The Compatibility of Adjective Law with the Jurisprudence of Rights: A Constitutionality Test of the New Criminal Procedure and Evidence Code of Ethiopia

The Compatibility of Adjective Law with the Jurisprudence of Rights: A Constitutionality Test of the New Criminal Procedure and Evidence Code of Ethiopia

By Kedir Bullo *
LLB, LLM (Law and Development), LLM (Commercial Law and Investment).
Managing Partner, Faana Advisory and Legal Consultancy Services LLP, Law Firm.
 

Abstract
Viewed through the multidimensional lenses of human rights jurisprudence, constitutional law, and International Human Rights Law (IHRL), Article 3(4) of Ethiopia’s newly promulgated Criminal Procedure and Evidence Code (Proclamation No. 1410/2026) poses significant jurisprudential challenges. While the new Code seemingly introduces progressive bail reforms—notably under Article 132(1)—Article 3(4) operates as a massive statutory "clawback" clause. By suspending the application of these newly codified bail rights for a period of five years, with the possibility of a ten-year extension under Sub-article 5, the state effectively institutionalizes prolonged pre-trial detention. This article argues that legislating the delayed enjoyment of a fundamental human right renders the adjective law incompatible with the substantive jurisprudence of rights and the constitutional guarantees of the Federal Democratic Republic of Ethiopia (FDRE).

Keywords: Ethiopian Constitutional Law, Jurisprudence of Rights, Criminal Procedure and Evidence Code, Bail Rights, Pre-trial Detention, Lex Mitior, Clawback Clauses.

1. Introduction: Adjective Law versus Substantive Rights
The primary function of adjective (procedural) law is to provide the legal machinery through which substantive rights are realized and enforced. Procedural codes must not act as barriers to constitutional liberties. However, Ethiopia’s new Criminal Procedure and Evidence Code (CPEC) introduces a transitional legal framework that directly conflicts with this foundational principle. This article provides a critical legal analysis of the transitional provisions found in Article 3 of the CPEC, assessing their compatibility with the Ethiopian Constitution, international human rights obligations, and the broader jurisprudence of rights.
2. Deconstruction of the Legal Text: Article 3(4), (5), and (6)
To fully comprehend the legal implications of Article 3(4), it must be analyzed in conjunction with its surrounding statutory clauses:
• Article 3(4): Dictates that despite the overarching transitional rules, the progressive bail provisions introduced in the new law (presumably Article 132(1)) shall not be applicable until five years after the Proclamation's adoption.
• Article 3(5): Grants the House of Peoples' Representatives (HPR) the legislative prerogative to extend this suspension for an additional five years, potentially totaling a decade of suspended rights.
• Article 3(6): Explicitly denies bail for terrorism and other designated non-bailable offenses for the entirety of this 5-to-10-year transitional period.
The Contextual Paradox:
Article 3(2) of the Code formally establishes the principle of lex mitior—the retroactive application of a favorable law or lighter penalty to a suspect. Yet, Article 3(4) immediately contradicts this legal doctrine by denying suspects access to the most critical favorable reform within the procedural framework: the right to bail. This creates an internal statutory paradox where the law simultaneously grants and revokes favorable treatment.
3. Implications for the Jurisprudence of Rights
The jurisprudence of rights asserts that fundamental human rights are inherent and inviolable, not privileges dispensed by the state based on administrative convenience.
• Violation of the Presumption of Innocence: The philosophical and legal foundation of bail is the presumption of innocence. Pre-trial detention must remain an exception, not the rule. By imposing a 5-to-10-year moratorium on a progressive bail regime, the state functionally inverts the burden of proof. It treats suspects as inherently guilty until proven innocent, effectively utilizing pre-trial detention as a form of premature punitive action.
• Rights Contingent on State Capacity: The underlying implication of Article 3(4) is that the Ethiopian state currently lacks the institutional capacity (e.g., electronic tagging, modern tracking mechanisms, or judicial bandwidth) to implement the new bail system. Jurisprudentially, however, fundamental rights—particularly the right to liberty—cannot be indefinitely suspended merely due to the state’s administrative unpreparedness.
• Legislative Hypocrisy and "Rule by Law": A procedural code is designed to facilitate justice. Utilizing a "transitional provision" to quietly suspend a core human right for up to a decade constitutes a subversion of the rule of law. It reflects a paradigm of "rule by law"—deploying legislative drafting mechanisms to bypass, rather than uphold, constitutional guarantees.

4. Compatibility with International Human Rights Law (IHRL) and Constitutional Law
Ethiopia is a state party to major international human rights treaties. Under Article 9(4) of the FDRE Constitution, ratified international agreements form an integral part of the law of the land.
• The International Covenant on Civil and Political Rights (ICCPR): Article 9(3) of the ICCPR explicitly mandates: "It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial." Article 3(4) of the CPEC violates this by establishing detention as the default for an extended period. The UN Human Rights Committee has consistently ruled that mandatory, blanket pre-trial detention without individualized judicial review violates the ICCPR.
• The African Charter on Human and Peoples' Rights (ACHPR): Article 6 of the ACHPR guarantees the right to liberty and security of person, protecting against arbitrary arrest and detention. A statutory delay of bail rights is inherently arbitrary because it applies a blanket legislative suspension rather than allowing for case-by-case judicial determination.
• The FDRE Constitution (Article 19(6)): The Ethiopian Constitution explicitly guarantees the right to bail, though it permits the law to dictate exceptional circumstances where it may be denied. However, Article 3(4) utilizes subordinate legislation (a procedural code) to systematically suspend a substantive constitutional right for up to a decade. From a strict constitutional law perspective, a transitional provision in an adjective law cannot legally freeze the operation of a constitutional mandate.
5. Socio-Political and Practical Implications
Viewed through the lens of legal practice and the real-world dynamics of the Ethiopian justice system, Article 3(4) emerges as a highly dangerous statutory tool that threatens to exacerbate century-old systemic issues.
• Weaponization Against Dissent: Sub-article 3(4), read conjunctively with Sub-article 3(6) (which categorically denies bail for terrorism during the transitional period), furnishes the executive branch with a potent coercive weapon. Historically, anti-terrorism frameworks in Ethiopia have been utilized to target journalists, political opposition, and civil rights activists. This transitional provision ensures that individuals charged with such offenses can be incarcerated without bail for years, effectively neutralizing them even if they are ultimately acquitted.
• Aggravation of Prison Overcrowding: Ethiopian correctional facilities (such as Kaliti and Kilinto) are notoriously overcrowded, precipitating severe health and human rights crises. By delaying bail reform for a minimum of five years, the legislature is practically condemning the prison system to systemic, unmanageable overcrowding. Under international legal standards, this inevitably amounts to cruel, inhuman, and degrading treatment.
• Erosion of Public Trust: Enacting a "reformed" Criminal Procedure Code lauded for its human rights compliance, while simultaneously obscuring a decade-long suspension of its most vital liberty-protecting provision within transitional clauses, breeds deep domestic and international cynicism regarding the state's commitment to the rule of law.
6. Conclusion and Recommendations
Article 3(4) of Proclamation No. 1410/2026 acts as a legislative Trojan Horse. It projects a facade of legal modernization and reform while meticulously preserving the state's coercive power of arbitrary pre-trial detention for the foreseeable future. Adjective laws must align with the jurisprudence of rights; they cannot serve as instruments to defer justice.
To rectify this constitutional misalignment, the following actionable recommendations are proposed:
• Constitutional Challenge: This provision must be immediately subjected to a constitutional challenge via the Council of Constitutional Inquiry (CCI) and the House of Federation (HoF). It must be argued that Article 3(4) of the CPEC unconstitutionally suspends Article 19(6) of the FDRE Constitution.
• Legislative Lobbying and Amendment: Civil society organizations, the Ethiopian Human Rights Commission (EHRC), and the Ethiopian Federal Advocates Association must aggressively lobby the House of Peoples' Representatives to strike down or significantly amend Articles 3(4), (5), and (6).
• Application of Severability: If the state genuinely lacks the institutional capacity to execute specific modalities of the new bail regime (e.g., electronic monitoring), the law should specifically restrict only those methods. A blanket five-year suspension on the entire revised bail regime under Article 132(1) is a disproportionate and legally unsound remedy.
International Reporting and Advocacy: This specific transitional clause should be thoroughly documented in shadow reports submitted to the UN Human Rights Council and the African Commission on Human and Peoples' Rights as evidence of systemic regression in Ethiopia's criminal justice reform trajectory