19 November 2020 Written by 

Permanency Rule Dilemma To Designate Grave Willful Injury Crime Of Ethiopian Criminal Code Of 2004: The Practice In Oromia Regional State

 

‘Write Your Injuries in Dust and Your Benefits in Marble’ – Benjamin Franklin.

Abstract

Though it needs statically documented data to conclude so, the practice demonstrates bodily injury crime is one of the mostly and frequently committed crimes. Nonetheless, there is no common worldwide standard to define what constitutes bodily injury crime and to classify bodily injury crime, particularly to grave bodily injury crime and common willful injury crime.

Ethiopian criminal code of 2004 covers bodily injury crime in its chapter II of book V – crimes against person and health. It is verbatim copy of chapter 2 of book V of Ethiopian penal code of 1957. The technique in which act of bodily injury is criminalized in Ethiopian criminal law has some unique characteristics.

These, among other, bodily injury crime is considered as only act that cause actual physical injury while else jurisdictions’ experience  evidences psychological injury could also be considered as bodily injury crime.

Besides, Ethiopian criminal law, unlike other jurisdictions, has shortcoming of sufficiently defining injury that constitute grave willful injury crime and also fails to give illustrations of grave willful injury crime for clarity. This shortcoming heads for arbitrary and discriminatory applications of willful injury crime and argument for and against the criteria of designating grave willful injury crime.

The first and foremost argument that causes arbitrary and discriminatory application of grave willful injury crime in Ethiopia, particularly in Oromia Regional State (ORS), is permanency rule argument. Pursuant to this argument, injury to be grave willful injury crime, it must be, and only, injury that caused permanent health complication.

In ORS, this rule is used as the only yardstick to determine whether bodily injury crime is grave willful injury crime or common willful injury crime. Nonetheless, close scrutinizing of the law reveals injury that falls in the ambit of grave willful injury crime is not only injury that causes permanent health difficulty. Moreover, appraising federal cassation division’s jurisprudence also affirms that permanent health complication is not the only criterion to determine whether an injury constitutes grave willful injury crime but it is only one of the criteria.

Thus, the practice in ORS is in contradiction with legislative intent laying behind grave willful injury crime, and also federal cassation division’s jurisprudence on grave willful injury crime. Consequently, the writer argues that designing the permanency rule as the sole rule to determine whether an injury is grave willful injury crime or common willful injury crime is speciously constructed rule.

 

Introduction

Act of bodily injury is commonly understood as crime against physical integrity and human dignity. Nonetheless, assessing different jurisdictions’ experiences reveals, though they have some criteria in common, they employ different standard and criteria to define what constitute bodily injury crime and to classify bodily injury crimes, particularly into grave bodily injury crime and other types of bodily injury crimes.

Ethiopian criminal code of 2004 covers crime of bodily injury in its chapter II of book V under a caption ‘crimes against person and health’. It is verbatim copy of chapter 2 of book V of Ethiopian penal code of 1957.   Though, even closing the eyes to historical glimpse, since 1957 inflicting any kind of bodily injury is crime against person and health, reviewing practices point out that there is no well established jurisprudence to define and to classify bodily injury crimes into grave willful injury crime and other kind of bodily injury crimes.

Particularly, there is fuming argument over injury that constitutes grave willful injury crime and common willful injury crime, and on the rule that serves to designate grave willful injury crime. One of those arguments is permanency rule argument that invoked to determine whether an injury constitutes grave willful injury crime or common willful injury crime. Pursuant to this rule, an injury is considered as grave willful injury crime if and only if it occasioned permanent health problem.   

Assessing the practice in ORS reveals this rule is serving as the sole criterion to determine whether an injury is grave willful injury crime or common willful injury crime or other types of crimes against person and health. 

Nonetheless, appraising this practice from Ethiopian criminal code of 2004 and federal Supreme Court cassation division’s jurisprudence perspectives, it is not the one and only rule to categorized bodily injury crimes into grave willful injury crime and common willful injury crime.

To examine and demonstrate that permanency rule is not the one and only criterion to determine an injury is grave willful injury crime or common willful injury crime, this tract is outlined into seven sections. Section one purports to discuss and conceptualize the concept of injury. Moreover, it concludes that injury could be divided into real and verbal injury; and body and property injury; and bodily injury, one of real injuries, is physical damage to person’s body and characterized by tearing, cutting, piercing or breaking of tissue.

Section two tries to discuss the concept of grave bodily injury crime, especially the experience of different jurisdictions and concludes that appraising the concept of grave bodily injury crime in different jurisdictions suggests, though they share some element in common, there is variation across different jurisdictions.

Section three appraises grave bodily injury crime under Ethiopian criminal code of 2004 in-depth and it concludes that bodily injury crime embraces only actual physical injury but not psychological injury. Besides, injury that treated as grave willful injury crime is not only injury that causes permanent health complication but also injury that has potential and probability to endanger the life or causes permanent health difficulty hadn’t antiseptic treatment was not intervened, and it also includes some other serious injury. Thus, permanency rule is not the only rule to determine whether bodily injury crime is grave willful injury crime or common willful injury crime. 

Section four considers Federal Democratic Republic Of Ethiopian (FDRE) Supreme Court cassation division’s jurisprudence on grave willful injury crime and it concludes that analyzing the jurisprudence of division’s jurisprudence divulges injury that is considered as grave willful injury crime is not only injury that causes permanent health difficulty but also other serious injury. 

Section five deals with the practice of grave willful injury crime in ORS and it assess the stance of ILQSO – Oromia Justice Sector Professionals Training and Legal Research Institute. The section argues that the practice of grave willful injury crime in ORS is the replica of the stance of ILQSO.  ILQSO’s rule to determine whether an injury is grave willful injury crime is only permanency rule – only injury that causes permanent health complication falls in the realm of grave willful injury crime. Nonetheless, this rule is not in line with the stance of the law.

Section six analyses the practice in ORS from Ethiopian criminal code of 2004 and FDRE Supreme Court cassation division’s jurisprudence perspectives and the last section sets for conclusion and some recommendations.

  1. Of injury

 Different literatures use the term injury, hurt and wound interchangeably. However, scholars state these terms have almost the same meaning and differences as well. The dictionary definitions of injury, among others, include injury is infringement of right or actual harm caused to people or property;  it is violation of another’s legal right for which law provide a remedy, [. . .]  it is divided into real injuries such as wounding and verbal injuries such as slander, [. . .] bodily injury is physical damage to a person’s body, and  it [. . .] as technical legal word, a violation of an other persons right; in this sense the injury cause damage (the loss or harm commonly called an injury).

 Likewise, in U.S sentencing guidelines, body injury is defined as any significant injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.

The summation of these definitions suggests injury could be divided into real and verbal injury and bodily and property injury; and bodily injury, one of real injuries, is physical damage to person’s body and characterized by tearing, cutting, piercing or breaking of tissue and so on.

Clinically, a wound [injury] is produced when there is breach of anatomical continuity of skin or mucous membrane with or without underlying tissue while forensically it is wound when there is damage of any tissue or organ irrespective of breach of continuity of skin or mucous membrane. This is what is termed as actual body harm; and it rules out psychological bodily injury. 

Actual bodily harm is defined as any hurt or injury calculated to interfere with the health or comfort of the victim, [and] such hurt or injury need not be permanent but must, no doubt, be more than merely transient or trifling.

Thus, the analysis of different literatures point out that bodily injury has different category and named according to its degree of severity. These, among others, include assault, battery, common assault, grave bodily harm, common willful injury, grave willful injury, grievous injury, non grievous injury, serious bodily injury, injury likely to cause death, life endangering injury, life threatening injury, injury hazardous for human life and the lists may go on. Nonetheless, designating category of bodily injury is not as simple as naming its category rather it is a daunting task.

  1. Grave Bodily Injury Crime

In all honesty, there is no globally recognized bright line and standard to designate degree of bodily injuries and to define what constitutes grave bodily injury crime. Different jurisdictions, though they use some common standard, consider it differently. Thus, to epitomize, assessing some of them is worthwhile. 

To begin with, Model Penal Code of America defines simple assault as (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or  (b) negligently causes bodily injury to another with a deadly weapon;  or  (c) attempts by physical menace to put another in fear of imminent serious bodily injury while aggravated assault as (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life (felony of the second degree);  or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon (felony of the third degree). 

Taking the stance of model penal code simple assault’s definition of bodily injury takes the concept of bodily injury even beyond actual body harm. This type of injury, especially in common law legal system, is called battery and it involves what might colloquially be known as ‘invasion of personal space’.         

From physical point of view, an injury is a bodily damage or disruption of anatomical integrity of living tissue due to the application of physical forces; and it means any damage to any part of the bodily or bodily harm caused by application of violence. 

As was alluded earlier, above all designating bodily injury crimes into grave bodily injury crime in different jurisdictions, including Ethiopia, is point of hullabaloo. The crux deadlock of designating injury as grave bodily injury crime is that, in one hand, some faction argue that injury to be grave bodily injury crime always should be that causes permanent health difficulty and, on flipside, other faction argue that injury to be grave bodily injury crime always should not be expected to cause permanent  health complication rather should be actual injury that was sustained or exist at the time of trial or the potential injury which in fact developed, but could have resulted absent medical intervention. To illustrate the degree of this hubbub, assessing the definition that was given to grave bodily injury crime in different jurisdiction is worthwhile.

Additionally, the analysis of some jurisdictions’ judicial jurisprudence, some scholars’ work and some jurisdictions’ criminal law experiences demonstrate that to define grave bodily injury crime, they list some of grievous bodily injury crime illustratively and left opens ended. Furthermore, scrutinizing their experience divulges grievous bodily injury crime is not only injury that causes permanent health impediment but also temporary injury with some kind of severe bodily injury. 

Thus, to provide evidence for aforesaid hubbub and argument, looking some jurisdictions’ criminal law, judicial jurisprudence and scholars’ work for descriptive purpose is imperative. 

To begin with, Indian penal code of 1860 and Penal code of Sri Lanka  defines grievous bodily injury crime, similarly in a way it seems one is copied from the other, when they read as,

Emasculation, permanent privation or impairment of the sight of either eye, permanent privation or impairment of hearing of either ear, privation of any member or joint, destruction of permanent impairment of the powers of any member or joint, permanent disfiguration of head or face, cut or fracture of bone, cartilage or tooth or dislocation or subluxations of bone, joint or tooth, any injury which endangers life or in consequence of which an operation involving the opening of the thoracic, abdominal or cranial cavity is performed, any injury which causes the sufferer to be in severe bodily pain or unable to follow his ordinary pursuits, for a period of twenty days either because of the injury or any operation necessitated by the injury.

Other also defines grievous bodily harm as’

Any bodily injury of such a nature that if left untreated, would endanger or be likely to endanger life or cause or likely to cause permanent injury to health [. . .].  

Montana criminal code of 1973  defines grievous bodily harm as,

Bodily injury which creates substantial risk of death, or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of bodily member or organ [. . .].           

Great Soviet and Russian Federation Of 1996 considered grave bodily injury as,

[Injuries are] grave when they are dangerous to life at the moment of infliction, regardless of the consequences, or result in loss of sight, of hearing, or of any organ, in the loss by an organ of its functions, in mental illness or any other impairment of health, joined with persistent loss of at least one-third of the capacity to work, or in termination of pregnancy or permanent disfigurement of the face. 

Likewise other also defines grievous bodily harm as,

  (a) the loss of a distinct part or an organ of the body; or (b) serious disfigurement; or (c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available.

Again analyzing some jurisdictions’ judicial jurisprudence has also its own significance to search out the matter in-depth.  Thus, let assess some of them herein below.

In people v. Johnson case the court to explain grievous bodily injury held that,

 ‘it is common knowledge that a bone fracture is not merely a transitory bodily distress, but a severe and protracted injury which causes significant pain and requires considerable time to heal’.

In reinforcing this case’s holding, some researchers have found that the health-giving processes of fractured bone, in children the fracture may be disappeared in four to twelve months; in adolescents about twelve months; in adults eights to thirty six months; and in elderly people fracture may never be disappeared.

In People v. Caudillo  case the court held that,

[. . . the] finding of permanent, prolonged, or protracted disfigurement, impairment, or loss of bodily functions was not necessary for defendant to be subject to enhancement for inflicting great bodily injury, [. . .].

In martin v. state case, it was held that,

 The phrase serious bodily injury is quiet readily understood by average layman to mean some injury short of death, and similarly in comer v. state case the court held that the phrase serious bodily injury refers to something short of a fatal injury or mortal wound. 

Nonetheless, the holding held in these cases is half of the definition of serious bodily injury crime. This is because it basis only on a single skeleton of serious bodily injury definitions – bodily injury which creates substantial risk of death. Thus, gulping down of this holding of these cases as it is may be toxic. This type of injury is only one part of serious bodily injuries but not the only one.  This kind of injury is sometime termed as a life threatening injury.       

In United States v. Taylor case, a life threatening injury is defined as,

An injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent.

Furthermore, in some cases the court unequivocally indicates that serious bodily injury doesn’t mean only injurious that causes permanent health problem.  In State v. Laughlin, as an instance, the court held that grievous bodily injury need not be of a permanent character and that the word ‘grievous’  meant  ‘atrocious, aggravated, harmful, painful, hard to bear and serious in nature’.

Taken together, this review of the concept of grave bodily injury crime and its definitions suggests that, despite the fact that different jurisdictions have some element in common, there is variation in defining grave bodily injury crime across different jurisdictions. Besides, it divulges grave bodily injury crime doesn’t embrace only injury that causes permanent health complexity but also others. 

  1. Grave Bodily Injury Crime Under Ethiopian Criminal Code Of 2004

Acts of bodily injury are criminalized in chapter II of book V of Ethiopian criminal code of 2004 under the caption of crimes against person and health.  The catch – all provision of the code, article 553, states whoever intentionally or by negligence causes bodily injury to another or impairs his health, by whatever means or in any manner, is punishable in accordance with the provisions of this Chapter [chapter II of book V].

Besides, this provision embraces all manner of bodily assaults, blows, wounds, maiming, injury or harm, and all damage to the physical or mental health of an individual. Moreover, this chapter of the code is a verbatim copy of chapter 2 of book V of penal code of 1957 under the caption of offences against individuals and the family.

Close scrutinizing bodily injury crime of this chapter, in line of the concept of bodily injury discussed in the forerunner section, reveals Ethiopian criminal code of 2004 treats bodily injury crime with some unique characteristics. These unique characteristics, among others, include it classifies crimes against person and health into bodily injury crimes and quasi bodily injury crimes.

It excludes simple bodily injury and pain from the definition of bodily injury crime and termed them assault and petty offense (assault and minor acts of violence).  Accordingly, act criminalized via article 560 and 840 of criminal code of 2004 could be labeled as act of quasi bodily injury crime.

In view of that article 560 states simple bruises, swellings or transient aches and pains are not held to be bodily injury crime, article 840 [petty offense] states [. . .] act of (a) assault or minor acts of violence against another person while without striking or wounding the said person, or (b) deliberately or negligently throws at another person filth or an object or liquid likely to inconvenience or soil him is not an assault.

Thus, pursuant to these provisions, simple damage to human body caused by the application of mechanical force is not recognized as bodily injury crimes. Most probably, as per Ethiopian criminal code of 2004, injury caused with simple blunt force is not considered as bodily injury crime but only injury caused by sharp forces.

Injury caused by blunt force, among others, include lacerations, bruising/contusion, abrasions, etc while injury caused by sharp forces, among others, include incised wounds, stab wounds, chop wounds,  diagnostic/therapeutic wounds etc. 

Therefore, Ethiopian criminal code of 2004 requires more than simple production of wound and pain to acknowledge an injury as bodily injury crimes. Normally, wound is produced when the intensity of the applied force to the body exceeds the capability of the tissue to adapt or resist the force, and it includes abrasion, bruise, laceration, fracture, dislocation  and the list may go on.

Second, under Ethiopian criminal code of 2004, unlike other jurisdiction, psychological injury could not be qualified as bodily injury crimes rather only actual physical injury is qualified as bodily injury crimes. Nonetheless, some argue that post-trauma stress disorder alone, with no other physical manifestations, constitute bodily injury; and to think that psychological torture is not an assault on the body is a conceptual error from the outset [. . .].

Furthermore, in some jurisdictions, it has been recognized that psychological injury can constitute [even] grievous body harm if they are really serious medically recognized conditions and psychological injury could be occasioned, as an instance, making abusive telephone calls and sending unpleasant letter, e-mail, through social media and so on. However, psychological injury is not considered as one of bodily injury crimes under Ethiopian criminal code of 2004.  

Third,  unlike else jurisdictions’ experiences, Ethiopian criminal code of 2004 defines grave bodily injury crime, grave willful injury crime in the vernacular of  the code, mainly in generic term whereas other jurisdictions lists most of grave bodily injury crime as illustration and left open ended with generic definition. As was discussed hereinabove, comparing Ethiopian criminal code of 2004, as an instance, with that of Sri Lanka and Indian Penal code reveals Ethiopian criminal code of 2004 is highly generic in defining grave willful injury crime. It has never provided even a single illustration. The pertinent provision of the code, article 555, reads whoever intentionally,

  1. a) Wounds a person so as to endanger his life or to permanently jeopardize his physical or mental health; or
  2. b) Maims his body or one of his essential limbs or organs, or disables them, or gravely and conspicuously disfigures him; or
  3. c) In any other way inflicts upon another an injury or disease of a serious nature [. . .].

This generic nature of the code in criminalizing and defining grave willful injury crime causes issue under consideration that is dubbed by the writer as ‘permanency rule dilemma’. To put it simply, not be up to snuff of the code to provide sufficient definition for what constitutes ‘grave willful injury crime’ or gives precise illustration of ‘grave willful injury crime’ pave the way for arbitrary and discriminatory application  of   grave willful injury crime in the administration of Ethiopian criminal law.

Besides, it contributes for the persistence of two factions, those who argue grave willful injury crime represents only injury that causes permanent health complication, and those who argue that grave willful injury crime is not only injury that causes permanent health complication but also it includes  injury which has potential and probability of endangering life or cause permanent health difficulty hadn’t antiseptic treatment  intervened, or injury last for long period to be nursed back to health, etc.

In the midst of these argument, close reading of grave willful injury crime provision of the code doesn’t suggest that injury to be grave willful injury crime under Ethiopian criminal code of 2004 is not only injury with permanent health consequences. This is because article 555(A) has two separate and independent clause. These are (a) [. . .] wound a person so as to endanger his life and (b) [. . .] wound a person so as to permanently jeopardize his physical or mental health. Moreover, while the latter clause talks about permanent health complication, the former clause has no sense of permanency of health difficulty.

More or less as was discussed earlier, this is because injury endangering life [life threatening injury] is defined as an injury involving a substantial risk of death; [. . .] and something life threatening is seriously dangerous, and it might even result in death. If someone has a life threatening illness, it is severe enough that they may need to be hospitalized; [. . .].

Besides, others also state [. . .] any injury which puts the life of the injured person at risk is called injury endangering life [. . .], dangerous injuries are those which pose imminent danger to life, either by involvement of important organs or structures or extensive area of the body; without any surgical aid these injuries may prove fatal.

Moreover,  others also described it as [. . .] an injury is said to be endanger life, when there is an existing threat to life by way of injury, organ damage, [and] consequences like bleeding, shock or developing of complications like tetanus, septicemia, [and] meningitis.

As illustration, some also try to name some injuries that in per se sufficient to cause death in the ordinary course of nature. These injuries, among others, include injury to large blood vessels  and profuse bleeding. These named injuries are an instance of injury that can potentially endanger life. Thus, injury that could endanger life may or may not cause permanent health difficulty. 

Accordingly, one of the clauses in article 555(A), whoever intentionally wound a person so as to endanger his life, doesn’t suggest that post wound health complication should be permanent. Rather, at the time of the commission, in normal course of thing, the inflicted injury should have potential and probability of causing the death of the victim. 

Second, had the intention of the legislature was to make grave bodily injury crime represents only injury that causes permanent health difficulty, the legislature wouldn’t have used three limbs to describe grave bodily injury crime. Put otherwise, had the legislature intended to make grave willful injury crime only  injury that occasioned permanent health complication, half of limb ‘A’ (wound a person so as to endanger his life) and limb ‘C’ of article 555 of Ethiopian criminal code of 2004 is totally superfluous.

Moreover, had the intention of the legislature was to make grave willful injury crime embraces only injury that causes permanent health complication, article 555 of the code would have been designed  with single limb and would have read as,

 Whoever intentionally wounds a person so to permanently jeopardize his physical or mental health; or maims his body or one of his essential limbs or organs, or disables them, or gravely and conspicuously disfigures him is punishable [. . .].

 Because, half of limb ‘A’ (wound a person so as to permanently jeopardize his physical or mental health) and limb ‘B’ which states ‘whoever intentionally maims his body or one of his essential limbs or organs, or disables them, or gravely and conspicuously disfigures him [. . .]’ are enough to enunciate grave willful injury crime embraces only injury that causes permanent health difficulty. 

In line with these limbs, any person who causes permanent bodily injury is considered as perpetrator of grave willful injury crime. Nonetheless, this line of argument makes the rest limbs purposeless.

Wording differently, the permanency rule implies and could take one to conclude that the limbs of article 555 which read,

  1. a) Whoever intentionally wounds a person so as to endanger his life or
  2. c) Whoever intentionally in any other way inflicts upon another an injury or disease of a serious nature [. . .] was unnecessarily included phrases.

Usually, in designing laws, legislature never uses even a word let alone phrase or clause purposelessly. Hence, it is futile to argue that these limbs were unnecessarily included in designing article 555 and grave willful injury crime is only injury that causes permanent health impediment.

Third, only the inclusion of limb ‘C’ which states whoever intentionally in any other way inflicts upon another an injury or disease of a serious nature is an open ended clause and it suggests even injury that neither endanger the life nor causes permanent health problem but occasioned severe injury that could not fall in the realm of article 556 of the code is grave willful injury crime.  Hadn’t it was intended to mean this, limb ‘C’ shouldn’t have been included under article 555 of the code.

Thus, limb ‘C’ is designed to cover injurious act, among others, that occasions fracture of bone, cartilage or tooth or dislocation or subluxations of bone, joint or tooth, serious burns, broken bones, loss of fetus that could not be regarded as attempt of homicide, etc.   

Taking the foregoing discussion together reveals that, as per article 555 of Ethiopian criminal code of 2004, bodily injury crimes may be grave willful injury crime  irrespective of whether injury causes permanent health problem or temporary complication, particularly because of antiseptic treatments was sought. 

 

  1. FDRE Supreme Court Cassation Division’s Jurisprudence On Grave Willful Injury Crime

FDRE constitution of 1995 established dual judicial system, three-layer court structure, and cassation division both at federal and regional states to prop up uniform application of law in Ethiopia. In line with this constitution, Federal Courts Reamendment Proclamation states interpretation of a law by the Federal Supreme Court rendered by the cassation division with not less than five judges shall be binding on federal as well as regional council at all levels . As a result, any federal cassation division’s interpretation of law has binding effect on federal as well as regional states’ courts of all level unconditionally.  Consequently, federal cassation division’s interpretation of law (decision) serves as if it is a legislation that has enacted by appropriate legislative branch.

Hence, due to the pivotal importance of cassation division’s jurisprudence in the administration of Ethiopian justice system, analyzing the jurisprudence of cassation division on grave willful injury crime is imperative and judicious.

The case in which cassation division entertained the issue of whether grave willful injury crime should only be injurious act that caused permanent health difficulty or not is Abera Wakjira V. Justice Office of Benishangul Gumuz Regional State. The fact of the case was committed in Wombera woreda (district) and its prosecution started at Metekel Zone High Court of Benishangul Gumuz Regional State.

The act committed was that the perpetrator stabbed twice on the buttock of the victim by stiletto and produced 2x2cm and 2x5cm wound. The prosecutor charged the perpetrator with crime of attempt of aggravated homicide at article 27(1) cum 539(1) of criminal code, and the court also found that he was guilty of attempt of aggravated homicide. Though the defendant took his appeal to Supreme Court of Benishangul Gumuz Regional State and cassation complaint to cassation division of the region, he was unsuccessful. Thence, he lodges his complaint to federal Supreme Court cassation division. The federal cassation division, after it observed the case, held that,

[. . .] አመልካች በመጠጥ ቤት በተነሳ ፀብ መነሻ ከግል ተበዳይ ጋር ተያይዘዉ በወደቁበት ሁኔታ የግል ተበዳይ መቀመጫ ላይ መዉጋቱና የደረሰዉም የአካል ጉዳት መሆኑ ሲታይ አመልካች ተበዳይን የመግደል ሀሳብ ነበረዉ የሚለዉን የሀሳብ ክፍል ግምት ወይም ድምዳሜ ለመድረስ የሚያስችል ሆኖ አላገኘንም :: ይልቁንም አመልካች ሆነ ብሎ ስለት ነገር ተጠቀሞ የግል ተበዳይ ላይ ከባድ የአካል ጉዳት ያደረሰ ስለመሆኑ የተረጋገጠ ፍሬነገር በመሆኑ በወ/ህጉ አንቀጽ 555/1/ [555(A)] የሚያሟላ ድርጊት ሆኖ አግኝተናል:: [. . .] አመልካች የግል ተበዳይ ላይ ላደረሰዉ ከባድ አካል ጉዳት በወ/ህጉ አንቀጽ 555/1/ [555(A)] ስር ጥፋተኛ ነዉ ብለናል ፡፡

When literally and the main point of this quote of the decision is translated, it may read as,

 [. . .] it was proved that with the conflict occurred at bar, when the defendant and victim held each other and failed together, the defendant stabbed on the buttock of the victim. Analyzing this doesn’t persuade one to take the presumption or conclusion that the defendant intended to kill the victim. Rather, because the defendant intentionally caused grave bodily injury with sharp object, the act of the defendant fulfills the ingredient of article 555(1) [555(A)] of criminal code. Thus, because the defendant inflicted grave willful injury, pursuant to article 555(1) [555(A)] of criminal code, he is guilty of grave willful injury crime.  

The fact of this case points out that the victim was not sustained permanent health difficulty but stabbed with stiletto on his buttock. Nonetheless, in normal course of thing, hadn’t the victim been sought medical treatment, there was probability that the victim’s life might be endangered. This is because the stab might cause profuse bleeding.  Thus, it falls within the realm of the first clause of article 555(A) which reads ‘whoever intentionally wounds a person so as to endanger his life’.  In this case, though the division did not clearly state it, the decision explicates the jurisprudence of the federal cassation division is that grave willful injury crime does not mean that only injury that causes permanent health complication and this holding of the division is the stance of the writer.

Similarly, in State v. King case where the defendant caused a 3 inch stab wound in the upper left chest of the victim, the Utah court held that the injury inflicted constitutes a serious bodily injury.

Thus, the offshoot of the above discussion of Federal Democratic Republic of Ethiopian federal Supreme Court cassation division’s decision suggests that the jurisprudence of cassation division on grave willful injury crime under Ethiopian criminal code of 2004 suggests injurious act that considered as grave willful injury crime embraces not only those injuries that resulted in permanent health difficulty but also other serious injuries. Moreover, this holding is in congruent with the stance of Ethiopian criminal code of 2004.        

  1. The Practice Of Grave Willful Injury Crime  In Oromia Regional State

Currently, the legal practice in ORS is the replica of Oromia Justice Sector Professionals Training and Legal Research Institute and, in Afan Oromo, it is simply abbreviated as ILQSO. In this tract, it is referred as the institute. This institute was established in 2006 mainly because it was recommended by the Centre for International Legal Cooperation that had undertaken a baseline study of the Ethiopian justice system from 2003 – 2005 for capacity building purpose.

Pursuant to limb six whereas clause of its establishment regulation, one of the first and foremost targets for the establishment of the institute was to make the application of law uniform, predictable and efficient. Since its establishment, the institute has been striving to furnish these objectives; and brought so many touchable changes in ORS on the administration of justice system. Moreover, the institute could be regarded as governmental institution that was designed to eradicate legal illiteracy of 21st century of the region. As Alvin Tofflers sagely described it, the illiterate of the 21st century will not be those who cannot read or write but those who cannot learn, unlearn and relearn.

Thus, the institute is training legal professionals using different training programs. Accordingly, now a day almost all prosecutors and judges in ORS are those trained at the institute either in pre – service or in – service training program or using other training program.  It is due to this fact that one could flawlessly argue that legal practice in ORS is the reflection of the institute’s training. 

Regarding the issue under discussion, the institute prepared training module a decade ago and since then they are training judges and prosecutors of the region accordingly.  In this training module, it concluded that injurious act to be grave willful injury crime, falls in the realm of article 555 of Ethiopian criminal code of 2004, it should be, and only, injurious act that causes permanent health complication.  

Precisely in the word of the module, it was written as,

  [. . .] gochi miidhaa qaamaa gahe tokko tumaa S/Y RDFI kwt 555 jalatti himachiisuu kan danda’u miidhaan qaamaa dhaabbiidhaan kutaa qaama namaa miidhaan  irra gahe sana akka hin tajaajille godhe jiraachuu akka qabu waan jala muramuu qabuu dha.

 When it is roughly translated, it reads as,

  It should be underscored that bodily injury that falls in the domain of article 555 of FDRE criminal code ought to be injury that permanently disable bodily organs of a victim due to the fact that he sustained the injury. 

They reached to this conclusion mainly based on Wayne R. Lafave’s observation on the subject of grave bodily injury crime.  According to him, 

Grave body injury is an injury that affects the natural completeness and normal appearance of human face and body. It constitutes an injury that inflicts a permanent disfigurement or dismemberment on human body and face. To be permanently disfigured means that the person is appreciably less attractive or that a part of his body is to some appreciable degree less useful or functional than it was before the injury. And also it is a requirement for grave body injury that the disabling injury be permanent, so that the temporary disablement of a finger, arm, eye, or other member [of the body] will not do.

However, using this scholar’s work to define the concept of grave bodily injury crime under Ethiopian criminal code of 2004 is half right and half wrong, and even the latter outweigh the former. It is half right, because it is normal to assess different literatures to define and redefine and to conceptualize a given concept.

It is half wrong, because they went to the extent of replacing the provision of Ethiopian criminal code of 2004 with the said author’s observation. This is because, save the dictionary definition, they didn’t try to assess other scholars’ works to make comparison between different authors’ observations on the issue under consideration. Moreover, they used Wayne R. LaFave’s observation fully as there is no contrary argument.

Second, most probably Wayne R. LaFave wrote this comment as general criminal law concept but not on what is designed as grave willful injury crime under Ethiopian criminal code of 2004, and he was not one of the drafters of Ethiopian criminal code. In spite of everything, it is single scholar’s view and this scholar’s view is not international standard to define what constitutes grave bodily injury crime. Moreover, if they want to go beyond the text, they did not say anything about legislative history of the code or made any interview with drafters of the code, if any.

Third, they fail to appraise different jurisdictions’ criminal law system experiences and judicial jurisprudences. Only assessing a single scholar’s work is not enough to reach to a given truth or conclusion but also it needs appraising different jurisdictions’ experience, judicial jurisprudences, legislative history, if any, etc. Nonetheless, they never tried to appreciate the issue under discussion from these perspectives.

Fourth, they reached to this conclusion based on other sources extrinsic to the text. Nonetheless, it is generally accepted jurisprudence that the starting point in statutory construction is the language of the statute itself; and statutory text is the ending point as well as the starting point for interpretation.  Moreover, it is maintained that the cardinal rule of interpreting statutes, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature; and the best evidence of legislative intent is the language used in the statute itself, which must be given its plain and ordinary meaning . Usually this rule is known as plain meaning rule of statutory interpretation.  Nonetheless, in the module of the institute this rule was overlooked.

Beside these, the interpretation procedure used to reach to the permanency rule conclusion suffers from the defect of holistic rule of interpretation. One of cardinal rules of statutory construction is that a statute should be read as a harmonious whole, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes. 

However, in the module of the institute only half of limb ‘A’ (wound a person so as to permanently jeopardize his physical or mental health) and limb ‘B’ which states ‘whoever intentionally maims his body or one of his essential limbs or organs, or disables them, or gravely and conspicuously disfigures him [. . .] were used to reach to the conclusion reached.

Half of limb ‘A’ (whoever intentionally wounds a person so as to endanger his life  and limb ‘C’ which states whoever intentionally in any other way inflicts upon another an injury or disease of a serious nature [. . .] were completely disregarded in searching for legislative intent that lays behind article 555 of the code.

Thus, as was argued earlier, they fail to give effect for half of limb ‘A’ (whoever intentionally wounds a person so as to endanger his life and limb ‘C’ completely. Consequently, in effect, they made these two limbs totally superfluous. Nonetheless, from statutory interpretation rule perspectives, interpreting statute in a way one makes the other part purposeless is an absurd way of interpretation.  

However, though permanency rule argument, regarding article 555 of Ethiopian criminal code of 2004, has these and like defects, in ORS, the conclusion reached in the institute’s training module, permanency rule, is serving as a yardstick to determine whether bodily injury is that of grave willful injury crime or other kinds of bodily injury crimes. Accordingly, almost all prosecutors and judges in the region are administering issue of grave willful injury crime in consistent with the definition/conclusion of this training module. Thus, it denotes that the permanency rule is serving as the only criterion of determining injury whether it constitutes grave willful injury crime or other kind of bodily injury crimes, particularly common willful injury crime.

This takes place mainly for two reasons. First, as was discussed, Ethiopian criminal code of 2004 fails to define what constitute grave willful injury crime sufficiently and, give illustration, list some kind of grave willful injury crime, like other jurisdictions’ criminal laws do to avoid haziness.

Second, the institute serves not simply like higher institutions’ law school in which arguing in both side is normal, rather it endorses arguing in both side is abnormal. This is because one of the main objectives for the establishment of the institute was to uphold the uniform application of law in ORS. For this reason, the training of the institution is practice oriented training model than theoretical oriented training model. Thus, it is a training mainly to persuade legal professionals to have similar attitude toward a given legal issue. 

These and other reasons make permanency rule almost the binding rule in defining grave willful injury crime, and categorizing bodily injury crimes into grave willful injury crime and common willful injury crime in ORS. 

  1. Practice In ORS From Ethiopian Criminal Code Of 2004 and FDRE Cassation Division’s Jurisprudence  Perspectives

Now, all is clear that pursuant to cassation division’s jurisprudence and real stance of article 555 of Ethiopian criminal code of 2004, injurious act that is regarded as grave willful injury crime does not imply to mean only injury that resulted permanent health complication. On the other hand, appraising the practice in ORS outlines grave willful injury crime means only those injuries that caused permanent health difficulty.

Thus, there is clear discrepancy between the stance of Ethiopian criminal code of 2004 and federal cassation division’s jurisprudence, and the practices in ORS. In the view of the writer, for aforementioned reasons, the practice in ORS is not in congruent with the legislative intent that lays behind article 555 of Ethiopian criminal code of 2004. Again, as was thrashed out earlier, article 555 talks not only about injury that causes permanent health difficulty but also it embraces other types of serious bodily injury act.

Besides, the abovementioned federal cassation division’s decision is clear that grave willful injury crime is not only injury that causes permanent health problem but also other type of injuries. Thus, the ‘ratio decidendi’ of this case is plain that to be guilty of grave willful injury crime, one is not expected to inflict injury that causes permanent health difficulty.  Moreover, this decision is ‘Stare decisis’. All federal as well as regional states’ court of all level have duty to obey and apply it.

Thus, henceforth it is clear that permanency rule should never be employed as a sole rule to define what constitute grave willful injury crime and to categorize bodily injury crimes into grave willful injury crime and common willful injury crime in ORS as well as in Ethiopia. 

  1. Conclusion and Recommendations
    • Conclusion

Act of bodily injury is crime against the right to bodily integrity and human dignity.  Thus, inflicting any type of bodily injury is a guilty act across the globe. Nonetheless, there is no common standard and criteria to define what constitutes bodily injury crime and to categorize   bodily injury crimes into grave willful injury crime and common willful injury crime, particularly in Ethiopia.

Unlike else jurisdictions, Ethiopian criminal code of 2004 define bodily injury crime as it embraces only actual physical injury but not psychological injury.  Furthermore, because Ethiopian criminal law fails to define injury that constitutes grave willful injury crime or fails to give sensible illustration of grave willful injury crime, there is practical dissonance on injury that constitutes grave willful injury crime.

Due to this shortcoming, permanency rule is constructed, particularly in ORS, to designate grave willful injury crime. This rule was constructed by Oromia Justice Sector Professionals Training and Legal Research Institute to be implemented by ORS legal professionals. The legal practice in ORS is the replica of this institute and this rule is serving as the only standard to designate grave willful injury crime from other type of bodily injury crimes in the region.

Nonetheless, appraising this rule from the context of Ethiopian criminal code of 2004 and federal cassation division’s jurisprudence, it is erroneously constructed rule. Thus, this rule should be revisited.

  • Recommendations

To rectify the aforementioned discrepancy between law and practices of grave willful injury crime in ORS, some measures must be taken by proper organs. These measures and organs, among other, include,

  • Oromia Justice Sector Professionals Training and Legal Research Institute should revisit the conclusion reached in its training module regarding grave willful injury crime.
  • Because it has binding effects in ORS, Oromia regional state Supreme Court Cassation Division should entertain the definition of bodily injury crime in-depth, if it gets a chance to do so. In so doing, the division must capitalize on the definition and scope injury that constitute grave willful injury crime, and set standard to categorize bodily injury crimes into grave willful injury crime and common willful injury crime.
  • Noticing the gulf between law and practice, Federal Supreme Court cassation division, if it gets chance in the future to entertain issue of grave willful injury crime, must sufficiently interpret the scope of grave willful injury crime and develop rule to be employed to differentiate grave willful injury crime from other type of bodily injury crimes
  • In the future, if Ethiopian criminal code of 2004 is amended, article 555 of the code must not be verbatim copied like Ethiopian criminal code of 2004 was copied from Ethiopian penal code of 1957. Rather like other jurisdictions do must use unequivocal words and gives rational illustrations to avoid arbitrary and discriminatory application of grave willful injury crime.
Last modified on Thursday, 19 November 2020 20:02
Fiseha Negash

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