a crime of raping the following
enormously, depending upon age, culture essential elements should be proved:
and other related factors, it leaves the 1. Compulsion of a woman to submit to sexual
victims, their family members, as well as intercourse
their communities with enormous 2. Outside the wedlock
psychological trauma. Other forms of torture 3. The compulsion may be by any of the
and ill-treatment that are always following means:
accompanied by rape leave victims scarred a. Use of violence; or
for life. b. Grave intimidation, or
2. Effects on Physical Health: c. After having rendered her unconscious or
Rape brings significant health problems to the incapable of resistance
victims. Most importantly, it can lead to
unwanted pregnancies and transmissions of 1. Maltreatment of Minors: Article
STDs, including HIV/AIDS. 576
 Meaning of Maltreatment:
o Social Stigma:  Maltreatment of minors includes
Because raping is associated with social physical abuse, sexual abuse, neglect,
stigma, the victims lose their dignity and and corporal punishment. Causing
respect in the society. They also find it mental injury is also included in the
difficult to participate in social activities, as physical abuse. Neglect means conduct
a result of which they alienate themselves involving failure to provide required
from the society. care for a child, failure to protect a child
 The Ethiopian Constitution and Criminal from endangerment, or failure to provide
Code on Rape: appropriate supervision.
Article 35(4) of the Constitution provides 5.2.8.Traffic/Trafficking in Women and
protection for women and children from Minors:
crimes of raping and abduction. Whatever  Trafficking/Traffic in Women and
the motivation for rape, the vast majority of Minors Under Ethiopian Criminal
the victims do not feel adequately protected
Code: Arts. 597-600 and 634-638
by law.
 Essential Elements of Raping: Article 620
 The Ethiopian Criminal Code deals with the 6.2. Some Serious Crimes Committed
crime of trafficking under two different Against Property:
heading basing on the purpose of this 6.2.1. Theft, Robbery and their forms:
criminal conduct. They are;  Robbery:
1. Trafficking for the purpose of forced labor, In the criminal law, robbery is an aggravated
Arts. 597-600 form of theft that involves violence or the
2. Traffic for the purposes of prostitution, Arts. threat of violence against a victim in his
634-638 presence.
o Categories of theft:

Section. 6. Crimes Against Robbery is the commission of theft in

circumstances of violence and involves the
Property:
application or the threat of force in order to
Constitutional Principles Relating to
commit the theft or to secure escape.
Right to Property:
Robbery takes many forms, ranging from
The constitutional protections of state,
muggings to bank robberies. The penalty for
public and private properties in Ethiopia are
robbery is usually more severe than that of
found in Article 40 of the Constitution of
the larceny.
FDRE 1995.
 General Principles relating to the Crimes
The criminal law is concerned with the
against Property Under The Criminal
unlawful violations of these protections
Code:
guaranteed under the Constitution. Article
Crimes against property include one of the
662 of the Criminal Code declares all
following essential elements:
interference with property and economic
o Damage to the rights of the owner or
rights or rights capable of being calculated
possessor in the property rights(Art 663),
in money forming a part of the property of
e.g. disturbance of possession, disturbance
another as punishable conduct. State, public
of another’s holdings etc. or
and private properties are protected under
o Damage to the rights of the owner or
the Criminal Code. Damage to rights in
possessor in the property rights and unlawful
property within the meaning of this Criminal
or unjustifiable enrichment to the criminal
Code is constituted by any injury or
(Art 664), e.g. Theft, Robbery,
prejudice suffered in comparison with the
misappropriation etc.
normal situation in the absence of the crime.
 against such interests are kept under various
 Essential Elements of Theft Art. titles in a systematic order. The individual
665 interests of a person protected under the
 Robbery Art 670: Code include his life, his person (body), his

Unit Summary: liberty, his honor, his morals attributes, his

family, his property etc.
A good understanding of the relationship
between different parts of the Criminal Code
Treason is betrayal of sovereignty of a state.
is the first most important thing that the
There are three types of treason under the
criminal law students should have. The
Criminal Code of Ethiopia. High treason is
‘General Part’ of the Criminal Code sets out
also called an ‘act of war’ as the acts
the general principles of criminal liability
included under the definition of high treason
which are common to all crimes. This part
are essentially linked to the situation of war.
explains the meaning of criminal act,
Treason is not necessarily related to the acts
criminal intention or negligence i.e. ‘the
of war. Economic treason is the species of
guilt’ and lays down the principles following
treason which is intended to protect the
which an accused person’s act can be
economic structure of the country.
declared punishable. Further, the general
Unauthorized disclosures and
part prescribes and defines the kinds of
communications relating to economic
punishments, measures to be applied in each
negotiations of a state are prohibited under
case. To find the relevant law the
this provision.
interrelationships of provisions and cross-
references within the Code have to be
Espionage is the practice of obtaining
appreciated very clearly.
information about an organization or a
society that is considered secret or
The Special Part of the Criminal Code
confidential (spying) without the permission
incorporates the conducts that are prohibited
of the holder of the information. During war
under the threat of punishment. The
espionage is used to gather information
objective of the criminal law is to protect the
about opposing armies and to mislead
“interests” of the state, the community and
opponents through counterintelligence.
the interests of the individual in order to
ensure peace and security. Therefore, crimes
Those engaged in spying risk imprisonment UNIT – V
and death if convicted of treason.
Under the Criminal Code there are three
THE CODE OF PETTY
kinds of homicides that require the proof of OFFENCES
‘intention’ as the moral ingredient of the Introduction
crime, namely Aggravated Homicide (Art Broadly speaking, petty offences can be
539), Extenuated Homicide (Art 541) and described as ‘public welfare offences’.
Ordinary Homicide (Art 540). The type of These are also called ‘the regulatory
homicide that is defined under Art 543 is the offences’ which in fact assumed more
only one that makes a person punishable for importance in the twentieth century. These
causing death negligently. Infanticide is are conducts declared by special statutes as
child murder in the first year of life. Under offensive to the social interest. They are
the Criminal Code a mother gets a mitigated offences of minor character involving minor
punishment provided that she commits the punishment. They are offences connected to
crime while she is in labour, or while still sale of adulterated food or drugs, or offences
suffering from the direct effects of labour. of possession of prohibited articles, offences
connected to road traffic, or offences against
Crimes against the person, women and custom rules and foreign regulations.
children and property are very carefully All Criminal law is a compromise between
treated by the Criminal Code. It is essential two fundamentally conflicting interests, ---
for the students to have a thorough the public interest and the individual
understanding of the different crimes that interest. The public interest demands
are included under the Code. The students restraint of all who injure or threaten the
may follow the different ways in which social well-being whereas the individual
crimes are interpreted in this unit for the fact interest demands the maximum liberty and
the rest of the crimes are included in the freedom from interference.
Code. Objectives:
 Understand the concept of ‘public welfare
offences’ and the basic philosophy
underlying this category of offences
 Explain the Objective and scope of the Petty and meaningful there are penalties
Code prescribed for certain violations of those
 Identify the similarities and differences in laws.
the applicability of general principles of  Petty Offences Governed by the Petty
criminal laws to the crimes under the Code:
Special Part and Petty offences Art 736 clearly defines the classes of petty
 Know the procedural requirements for the offences that are made punishable by the
prosecution of petty offences Petty Code. Art 736/1 giving effect to the
Section1. General principle of legality specifies for the

1.1. Petty Offence – Definition: applicability of the Petty Code, the offense

Within the meaning of Art 735 of the in question should have been one that is

Criminal Code commission a ‘petty offence’ defined:

lies in anyone of the following conducts: o By one of the provisions of the Criminal

 An infringement of the mandatory or Code, or

prohibitive provisions of law, or o By the provisions of a special law (Art 3
 An infringement of a regulation issued read with Art 735).
by a competent authority, or The penalties applicable to such offenses
 Commission of a minor offence which is shall be those which are expressly
not punishable under the Criminal Law. prescribed in respect thereof.
Such a petty offence is subject to
punishment under the provisions of the law 2.1. Jurisdiction of Petty Code: Art 738
found in Articles 746-775 of the Petty Code. Within the meaning of Art 738/1 the petty
offences shall be governed by the principle
The mandatory or prohibitory provisions of of territoriality (Art 11). The place of
the law or the regulations mentioned under commission of the offence is the place of
Art 735 should be understood having where the offender had either committed or
reference to Art 3 of the Criminal Code. It omitted the act resulting in the offence (Art
specifically refers to the special laws of 25).
penal nature and makes the general The only petty offences committed outside
principles of criminal law applicable to them the territorial jurisdiction but are still triable
as well. To make these laws more effective in Ethiopia are ‘petty offences of purely
 military character provided by the Ethiopian The applicability of the provisions relating
Military law’ Art 792). Such offences shall to irresponsibility (Art 48-50) to the Petty
always be tried by the military authority and Code (Art 741/1) emphasizes the
punished according to Ethiopian law requirement of mens rea in these cases.
whether they were committed in Ethiopia or
in a foreign country (Art 738/3). However, if  Principles of Liability that Differ from the
such offender was already tried for the same Criminal Code: Art 740
act by the foreign Court he may not be  In case of petty offences only completed
punished here again. offences are punishable. The stages of
 Effect of Foreign Sentences: Art 739 preparation and attempts are not punishable.
 In these cases only principal offender (Art
1.3. General Principles of Liability in case 32) is punishable. Inciters, co-offenders, and
of Petty offences: accessories after the fact are not punishable.
 Requirement of the Moral Ingredients: Each offender shall be punished for his own
It is evident from the provisions of Art 741 act irrespective of the participation of
that the doctrine of mens rea is generally another. Art 741/3 clearly lays down that the
applicable to petty offences too. The latter responsibility and liability for petty offences
part of the Article 741/2, says that even all shall always be individual (Art 41 and 88).
negligent petty offences are punishable There is no collective responsibility under
except where the law creating the offence the Petty Code.
expressly exempts from liability to  Juridical persons are also not liable for
punishment in respect of an act committed incitement or complicity relating to petty
by negligence. offences. A juridical person is punishable
In other words, in case of ordinary crimes only when its employee violates laws,
negligent crimes are not always punishable regulations or directives as a petty offender
unless expressly provided whereas in case of in accordance with Art 32 of the Criminal
petty offences negligent offences are always Code.
punishable except where expressly
exempted from liability.
 Expert Evidence only under Exceptional o and the subordinate did not exceed the order
Circumstances: Art 742 he received
The general provisions relating to expert The superior giving the orders shall be fully
evidence under Arts 51 and 54 shall not be responsible for any undesirable or unlawful
ordinarily resorted to in cases of petty consequences.
offences. They shall be ordered only if The subordinate shall be responsible for any
questions as to the petty offender’s conscious and intentional excess in the
responsibility cannot otherwise be decided performance of the order received.
by the Court.  Ignorance of law or mistake as to right is not
justification to a petty offence as well (Arts.
 Applicability of Affirmative Defences: Art 744 and 81).
743  Mistake of fact which excludes knowledge
The following justifications that provided or intention to commit an offence is a valid
under the General Part of the Criminal Code defence under the Petty Code (Arts 744/2
are equally applicable to the petty offence and 80).
too:
 Lawful acts (Art 68)  Applicability of the Extenuating and
 Professional duty (Art 69) Aggravating Circumstances:
 Consent of the victim (Art 70) Art 745
 Necessity(Art 75) While determining the penalties under the
 Legitimate defence (Art 78) Petty Code the Court may take into
 The cases of resistible coercion, excess of consideration the extenuating circumstances
necessity and excess of legitimate defence (Arts 82 and 83), aggravating circumstances
are generally punishable but reduction of (Arts 84 and 85) and even the combination
sentence is possible within the limits of the both as in the case of the ordinary
authorized by law (Art 766). crimes.
 In case of superior orders the subordinate Section.2. Kinds of Penalties and
shall not be punishable,
other Measures under the Petty
o if he obeyed a person of higher rank acting
Code:
within his authority
The key issue that makes a remarkable
difference between the petty offences and
 the ordinary crimes is the kinds of penalties. In these cases Art 746/3 requires the Court
Art 746 declares that, ‘Petty offences differ to inform the matter to the competent
from ordinary crimes by reason of the authority (Art 154).
different penalties they merit’. The main
points of departure from the ordinary crimes 2.1. Principal Penalties of Arts 747-755
in this regard are the following: 2.1.1. Arrest- Art. 747
a. Ordinary or police arrest-Art. 748
 Art 746/1 clearly excludes imposing of b. Home arrest or arrest in an
ordinary penalties in the cases of petty establishment-Art. 749
offences. Therefore, petty offences shall not c. Arrest in case of members of armed
be punished with rigorous or simple forces and young offenders-Art.750
imprisonment prescribed for ordinary d. Compulsory labour in substitution for
crimes. arrest- Art 751
 Art 746/1 clearly excludes imposing of
ordinary penalties in the cases of petty Arrest is the only penalty involving
offences. Therefore, petty offences shall not deprivation of liberty which may be imposed
be punished with rigorous or simple in case of petty offences. The duration of
imprisonment prescribed for ordinary this penalty shall be a minimum of one day
crimes. and a maximum of 3 months. In cases of
The only punishments which may be recidivism it may go up to a higher
imposed for petty offences are those maximum as provided by Art. 769.
specified in Arts 747-775. The exceptions to Arrest may be an ordinary one which shall
this general rule are: be undergone in special premises for
 Special forms of punishments applicable detention attached to Courts or in the home
to military petty offenders, and of the person sentenced or in the home of a
 Special measures applicable to young reliable person or in a lay or religious
persons (Arts 157-168 of the Criminal Code) community designed for this purpose.
 Protective or therapeutic measures in respect
of irresponsible persons (Arts 130 and 131 In the case of military petty offenders arrest
of the Criminal Code). shall be carried out under military discipline
and control in the premises used for this increased to 500 Birr, without prejudice to
purpose in their establishments. aggravation in case of recidivism. The
Young persons sentenced to arrest shall amount of fine may be fixed having regards
undergo their punishment either by school or to the financial state of the petty offender,
home arrest (Art 161). Arrest in case of the gravity of the petty offence and the
young offenders may be served at different degree of guilt.
times. And period of arrest shall be for less Section.3. Prosecution and
than 3 hours and the total period of arrest Enforcement of Penalties:
shall not exceed 15 days.
3.1. Procedural Requirements for
2.1.2. Fine-Art 752
Prosecution in Case of Petty Offences:
a. Ordinary case-Art 752/1
 Pardon and Amnesty:
b. Fine in addition to arrest-Art 752/2
The usual conditions of pardon and amnesty
c. Conversion of sentence into
(Arts 229-231) apply to petty offences as
compulsory labour-Art. 753
well. The penalties in respect of petty
d. Recovery of fine in special cases-Art
offences may be cancelled by pardon and
754
amnesty.
 Members of armed forces-Art. 754/1
 Young persons-Art. 754/2
This penalty may be imposed in addition to
3.2. Enforcement of Penalties under Petty
arrest, where circumstances justified. This is
Code:
particularly followed where the law provides
arrest and fine as alternative penalties or
The rules of enforcement of penalties
where the petty offender acted for unlawful
relating to petty offences show certain
gain (Arts 91 and 92).
departures from the rules of enforcement
relating to the ordinary crimes. The main
The amount of fine may be normally fixed
point of difference lies on the matter of
between 1Birr and 300 Birr. In cases of
suspension of penalties and conditional
recidivism (Art 769), however, it may
release.
extend to a higher maximum as the law
provides. Particularly, when the offender
 Exclusion of suspension of penalties and
has acted for unlawful gain the fine may be
conditional release in case of Petty
Offences, Article 765: The principle of offences of possession of prohibited articles,
conditional suspension of penalty (Art 199- offences connected with road traffic, or
200) is for the promotion of the reform and offences against custom rules and foreign
reinstatement of the criminal by giving him regulations.
room to help himself in his own reformation.
Such an objective of punishment is more By virtue of Art 3 para 2 and Art 734 the
relevant to the ordinary crimes where the principles laid down in the General Part are
sentences are punitive in nature. The applicable to the Petty Code too except
penalties in case of petty offences are more where it is stated to the contrary. Petty
formal in nature. Further, the uniform and offences are not punishable retrospectively;
rapid enforcement penalties in these cases there is no joint liability in cases of petty
are of utmost importance to indicate the offences. Petty offences are punishable only
strictness in applicability of the provisions if they are completed. The other stages of
of this part as well as the special laws and the offences are not punishable.
there by make those laws more effective and
meaningful. Thus, strict enforcement of There is no question of either delegation of
penalty is very essential for the attainment jurisdiction or extradition of the offender in
of the objectives of special laws and case of petty offences. Petty offences
regulations. Therefore, policies relating to committed in a foreign country by an
reformation and rehabilitation have little Ethiopian or against an Ethiopian shall not
relevance in enforcement of penalties be punished in Ethiopia.
imposed in cases of petty offences.
Unit Summary: In case of ordinary crimes negligent crimes

Petty offences can be described as ‘public are not always punishable unless expressly

welfare offences’. These are also called as provided whereas in case of petty offences

‘the regulatory offences’. These are negligent offences are always punishable

conducts declared by special statutes as except where expressly exempted from

offensive to the social interest. They are liability. Justifications for criminal liability

offences of minor character involving minor are generally applicable to petty offences.

punishment. They are offences connected Ignorance of law is no excuse for petty

with sale of adulterated food or drugs, or offences. The provisions of Art 740/4 create
a confusion relating to the applicability of
the defence of ‘infancy’ to the Petty Code. It
appears from the wording of the provision Arts.771-775 lay down the procedural
that the young offenders are not exempted requirements relating to the prosecution of
from liability under the Petty Code. The petty offences. Prosecution for a petty
wording of the articles seems to be offence shall be instituted as per the
erroneous. following rules (Art. 771):
The key issue that makes a remarkable UNIT-VI
difference between the petty offences and CRIMINAL LAW IN A
the ordinary crimes is the kinds of penalties.
CHANGING WORLD
Art 746 declares that, ‘Petty offences differ
Introduction:
from ordinary crimes by reason of the
As expressed by an eminent American
different penalties they merit’. Art 746/1
authority (Wechsler) ‘ the purpose of penal
clearly excludes imposing of ordinary
law is to express the social condemnation of
penalties in the cases of petty offences.
forbidden conduct, buttressed by sanctions
Therefore, petty offences shall not be
calculated to prevent it”. To understand this
punished with rigorous or simple
explanation of Penal law three questions
imprisonment prescribed for ordinary
have to be answered:
crimes. The only punishments which may be
1. What kind of conduct is ‘forbidden’?
imposed for petty offences are those
2. What kind of ‘formal social
specified in Arts 747-775. Petty Code
condemnation’ is considered
applies only in the absence of more severe
appropriate to prevent such conduct?
penalties elsewhere in the Code. The
3. What kinds of ‘sanctions' are
penalties under the Petty Code are classified
considered as best calculated to
into, principal penalties, secondary
prevent officially out lawed conduct?
penalties, safety measure and measures for
the purpose of information. Expert evidence
The concept of forbidden conduct is not a
is only taken in relation to petty offences
static one; it changes with the change of
under exception circumstances. Foreign
social norms. The very definition and
sentences produce no effect in relation to
concept of crime itself is not only according
petty offences.
 to the values of a particular group and 1.1. Social Values and the Ambit of
society, such as, faith, religious attitudes, Criminal Law:
customs, traditions and taboos but also Obviously, the type of conduct that a
according to the form of government, particular society considers as sufficiently
political and economic structure of society worthy of condemnation to prohibit it by
and a number of other factors. At the same criminal sanctions is deeply influenced by
time we should remember that ‘public order’ the values governing that society. It
itself is not a static concept. therefore varies greatly, from one country to
Objectives: another and from one period of history to
 Clearly understand the concept of social another.
change and its impact on the concept of
crime It may suffice here to illustrate the
 Have a wide perspective of the changes that dependence of the scope of prohibited
are occurring in different legal systems of conduct on changing values and canons of
the world owing to the changing values social policy, by presenting two examples:
 Understand the increasing significance of  The Area of Economic Crime: In this
the criminal liability of corporations in the area, the transition from a laissez-fair to a
context of an increasingly complex regulated and, in varying degrees, publicly
corporate world controlled economy has led to the
 Know the impact of the modern condemnation and criminality of actions in
advancements of psychology and psychiatry which, a system of economic individualism
on the principles of criminal responsibility were legitimate and perhaps praiseworthy.
 Identify the changing purposes of
punishments  The Area of Sexual Behavior: The
 Appreciate the need for finding alternative change is the other way round in the case of
penalties to increase the efficacy of the sexual behavior, where changing attitudes
penal system and social conditions have increasingly led
Section.1. Impact of Social Change On to the abolition of criminality for actions
the Criminal Law that were formerly and severely condemned
and subject to criminal sanctions. (W.
Friedmann)
1.3. Environmental Pollution and the the environment, certain types of individual
Criminal Law: behavior, once severely condemned by
1.4. Sexual Permissiveness and the prevalent concepts of morality and public
Criminal Law: order, have become widely tolerated and
In contrast to the increasing need for more acceptable to society. This is notably
criminal sanctions to combat economic risks so in the area of sexual behavior, as shown
and social offences, notably the pollution of by the spreading abolition of criminality of
the environment, certain types of individual homosexual conduct between consenting
behavior, once severely condemned by adult males who carries out in private, and
prevalent concepts of morality and public the rapidly growing number of jurisdictions
order, have become widely tolerated and that have abolished, or greatly limited, the
more acceptable to society. This is notably criminality of abortion.
so in the area of sexual behavior, as shown
by the spreading abolition of criminality of The greater permissiveness towards
homosexual conduct between consenting homosexuality is essentially a product of
adult males who carries out in private, and changed ideas of social morality. In most
the rapidly growing number of jurisdictions western societies, homosexual conduct, if
that have abolished, or greatly limited, the limited to adults and carried out in private, is
criminality of abortion. no longer regarded as morally so
blameworthy that it deserves the attention of
The greater permissiveness towards the criminal law.
homosexuality is essentially a product of Se
changed ideas of social morality. In most Section.3. Changing Philosophy
western societies, homosexual conduct, if Underlying Criminal Laws
limited to adults and carried out in private, is
no longer regarded as morally so 3.1 Purposes of Punishment:
blameworthy that it deserves the attention of Generally, the philosophy of deterrence still
the criminal law. prevails in modern criminology. We
In contrast to the increasing need for continue to be concerned with preventing,
criminal sanctions to combat economic risks by appropriate punitive sanctions, both the
and social offences, notably the pollution of individual offender and other members of
the society from the repetition of the crime, offenders to criminal offenders in
or the imitation on the part of others by general.
similar actions.

Unit Summary:
In the continuing controversy about capital
The type of conduct that a particular society
punishment, one of the most powerful
considers as sufficiently worthy of
arguments of those who advocate the
condemnation to prohibit it by criminal
abolition of the death penalty is that ‘there is
sanctions is deeply influenced by the values
no clear evidence… that the abolition of
governing that society. The very definition
capital punishment has led to an increase in
and concept of crime is not only according
the homicide rate, or that its reintroduction
to the values of a particular group and
has led to a fall’ (Report on the Royal
society and ideals with faith, religious
Commission on Capital Punishment 1953,
attitudes, customs, traditions and taboos but
section 65).
also according to the form of government,
political and economic structure of society
 Generally speaking, the increasing
and a number of other factors. For instance,
understanding of the social and
what is a sex crime in India and Eastern
psychological causes of crime has
countries may be a sweet heart virtue in
led to a growing emphasis on
West and Scandinavian countries. What is
reformation rather than deterrence in
an offence against property in a capitalist
the older sense, as the best way to
culture may be a lawful way of living in a
protect both the individual criminal
socialist society. What is permissible in a
from himself, and the society from
free and affluent society may be a pernicious
the incidence of crime. In practical
vice in a conservative set up. The notion
terms, this has meant the increasing
about crime also changes with time. What is
use of corrective and educational
an offence today may not be an offence
measures, either in addition to, or in
tomorrow and what has not been an offence
substitution for, punishment proper.
till yesterday may be declared a crime to
The consideration of such
day. In short, the concept of crime changes
alternatives has gradually spread
with the change of ideology and other
from specialized categories of
factors in the society. The socio- economic
crimes, the sexual permissiveness etc are them; the marriage was calm for a couple of
glaring examples of this truth. months. They decided to celebrate with an
evening out for New Year's Eve.
The principles of vicarious liability and Unfortunately, Addis did not work on the
corporate liability are undergoing profound last day of the year. He joined some friends
changes. Opinions are in favour of extensive early in the morning and started drinking.
application criminal sanctions to corporate He got home later than scheduled and this
crimes for the sake of deterrent effect. At the made Diana furious. They got ready to go to
same time arguments supporting reformative the New Year's Eve Party, but argued
justice in the place of serious deterrent furiously for more than an hour. By the time
sanctions are on the raise. Civil remedies they left for the party both were fuming
and administrative sanctions limiting the mad. Addis had continued to drink, which
scope and application of substantive did not help the matter.
criminal laws are becoming apparent. Thus,
the changes in criminal law consequent to a At the party, Addis and Diana ran into some
clear shift in the social ideologies and values people with whom Diana worked. At some
are conspicuous every where, in every legal point Diana was asked to dance by a man
system. from work and she consented. Addis said
nothing, but it was apparent to Diana that he

Annex I. Model Exam With was burning. She danced with the man three
times before Addis said anything about it.
Model Answers
Then he called her a "slut" and threatened to
knock her teeth out. He continued to drink.
Diana continued to dance with her friend
CASE ONE from work.

40 POINTS
Addis left the hall where the party was being
Addis and Diana had been married for 10
held and went to his car. He kept a gun in
years. At times the marriage was stormy,
the glove compartment. He got the gun,
mostly because of the fact that both were
returned to the dance floor, and found Diana
insanely jealous and suspicious. Toward the
on the dance floor still continuing her dance
end of 2005, however, things went well for
 with her friend dancing standing very close no doubt about the causation since it was
to him. Addis ran across the floor shouting committed in a party in the presence of
and shooting. He emptied the gun; He put many eyewitnesses.
three shots in his wife and three in her 2. Specific type of homicide: Ordinary
friend. Both died instantly. homicide under Art. 540
Addisu can be charged under Art 540 of the
There was sufficient evidence to prove that Criminal Code, 2005 for committing
all the above said facts. Later, in his own ordinary homicide by causing death of both
statement to the police Addis said he loved his wife Diana and her friend.
his wife, intended her no harm, and was so Reasons for the Charge under Art 540:
drunk on the occasion in question that he 1. The killings in the case are not
could not remember anything that happened. ‘aggravated homicides’ because, though the
1. Suppose that you are the Public Prosecutor conduct of the accused indicates the
in this case. Prepare a prosecution case presence of premeditation it is not of such a
against Addisu for causing the death of his serious quality as to bring the case under
wife and her friend. Explain the essential aggravated homicide. A husband killing a
ingredients of the crime you are charging the wife and her male colleague under enraged
accused with and support your case with condition cannot describe a dangerous or an
sufficient reasoning. exceptionally cruel personality as required
20 Points by Art. 539. The quality of premeditation
Prosecution Case: that is required under the Art. 539 is that it
1. The Crime Committed: It is against the life should be of such a mean nature that it
of a person, i.e. ‘Homicide’ Essential suggests that the criminal is exceptionally
elements and causation of crime: Arts. 538, cruel, abominable or dangerous person.
58, 23 and 24 have to be applied to establish Therefore, every case of premeditated
that it is an intentional homicide and the killing may not necessarily fall under this
causation. article. A premeditation of lesser depravity
Intention to cause death is sufficiently may take the case to be treated under Art.
manifested by the fact that he purposefully 540 as an ordinary homicide.
went to his car to pick up his gun and fired 2. The killings are not an extenuated
at both of them after returning back. There is homicides too for the following reasons:
a. Though there is provocation it does not 2. If you were the defense counsel what
amount to ‘gross’ provocation as required by defense would you raise for the
Art 541. defendant. State the principles, in detail,
b. Provocation to be a valid defence it should governing such defense/s under the
come from the deceased person. Here in this Criminal Code. 20 Points.
case Diana is the reason for provocation but Defence Case:
that was not such a serious one to describe it If I were the defence counsel for the
as a ‘gross provocation’. So for the act defendant in this case I would raise the
resulting in the death of Diana provocation following contentions:
as required by Art. 541 cannot be 1. Intoxication: Art. 50/3read with Art. 491
established thereby disqualifying Addis Though the defendant got intoxicated
from the benefits of extenuation. voluntarily, he neither contemplated nor
c. Diana’s friend is ignorant of the intended that he would do any such act
disturbances between the wife and the subsequent to his drinking. Therefore, he
husband. He did not do any thing in should be rightly treated under Art 50/3 read
particular to provoke Addisu. Therefore, for with Art 491. Following this, his sentence
causing death of Diana’s friend Addisu can by no means should go beyond simple
never claim the defence of provocation. imprisonment not exceeding 1 year.
As the killings in the above case do not fit 2. Art50/2 read with Art 543/1:
into the definitions of neither aggravated If the Court is not convinced that his case
homicide nor extenuated homicide the right does not fit into Art 50/3, it should at least
provision under which he should be be treated under Art 50/2 and is entitled to
prosecuted is ‘ordinary homicide under Art. the benefit of his crime to be a negligent
540. one. Under Art. 543/1 the accused may be
3. Intoxication cannot be a defence: Art. punished with no more than 3 years simple
50/1 imprisonment.
The accused got intoxicated by his own fault 3. Provocation Art 541/b: The conduct of
and the act he committed was not a simple Diana and her friend were sufficiently
disturbance that can get the benefit defence provocative to a husband to react in such a
of intoxication. way. There was no sufficient time to cool
down there either. The provocation was
from the deceased wife herself; therefore, Key Answer: Yes he has committed a crime
provocation can be claimed as a defence. In of ‘Material Forgery’ punishable under Art.
this case his punishment should not exceed 5 375 of the Special Part. As this could cause
years simple imprisonment. I humbly serious material damage to the victim this
request the honorable Court to be case should be treated with sufficient
considerate towards the accused having seriousness and his sentence should be
regard to the serious mental and emotional sufficiently severe too. The punishment for
disturbances he had gone through and that this crime is a minimum sentence of 3
his state of being intoxicated had made his months simple imprisonment and a
state of mind even more incapable of maximum of 10 years of rigorous
regulating his conduct and grant him even a imprisonment.
lesser sentence to him.
In any case the defendant’s case does not III. PLEASE, GIVE EXPLANATORY
fall under Art 540. Therefore, I humbly ANSWERS FOR THE FOLLOWING:
submit to the honorable Court to consider 10 X 4=40 POINTS
the grounds for the defence so that justice is 1. “Every accused is presumed to be
done my client. responsible”. Discuss. What are the
differences between Art. 48 and Art 49?
CASE TWO 10 POINTS
10 POINTS
Alemayehu sold and transferred his estate to Key Answer: Generally, when a person is
Zelalam. Alemayehu afterwards, executed a accused of a crime his/her responsibility is
transfer of the same estate to Bayisa, dated presumed by the Court. The prosecution
six months earlier than the date of transfer of need not prove it. This means that of the
the estate to Zelalam, intending it to be important things necessary to make a person
believed that he transferred the estate to liable for punishment within the meaning of
Bayisa before he transferred it to Zelalam. Art.49/1 are established the in the following
Did Alemayehu commit any crime? If so, way:
establish the crime against him as per the 1. The proof that the act was done by the
essential elements of the crime under the accused---It is the burden of the prosecutor.
relevant provisions of the Criminal Code.
 3. The fact that the accused is responsible for  Absolute irresponsibility under Art.48
his acts—This is presumed by the Court. entitles the accused to complete immunity
However, the question of from the punishment, while under Art. 49
irresponsibility arises in any of the following the accused is partially protected from
two situations: punishment since he/she suffers from only
 When the accused invokes it, particularly, partial incapacity to understand the nature
during the preliminary objections as per Art. and consequences of his/her conduct.
130/2/g of the Criminal Procedure Code, on  Under Art. 48 the actions taken are,
the first day of the criminal Proceeding. measures of treatment or measures for
 When the Court is doubtful about the mental protection as provided Arts. 129-131. In
condition of the accused due to partial or case of Art 49 the accused is given free
complete deprivation of mental faculties. mitigation of punishment in accordance with
The Court may entertain such a doubt at any Art. 180 as well as any other measures for
stage of the trail by the conduct of the treatment or protection shall be ordered.
accused on the trial.
Once the ‘question’ arises it becomes 2. The increasing understanding of the social
necessary to decide the facts in the light of and psychological causes of crime has led to
Arts. 48 and 49. Then it becomes the burden a growing emphasis on reformation rather
of the defence to prove the accused is than deterrence in the older sense, as the
irresponsible beyond reasonable doubt. Then best way to protect both the individual
the burden of the prosecution is only to raise criminal himself, and society from the
a reasonable doubt in the mind of the Court incidence of crime”. Analyze this statement
that the accused is responsible and deserves critically. 10 POINTS
punishment. Key Answer: By reformation of the
criminal is meant his moral regeneration,
 Differences between Art. 48 and Art 49: and developing the sense of honesty. A
 Regarding the causes of insanity the articles person, who commits a crime and suffers
supplement each other. punishment for that, comes back to the
 Art. 48 deals with absolute irresponsibility society and lives in along with his other
where as Art. 49 deals with limited or partial fellow beings. The advocates of reformative
irresponsibility due to disease of mind. theory aim at the rehabilitation of the
criminal in the society. This theory admits
only such types of punishments which are 3. a. Petty offences are also referred to as
educative and discipline to the criminal, not ‘regulatory offences’, ‘public welfare
those which inflict pain on him. Therefore, offences’ etc. What do these different labels
punishment must aim at making a man signify about the nature of these offences? 5
worthy of living in the society. However, Points.
purely reformative punishment has the Key Answer: The petty offences originated
disadvantage of dilutes the pain of the as result of the need to protect the social
penalty. And may not deter the criminal interest i.e. the interest of the public in
from repeating similar crime on the other general. The necessity of social regulation
hand it may even encourage the criminal to arose out of the growing complexity of
repeat his criminal behaviour. social life. The special regulatory
The purpose of the punishment is to deter legislations such as examples of such laws
the criminal from committing crime in may be, The Weights and Measures
future and to set as an example to the Proclamation, 1973, The Wild Life
prospective criminals. It carries the message Conservation Order, 1970, the Currency
that those who violate the law will be Proclamation, 1942 (Proc. No. 31), the
punished like wise. The idea is that Currency Amendment Proclamation of 1947
punishment will curb the criminal activities (Proc. No. 99), road traffic rules etc., The
of the potential criminals. Strongly deterrent violations of such mandatory provisions are
punishments may be successful in made punishable more in order to give effect
maintaining the full intimidation value of the such laws than to inflict pain in the name of
penalty. However, it has the disadvantage of punishment on the law breaker. Therefore,
restricting the chances of reforming. Too the above said names signify that these
lengthy and too harsh punishments in the offences are for the purpose of regulation of
name of deterrence may harden the criminal social conduct in the general interest of the
instead of reforming him. community as opposed to the private
Therefore, punishment should be designed interests of a specific victim.
in each and every case by carefully
including the deterrent as well s reformative b. Do all the general principles and rules of the
elements. General Part of the Criminal Code apply to
 the petty offences by virtue of Arts 3 of the in accordance with Art 32 of the Criminal
Criminal Code and 734 of the Petty Code? Code.
State the exceptions, if any.
5 Points. 4. a. Define ‘trafficking in women and
minors”. Are the definitions under the
Key Answer: No, all the general principles Ethiopian Criminal Code in conformity with
and rules of the General Part of the Criminal those given under the international
Code do not apply to the petty offences. The instruments?
following are some of the important 5 Points.
differences: Key Answer: The Ethiopian Criminal Code
Principles of Liability that Differ from the deals with the crime of trafficking under two
Criminal Code: Art 740: different heads basing on the purpose of this
 In case of petty offences only completed criminal conduct. They are:
offences are punishable. The stages of 1. Trafficking for the purpose of forced labor,
preparation and attempts are not punishable. Arts. 597-600
 In these cases only principal offender (Art 2. Trafficking for the purposes of prostitution,
32) is punishable. Inciters, co-offenders, and Arts. 634-638
accessories after the fact are not punishable. b. Does the consent of victim neutralize the
Each offender shall be punished for his own crime of trafficking? Is the pecuniary gain of
act irrespective of the participation of the criminal an essential element of the
another. Art 741/3 clearly lays down that the crime of trafficking?
responsibility and liability for petty offences 5 Points.
shall always be individual (Art 41 and 88). Key Answer: No, the consent of a victim is
There is no collective responsibility under irrelevant. These crimes are punishable even
the Petty Code. where there is consent of the victim or
 Juridical persons are also not liable for where there is no pecuniary gain to the
incitement or complicity relating to petty criminal. Art. 597 does not mention
offences. A juridical person is punishable ‘pecuniary gain’ to the criminal as an
only when its employee violates laws, essential element. Under Art. 635 ‘pecuniary
regulations or directives as a petty offender gain’ is one of the two alternative purposes
of the crime, the other being to ‘gratify Before proceeding to prepare your case
another’. always read the facts thoroughly, if need be
more than once to clear any lingering doubts

Annex II. Key to Solve a Case about the facts in your mind. Note the names
of the parties, dates, timings etc. perfectly in
Problem:
a chronological order (according to the order
While solving a case problem the students
of occurrence). The prosecution case should
are required to systematically deal with the
necessarily consist of three important parts
facts given to them keeping certain key
namely, identification of the conduct under
points in their mind in order to achieve these
specific provision of the Special Part, fixing
beneficial results:
the criminal liability of the accused and
1. To have clarity in presentation of their
recommendation of the sentence.
case, and
1. Identification of the Accused’s Conduct:
2. To avoid mixing up of prosecution and
The first thing that comes to the mind after
defense cases.
reading the facts is the specific kind of crime
Students have this common problem of
that the accused has committed. It is the
mixing up of prosecution case with that of
harmful result that directs you to the
defence. They should remember that while
relevant provision; say for example if the
preparing a prosecution case they should
facts include the killing of a human being it
stick to that side and challenge the defence
will be identified as:
with their contentions. Switching to defence
 A crime of homicide Arts 538-543
points in between reflects their uncertainty
 The specific type of homicide i.e. whether
and makes their case weak. The same is true
intentional [Aggravated
while preparing a defence case; the student
(Art. 539), Ordinary(Art. 540) or Extenuated
should completely explore his chances of
(Art. 541)]or Negligent homicide(Art. 543)
defending his case by identifying different
At this stage just identification of the
grounds to establish the innocence of the
conduct under the relevant provision is
accused in a right case or at least try to limit
sufficient.
his liability in a case where the defendant’s
2. Fixing the Criminal Liability of the
involvement is obvious.
Accused:
I. Being a Prosecutor:
a. Essential elements of the crime identified:
 The material and moral ingredients of the judge that has the final word in deciding the
crime in accordance with the identified nature and length of the sentence to be
provision of the Special Part has to be given, it should form part of the
discussed here clearly. For example, if it is a prosecution’s request. For example, in a case
case of aggravated homicide, the facts of aggravated homicide you will conclude
should be shown to disclose: that the accused be given a sentence of
 Intention of the accused in terms of Art. 58, rigorous imprisonment for life unless there
 At least one of the aggravating are convincing grounds for demanding a
circumstances in terms of Art.539/1/a or b death penalty. You have to support your
b. Causation of crime: sentence with sufficient reasoning too which
If the facts include more than one cause then will stand as an answer for the demands of
it has to be shown that the accused’s act was the defence for mitigation of punishment.
the actual and adequate cause for the The sentence recommendation should
harmful consequence i.e. ‘death of a human include aggravating circumstances, previous
being’ as in the case of the example we are convictions, if any, and a description of the
considering. This is done in accordance with disposition of the accused.
the rules laid down in Art.24 of the General II. Being a Defence Counsel:
part. Normally the defence case begins with a
Always try to give sufficient reasoning for ‘plea of not guilty’ where in the accused
your stand. Yes/ No answers are neither denies all the charges made against him. The
useful for scoring maximum marks nor defence may base its case on anyone of the
useful for your future practical application. following grounds:
This will help you to write nice reasoned 1. Absence of Legal Ingredient:
judgments of academic as well as practical It may be shown that the harm caused is not
importance in future. one of those which are specifically
3. Recommendation of the Quantum of prohibited under the Special Part of the
Punishment: Code. For example, ‘raping’ is a crime
The last and very important part of the under the Ethiopian Criminal Code where as
prosecution case is that it should contain a ‘fornication-(voluntary sexual intercourse
well reasoned recommendation for a specific between two unmarried persons’ is not. But
‘quantum’ of punishment. Though it is the it is crime in Virginia.) Therefore, unless
 there is a strong proof of and element of presented at the place where the crime was
‘force’ the conduct cannot be a crime. The committed.
principle of legality prohibits the creation of Note: While solving a hypothetical case
crimes by analogy (Art.2/3). Or, ‘alibi’ can be raised only in the light of the
2. Absence of Material Ingredient: given facts. You cannot modify the facts by
a. By proving the absence of ‘cause’ and imagination. You cannot assume the facts
‘effect’ relationship: unless you are asked to. Or,
In a case where several causes are present 3. Absence of Moral Ingredient:
like preceding, concurrent or intervening a. By Proof of Incapacities: Arts. 48-56
etc. (Art. 24) ‘the act/conduct of the The defence may claim anyone of the
accused’ may be proved to be ‘not the one’ incapacities like insanity, intoxication or
that had brought about the result or that it infancy to prove the incapability of the
was the ‘inadequate one’ to have brought defendant to form the guilty mind necessary
about the harmful result in question. to bring about the harmful consequences in
You need to show facts supporting your question. Here again you have an obligation
argument. Or, to support your contentions in the light of
b. By plea of ‘alibi’: the facts given and the principles governing
The Latin expression ‘alibi’ literally means such a defence by referring to the relevant
‘elsewhere’. It is a plea by a person accused provisions of law. Or,
of an offence that he was ‘elsewhere’…that b. By Proof of an Affirmative Defence; Arts.
having regard to the time and place when 68-81
and where he is alleged to have committed Where justifiable-No punishment at all:
the crime, he could not have been present. Where all the essential conditions and the
limitations specified under the relevant
The plea of alibi postulates the ‘physical provision are fulfilled, the defence can claim
impossibility of the presence’ of the accused complete immunity from punishment.
at the scene of the crime by reason of his Where excusable-Mitigation of
presence at another place. It should be punishment:
shown that the accused was so far away at Where the conduct of the accused does not
the relevant time that he could not be fulfill the requirements for an absolute
 justification a free mitigation of punishment
pursuant to Art 180 can be claimed.
III. Being a Judge:
a. Analysis of issues on both sides:
If you are asked to decide the case assuming
yourself to be a judge, you have to briefly
discuss both prosecution and defence cases
and then come to a reasoned decision which
can answer the contentions of both the
parties.
b. Determination of punishment:
This exercise should be done carefully
following important principles relating to
determination of punishment incorporated in
Arts. 87 and 88. Due attention should be
given to the aggravating, mitigating as well
as combination of both kinds of
circumstances (Arts. 82-86, and179-189).
Supporting your sentence with sufficient
reasoning is the most important part of your
judgment.

Misdemeanor – petty offence.;.;