15 October 2020 Written by 

Elucidating Some Legal Insufficiency Of Prosecutors and Police Liaison For Criminal Investigation In Ethiopia: The Case Of Oromia Regional State

 

 

Abstract

22 July 1991 to 21 August 1995, and 21 August 1995 to present by Transitional Charter and Federal Democratic Republic of Ethiopia (FDRE) constitution respectively, Ethiopia adopted federal system and structured the regions along ethnic lines. And Oromia Regional State (ORS) is the most populous and the largest region in Ethiopia. 

Until 2007, the relationship between prosecutors and  police as well as   prosecutors’ and police’s institutions over criminal investigation in Ethiopia and in all its regional states has been mainly governed by Ethiopian criminal procedure code of 1961 (CPC of 1961) for more than four decades. This code and some piecemeal legislations had empowered police to investigate the commission of crimes independently and pass over the report to the prosecutors, while prosecutors were empowered, on receiving the report, either to instruct for re-investigation, close or institute charge against the suspect(s). 

However, ensuing the Ethiopian justice system reform baseline study that had conducted from 2003 – 2005, implementing the studied reform and/or overhaul the noticed gaps using Business Process Reengineering (BPR) as an instrument was started in 2007, particularly in ORS. As per this BPR, prosecutors and police had been adjusted to carryout criminal investigation together in   team. To legalize BPR, at ORS level, proclamation No. 132 of 2007 was issued by Caffee (parliament) Oromia. Though this proclamation was repealed, those proclamations enacted after it, to govern the issue under consideration, follow similar approach – make criminal investigation the responsibility of prosecutors and police team.

Now, it is proclamation No.213 of 2018, proclamation No.214 of 2018 and CPC of 1961 that are serving as adhesive for police and prosecutors to carryout criminal investigation together in team in ORS. Nonetheless, from its inception to today, criminal investigation team of prosecutors and police in ORS is full of tension. This tension affected and is affecting the administration of criminal justice system in ORS.  This writer argues legal insufficiency is a primary reason for the tension in the prosecutors and the police liaison for criminal investigation.        

Yet, the insufficiency discourse of these laws should have gotten attention but lacked it. Though scanty, this essay purports to get out the insufficiency of laws that are governing prosecutors and police liaison for criminal investigation in the ORS, and try to recommend measures to be taken to avoid and smooth the relationship between police and prosecutors in the region. 

 Introduction

Though the project of modernizing Ethiopian legal system was undertaken in late 1950s and early 1960s, to date Ethiopia has underdeveloped legal system. Developed legal system is one that has well – defined body of law and [well-] established institutions administering that law. To date, in Ethiopia, absence of well-established institutions that administer Ethiopian law is one of Ethiopian justice’s headaches.  

Some researches indicate criminal prosecution in Ethiopia was left to be a matter of victim of offense (private prosecution) until for the first time the office of public prosecution had been established in 1942.

Two Decades afterward, more modern criminal procedure that exhaustively compartmentalize the powers and functions of prosecutors and police, and that consolidates public prosecutions of crimes, was enacted in 1961. Presumably, this progressive shift from private prosecution to public prosecution, like UK practice, is based on the principle that it is a public interest that [perpetrator of] crimes do not remain unpunished.   

Though some record indicates Ethiopian justice administration reform program under EPRDF was commenced in 2002s, more comprehensive Ethiopian justice system reform program was studied from 2003 to 2005. Partly, to implement this studied justice system reform program, particularly in   ORS, the instrument so – called BPR was studied and put into force in 2007 and 2008 respectively.

BPR is generally defined as fundamental rethinking and radical redesign[ing] of business process to achieve dramatic improvement in critical, contemporary measure of performance, such as cost, quality, service level, and speed. The main purposes of BPR were, but not limited to, avoiding non – value adding activities and implementing one stop shopping system to satisfy customers’ needs.  Regarding Ethiopian justice system, the study conducted at Federal level to utilize BPR for justice system reform elucidated that the quality of service was too bureaucratic, costly and sub-standard in general and vows to change this feature and deliver a fast justice that meets the expectation of all stakeholders.  The same was held true for ORS. 

Hence, one could safely maintain the implementation of BPR in 2008 was one of the giant leaps toward a better processing of criminal justice system in Ethiopia.

On the other hand, however, BPR mostly capitalized on the question how to overcome the problem of delay and low conviction rate record – a shortsighted justice system resolution approach. For this shortsighted target, the project did not give focus to the relationship and touchline between the police and the prosecutors over criminal investigation.         

This shows that in Ethiopia, and particularly in ORS, BPR and post BPR legislations have not yet clearly set the appropriate state line between the police’s and the prosecutors’ involvement in the criminal investigations; and their relationship remains unsettled controversial issues, unsmoothed relationship continued, and it become one area of hotbed in Ethiopian criminal justice system, particularly ORS.

Therefore, this piece attempts to assess the relationship between police and prosecutors both in theory and practice in ORS, and discuss, legal insufficiency in guiding the prosecutors and the police liaison over criminal investigation – one of the underlying rationales behind the unsettled controversies and tensions in the police and prosecutors liaison for criminal investigation.

With this aims in mind, the piece is layout into three sections. The first section appreciates legal framework of prosecutors and police relationship in Ethiopia. Moreover, this section appraises legal framework of prosecutors and police relationship by dissecting it into pre – BPR and post BPR legal framework of prosecutor and police relationship in Ethiopia. Section two appraises legal insufficiency that governs prosecutors – police liaison for criminal investigation in ORS. The last section deals with conclusion and some recommendations.

The decision to modernize and codify Ethiopian law was made in late 1950s [and early 1960s], and European scholars were employed to draft codes. However, this doesn’t mean that until the codification of these codes, Ethiopia was only with unwritten customary laws rather amorphous mix. Hence, one could boldly say late 1950s and early 1960s were era of modernization of Ethiopian law.

To date, these codes, particularly criminal procedure code, has been mainly governing prosecutors – police relationship in Ethiopia for more than six decades. This code, in its chapter 2 of book I, elicits powers and duties of public prosecutor and that of police as well as their relationship.

According to this code, while public prosecution department were empowered, in discharge of its duties, to give necessary order and instruction to the police department and ensure whether the police carryout their duties in accordance with the law,  police department to assist prosecution department, and even, prosecuting offences when the police  are appointed as public prosecutor.

The provisions under chapter 2 of book II of this code enunciates that police were empowered to investigate without any delay whenever they know or suspect that an offence has committed and pass over the report of investigation to public prosecution department.  These provisions do not have, either expressly or impliedly, a sense that prosecutor and police undertake criminal investigation together in team. Again, these provisions don’t prohibit prosecutor and police to undertake criminal investigation together in team. Hence, it was remain prosecutorial and police’s discretion to carryout criminal investigation together as a team.

On the other hand, regarding constitutional status of the office of prosecutors, in the history of Ethiopian regimes that range from Feudal to Democratic Republic, and constitutions that range from the one that emperor granted to what they called ‘their faithful subject’ to the one that recognizes the sovereignty of nation, nationalities and people of Ethiopia, it is only the constitution of Derg (committee) regime – a regime which is well known by leading Ethiopia with the power of gun and bulletin with constitutional vacuum for 13 years – in the morrow of its downfall and its constitution’s suspension, acknowledged procuracy as one of the fourth headless organ of the government.

According to this constitution, procuracy should be headed by prosecutor general who should be elected by national shengo (parliament) and accountable to this national shengo.  Moreover, the term of prosecutor general was equated with the term of his appointer, namely the national shengo.   

However, before it was fully deep-rooted, the derg regime and its constitution were overthrown and replaced by EPDRF with FDRE constitution and Federal structure. As per FDRE constitution, Ethiopia becomes a Federal State with nine mother Regional States.

If not impliedly as an executive organ, FDRE constitution talks nothing about procuracy and police. Hence, unlike era of derg regime, procuracy is not the fourth headless organ of the government under present Ethiopian legal system, rather it is part and parcel of executive organ. Nonetheless, procuracy and police were established by parliamentary legislation both at federal and regional states. Accordingly, in Ethiopia, prosecutorial institution was relegated from constitutional organ to statute organ that could be altered, merged with other or its power could be transferred to other institution with the whims of one party legislative branch of government.  

Being this as it is, at Federal level, more or less the same to CPC of 1961, while public prosecutor was empowered to direct and supervise police and instructs investigation, discontinuance and order further investigation as per the circumstance permit, police were empowered to carryout criminal investigation exclusively and bears duty to execute order issued by prosecutors concerning the investigation of crimes.

In similar approach at regional level, particularly in ORS, though the office of prosecutors was separately established in 1994, the latter Oromia executive organs establishment proclamation merged the office of attorney, police commission and prison administration together to form a single office,  namely Justice Affair Bureau and empowered this Bureau to supervise criminal investigations that were undertaken by the police. 

 From this glimpse into history, pre – BPR legal framework of prosecutor – police relationship, two things are noticeable. While public prosecutor was only charged to supervise the investigation of crime and treatment of suspected person in police custody, police were charged to conduct criminal investigation unaccompanied and independently, and to execute public prosecutors’ lawful instructions and orders. Wording differently, prosecutors had a minimal role in the investigation performed by   the police.

Hence, pre – BPR era of prosecutors – police relationship in Ethiopia could be described as an era where there were huge cooperation and communication gaps persist over criminal investigation between these public institutions and servants. It is generally argued that cooperation and communication gaps between the prosecutors and the police made the defense attorney’s job easier and the prosecutor’s job harder.  On the other hand, any situation that makes the defense attorney’s job easier and the prosecutors’ job harder let true criminal go free.

In sum, pre – BPR public prosecutor and police relationship over criminal investigation could be explicated as they do not work together with each other let alone in team but rather they work next to each other, and criminal investigations were regarded as the only police’s jobs and responsibilities.   

  • Post – BPR Legal Framework Of Prosecutors – Police Relationship

Post – BPR legal framework of the prosecutor – police relationship over criminal investigation refers any legislation that was enacted in view to govern prosecutor – police relationship after October 2007, particularly in ORS.

 In ORS, the pioneer post – BPR legal regime of the prosecutors and the police relationship statute was proclamation No.132/2007. Regarding Oromia Justice Bureau’s and Police Commission’s duties and powers, this proclamation was envisaged to give legal coverage to the memorandum of understanding concluded between Oromia Justice Bureau and Police Commission to empower prosecutors and police to carryout criminal investigation together in team. Put otherwise, partly it was promulgated to legalize criminal investigation BPR of 2007.

Nonetheless, this proclamation failed to compartmentalize prosecutors’ and police’s duties and responsibilities, rather it made each and every activity in criminal processing common duties and responsibilities of prosecutors and police.

Thus, BPR had taken CPC of 1961 to betwixt and between situations, neither applicable nor inapplicable over criminal investigation processes. One well known sympathetic of BPR in BPR era was that nothing stands against BPR, even the constitution. This understanding suspends among others, article 8, 37, 38(2), 42, 80 – 93, 123, 124, etc. of CPC of 1961 unbecomingly. This distortion lasted for more than half decade.

However, to make BPR congruent to CPC of 1961 and criminal justice policy of Ethiopia, and to put right to the defect of 2007 BPR,   recalibration of criminal investigation BPR was done in 2014. Thus recalibrated criminal investigation BPR of 2014 replaced the BPR of 2007.  Unlike BPR of 2007, nonetheless, nothing was done to legalize BPR of 2014 until 2018. This made the criminal investigation BPR of 2014 almost amnesia than working guideline.     

However, proclamation No. 943 of 2016 and proclamation No. 214 of 2018 were enacted as Federal and ORS Attorney General Establishment statute respectively. The preamble of these proclamations stipulate that those proclamations were needed to subsume scattered prosecution power under single institution, and also to establish strong and comprehensive law enforcement public prosecution institution which could enforce rule of law.

Following the enactment of these proclamations, attorney general of ORS recalibrated criminal investigation BPR in 2018. According to this ORS attorney general establishment proclamation,   prosecutor – police team criminal investigation was principally relegated to only in case of serious crimes, corruption crimes, tax crimes and ‘public matter’ crimes and it is left as prosecutors’ discretion to carryout criminal investigation together in team with police in case of   other crimes.

Despite this relegation, to date like pre – ORS Attorney General Establishment proclamation, criminal investigation practices were continued as it was and criminal investigation through team of prosecutors and police, in ORS, from its inception to till now is full of tension and hotbed area.  Though rationales for the tension is not limited to legal insufficiency that governs the relationship between police and prosecutors, legal insufficiency that governs the relationship between police and prosecutors is one and the foremost reason. 

As was alluded earlier, to date the basic laws that are particularly governing the relationship between ORS’s   prosecutors and police are CPC of 1961, some piecemeal legislations and BPR. Again, as was discussed, CPC of 1961 and legislations that lasted until 2007 insist on that while criminal investigation was police’s power and duty, deciding over police’s criminal investigation report was that of prosecutors. 

For this reason, in pre – BPR era, some legal experts argued that existing laws, laws governing the relationship between police and prosecutors, are adequate to govern the relationship between the two public servants. Whether one may or may not concede to this argument, these experts’ view reflects only about the situation prevailing pre – 2007 and pre – implementation of BPR while here the concern of this piece is post BPR era. Regarding post BPR, the writer argues there is legal insufficiency of laws that govern the relationship between the prosecutors and the police over criminal investigation in ORS.   

Post BPR prosecutors – police relationship’s legal insufficiency was the preferred way out in reforming criminal justice administration which created chicken – egg dilemma; viz. updating anachronistic CPC of 1961 or updating obsolete processes under anachronistic CPC of 1961.   Ethiopia as country and ORS as a region preferred updating obsolete processes under anachronistic CPC of 1961 which was a root cause for the subsequent problems and for the ramification of desired results to be achieved through the implementation of BPR.

Due to blunder of preference, the opted preference was stretched to the extent of suspending hereinabove indentified CPC of 1961’s provisions that govern criminal investigation processes. Thus, following the implementation of BPR, the provisions of CPC of 1961 that govern police – prosecutor relationship and the criminal investigation processes were suspended improperly by simple document called BPR. Put simply, BPR took the processes of criminal investigation processes and police – prosecutor relationship to arena where almost all activities will be done in a legal vacuum but BPR document.

Secondly, until proclamation No.214/2018, BPR and post BPR legislations over criminal investigation were treating police’s and prosecutors’ functions almost as one and the same. It equates prosecutors and police to decide over whether to prosecute, not to prosecute or further investigation should or shouldn’t be carried out. This takes the inherent prosecutors power to supervise, direct, control the legality of detained person and criminal investigation process to betwixt and between, neither police nor prosecutors had these powers alone. Moreover, the principle of common responsibility of prosecutors and police for criminal investigation processes was developed.

However, this tendency contradicts with the stark truth in criminal justice system that the people are represented by two separate, yet equally important groups, the police, who investigate crime, and the attorney who prosecutes the offenders. 

Thirdly, even post proclamation No.214/2018, while proclamation No.213/2018 compels police to carryout criminal investigation in collaboration with prosecutors only in case of ‘serious crimes, corruption crimes and tax crimes, proclamation No.214/2018 empowers, in principle,   prosecutors to carry out the investigation of serious crimes, ‘public matters crimes’, corruption crimes and tax crimes, and as an option and where it is needed all crimes, in collaboration with police. The list of this latter proclamation’s types of crimes is a flummoxing typology of crimes and poses some issues. As an instance, what types of crimes are regarded as ‘Public matter crimes’? What type of crimes are non – public matter crimes? What is the scope of the concept of public matter crimes?  Nonetheless, what is listed as serious crimes, corruption crimes and tax crimes could not be subsumed under public matter crimes? 

Basically, one could flawlessly argue that crimes are acts which have harmful effect on the ‘public’, and do more than mere interference with private rights. Besides, it is maintained that the administration of criminal law is public process between state and the accused. Thus, like else jurisdictions, in Ethiopia this public nature instance of crimes are reflected in the extent to which the Ethiopian government has control over criminal prosecution. In Ethiopia, save crimes punishable upon complaint and petty offense, all crimes are public matters crimes.      

 Besides, technically speaking, because the exception proves the rule, and it is provided that   prosecutors could carry out other crimes ‘depending on the circumstance’ in collaboration with police, criminal investigation of all crimes in ORS will be undertaken only through a team  of   prosecutors and police. For a fortiori, recalibrated criminal investigation BPR of 2018 amplifies this argument. 

Therefore, one could courageously argue that, in ORS, while as per proclamation No.214/2018 all criminal investigation will be carried out only through prosecutors and police together as a team, as per proclamation No.213/2018 only criminal investigation of serious crimes, corruption crimes and tax crimes are expected to be carried out only through prosecutors and police together as a team.  

 Then, perceptibly, there is discrepancy between these two proclamations over crimes that ought to be investigated by prosecutors and police as team and that could be investigated only by the police. Even to alleviate this discrepancy through statutory interpretation rule, these two proclamations were issued on the same day, and also they are special in their own area that they govern. If so, which one of these proclamations sways over other to govern the prosecutors – police relationship over criminal investigation?  Then, over which type of crimes the police bear obligation to carryout criminal investigation in collaboration with prosecutors? According to proclamation No.213/2018 or proclamation No.214/2018? 

 More complicated, as highlighted just hereinabove, criminal investigation BPR of 2018 was recalibrated in view of proclamation No.214/2018 only by ORS Attorney General, not with ORS police commission as it was habituated. Then, could this BPR encourages or frustrates police – prosecutor relationship over criminal investigation? 

Again, as far as, the writer’s knowledge goes, in criminal justice system of Ethiopia, to date the typology of serious, intermediate or simple crimes has no legislative recognition but it is at the tentative draft stage. Moreover, this tentative draft covers only crimes that were included in FDRE criminal code. Beside this code, different legislations carry punitive clauses, and these were typified neither as serious nor intermediate nor simple crimes. If so, in one hand, how the concepts at a tentative draft level could govern the relationship between police and prosecutor? And on the other hand, what about crimes that are not typified as serious or intermediate or simple?

The summation of the discrepancy between proclamation No. 213/2018, and proclamation No. 214/2018 and criminal investigation BPR of 2018 could be put simply as while former proclamation was issued in view of loosening the bond between police and prosecutors over criminal investigation, the latter proclamation and criminal investigation BPR of 2018 were designed in view of strengthening the pre-existing bond between police and prosecutors over criminal investigation processes.      

Fourth, though speedy trial is a constitutionally acknowledged right in Ethiopia, there is no legal time limit within which criminal cases ought to be processed at different agencies – at police, prosecutors and courts – under Ethiopian law. The only response of CPC of 1961 is that criminal investigation ought to be completed without unnecessary delay. This poses the query what is the gauge to differentiate necessary delay and unnecessary delay?  Is unnecessary delay mean not to finalize criminal investigation within a Day or Days? or a Week or weeks? or a Month or Months? or a Year or Years? It is a penumbra.

Noticing this gab, in lieu of bridging it by issuing proper legislation, it was tried to overhaul it by using BPR that was with twin pitfalls standards. The BPR of 2007 come up with ten hours as time limit of  criminal investigation of all kind of crimes and to decide over either  to continue or discontinue proceeding based on ‘page number of investigation report while the BPR of 2014 come up with other option of standard, namely based on the degree of criminal investigation complexity. Though fail to give credit to this attempt makes one ungrateful biped, from the very outset the attempt was tracked toward unsuccessful destiny.

These were because while the problem needs legal response as it was legal gab, it was responded with non legal solution. This is equal with fail to notice the problem and go to try to solve it completely. On the other, the opted standard – degree crimes – is non–conceptualized concepts in Ethiopian criminal justice system. As was discussed elsewhere in this tract, the classification of crimes as serious, intermediate and simple has no criminal law recognition in Ethiopia to date. 

Next to this pitfall, the other pitfall is no legal remedies were provided either as disciplinary matter or other sanction for failure to finalize criminal investigation within the time limit sets in BPR. Neither prosecutors’ nor police’s administration regulation makes failure to finalize criminal investigation within the time limit set in BPR disciplinary matters.                

Fifth, the pre – proclamation No.214/2018 argument was that though prosecutors are empowered to supervise, direct, and give necessary instruction to police, it is not specified whether the prosecutors can take any measure  against police officers who do not follow her/his instructions. However, proclamation No.214/208 empowers prosecutors to supervise, direct, and give necessary instructions to police and makes failure to observe prosecutors’ instructions by police a criminal act. At theory level, it is a perfect response to pre – proclamation No.214/208 argument that query the consequence of failure not to observe the prosecutors’ instructions. Nonetheless, still there is a big question mark hanging over the effectiveness of this response.

 Prior to quest the effectiveness of criminalizing failure to observe  prosecutors’ instructions by police, it is fair to ask whether other laws, especially police – prosecutors relationship concerning  laws, have the sentiment that police should observe public prosecutors’ instruction.

While observance of public prosecutors’ instructions is provided as a duty of the police under proclamation No. 2014/2018, like its precursor legislations, it is not provided as duty of the police to observe the prosecutors’ instructions under proclamation No. 213/2018. Furthermore, non – observance of the prosecutor’s instructions does not amount to even a police’s disciplinary matters.  Hence, one could conclude that the police’s duty to observe prosecutors’ instructions over criminal investigation has no cognizance from police’s institutions perspectives.

Irrespective of this non – cognizance, proclamation No. 2014/2018 has criminalized non – observance of public prosecutors’ instructions by police. Nevertheless, would it be effective? For two reasons, the writer argues it is unsuccessful as all matters stand today. 

First, as was discussed, proclamation No. 2014/2018 provides the prosecutors could carry out any criminal investigation only in collaboration with police. Put simply, in ORS, prosecutors have no power to undertake criminal investigation alone but in collaboration with police.  Moreover, the joint reading of article 7(9, 26) of proclamation No. 2014/2018 and article 38, 39, 109(1), 111, 145 etc. of CPC of 1961 reveals the institution of criminal proceedings (charging) should be preceded by criminal investigation. Then, if non – observance of   prosecutors’ instructions is not even disciplinary matter for police and prosecutors are not empowered to conduct criminal investigation unaccompanied, making a police criminally accountable for failure to observance prosecutors’ instructions depends only upon the willingness of police – the colleague and institution of the suspect(s). This challenge could simply be explained by some scholars’ argument which goes there is undeniable truth that police suspects have a number of inherent advantages that flow from their position as insider in the criminal justice system to make them criminally liable for any kind of crimes that they commit.    

Second, now prosecutors and police have day in, day out relationship over criminal processes in ORS. On one hand, daily activities could be better governed by making it the administrative disciplinary matters than criminal act.  On the other hand, though there is no agreed test for when ill conduct should be criminalized, some scholars argued that criminal law should only be used to censure persons for substantial wrongdoings and also offenses should only be created when absolutely necessary.  This stipulates that if it is possible to control any ill conduct by making it a disciplinary matter or by private laws, its criminalization becomes act of over criminalization and criminalization of any ill conduct should be a last resort.

Hence, appraising criminalization of failure to observe prosecutors instructions by police from ‘substantial wrongdoings and when absolutely necessary’ test, for this writer, making failure to observe prosecutors instructions a criminal act has no gone down well. Therefore, one could daringly argue that making non – observance of prosecutors’ instructions by police a disciplinary matter than a crime is more effective and plausible measures for effective administration of criminal justice system.

Granted failure to observe prosecutors’ instructions passes the tests of criminalizing ill conducts, to make it effective and purposeful; the writer opined the criminalization of non – observance of prosecutors’ instructions faces the chicken and egg dilemma and this dilemma should have been resolved first. To resolve this dilemma, prior to criminalize non – observe of prosecutors’ instructions by police or equally, prosecutors should have been empowered to conduct the  criminal investigation independently in case when prosecutors – police team investigation is deemed to impede the very purpose of criminal investigation. This argument goes mutatis mutandis for some other crimes and other official offenders.     

No naysay that close relationship, either as task force or as team, between police and prosecutor is necessary for well functioning of criminal system. Nonetheless, it is argued that the prosecutors should be granted police power in case of police misconduct as complementary to cross – designation. In buttressing this position, Levine cogently notes that [. . .] when prosecuting an officer [police], the prosecutor must switch from her alliance on the police as allies to the position of adversary, questioning the credibility and judgment of police officers, [. . .] and pursuing the case against the officer [police] as she would vigorously as civilian defendant.  Similarly, in 2001 professor Abbe Smith asked if a person could be a good prosecutor and a good person, and answered No, while Professor Vida B. Johnson in 2018 answered that only prosecutor who focuses on powerful, and particularly who is willing to prosecute police who do wrong, can be good. 

The position of these scholars and the writer is not to insist on prosecutors to capitalize on the police misconduct and hunt them, rather to give meaning to the duty of the prosecutors, namely seeking equal justice for victims impartially – which is one spectrum of rule of law.  Moreover, the position of these scholars is what has already recognized and acknowledged by UN Guideline on the Role of Prosecutors that was adopted in 1990.

The relevant provision of this Guideline, article 15, reads as ‘Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violation of human rights and [. . .].

Again, Mosby smartly speculated that seeking equal justices does not mean convictions; continuing his argument, he maintained that at the first level justice is better served by avoiding the instances of injury or death that lead to prosecution and, at the next level, justice is better served when there is genuine possibility that prosecutor will bring charges, following uncompromised investigation, with the choice to prosecute leading to a trial by one’s peer.

Thus, the offshoot of this discussion suggests empowering prosecutors to conduct criminal investigation unaccompanied, in case like under consideration, is not a discretionary rather it is mandatory.    

Sixth, absence of laws that will govern the potential contradiction between organizational chain of command of police and prosecutors’ instructions is another area of gap. Obviously, it is not uncommon to sense the presence of organizational chain of command in police institution. In case of ORS police commission administration, failure to observe organizational chain of command is a rigorous disciplinary matter. There are ample reasons to uphold organizational chain of command in police institution. The first and foremost reason is to preserve peoples’ peace and tranquility. Hence, the position that one ought to give to organizational chain of command of police should be as important as the police institution per se.

In spite of this stark truth, one may argue that though there is no clear law that governs the potential contradiction between organizational chain of command of police and prosecutors’ instructions, it could be solved through statutory interpretation rule.   

Nonetheless, statutory interpretation rule comes to picture only in case of no clear law to govern a given issue. Consequently, a resort to statutory interpretation rule is a prime facie of legal insufficiency to govern a given practical issue.  

Hence, even if one may bow to statutory interpretation rule to overhaul legal insufficiency, this rule could not tell us legal sufficiency, rather a way out of legal insufficiency deadlock.

  1. Conclusion and Recommendations

    • conclusions: A Mixed Picture  

All in all, when considering post BPR prosecutor – police liaison and criminal investigation by these two public servants in team, one can visualize a mixed picture, with some short term achievements but also long term threats. One of the main reasons behind this bifurcation and ramification results of post BPR prosecutor – police relationship over criminal investigations is legal insufficiency that governs criminal investigation processes. This bifurcation and ramification results of post BPR prosecutor – police liaison for criminal investigation could be explicated by persistent tension between prosecutors and investigators in all Districts (Woredas) and Zones of ORS. This tension goes to the extent of  physical violence and illegal jailing. However, this threat is not only threat against prosecutors as an institution but it is a threat against the criminal justice system itself. Though it is somehow late, it is time to take appropriate measure to save criminal justice system and  make prosecutors a true equal justice seeker in ORS as well as in Ethiopia.  

  • Recommendations

    • To curb the problem persisting and frustrating police’s and prosecutors’ relationship over criminal investigation, criminal procedure that appreciates and be a panacea for this problem, and that looks the problem in-depth should be promulgated. To curb the problem, the procedure, among others, should come up with;
      • Clear provision(s) that provide and specify crime and time limits within which its investigation should be finalized, and its remedy if one fails to finalize within specified time limits, 
      • Clear provision(s) that compartmentalize power and duties of police and prosecutors and their respective responsibility in their common responsibility of conducting criminal investigation in team,
  • Clear provision(s) that provide the power to request for remand and release of suspect on bail  is common power of  prosecutors and police with the last saying power of the former in case of disagreement,  
  • Clear provision(s) that honor Prosecutors with the power to initiate and carryout criminal investigation or a disciplinary matters procedure against investigators who fails to obey the law and
  • Clear provision(s) that compel police institution to take disciplinary measure against investigators who fails to obey lawful prosecutors’ instruction regarding criminal investigation.

 

Last modified on Thursday, 15 October 2020 16:52
Fiseha Negash

The blogger is a Public Prosecutor at Oromia Regional State, Ethiopia; He can be reached at [email protected].