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Table of Content page

Chapter One

Participation in a Crime
1.1 Participation in General
1.2 Principal Participation
1.2.1 Material Criminal
1.2.2 Moral Criminal
1.2.3 Co-criminals in ordinary crimes
1.2.4 Co-criminal in special crimes
1.2.5 Co-criminals through conspiracy
1.3 Accessory Participation
1.3.1 Incitement
1.3.2 Liability to punishment in the case of incitement
1.3.3 Accomplice
Chapter Two
Affirmative Defense
2.1 General Consideration on affirmative defenses
2.1.1 Types of affirmative defenses
2.2 Lawful acts
2.2.1 Acts authorized or required by the law
2.2.2 Acts done in exercising professional duty
2.3 Justifiable acts
2.3.1 Legitimate defense
2.3.1.1 Elements of legitimate defense
2.3.1.1 Excess in legitimate defense
2.3.2 Defense of necessity
2.3.2.1 Requirements of defense of necessity
2.3.2.2 Excess of necessity
2.3.3 Military necessity
2.3.4 Defense of consent of the victim
2.4 Excusable acts

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2.4.1 Absolute coercion
2.4.2 Resistible coercion
2.4.3 Defense of superior order
2.4.4 Mistake of fact
2.4.5 Mistake of law or ignorance of law
Chapter Three
3.1 Punishment in general
3.1.1 Definition of punishment
3.1.2 Sentencing structure
3.1.3 Purpose of punishment
3.1.4 Purpose of punishment under FDRE Criminal Code
3.1.5 Principles of punishment
3.1.6 Suspension of penalties
3.2 Types of punishment
3.2.1 Primary penalties
3.2.1.1 Penalties affecting the property of the criminal
3.2.1.2 Penalties affecting liberties of the criminal
3.2.1.3 Penalties affecting the life of the criminal
3.2.3 Secondary penalties
3.2.4 Measures
3.2.5 Penalties applicable to young criminals
3.3 Extenuating and aggravating circumstances
3.3.1 Extenuating circumstances
3.3.1.1 Definition
3.3.1.2 Purpose of extenuating circumstances
3.3.1.3 Determination of extenuating circumstances
3.3.1.4 Classification of extenuating circumstances
3.3.1.4.1 General extenuating circumstances
3.3.1.4.2 Assessment of penalties in cases of general extenuating
circumstances
3.3.1.4.3 Prohibition of double reduction on the same ground

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3.3.1.4.4 Special extenuating circumstances
3.3.1.4.5 Assessment of penalties in cases of special extenuating
circumstances
3.3.2 Aggravating circumstances
3.3.2.1 Definition of aggravating circumstances
3.3.2.2 Purpose of aggravation
3.3.2.3 Classification of aggravating circumstances
3.3.2.4 General aggravating circumstances
3.3.2.5 Assessment of penalties in cases of general aggravating
circumstances
3.3.2.6 Special aggravating circumstances
3.3.2.7 Assessment of punishment in cases of special aggravating
circumstances
3.3.3 Other general extenuating and aggravating circumstances
3.3.4 Cumulation of aggravating and extenuating circumstances

PARTICIPATION IN A CRIME

Introductory Remarks:

The commission of a crime may involve a single person or two or more

persons. Accordingly, a given criminal design may be plotted and carried
out by one person single handedly or by several parsons acting in
concert in the same or different capacities a long the crime path. In
relation to the commission of a crime which involves several persons, the
issue of participation is very decisive in order to determine criminal
liability and assess punishment. As a matter of principle, a person who
participates in the commission of a crime will account for a criminal

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liability depending on his degree of participation. Thus, under this
chapter most importantly, we will look into pertinent provisions of the
criminal which deal with cases that involve the participation of two or
more persons in the commission of a crime. Not least, we will also
explain, illustrate, analyze, and reason out different notions, principles
and issues in relation to participation in a crime.

Objectives:

Having successfully completed your study of this Chapter, you will be in

a position to:
Explain the notion of participation
Identify different degrees of participation
Explain, and illustrate principal participation and secondary
participation
Enumerate different forms of principal participation
Illustrate principal and secondary participation
Analyze the effects of different degrees of participation in
determining criminal liability and assessment of punishment

1.1 Participation in General

As a matter of fact, a crime may be committed by a single person acting

alone or by several persons participating in the same or different
capacities. Accordingly, a person/s who participate/s in the commission
of a crime will be criminally accountable depending on the degree of his
participation. Thus, in order to determine the criminal liability of those
who have taken part in the commission, it is absolutely necessary to
identify their level of participation.

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Basically, there are two forms of participation in the commission of a
crime. These are principal participation and secondary participation.
Accordingly, persons who participate in the commission a crime in a
principal capacity are regarded as principal criminals. Similarly, those
who participate in the accessory capacities are considered as accessory
criminals. Let‟s see each degree of participation in the following manner.

1.2 Principal Participations

What do you think by principal participation?

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Concerning participation in the commission of a crime in the principal

capacities, Article 32(1) of the FDRE Criminal Code sets the basic rules
by which a person shall be regarded as a principal criminal.

Article 32:- Principal Criminal

(1) Any person shall be regarded as having committed a crime
as a principal criminal and punished as such if:
a. He actually commits the crime either directly or
indirectly, in particular by means of an animal or a
natural force; or
b. He without performing the criminal act itself fully
associates himself with the commission of the crime
and the intended result; or
c. He employs an infant or a person who is mentally
deficient or unaware of the circumstances, for the
commission of a crime or compels another person to
commit a crime

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A cursory reading of this provision reveals that principal participation

may take generally two forms. One form of principal participation occurs
when a person directly or indirectly performs what is prohibited or omits
what is prescribed by the criminal law. Usually such a person is referred
as a material criminal. The other form of principal participation refers to
cases where a person fully associates himself with the commission of the
crime and intended result though he does not directly or indirectly
perform or omit any material act which constitutes the crime. Such a
person is commonly referred as moral criminal.

Dear student, do you get any clue of what material and moral criminal
are all about? If your answer is positive, please try to illustrate them with
relevant examples.
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1.2.1 Material Criminal

As it has been pointed out earlier on, material criminal is the one who
actually commits the crime directly or indirectly as per Article 32(1) (a) of
the FDRE Criminal Code. Thus, it is not necessary for a person to
directly, personally or physically to commit an act which is an ingredient
element of a crime to be regarded as a material criminal for he can
commit a crime indirectly. Accordingly, we can classify material criminals
into direct material criminals and indirect material criminals.

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Direct material criminal refers to a person who personally or physically
performs or omits an act which constitutes a crime. For instance, if Mr.
X stabs Mr. Y with knife and causes the death of the latter, he will be
regarded as direct material criminal.

On the other hand, indirect material criminal refers to a person who

commits or omits an act which is an ingredient element of a crime in an
indirect manner. The last limb Article 32(1) (a) and Article 32(1) (C)
provide for means by which a person may commit a crime indirectly.

As per Article 32(1) (a), a person may be regarded as indirect material

criminal where he employs a nature force to commit a crime. For
instance, a person can kill another person by setting a fire the latter‟s
house while he is inside instead of stabbing him with a knife. Similarly, a
person may train and order his dog to bite another person with intent to
cause a bodily injury. In both cases, the person is to be regarded as
indirect materials criminal.

Here, it should be noted that the manners by which a person may

commit a crime is not limited to those means mentioned under the last
limb of Article 32(1)(a) of the FDRE Criminal Code. This because, as the
term “in particular” indicates the listing is not exhaustive rather it is
illustrative.

Besides, Article 32(1)(c) of the FDRE Criminal Code provides for other
means by which a material criminal can commit a crime in an indirect
manner. Accordingly, a person may employ an infant, a mentally
deficient person, or a person who is unaware of the factual
circumstances for the commission the crime or may force another person
to commit a crime.

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Thus, a person is to be regarded as an indirect material criminal when he
employs a person below the age of nine to commit a crime. If X gives Y,
five years old, a loaded pistol and instructs him to pull the trigger at K,
and then Y acts accordingly X will be regarded as indirect material
criminal.

Similarly, a person shall be considered as an indirect material criminal

when he uses mentally deficient person to commit a certain crime. For
instance, if A employs X, who is an irresponsible person owing to his
mental decease, to kill Y, A will be regarded as indirect material criminal.

Furthermore, a material criminal may commit a crime in an indirect

manner by using another person who is unaware of the true state of
affair for the commission of the crime. For example, if A tells Y to give a
glass of milk which has, to A‟s knowledge but not to Y‟s, a poison in it, to
X, A will be considered to be an indirect material criminal if Y does so as
he is told by A.

The other case in which a material criminal may commit a crime

indirectly is when he coerces another person to perform an act which
constitutes an ingredient element of a crime. For instance, if Y compels X
at gun point to Kill Z, Y will be regarded as an indirect material criminal.

1.2.2 Moral Criminal

What do you understand by moral criminal?

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A moral criminal is, as it is implicitly described under Article 32(1)(b) of

the FDRE Criminal Code, a person who fully associates himself with the
commission of the crime and intended result without performing any
material act either directly or indirectly. A moral criminal is, for all legal
purpose and intent, regarded as a principal criminal for the sole fact he
fully associates himself with the commission the crime and the intended
result even if he does not take part in the performance of the act
constituting the crime. Such a person is usually described, in common
parlance, as “working brain” or “master mind”. For example, if Ato
Balacha organizes a group of persons to commit a crime of homicide,
instructs them, the time, place manner and against whom to commit the
crime but he stays in his room watching movie while the crime is being
committed, he shall be deemed to be a moral criminal.

At this juncture it should be noted that under FDRE Criminal Code the
scope of principal participation is broad enough to include moral
criminals in contrast to some other jurisdictions which treat moral
criminals are treated as accessories.

Dear student, what do you think the reason could be for the FDRE
Criminal Code to widen the scope principal participation so as to include
moral criminals?

Pretty obvious, the reason for regarding a moral criminal as a principal

criminal is the fact that such a person would not be criminally
accountable to the degree he deserves unless he is regarded as a
principal criminal. As Philip Grave has excellently pointed out:

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A moral criminal is not a material criminal for he does not

take part in the execution of the crime. Nor is he an inciter
for the persons who material commit the crime have
already decided to commit the crime and do not need any
inducement. Arguable, he could be regarded as accomplice
for the intellectual assistance he extends to the material
criminals before the commission of the crime. Nevertheless,
treating such a person at equal footing with an accomplice
would not be satisfactory from psychological point of view.
Besides, courts are more often than not reluctant to punish
as severely as they punish principal criminals.

As it has been pointed hereinabove, a moral criminal is regarded as a

principal criminal for his full association with the commission of the
crime and the intended result. However, the law doesn‟t define or
describe what “full association” means. Thus, how should we determine
whether a certain person has full association with the commission of a
given crime and the resultant harm?

Arguable, it is tenable to think that the mere fact that a person hopes for
the material criminal‟s success may not render him to have full
association with the commission of the crime since his participation is
spiritual one. Hence, it would be unjustified to punish such a person.
Therefore, full association implies more than making a mere wish for the
success of the material criminal. So, in order to consider a person to
have full association with the commission of the crime and the desired

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result he must have fully sided with the material criminal and accepted
the commission of the crime and the desired result as his own. To put it
differently, he should fully “associate himself with the decision from
which the crime emanates in such conditions and to such an extent that
he obviously feels the capacity” of a material criminal. That is to say he
should have a conditional intent to act as a material criminal if a need
be.

Besides, there shall be a causal relationship between the participation of

a moral criminal and the commission of the crime. However, this does
not mean that he should take part in any material way in the
commission of the crime.

Nonetheless, some times it may happen very difficult to determine

whether or not a person has full association with the commission of the
crime and the desired result and shall be regarded as a moral criminal.
Even more, in some cases it may be very hard to distinguish moral
criminal from accomplice who assists a material criminal before the
commission of the crime, which is commonly referred as accessory before
the fact, or even from inciter. Therefore, due care shall be exercised and
regard shall be had to the willingness of a person to perform acts
constituting the ingredient element of the crime where a need arises.

1.2.3 Co-Criminals in Ordinary Crimes

Who do you understand by the term co-criminals?

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Two or more persons may participate in the commission of a crime in a
principal capacity. Such persons are often referred as co-criminals (co-
offenders) regarding co-criminals, Article 32(3) of the FDRE Criminal
Code states the following.

Where two or more persons are involved as

principal criminals in the commission of a
crime, each shall be liable to the punishment
attaching thereto.

According to the wordings of the above cited provision, all persons who
participate in the commission of a crime in a principal capacity are liable
to punishment for they are co-criminals.

The expression that “persons involved as principal criminals” indicates

that co-participation is not restricted only to material criminals. It also
includes moral criminals. Thus, two or more persons acting both as
moral criminals or material criminals or one acting as a moral criminal
and the other as a material criminal may be regarded as co-criminals.
For example, if Ato Zelalew organizes a group of persons to commit a
crime of robbery but he stays in his room while the crime is being
committed, he will be considered as co-criminal with those who actual
execute the crime on the ground.

However, sometimes problem may arise in determining the exact capacity

in which a person participates in the commission of a crime. For example
if Ato Chalie and Ato Shumie together organize the commission of
robbery but the former alone performs the acts constituting robbery
while the latter simply standby, one may question whether the latter
should be regarded as a principal criminal at all for it is not clear
whether he fully associates himself with the commission of the crime.

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Besides, assuming that he participates in the principal capacity, one may
wonder whether he acts as a material criminal for he did some acts
directed towards the commission of the crime or as a moral criminal for
he neither uses violence nor abstracts the victim‟s property.

In determining such kind of cases, it is advisable to take into account

not only the objective circumstances pertaining to the commission of the
crime (such as, was Ato Shumie on the watch out or was there any
agreement that Ato Shumie would interfere if something went wrong or
was he physicality unable to participate as a result of a bodily injury that
sustained while they were looking of the victim) but also to subjective
circumstance, i.e. how the criminal holds himself out in relation to the
crime; whether he accepted it as his own action.

Nevertheless, the fact that moral criminal is mistaken for a material

criminal or vice versa doesn‟t have any practical difference since in either
of cases the actor will be subject to same criminal liability and
punishment attached thereto.

Do you think that there are crimes which necessarily imply

participation?

There are certain kinds of crimes the participation of more than one
person is necessarily required for their commission. These sorts of crimes
are sometimes referred as crimes of necessary participation. These
include crimes of duels and adultery.

Art.578:- Duels
(1) Whoever takes part duels, that is to say in an armed

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combat involving deadly weapons regulated in advance by
tradition or custom, such as the to endanger the life, person or
health of the participants,
is punishable, whether or not bodily injury has been sustained,
with simple imprisonment or fine.

Art. 652 Adultery

(1) A spouse bound by a union recognized under civil

law who commits adultery is punishable, upon compliant by
the injured spouse, with simple imprisonment or fine.

The same punishment shall apply to the partner who commits

adultery with a person who he knows to have a valid
marriage.

These two crimes can not be materially committed by a single individual.

The participation of more than one person is necessarily required for
these kinds of crimes to have been said materially committed. The same
holds good when it comes to crimes of usury and blackmail.

Concerning liability to punishment of co-criminals, as it has been clearly

pointed out under Article 32(3) first alinea, the principle is that each co-
criminal shall be subject to the punishment prescribed for the crime in
the commission of which he participates. To put it differently, the rule is
that all persons who participate in the commission of a crime in a
principal capacity, be it as a moral criminal or material criminal, shall be
equally liable to punishment. Needless to mention, in this regard, no
distinction is to be made between moral criminals and materials
criminals. Accordingly, each of them will be answerable for what has
been done by the other.

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In determining the liability of co-criminals one should not lose sight of

considering in what crime each co-criminal intended to participate. This
is because of the fact that sometimes it may happen that the crime
actually committed might go far beyond what was intended by one of the
co-criminals. For example, if Ato Chalie organizes a gang for purpose of
committing robbery and instructs the members of the gang to frighten
the victim, he is a co-criminal in the crime of robbery, but, if one of the
member of the gang loses him temper and kills the victim, Ato Chalie
may not be considered as having intentionally and principally
participated in the crime of homicide since it is definitely clear that he
did not fully associate himself with the commission of the crime of
homicide and the death of the victim. Therefore, according to Article
32(2) of the FDRE Criminal Code, he will not be liable for the crime of
homicide though he will be criminally held liable for the robbery.

Though the rule being that all persons who participates in the
commission of a crime in a principal capacity shall be equally liable to
punishment, in some cases a co-criminal may not be held criminally
liable owing to his age or mental state.

Furthermore, the principle that all co-criminals shall be subject to the

same punishment doesn‟t mean that they will be sentenced to a
mathematically identical penalty. In accordance with, Article 32(3)
second alinea of the FDRE Criminal Code the exact penalty that will be
imposed on each co-criminal may vary depending on their personal
circumstances and the degree of individual.

One last point that should not be left unmentioned in relation to co-
criminals is the case of collective crimes. As it is enshrined in Article 35
of the FDRE Criminal Code, when two or more persons act in concert to

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commit a certain crime, a person who is proved to not have participated
in the commission of a crime either in a principal or accessory capacities
shall not be punished. Nevertheless, where the crime committed has to
do with conspiracy or brawly, a person whose attendance at the
commission of is proved shall be criminally liable unless otherwise he
proves that he has not participated in the commission of the crime in
either of the capacities.

1.2.4 Co-Criminals in Special Crimes

In the preceding sub-section we have seen co-participation in cases

ordinary crimes which can be committed by any persons. In this section
we look into cases of co-participation in the commission of special crimes
which can be committed only by specified persons.

What do you understand by co-participation in special crimes?

Co-participation in a principal capacity in the commission crimes which

can be committed only by specified individual is dealt with under Article
33 of the FDRE Criminal Code.

Article 33

An accused person may be prosecuted as a principal

criminal when, by his acts, he fully participated with
knowledge and intent in the commission of a crime which

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can be committed only by certain specified persons, in
particular by emmer of the Defense Forces in the case of
military crimes, or by a public servant in respect of crimes
against public office, or only by male person in the case of
rape.

In the context of the above quoted provision, a special crime refers to a

crime which can not be committed by any person in the capacity of direct
material criminal without possessing a certain specified qualification
which is described as one of the ingredient elements of the crime. Thus,
a person must have a particular qualification or status which is
considered as an ingredient element such a crime as described by the
law in order to commit it in the capacity of direct material criminal.

Dear student, please read Articles 407, 288, 453, 620, 654 and 652 of
the FDRE Criminal Code very carefully and try to sort out whether the
possession of a particular qualification or status is incorporated as an
ingredient element of each crime.

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As you might have noticed, from your reading of the above cited
provisions, some particular qualifications are provided as ingredient
elements of those crimes described therein.

Being a public servant is an ingredient element of the crime of

corruption, thus one must be a public servant in order to commit
the crime of corruption in a direct material criminal capacity.

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Being a member of the Defense Force is requisite elements of the
crime of desertion; hence one must be a member of the Defense
Force so that he may commit the crime of desertion as a direct
material criminal.
Being a witness is a constituent element of the crime of perjury;
thus one should be a witness in order to be able to commit the
crime of perjury in a direct material criminal capacity.
One should be a male person to commit the crime of rape against a
woman in a direct material criminal capacity; since being a male
person is an ingredient element of the crime rape against a woman.
One may not commit the crime of incest in the capacity of direct
material criminal unless he is related by blood to the other party;
since relation by blood with the other party is an ingredient
element of the crime of incest.
One can not commit the crime of adultery as a direct material
criminal unless he/she is married; for being married is a
constituent element of the crime of adultery.

Noting that a person can not commit a special crime in the capacity of
direct material criminal unless he possesses a particular qualification as
described by the law defining it one may normally wonder whether it is
possible to commit such a crime in a principal capacity without having
the required qualifications. Article 33 of the FDRE Criminal Code answer
this question in the positive and provides that a person may participate
in a principal capacity in the commission of these special crimes.

Admittedly, this does not mean that he can participate as a direct

material criminal. So what does it mean when the above cited provision
says “an accused may be prosecuted as a principal criminal …”? Does it
mean he can participate in the capacity of moral criminal or indirect
material criminal as described under Article 32(1)(b) & (c)? Indeed, what

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it is meant to say is that though a person lacks the required qualification
to commit a crime in the capacity of direct material criminal, he may
participate in a principal capacity in its commission as an indirect
material criminal or moral criminal.

Thus, it is possible for civilian to participate in the commission of

desertion as a moral or indirect material criminal. Similarly, an
unmarried person can participate in the commission of adultery as a
moral criminal. Fore instance, Ato Chalie, who is unmarried, can fully
associate himself with the adultery committed by Ato Gelaw, who is
married to W/ro Muchit, though Ato Chalie himself could not participate
materially.

In all other cases too including incest, rape, corruption and perjury, a
person can participate in a principal capacity in their commission as
moral or indirect material criminal.

Regarding the relationship between persons who possess the required

qualifications to commit special crimes and who do materially commit
them and persons who participate therein as a moral and indirect
material criminal, it can be argued that they can be regarded as co-
criminals depending on the liability of the former. Basically, the criminal
liability of these two groups of persons should be decided in accordance
with Article 41 of FDRE Criminal Code based on the principle of non-
transmutability of personal circumstance. Accordingly, it may happen
that a person who possesses the required qualification to commit directly
and materially the crime may not, owing to some personal circumstance,
be criminally held liable despite the fact that the person who doesn‟t
have the required qualification and who participates as a moral or
indirect criminal is normally held liable.

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For instance, if Ato Belew deceives a witness so as to make him give a
testimony which unknown to the latter, is false. Ato Belew will be
punishable for having committed perjury in the capacity of indirect
material criminal irrespective of the fact that the witness will not be
liable to punishment. On the other had, assuming that the witness is
aware of the fact that the evidence is false, both will be liable to
punishment for committing perjury in a principal capacity and will be
regarded as co-criminals.

1.2.5 Co-criminals through Conspiracy

How do you describe criminal conspiracy?

Generally speaking criminal conspiracy refers to an agreement between

two or more persons to commit a crime. The agreement may take
different forms; however, in any case the parties must have a meeting of
mind to commit a crime.

Concerning criminal conspiracy, Article 38 of the FDRE Criminal Code

provides the following.

Article 38:- Criminal Conspiracy

(1) Where two or more persons enter into an agreement to

commit a crime the provisions regarding participation and
aggravation of punishment due to the above-mentioned
circumstance are applicable (Art. 84(1)(d).

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(2) The foregoing provision shall, however, not affect the
provisions contained in the Special Part of this Code relating to
conspiracies against the essential interests of the State and its
defense, the forming of unlawful associations and the
participation therein, as well as the organization of gangs or
associations of wrongdoers (Art. 257, 274, 300 and 478)

The reading of Article 37(1) sets two requirements that must be fulfilled
to constitute criminal conspiracy. Firstly, two or more persons must have
agreed to commit a crime. Secondly, such persons must have committed
the crime in a principal capacity.

The first requirement envisages that the criminals must have the
intention and the agreement to commit the crime. The existence of these
two elements should be proven in order to say there is conspiracy. The
existence of agreement to commit a crime is to be ascertained taking into
account all the attending circumstances of a particular case.

For example, Ato Kebede and Ato Chanie were seen running from the
crime scene wherein the latter materially committed the crime. The fact
that these two persons ran away together from the crime scene may be
taken into consideration to for purpose of ascertaining the existence of
an agreement to commit the crime.

The second requirement implies that in furtherance of their agreement to

commit a crime, they must have committed the crime in a principal
capacity. This indicates that the criminals must commit the crime either
directly or indirectly in a manner described under Article 32(1) (a)-(c). For
instance, if Ato Jemal and Ato Shumie agreed to kill Ato Chanie and to
that end they set a fire on the latter‟s house, they shall be deemed to be

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conspirators since there is an agreement between them and they
committed the crime directly by employing a natural force.

As it can be understood from the reading of sub-article 1 of Article 38,

criminal conspiracy is not an independent crime. According to this
provision, criminal conspiracy may help in identifying parties to the
commission of a crime and their degree of participation. Besides, it may
also serve as an aggravating circumstance where an agreement to
commit a crime is actually carried out and the parties are convicted for
the crime. Normally conspiracy aggravates the punishment to be imposed
on a criminal pursuant to Article 84(1)(d).

However, as certain cases of preparation in the context of Article 26 are

considered as independent crimes, so certain cases of conspiracy within
the meaning of Article 38(1) are declared to be punishable in their own
right although the common design in not executed. Pursuant to Article
38(2), a mere conspiracy to commit a certain crime may be considered as
an independent crime where the Special Part of the Criminal Code
expressly provides so to that effect. For example, conspiracy to commit
crimes against the essential interests of the State and its defense is an
independent crime. To be specific, mere conspiracies to commit a crime
in violation of Article 238-242, 246-252, 269-273, and 299 are
independent crimes as per Articles 257, 274, 300 of the FDRE Criminal
Code respectively.

Furthermore, a mere conspiracy to commit a serious crime, which is

punishable with rigorous imprisonment for not less than five years,
against public security or health, a person or property constitutes an
independent crime pursuant to Article 478 of the FDRE Criminal Code.
For instance, if Ato Chanie and Ato Dubie agree to kill Ato Dargie but

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don‟t have the gun for doing so, they may be found guilty of conspiracy if
they buy a gun.

1.3 Accessory participation

What do you think by the term accessory participation?

Participation in the commission of a crime may take different forms other

than principal participation. A person may take part in the commission
of a crime in a remote, indirect or limited manner though he does not
commit the crime materially or through an agent, or does not fully
associate himself with the crime and the desired result. This kind of
participation is often referred as secondary or accessory participation.

Accessory participation may take place either before or during the

commission of the crime. Accordingly, in some jurisdictions, persons who
participate in the commission of the crime in accessory capacity are
classified into accessory before the fact and accessory during the fact.
Accessory before the fact includes inciters, who induce the principal
criminal to commit that specific crime and accomplices, who assist him
in many way to commit the crime before he actually execute it. On the
other hand, accessory during the fact refers to an accomplice, who
extends any form of assistance to the principal criminal while he is
carrying out his criminal design.

In our law, the issue accessory or secondary participation is dealt with

by considering incitement and accomplice separately instead of treating

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them under general notion of accessory before the fact and during the
fact. Hence, let‟s these two types of accessory participations one by one
as follows

1.3.1 Incitements

What do you understand by incitement?

Generally speaking, the term incitement or instigation refers to

intentionally inducing, by resorting to certain means, another person to
commit a crime. Regarding incitements Article 36 of the FDRE CC
provides the following.

1) Whoever intentionally induces another person whether by

persuasion, promises, money, gifts, and threats or otherwise
to commit a crime shall be regarded as having incited the
commission the crime.
2) The person who incited the commission of a crime shall be
liable to punishment provided the crime was at least attempted.

As it can be noted from the reading of the above provision any person
who intentionally induce another person, by resorting to either of the
means described therein or other similar means, to commit a crime, he
shall be regarded as an inciter or instigator irrespective of the fact that
he incites this person to participate in the commission of the crime in a
principal or accessory capacity.

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The very important point one has to take note of in determining that a
person is inciter is whether he has intentionally induced or persuaded
the other person to commit the crime. From this it follows that it is not
sufficient that a person should give another the idea to commit a crime,
rather it is necessary that he should induce this other person to commit
it. This implies that, “there must be a causal relationship between what
the instigator does and what the incited person decides to do, which
relation exists when the incited offence would in all probability not have
been committed but for the instigator‟s intervention”.

Hence, the salient feature of incitement “lies on the peremptory influence

which the instigator exercises on the incited person. Accordingly, if a
person decides‟ to commit a crime as a result of an inducement made by
another person, it is immaterial whether the idea to commit this crime
was already in his mind. That is to say, a person who induces another
person to commit a crime shall be regarded as an inciter or instigator
even though the incited person had a pre-existing criminal design which
he would, however, not have carried out had he not been induced to do
so by the instigator. For example, if Ato Chanie promises Ato Gudu
20,000 birr for killing Ato Shumie, there is an incitement even though
Ato Gudu have previously played with the idea of killing Ato Shumie, who
is also his enemy, but would not have killed him if Ato Chanie had not
offered the 20,000 birr reward for executing the crime.

From overall reading of Article 36 /1/ of the FDRE Criminal Code we can
draw out the principle that there is no incitement unless one induces the
another person to make a decision to commit a crime. This principle
brings to our attention the following considerations.

i. A person who merely encourages another person to commit or

strengthen him in a decision which he had already taken is not an

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instigator; but may be regarded as accomplice, i.e. the so called
accessory before the fact
ii. A person may not be regarded as an instigator if he gives to
another person, who was determined to commit a crime in any
event, the opportunity to commit that specific crime. Fore instance,
if Ato Mazengia requests Ato Balcha, who is known for performing
abortion, to procure W/t Aster‟s abortion, Ato Mazengia shall not
be regarded to have incited Ato Balcha
iii. Arguably one may not be regarded to have incited another person if
he gives the latter an inducement for committing a crime which he
is already determined to commit it. In relation to this proposition
we can think of two scenarios; on one hand when the inducement
is rejected, on the other when it is accepted. For example, after Ato
Minyichil has already decided to kill Ato Damtie, he is offered
8,000 Birr by Ato Getu for doing so. Assuming that, Ato Minichil
rejects the offer, it is quite clear there is no incitement rather an
attempted incitement which falls under Article 27(2) which
provides that no liability to punishment unless the contrary is
expressly provided by the law. Similarly, if he accepts the offer,
pretty obvious, there is no incitement for the crime would have
been committed even though Ato Getu did not made the offer.
Thus, there is no casual relationship, between Ato Getu‟s offer,
though he has done what expected from him, and Ato Minichil‟s
decision to kill Ato Damtie. Therefore, this case will also fall under
Articles 27(2) cum 29 of the FDRE Criminal Code.

The other issue that should be raised in relation to incitement is the

manner by which the inducement can be made. More often that not, an
incitement implies a person to person relation between incited person
and an inciter. However, it is not necessarily required that to the inciter
should approach in person the one to be incited since he may equally

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induce this person to commit a crime through letter, e-mail, telephone or
human agent. Similarly incitement is ordinarily characterized by an
individual relation, i.e. one person inducing another person to commit a
crime. However, this does not mean that an incitement can not be made
by several persons. Indeed, several persons can incite one and the same
person to commit a certain crime. Hence, Ato Belay and Ato Sisay shall
be deemed to be co-instigators if they together offer Ato Simachew
10,000 Birr for killing Ato Chanie or if, having agreed so to incite him,
the offer is made by either of them alone.

However, problems may arise in determining whether two or more

persons shall be regarded as instigators where they independently of one
another incite the same person. In such cases regard shall be had to the
chain of causation between the instigator‟s act and the incited person
decision to commit a crime. Thus, the answer for the question whether
they are all liable to punishment is to be determined taken into account
all the attending circumstances.

For example, if Ato Shikuri, not knowing that Ato Balcha has already
promised Ato Belew 8,000 for killing Ato Shibiru, made to Ato Belew the
same promise, it must be ascertained whether Ato Belew was already
determined to kill the victim upon Ato Balcha‟s promise or whether
additional promise made by Ato Shikuri was decisive. In the first case,
the casual relation between Ato Shikur‟s offer and Ato Belew is missing;
and he will be considered to have attempted to incite and be treated
under Article 27(2). Whereas, in the second case, both Ato Shikuri and
Ato Balcha will be criminally liable as instigators since their respective
offers are the concurrent causes that induced Ato Belew to decide to kill
Ato Shibiru.

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As it has been stated under Article 36(1), incitement is an intentional
form participation in an accessory capacity. Thus, the instigator must
know that his act is capable of inducing another person to commit a
crime and must so desire to induce him.

However, it may possibly happen that some one may give unwillingly or
inadvertently to another person the idea to commit a crime or even cause
him to decide to execute such idea. For instance, if Ato Gizaw and Yazew
while they are waiting for payment of check in a bank Ato Gizaw
incidently informs Ato Yazew that the security camera is malfunctioning,
this may probably give Ato Yazew the idea of robbing the bank and, on
reconstructing the chain of events leading to the robbery, one may tend
to think that the crime would probably not have been committed had Ato
Gizaw pointed out that the watch system is defective. Nevertheless, such
a remark can not be regarded as an incitement. By the same token, if Ato
Balcha, having determined to kill Ato Sisay but was looking for the best
way of carrying it out, in the meantime he learnt that a lecture would be
given by Dr. Belay concerning poisons which leave barely any trace in the
human body. Assume that he attended the lecture and killed Ato Sisay
using the said poisons. In this case, if we look at the chain of events
leading to the victim‟s death, there is little doubt that the lecture was a
decisive factor. Nevertheless, this doesn‟t mean that Dr. Belay should be
considered to have instigated Ato Balcha.

The other important issue that should not be left unaddressed here is
that the means by which a person can induce another person to commit
a crime. In fact, the nature of he means one resorts to induce another
person is not that much relevant as long as it manages to incite this
person to commit a certain crime as required by the instigator. This
being so, nevertheless, Article 36 of he FDRE Criminal Code has listed
down those possible means person may employ to solicit another person

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to commit a crime. These include persuasion, promises, money, gifts and
threats.

As one can notice from the reading of Article 36 FDRE Criminal Code, the
listing is not exhaustive one rather it is illustrative. Therefore, any other
means which can possibly induce another person, such as flattery or
challenge, may be regarded as a means to incite another.

Thus, the decisive factor is that the instigator should in any way induce
another to decide to commit a crime. There is nothing beyond this
required from the instigator. For instance, he is not required to further
coach the incited person “as to when or how or even against whom the
incited crime should be committed, and he may well incite him generally
for instance to kill „a fascist‟, „an imperialist‟ or „a communist‟.”

1.3.2 Liability to punishment of in cases of incitement

What is the criminal liability of inciters?

Regarding the liability to punishment of instigators Article 36(2) of the

FDRE Criminal Code has the following to say.

The person who incited the commission of a crime shall be

liable to punishment provided the crime was at least all
empted.

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This reading of this provision brings to our attention that a mere fact of
inciting another person to commit a crime is not sufficient to warrant, as
a matter of rule, the punishment of the inciter. It takes more than that to
make an inciter to be liable to punishment.

In order to make an inciter liable to punishment, incited person should

at least attempt the commission of the incited crime. In other words, an
instigator is not normally punishable unless the incited person fully
commits or at least attempts to commit the incited crime. Therefore,
what constitutes the criminal liability of an incitement is not only the
fact of inducing another person to commit the crime but also the fact
that this other person begins the commission of the incited crime. If the
latter element is missing the mere fact of making another person decide
to commit a certain crime may not entail liability to punishment as a
matter of rule.

However, there are exceptions to the principle that an inciter shall be

liable to punishment where at the incited person at least attempted to
commit the incited crime. The first exception relates to cases where a
mere attempt to incite is punishable as per Article 27(2) where there is
an express provision to that effect and an incitement is regarded as an
independent crime.

For instance, a mere attempt to incite or inciting another to commit

crimes against the constitution or the state as described under Article
238-242 and 246-252 is punishable as per Article 255 of FDRE Criminal
Code. The other exception has to do with petty offence instigator is not
punishable despite the fact that the incited person commit the incited
crime as long as it is a petty offence.

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The other point that one may come across in dealing with the liability to
punishment of instigators is the point that the incited crime should be
committed intentionally by the incited person. Thus, the criminal liability
of the instigator is dependent upon the fact that the incited person
commits the incited crime intentionally. Otherwise he will not be
criminally held liable for the incitement.
Fore instance, if Ato Gashaw incites Ato Chanie to kill Ato Zeleke and Ato
Chanie runs over Ato Zeleke while he is driving his car over the speed
limit and kills the latter by negligence, Ato Gashaw is not punishable as
instigator although what he intended to happen has actually happened.

However, the fact that the instigator is not punishable does not mean
that the incited person will go free. Similarly, it does not also mean that
the incited person should be punished in order for the instigator to be
liable for punishment. In cases where the incited person is not
punishable the instigator may or may not be liable to punishment
depending on the reasons why the incited person is not punishable if the
instigator knows of these reasons.

The other issue that should be considered here is that the extent of
liability to punishment of the instigator. In some instances, the incited
person may commit a crime which goes beyond what is intended by the
inciter.

In such cases, to what extent will the instigator liable to punishment?

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The above question can be best answered by looking into Article 58(3) of
the FDRE Criminal Code. In view of giving an emphasis and to make
matters very clear, Article 36(4) provides also that, in such cases the
liability to punishment of the instigator is limited only to what was
intended or could foreseen in the circumstance. For example, if Ato
Belew induces Ato Chanie to commit theft but the latter commits
robbery, the former shall only liable to the punishment prescribed for
theft. And Ato Chanie alone shall be liable for he robbery.

Similarly, in some other cases the incited person may commit a crime
which is entirely different from the one he was incited to commit. For
example, if Ato Gashu incites Ato Chalie to commit a burglary against
Ato Shumie, and Ato Chaile having gone to Ato Shumie‟s house, he
abstracts nothing but rapes Shumies‟s daughter, Ato Goshu is not
punishable for the rape. This is because he does not incite Ato Chalie to
rape Ato Shumie‟s daughter.

However, if the instigator foresaw and accepted the possibility that a

more serious or different crime might be committed, he shall be liable to
punishment for he has an indirect intention to incite the commission of
such a crime. On the other hand, if he did not for see this possibility or
he for saw it but rejected it, he shall not be liable to punishment for what
eventually happened despite his negligence, for there is not incitement
unless the instigator induces another person intentionally.

Finally where it is proven that all the conditions that are discussed
hereinabove are met and assuming that an instigator is liable to
punishment, the issue that needs to be addressed then is what
punishment is to be imposed on him. Resolving this issue, Article 36(2)
provides that, as a matter of rule, the punishment prescribed for the
intended crime shall be imposed on an instigator. However, where there

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are justifying circumstances the punishment that will be imposed on an
inciter shall reduced within the limits specified by the law.

1.3.3 Accomplice

What do understand by accomplice or assistant?

Accomplice is another form of accessory participation in crime. A person

can take part in the commission of a crime as an accomplice by
extending to a principal criminal any kind of assistance either before or
during the commission of a crime. Regarding accomplice, Article 37 of
the FDRE Criminal Code has laid down the following general rules.

(1) An accomplice is a person who intentionally assists a principal

criminal either before or during the carrying out of the criminal
design, whether by information, advice, supply of means or
material aid or assistance of any kind whatsoever in the
commission of a crime.
(2) An accomplice in an intentional crime shall always be liable to
punishment.
(3) The accomplice shall be liable to punishment provided the crime
was at least attempted
(4) The punishment to be imposed shall be the punishment for the
crime in so far as such crime does not go beyond the
accomplice’s intention (Art. 58(3)). The court may, taking into
account the circumstances of the case, reduce the punishment in
respect to an accomplice with in the limits specified by law (Art.
179)

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As one can easily understand, Article 37(1) of the FDRE Criminal Code
tries to define an accomplice to mean a person who intentionally aids the
principal criminal, i.e. either material or moral criminal, in any way
either before or during the commission of the crime. Thus, firstly the
assistance shall be rendered to the principal criminal intentionally. A
person may not be considered to be an accomplice unless he knowingly
and willingly does an act with the view to assist the principal criminal.
From this it follows that; a person may not be regarded as an accomplice
if he aids negligently a principal criminal either before or during the
commission of the crime.

Fore instance, if Ato Chalie trains Ato Bilew on how to kill a tiger without
using a weapon /using one‟s own freehand/ and the latter uses his
training to kill Ato Zelelew, Ato Chalie shall not be deemed be an
accomplice.

As a matter of fact, a person may have his own motive in assisting a

principal criminal before or while a crime is being carried out. It is
irrelevant, however, for purpose of determining whether such a person
shall be regarded as an accomplice or not, what motive he may possibly
have in rendering assistance to the principal criminal.

Secondly, the aid, what ever it form could be, may be given at the earliest
before the commission the crime begin and the latest up until the last
the necessary act for achieving the desired result is taken. Accordingly, a
person may participate in the commission of a crime as an accomplice by
assisting a principal criminal prior to the first act aiming towards
commission of the crime is taken. That is to say, while the principal
criminal is in the state of preparation in his criminal design. In some
jurisdiction such an accomplice is referred as accessory before the fact

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taking into account the fact that he renders the assistance before the
commission of the crime.

For example, if Ato Dula intentionally assists Ato Chanie by giving him
his pistol before the latter kill Ato Mersha, he shall be regarded as an
accomplice /accessory before the fact/. However, he may not be
considered as co-criminal for he does not materially participate in the
commission of the crime and does not associate himself with the
commission of the crime and the desired result. Nor he may be regarded
as an instigator. Since he does not induce Ato Chanie to make a decision
to kill Ato Mersha for the former has already decided to kill the latter.
Perhaps, Ato Chanie would probably kill Ato Mersha even no aid were
given to him by Ato Dula.

However, what has been said above does not rule out the possibility that
one and the same person can participate in the commission of a given
crime as an instigator and as an accomplice. Nevertheless, such a person
may not be regarded to have participated in the commission of two
crimes irrespective of the fact that he has participated in a dual capacity
though this fact may have an impact on the sentence that would be
imposed on him.

As it has been pointed out, assistance to a principal criminal may also be

given at the latest until the desired result is achieved, i.e. while the crime
is being in the course of execution. A person who assists a principal
criminal during the carrying out of the criminal design is regarded as an
accomplice under FDRE Criminal Code. In some other jurisdictions, such
an actor is commonly known as principal on second degree in contrast to
principal in the first degree who materially commits the crime.

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In deciding whether a person shall be considered to have participated as
an accomplice during the commission of a crime regard shall be had to
the definition of the specific crime under consideration and the attending
circumstances under which it is committed.

Do you think that the accomplice shall necessarily physically present in

the crime scene?

Arguably, it is not necessary for the inciter to be physically present at

the crime scene during the commission of the crime to extend assistance
through out the commission of the crime or up until the desired result is
achieved. Nevertheless, it is required that the assistance shall be
rendered before the commission of the crime or during it commission
before the desired result is achieved since an aid given then after or even
after the last necessary act to bring about this result hardly constitutes
complicity. For example, Ato Shambel without prior agreement hides Ato
Gudu after the latter has stabbed Ato Gelemso with knife, irrespective of
the fact of the victim‟s death, he may not be deemed to have acted as an
accomplice during the commission of the crime of homicide.

What activities constitute assistance in the context of Article 37(1) FDRE

Criminal Code?

Article 37(1) has illustratively listed down activities which constitute

assistance. These include providing information advising, supplying

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means or material aid. As the listing of Article 37(1) is illustrative one, it
goes without saying that these are not the only activities that may
constitute assistance. The wording “assistance of any kind whatsoever‟
makes it clear that those expressly mentioned activities are not the only
kinds of assistance.

Accordingly, assistance may take different forms and be of any kind. It

can be only of an intellectual or moral nature which includes
information, advice, encouragement, and promise to harbor the principal
criminal after the commission the crime. It can also be material which
includes supplying false key being on the look-out. It may also be a kind
of positive behavior (commission) such as supplying false key or a
negative behavior, for example leaving open the door of a ware house.

Dear student from what we have discussed so far it has been pointed out
that a person shall regarded as an accomplice in cases where he assists,
whatever may be the form of assistance, a principal criminal either before
or during the commission of a crime. The issue that remains to be
addressed is whether the effectiveness of the assistance rendered is
relevant in determining that a person shall be regarded as an accomplice.

Do you think that the effectiveness of the assistance given should be

relevant in deciding whether or not a person shall be deemed to have
acted as an accomplice?

Indeed this issue is very contentions. In this regard it is recommendable

to look into what has been said Philippe Graven. According to Graven, on

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the one hand a mere intent to assist would not suffice to regard a person
as an accomplice. On the other hand complicity does not imply that the
crime would not be committed if the accomplice did not give his
assistance. Thus, it is sufficient that, in circumstance of the case, his
help should have facilitated the perpetration of the crime.

Therefore, as a matter of principle it suffices to hold that what the

accomplice does should be of some help, even though he does not give all
the help he may have intended to give. For instance, it Ato Muchie is on
the look-out while Ato Chalie commits theft in Ato Goshu‟s house, Ato
Muchie shall be regarded as an accomplice even though the need to alert
Ato Chalie for danger does not arise and Ato Muchie‟s participation has
no bearing in the commission of the crime.

How ever, a problem may arise in some cases in applying this rule.
Admittedly, as a secondary participant, an accomplice should take some
part in the commission of the crime. Nevertheless, it may happen that
what has been done by him is or could be of no assistance at all. For
example Ato Gulie has given Ato Dubie the combination of Ato Alemu‟s
safe or false keys to open the same, but Ato Dubie finds that the
combination has been changed or that the keys doesn‟t fit, so that he
must break the safe forcefully or he finds that the door of the safe has
been left open so that he need use neither the combination nor the keys‟
or Ato Gulie agrees to delay Ato Alemu so as to give Ato Dubie enough
time to leave Alemu‟s house after the commission of the theft, but Ato
Dubie is caught long before Ato Alemu would have got back home even if
he had not been held up by Ato Gulie; or Ato Ketema agrees to be on the
look-out while Ato Shumie is committing the act but, when taking his
posts, he collapses and does not regain consciousness until after the
crime is committed; or Ato Tedla awaits in a car near Ato Balcha‟s house
so as to drive away Ato Kedir a after the commission of the crime, but in

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trying to start the engine when about to derive away, he finds that he is
out of petrol.

The above hypothetical cases can be resolved in two ways. On one hand,
if we regard a person as an accomplice whenever he does something
which has to do with the principal criminal‟s activity the fact that he
loses his consciousness or can not drive away is irrelevant. What is
relevant is that he went to the victim‟s house to be in the look out to
facilitate the principal criminal‟s escape. Thus, a person may be regarded
as an accomplice and punishable for the mere fact that he helped a
principal criminal by agreeing to assist upon which the latter acted and
did not have to make different arrangements. Similarly, the fact that a
person gives to a principal criminal the combination of the victim‟s safe
or false keys to open the same were useless would be immaterial; what is
important is the fact that he gave the said combination the safe or the
false keys.

On the other hand, it can also be argued that sole fact of doing
something which is connected with the principal criminal activity does
not suffice to regard the doer as an accomplice. There is more to it. That
is what a person has done in view of assisting a principal criminal should
effectively contribute to the commission of the crime. Even his act is not
a sine qua non condition for achieving the intended result.

Hence, a person who gave to a principal criminal false key to open the
victim‟s house would not be regarded as an accomplice if the keys were
found to be useless. This because he did nothing either before or during
the commission of the crime which could effectively contribute to its
perpetration. From this it follows that since such a person failed to
effectively contribute to the commission of the crime despite the fact that
he did everything expected of him. He would be deemed to have merely

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attempted to assist as per Article 27(2) of FDRE Criminal Code. Hence,
he is not punishable though he is as dangerous as a person who would
have effectively contributed to the commission of a crime.

Which position do you find convincing?

Coming to the liability to punishment of an accomplice, Article 37(2)

provides that a person who intentional assists another person is
punishable. However, as per Art 37(3) such a person may not be liable to
punishment unless the principal criminal at least attempted the
commission of the crime save in cases where a mere assistance
constitutes an independent crime or is expressly made punishable by law
as provided under Article 27(2) second alinea.

Thus, as a matter of rule it is when the principal criminal attempts the

commission of the crime that an accomplice shall be liable to
punishment. Accordingly, once the crime is attempted it is irrelevant
whether he intended result is achieved or whether the principal criminal
himself is liable to punishment in determining the liability to punishment
of an accomplice.

As it can be understood from the expression “in an intentional crime”

Article 37(3) the liability to punishment an accomplice is subject to the
fact that the principal criminal intentionally perpetrates the crime or at
least attempts its commission. From this it follows that; a person may
not be liable to punishment for assisting another before or during the
commission of an unintentional crime, i.e., crime of negligence. This

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because firstly, in as far as assistance implies common design, this
condition can not be met where the crime is committed negligently.
Secondly, an accomplice should be aware of the fact that he contributes
to the commission of a crime and this can hardly be true unless this
crime is committed intentionally. Thus, in accordance with Article 37(3)
FDRE Criminal Code a person may not be deemed to have acted as an
accomplice in the commission of a crime unless this crime is committed
intentionally.

What do you think the extent of the liability to punishment of an

accomplice?

An accomplice‟s liability to punishment is limited to the crime for

commission of which he intentionally assists the principal criminal. To
use the language of the FDRE Criminal Code “he shall be liable to
punishment in so far as such crime does not go beyond the accomplice‟s
intention”. Thus, an accomplice may not be liable to punishment for
crime that goes beyond what he intended.
For example, if Ato Chanie agrees to be on the look-out while Ato Semie
robs Ato Kuma and if Ato Chanie is on the look-out and Ato Semie hits
Ato Kuma with big stone on his skull causing the latter‟s death, Ato
Chanie, who is an accomplice in the robbery, shall not be regarded as an
accomplice in the homicide for it goes beyond his intention.

Concerning assessment of punishment, pursuant Article 37(4) of the

FDRE Criminal Code, an accomplice shall be subject to the punishment
prescribed for the crime intended to be committed. That is to say, as a
matter of rule, he is liable to the same punishment as the principal

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criminal. Nevertheless, there is a room for the courts to reduce the
punishment that shall be imposed on an accomplice. According to Article
37(4) second alinea, the court has the discretion to reduce the sentence
to be passed on an accomplice within the limit provided under Article
179 of the FDRE Criminal Code, where the attending circumstances
justifies so.

Summary
Carrying out a certain criminal design may involve the participation of
two or persons. In such cases, identify the degree of participation of each
party to the crime is necessary with a view to determine their respective
criminal liability and to deal with assessment of punishment. A person
can participate in the commission of a crime in a principal capacity or
secondary (accessory) capacity. He may participate in a principal
capacity by directly and personally committing the crime (as direct
material criminal), by using human or non-human agent (as indirect
material criminal), or by masterminding the commission of the crime (as
moral criminal). In a secondary he can participate by inducing the
principal criminal to commit the crime (as inciter) or by aiding the
principal criminal before or during the commission to commit the crime
(as accomplice).

A person who participates in the commission of a crime in either of the

two capacities will be held criminal liable and subject to a punishment
prescribed for the crime irrespective of the degree of participation.
Nevertheless, the punishment to accessory criminals may be reduced
within the limit provided by law where there are circumstances justifying
reduction of punishment.

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Miscellaneous Questions

1) In what capacity can a person participate in the commission of a

crime?
2) Discuss principal participation.
3) What makes principal participation different from accessory
participation?
4) Who is a direct material criminal?
5) What the distinction between the last limb of Article 32(1) (a) and
Article 32(1) (c) of the FDRE Criminal Code?
6) Compare and contrast moral criminal and material criminal.
7) Must one actually participate in the execution of a crime to be
regarded as a moral criminal? Is ¨full association¨ essentially equal
to intent? When C hands a weapon to A, not wanting B to die, but
wishing to oblige A, who has asked him for the weapon, is C a co-
criminal? Must all co-criminal be punished equally?
8) May a person not a party to judicial proceedings be convicted as
a co-criminal in the crime of perjury? May an unmarried person
be convicted of bigamy? A woman of rape?
9) What is the rationale for regarding moral criminal as a principal
criminal?
10) Explain co-participation and conspiracy.
11) What are the perquisite elements of incitement?
12) What is the legal consequence of inciting another person to
commit a crime?
13) Explain accomplice together with legal effect?
14) Does Art. 27(2) prevent one from being an accomplice to an
attempt?
15) What type of intention is required for incitement as per Article 36
of FDRE Criminal Code?

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16) What means may an incitement be effected? What is required for
incitement?
17) What distinguishes incitement from assistance or conspiracy?
18) Does the crime of incitement dilute the ¨act¨ requirement more
than attempt?
19) May one be convicted under Article 36 for inciting a crowd in
general or a principal criminal who had already decided to commit the
crime?

Hypothetical Cases

1. Ato Kedir says to Ato Chanie “Here is 10,000 Birr- hire an assassin to
do away with my wife, W/ro Beletu”. Ato Chanie does as he has been told
and W/ro Beletu is killed. In what capacity do you think Ato Chanie
participated in the crime of murder?

2. A decides that he wants V killed. He encourages D to perform the

murder. B supplies D with a knife to perform the murder, C supplies A
with information regarding V‟s movements, E drives D and F to V‟s house
and acts as a lookout, F assists D to kill V by holding him while D stabs
him and G, V‟s discontented butler shouts encouragement at D and F as
they attack V. Identify the degree of participation of each person?
3. W/ro Guzie encourages Ato Shumie to have sexual intercourse with
Almaz, against the latter‟s will, and restrains Almaz while Ato Shumie
intercourse. In what capacity do you think W/ro Almaz participated in
the commission of crime of rape?
4. Ato Shumie hands a gun to Ato Dubie informing him it is loaded with
blank ammunition only and telling him to go and scare Ato Belay by
discharging it. The ammunition is in fact live, as Ato Shumie knows, and
Ato Belay is killed. What is capacity of Ato Shumie in the killing of Ato
Belay?

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5. Would you hold a storekeeper as an accomplice who, suspecting the

criminal purpose of his customer, sells him tools which are themselves
innocent, but which can be used as housebreaking?
6. Would A be regarded as an accomplice if he shared his advice with B
to the effect that B could easily rob a bank and several days later – one
day before B actually robbed the bank- told B he really didn‟t think it
was a good idea any more?

Chapter Two

AFFIRMATIVE DEFENCES

INTRODUCTION

Dear student, as you could remember from your discussion in the

module one the issue of criminal liability, it has been pointed out every
violation a criminal law provision may not entail punishment to the doer.
It is only when the perpetrator has contravened a criminal law with guilty
state of mind that he shall be subjected to punishment. Hence, a person
who commits a crime with guilt state of mind, i.e. intentionally or

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negligently is punishable. Nevertheless, there are cases wherein this
principle may not hold true.

A person may go unpunished having committed a crime as described by

the criminal law. This usually happens where there are defenses which
relieve the doer from being punished or subject him to reduced
punishment despite the fact that all the requisite elements of the crime
are present. These defenses are mostly referred as affirmative defenses.
They are called affirmative because the doer tries to defend the case by
admitting the commission of the act but denying its punishable nature or
claiming that he should be subjected to reduced punishment.

This Chapter is dedicated to provide a considerable discussion on

affirmative defenses of a criminal liability. A fair consideration on the
nature, definition of and rationale for affirmative defenses is given under
this chapter. Besides, explanations, analysis and illustrations of different
kinds of affirmative defenses are provided.

Objectives:

Having properly studied this Chapter, you will be able to:-

 Explain the notion of affirmative defense
 Discuss the legal effects of affirmative defenses
 Reason out the need for affirmative defiance
 Enumerate different kinds of affirmative defense
 Compare and contrast different types of affirmative defenses

2.1 General Consideration on Affirmative Defenses

Dear student why do you think by the term affirmative defense?

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One way by which a criminal law prevents the commission of a crime is

by punishing those who have committed a crime disregarding a criminal
prohibition made by the law. Nevertheless, not all persons who have
violated a criminal law provision are punishable sometimes a person may
not be punished or may be subject to reduced punishment though he
has committed a crime. This usually occurs where there are justifiable or
excusable circumstances which are often referred as affirmative defense.

An “affirmative defense” is any defense that assume the charges to be

correct but raises other facts that, if true, would establish valid
justification, or excuse to perform the act for which he is being tried. An
affirmative defense does not concern itself with the elements of the crime;
it concedes them. In effect an affirmative defense says “Yes, I did it, but I
had good reason which justify or excuse my act.”

The fact that affirmative defense presupposes that the accused concedes
that he did commit the crime excludes other defense from being consider
as such. For example defense which denies the commission of the crime
or asserts that the prosecutor has failed to establish elements of the
crime or cause effect relationship, are not affirmative defenses.

Thus, affirmative defenses, successfully invoked, will exempt the doer

from criminal liability and punishment. This assertion is in consonant
with Article 58(2) of the FDRE Criminal Code which goes “an
international crime is always punishable save in the cases of justification
or excuses expressly provided by the law”. The a contrario reading this

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sub-article tells us that under FDRE Criminal Code a person may not be
liable to punishment even if he has committed a crime intentionally if
there are circumstances which can be regarded as justification or excuse
as expressly stated by the law.

2.1.1 Types of Affirmative Defenses

What types of affirmative defenses can you think you of?

Generally speaking, affirmative defenses can be classified into two

depending on to what issue/point the defense is addressed. Some
affirmative defenses speak to the rightfulness of the act done by the doer;
these defenses are commonly referred as justification. On the other
hand, there are other affirmative defenses which address that the actor is
not criminally responsible in the circumstances. These defenses are
usually termed as excuse.

i. Justification

In this category of defense, the defendant accepts responsibility for the

crime but what he did was right under the circumstance. This defense
lies on the principle that some circumstances justify what would be
otherwise be a criminal conduct and the causing of criminal harms.
Justified conduct does not deserve punishment because such behavior
lacks blame worthiness. For example, it is wrong to blame and punish
one who has killed an attacker in self-defense. Similarly, it is wrong to
punish a policeman who restrains another in enforcing a lawful arrest in
accordance with the law.

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If successfully invoked, justification the accuser’s conduct is

hearted as his conduct is considered to have been an appropriate
course of action in the circumstances in which he has committed
the act. Thus justification operates to cancel the unlawfulness of the
accuser‟s conduct; there being no unlawful act, there is thus no crime of
which to convict him.

ii. Excuse

In cases of excuse, the doer admits that what he did was wrong but
argues that under the circumstance he was not responsible for what he
did and should be excused for so doing. Thus, where a defense operates
as an excuse the criminal responsibility of the accused is negated and he
is excused from the normal consequences of conviction and sentencing
which would flow from the commission of the crime.

Coming to the FDRE Criminal Code, affirmative defenses are classified

into three; namely lawful acts, justifiable acts and excusable acts. Based
on the explanation given above regarding justification, it is sound to hold
that justifiable acts and lawful acts could be treated under justification.
Because the theme of these two defenses is basically the same, i.e. the
act, which otherwise be a crime, done by the accused is not unlawful.

Therefore, one should not be misled to think that FDRE Criminal Code
has introduced substantively different form of affirmative defense.
Rather, FDRE Criminal Code has opted to address lawful acts and
justifiable acts separately instead of treating them under the caption of
justification.

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2.2 Lawful Acts

What do you understand by the term lawful acts?

One of the affirmative defenses provided in the FDRE Criminal Code is

lawful acts. This defense aims at deleting the unlawful character of he
act done by the doer. It intends to convince the court that the act
preformed by the accused, which would otherwise be criminal, is lawful
owning to the fact that he is legally obliged or authorized to act as he did
in the circumstance. Thus, his act does not constitute a crime
irrespective of the seriousness of its nature. As such, he must not be
punished for punishing him would a contradiction in terms. This is
because as Graven has pointed out “the law whatever its nature, cannot
without contradicting itself bind or authorize a person to act and then
punish him if he acts in accordance with the law”.

Dear student, what acts do you think should be regarded as defense of

lawful act?

The FDRE Criminal Code has provided, under Article 68 and 69, acts
that should be regarded as defense of lawful act. Article 68 provides for
acts required or authorized by the law by illustratively listing those acts
that should be considered as such. On the other hand, Article 69
envisages acts done in carrying out professional duty. In fact 68 is broad
enough to incorporate Article 69 for an act done in the exercise of a

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professional duty is an act authorized by law in as much as it has been
done in accordance with the accepted practice and no grave fault is
made. However, the law for its own purpose has treated acts done in the
exercise of a professional duty separately from acts required or
authorized by law. Accordingly each of them is dealt with separately in
the subsequent sub-sections.

2.2.1 Acts required or Authorized by Law

What are acts required or authorized by law?

It will be contradictory in terms for the law to punish a person who has
done an act he is legally obliged or authorized to perform. Thus, acts,
which would be otherwise be criminal, are lawful and not punishable
when they are performed by a person who is required or entitled to
perform them. In this regard, Article 68 of the FDRE Criminal Code has
the following to say.

Article 68:- Lawful Acts

Acts required or authorized by law do not constitute a crime
and are not punishable; in particular:
a) Acts in respect of public, state or military duties done
with in the limits permitted by law;
b) Acts reasonably done in exercising the right of
correction or discipline; or

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c) Acts done in the exercise of private rights recognized by
law, where the conditions and limits of the exercise of
such rights are not exceeded.

As you can understand from the reading of this provision, acts done in
relation to public, state or military duties, acts done in the exercise of he
right of correction or discipline and acts done in exercising private
justices do not constitute a crime in as much as they are done with in
the limit provided by law. However, as the term “in particular” indicates
the listing under Article of is not exhaustive.

So, those acts listed under Article 68 are not the only ones that are
required or authorized by the law and regarded as defense of lawful acts.
There are also other acts that can be entertained under the defense of
lawful acts. For instance, acts done for purpose restraining a dangerous
lunatic from doing harm shall be regarded as lawful act under Article 68
of the FDRE Criminal Code. Bearing this in mind, let‟s see those acts
mentioned under Article 68(a),(b) and (c) one by one in the following
manner.

i) Acts in respect of public, state or military duties

What are acts in respect of public, State of military duties?

Basically acts done in connection with public, state or military duties

share one common element. That is the fact that they are to be done in
the general interest i.e., to the common interest of the society. The FDRE
Criminal Code does not define what constitute acts with respect to

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public, state or military duties. Nevertheless, it is not that much difficult
to identify them.

These acts are acts which a person is legally obliged or authorized to

perform in the general interest, i.e., to the common good of the society.
Accordingly, a person who does an act for the public in the interest of the
society in accordance with the law shall be deemed to have done an act
in respect of public duties. And his act, which would otherwise be
criminal, shall be regarded lawful.

Such a person is not however, required to “possess an official status or

be vested with any kind of official power nor, for that matter, that he
should act in the discharge of duty, since a person with such a status
may avail himself of the more specific justification that he acts “in
respect of state duties‟‟. Therefore, the decisive factor in determining that
an act shall be regarded as an act in respect to a public duty is whether
the act is required by the law and is done in the general interest.

For example, in accord with Article 50 of Ethiopia Criminal Procedure

Code a private person who arrests a criminal who is found committing a
crime punishable for not less imprisonment does an act in respect to
public duties and he shall not be liable to punishment under Article 585
of FDRE Criminal Code for his act is lawful as per Article 68 of FDRE
Criminal Code. The same holds good for a private person who
participates in the arrest of a suspect as per Article 57 of the Ethiopian
Criminal Procedure Code. In fact, in both cases the acts done by such a
person is an interference with the liberty of another person which is
contrary to the law. However, owing to the provision of the Criminal
Procedure Code his acts is regarded as lawful.

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Similarly, a person in discharge his duty to report a crime under Article
443 FDRE Criminal Code does an act pertaining to a public duty. His act
causes an injury to honor or reputation of another contrary to Article
613 of FDRE Criminal Code. Nevertheless, it shall be regarded as lawful
and he may not be punished for his act is required by the law.

Coming back to acts done in connection with state duties, it has been
said that government employees or public servants shall not be punished
for the acts they have done in discharging their duties as public servant
as prescribed by the law. Thus, acts done by government employees in
carrying out their duties as required by the law shall be regarded as
lawful ones.

Accordingly, a police man in arresting a suspect and in searching a

house shall not held criminally liable for violation Article 585 and Article
604 of FDRE Criminal Code respectively. If he is tried for his acts he can
successfully avail himself of the defense of lawful act stating that he is
legally obliged to perform these acts. The same holds true for an
executioner who carries out death sentence against a convict.

Similarly, in respect of acts done in discharging military duties, a

member of the Defense Force shall not be punished for the acts he
performs in discharging his military duties as required by the law. His
acts shall be regarded as lawful ones for he is legally under obligation to
do these acts. For instance, a soldier is justified in killing an enemy
combatant in accordance with the laws and customs of war.

As one can realize from what has been said above acts, which otherwise
would be criminal, may be regarded as lawful ones if the doer is legally
obliged to do them in connection with public, state or military duties.

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Thus, the fact that the acts are done in respect of public, state or military
duties will serve as defense of a criminal liability and punishment.

Nevertheless, this defense may not be available if these acts are not done
in accordance with the requirements of the law governing the doing of
these acts. It is only when these acts are done with in the limit provided
by the law the doer can avail himself of the defense of lawful act by
pleading that he is legally required to perform those acts.

A doer who does an act in respect of public duties can successfully

involve the defense of lawful act only where is perform the act in terms of
the legal requirement set by the law dealing with the doing of the act. For
example, a private person, who arrests another person who has
committed a flagrant crime punishable for at least three months
imprisonment, is not justified by the defense of lawful act if he beats the
arrestee even if the latter does not resist the arrest forcibly. Because the
law authorizing private arrest under Article 50 of the Criminal Procedure
Code does not entitle the private person effecting the arrest to strike the
arrestee.

In a like manner, a person who is discharging his legally duty to report a

crime under Article 44 of FDRE Criminal Code may not escape a criminal
punishment under Article 446 FDRE Criminal Code if he gives false
information. By the same token, a witness who gives a false testimony
may not avail himself the defense of lawful act to be relieved from
punishment in accordance with Article 452 of FDRE Criminal Code.

Similarly, a person who perform an act which is required or authored by

law in connection with state or military duties may not successfully
invoke the defense of lawful act if he does the act not in complies with
requirements of the law. Obviously the doer, a public servant or a

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soldier, in order to avail himself of this defense, first he shall be either
required or authorized by the law to do the act. Secondly, he has to do
the act in accordance with the requirement laid down by the law
requiring or authorizing the performance such an act.

For example, though a police man is authorized by law to conduct

search, he is not entitled to search a house or a premise contrary to what
has been provided under Article 32 of the Criminal Procedure Code of
Ethiopia. If he conducts search without warrant, while issuance of
search warrant is necessary, he may be liable to punishment under
Article 422(2) of FDRE Criminal Code and may not avail himself of
defense of lawful act to get relieved from punishment.

Similarly, a police officer is authorized to arrest a person who is

suspected of committing a crime. However, he may not invoke the
authorization by the law to escape criminal punishment if the arrests a
person contrary to the conditions laid down under the Ethiopian
Criminal Procedure Code.

The same holds good for a soldier who perform an act in connection with
military duties. A soldier is legally authorized and required to kill an
enemy combatant in accordance with laws and customs of war. However,
he may not avail himself of the defense of lawful acts in cases where he
kills prisoner of war contrary to Article 272 of FDRE Criminal Code or if
kills wounded or sick contrary to Article 271 of FDRE Criminal Code for
his act is not within the limit set by the law.

ii) Acts done in exercising the right of correction or discipline

What are acts of correction or discipline?

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As it has been stated under Article 68(b) acts done in the exercise of the
right of correction shall be regarded as lawful ones in as much as they
are done reasonably. Thus, a person who is entitled to exercise the right
of correction or discipline may not be punished doing an act in the
exercise of this right so long as does the act reasonably.

However, the FDRE Criminal Code is not clear as to what acts shall be
deemed to have been done reasonably in the exercise of he right of
correction or discipline. For distance parents are entitled to exercise the
right of correction or discipline up on their children. So, what acts can
parents do to correct or discipline their children if the latter misbehave?

In fact Article 2039(c) if the Civil Code entitles the parent to inflict
reasonable corporeal punishment on their children in the exercise of
their right of correction or discipline. Nevertheless, given the absolute
abolishment of corporeal punishment under the FDRE constitution it is
very hard to consider inflicting a corporeal punishment on a child as
lawful act.

Besides, Article 576 of the FDRE Criminal Code prohibits the beating of a
child for any reason or in any manner. Thus, it is only acts short of
corporeal punishment which are reasonably done in the exercise the
right of correction or discipline that should be regarded as lawful act.

Hence, disciplinary measures may not include inflicting corporeal

punishment. Thus, it is only acts short of corporeal punishment which
shall be regarded as lawful act when they are done reasonably in the

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exercise of the right of correction or discipline. This may include
admonishment, putting reasonable restriction some right of the child.

ii) Acts done in the exercise of private rights recognized by the law.

Article 68(c) of he FDRE Criminal Code justifies acts done in the exercise
of private rights recognized by the law and relieves the doer from criminal
punishment. These acts are sometimes referred as acts of private justice
for the law recognizes these acts as a means by which individual whose
right is violated can do justice by his own. In cases of acts of private
justice, the law in effects allows an individual to take the law into his
hands.

The Ethiopian Civil Code, Article 1148 recognizes the right of the holder
or possessor of a thing to repel by force any act of usurpation or
interference with his possession and to take back the thing by using
force when the thing is taken a way from him by violence or secretly.
Similarly, a possessor of a land is entitled under Article 2076(2) the Civil
Code to kill an animal belonging to another which causes damage to his
cultivation in order to prevent substantial damage disproportionate to
the value of the animal.

In these two cases, the doer is not punishable for his act, which would be
otherwise be criminal, is authorized by law in the circumstance and is
regarded as lawful one. Thus, a possessor who causes a bodily injury, to
another person who usurps or interferes with his possession in
accordance with Article 1148 of the Ethiopian Civil Code or who causes
damage to a property of another pursuant to Article 2076(2) of the
Ethiopian Civil Code, can avail himself of defense of lawful act under
Article 68(c) of the FDRE Criminal Code to get relieved from criminal
liability and punishment.

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Nevertheless, a person may not avail himself of the defense of lawful

pleading that his act is an act of private justice unless he has done the
act within the limits and in accordance with the condition for the
exercise of such a right as provided by the law. In the example mentioned
above, a holder or a possessor in repelling a usurper intruder or in
taking back the thing from a usurper he should refrain from using force
more than what is justified in the circumstance. For instance beating the
usurper after taking back the thing from his hands may not be regarded
as lawful act. Likewise, a possessor of a land, who kills an animal
belonging to another to prevent a further damage while the damage could
have been avoided by different or less harmful means, is not justified
under Article 68 (c) of the FDRE for his act exceeds the limits and the
conditions laid down by the law for exercising this rights.

2.2.2 Acts done in exercising professional duty

What activities acts can be regarded as acts done in carrying out

professional duty?

Acts done in exercising a professional duty fall under defense of lawful

acts and as such serve as a defense to criminal liability. In this regard,
Article 69 of the FDRE Criminal Code provides:

Article 69:- Professional Duty

An act done in the exercise of a professional duty is not liable

to punishment when it is in accordance with accepted

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practice of he professional and the doer does not commit any
grave professional fault.

As it can be read from this provision, a doer is not to be punished for an

act he has done in carrying out his professional duty unless his act is
contrary to the accepted practice of the profession and he commits grave
professional fault. Acts done in the exercise of professional duty are
pretty much the same as acts authorized by law for the doer is
authorized by law to do certain acts, which would be otherwise be
criminal, in carrying out his profession duty.

In deed, the rational for considering acts done in carrying out a

professional duty as defense of lawful act is same as that of acts required
or authorized by law. That is, as Graven has excellently pointed out, “the
law which authorizes the exercise of certain professions or the making of
certain contracts under which specific activities are to be carried out by
certain persons, would contradict itself should it regard as unlawful acts
properly done by these persons in the exercise of these professions or the
performance of these contracts.”

The first point that crosses one‟s mind in reading Article 69 of the FDRE
Criminal Code is the notion of “profession”. It is very hard to determine
whether a certain act is an act done in carrying out a professional duty
with out properly defining the term profession. Unfortunately, enough
the word profession is defined neither in the FDRE Criminal Code nor in
other laws.

Generally speaking the term profession may be taken to mean “any

vocation or calling in which a person professes to exercise learning, skill
or art” or “any activity which a person habitually carries out for the
purpose of obtaining resources necessary to his livelihood”. On top of

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these two general considerations, we should also note that in order to
regard a certain activity as a profession it seems irrelevant whether the
doer perform this activity by virtue of contract or law for the purpose of
Article 69.

Besides, the element of remuneration should not be taken as a

conclusive test in determining whether person is undertaking a certain
profession in the context of Article 69 of the FDRE Criminal Code. This is
because a person may carry out a certain profession on a voluntary
basis. For instance, a surgical doctor rendering a voluntary service in a
hospital shall be regarded to have exercised his professional duty when
he operates surgery despite the fact that he is not remunerated for his
service.

Bearing in mind the above understanding of the term profession, the

defense of professional duty provides that a person shall not be punished
for doing an act, which other wise would be criminal, in carrying out a
professional duty in compliance with the accepted practice of the
profession and without committing grave professional fault. What makes
this act not punishable is the fact that the profession in the exercise of
which the act is done is either impliedly or expressly authorized by law.
Thus, a person who is either impliedly or expressly authorized by law
exercise a certain profession can invoke the defense of lawful act as
provided under Article 69 for doing an act, which would be punishable
were it not be done by such a person so authorized to act, in carrying out
a professional duty to avoid criminal punishment.

The above assertion can be well illustrated by the following examples. A

surgeon in performing operation may not be punished for causing bodily
injury. By the same token a lawyer may not be punished for defamation
for instituting, on behalf of his client, a formal compliant to for the

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investigation of crime of adultery. Likewise, a mechanic to whom a car is
entrusted for repair may not be liable to punishment for damage to
property if disassemble the car.

At this juncture, it should be stressed that all acts done in carrying a

professional duty may not relieve the doer from punishment. It is only
when he does these acts in accordance with the accepted practice of the
profession and without committing grave fault that he can successfully
invoke the defense of lawful act based on professional duty to escape
punishment.

Hence, firstly, the doer should be the one who is entitled to exercise the
profession concerned in order to affirmatively defend the charge brought
against him pleading that he has done the act in carrying out a
professional duty and his act shall be regarded as lawful under Article 69
of the FDRE Criminal Code. For example, a dentist may not avail himself
of defense of lawful act based on professional duty if he causes the death
of another person in performing operation to remove the appendix of this
person for he is not authorized by law to perform operation.

Secondly, a person who is authorized by law exercise a certain profession

shall perform acts, in carrying a professional duty, in accordance with
the accepted practice of the profession. Here, the most important issue is
identifying the accepted practice of a certain profession. This can be done
by making reference to professional regulations, failing such by looking
into the custom of a particular profession.

Thus, in determining whether the doer has complied with the accepted
practice of the profession in doing a certain act in the exercise of his

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professional duty a reference shall be had to the professional regulation
if there is one or to custom of that particular profession. For instance, it
is not in accordance with the accepted practice of medical profession to
perform blood transfusion with out ascertaining the compatibility of the
blood type of the donee and the donor. Hence, if the person to whom the
blood is transfused dies, the doctor who performs the transfusion may
not avail himself of Article 69 of the FDRE Criminal Code.

Thirdly, even if the doer has done an act in carrying out a professional
duty in compliance with the accepted practice of the profession, he may
be liable to punishment if he commits a grave professional fault. Whether
or not the doer has committed grave professional fault is also to be
determine by looking into the professional regulation where there is one
or taking to account the custom of that particular profession.

For instance, a surgeon shall be deemed to have committed a grave

professional fault if he leaves a scissor, after performing a skillful
surgery, in side the body of the patient. Hence, he may not avail himself
of Article 69 of the FDRE Criminal Code to get relieved from punishment
for negligent homicide if the patient dies.

2.3 Justifiable Acts

As it has been pointed out earlier on, a person who invokes an

affirmative defense claiming that his act is justifiable in circumstance
admits the commission of the act but denies the punishable nature of his
act. This kind of defense is regarded as defense of justifiable acts.

What sorts of acts do you think should constitute defense of justifiable

acts?

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In criminal law jurisprudence the most common types of justifiable acts

are acts of legitimate defense, acts of necessity and consent of the
injured party. When we come to FDRE Criminal Code, the law does not
clearly state which acts constitute defense of justifiable rather it provides
for different circumstance, which can be regarded as justification and
excuse under the title “justifiable acts and excuses”. Please look at the
heading of Sub-section II of Section II of Chapter II of Title III Book I of
the General Part of the FDRE Criminal Code.

Nevertheless, the reading of Article 70,75 and 78 of he FDRE Criminal

Code respectively, indicate that consent of the victim, acts of necessity
and acts of legitimate defense are provided and can be regarded as
defense of justifiable acts under FDRE Criminal Code. Bearing this
explanation in mind, let‟s see each type of defense of justifiable acts
starting with legitimate defense.

2.3.1 Legitimate Defense

What do understand by the term legitimate defense?

Legitimate defense refers to the use of force to prevent unlawful attacks

against individuals, their homes, property and the right of another
person. It involves self-help in effect it is a good example of “the taking
the law into one‟s own hands”. Apparently, allowing individuals to use
force to repel unlawful attacks contradicts with the fundamental

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principle of constitutional democracy, i.e., rule of law. The rule of law
entrust the government with a monopoly of use force and with the
obligation to protect the people from illegal attacks. Nevertheless,
practically speaking, in some cases the government agents may not be
around when they are needed to extend protection. In such cases,
individuals should be allowed to use force to protect themselves, their
homes, property, and the right of other individuals against illegal
attacks.

Thus, in effect, the notion of legitimate defense does not conflict for real
with the purpose and aim of the principle of rule of law. Legitimate
defense, as the name implies, is a defensive action. Those who rely on it
need to act right now because if they do not, they themselves, others,
their property will be attacked. However, the notion of legitimate defense
does not include preemptive strikes which are intended to prevent some
future attacks. Similarly, it does not include retaliation, i.e., the use of
force to “pay back” a wrong doer for a past attack.

To put it simply, legitimate defense all about protective action required

and taken right now. Preemptive strikes come too soon and retaliation
comes too late. Thus, individuals must opt for other means to prevent
future attacks, and only the state can legally punish past attacks.

It is based on the aforementioned consideration the criminal law provides

for legitimate defense relieving a person who relied on it from a criminal
punishment. Regarding legitimate defense under Article 78 of the FDRE
Criminal Code states the following.

Article 78:- Legitimate Defense

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An act done in self-defense or the defense of another
person against an unlawful attack or an imminent and
unlawful attack against a legally protected right shall not
be punishable if the attack or imminent attack could not
have been otherwise averted and if the defense was
proportionate to the needs of the case.

The FDRE Criminal Code uses the term “legitimate defense”, instead of
self defense, as it was the case in the 1957 Penal Code, signifying that an
act can be done in self defense or the defense of another. Besides this
legal provision has incorporated different elements that should be met in
order for a person to successfully involve the legitimate defense to avoid
criminal liability to punishment.

What are these legal elements that should be satisfied so that a person
can avail himself of legitimate defense?

2.3.1.1 Elements of Legitimate Defense

The right to use of force to repulse an unlawful attack against oneself or

another person is not unlimited one. There are conditions that should be
complied with in exercising this right. These include the following.

i. Actual attack or imminent attack

Pretty obvious, an act of legitimate defense is to be exercised is against

an attack. And such an attack must be actual or at least imminent in the

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sense that his act should not amount to preemptive stride or retaliation.
Thus, the aggressor must be attacking or about to attack when the doer
uses force to repulse the attack. In other words, the attack should be in
the course of being executed or imminent, which indicates the existence
of a state of actual danger, in order for a person to use force to avert it.
From this it follows that there is no right to legitimate defense when
either the attack has already been taken place or the doer tries to
prevent a future attack from happening.

An act of legitimate defense is only to be exercised against an actual or

imminent attack. Otherwise, it would amount to giving individuals a free
hand to cause harm merely out of fear or vengeance. Therefore, a person
may not avail himself legitimate when he uses force against an attack
that has already been taken place or to prevent a future attack from
eventuating. It is only when he uses force against an actual or imminent
unlawful attack he can invoke legitimate defense.

For instance, Ato Goshu discharges his pistol against Ato Belay who is
standing in point of him, the latter shall be deemed to have acted in
legitimate defense if he shoots at the former with a view to protect his
life. However, his act is no longer one of legitimate defense if, after Ato
Goshu has shot but missed him because he is a bad shot and ran away,
Ato Belay runs after him and shoots at him. Similarly, it does not
amount to legitimate defense if Ato Belay, having learnt that Ato Goshu
is planning to kill him, goes to Ato Goshu‟s house and kills him; since
the attack is not imminent one.

As it has been stated above a person may invoke legitimate defense to

defend a criminal liability in cases where he used force to repulse an
actual or imminent attack. However, this defense is not available for
such a person unless the attack is unlawful. In the context of Article 78

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of the FDRE Criminal Code, an act done by the aggressor shall be
deemed to be unlawful if his act is objectively contrary to the law
whatever this law may be and it is not required that his act should
constitute a criminal act nor a punishable crime. The rationale behind
this consideration is the fact that the defender, given the urgent
circumstance, is not be expected know or does not have the time to as
certain whether the aggressor is subjectively at fault. Therefore, a person
can only exercise his right of legitimate defense against an actual or
imminent unlawful attack.

Conversely, legitimate defense is not available against lawful acts. For

instance, in relations to acts as described under Article 68 of FDRE
Criminal Code, a person may not use force against acts required or
authorized by the law. Accordingly, a person may not avail himself of
legitimate defense if he resists forcibly a lawful arrest.

Do you think legitimate defense is available against legitimate defense?

Why? Why not?

Obviously, legitimate defense is not available against an act of legitimate

defense. For instance, if Ato Jemal strikes Ato Kedir to protect his
property which the latter tries to take away, Ato Kedir may not invoke
legitimate defense if he strikes back Ato Jemal who is acting in state of
legitimate defense. Because Ato Jemal‟s act is regarded as lawful in the
eyes of the law in as much as it is done within the legal limits.
Nevertheless, Ato Kedir may be entitled to resort to legitimate defense if
Ato Jemal exceeds his right of legitimate defense. In such a case, for

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example, if Ato Jemal, after knocking down Ato Kedir thus repelling the
attack, proceeds to beat the latter, the latter will be entitled to exercise
his right of legitimate defense against Ato Jemal.

Can a person who provokes attack latter claim legitimate defense? In

other words, can an initial aggressor avail himself of legitimate defense?
Consider the following case.

A small man attacked a much larger man with a knife. He

soon realized that he had taken too much, so he retreated in
an effort to escape. But to no avail. The larger man, by then
thoroughly angered, pursued him relentlessly. Unable to
escape the smaller man finally stood his ground and, in the
process, stabbed his attacker to death.

Do you think, in the above case, the small man can avail himself of
legitimate defense despite the fact that he is the initial attacker?

The other point that should be raised at this juncture is from whom the
unlawful attack emanates. For the purpose of exercising legitimate
defense as provided under Article 78, it is immaterial who the attacker is.
Legitimate defense is generally available against an actual or imminent
unlawful attack by any individual, including insane person, intoxicated
person or children. Needless to mention, the right of legitimate is also
available against actual or imminent unlawful attack by public servant.
For instance, if a police officer beats a suspect despite the fact that the

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latter submits willfully to the arrest, the latter can exercise his right of
legitimate defense against the former to prevent the attack.

ii) Against legally protected rights

Legitimate defense is to be exercised in view of safeguarding legally

protected rights from an actual or imminent unlawful attack. Thus, the
seriousness of the attack is not irrelevant for purpose of determining
whether there is a state of legitimate defense. Similarly, the nature and
the purpose of the attack and the type of legally protected right are
immaterial establishing the existence state of legitimate defense.
Because, legitimate defense is available against attacks endangering any
legally protected rights. These include life, liberty, bodily integrity, sexual
liberty, property, honor etc.

One should also note that it is irrelevant whether the legally protected
right endangered by the attack belongs to the defender or another
person. A person can exercise legitimate defense in view of protecting his
own legally protected rights or another persons legally protected rights.
Thus, it is not required that the act of legitimate defense should always
be done by a person who is being or about be unlawfully attacked. Such
an act may be done, not only to protect one‟s own regally protected
rights, but also those of third party.

Do you think mistakes are likely to occur when legitimate defense is

exercised for the benefit of another person?

Please consider the following hypothetical cases.

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a). Ato Chala prevents Ato Shumie from driving away in Ato Goshu‟s car,
not knowing that the car was lent by Ato Goshu to Ato Shumie. Do you
think Ato Chala can avail himself of legitimate defense?

b). Ato Kuma erroneously believes that Ato Dula is raping W/t Askal,
while in fact the intercourse is based on her free will, and attack Ato
Dula. Is Ato Kuma entitled to invoke legitimate defense?

iii) Last resort

The fulfillment of the aforementioned requirements is not sufficient

enough to warrant use of force to repulse an actual or imminent
unlawful attack against a legally protected right. An act of legitimate
defense is to be exercised as a last resort. It is only when the actual or
imminent unlawful attack endangering the legally protected right could
not have been averted otherwise than use of force the defender can
exercise his right of legitimate defense.

Thus, the defender should first exhaust, if there is another available

means than use of force to avert the attack. Here, the question that
comes to one‟s mind is what this “otherwise means” include. For
example, Ato Belay is about to strike Ato Kebede with knife. Assume the

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latter could run away an escape the attack. So, should Ato Kebede run
away or should he defend himself standing on his ground?

In another case Ato Gemechu happens to see Ato Gashaw trying to take
away a heavy wood from his garden. Assume that the former resides next
to a police station and he could get the assistance of he police before the
wood is taken away. Should Ato Gemechu call the police or use force to
defend his property?

In solving these two cases the issue that needs to be addressed is

whether what other alternatives shall be regarded as “other wise means”
in the context of Article 78 of FDRE Criminal Code? In the first case the
other alternative available for the defender to avert the attack is retreat
(flight). However, retreat or flight in effect implies sacrificing or
abandoning one‟s interest. Thus, the scope of „‟otherwise means” should
not be extended to include retreat or flight. Accordingly, Ato Kebede
should not be required to run away while his legally protected (i.e his
bodily integrity or life) is endangered by unlawful attack.

On the other hand in the second case the other alternative available for
Ato Gemechu is calling the police. By calling the police he is not
sacrificing his right rather entrusts its protection (defense) to police. The
issue, hence, is not whether he should sacrifice his right rather than
defend it, but whether he should directly protect it by his own act rather
than protect it indirectly by calling public authorities. Thus, “otherwise
means” should be construed to include such an alternative. Accordingly,
Ato Gemechu is not justified in using force while he could call the police
and obtain the assistance of the latter to protect his property.

V. Proportionality

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What do you understand by proportionality?

When all of the above described conditions are satisfied, a person can
exercise his right of legitimate defense in repulsing unlawful attack.
Nevertheless, act of legitimate defense is not to be exercised without
limit. An act of legitimate defense is justified only when it is
“proportionate to needs of the case”. In determining the proportionality of
an act of legitimate defense regard shall be had to the danger and the
gravity of he attack and the seriousness of the harm to be caused to the
legally protected right.

Thus, in determining the proportionality of an act of legitimate defense a

comparison shall be made between the harm that defender could
reasonably fear to occur and the harm caused by the act of defense. In
this regard, one should note that where the attack endangers more than
one interest, the comparison shall be made taken in to account the more
valuable interest. For example if Ato Challa warns Ato Kedir saying “your
money or your life” and if the former kills the later, his act shall be
regarded as act of legitimate defense as per Article 78 of FDRE Criminal
Code. This is because he can‟t defend his property with out putting his
life at stake.

Furthermore, the proportionality condition is to be considered taking into

account the means employed in the attack and defense, and the
respective sex, age, strength or state of health of he aggressor and the
defender. Thus, the court should take all these factors in to
consideration in determining the proportionality of an act of legitimate
defense. Accordingly, an act of legitimate defense is regarded as

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proportional one in one case may be found to be dispropotional in
another case. Thus, the proportionality of legitimate defense is to be
determined on case-by-case basis.

By way of conclusion, an act of legitimate defense done in compliance

with requirements discussed hereinabove will relieve the actor from
criminal liability despite the fat that his act could have been punishable
had it been done in other circumstance. Thus, a person who is accused
of committing a certain crime may plead legitimate defense to defend the
charge instituted against him. And, to successfully invoke such an
affirmative defense, the accused person is expected to prove to the
satisfaction of the court the fulfillment of the above requirements.

2.3.1.2 Excess in Legitimate Defense

A person who acted in legitimate defense is to be exempted from criminal

liability where his act does not exceed the limit set by the law.
Nevertheless, such a person will remain criminally liable when he
exceeds the limits of legitimate defense. In this regard Article 79 of the
FDRE CC has provided the following.

Article 79
1. When a person in repelling an unlawful attack or an
imminent and unlawful attack exceeded the limits of
legitimate defense by using disproportionate means or
going beyond the acts necessary for averting the
danger, the court shall, without restriction, reduce the
penalty (Art. 180).
2. The court may impose no punishment when the excess
committed was due to excusable fear, surprise or
excitement caused by the attack.

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What do you understand from the reading of Article

79(1)? Can you identify those situations which constitute
excess in legitimate defense?

As it can be understood from the reading the above quoted provision,

firstly, the defender shall be regarded to have acted in excess of the limits
of legitimate defense when he uses disproportionate means to avert the
attack. A defender is said to have used disproportionate means when he
causes more harm than that which he had reasons to fear that the
aggressor would cause.

Indeed, an act of legitimate defense is not justified when it is manifestly

excessive. Thus, if Ato Shumie shoots Ato Belay in order to prevent the
latter from taking away his handkerchief, his act of defense is manifestly
disproportionate. This is because even if he has the right to defend his
property, he is not entitled to defend it by taking such extremely harsh
measure.

Whether an act of legitimate defense is disproportionate or not is to be

determined, as it has been discussed earlier on, taking in to account the
particular circumstances of the case. Hence, the disproportionality of an
act of legitimate defense may differ from case to case and it is to be
decided on case-by-case basis.

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Secondly, a defender shall be deemed to have acted in excess of
legitimate defense when he goes beyond what is necessary to repel the
unlawful attack. This occurs when he continues to cause harm even if
this is not necessary for the attack has already been repelled in an
adequate manner. In such a case, strictly speaking, the defender is no
longer defending himself as he is no longer in danger since the attack is
adequately averted.

For instance, if Ato Goshu strikes Ato Achanie after repelling the latter‟s
attack by knocking him down, the beating is in excess of the limit of
legitimate defense.

Needless to mention, an act done in excess of legitimate defense, be it by

using disproportionate means or by causing harm beyond what is
necessary to avert the danger, is unlawful. Thus, the defender who acts
exceeding the limit of legitimate defense is liable to punishment.

Nevertheless, since he was in state of legitimate defense, the court shall

reduce the punishment, which will be imposed on such a person,
without restriction in accordance with Article 180 of the FDRE Criminal
Code.

On the other hand, a defender who exceeds, the limits of legitimate

defense may be exempted from punishment though he is found to be
guilty. The court is empowered under Article 79(2) of FDRE Criminal
Code to impose no punishment when it is satisfied that the defender
exceeds the limit of legitimate defense owing to excusable fear, surprise
or excitement caused by the unlawful attack.

In determining the existence of excusable fear, surprise or excitement,

the court should not only consider the particular characteristics of the

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defender but also all the attending circumstances of the case. Thus, the
fact that the defender has a particular fearful temperament does not
suffice to create a condition of excusable fear, nor is he in a state of
excusable excitement when, after repelling the attack, he strikes the
aggressor out of cruelty or sadism.

2.3.2 Defense of Necessity

What do you understand by defense of necessity?

Generally speaking defense of necessity presupposes the choice of evils.

This defense justifies choosing to do lesser evil in order to avoid greater
evil. The choice of the lesser evil must be both imminent and necessary.
Those who choose to do the lesser evil must reasonably believe their only
choice is to cause the lesser evil in order to avoid the imminent danger of
the greater evil.

To put it differently, defense of necessity justifies an act performed in a

situation so critical that the doing of harm is the only alternative to the
suffering of harm. The actor‟s rights or those of another person are in
imminent and serious danger and a choice must be made between
safeguarding them and sacrificing them. Choosing either suffering of
harm or causing harm indicates the conflict between interests which all
legitimate and the manner in which the conflict is solved implies the
triumph of neither right nor wrong.

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The actor in state of necessity is justified in causing lesser harm than
suffering greater harm just because of social interest. Concerning the
defense of necessity, the FDRE Criminal Code has laid down the
following rule under Article 75 defining the condition and the scope of
application of this defense.
Article 75
An act of which is performed to protect from an imminent
and serious danger a legal right belonging to the person
who performed the act or a third party is not liable to
punishment if the danger could not have been otherwise
averted.

No exemption shall apply in the case of a similar act

done by a person having a special professional duty to
protect life or health; however, the court may reduce the
penalty without restriction (Art. 180)

From the reading of he first alienea of Article 75, we can identify two
conditions that should be satisfied in order to avail one self of defense of
necessity. The first condition is that there must truly exist a state of
necessity. That is to say there should be a situation in which a choice
has to be made between conflicting legitimate interests. This happens
when the rights of the actor or another person are in serious and
imminent danger.

The second condition is that the conflict between these legitimate

interests may not be resolved by any other means that causing harm.
Thus, the actor is justified only when his at is the sole way to avoid an
imminent and serious danger. Thirdly, the harm to be hone must not be
more than the actor or another person would have suffered but for the
doing of this act.

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Let‟s see these three requirements of defense of necessity as follows.

2.3.2.1 Requirements of defense of necessity

i. True state of necessity

What do think by true the term true state of necessity?

There is no state of necessity unless the rights of he actor or another

person is in an imminent and serious danger. As it is the case with
legitimate defense, the danger must be imminent. If the actor causes
harm when his rights or those of another person are not yet or no longer
in jeopardy, he is not in state of necessity. The need to make a choice
between suffering harm and causing harm must be actual, pressing and
urgent.

From this it follows that danger which is already over is not to be

considered, nor is a future danger which is not about to materialize.
Thus, if Ato Kedir and Ato Assefa, after a shipwreck, find themselves
clinging to a piece of wood which is not large enough to hold two of them,
Ato Kedir does a necessary act if he pushes Ato Assefa off the plank.
Pretty clear in this case each of them is in state of necessity and Ato
Kedir is justified in getting rid of Ato Assefa from the plank.

On the other hand, if Ato Kedir and Ato Assefa are in a life-boat with
enough food for three days and Ato Kedir throws Ato Assefa over board
so as to have enough food for himself for six days his act is not justifiable

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since danger Ato Kedir wants to avert is not just not imminent but also
might not even occur at all.

The fact that the danger is imminent is not sufficient establish state of
necessity. Such an imminent danger must be serious. Of course, Article
75 does not tell us what constitutes serious danger and practically, it is
hardly possible to define a serious danger with any degree of precision.
Nevertheless it is reasonable to hold that a serious danger should be
taken to mean that the interest to be safeguarded by causing harm shall
be more valuable than the interest to be sacrificed.

For instance, a person whose hat has been blown away by the wind in
the middle of a lake took away another person‟s boat to recover his hat.
Here it is not right to hold that there is a serious danger because the loss
of the hat and the trespass of upon another person‟s boat is
incomparable.

The other point which is worth considering in relation to requirement of

true state of necessity is what standard shall be employed in determining
whether the doer is in a situation involving serious and imminent
danger. What standard, i.e., objective or subjective, do you think is
appropriate to determine this issue?

ii. Last resort

A person who is in situation involving serious and imminent danger is

justified in causing harm only where the danger can‟t be averted by any

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other means. In other words, the defense of necessity is not available
unless causing harm to another person‟s interest is the only alternative
available to avoid the danger.
Thus, this act of necessity performed in violation of the criminal law
must have been done as a last resort to come out of danger. This implies
that the actor is justified in resolving the conflict facing him by
committing a crime only when the commission of a crime is truly
necessary. There must not be a possibility of resolving this conflict by
acting in accordance with the law.

Unlike a person acting in legitimate defense, a person who is in state of

necessity does not have the right to cause harm; thus he is not justified
unless the doing of harm is absolutely necessary in the circumstances. If
he can protect his interests or those of another person with out breaking
the law or can reasonably be expected not to protect them, he may not
avail himself defense of necessity as per Article 75 of the FDRE Criminal
Code.

iii. Proportionality

In fact the requirement of proportionality is not mentioned under Article

75 of the FDRE Criminal Code; but the close reading of Article 76,
specifically, the wording “if the abandonment of threatened right could
reasonably have been required” reveals that proportionality is also one of
the conditions that should be complied with in order to successfully
invoke defense of necessity.

The proportionality in the context of defense of necessity implies that a

person in a serious and imminent danger may not avoid this danger at
any cost. It is only when the threatened right is at least as important as

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the right infringed upon that doer can avail himself of defense of
necessity.

To put it differently, when causing harm is the only way to avert danger,
the doer is justified only if he does not cause more harm than he would
have suffered had he refrained from acting. If the case is otherwise, the
actor may not be justified since, in such circumstance he is reasonably
expected to abandon his right. Protecting his right by causing more harm
than he would have suffered will contradict with the very rationale of
defense of necessity, i.e., choice of the lesser evil.

Thus, the harm to be caused by the doer should be proportional to the

harm that he would have suffered had it not been for his act. Here, the
issue that needs to be addressed is how will the proportionality of an act
of necessity to be determined. In estimating the respective value of the
interests in conflict the court should not rely only in objective standards
since there may be discrepancy between the objective values in the eyes
of the holder. Thus, regard shall be had, in comparing the interests at
stake, both to objective and subjective standards.

For example, Ato Kemal does an act which is both necessary and
proportionate if he injures or kills someone in order to get of a theater
house in which a fire breaks out. These condition, however, are not
fulfilled if, in the same circumstance he injures or kills some one while
trying to recover his cigarette-case. As Graven pointed out, “whether one
thinks that such a person should have abandoned his cigarette case or
that, even though he could not reasonably be expected to abandon it
because it is of considerable material or sentimental value, he did not
protect it by adequate means, the fact remains that a cigarette-case,
however valuable, is not worth the life of a human being, and this is

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sufficient to regard his act as disproportionate so that he can‟t avail
himself of defense of necessity.

Therefore, if the above mentioned requirements, are fulfilled, a person

who commit an act, which would otherwise be punishable, to avert an
imminent and serious danger against his right or another person‟s right
is justified and not punishable. However, this does not hold good when
the doer is a person having a special professional duty to protect life or
health.

As it has been pointed out in second alienea of Article 75 of the FDRE

Criminal Code, persons who have a special professional duty to protect
life or health may not avail themselves of the defense of necessity though
they have acted in compliance with the conditions provided by the law.
As a result, they may not exempt from punishment. Nevertheless, courts
are empowered to mitigate the punishment that will be imposed on such
persons without restriction.

For instance, a fireman on duty in the theater-house, injures or kills

some one in an effort to get out, as his professional duty requires him to
protect other‟s life, his act may not be justified under Article 75 of the
FDRE Criminal Code. Nevertheless, he may be subjected to a freely
mitigated punishment.

2.3.2.2 Excess of Necessity

When do you say there is excess of necessity?

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As it has been discussed hereinabove, a person who performs an act in
state of necessity may not liable to punishment where he does the act in
compliance with the requirements laid down under Article 75 of the
FDRE Criminal Code. Nevertheless, Article 76 of the FDRE Criminal Code
tells us that under certain circumstances an act done in state of
necessity may entail criminal liability. Here goes Article 76.

If the abandonment of the threatened right could have

been required in circumstances of the case or if the
encroachment up on third party’s rights exceeded
what was necessary or if the doer, by his own fault,
placed himself in the situations involving danger or
necessity in which he found himself, the court may,
without restriction, reduce the penalty (Art. 180).

From the reading of the above quoted provision we can identify three
scenarios wherein a person who does a criminal act in a state of
necessity may not be justified under Article 75 of the FDRE Criminal
Code, i.e., defense of necessity.

Firstly, a person may not be justified in causing harm to another

person‟s interest where abandonment of the threatened right is
reasonably required in the circumstances of a particular case. This may
happen when the value of the threatened right is less than the value of
the interest that may be harmed by the act of the doer. In such a case
the doer makes the wrong choice and is not justified when causes harm
to protect a legal right which a reasonable man would have abandoned.

Whether the doer should have abandoned his right or not is to be

determined taking into account the attending circumstances of the case.
Fore instance, if Ato Chanie injures or kills another person while trying

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to recover his cigarette-case which his lost in a theater house in which a
fire breaks out, he is not justified on the ground of defense of necessity
since he is reasonably expected in the circumstance to abandoned his
cigarette instead of causing an injury or death to another person.

Secondary, the defense of necessity is not available where the actor

exceeds what is necessary to avoid an imminent and serious danger. This
may occur where the doer causes harm more serious than the harm the
commission of which would suffice to avert the danger. Thus, if a fire
starts in Ato Gashaw‟s house, he is justified in breaking in to his
neighbor‟s house in search of extinguisher but not in killing his neighbor
on the latter attempts to resist the trespass.

Thirdly, a person may not avail defense of necessity in order to be

exempted from criminal punishment where by his own fault he finds
himself in a state of necessity. Thus, if Ato Kebede sets fire on his car
with a view to defrauding his insurer but the fire spreads to his house
and he can not put it out except by breaking into Ato Chala‟s house and
taking the latter‟s extinguisher, Ato Kebede is not justified by the defense
of necessity even though the danger could not be otherwise averted and
the act is proportionate.

Therefore, if the act of the doer falls under either of the above stated
cases, the doer shall be criminally liable. Nevertheless courts are entitled
to reduce the punishment that will be imposed on such a person with
out restriction as per Article 180 of the FDRE Criminal Code.

2.3.3 Military state of Necessity

What do you think by military sate of necessity?

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The defense of military state of necessity refers to an act done by a

military officer of a higher rank to secure military obedience in a time of
military crises. The FDRE Criminal Code has described an act of military
state of necessity in the following manner under Article 77(1)

An act done by an officer of a superior rank in active service

to maintain discipline or secure the requisite obedience in the
case of a military danger and in particular in the case of
mutiny or in the face of the enemy shall not be punishable if
the acts was the only means, in the circumstances, of
obtaining obedience.

What are the requirements for exercising an act of military necessity?

As per the above quoted provision, an act, which would otherwise be

criminal, done by a superior military officer is justifiable when the
following requirements are met.

 Firstly, there should be a situation where in a military discipline

or obedience in endangered. This may happen in time of mutiny or
in a war like situation in the face of enemy.

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 Secondly, the doing of the act should be the only way to secure
obedience or discipline.
 Thirdly, such a high ranging officer should be in active service.

There fore, if the all of the above requirements are satisfied, a military
officer of a superior rank may not be punished for doing an act in state of
military necessity with a view to secure obedience.

However, a military officer of a higher rank is not allowed according to

Article 77(2) of FDRE Criminal Code to perform an act which exceeds
what was required in the circumstance. If he does an act that goes
beyond what is necessary to secure obedience or to maintain discipline,
he will be liable to punishment. Nevertheless, courts are instructed by
the law to mitigate the punishment that will be imposed on such a
person.

On the other hand, no punishment may be imposed on such a person

where the situation in which be has acted is of a particularly impelling
nature.

Finally, defense of military necessity is criticized by legal scholars for

being superfluous. Their criticism lies on the fact that, an officer of a
superior rank can invoke the defense of lawful act under Article 68 in
order to justify his act, which would otherwise be punishable, when he
has done in view of securing obedience or maintaining discipline in
situation of military danger; since he is legally authorized to act.

Do you think the criticism is well founded? If so, do you recommend

Article 77 of the FDRE Criminal Code should be deleted?

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2.3.4 Defense of Consent of Victim

Have you ever thought that the consent of the victim an serve as a
defense to a criminal liability?

The defense of consent of the victim is based on the value of individual

autonomy and one of its offshoots that individuals should be able to
waive their rights. In other words, autonomous individuals have the right
to suffer. In recognition of this individual autonomy, the law should
expressly provide for the circumstances in which consent of the victim
can be raised as a defense to a criminal liability.

The defense of consent of the victim is incorporated in many countries

criminal law. Nevertheless, the circumstance in which this defense will
be available varies from country to country depending on the theory
taken by the respective country criminal law in dealing with this defense.
There are three theories by which the defense of consent of the victim
may be dictated.

These are firstly, the “relatively protected rights” theory according to this
theory, consent of the victim can be invoked as a defense only where the
act committed by the doer causes harm to legally protected interests the
violation of which punishable upon the compliant of the victim in
contrast to “absolutely protected rights” the infringements up on which
are punishable by accusation, i.e. without compliant.

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This theory doesn‟t require to ascertain the nature of the legally

protected interest harmed by the doer‟s act, what matters is whether the
crime committed by the doer is punishable up on compliant or by
accusation. Thus, if the doer‟s act is punishable without a formal
compliant being instituted by the victim or his legal representative,
consent of the victim may not be invoked as a defense. If it is otherwise,
the doer may avail himself of the defense of consent of the victim.

The second theory is “crime of a predominantly, private nature”. This

provides that the consent of the injured party can serve as a defense,
where the legally protected interest which is infringed by the act of the
doer is most importantly of a private nature.

This theory, unlike “relatively, protected rights” theory, makes it

necessary to ascertain the nature of the legally protected interest affected
by the doer‟s act in order to determine whether consent of the victim can
be raised as defense or not. Therefore, the question as to when consent
of the victim justifies the actor should be decided taking into account the
nature of the legally protected interests infringed by his act rather than
based the fact that the crime is punishable with or without compliant.

The third theory is often referred as “purpose of harm” theory. This

theory bases itself on the reason behind the commission of a criminal act
instead of the nature of the right affected by the doer‟s act. According to
this theory, consent may justify the doer where the purpose of the harm
which he causes to the victim is not morally reprehensible. In other
words, a person who commits an act, which would otherwise be a crime,
may not be liable to punishment when the reason /motive/ for causing
harm to the victim by his act is morally irreproachable. For instance, if
Ato Kebede asks Ato Shumie to remove a thorn from his foot and Ato

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shumie subsequently makes an incision in Ato Kebede‟s foot with a knife,
taking into account the purpose of the harm Ato Shumie shall not be
criminally held liable to punishment for causing a grave bodily injury to
Ato Kebede.

Coming to the Ethiopian law, unlike tie 1957 penal code, the FDRE
Criminal Code has recognized the consent of the victim as an affirmative
defense to a criminal liability. In this regard Article 70 of the FDRE
Criminal Code provides the following.

(1) A crime is not liable to punishment where it is punishable

upon compliant and where it is done with the consent of
the victim or his legal representative.

(2) Without prejudice to the provision of Article 573 of this

Code, when any person, having entered into a contract of
his own free will without any commercial purposes,
donates while alive or causes to be donated after his
death, his body, a part of his body or one of his organs to
another person for personal use or to a juridical person for
appropriate and necessary scientific research or
experiment, the recipient shall not be criminally liable.

Which theory do you think is adopted by the FDRE Criminal Code?

From the reading of sub-article 1 of Article 70, one may tend to conclude
that the FDRE Criminal Code has adopted the “the relatively protected

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right” theory in dealing with consent of the victim as a defense to
criminal liability. This is because of the fact that defense of consent of
the victim can be raised where the crime committed by the doer is
punishable upon compliant; in which case, according to Article 212 of
the FDRE Criminal Code a criminal proceeding may not be instituted
against the doer unless a formal compliant is lodged by the victim
himself or his legal representative. Thus, as per Article 70(1), one may
raise the consent of the victim as a defense where the act he has
committed is punishable upon compliant.

On the other hand, the reading of sub-Article 2 of Article 70, tend to

imply that the FDRE Criminal Code has alsoo considered “the purpose of
harm” theory. As it has been provided under Article 573 (2) taking away
an organ or a part of the body of another with latter‟s consent with a view
to obtain money is punishable. Here the consent of the victim may not be
raised as a defense because of the commercial nature of the purpose for
which the harm is caused to the victim.

However, consent of the victim can be invoked, as per Article 70(2),

where an organ or a part of body of the victim is taken away with his own
free will with out any commercial purposes. Thus, whether the consent
can serve as a defense to a criminal liability, in such cases, is to be
determined having regard to the purpose of the harm.

Accordingly a person, be it a natural or juridical person, who has taken

away the organ or a part of the body of another person with the latter
due consent without any commercial purpose for personal use or for a
appropriate and necessary scientific research or experiment, consent of
the victim to get relieved from a criminal liability.

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Finally one should take note of the fact that the defense of consent of the
victim is quite different from cases wherein the absence of consent is
requisite element of the specific crime under consideration. For example,
absence as consent is a requisite element of crime of theft and rape.
Thus, the presence of consent negates the possibility of the crime being
committed. No crime of theft is committed where the owner permits the
doer to take away his book. No crime of rape is committed if the woman
agrees to have a sexual intercourse. In such cases, since a crime has not
been committed, the issue of affirmative defense in general and defense
of the victim will not arise.

Similarly, defense of consent of the victim is also different from cases

which imply consent for the commission of a crime such as duel. In such
cases, consent is not a defense rather an ingredient element of the crime.
Thus, consent of the victim may not be raised as a defense to a criminal
liability.

2.4 Excusable Acts

It has been pointed out hereinbefore that a person may in his affirmative
defense pleads that he has committed the act and his act is punishable
when it is viewed objectively; but denies that he is liable to punishment
since he is not responsible for his act at the time of its commission. This
defense is available to the doer where the acts that he has done are
excusable. Generally speaking an act may be regarded as excusable
when it is committed under irresistible coercion, superior order, or in
state of insanity or of intoxication.

What do you think are excusable acts under FDRE Criminal Code?

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When we come to the Ethiopian law, as it has been indicated earlier, the
FDRE Criminal Code does not expressly state which acts are excusable.
Nevertheless the close reading of Articles 72, 74, and 80 reveals that an
act done under absolute coercion, perhaps under superior order or owing
to mistake of fact respectively can be regarded as excusable acts. Let‟s
see each of excusable acts as follows.

2.4.1 Absolute Coercion

What do you think by absolute coercion?

As you could remember, in relation to participation in a crime in a

principal capacity, it has been said that a person can commit a crime
through a human instrument by compelling another person to perform
an act or refrain from acting. The defense of absolute coercion tries to see
the same point but from different angle; from the perspective of the
person who is compelled to commit the crime. The question that is to be
addressed where is whether a person who is compelled by the indirect
criminal to commit a crime is liable to punishment.

Do you think that a person who is coerced to commit a crime shall be

punished?

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Article 71 of the FDRE Criminal Code has an answer for the above
question.

Whoever, without causing greater harm than he could

have suffered, commits a crime under an absolute
coercion which could not possibly resist, is not liable to
punishment.

Accordingly, a person who is compelled by another person to commit a

crime may not be punished when the coercion exercised on him is
absolute that he could not possibly resist and the harm that he causes
by doing the act is not greater that he could have suffered had he not
submitted to the coercion. From this, we can infer two requirements that
should be satisfied in order for a person to avail himself of defense of
absolute coercion. These are:

i. the actor must be under an absolute irresistible coercion

ii. the harm to be caused by doing the act must not be greater
that would have been suffered by the actor had he not
submitted to coercion.

i) Unlike the 1957 Penal Code, the FDRE Criminal Code Article 71
generally refers to absolute coercion with out making any distinction
between physical and moral coercion. Physical coercion basically
implies and act violence which renders a person physically incapable
of acting otherwise than he does. For example, if Ato Gashaw forcibly
makes Ato Kebede, who is about to shoot a gazelle, aims and
discharge his gun at Ato Solomon, he is not liable to crime of
homicide.

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On the other hand moral coercion refers to an act which does not
render the agent‟s movement involuntary but deprives him of his
freedom of choice. For instance, if Ato Belay, at gun point, an order
Ato Chanie to kill Ato Kumsa, Ato Chanie is not liable to crime of
homicide.

Nevertheless, the distinction between physical and moral coercively is

no more relevant for purpose of defense of absolute coercion.

Obviously, the person who is compelled to act in violation of the law

knows that he does wrong but the coercion deprives him of his
freedom of choice to act otherwise than he does. Thus, the coercion
must be irresistible one depriving his freedom of choice in absolute
manner.

The point that should be raised here is how the existence of an

absolute coercion is to be determined. Concerning this issue, second
alienea of Article 71 provides for the circumstances that should be
considered by the court in determining whether the doer has acted
under absolute coercion or not. These include the degree and nature
of the coercion, the personal circumstances and the relationship of
strength, age or dependency existing between the person on whom
coercion is exercised and the person who exercised it. Therefore,
having considered all these circumstances, if the court finds that the
doer could not possibly resist the coercion, such coercion shall be
regarded as an absolute coercion.

Here one may not pass without noting that what constitutes an
absolute coercion may differ from case to case. An act of coercion
which is regarded as an absolute one in a certain case may not be

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regarded as such in another case depending on the attending
circumstance.

ii) The mere fact that the doer is under absolute coercion is not sufficient
for such a person to avail himself of the defense of absolute coercion.
There is an additional requirement. That is the harm the doer is
compelled to cause must not be greater than what he would have
suffered had he not submitted to the coercion. This was not in fact a
requirement under the 1957 Penal Code.

Thus, a person who is under absolute coercion compelled to perform

an act in violation of a criminal law is required to identify whether his
act will cause a greater harm or not. If the harm that he will cause by
doing the act is greater than what he would have suffered, he should
refrain from doing the act. He may not avail himself of the defense of
absolute coercion if he does so. For instance, if Ato Abebe kills Ato
Gelaw because he has reasons to believe that Ato Kuma will otherwise
fire him from his job, Ato Abebe may not avail himself of the defense
of absolute coercion

On the other hand, where the harm he causes by doing the act is
lesser or equal to the harm he would have suffered, he shall be
excused and may not be punished for the act he has done under
absolute coercion. For example, if Ato Kuma orders Ato Abebe at gun
point to kill Ato Sisay, Ato Abebe will be excused and may not be
punished for committing crime of homicide.

Therefore, a person who has committed a criminal act under an absolute

coercion will be excused from a criminal liability where his act does not
cause a greater harm than what he would have suffered had he acted
otherwise than he did.

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2.4.2 Resistible Coercion

What do you think by resistible coercion in contrast to irresistible

coercion?

Short of an absolute coercion, a person may be compelled to commit a

crime. In such a case the doer a crime may not be excused from criminal
liability because such a person is expected in the circumstance to resist
the coercion or avoid committing the crime. This brings to us the notion
of resistible coercion.

Resistible coercion refers to a coercion of such a degree that the coerced

person is reasonably expected to resist it or avoid committing the act.
Thus, if the coercion, be it of a physical or a moral nature, is resistible
one, the person who is coerced to commit the crime will be punished for
his act. In this regard Article 72 of the FDRE Criminal Code clearly states
that:

If the coercion was not irresistible and the person coerced

was in a position to resist it or avoid committing the act,
the court shall pass sentence on the criminal.

The fact that a person has committed under coercion which is not
irresistible may not serve as a defense to a criminal liability. Thus, a
person who is compelled to perform an act in violation of a criminal law
may not avail himself of the fact that he is under coercion where the
coercion is not irresistible one.

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For instance, if Ato Kebie and Ato Shumie, in an attempt to escape from
prison, tie up sergeant Kuma, a prison warder, who is able to untie
himself and to ring an alarm bell while Ato Kebie and Shumie are in act
of escaping but who does not do so lest they cause him further harm,
Sirgent Kuma will be liable to punishment prescribed under Article 420
of the FDRE Criminal Code. This is because, though he has been
physically coerced, a man in his position and with his responsibilities
could have reasonably, could have been expected to raise an alarm after
he had regained his freedom of movement.

Similarly, if Ato Ketema at gun point order Ato Biratu to accompany him
to Ato Dula‟s house for purpose of forcing open the door of Ato Dula‟s
safe and on the way to Ato Dula‟s house Ato Ketema drops his gun and
starts looking for it in the dark, Ato Biratu is reasonably expected to flee
rather to wait patiently until Ato Ketema recovers his gun. If he does not
run away but accompanies Ato Ketema he may not avail himself of the
defense of absolute coercion because he have had the opportunity to flee
and thus to avoid committing the crime.

At this juncture, it should be noted that Article 72 has failed to provide a

clear standard by which the question whether an act of coercion is
resistible or irresistible shall be determined. It doesn‟t tell us what
constitutes a resistible coercion.

However, this legal lacuna can be filled by having regard to second

alienea of Article 7 of the FDRE Criminal Code which provides a guideline
for determining the existence of absolute coercion. Thus, the court shall
take into account those circumstances described under Article 71 second
alienea in resolving the issue whether or not the doer was in a position to
resist the coercion exercised on him or avoid committing the act.

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2.4.3 Defense of Superior Order

What do understand by the term superior order?

The issue of superior order comes into picture when a person violates a
criminal law provision on the order of someone to whom he owes
obedience and it involves two basic questions. One is whether the person
who has given the order is criminally liable for the crime. The other,
which is much more contentious, is whether the person who carries out
the order is accountable for his criminal act. Pretty much, the issue here
is basically one of liability, not participation.

The issue of superior order is only to be considered with respect to orders

given by administrative or military superiors not by any other superior.
To answer the question whether a superior order can serve as a defense
for a criminal liability, let‟s first see the responsibility of a superior and
the subordinate where the former orders the latter to act contrary to the
law.

i. Responsibility of the superior

In order for the state to exercise its privileges, carries out its duties and
transacts its business via its agents it is a necessity to have a
hierarchical set up and a chain of command within government
departments and agencies. Every agent, though it may vary depending
on his level, has the right and the duty to make and/or execute

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decisions, and this is the salient feature of administrative agencies and
armed forces.

Depending on the particular nature of the administration structure,

every superior has hierarchical powers over his subordinates, which
entitles him to give them general or individual orders. Corollary to his
right to give orders, the superior is also encumbered with the duty to
take the responsibility for what is done by the subordinate in accordance
with his order. Therefore, a military or administrative superior who
orders his subordinate to do something illegal may not escape a
criminal liability on the sole ground that he did not materially and
personally take part in the doing of the act that he ordered to be done.
Generally speaking, the right to give orders is not unconditioned. Rather
it is subject to two conditions. In the first place orders may be give only
with respect to service matters, i.e., matters related to the business
undertaken by the organization to which the superior and the
subordinate belong. Secondly, only such acts which are necessary for the
proper functioning of the business may be ordered.

If a superior gives an order knowing that an act ordered to be done by

the subordinate has nothing to do with the service mater of the business
of the organization or is not necessary for its proper functioning, he will
be criminally liable. Regarding the responsibility of a superior who gives
an order to his subordinate to do something illegal, Article 73 of the
FDRE Criminal Code states the following.

In the case of an act committed by a subordinate on

the express order of an administrative or military
superior who was competent so to do, the person who
gave the order is responsible for the crime committed
and is liable to punishment, where the subordinates

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act constitutes a crime and did not exceed the order
given (Art. 58(3)

According to this provision, firstly a person who gives the order should
be an administrative or military superior to whom the subordinate owes
obedience. It is not required that the superior should be of high ranking
official or military commander. It suffices that he should be of higher
rank than the person who executes the order.

Secondly, the superior should have the competence or mandate to give

orders. Thirdly, the order should be given expressly. Thus, if the order
given in such a manner is executed by the subordinate the superior
shall be liable to punishment where the former‟s act constitutes a
crime.

If should be noted that, however, the liability of the superior is limited

to what he expressly ordered. Should the subordinate exceeds the order
given by the superior, the latter may not be accountable for what doer
exceeds or departs in executing the order. For instance, a police officer
who orders a search to be conducted without warrant while search
warrant is necessary commits a crime in violation of article 422 of the
FDRE Criminal Code. But it is obvious that the constable who rapes
the woman whose house is being searched is alone liable to
punishment for crime of rape.

ii. Responsibility of the subordinate

Sometimes, a person, who is a subordinate to another person in a

chain of command, may commit a crime solely because he is ordered to
do so by is superior. In such cases, it is true that the superior who
orders the subordinate to commit the crime will be liable to

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punishment. Nevertheless, the mere fact the superior is held criminally
accountable doesn‟t necessarily relieve the subordinate from a criminal
liability for he carries out an illegal order with full knowledge and
intent.

However, there are cases the subordinate will be exempted from

criminal liability irrespective of the liability of the superior. Whether in
which cases he shall be relieved from criminal punishment vary from
jurisdiction to jurisdiction depending on how far the duty to carry out
an order is to be extended.

This is to be determined by taking into account the degree of obedience

expected from the subordinate. In this regard there are three systems
by which we can explain how far the duty to obey a superior goes. The
first system is commonly referred as blind or passive obedience.
According to this system the duty of the subordinate to obey the order
of the superior is absolute. The former is duty bound to carry out
whatever order he may receive from the latter. In this system respect
for an order is the same as respect for the law.

As Graven pointed out, in a blind obedience system “the subordinate

who carries out an unlawful order is justified by the fact that he is
legally bound to act because, so far as he is concerned, the order is
law.” Here the subordinate is regarded as a mere instrument of his
superior for he is not entitled to discuss, or request explanation for the
orders he receives. Therefore, such a person will not be liable,
according to the blind obedience system, to punishment when he
carries out unlawful orders given by his superior for “what is criminal is
not obedience, but disobedience”

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The intelligent bayonets or infantry is the other system by which the
extent of duty to obey to be determined. According to this system, the
subordinate is under obligation to carry out orders he knows to be
lawful. He has to ascertain the lawfulness of the orders before executing
them. If a subordinate knowingly carries out an unlawful order, he will
be answerable for his act.

Thus, the duty of obedience is dependent upon lawfulness of the order.

The subordinate is not duty bound to obey when carrying out of the
order is contrary to the law. Therefore, according to this system superior
order can not serve as a defense for the subordinate is only bound to
carry out orders which are ascertained to be lawful.

The third system is the middle-of-the-road position of the above two

systems which tries reconcile the legal and factual requirements by
combining obedience and independence. According to this system the
subordinate is neither required to obey orders blindly nor to ascertain
the legality of the order. However he is bound to obey orders of his
superior in as much as they are not manifestly unlawful in form and
content.

Thus, the subordinate will liable to punishment, when he knowingly

executes an order which is manifestly unlawful. From this if follows that
superior order can serve as a defense to a criminal liability for the
subordinate where the order is the executed by him is not manifestly
illegal.

Bearing in mind the above general consideration in mind, when we come

to the FDRE Criminal Code, Article 74(1) has the following to say in
relation to the responsibility of the subordinate.

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The subordinate shall be liable to punishment if he was
aware of the illegal nature of the order, in particular if he
knew that the order was given without authority, or knew
the criminal nature of the act ordered, such as in cases of
homicide, arson or any other grave crime against
persons, or national security or property, essential public
interests or international law.

From the reading of this provision one normally tends to think that the
FDRE Criminal Code has adopted the manifest is illegality system in
determining the responsibility of the subordinate who carries out
unlawful order. According to article 74(1) the subordinate will be liable to
punishment where he carries out a superior order knowing its illegal
nature. It is should also be noted that the subordinate is not required to
ascertain the lawfulness of each and every order he receives. However, he
is prohibited from carrying out an order which he knows to be flagrantly
contrary to the law at the pain of incurring liability to punishment.

When do you say an order is manifestly illegal?

Firstly, an order will be regarded illegal when it is given without

authority. The duty to obey order will not arise unless there exists an
administrative or military law superior-subordinate relationship between
the person giving the order the person receiving it. If the latter person is
not legally bound to obey the former, normally he shall not be regarded
as his subordinate even if he is of lower rank than the person giving the
order.

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Thus an order given, in the absence of superior-subordinate relationship
as envisaged under administrative or military law, shall be regarded to
have be given without authority similarly. Similarly, an order shall also
be considered to have been given without authority where the order does
not relate to the service matter of institution, department or agency to
which the order giver and the order receiver belong. If the order given
does not relate to the service matter of the organization, the superior
shall be deemed not to have the competence or the authority to give the
order.

Secondly, an order shall be considerers to be illegal where the act

ordered is of a criminal nature. For example, an order which requires the
commission of an act of homicide, arson or any other grave crime against
persons or national security or property, essential public interests or
international land is illegal.

Hence if a subordinate executes an order knowing that the order is given

without authority or the act order is of a criminal nature, he shall be
held liable for the crime his act may constitute.

A subordinate who executes an order is guilty of a crime when he knows

that obedience is criminal, i.e., when the circumstances are such as to
rebut the general presumption that the superior gives a lawful order
which the subordinate is legally bound to obey. This presumption is
rebutted when the order is obviously contrary to the law because, to the
subordinate‟s certain knowledge, it is ether given without authority or it
requires the doing of an act which is manifestly criminal; thus, obedience
is criminal when the order is obviously given without authority or the
order requires the doing of an act which is manifestly criminal.

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From what has been stated above, it follows that a subordinate should be
relieved from any criminal liability where he was not aware of the
illegality of the order. In such cases superior order will serve as a
complete defense to a criminal liability. Thus, a constable who, according
to the order given to him by his superiors, enforce a search warrant
issued by a social court is not liable to punishment if he does not know
that a social court judge is not authorized by law to issue such a warrant
and his superior does not allow him to know in any way that the search
is unlawful.

Apart from cases the subordinate is ignorant of the illegality of the order
in which superior order serves as a complete defense, a subordinate who
carries out an unlawful act may be subject to reduced punishment or
even exempted from punishment in some cases. Article 74(2) provides
that:

The court may, without restriction, reduce the penalty

when the person who performed the act ordered was
moved by sense of duty dictated by discipline or
obedience; in particular where the duty is of a
compelling nature the court shall reduce the penalty
without restriction (Art. 180)

The Court may impose no punishment where, having

regard to all the circumstances and in particular to
stringent exigencies of State of military discipline, the
person concerned could not discuss the order received
and act otherwise than he did

Therefore courts are empowered where the subordinate is moved by

sense of duty dictated by discipline or obedience or are required where

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the duty is compelling one, to reduce punishment without restriction. On
the other hand, if the subordinate acted in stringent exigencies of state
or military discipline or in situation he could not discuss the order given
to him by his superiors, the court can exempt him from punishment.

2.4.4 Mistake of Fact

What do you think by mistake of fact?

As a matter of rule mistake of the true facts of the situation may not
serve as an excuse to a criminal liability. Nevertheless, a person who
ignores or misapprehends all or part of the factual elements of the
situation in which he acts does an act in the belief that he actually does
a different act or an act which will bring about a different consequence.
Evidently a mistake of this kind affects the doer‟s guilt, as the awareness
part of intentional guilt is then vitiated by the mistake. Hence, a person
who commits a crime as a consequence of misappreciation of the true
facts of the situation must be tried as though the situation which he
believes to exist did actually exist. Regarding this point, article 80(1) of
the FORE CC states that:

Whoever commits a crime under an erroneous

appreciation of the true facts of the situation shall be
tried according to such appreciation.

Where there is no criminal intention the doer shall not

be punishable. Where he could have avoided the
mistake by taking such precautions as were

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commanded by his personal position and the
circumstances of the case (Art.59) he shall be
punishable for negligence incases where such
negligence is penalized by law

In the context of Article 80, the term fact refers to any event,
circumstance or quality of a material or personal nature the presence or
the absence of which has a bearing on the court‟s decision on guilt
and/or sentence. For instance a person may be mistaken arsenic for
sugar; be may believe that some one intends to kill him; he may
mistakenly believe his widower; or he may have sexual intercourse with a
woman whom he believes to be single. However, the term fact should not
be extensively construed to include a legal provision. A mistake as to the
existence or non-existence of a legal provision may not constitute a
mistake of fact.

In order to apply the provision of Article 80 of the FDRE Criminal Code,

the fact to which the doer is mistaken should be a fact which is a
material ingredient of a crime; a fact which did exist, would legitimate or
justify the act; or a fact which aggravate circumstance. To put if
differently, the fact erroneously appreciated must have a bearing upon
the guilty of the actor or the extent of punishment.

For instance, if Ato Chanie shoots something which he believes to be a

lion but actually is a human being. In such case Ato Chanie shall be
tried according to his appreciation of the fact. Hence, he will not be liable
to an intentional homicide. This is because he does not know that his
target is a human being and does not desire to will a human being.

As it has been pointed out under second alinea of Article 80 the FDRE
Criminal Code a person who erroneously appreciates the true fact of the

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situation and commits a criminal act shall be tried according to such
appreciation. And he may not be punished where he has no criminal
intention. A person may not deemed to have a criminal intention where
he misappreciates a fact which is a material ingredient of a crime since
the requirement of intentional guilt (knowledge and desire) will not be
satisfied. Therefore, a mistake of fact, arguably, can be considered as a
defense to a criminal liability for intentional crimes where the doer
erroneously appreciates the true state of a fact which a material
ingredient of a crime.

However, this is not to mean that mistake of fact relieves the doer from
any criminal liability. Rather it only relieves the actor from a criminal
liability which would have been incurred had he not been mistaken.

When a mistake relating to an ingredient of a certain crime is such that

intentional guilt must be ruled out, the doer nevertheless be punished for
having committed this crime negligently provided he could have avoided
the mistake by taking precaution which could have been reasonably
required from him in the circumstances. This is to say that he may not
be liable to punishment only where the mistake is unavoidable.

Hence, a doctor, who causes the death of a patient by giving him

mistakenly a poison instead of a drug or injecting him a drug without
ascertaining whether he is allergic to that drug, is not guilty of
intentional homicide. However, a mistake of this kind is avoidable by
exercising due care. Therefore, he will be liable to negligent homicide
unless he can prove that the mistake was unavoidable in the
circumstance.

Similarly, a mistake of fact may not relieve the doer from a criminal
liability where mistake as to the fact constitutes a specified crime. As per

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article 80 (2), though a mistake of fact excludes intentional guilt with
respect to a certain crime, it may not be true in relation to a different
crime. This may happen in cases of concurrent crimes. For example, if
Ato Belay, in sight of the public, has a sexual intercourse with a girl
about whose age he is mistaken, he is punishable for a crime of public
indecency intentionally committed even though he is not punishable for
sexual outrage.

Finally, Article 80 (3) of the FDRE Criminal Code states that a mistake as
to the identity of the victim or the object of the crime may not relieve the
doer from a criminal liability. For instance, if Ato Chanie waits near Ato
Dubie‟s house with the intention of shooting him when he comes home
and, seeing someone approaching the house, he shoots him in the belief
that it is Ato Dubie while it is actually Ato Shumie, Ato Chanie will be
liable for intentional homicide for the identity of a human being one kills
is not an ingredient element of the crime of homicide.

2.4.5 Mistake of Law or Ignorance of Law

As a matter of rule mistake or ignorance of law is not an excuse to a

criminal liability. The mere fact that the doer is unaware of the unlawful
nature of the act or misconstrues a given legal provision may not relieve
him from punishment. This is because of the presumption that the doer
knows the law regardless of whether or not he actually knows it. For
purpose of criminal liability, therefore, if is irrelevant whether the doer is
aware of the unlawfulness of his act; he is at fault by the sole fact that
erroneously believes that his conduct is in compliance with the law and
he shall be liable for his act.

The FDRE Criminal Code clearly depicts under Article 81 (1) that
“ignorance or mistake of law is no defense”. Thus, a person may not

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invoke the fact that his unawareness of the law or he mistakenly believes
that his act is lawful as a defense to a criminal liability.

Nevertheless according to article 81(2) the punishment that will be

imposed on a criminal, who is ignorant or mistaken as to the law that he
violates, shall be reduced without restriction where he “in good faith
believed that he had a right to act and had definite and adequate reasons
for holding this erroneous belief”. In such cases courts are required to
determine the penalty by taking in to consideration the attending
circumstance specifically the circumstances that causes the actor to be
mistaken.

Furthermore, courts are empowered as per Article 81(3), to impose no

punishment “in exceptional cases absolute and justifiable ignorance and
good faith and where criminal intent is not apparent.”

By way of conclusion, it can be said that mistake of law and ignorance of

the law is not a defense to a criminal liability. At best, it may help the
actor to be subjected to a reduced punishment or no punishment
notwithstanding his conviction.

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Summary

The criminal law with the view to maintain peace, order and security of
the society punish those who contravene its prohibition or prescription.
However, it is not true that every violation of a criminal entails
punishment to the doer. There are cases in which a person having
intentionally committed a crime may go unpunished. One of such cases
has to do with affirmative defense. A person who successfully invoke

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affirmative defense as provided by the law will be relieved from criminal
liability or may be subject to a mitigated punishment.

An “affirmative defense” is any defense that assume the charges to be

correct but raises other facts that, if true, would establish valid
justification, or excuse to perform the act for which he is being tried. An
affirmative defense does not concern itself with the elements of the crime;
it concedes them. In effect an affirmative defense says “Yes, I did it, but I
had good reason which justify or excuse my act.”

The fact that affirmative defense presupposes that the accused concedes
that he did commit the crime excludes other defense from being consider
as such. For example defense which denies the commission of the crime
or asserts that the prosecutor has failed to establish elements of the
crime or cause effect relationship, are not affirmative defenses.

Affirmative defenses can be classified into two depending on to what

issue/point the defense is addressed. Some affirmative defenses speak to
the rightfulness of the act done by the doer; these defenses are
commonly referred as justification. On the other hand, there are other
affirmative defenses which address that the actor is not criminally
responsible in the circumstances. These defenses are usually termed as
excuse.

The FDRE Criminal Code has provided for different kinds of affirmative
defenses. These include, lawful acts, i.e. acts authorized or required by
the law and acts done in carrying out a professional duty; justifiable
acts, i.e. legitimate defense, defense of necessity, defense of military
necessity, and defense of consent of the victim; and excusable acts, i.e.
defense absolute coercion, defense of superior order, and dense of
mistake of fact.

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Miscellaneous Questions

1. Discuss the nature of affirmative defense.

2. Explain the distinction between excusable acts and justifiable
acts.
3. What is the effect of affirmative defenses?
4. Are justifiable acts lawful acts?
5. Discuss the nature and legal effects of lawful acts under FDRE
Criminal Code?
6. Analyze the difference and the similarity between acts authorized
or required by the law and acts done in carrying out professional
duty together with their respective legal effect.
7. What are the limits of acts done in carrying out a professional
duty?
8. Discuss the requisite elements of legitimate defense?
9. What do you understand by unlawful attack?
10. When do we say an attack is imminent?
11. What does “the otherwise” means under Article 78 of the
FDRE Criminal Code refer to?
12. What does legally protected right mean in the context of
Article 78 of the FDRE Criminal Code?

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13. Is there an obligation to retreat under Article 78 in availing
oneself of legitimate defense? Does this actually mean that if a
person finds himself in a danger and has an avenue of retreat, he
has the legal duty to be a coward at the pain of penal sanction
for not so being?
14. When do we say an act of legitimate defense is
disproportional?
15. What must be balanced in order to decide whether legitimate
defense was proportional? Is the attack as used with respect to
proportionality in Article 78 referring to the initial attack or the
defensive response?
16. If an individual mistakenly believes that he is in danger and
defends himself by killing another, should he be convicted for
intentional homicide? If not, what about negligent homicide?
17. What distinguish legitimate defense from necessity?
18. Discuss the nature of excess in legitimate defense together
with its legal effect?
19. What are the requisite elements of defense of necessity?
20. What is the legal implication of defense of necessity?
21. Explain the nature and effects of military necessity
22. Can the consent of the victim serve as an affirmative defense to a
criminal liability?
23. Discuss the “relatively protected right” theory, “predominantly
private right” theory and “the purpose of harm” theory in light of the
defense of consent of the victim. Which theory do you think is
adopted by the FDRE Criminal Code?
24. What the nature and effect of defense of absolute coercion?
25. Compare and contrast absolute coercion and resistible coercion.
26. In what cases does superior order serve as a defense to criminal
liability?

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27. Discuss theory of “blind obedience” and theory “intelligent
infantry” vis-à-vis defense of superior order?
28. When do you think mistake of fact can serve as an affirmative
defense?
29. What is the nature and the legal implication of ignorance of law
and mistake of law?
30. “Ignorance of law is not an excuse.” Comment on this assertion.

Problems

Please try to solve the following problems in light of the FDRE

Criminal Code

1. Dr Kebede, an Optician, while trying to remove the appendix of Ato

Abebe, has caused the latter‟s death. Do you think he can
successfully invoke Article 67 of the FDRE Criminal Code?
2. Constable Gemeda has arrested Ato Cahla, chief administrator of a
certain Woreda, to investigate the commission of crime of rape by
the latter. Can Constable Gemeda avail himself of Article 68 of the
FDRE Criminal Code?
3. Can Ato A rely upon Art. 78 when he was legitimately defending
himself from attack by use of gun, but in shooting he missed his
assailant and killed an innocent bystander?
4. Does Art. 78 provide a defense to a charge Art. 689 FDRE CC when
Ato A shot a dog which had attacked him a public road?
5. Can Ato C avail himself of Article when he defended another
person‟s property which he could not avoid doing and did with
reasonable force?

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6. Can Ato D raise legitimate defense to defend a charge under Art.
556 of FDRE Criminal Code when he hit a man he knew to be a
policeman who was pursuing him on a dark night to question him?
7. A, an official in the Department of Defense in State X, orders B, a
man in his section, to obtain at all costs a certain secrets
document from the Embassy of Z. Relations between X and Z have
burst into outward hostility several times in the last few months. B
obtains a job a janitor in the Embassy of Z. One evening while B is
looking through a safe, C, a guard, happens into the room. B flees
and C realizing that B is a spy, pulls his gun and shoots twice. B is
hit but manages to get out of the building and locate a telephone to
call D, his Doctor, explaining the situation and asking for help. D
finishes his dinner and leaves about an hour after B‟s call. By the
time D arrives, B has lost so much blood that permanent injury
results although D is able to save B‟s life. Assuming that A, B, C
and D have been charged with crimes, what possible defense can
each of them raise?
8. Identify the issues, holding and the reasoning of the court in
relation to legitimate defense in the appeal case between Mesafint
Vs Public prosecutor.
9. Do you agree with the decision of the majority in Derebe Goremsie
Vs Public prosecutor? How you see the dissenting opinion?
10. How do you find the decision of the appellate court in
between Seid Yimam Vs public prosecutor?
11. Comment on the decision of the appellant court in the case
between Yesuf Ebrahim Vs Public Prosecutor

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CHAPTER THREE
Punishment

INTRODUCTION

So far, you have studied the conditions which entail criminal liability and
punishment. In this chapter you learn how a person whose criminal
liability is proven is going to be punished. To this end, this chapter is
divided into three sections.

The first section is dedicated to discuss punishment in general. In this

section you will study what punishment is; its purpose; how is to be
assessed, suspended or discontinued.

The second section will deal with types of punishment. In this section
you will be acquainted with different kinds of penalties.

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Then comes the third section dealing with the circumstances which
warrant mitigation or aggravation of punishment. Thus, you will have the
chance to study different kinds of aggravation and extenuating
circumstances.

Objectives

After having successfully studied this Chapter, you will be in a position

to:
 Explain the nature and definition of punishment
 Discuss the purposes of punishment in general and as enshrined
in FDRE Criminal Code.
 Identify the principles of assessment of punishment.
 List types of punishments incorporated in the FDRE Criminal
Code.
 Compare and contrast different types of punishment.
 Discuss aggravating and extenuating circumstances.
 Analyze assessment of punishment is cases where there are
extenuating and/ or aggravating circumstances.

3.1 Punishment in General

Introductory Remarks

Assessing and imposing punishment is not a simple task for courts.

Courts need to take into account the purposes of punishment and all
other factors that have been incorporated in the criminal law in
determining and imposing punishment. In this section, you will discuss
what punishment is all about. And, you will also consider what should
be the purposes punishment. Finally, you will have the chance to know
how punishment is to be determined and suspended or discontinued.

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Objectives:

Having studied this section successfully, you will be able to

 Explain what punishment is.
 Discuss the general purpose of punishment.
 Identify what the purpose of punishment is enshrined under FDRE
Criminal Code.
 Illustrate how punishment is to be determined.
 Identify and explain the conditions under which punishment could
be suspended, discounted or extinguished.

3.1.1 Definition of Punishment

Since it is a term of art, it is very difficult to give a precise definition for

the term punishment, nevertheless attempts to define punishment has
been made by different legal scholars. Among these attempted definition,
the following are worth considering.

Punishment is defined as a mechanism of social selections. This is to say

that persons who have a reproachable characteristics as per the criminal
law are subjected to a selective process through which they are
segregated from the public whose order and peace is disturbed (by their
unacceptable behavior) through certain mechanism ascertained by the
State.

Other understands punishment as a means of correcting the socially

dangerous person to be harmless. Indeed, when the law penalizes a
criminal it is with intent to make him no more dangerous to the interest
of the public.

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Be as it may its definition, a criminal punishment conventionally must

quality the following four criteria. It must:

i. Impose pain or unpleasant consequences

ii. Be described by the law
iii. Be administered intentionally.
iv. Be administered by the state.

3.1.2 SENTENCING STRUCTURE

Sentences are structured based on the organ which determines the exact
punishment. Depending on by whom the punishment will be
individualized, there are three structures of sentencing. These are:

i) Legislative fixed model

ii) Judicial fixed model
iii) Administrative fixed model

i) Legislative fixed model

In this model, the exact punishment to be imposed on the criminal is

prescribed by the legislator in defining a certain crime. As a result the
judge has no option but to impose the sentence fixed by the legislator
without individualizing the degree of guilty of the criminal. In this model,
criminals will serve a sentence fixed by the legislature irrespective of
their individual degree of guilt. It doesn‟t take into account the character

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of the criminal. Rather it considers harm done to society by the actions of
the criminal.

Some people hold that legislative fixed model of sentencing is

advantageous in for it has deterrent effect. Because, the certain
knowledge that the conviction on a given charge will result in a non-
negotiable jail term will serve as a warning and a potential deterrent to
any one contemplating to commit that criminal act. It will not bring
crime to halt, but it will eradicate the notion, encouraging some
criminals, that a sentence is open to endless reconsideration.

However, this model of sentencing is criticized for it fails to individualize

the degree of guilt of criminals by considering their dangerous
disposition. Besides, it seems to have disregarded other purposes of
punishment by focusing only on deterrent aspect of punishment.

ii) Judicial fixed model

In contrast legislative fixed model, in this system of sentencing it is the

judiciary which has the sole authority to determine the exact penalty to
be imposed on the criminal. The legislature has no role to play in fixing
the punishment. Its role is limited to defining the crime.

In judicial fixed model, courts have the power to fix the penalty taking
into account the particular circumstances of the case under which the
crime was committed and the personal circumstances of the criminal.
This model tries to individualize the degree of guilt of every criminal in
fixing the exact penalty to be imposed on the latter.

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However, this model of sentencing is criticized for its arbitrariness. Since
the discretion of fixing the exact penalty is given to the court, there is a
room for being arbitrary on the part of the judges in fixing the penalty.

iii) Administrative fixed model

In administrative fixed model, the exact penalty to be imposed on a

criminal is to be fixed by the executive organ in charge of carrying out
the decision of the court. This is the case where the legislature allows the
judge to impose sentence which is not specific in nature. In this system
the judge is not entitled to give actual sentence, rather it imposes
sentences between a specified range by stating the minimum and
maximum limit. The actual sentence is determined by an administrative
agency while the prisoner is serving his sentence.

The salient feature of model of sentencing is that, the prisoner‟s actual

prison term is undetermined and depends on the discretion of the
correctional authorities. So while the criminal is under correctional
authorities, record of its behavior will be examined to decide if in their
opinion release is appropriate. This shows that such kind of structure of
sentencing gives to correctional authorities the discretion to release
persons sentenced before completing their prison terms where it is
appropriate to release.

While administrative fixed forms of sentences may accommodate goals of

retribution, deterrence and incapacitation, the guiding principle behind
them is rehabilitation. This form of sentencing provides for flexibility.

Which of the above mentioned model is adopted by the FDRE Criminal

Code?

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Under FDRE Criminal Code, the legislature has prescribed penalties for
each crime by demarking within which the court can fix the exact
penalty to be served by the criminal. This indicates that the FDRE
Criminal Code actually has adopted the combination of legislative fixed
model and judicial fixed model of structuring punishment.

3.1.3 Purposes of Punishment

What do you think the purpose of punishment should be?

The trend in the development of criminal law indicates that there is a

change in what should be regarded as a purpose of punishment.
Historically, societies have justified punishment on the grounds of
retribution, deterrence, incapacitation, and rehabilitation. But the weight
given to each has shifted over centuries owing to the civilization and
development of making. This being so, let‟s see the following commonly
known purposes of punishment.

i. Retribution

Striking out to hurt what hurts us is a basic human impulse. In one

commentator‟s words, “it is what makes us kick the table leg on which
we stub our toe”. This impulse captures the idea of retribution, which
appears in the Old Testament “when one man strikes another and kill
him, he shall be put to death. When one man injures and disfigures his
fellow countryman it shall be done to him as he had done; fracture for
fracture, eye for eye, and tooth for tooth.”

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Basically retribution is on act of taking revenge upon a criminal. This is
based on the assumption that hurting the wicked is right. A criminal
should suffer because he deserves it.

This purpose of punishment is criticized as barbaric and unfit for a

civilized society. Besides retribution does not prevent the commission of
further crime by others nor it does repair the damage caused and reform
the criminal.

ii. Deterrence
Retribution justifies punishment on the ground that it is right to inflict
pain on criminals. On other hand, deterrence inflicts pain not for its own
sake but to deter /prevent/ future crimes. This can be accomplished in
two ways.

One is general deference which aims at by threat of punishment to deter

the general population who have not committed crimes from doing so.
This purpose of punishment is believed to set an example to others, i.e.,
those who saw a criminal being punished will refrain from committing a
crime fearing that they will be punished likewise.

The other is special deterrence which aims at individual criminals hoping

to deter their future criminal act by threat of punishment. Here the
assumption is that a criminal who is punished for his criminal act will
refrain from committing further crime for he knows the unpleasant
consequence that certainly follows from his act; since a rational human
being will not choose more pain than pleasure.

Deterrence purpose of punishment is criticized by some legal scholars for

its ineffectiveness. The critic points its finger to the extremely increasing

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rate of crime and number of criminals as evidence for the lack of success
of deterrence.

ii. Incapacitation

Incapacitation prevents convicted criminals from committing future

crime by confining them or, more rarely by altering them surgically or
executing them. To put it differently, incapacitation will make it
physically impossible or at least difficult for a criminal further crimes.
The primary means of incapacitation is incarceration. It may also include
death sentence for a dead man is not able to commit a crime.
Critic goes also against incapacitation purpose of punishment. Firstly, it
is based on predicting the future behavior of the individual which nobody
really knows. Therefore, punishment is based on empirically a poor guess
concerning future danger. Secondly, incapacitation simply shifts
criminality from outside prisons to inside prisons. For example sex
offenders and other violent criminals can and do still find victims among
other inmates.

iv. Rehabilitation

This purpose of punishment focuses on the criminal not on the

individual victim or the society. It is assumed that a criminal can get
reformed and become a law abider citizen. Thus, the punishment should
aim at restoring a convicted criminal through correctional intervention,
which includes education and vocation, to a condition he will be regarded
as a law abiding and useful citizen. It is with this purpose in mind;
prison administration tries to reform unskilled, uneducated and
apparently incorrigible criminals by providing purposeful education and
training to make them useful citizens.

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Rehabilitation is criticized for its pretence that prison is some how good
for a criminal and disregards the negative effect of incarceration, to
mention one, the criminogenic influence to which prisoners are exposed.
For example, a convict may, while he is in prison, learns more advanced
criminal techniques than what he knew before which will help to get the
criminal reformed or rehabilitated.

E. Mixed purposes of punishment.

This understanding of purposes of punishment springs from the fact that

each purpose of punishment has its own shortcomings which can be
complimented by another purpose of punishment. Hence a criminal law
will be defective if adapts only a single purpose punishment alone for it
will not accommodate to treat different types of crimes and/or criminals
taking into account the particularity of the case.

However, if a criminal law adopts a number of purposes of punishment,

it will be possible to use either of the purposes or the combination of
them taking into account the particular circumstances of each case. This
is in fact more realistic and acceptable to the public.

3.1.4 Purposes of Punishment under FDRE Criminal Code

What do you think the purpose/s of punishment under FDRE Criminal

Code?

Regarding purposes of punishment, the preamble of the FDRE Criminal

Code clearly states that:

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Punishment can deter wrongdoers, from committing

other crimes; it can also serve as a warning to
prospective wrongdoers. Although imprisonment and
death are enforced in respect of certain crimes the main
objective is temporarily or permanently to prevent
wrongdoers from committing further crimes against the
society. And in such cases with the exception of the
death sentence even criminals sentence to life
imprisonment can be released on probation without the
pronouncement of sentence or without the enforcement
of sentence pronounced. This helps wrongdoers, to lead
a peaceful life and it indicates the major place which the
criminal law has allocated for their rehabilitation
/emphasis added/

As one can understand from reading of this excerpt of the preamble, the
purpose of punishment under FDRE Criminal Code is deterrence
/general and special/, incapacitation and rehabilitation. It seems that
the law maker has disregarded the retributive purpose of punishment. If
should also be noted that though deterrence and incapacitation purpose
of punishment are enshrined in the FDRE criminal law, the emphasis is
given more to the rehabilitation.

One can also identify the purposes of punishment under FDRE Criminal
Code by reading second alienea of Article 1, which goes:
… providing for the punishment of criminals in order to
deter them from committing another crime and make them
a lesson to others, or by providing for their reform and
measures to prevent the commission of further crimes.

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From the underlined words, we can point out that deterrence and
rehabilitation purpose of punishment is incorporated under FDRE
criminal law. This, however, does not mean that incapacitation purpose
of punishment is not included in the FDRE Criminal Code for it can be
inferred from the preamble. Besides, the fact that death and life
imprisonment are provided as punishment under FDRE Criminal Code
implies the inclusion of incapacitation purpose of punishment.

By way of conclusion, it can be said that the FDRE Criminal Code has
adopted a combination /mixed/ of deterrence, incapacitation and
rehabilitation purpose of punishment. And a major place is given to the
rehabilitation purpose of punishment in order to help wrongdoers to lead
peaceful life.
3.1.5. Principles of determination of punishment

There are two main principles which help to avoid arbitrariness in

imposing punishment. They should be strictly complied with in assessing
punishment / sentence/.

What do you think these principles are?

I. The Principle of legality

This refers to the rule that states that there is no crime or punishment
unless it is prescribed by duly enacted law. Thus a person may not be
liable to punishment for the commission or omission of an act which is
not made a crime by the criminal law. Besides, when he is found to be
criminally liable for his act a penalty which is not prescribed by law for
such criminal act may not be imposed on him.

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Article 2(1) of the FDRE Criminal Code clearly states this principle.
The court may not treat as a crime and punish any act or
omission which is not prohibited by law.

The court may not impose penalties or measure other

than those prescribed by law.

The principle of legality implies that the legislature, in defining crimes

prescribes specific penalties applicable to each and every crime.
Needless to mention it is the impossibility of prescribing a fixed penalty
for certain crime that makes the assessment of punishment a difficult
process. This is because of the fact that circumstances under which
different criminals commit the same crime varies from case to case. To
accommodate this variation, the lawmaker, instead of fixing an exact
penalty, sets the maximum and the minimum limit of the penalty that
will be imposed on a person who commits the crime. Hence courts are
not allowed to punish a convicted person going beyond the maximum or
the minimum on unless otherwise expressly provided by the law.

Similarly courts are not allowed to impose a different kind of penalty

than what has been prescribed by the law.

iii) The principle of individualization

The law maker in defining a certain crime prescribes the penalty that will
be imposed on the criminal. However, this does not mean that the
penalty prescribed by the legislature will be imposed across the border
on all persons who committed a given crime. It is necessary to take into
account the particular circumstances of the case.

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In other words, since the degree of guilt of persons who commit the same
kind of crime very depending on the individual circumstances of the
case, the punishment that will be imposed must not be mathematically
equal. Therefore, the guilt of the actor should be first individualized
before his penalty is determined. Accordingly, his physical and mental
conditions must be accounted for. The motives that derive him to commit
the crime shall also be considered.
Regarding individualization of quilt, it is stated under Article 88(2) that:

The penalty shall be determined according to the degree

of individual guilt, taking into account the dangerous
disposition of the criminal, his antecedents, motive and
purpose, his personal circumstances and standard of
education, as well as the gravity of he crime and the
circumstances of its commission.

Therefore, courts are commanded by the law to determine the degree of

guilt of an individual criminal by considering those elements mentioned
under the above quoted provision.

Furthermore, the criminal law has also provided, on top of this general
principle requiring individualization of guilt, special measures that are
applicable on special groups of criminals such as juvenile criminals,
irresponsible persons, habitual criminals etc taking into account the
criminal‟s particular circumstances.

3.1.6 Suspension of penalties

In a modern criminal law, including ours, a great weight is given to

rehabilitation purpose of punishment. Because of this, a convict may not
necessarily be punished. Where the circumstance justifies that the

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criminal will get better reformed by not punishing him, either the
pronouncement of the sentence or the execution of the sentence may be
suspended by the court.

Article 190 dealing with conditional suspension of penalty states that:

When the court, having regard to all the

circumstances of the case, consider, that conditional
suspension of the penalty will promote the reform and
reinstatement of the criminal, it may order conditional
suspension of the sentence.
Such an order implies an appeal to the cooperation of
the criminal for his own reform and may at anytime
be revoked if the circumstances show that is not
justified.

As it can be understood from this article the conditional suspension of

penalty may be given where the court believes that suspending the
penalty helps to reform the criminal.

Penalties can be conditionally suspended in two ways as per Article 191

and 192 of the FDRE Criminal Code. One is by suspending the
pronouncement of the sentence the doer has been convicted of.
According to Article 191, the pronouncement of penalties may be
suspended, assuming that suspension is justified in the circumstance,
“when the criminal has no previous conviction and does not appear
dangerous and where his crime is punishable with fine, compulsory labor
or simple imprisonment for not more than three years.”

In such cases, the court simply places the criminal on probation after
conviction with pronouncing the sentence. This is to mean that the court

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will declare that the accused is guilt of the crime he is tried for; it does
not go to pronounce the sentence to be imposed on him.

The other form of conditional suspension of sentence is suspending the

execution of the penalty. In this case the court will declare that the
accused is guilty of the crime he tried for and pronounce the sentence
that will be imposed on him. Then, the court will order that the
enforcement of the sentence shall be suspended for a specified period of
probation. This is what has been stated under Article 192 of the FDRE
Criminal Code.

Conditional suspension of sentence may not be allowed as per Article

194(3) where the criminal has previously already served a sentence of
rigorous imprisonment for more than three years and where he is
sentenced again to one of these penalties for the crime for which he is
tried or is condemned to more than five years rigorous for the crime for
which he is now tried.

A conditional suspension of sentence, also may be reviewed by the court

which granted it, according to Article 194(2) where, it is disclosed that
the criminal had committed a crime punishable by penalty which
disallows suspension or where the criminal commit a fresh crime during
the period of probation. Similarly, suspension granted may be revoked
where the court believes that the conditional suspension will not help to
reformation criminal.

For how long do you think the court can suspend either the
pronouncement or execution of a sentence on probation?

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Article 196 (2) of the FDRE Criminal Code clearly states that the court
shall fix the period of probation taking into account the graveness of the
crime, the risk of commission of further crime and the reliability of the
criminal. Nevertheless, the period probation may not be fixed for less
than two years. It is at least two years.

3.2. Types of punishment

Introductory remarks

The criminal law in defining every crime it prescribes the penalty the
commission the crime will entail. The penalties that the criminal law
prescribes can be categorized generally into different types of
punishments depending on the similar features they share in common.

Under the FDRE Criminal Code there three types of punishments. These
are primary penalties, secondary penalties and protective measures. In
your study of this section you will have the chance to discuss the
particular features of these types of punishment.

Objectives

At the end your successful reading of this section, you will be in a

position to:
- Describe primary penalties,
- Secondary penalties and protective measures
- Compare and contrast each type of punishment and identify the
type of penalties that fall under each category and describe their
characteristics.

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3.2.1 Primary penalties

Primary penalties are those mainly attached to each crime. These

penalties can be classified into three kinds. These are:
- Penalties affecting the criminal‟s property
- Penalties affecting the personal liberties of the criminal and
- Penalties affecting the life of the criminal

3.2.1.1 Penalties affecting the property of the criminal

Can you identify penalties that affect the criminal‟s property?

The FDRE Criminal Code has described penalties affecting the criminal‟s
property as pecuniary penalties. The criminal law has provided for
different kinds of pecuniary penalties. These include fine, confiscation;
sequestration, and forfeiture.

i. Fine

It is a penalty that compels the convict to pay certain amount money to

the state. Fine usually prescribed for less serious crimes as a sole
penalty or as an alternative. Nevertheless, as per Article 91 of the FDRE
Criminal Code fine may also be imposed in cases of grave crimes in
addition to imprisonment. This indicates that fine can be imposed as a
sole penalty, as alternative or in addition to imprisonment.

The amount of fine may, as per Article 90(1), extend from 10 birr to ten
thousand birr in the absence of a contrary provision of the law. However,

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it may extend from hundred birr to five hundred thousand where the
criminal is a juridical person.

The exact amount of fine is to be determined, as per Article 90(2), taking

into account both the degree of guilt and the ability of the criminal to pay
the fine. In default of payment, however, a fine may be converted into
labor as per Article 95 and 96 of the FDRE Criminal Code.

At this juncture it should be noted that, though they are a bit similar,
fine is quite different from compensation. This is because; the purpose of
damages in a civil proceeding is to reinstate the injured person to this
previous position. It is actually intended to correct the harm done to the
injured person in an equal manner to extent possible.

Accordingly, the amount of compensation, as a matter of rule, is made to

be equal to the damage caused. Whereas, fine is not imposed to
compensate the victim for the loss or injury he sustained because of the
criminal‟s act. The fine is imposed with a view to punish the criminal and
the money as a fine will go to the state‟s treasury not to the victim.

ii. Confiscation

A court may order as a penalty, that “any property which the criminal
has a acquired, directly or indirectly, by the commission of the crime for
which he was convicted”. An order of confiscation may, however extend
to any property lawfully acquired by the criminal. Confiscation is to be
ordered, unlike forfeiture only where the law expressing provides to that
effect. Normally an order of confiscation is to be given in addition to
imprisonment. Regarding confiscation please read Article 97 of the FDRE
position.

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iii. Sequestration

It is another type of penalty affecting the criminal‟s property. A

sequestration may be ordered by the court when the criminal is
convicted and sentenced in his absence for “conspiring or engaging in
hostile acts against the constitutional order or the internal or external
security of the state” according to Article 99 of the FDRE Criminal Code.

iv. Forfeiture

Forfeiture refers to the seizure of any material benefits given or intended

to be given to a criminal to commit a crime or any fruits of a crime.
According to Article 100 of the FDRE Criminal Code courts are duly
required to order that material benefits awarded or intended to be
awarded to a criminal to induce him to commit the crime be forfeited to
the state. It shall, also order the forfeiture any fruits of a crime where the
owner or any other claimant is not found within five years starting from
the date of publication of notice having been made”.

3.2.1.2 Punishment entailing loss of liberties of the criminal

In what cases do you think penalties shall be deemed to have affected the
personal liberties of the criminal?

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The personal liberty of a criminal will be affected when penalty is such a
nature that it confines him in a certain specified place. This kind of
penalty is commonly referred as imprisonment. When a criminal is
imprisoned, he can‟t move outside the prison as he pleases. This
indicates that imprisonment affects the personal liberty by restricting his
freedom of movement.

Imprisonment can be classified into two depending on the time of

imprisonment and the conditions of imprisonment. These are:

- Simple imprisonment
- Rigorous imprisonment

Article 106 (10 of the FDRE Criminal Code has described simple
imprisonment in the following manner.
Simple imprisonment is a sentence applicable to crimes
of not very serious nature committed by persons who
are not a serious danger to society.
Without prejudice to conditional release, simple
imprisonment may extend for a period of from ten days
to three years. However, simple imprisonment may
extend up to five years where, owing to the gravity of
the crime, it is prescribed in the Special Part of the
Code, or where there are concurrent crimes punishable
with simple imprisonment, or where the criminal
has been punished repeatedly.

As it can be understood, from the reading of the above provision,

simple imprisonment is to be imposed on criminals who are not
dangerous to the society and commits a less serious crime. The
duration of the sentence may extend from ten days to three years.

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However, where it is expressly mentioned by the provision defining the
crime, where the criminal commits concurrent crimes punishable with
simple imprisonment; or where he has been punished repeatedly, the
duration of simple imprisonment may extend to five years.

On the other hand, rigorous imprisonment is to be imposed on

criminals who have committed crimes of a very grave nature and who
are dangerous to the society. Describing rigorous imprisonment,
Article 108(1) of the FDRE Criminal Code provides that:

Rigorous imprisonment is a sentence applicable only to

crimes of a very grave nature committed by criminals
who are particularly dangerous to society.
Besides providing for the punishment and for the
rehabilitation of the criminal and for special protection
to society.
Without prejudice to conditional release, the rigorous
imprisonment is normally for a period of one to twenty-
five years but where it is expressly so laid down by
law it may be for life.

As compared to simple imprisonment, rigorous imprisonment entails

much longer period of confinement. Besides, the reading of Article
106(2) and 108(1) indicates that, the prison or the section of prison in
which simple imprisonment is to be served shall be different from the
one in which rigorous imprisonment to be served. This is because, as
it has been stated under second alienea of Article 108(2), the
conditions of enforcement of rigorous imprisonment are expected to
more severe than those of simple imprisonment.

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Regarding the duration (period) of imprisonment, there is one point
that should not be left without being mentioned. That is conditional
release. A person who condemned to serve the maximum period of
simple or rigorous imprisonment may be conditionally released
without serving the full sentence. Conditional release of the convicted
may be granted with a view to reform him where he shows a
reasonable and progressive be behavioral change.

Articles 113 and 201 of the FDRE Criminal Code have laid down the
principle by which a convict can be conditionally released a before he
has fully served the sentence. The preconditions for release of a person
on probation are provided under Article 202(1) of the FDRE Criminal
Code.

Where a prisoner has served two-thirds of a sentence of imprisonment

or twenty years in case of life imprisonment, the court may, on the
recommendation of the management of the institution or on the
petition of the criminal, order conditional release:
a) If, during the requisite period of performance of the
penalty or the measure entailing loss of liberty, the
criminal, by his work and conduct gave tangible proof of
his improvement; and
b) If he has repaired, as far as he could reasonably be
expected to do, the damage found by the court or agreed
with the aggrieved party; and
c) If the character and behavior of the criminal warrant the
assumption that he will be of good conduct when
released and that the measure will be effective.

3.2.1.3 Penalty affecting the life of the criminal

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The penalty affecting the life of the criminal is usually referred as

death penalty, or capital punishment what do you think could be
reasons that justify imposing death sentence?

What possible counter argument can you pose against death penalty?

Death sentence is to be imposed on a criminal where the law has

expressly, provided so as a punishment for a completed crime and
there are no extenuating circumstances. In this regard Article 117 of
the FDRE Criminal Code is worth mentioning.

1) Sentence of death shall be passed only in cases of

grave crime and on exceptionally dangerous criminals,
in the cases specifically laid down by law as
punishment for completed crimes and in absence of any
extenuating circumstances. A sentence shall be passed
only on a criminal who, at the time of the commission of
the crime, has attained the age of eighteen years.

As it can be identified from the above excerpt, in order to impose death

sentence the following conditions, should be met:
 The crime must be grave
 The criminal must be exceptionally dangerous
 It must be specifically stated by law that the punishment for
such completed crime is death
 There must not be extenuating circumstances

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 The criminal must have attained the age of eighteen years at the
commission of the crime

3.2.2 Secondary Penalties

What do you understand by secondary punishment?

A secondary punishment may be imposed on a criminal in addition to

the principal punishment. Secondary punishment may not replace, as
a matter of rules the principal punishment. They will be applied
together with and subject to the principal punishment.

According to Article 121 of the FDRE Criminal Code, secondary

punishment shall as a matter of principle, apply only when its
application is expressly provided by the law. It may, however, be
applied “whenever the general provisions of law has been fulfilled not
with standing that no provision is specifically made for the application
of such punishment in any particular case.”

What types of secondary punishment do you think are incorporated in

the FDRE Criminal Code?

i. Caution, Reprimand, Admonishment and Apology:-

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These secondary punishments appeal to the honor or personal dignity
of the criminal. The court, if it is of the opinion that an appeal to honor
of the criminal will have a positive effect, on the criminal and on the
society at large, as per Article 122 of the FDRE Criminal Code, is
empowered to caution, admonish or reprimand the criminal in open
court either during the trial or in its judgment. Besides, the court may
also order the criminal to apologize publicly the person injured by the
crime or the person having rights from such injured person.

Some times, caution, admonishment, reprimand or apology may be

applied instead of the principal punishment where this is specifically
mentioned by the law with respect to minor crimes; where there are
extenuating circumstances; where free mitigation of punishment is
provided by the law; or where the execution of a sentence is
postponed.

iii. Deprivation of rights:-

Courts are empowered to order the deprivation of the rights of the

criminal where the nature of the crime and the attending circumstance
under which the crime was committed show that he is unworthy of
exercising such rights. The rights that may be deprived by courts as
per Article 123 are:

 Civil rights, in particular the rights to vote, to take part in

any election or to be elected to a public office or office of
honor, to be a witness to or surety in any deed or
document, to be an expert witness or to serve as assessor:
 Family rights, specifically the those conferring the rights of
paternal authority, of tutorship or of guardianship

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 Rights to exercise profession, art, trade or to carry on any
 Industry or commerce for which a license or authority is
required.

The deprivation of these rights could be permanent or temporary.

According to Article 124(1) of the FDRE Criminal Code, where the
deprivation of these rights is temporary the period of deprivation last
from six months to five years. In such cases, the court, in fixing the
period of deprivation shall take in to account “the gravity of the crime,
the antecedents and character of the criminal, the danger of a relapse
into crime, the need for, and utility of the deprivation or the probable
effect of the punishment and the interests of society.”

ii. Dismissal from the Defense Force

This kind of secondary punishment is applicable to where the criminal

is a member the Defense Forces and convicted by military court. As
per Article 127(1) of the FDRE Criminal Code, the court may in
addition to the principal punishment order the demotion in rank of the
criminal and his dismissal from the Defense Forces it can be shown
from his crime that he is of “a base, wicked or dangerous disposition.”

3.2.4 Measures

The criminal law with a view to prevent the commission of further

crimes provides for not only punishment but also protective measures.
Measures prescribed by the criminal law to be applied to criminals are
intended to hinder the actors from committing further crime and to
protect the life of the society from disturbance which will be caused by
the commission of a crime. Besides, those measures help to
rehabilitate and reintegrate the criminal into the society.

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When are measures to be imposed on a criminal?

Article 134 of the FDRE Criminal Code has laid down the principle
governing imposing measures.

The general preventive and protective measures

provided in this chapter may be applied together with
the principal penalty or after the principal penalty has
been undergone when, in the opinion of he court, the
circumstance of the case justify.

From this it follows that measures can be imposed even if they are not
specifically indicated in the special part of the code where the court
believes that in circumstance of the case the measure is justified.
Measure, be it protective or preventive, that will be imposed differ
depending the age and mental state of the actor. Accordingly,
measures can be classified as follows.

i. Measures applicable to adults in special cases

As you could remember from your study on criminal responsibility, it

has pointed out that only persons who are responsible for their act
shall be liable to punishment. Where the actor is absolutely
irresponsible or partially responsible he either may not be punished or
may be punished for reduced punishment as the case may be. In
either of cases, however, a protective measure will be imposed on the
doer.

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Under Article 29 FDRE Criminal Code, courts are obliged to order
protective measures, as described in Article 130, after it has
ascertained by normal enquiry or expert examination, the criminal is
absolutely irresponsible or partially responsible. In this regard,
depending on the particular circumstance of the doer, the court may
order his confinement pursuant to Article 130 or his treatment by
virtue of Article 131 of the FDRE Criminal Code.

Conferment is to be order where the person is found to a threat to a

public safety or order or if he is shown up to be a danger to the person
living with him. On the other hand treatment of the actor shall be
ordered where the actor is suffering from a mental disease or
deficiency, deafness, dumbness, epilepsy, chronic alcoholism, narcotic,
and psychotropic substances, intoxication owing to the abuse of
narcotics or any other pathological deficiency.

Regarding the period of confinement or treatment, Article 132 states

that treatment and confinement are to be ordered for indefinite
duration. However, courts are required to review their decision every
two years. Accordingly, if the grounds justifying the confinement or the
treatment disappear when assessed by an expert, the court will by its
decision, puts an end to the measure ordered.

ii. Measures applicable to young persons

As you could remember, young persons refer to persons who are

between the ages of nine and fifteen. These persons are responsible for
their criminal acts; however, they may not be subject to same
punishment to ordinary penalties provided by the criminal law.

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Young criminals will be subject to special penalties and measures.
The FDRE Criminal Code has provide different measures that may be
imposed on a young criminal. These include the following.

a) Admission to a curative institution

According to Article 158 of the FDRE Criminal Code a young criminal

shall be admitted to a suitable institution in which he shall receive the
medical care where his condition requires treatment and where he is
feeble minded, abnormally arrested in development, suffering from a
mental disease, epileptic or addicted to drink, abuse of narcotic and
psychotropic substances or other plants with similar effect. The
treatment that will be given to such a young criminal shall include
education as much as possible.

b) Supervised education

This kind of measure is to be ordered by the court where the young

criminal is “morally abandoned or is in need of care protection or is
exposed to the danger of corruption or is corrupted.”
This supervised education is to be given to such a young criminal
pursuant to Article 159, by his relatives. However, if he doesn‟t have
relatives or his relatives are proved to be incapable of ensuring his
education, the responsibility, to give the necessary supervised
education will be entrusted to a guardian, a reliable person or
organization. It is also required that the persons or organizations
entrusted with the responsibility to give a supervised education shall
accept this task by undertaking in writing before the court that they
will see to the good behavior of a young criminal entrusted to them.

c) Reprimand; Censure

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As per Article 160, courts are empowered to reprimand a young
criminal where it is of the opinion that it is appropriate and produces
good results. In reprimanding a young criminal the court shall direct
his attention to the consequence his act ensures and appeal to his
sense of duty and determination to be of good behavior in the future.

d) School or Home arrest

A young criminal may be subjected to school or home arrest during his

free hours or holidays and ordered to perform certain task adapted to
his age and circumstances. According to Article 161 of the FDRE
Criminal Code, this may be ordered by the court where the crime
committed is of a small gravity or the young criminal seems likely to
reform.
The duration of the school or home arrest is to be determined by the
court taking into account the circumstances of the case and the degree
of gravity of the crime committed.

e) Admission to a corrective institution

Where the character, antecedents or disposition of the young criminal

is bad, the court may order his admission into a special institution for
the correction and rehabilitation of young criminals, pursuant to
Article 162 of the FDRE Criminal Code, the young criminal shall get,
under appropriate discipline, the general moral and vocational
education needed to adapt him to social life and the exercise of an
honest activity.

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iii. General Measures for purposes of prevention and
protection

These kinds of measures are applicable together with principal

punishment when the particular circumstances of the case warrant
them in the eyes of the court. They are to be applied even if they are
not mentioned in the special part of the code. These measures are of
three types.

a) Measures of a material nature

As the term implies, these types of measures normally affects the

property of the criminal. These include the following.

 Guarantee of good conduct

According to Article 135 of FDRE Criminal Code, a court may require a

convicted person, who display his intention to commit a further crime
or when it is likely that he will commit further crime as in case of
declared hostility or threat, to furnish a bond with surety or sureties to
guarantee to be of good behavior.

The period of recognizance shall be fro a period of from one to five

years and the surety shall be in the form of a personal or monetary
guarantee.

This measure may also be taken against a person who is not

prosecuted or is being tried pursuant to Article 141 of the FDRE
Criminal Code, where such a person haves or is likely to behave in a
manner which threatens peace and security of the public or its
member.

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 Seizure of dangerous articles

By virtue of Article 140 the FDRE Criminal Code, courts are instructed
to order the seizure of all articles having been used or likely to be used
for committing a crime or which have been procured as the result of a
crime, when they are of a nature to endanger public order, safety,
health or decency. In addition to the seizure, the court may also order
fur such articles to be destroyed or rendered useless or given to the
police or a criminological institute. On the other hand, if there are
weapons or instrument seized owing to such order shall be returned to
their owners where the possession of them is not prohibited by law.

b) Measures Entailing Restriction on Activities

These measures are of two kinds. These are:

 Suspension and withdrawal of a license

The suspension and withdrawal or revocation refers to crimes related

with profession or activity of the criminal for which he got a license
such driving or use of a vehicle, hunting or fishing, managing a
theatre, dance hall or restaurant. Thus, according to Article 142 of
FDRE Criminal Code, if a physical or juridical person, holding an
official license entitling to carry out any profession or activity,
committed a crime in a grave or repeated manner, courts are
empowered to order the withdrawal or suspension of the license for a
period of from one month to one year in addition to the principal
penalty. Besides, courts can order the revocation of the license in
cases of recidivism or of a particular grave danger.

 Prohibition and closing of an undertaking

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This is a measure provided under Article 143 of the FDRE Criminal
Code. The prohibition and closing may be ordered to any undertaking
or establishment whether commercial, industrial, cultural or political
which was used to commit or further the commission of a crime where
the crime committed is a danger to public security.
More over, the court may order the winding up of such an undertaking
in cases where the crime committed is punishable with rigorous
imprisonment for more than one year.
c) Measures entailing a restriction on personal
liberty
 Prohibition form resorting to certain places

This is restriction on a criminal from having access to or remaining in

certain places which deemed to have contributed the commission of
the crime or may expose the criminal to commit fresh crime, specially
public-houses, inns, entertainments halls, market and other public
places. This measure is to be order in addition to the principle
punishment, pursuant to Article 145 of the FDRE Criminal Code.
Such a restriction may last for from three months to one year.

 Prohibition to settle down or reside in a place

This measure is similar with the above mentioned restriction.

However, this prohibition refers to settlement or residence in a town,
village, or a specified area, such a restriction shall be per Article 146
FDRE Criminal Code, of a temporary nature and shall last for a period
of from one to ten years.

 Obligation to reside in a certain place or area

This measure is provided under Article 147 of the FDRE Criminal

Code. Such measure may be ordered where a criminal has the

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tendency to further disturbance or lead a life of crime. The area that
he shall be obliged to reside in should be the one where his likelihood
to commit further crime can be decreased. The period of such
residence may last for a period of from one year to five years.

 Placing under supervision

By virtue of Article 148 of the FDRE Criminal Code, the court may
order that a criminal shall be placed under police supervision. This
order may be given on a criminal who is proved to be dangerous by the
gravity or repetition of his criminal behavior and who was condemned
to serve at least a term of simple imprisonment of one year.

Such measure may also be ordered where, as per Article 148(2), where
the criminal is unable to furnish the recognizance required to
guarantee his good conduct.
The period of supervision may last for a period of from one year to five
years.
 Withdrawal of official papers

According to Article 149 of the FDRE Criminal Code, courts are

allowed to order the temporary retention of the official papers or
passport of the convicted person where there are special reasons
relating to supervision or safety which justify such an order.

 Expulsion

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Expulsion of a criminal from Ethiopian territory may be ordered in
accordance with article 150 of the FDRE Criminal Code. An order of
expulsion from territory of Ethiopia may be ordered where the
convicted person is a foreigner and proves to be undesirable or
dangerous. This measure may always be applicable to an alien person
who is convicted and sentenced to a term of simple imprisonment of
three years or more. This measure may also be applied where such an
alien person is absolutely irresponsible or partially responsible
criminal regarded by expert opinion as a danger to public order.

The order of expulsion can be permanent or temporary. Besides,

courts are duly required to consult the competent public authority
prior to its decision ordering the expulsion of such a person.

d) Measures for purposes of information

The FDRE Criminal Code has provided for measures for purposes of
information. These include the following.

 Notification to the competent authority

According to Article 154 of the FDRE Criminal Code, where an order of

secondary penalty or protective or preventive measure is given by the
court, such an order shall be communicated without delay to
competent administrative, civil, military or police authority. This is
with a view to get the order enforced and its observation controlled.

 Publication of the judgment

The court is obliged by Article 155 of the FDRE Criminal Code to order
the publication of its judgment where public interest, or that of
accused or of the injured person so requires. Such an order shall be

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made as a matter of course where the publication of the judgment
serves public interest. On the other hand the order shall be given upon
written request of the interested party when it serves private interests.
The order of publication is expected to indicate the condition under
which the publication shall take place and their number according to
usage, the circumstances of the case and expediency. The publication
may be made by means of posters in a public place, or through other
mass media.

 Entry in judgment register

This is an order of registration of penalties and measures pronounced

in a verdict in a judgment register of the person concerned. According
to Article 156 of the FDRE Criminal Code, such an order may be given
by the court where such an entry is required by law.

The purpose of this registration is to enable the competent judicial

authorities to ascertain the antecedents of an accused person. As
such, the particulars of a judgment register shall not be disclosed to
third parties or to offices not expressly empowered to have an access
thereto.

3.2.5 Penalties applicable to young criminal

It has been stated under Article 53 of the FDRE Criminal Code,

however responsible for their criminal act, young criminals may not be
subject to ordinary punishment applicable to adult criminals.
Nevertheless, there are penalties which are applicable to young
criminals.

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The following are penalties applicable to young criminals.

i) Fine

Pursuant to Article167 of the FDRE Criminal Code, the court may

impose fine on a young criminal where he has the means to pay the
fine and is able to realize the purpose of its imposition.
The amount of fine shall be proportionate to the means of the young
criminal and the gravity of the crime. It should also be noted that fine
may be imposed on a young criminal in addition to any other penalty.
A fine imposed on a young criminal may be converted in to school or
home arrest where he intentionally fails to pay the fine within a
reasonable time fixed by the judgment.

ii) Imprisonment

A young criminal who has committed a serious crime punishable with

a term of rigorous imprisonment of ten years or more or with death
may be sent, according to Article 168 of the FDRE Criminal Code, to a
corrective institution where special measure for safety, segregation or
discipline can be applied to him in the general interest. He may also be
sent to penitentiary detention institution (prison) if he is incorrigible
and seems to be a cause of trouble, insecurity or corruption to others.

3.3 Extenuating and aggregating circumstances

Introductory remarks

In the last two sections, it is believed that, you have well understood
the nature and type of punishments. In this section, you will discuss
other aspects of punishment. As it is has been pointed out earlier on,

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the punishment that will be imposed on each and every criminal varies
depending on their degree of individual guilty. Hence, a
mathematically exact penalty may not be imposed on criminals who
commit similar crime.

The punishment that will be imposed on a given criminal can be

aggravated or mitigated depending on the particular circumstances of
the case. Your study of this section is dedicated to deal with these
circumstances that extenuate or aggravate punishment. Accordingly,
you will study extenuating circumstances first. And then you will learn
about aggravating circumstances second.

Objectives:
Having successfully studier the content of this section, you will be able
to:
 Describe and explain extenuating circumstances
 Identify extenuating circumstances
 Illustrate the effect of extenuating circumstances
 Define aggravating circumstances
 Identify aggravating circumstances
 Illustrate the effects of aggravating circumstances
 Compare and contrast aggravating and extenuating
circumstances
 Assess the exact penalty to be imposed on a given criminal in
case of extenuating and/or aggravating circumstances.

3.3.1 Extenuating Circumstances

3.3.1.1 Definition

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What do you think are extenuating circumstances?

Extenuating circumstances are external or internal factors

surrounding the commission of the crime which are not the legal
ingredient of the crime committed but which may be taken into
account when penalty is imposed these factors could be incidental
circumstances of the crime, the nature of the act, the personality of
the criminal, the state of mind of the criminal at the time of the
commission of the crime.

The age, education, knowledge, character, health, economic position

and motive of the criminal can be taken as extenuating circumstances.
Furthermore, the existence of provocation or impulsive situations can
be regarded as examples of extenuating circumstances.

As you can imagine, these circumstances don‟t constitute legal

ingredient of a crime. Nevertheless, they serve as a ground for
mitigation of a penalty. These circumstances will be considered after
all the legal, material and mental elements of the crime are fulfilled.
For example, if Ato Zelelew kills Ato Chanie because of the latter‟s
provocation, the punishment that will be imposed Ato Zelelew will be
reduced since the existence of provocation is a mitigating ground.
However, the issue of mitigation of penalty will be considered on
condition that the actor is found guilty of his criminal act.

3.3.1.2 Purpose of Extenuating Circumstances

What purposes do you think extenuating circumstances serve?

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In modern criminal law, factors which help courts to reduce

punishment to be imposed on a criminal are provided in the
substantive law under FDRE Criminal Code too, a number of factors
are embodied in the code with view to assist courts in mitigating the
penalty to be imposed on a given criminal. In fact, the very purpose of
extenuating circumstances is to individualize the degree of quality of
each and every criminal and to impose penalty according to their
degree of quality.

Therefore, in order to individualize the penalty that will be imposed

criminals, courts are required to take into account all the attending
circumstances and empowered to impose a varied penalty depending
on the degree of guilty of each criminal.

3.3.1.3 Determination of extenuating circumstances

What are the methods by which extenuating circumstances are to be

determined?

There are two methods by which the existence of extenuating

circumstances to be determined.
 System of judicial circumstances
 System of legal circumstances

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In the first system, it is the judge who can determine the existence of
extenuating circumstances. As per this system, the judge has the
discretion to determine what constitutes an extenuating circumstance
in each particular case.

Whereas in the second system, it is the law that determines the

specific grounds that shall be considered as extenuating circumstance.
Here, the judge is to be guided by those grounds which provided by
the lawmaker as extenuating circumstances.

Which system do you think FDRE Criminal Code follows?

The FDRE Criminal Code follows the system of legal circumstances.

The reading of Article 82 and 83 of the FDRE Criminal Code reveals
that courts are to be guided by detailed list of circumstances
mentioned therein. In reducing punishments, courts are to determine
what constitutes an extenuating circumstance by making refers to the
detailed list of factors that are provided by the law as extenuating
circumstances. Courts are not entitled to consider as extenuating
circumstances other factors than those provided by the law for
purpose of reducing penalty.

3.3.1.4 Classification of extenuating circumstances

Do you know how extenuating circumstances can be classified?

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Generally speaking, extenuating circumstances can be classified into

two categories. There are:

 General extenuating circumstances

 Special extenuating circumstances

General extenuating circumstances refer to factors that can be raised

as a mitigating ground by any criminal in any type of crime. On the
other hand, special extenuating circumstances are special as regards
their nature. Thus, they refer to factors which can not be invoked by
any one in any case. When a criminal is entitled to invoke them, the
penalty to be imposed on him will be freely mitigated.

The FDRE Criminal Code upholds this classification of extenuating

circumstances. Accordingly, it provides for general extenuating
circumstances under Article 82 and special extenuating circumstances
under Article 83.

3.3.1.4.1 General Extenuating circumstances

It has been pointed out that general extenuating circumstances are

those circumstances that can be raised by any criminal in any type of
crime. These circumstances are enshrined in Article 82 of the FDRE
Criminal Code in the following manner.

Article 82:- General extenuating circumstances

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1) The court shall reduce the penalty allowed by law
(Art.179), in the following cases:
a. When the criminal who previously of good character
acted without thought or by reason of lack of
intelligence, ignorance or simplicity of mind.
b. When the criminal was prompted by an honorable and
disinterested motive or by high religious, moral or civil
conviction;
c. When he acted in a state of great material or moral
distress or under apprehension of grave threat or a
justified fear, or under the influence of a person to
whom he owes obedience or upon whom he depends;
d. When he was led into grave temptation by the conduct
of the victim or was carried away by wrath, pain or
revolt caused by a serious provocation or an unjust
insult or was at the time of the act in a justifiable state
of violent emotion or mental distress;
e. When he manifested a sincere repentance for his acts
after the crime, in particular by affording succor to his
victim, recognizing his fault or delivering himself up to
the authorities, or by repairing, as far as possible, the
injury caused by his crime, or when he on being
charged, admits every ingredient of the crime stated on
the criminal charge.

Article 82(1) enumerates a number of factors that may lead the court
to mitigate the penalty to be imposed on a criminal. These factors can
be categorized into material (external), personal (internal) and mixed
circumstances. Alternatively, they can be classified into
circumstances, which preceding, accompany or follow the commission
of the crime. Regardless of these classifications, the theme of most of

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these factors can boil down to the question whether the accused has a
dangerous disposition or not.

Having the above remarks in mind, it is worth discussing some of

these factors enumerated under Article 82(1) of the FDRE Criminal
Code.

i) Circumstances that relate to the mind or

knowledge the criminal

As per Article 82(1) (a), the previous good character of the criminal will
be regarded as an extenuating circumstance where the criminal has
committed the crime due to lack of intelligence, simplicity of mind or
ignorance.

What do you think by good character?

Firstly, good character presupposes that the criminal has no previous

conviction at all. That is to say he has not been tried and found guilty
for a crime. Secondly, irrespective of his prior/previous conviction, a
criminal may be regarded as a man of previous good character where
his antecedents are not so as to warrant his dangerousness. To
determine whether such a person is dangerous or not regard shall be
had to the seriousness and frequency of the crimes committed.

As per Article 82(1) (a), previous good character of the criminal alone is
not sufficient enough to warrant mitigation of punishment. The

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criminal must have committed the crime without thought or because
of lack of intelligence, ignorance or simplicity of mind.

What do you think that a person shall be regarded to have acted due
to lack of intelligence or simplicity of mind?

Dealing with criminal responsibility, it has been pointed out that a

mentally deficient person will not liable to punishment where he is
declared to be irresponsible. The cause of this mental deficiency could
be insanity, intoxication or low age. In such cases, where the
deficiency renders the person irresponsible the issue of mitigation will
not be an issue.

On the other hand, the question of reduction of punishment based on

lack of intelligence or simplicity of mind will be raised a mentally
deficient but responsible person commits a crime. In order to ascertain
whether the criminal affected by the deficiency in intellect and
judgment, the court should utilize the assistance of on expert. Here it
should be noted that poor education may not be regarded a cause of
lack of intelligence or simplicity of mind.

There fore, when the court is convinced by the existence of mental

defect affecting the mind of the criminal and when he is previously of a
good character, the punishment to be imposed on him will be
mitigated.

When can you say that a person have acted without thought?

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A person shall be regarded to have committed a crime with out
thought where he has not in advance prepared or planned his act. To
put it differently, that is where his act was spontaneous. Hence,
person who previously was of a good character committed a crime
without thought; the punishment to be imposed on him may be
reduced.

When do you think that a person shall be regarded to have committed

a crime due to ignorance?

Ignorance refers to total lack of knowledge or to an insufficient

knowledge that leads one to a mistake. This ignorance can be of law or
fact. Ignorance of the law occurs when the criminal is mistaken about
the law. Whereas, ignorance of fact occurs where a criminal is
mistaken about any event, circumstance or quality or material or
personal natures.

Hence, if the criminal is ignorant of law of fact, the punishment to be

imposed on him may be mitigated provided that he is previously of a
good character.

ii) High Motive

Pursuant to Article 82(1)(b) the penalty to be imposed on a criminal,

who was prompted by high motives, may be reduced.

What do you think by high motives?

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Motive refers to an idea, desire or need or cause that derives a criminal
to commit the crime. The term “prompted” implies the existence of
cause and effect relationship between the motive and the act well as
the act is spontaneous.

In order to serve as extenuating ground, the motive must be high by

the standard of the society and not necessarily by that of the criminal.
These high motives of the criminal may relate to his religious, moral or
civil conviction or any other honorable and disinterested motive.

Fore example, it is a crime to cause a bodily injury to another person.

If A strikes B, who disturbs the solemnization of an authorized
religious ceremony, A may be punished for his act by a reduced
punishment since he acted out of high religious conviction. Similarly,
a person who assault another person while the latter was committing
homosexual or incest, he will be punished for his act but the penalty
to be imposed on him may be reduced owing to high moral conviction.

What other high motives can you think of?

iii) Factors relating to circumstances preceding the

commission of the crime.

a) Moral or Material distress

Pursuant to Article 82(1)(c) of the FDRE Criminal Code, the penalty to

be imposed on a person who has committed a crime in a state of great
material or moral distress may be reduced/mitigated. Material distress
refers to a painful or unpleasant situation or suffering from want or

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need. It may occur because of poverty, unemployment and other
economic necessities.

For example, a person who makes his living on the proceeds of

prostitution is punishable as per Article 634 of the FDRE Criminal
Code. A poor person who after exhausting all possibilities of finding
honest work for himself and induces his wife to prostitutes herself and
lives on her earnings is punishable. But the punishment to be imposed
on him may be reduced since he acted in state material distress.

Moral distress, on the other hand, refers to a strain such as shame,

sorrow, fear, anxiety, sadness etc. For example, if a woman who is
pregnant procured her own abortion, she will be liable to punishment
as per Article 546 of the FDRE Criminal Code. But the punishment to
be imposed on her may be reduced taken in to account her moral
distress.

Be it moral or material distress, to serve as a mitigating circumstance,

it should be great one. That is to say the distress should be more than
ordinary distress but which falls short of necessity.

b) Threat

The punishment to be imposed on a criminal may be reduced where he

commits the crime under apprehension of a grave threat or justified
fear, by virtue of Article 82(1)(c) of FDRE Criminal Code. In order to
serve as extenuating circumstances, the threat or justified fear must
be grave affecting the freedom of choice of the criminal.

c) Reverential fear

A punishment to be imposed on a criminal may be reduced where he

commits the crime under the influence of a person whom he owes

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obedience or upon who he depends. This implies the existence of
reverential fear on the part of the actor towards those who orders or
induces him to commit a crime. Referential fear implies a subordinate
relationship. This relationship normally exists between minor and his
guardian, pupil and teacher etc.

d) Temptation

When a criminal led into temptation by the conduct of the victim,

pursuant to Article 82(1)(d) of the FDRE Criminal Code, he may be
punished by reduced penalty. In order to successfully invoke this
extenuating circumstance, two conditions must be fulfilled. First the
victim has to induce the actor in a certain manner and secondly the
way the victim behaved must lead the criminal into temptation to
commit the crime. The way the victim behaves must provoke or arouse
the criminal‟s desire to commit the crime. It is also required that the
temptation should be grave one.

For example, if a woman, being naked, invited a man into her room,
her act shall be regarded to have led the man into great temptation if
he finally rapes her. Thus, the punishment to be imposed on him may
be reduced.

e) Provocation

A person who commits a crime, being carried a way by wrath or revolt

caused by a serious provocation or an unjust insult may be subject to
reduced punishment. For the application of this extenuating
circumstance, two conditions must be fulfilled. First, there shall be
provocation or mental distress. Secondly, the criminal shall be carried
away by wrath, pain or revolt as a result.

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What do you think by provocation?

Here provocation refers to an act which makes the accused person lose
his control and retaliate. The mere existence of provocation is not
sufficient to warrant mitigation of punishment as per article 82 (1) (d).
Such a provocation must cause the criminal to be carried away by
anger or revolt which leads him to commit the crime.

The term “carried away” in article 82(1) (d) implies that the criminal
acts without second thought. For example a person who is unjustly
insulted can invoke Article 82 (1) (d) as a mitigating ground when he
commits a crime as a result.

f. Violent emotion

A person may commit a crime under a justifiable violent emotion or

mental distress. In such a case, the punishment to be imposed may be
reduced by virtue of article 82(1) (D).

In determining whether a person was in justifiable state of violent

emotion or mental distress, regard shall be had to the personality,
position and age of the criminal.

iv. Sincere repentance

If a criminal manifested sincere repentance by his conduct after the

commission of the crime, the penalty, to be imposed may be reduced
by virtue of Article 82(1) (e) of the FDRE Criminal Code.

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What do you think by sincere repentance?

Sincere repentance implies a genuine regret recognizing one‟s guilt.

This repentance must be reflected by the conduct of the criminal.
Pursuant to Article 82(1) (e), a criminal may manifest his sincere
repentance by extending help to his victim, confessing his guilt,
surrendering himself to the authorities, by making good the damage
caused by his act.

For instance, a person who caused a grave bodily injury to another

person may invoke sincere repentance as a mitigating ground where
he has brought his victim to a medical care,

3.3.1.4.1 Assessment of penalties in cases of general

extenuating circumstances

In cases of general extenuating circumstances, how is the exact

penalty to be assessed in cases of general extenuating circumstances?

We have seen that the penalty to be imposed on a criminal shall be

reduced where one of the circumstances enumerated under Article
82(1) is present. The manner by which courts reduces punishment in
such cases is provided under Article 179 of the FDRE Criminal Code.

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Article 179 Ordinary Mitigation
In all cases where the law provides the court mitigate
the penalty under this Article, it shall, if it deems the
mitigation is justified, pronounce:
(a) Instead of capital punishment, rigorous
imprisonment from twenty years to life;
(b) Instead of rigorous imprisonment for life, rigorous
imprisonment from ten to twenty years;
(c) Instead of rigorous imprisonment for specified
minimum period, rigorous imprisonment for not less
than the general minimum period of one year;
(d) Instead of rigorous imprisonment of at least one
year, simple imprisonment from six months to five
years;
(e) Instead of simple imprisonment for a specified
minimum period laid down in the special part of this
code, simple imprisonment for not less than the
general minimum period of ten days;
(f) Instead of simple imprisonment for not less than the
general minimum period of ten days, compulsory
labor or a fine.

The cumulative reading of Article 82(1) and 179 of the FDRE Criminal
Code envisages that the court shall reduce the penalty, where
mitigation in justified, in a manner provided under Article 179. This
mitigation is described as ordinary mitigation by the FDRE Criminal
Code. Courts are empowered to apply ordinary mitigation where one of
the circumstances mentioned under Article 82(1) is present and the
court is convinced that mitigation is justified in the circumstance.

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For example, a person has brought his victim to a medical care, the
general extenuating circumstance as defined under Article 82(1) (e)
shall be deemed to exist. However, this fact alone may not lead to
imposition of reduced penalty. Above all, the court must be convinced
that mitigation is justified in the circumstance. The court must be
satisfied that the criminal has brought his victim to a medical care out
of repentance and not out of fear of prosecution.

Where mitigation is justified because of the existence of general

extenuating, the court is not allowed freely reduce the penalty. Rather,
it shall be reduced the penalty pursuant to Article 179 of the FRDE
Criminal Code.

3.3.1.4.3 Prohibition of double reduction on the same

ground

It has been pointed out hereinabove that where one of the extenuating
circumstances enumerated under Article 82(1) exist and mitigation is
justified in the circumstance, the court will reduce the punishment in
a manner prescribed under Article 179 of the FDRE Criminal Code.

However, mitigation under Article 82 and 179 of the FDRE Criminal

Code must not result in double reduction on the same extenuating
ground. This prohibition is stated under Article 82(2) of the FDRE
Criminal Code in the following manner.

When the law, in a special provision of the special

part, has taken one of these circumstances in to
consideration as a constituent element or as factor
of extenuation of a privileged crime, the court

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may not at the same time allow for the same
circumstance to reduce the penalty applicable
thereto

Pursuant to this provision, if one of the circumstances enumerated

under Article 82(1) is an ingredient element of the crime or an
extenuating circumstance in the provision that define the crime
committed, the court is not allowed to reduce the penalty twice for the
same ground.

To illustrate the prohibition laid down under Article 82(2), let‟s see the
following examples.

In defining extenuated homicide, Article 541(b) provides

that whosoever commits homicide following gross
provocation, under the shock of surprise or under the intense
of violent emotion or intense passion made understandable
and in some degree excusable by the circumstances, is
punishable with simple imprisonment not exceeding five
years.

Provocation and violent emotion, which are general, extenuating

circumstances under Article 82(1), are constituent elements of
extenuated homicide. Thus, the court is not allowed to mitigate the
punishment to be imposed on a person who commits extenuated
homicide by virtue of Article 82(1). To do so will amount to double
reduction of the penalty.

Similarly, regarding crime of abduction of minor, Article 593 provides

the following.

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Where the criminal who abducts (Article 589) or fails to
produce a minor (Art 592) is the father or mother,
natural or adoptive, or an ascendant of such minor, and
where he has acted with the sole intent to secure
custody of the child, or from noble motives, the
punishment shall be, upon compliant, simple
imprisonment not exceeding three months, or fine not
exceeding five hundred birr.

In this provision, noble motive, which is an extenuating circumstance

under Article 82(1)(b), is an ingredient element of the crime described
under Article 593. Thus, the court may not reduce the punishment by
virtue of Article 82 (1), by taking noble (honorable) motive into
account; for doing otherwise amounts to double reduction.

Likewise, the court is prohibited for mitigating the penalty on the same
ground where the general extenuating circumstance is a special
extenuating the factor of privileged crime. In this respect Article 617(1)
of the FDRD Criminal Code is a good example.

Where, during proceedings, a person charged with

an injury to honor withdraws his allegations and
expresses his regrets, either in writing or orally
before the court, the court may mitigate the penalty
(Art, 179).

Sincere repentance, which is an extenuating circumstance under

Article 82(1)(e), is an extenuating factor under Article 617(1). If the
court assesses the penalty as provided under Article 617(1), it may not
reduce the penalty, based on Art 82 (1) (e) of the FRDE Criminal Code,
on the ground sincere repentance. This is because sincere repentance

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has already been considered under Article 617 of the FDRE Criminal
Code as an extenuating circumstance.

3.3.1.4.4 Special Extenuating circumstances

Special extenuating circumstances are different from general

extenuating circumstances in two ways. Firstly, unlike general
extenuating may not be invoked by any criminal. Secondly, unlike
general extenuating circumstances, special extenuating circumstances
result in unlimited mitigation of penalty.

So, what does constitute special extenuating circumstances?

Article 83 of the FDRE Criminal Code provides for preconditions and

effects of special extenuating circumstances in the following manner.

Article 83:- Special mitigating circumstances: Family

Relationship or relationship of Affection

(1) In addition to the cases specified under various

provisions of this Code to be special mitigation
circumstances under Article 180, the court shall, with
out restriction, reduce the punishment (Art 180) when
the criminal acted in a manner contrary to the law
and in particular failed his duty to report to the
authority or afford it assistance, made a false
statement or deposition or supplied false information

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or assisted a criminal in escaping prosecution or the
enforcement of a penalty, for the purpose of not
exposing himself, on of his near relatives by blood or
marriage or a person with who he is connected by
special close ties of affection, to a criminal, to a
criminal penalty, dishonor or grave injury.

The court shall examine and determine the existence

and adequate nature of the relationships invoked.

(2) If the act with which the accused person is charged

was not very grave and if the ties in question were so
close and the circumstance so impelling that they
placed him in a moral dilemma of a particularly
harrowing nature the court may exempt him from
punishment other than reprimand or warring (Article
122) pursuant to Article 83 (1).

The court is required to mitigate the penalty without restriction,

where the following conditions are met. First, the criminal must have
committed the crime with a view to spare himself, a relative by blood
or marriage from prosecution, punishment, dishonor or grave injury.

Secondly, the criminal must have committed only, crimes against

administration of justice. These kinds of crimes presuppose that a
person shall report the commission of a crime and assist the
authorities in apprehending, interrogating and enforcing the sentence
even if the criminal is his relative or his close fiend. Article 83(1) of
the FDRE Criminal Code can be best illustrated by the following
examples. If a person fails to report the commission of a grave crime

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by one of his close relative or friends, this constitutes a crime under
Article 443 (1) (a) of the FDRE Criminal Code.

Accordingly, if Ato X, being aware of the fact that his brother has
committed a grave crime, doesn‟t inform the authorities, he shall be
liable to punishment as per Article 443(1). However, the punishment
to be imposed on him shall be reduced with restriction by virtue of
Article 83(1) of the FDRE Criminal Code.

Similarly, a person who fails to assist the authorities in apprehending

his close relative or friend can avail himself of Article 83(1). For
instances if Ato Y, on being ordered by a police, refuses to give help in
the arrest of his brother, he is punishable for violating Article 806 of
the FDRE Criminal Code. Nevertheless, the penalty to be imposed on
him shall be reduced freely.

Likewise, a person who makes a false statement or disposition or gives

the authorities false information regarding a crime committed by his
close relative or friend is punishable for violating Article 446 of the
FDRE Criminal Code. However, he can invoke Article 83 (1) to get a
freely mitigated punishment.

For instance, if Ato X, being interrogated by an investigating police

officer whether his brother, who is suspected of committing homicide,
was in Bahir Dar on certain day, falsely states that his brother was in
Gondar on that day, he shall be punished for violating Article 443 of
the FDRE Criminal Code. However, the punishment to be imposed on
him shall be reduced without restriction by verdure of Article 83(1) of
the FDRE Criminal Code.

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The same holds good when it comes to a person who helps his close
relative or friend to escape prosecution. Such a person is liable for
violating Article 445 of the FDRE Criminal Code. However, the court
shall mitigate freely the penalty to be imposed on such a criminal.

For example, if A helps his brother, who has committed homicide, to

escape prosecution by destroying the traces or instruments of crime,
he shall be punished as per Article 445 of the FDRE Criminal Code.
Nevertheless, the punishment to be imposed on him shall be reduced
without restriction by virtue of Article 83(1).

Similarly, a person who helps his close relation or friend to escape the
enforcement of a sentence can invoke Article 83(1) to get a freely
mitigated punishment. It is a punishable crime pursuant to Article
462 (1) to help another person to escape the enforcement of a
sentence.

For instance, if Ato Y attacks the policeman who is escorting his

brother, who is sentenced to serve one-year imprisonment, to prison
and sets free his brother, he shall be punished for violating article
462(1) of the FDRE Criminal Code. But the punishment to be imposed
on him shall be reduced without limit.

Do you think that there are cases in which Article 83 (1) is not
applicable?

The provision of Article 83 (1) is not applicable and punishment may

not be reduced where a person commits a crime to save himself, a
relative by blood or marriage or close friend, from punishment or

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prosecution in relation to crimes in violation Art, 254(4), 335 (3) and
682(4) of the FDRE Criminal Code.

3.3.1.4.5 Assessment of penalty in cases of special

extenuating circumstance

What do you think the legal effect of special extenuating

circumstances?

When it is proven to the satisfaction of the court that there exists a

special extenuating circumstance as described under Article 83(1) the
court shall mitigate the penalty to be imposed on a criminal without
restriction or in some cases may exempt him form punishment and
reprimand and warn him instead.

In contrast to the general extenuating circumstances, special

extenuating circumstances allows free mitigation as provided under
Article 180 of the FDRE Criminal Code. Furthermore, court, are also
empowered to impose only secondary punishment by virtue of Article
83 (2) of the FDRE Criminal Code where there is a special extenuating
circumstance.

What do you understand by free mitigation?

Free mitigation is described under Article 180 of the FDRE Criminal

Code as follows.

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In cases where the law provides for reduction of punishment

without restriction of the penalty under this Article, whether
compulsory or optionally, the court shall have power to
determine it in accordance with the following principles:
The court shall not be bound by the kind of penalty provided
in the Special Part of this Code for the crime to be tried, nor
by the minimum which the provision provides; it may
without restriction impose a sentence for a term shorter
than the minimum period prescribed or substitute a less
severe sentence for the sentence provided; however the
court shall be bound solely by the general minimum
provided in the General Part, (Art 90, 10 and 108) as
regards the penalty it imposes, whatever its nature may
be.

According to Article 180, if the court it satisfied as to the existence of

special extenuating circumstance, it can reduce the punishment even
going below the minimum penalty prescribed for the crime by the
provision defining the crime or can substitute the severe penalty
prescribed by the provision defining the crime by another less severe
penalty. In both, instances, the court, however, is not allowed to
mitigate the penalty below the general minimum penalty set by the
General Part of the FDRE Criminal Code.

According to Article 106 of the FDRE Criminal Code, the general

minimum penalty for simple imprisonment is ten years. Thus, if Ato Y
commits a crime by failing to report a commission of a grave crime, he
will be punishable with simple imprisonment not exceeding six
months. However, if the crime which he failed to report is committed
by his brother, the court can mitigate the penalty without restriction.

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Nevertheless, it can‟t reduce the penalty below the general minimum
set for simple imprisonment, i.e. ten days.

Similarly, according to Article 108 the general minimum for rigorous

imprisonment is one year. Hence, the court in mitigating rigorous
imprisonment without restriction may not go below one year. For
example, a person who helps another person to escape the
enforcement a sentence with aid of instruments or weapons is
punishable in serious cases with rigorous imprisonment not exceeding
seven years pursuant to Article 464(2) (a) of the FDRE Criminal Code.
If the person he helped him to escape is his bother, the court can
mitigate the penalty without restriction. In doing so, however, the
court may not reduce the punishment below one year imprisonment,
which is the general minimum for rigorous imprisonment.

Moreover, the court can also substitute the penalty prescribed for the
crime by the special part of the code with less severe punishment. For
distance, where there is special extenuating circumstance, the court
can substitute simple imprisonment for rigorous imprisonment. In
such cases too, the court may not reduce the penalty, below the
general minimum. In this illustration, the court may not reduce the
penalty below ten days.

In addition to cases where the court can mitigate the penalty and
cases where the court can substitute one principle penalty for the
other, in situation stated under Article 83 (2), the court can also
replace the principal penalty, with a secondary penalty, specifically
with reprimand and warning. This may be allowed where the tie
/bond/ existing between the accused and the criminal whom he
helped is so close that the former was in a situation similar to absolute
moral coercion and the crime committed by the latter is not very grave.

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In the context of Art 83 (2), the term “not very grave” may include
failure to report a crime, misleading justice and refusal to lend
assistance to public authorities.

3.3.2 Aggravating circumstances

3.3.2.1 Definition of Aggravating circumstances

What do you understand by aggravating circumstances?

Aggravating circumstance refers to factors that are relevant to the

perpetration of a crime which indicate the degree of guilt and
dangerous disposition of the criminal warranting an increase in the
penalty to be imposed on such a criminal. It is based on these factors
courts increase the penalty of a particular crime committed by
particular criminal.

Aggravating circumstances can also be described as either material or

personal conditions attending the commission of a crime which
optionally or necessarily, taken into account for purpose of
aggravation of penalty. Aggravation refers to methods of increasing the
amount of penalty to be imposed on a criminal.

3.3.2.2 Purpose of Aggravation

What is the reason for the law to aggravate punishment to be imposed

on a criminal?

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Normal, it is on those criminals who have dangerous disposition and

those criminals who are habitual criminals that law imposes an
aggravated penalty. Such criminals are to be subject to aggravated
penalty because they are not deterred or reformed by the ordinary
penal measure taken against them. Thus, the law has to protect the
society from these dangerous and habitual criminals by incarcerating
them for a longer period in view of their reform and deterrence. In
some extreme cases, the execution of these criminals may be justified
where they are found to be incorrigible and serious danger to the
society.

3.3.2.3. Classification of aggravating circumstances

As it is the case in extenuating circumstances, aggravating

circumstances are classified into two. These are:

- General aggravating circumstances

- Special aggravating circumstances

General aggravating circumstance refers to factors which the court

may increase the penalty in all kind of crimes. These factors are
believed to demonstrate the dangerous dispositions the criminal
similar with extenuating circumstances, aggravating circumstance
may be of a material or personal nature or could be the combination of
the two. They may also be divided into circumstances preceding or
accompanying but not subsequent, the commission of the crime.

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Special aggravating circumstances refer to cases of recidivism and
concurrence. Because of this, the nature and effect of special
aggravating is quite different from that of general aggravating
circumstances. Criminals treated under special aggravating
circumstances are more dangerous than those treated under general
aggravating circumstances. For this reason, on cases of special
aggravating circumstances, courts are required to consider the
criminal to be dangerous and aggravate the penalty accordingly.
Whereas in cases of general aggravating circumstances, courts have
the discretion to regard or not to regard certain criminal as dangerous.
Let‟s see these types of aggravating circumstances as follows.

3.3.2.4. General aggravating circumstances

It has been pointed out earlier on general aggravating circumstance

are those circumstances based on which the court may aggravate the
penalty in all types of crimes.

What do you think are these circumstances?

The FDRE Criminal Code has laid down general aggravating

circumstances under article 84 in the following manner.

Article 84:- General Aggravating circumstances

(1) The court shall increase the penalty as provided by

law ( Art.183) in the fallowing cases:

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(a) when the criminal acted with treachery with perfidy,
with a base motive such as every, hatred greed, with a
deliberate intent to inquire or to do wrong, or with
special perversity or cruelty,
(b) when he abused his powers, or functions or the
confidence, or authority, vested in him.
(c) when he is particularly dangerous on account of his
antecedents, the habitual or professional nature of his
came or the means, time, place and circumstances of its
preparative, in particular if he acted by night or under
cover of disturbance or catastrophes or by using
weapons, dangerous instruments or violence,
(d) When he acted in pursuance of a criminal agreement,
together with others or as a member of a gang
organized to commit crimes and particularly, as chief
organizer or ringleader;
(e) When he intentionally assaulted a victim deserving
special protection by reason of his age, state of health,
position or function, in particular a defenseless, feeble
minded or invalid person, a prisoner, a relative, a
superior or inferior, a minister of religion, a
representative of a duly constituted authority, or a
public servant in the discharge of his duties.

The provision of Article 84 (1) enumerates a number of grounds based

on which courts may aggravate the penalty to be imposed on a
criminal. Let‟s see each of the grounds mentioned under this provision
one by one.

i. treachery

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Article 84 (1) (a) has provided treachery as one of the grounds on basis
of which the court may aggravate the penalty to be imposed on a
criminal.

What do for understand by treachery?

Treachery refers to betrayal of one‟s trust. Thus, if a person commits a

crime in a circumstance which constitute betrayal of trust, the
punishment to be imposed may be aggravated.
For example, committing a crime against one‟s own close friend or
relative can be taken to imply treachery. In addition to the relationship
between the criminal and the victim the court should also consider
other circumstances under which the crime was committed. However,
the mere existence treachery may not suffice to aggravate punishment
unless in the circumstance of that particular case it demonstrates the
dangerous disposition

ii. Base motives

The other general aggravating circumstance laid down under Article 84

(1) (a) in base motive.

What do you think by base motives from the reading 84 (1) (a)?

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Envy, hatred, and greed are provided as examples of base motives
which may justify the aggravation of penalty. These examples of base
motives refer to factors such hostility or animosity, malice or self
seeking which in majority of cases lead a person to commit a crime.

Here also, one should not forget that the existence of one of these
factors may not out rightly warrant the aggravation of punishment.
The court should ascertain that the existence of either of this element
proves the dangerous disposition of the criminal.

Therefore, the penalty to be imposed on a criminal may be aggravated

when the dangerous disposition can be inferred from his motives. The
convict will only liable to aggravated punishment in cases where his
motives demonstrate his dangerous disposition.

iii. Deliberate intent to do wrong

Article 84 (1) (a) FORE CC has also provided deliberate intent to injure
or do wrong as one kind of general aggravating circumstances.

When do you think a person can be regarded to have a deliberate

intent to injure?

Deliberate intent to injure refers to the knowledge and design of the

actor to cause harm. Thus, a person shall be deemed to have acted
with deliberate cheat to injure or do wrong where he acted with full
knowledge and desire to cause harm.

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Indeed, to aggravate punishment as per Article 84 (1) (a), the actor
must have acted with deliberate intent to injure or do wrong. However,
the mere existence deliberate intent to injure may not justily
aggravation of penalty unless it demonstrates the dangerous
disposition of the convict.

iv. Cruelty
Article 84 (1) (a) of the FDRE Criminal Code has also regarded cruelty
as one ground of aggravation.

What do you understand by Cruelty?

The manner or the means by which a crime is committed may indicate

now cruel and brutal is the criminal. Since what constitute cruelty
differ from case to case, it is very difficult to list down those acts which
shall be regarded as an act of cruelty. Therefore, what acts shall be
considered as an act of cruelty should be determined on case by case
basis.

However, it should also be noted that the fact that actor has
committed the crime in cruel manner may not justify the aggravation
of punishment unless his degree of cruelty shows his dangerous
disposition.

v. Abuse of power

Article 84 (1) (b) has incorporated abuse of power as one sort of

general aggravating circumstances.

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What do you understand by abuse of power?

This aggravating circumstance has to do with the personal position of

the actor. He may be in a position of trust, such as banker, tutor,
manager or advocate; or in a position to deal with public affairs such
as civil servant, commanding officer or judge. In either of these two
cases, such a person may abuse his power, or functions or the
confidence or authority vested on him and commit crime. When this is
so, the punishment to be imposed on him may be aggravated.

Regarding the rational for incorporating abuse of power as one ground

of general aggravation Graven has said the following.

“As often as not, society at large is concerned with the

manner in which these persons exercise their powers
or carry out their duties; therefore, the consequences
of any offence which the said persons may commit in
the performance of their functions are as a rule
objectively graver. Secondly, a person who commits an
offence by taking advantage of “his powers or
functional or confidence or authority in him” acts in
disregard not only of the harm he causes, but also of
the powers or confidence placed in him by the
government, the public or any particular person. Hence
the general presumption that his mentality is more
dangerous than that of a person who might have

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caused the same objective harm without betraying any
one‟s trust.”

As we can understand from this excerpt, committing a crime by

abusing one‟s own power or function or confidence or authority used
on him demonstrates the dangerous disposition of the actor. Hence,
such an actor may be subject to aggravated penalty.

vi. Antecedents

Article 84(1)(c) has introduced antecedents of the criminal as one of

the general aggravating circumstances where his antecedents proves
his dangerousness. Antecedent of the criminal generally refers to his
past history including his criminal record.
The dangerousness of the criminal on account of his antecedents is to
be ascertained by taking into consideration his previous conviction or
past criminal record that implicates his dangerous disposition. It
should be noted that it is not the number of previous convictions that
matters most, but his dangerous character, in aggravating
punishment.
There fore, if the criminal antecedents prove his dangerousness, the
punishment to be imposed on him may be aggravated.

vii. Habitual or Professional nature of the crime

Pursuant to Article 84 (1) (c), the punishment to be imposed on the

convict may be aggravated where the criminal is dangerous on account
of the habitual or professional nature of his criminal act.
The fact that he commits the crime habitually implies a strong
presumption that he has a particular perverse mentality and will
continue to break the law unless drastic action is taken against him.

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This circumstance is intended to apply with respect to a person who
makes a business of crime in a way that he acquires or tries to acquire
a gain whenever a favorable opportunity presents it self”. Therefore,
the punishment to be imposed on a person who habitually commits
crime may be aggravated.
When we come to professional crimes, the criminal should be well
skilled to commit crimes and mostly belong to organized groups of
criminals. Thus, a criminal who is dangerous on account of being
professional criminal may be subject to an aggravated penalty.

viii. The time and circumstances of the

commission of the crime

Article 84(1)(c) has also considered the time and the condition in which
a crime to committed as a general aggravating circumstances. The
time and the circumstance in which a crime is committed may show
the dangerousness of the criminal. These circumstances must
demonstrate that the criminal is particularly dangerous in order to
serve as an aggravating circumstance.
For example, if the criminal commits a crime at night, take advantage
of disturbances or disasters of any kind such as flood, riots or fine or
uses weapons, dangerous instruments or violence, he shall be
regarded to have the dangerous disposition. Accordingly, the
punishment to be imposed on him may be aggravated.

ix. Criminal agreement

By virtue of Article 84 (1) (d), a criminal is liable to an aggravated

punishment when he acted in pursuance of a criminal agreement,

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together with others or as a member of a gang organized to commit
crimes and more particularly as a chief organizer or sing leader.
What do you understand by the term criminal agreement?

Criminal agreement implies a scenario in which two or more persons

agree to commit a crime or to achieve an unlawful end. For purpose of
considering criminal agreement as an aggravating circumstance, the
criminal has to act collectively. Thus, the existence of criminal
agreement and collective action of the criminals serve as a general
aggravating circumstance.
The rational for aggravations the punishment to be imposed on a
criminal who commits in pursuance of a criminal agreement is that
criminals who act collectively are more dangerous than a criminal who
commits a crime individually. This is because; collective action
encourages criminals to carry out their criminal design to it end.

x. Victims deserving special protection

The fact that the victim of a crime deserve special protection serves as
a general aggravating circumstance as per Article 84 (1) (e) of the
FDRE Criminal Code. This provision enumerates various reasons for
providing special protection. Those include age, state of health,
position or function. As it has been illustrated therein, persons
deserving special protection include a defenseless, feeble minded or
invalid person, a prisoner, a relative, or superior or inferior, a minister
of religion, a representative of a duly constituted authority, or a public
servant in the discharge of his duties.

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Therefore, if a person intentional commits a crime against either of
these persons, he may be liable to aggravated punishment.

3.3.2.5 Assessment of penalties in the case of

general aggravating circumstances

What is the legal effect of general aggravating circumstances?

In our earlier discussion, we have seen that when any one of those
general aggravating circumstances enumerated under Article 84 (1) (a)
– (e) is present and the court believed that the circumstance shows the
dangerous disposition of the criminal, the penalty must be increased
in a manner provided under Article 183 of the FDRE Criminal Code.
The provision of Article 183 of the FDRE Criminal Code provides for
ordinary a aggravation of punishment as follows.

Article 183:– ordinary aggravation

In general cases of aggravation provided by low (Art. 84)
the court Shall determine the penalty without going
beyond the maximum limit of the penalty specified in the
relevant provision of the special part of this Code, taking
into account the nature and the multiplicity of ground of
an aggravation, as well as the degree of guilt of the
criminal.

Pursuant to Article 183 of the FDRE Criminal Code, where one of the
general aggravating circumstance specified under Article 84 (1) is

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present, the court shall assess the penalty having regard all the
aggravation circumstances which demonstrate the dangerousness of
the convicted person. Within the range provided by law, the exact
penalty to be imposed on the criminal may vary depending on which
and how many of these circumstances are present in any particular
case. Though the court can increase the penalty, it may not go beyond
the maximum penalty prescribed for the crime.

Fro example, crime of theft as provided under Article 665 FDRE

Criminal Code is punishable with simple imprisonment or with
rigorous imprisonment not exceeding five years. Assuming that the
circumstance of the case justifies ordinary aggravation of punishment,
the courts can increase the penalty to five years rigorous
imprisonment but not more than that.

Therefore, the rule under Article 183 is that the exact penalty is to be
imposed on the criminal shall be assessed within the limit specified by
the law for that particular crime and the maximum limit must not be
exceeded, whatever the nature or number of general aggravating
circumstances exist in given particular case.

Courts are required to increase the penalty to be imposed on a

criminal where there is a general aggravating circumstances having
regard to the dangerous disposition of the criminal. However, like the
case of extenuation, Article 84 (2) of the FDRE Criminal Code prohibits
courts not to take twice the same general aggravating circumstance in
increasing the penalty.

When the law, in a special provision of the Special Part,

has taken one of the same circumstances into
consideration as a constituent element or as a factor of

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aggravation of a crime, the court may not take this
aggravation into account again.

Pursuant to Article 84 (2) of the FDRE Criminal Code, double

aggravation of penalty prohibited. To illustrate this prohibition, let‟s
see the followings provision of the FDRE Criminal Code.

Article 671 aggravated Robbery

(2) The court may order rigorous imprisonment for life or
in the most serious cases, the death penalty, where
the criminal has acted together with a gang, used
arms other dangerous weapons, means imperiling
collective security or means of particular cruelty or
where the acts of violence committed have resulted
in permanent disability or death.

From this provision we can identify the fact that the criminal has acted
together with a gang or acted with cruelty is an aggravating
circumstance under Article 671. These circumstances are also general
aggravating circumstances under Article 184(1)(a) and (d) of the FDRE
Criminal Code. Thus, in assessing punishment under Article 671 of
the FDRE Criminal Code the court must not take into account the fact
that the criminal acted together with a gang or with cruelty. This is
because doing so will amount to double aggravation and double
aggravation is prohibited as per Article 84(2) of the FDRE Criminal
Code.

Let‟s also consider Article 539(1)(a) of the FDRE Criminal Code.

Whoever intentionally commits homicide with such

premeditation, motive, weapon or means, in such

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conditions for commission, or in any other
aggravating circumstances, whether general (Art. 84)
or other circumstances duly established (Art.86) as
to show that he is exceptionally cruel, abominable or
dangerous.

From this provision we can identify that cruelty is an element of

aggravated homicide. And cruelty is also a general aggravated
circumstance under Article 84(1)(a). Therefore, in determining
punishment pursuant to Article 539(1) of the FDRE Criminal Code, the
court may not take cruelty as an aggravating circumstance as per
Article 84(1)(a) of the FDRE Criminal Code.

3.3.2.6 Special aggravating circumstances

It has been pointed out earlier on that, special aggravating

circumstances differ from general aggravating circumstances with
respect to their nature and effect on punishment. In contrast to
general aggravating circumstances are applicable to all forms of
crimes, special aggravating circumstances are applicable to concurrent
crimes and recidivism.

With respect to legal effect, the general aggravating circumstances

allows increment of punishment up to the maximum limit provided by
the law defining those particular crimes. Whereas, special aggravating
circumstances permits the increment of the penalty beyond the
maximum limit set by the law defining those particular crimes.

What do you think are the special aggravating circumstance provided

by the law?

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Regarding aggravating circumstances, Article 85 provides the

following.

Art. 85 Special aggravating circumstances concurrence and

recidivism

In cases of on current of crimes and recidivism, the

penalty shall be aggravated according to the
provisions of Article 184-188 of this code.

The provision of Article 85 provides for two types of special aggravating

circumstance. The first aggravating circumstance is concurrence of
crimes and the other one is recidivism. In both cases there is a
conclusive presumption that the convicted person is dangerous. So,
the court shall increase the penalty. Let‟s see each of special
aggravating circumstances in the following manner.

i) Concurrence

What do you understand by the term concurrence?

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Concurrence refers to the case where a criminal by one or several acts
commits more than one crime. Concurrence crimes are of two kinds.
These are material concurrence and notional concurrence.

a) Material concurrence

Article 60(1)(a) of the FDRE Criminal Code has described material

concurrence as a case where the criminal successively commits two or
more similar or different crimes irrespective of their nature. From this
it follows that the existence of material concurrent requires the
commission of more than one unlawful act which also violate more
than one criminal provision repeatedly. Such a crime may be
committed on different time and place against the same person or
different person.

For example, if A steals B‟s car and runs over C, the case is one of
material concurrence. The same holds true if A steals B‟s car, C‟s
bicycle and D‟s purse. There is no material concurrence, however,
when a conviction is had in the court in the course of the performance
of the aforementioned acts; if A steals C‟s bicycle after being sentenced
for stealing B‟s car.

b) Notional concurrence

Pursuant to Article 60(1)(b) of the FDRE Criminal Code, notional

concurrent refers to cases “when the same criminal act simultaneously
contravenes several criminal provisions or results in crimes with
various material consequences.” Accordingly, notional concurrence
occurs in two situations.

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One is when the same criminal act violates different legal provisions as
envisaged under Article 65 of the FDRE Criminal Code. For instances,
if a person rapes his daughter, he simultaneously violates Article
620(1) which prohibits crime of rape and Article 654 which prohibits
incest. Thus, in this hypothetical example, there is a notional
concurrence and the person will be liable for crime of rape and incest.

The other form of notional concurrence occurs where the same

criminal act violates two or more legal provision by causing various
material consequences as described under Article 66 of the FDRE
Criminal Code. For example, if A sets a fire on B‟s house knowing that
the latter is inside and B dies as a result, there is a notional
concurrence of crime of homicide and arson. This is because A‟s act
has brought about two results, i.e. property damage and death.

c) Assimilated cases of concurrent crimes

Article 60(c) of the FDRE Criminal Code has provided for an

assimilated case of concurrence. This provision states that a person is
to be regarded to have committed concurrent crimes:

in the case of a criminal act which, though flowing from

the same criminal intention or negligence and violating
the same criminal provision, causes the same harm
against the rights or interests of more than one person.

Strictly speaking the case mentioned above is neither material

concurrence, since there are no successive acts; nor notional
concurrence since the act doesn‟t violate more than one criminal

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provision. However, the law for its own purpose has regarded such a
case as one of concurrence. For example, if A, while driving his car,
intentionally run over B and C, he shall be regarded to have committed
concurrent crime despite the fact that his act flows from the same
criminal intention and violates the same criminal provision, i.e., Article
540 of the FDRE Criminal Code.

ii) Recidivism

Recidivism is the second type of special aggravating circumstance

under FDRE Criminal Code. Recidivism is described under Article 67
as a case “when a fresh intentional crime the minimum penalty of
which is six months of simple imprisonment has been committed
within five years of serving a sentence of imprisonment in whole or in
part or having been remitted by pardon.”

Pursuant to Article 67 of the FDRE Criminal Code at least three

conditions should be fulfilled to regard a person as recidivist.

 A sentence must have been imposed on him and served

in whole in part or remitted
 A new crime must be committed within five years after
the previous sentence have been fully or partially
served or remitted
 The fresh crime committed must be punishable for not
less than six months imprisonment.

Hence, a person shall be regarded as a recidivist when, with in five

years after having served a sentence in whole or in part or been
pardoned, commits intentionally a fresh crime punishable with not
less than six months simple imprisonment. Here it should be noted

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that the period of the previous sentence is not relevant in determining
recidivism.

Therefore, if a criminal is recidivist pursuant to Article 67 of the FDRE

Criminal Code, the court shall aggravate the penalty to be imposed on
him. The rationale for this is that recidivist does not take lesson from
ordinary punishment and commits a fresh crime without being
reformed or deterred by the previous punishment.

3.3.2.7 Assessment of punishment in cases of special

aggravating circumstances

We have seen that special aggravating circumstances, i.e. concurrence

and recidivism warrant aggravation punishment. Subsequently, we
will see how the punishment is to be aggravated.

A. Aggravation of punishment is cases of material

concurrence

Where a person has committed material concurrent crimes, the

punishment to be imposed on him is to be aggravated in a manner
provided under Article 184 the FDRE Criminal Code.

Article 184- Aggravation of penalty in case of concurrent crimes.

1) In case of material concurrence of crimes (Article 85) the
court shall determine the penalty on the basis of the
general rules se tout here after, taking in to account, for
the assessment of the sentence, the degree of the guilt of
the criminal:

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a. Where capital punishment or life imprisonment is
determined for one of the concurrent crimes punishable
with deprivation of life or liberty or where the maximum
term of imprisonment provided under the provisions of
this general part (Arts. 106 and 108) is imposed for one of
the concurrent crimes punishable with imprisonment of
the same kind this penalty shall, subject to the provisions
of sub-article 1(c) and (e) of this Article override any other
penalties, that would Have been imposed on the other
concurrent crimes.

However if, instead of one of the penalties specified

above, a sentence of imprisonment below the maximum
laid down in the General Part of this Code has been
passed for the most serious crime, the court shall
aggravate the sentence on account of the other concurrent
crimes in accordance with sub-article (1)( b) of this Article.

b) In case of two or more concurrent crimes entailing loss of

liberty the appropriate penalty for each crime shall be
determined and added. However, the duration of the total
penalty may not go beyond the general maximum fixed in
the General Part of this Code for the kind of penalty
applied.
In case of concurrent crimes entailing simple
imprisonment, simple imprisonment of two years, shall,
for purposes of this Article, be deemed to be equivalent to
rigorous imprisonment of one year.

c) In case of concurrent between a penalties entailing loss of

liberty and a fine the court may impose both penalties.

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When imposing the sentence it shall apply the provision
of sub-article (1)(b) in case of imprisonment, and the
provision of sub-article (1)(d) in case of fine.
d) In case of two or more concurrent crimes entailing fine the
appropriate penalty for each fine shall be determined and
added. Without prejudice to cases where the criminal
acted for gain (Art. 92), the total amount may not, exceed
the general maximum prescribed in the General Part of
this Code.
e) Where the court orders the forfeiture of the criminals
property in case of one of the concurrent crimes, it may
not impose a fine on account of the other crime.

3) Any secondary penalty or preventive, corrective or safety

measure may be applied even though its application is
justified under only one of the relevant provisions or in
respect of only one of the concurrent crimes.

Let‟s try to see the elements of Article 184(1) and (3) as follows.

To begin with, Article 184(a) paragraph one provides absorption

method of aggravation. According to this provision if a death sentence
or life imprisonment is imposed on the criminal on account of one of
the concurrent crimes, no other sentence will be passed with respect
to the other concurrent crimes.

For example, A is convicted of aggravated homicide and rape. If the

court imposes on him death penalty or life imprisonment for the
homicide, no punishment will be imposed on him regarding his crime
of rape. This is with the assumption that the death or the life

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imprisonment to which the criminal is condemned, absorbs or override
the penalty for the rape.

Similarly, in cases other than death sentence or imprisonment for life,

the court may not impose penalty with respect to other concurrent
crimes punishable with same kind of imprisonment, where it imposes
the general maximum provided by the general part of the Criminal
Code.

For example, A is convicted of robbery which is punishable with

rigorous imprisonment not exceeding fifteen years and grave willful
injury which is punishable, depending on the circumstances, with
rigorous imprisonment not exceeding fifteen years, or simple
imprisonment for not less than one year. If the court passes as a
penalty the maximum period fixed for rigorous imprisonment under
Article 108(1), i.e., twenty-five years with respect to the robbery, the
court may not pass a penalty regarding the grave willful injury.

In both cases, however, it should be noted that nothing will affect the
power of the court to impose fine and order forfeiture of the property of
the criminal in addition to sentencing the criminal to death, life
imprisonment or imposing the general maximum imprisonment fixed
under Article 106 and 108.

When we come to Article 184(1)(a) paragraph two it provides for

cumulative or aggregate method of aggravation. In cases where the
punishment imposed for the most serious crime is a greater than the
maximum fixed in Special part of the Code but below the maximum
period fixed in the General Part of the Code, the court can aggravate
the penalty by adding penalty appropriate to the other concurrent

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crimes till the maximum period of imprisonment fixed by the general
part of the code is attained.

For instance, in the illustration given above, if the court, instead of

twenty five years rigorous imprisonment, imposes 20 years for with
respect to the robbery, the court can add to this penalty, the
imprisonment appropriate for the crime of rape until if reaches twenty
five years.

Coming to Article 184(1)(b), it also provides for cumulative aggravation

of punishment. In cases of two or more concurrent crimes entailing
loss of liberty, the penalty appropriate to each concurrent crime shall
be determined and aggregated.

For example, A is convicted of adultery and incent. Thus, the penalty

appropriate period of imprisonment for the crime of adultery and
incents shall be determine separately. And the respective period of
imprisonment shall be added. It is the sum of each period of
imprisonment with respect of each concurrent crime that shall be
passed against him. Assuming that the court impose six months
imprisonment with respect to incent and two months imprisonment for
the adultery, the penalty that will be finally imposed on him is eight
months imprisonment.

Nevertheless, it should be noted that the period of the total penalty

may not exceed the general maximum fixed under Article 106 or 108
as the case may be.

How is the penalty to be aggregated where concurrent crimes entail

simple imprisonment and rigorous imprisonment?

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Second alienea of Article 184(1)(b), provided that simple imprisonment
of two years shall be regarded as one year rigorous imprisonment in
aggregating the penalty where the respective concurrent crimes entail
simple imprisonment and rigorous imprisonment.

Regarding aggravation of penalty in cases where the concurrent crimes

entail imprisonment and fine, Article 184(1)(c) has provided the rule.
Pursuant to this provision, when one of the concurrent crimes is
punishable with imprisonment and the other is punishable with fine,
both penalties shall be imposed.

In imposing the imprisonment as per, Article 184(1)(b), it can increase

the penalty to extent of the general maximum fixed under Article 106
or 108 as the case may be. Similarly, in determining the fine, the court
can increase the fine, by virtue of Article 184(1)(d) without going
beyond the general maximum, i.e., ten thousand birr save the
exception.

For instance, a person is convicted of robbery which is punishable for

rigorous imprisonment not exceeding fifteen years and defamation
which is punishable with simple imprisonment not exceeding six
months or fine. In such cases, the court shall impose penalty for both
crimes. With respect to the crime robbery it can increase the penalty to
the general maximum, i.e., twenty five years. Regarding the
defamation assuming that the court opted to impose fine, it can
increase the general maximum, i.e., ten thousand birr.

Article 184(1)(d) deals with how penalty shall be fixed in cases where
the concurrent crimes are punishable with fine. Where the concurrent
crimes the criminal is convicted of are punishable with fine, the court
shall determine the appropriate fine for each concurrent crime and

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aggregate the respective amount of fine. Then, the sum will be imposed
on the criminal.

For instance, a person is convicted for duel which is punishable with

simple imprisonment or fine and assaults which is punishable in non-
serious case with fine not exceeding three hundred birr. Thus the
court first determine the appropriate fine for the assault and duel
separately and then, add the two amount to reach the exact penalty to
be imposed on the criminal. However, the sum must not exceed the
general maximum fixed, i.e., save the exception, ten thousand birr.

However, Article 184(1)(e) prohibits the court from imposing fine when
it orders the forfeiture of the criminal‟s property on account of one of
the concurrent crimes.

In relation to secondary penalty and preventive, corrective or safety

measures, Article 184(3) clearly states that secondary penalties or
measures may be ordered when it is justified in relation to one of the
concurrent crimes.

How is the court to determine penalty when it discovers that the

convicted person had committed another concurrent crime for which
he has served or is serving his sentence?

Where it is discovered, before the sentence is determined, that another

concurrent crime had been committed by the criminal for which is
serving or has served his sentence, the court shall assess the penalty
in manner it would have assessed the punishment had all the crimes
been tried together so that more severe penalty may not be imposed on

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him. To this end, as per Article 186(2), the court shall take the penalty
already imposed in determining the penalty according to Article 184(1)
of the FDRE Criminal Code.

B. Aggravation of punishment in cases of notional concurrence

In cases of notional concurrence the penalty is to be aggravated

pursuant to Article 187 of the FDRE Criminal Code.

Article 187: Aggravation of penalty in case of notional

concurrence

1) Where by one and the same act the criminal committed a

breach of several criminal provisions (notional concurrence
Article 65), the court may aggravate the penalty according
to the provisions of Article 184 particularly where the
criminal’s deliberate and calculated disregard for the law
or the clear manifestation of the criminal’s bad character
so justifies aggravation.

In other cases court may only impose the maximum

penalty prescribed by the most severe relevant provisions.

2) In case of notional concurrence resulting in crimes with

different material consequences, the court shall aggravate
the penalty as follows:

a. Where at least one of the concurrent crimes committed by

the criminal is intentional Article 66(1) (a) and (b), the
penalty shall be determined in accordance with provision
of Article 184.

b. Where the concurrent crimes are committed negligently

(Art. 66(1)(c), a penalty shall be imposed without exceeding

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the maximum penalty prescribed in the Special Part of this
Code for the most serious crime.

c. Where the criminal intentionally committed crimes

endangering public security or interest (Art. 66(2), the
penalty shall be aggravated in accordance with the
provision of Article 184.

Article 187 of the FDRE Criminal Code provides for aggravation of

penalty in cases of notional concurrence by making a distinction
between cases where the criminal contravenes two or more criminal
provision by the same act simultaneously, and cases where the
criminal brings about various material consequences by the same act.

The provision of Article 187 of the FDRE Criminal Code deals with
aggravation of punishment in cases of notional concurrence in two
ways pursuant to Article 187(1), the court, as a matter of principle, is
empowered to impose the maximum penalty prescribed for the most
serious crime where the criminal contravenes two or more criminal
provisions by one and the same act.

For instance, A is convicted for adultery and public indecency for

having a sexual intercourse with another woman in a public place
sister while he is being married. In comparison with adultery, which is
punishable with simple imprisonment or fine, public indecency is the
most serious for it is punishable with simple imprisonment from three
months to one year. Thus, in this case, the court may impose the
maximum penalty prescribed for crime of public indecency as fixed
under Article 639 of the FDRE Criminal Code, i.e., one year simple
imprisonment.

However, as a matter of exception, the court may aggravate the penalty

pursuant to Article 184 of the FDRE Criminal Code where the

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criminal‟s deliberate and calculated disregard for the law or the
dangerous disposition of the criminal warrants the aggravation.

For instance, assume that A rapes his daughter and is convicted for
crime of rape and incest. The fact that he rapes his daughter clearly
manifests his bad character and justifies aggravation as per Article
184 of the FDRE Criminal Code. Thus, the court shall determine the
sentence for each crime and aggregate the two penalties without going
beyond the general maximum fixed by the General Part of the Criminal
Code.

When we come to Article 187(2), the law provides how the penalty shall
be aggravated in cases where the one and same ct of the criminal
brings about various material consequences. Pursuant to Article
187(2)(a), the penalty shall be aggravated in accordance with provision
of Article 184 where at least one of the concurrent crimes committed
by the criminal is intentional.

For instance, if A sets a fire on B‟s house, knowing the latter is inside,
and is convicted for ordinary homicide and arson, the penalty to
impose shall be calculated in accordance with Article 184 of the FDRE
Criminal Code.

On the other hand, pursuant to Article 187 (2) (b), where the
concurrent crimes are committed negligently, the court may not
impose a penalty more than the maximum penalty prescribed for the
most serious crime. The penalty at most can be aggravated to the
extent of the maximum penalty prescribed by the most severe relevant
provision.

For instance, A is convicted for ordinary homicide and negligent

homicide for killing B and C by a single bullet (shot). In this case the
court may not impose a penalty aggravated pursuant to Article 184.

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Rather, it can impose the maximum penalty prescribed for ordinary
homicide, i.e. twenty years as per Article 540 of FDRE Criminal Code.

In cases other than mentioned under Article 187 (1) and (2) (b), the
penalty to be imposed on the criminal in cases of notional concurrence
shall be aggravated pursuant to Article 184 of FDRE Criminal Code
where the criminal intentionally committed crimes endangering public
security or interest. The penalty shall be aggravated as per Article 184
especially according to Article 66 (2);

When the criminal result was achieved by means

endangering public safety, such as arson, explosion,
use of explosive or where communication or public
health are in danger as well as in the case of exposure
of persons, maltreatment, brawl, abortion, rape or
sexual outrages.

C) Aggravation of punishment in cases of assimilated

cases of concurrence

Article 60 of the FDRE Criminal Code states that a person shall also
be deemed to have committed a concurrent crime where a criminal act
which, though flowing from the same criminal intention or negligence
and violating the same criminal provision, causes the same harm
against the right, or rights or interest of more than one person. The
penalty to be imposed on such criminal is to be determined as per 184
(2) of the FDRE Criminal Code. According to this provision, the penalty
to be imposed shall be aggravated as per Article 184 unless otherwise
provided.

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For instance, A intentionally, runs over B and C by his car causing B‟s
and C‟s death. Assuming that A is convicted for ordinary homicide; the
penalty to be imposed on him shall be aggravated pursuant to Article
184. Accordingly, the court can increase the penalty to the extent of
the general maximum fixed by the General Part of the Code. In the
case at hand, ordinary homicide is punishable with rigorous
imprisonment from fine to twenty years. Thus, the court can increase
the penalty without exceeding the general maximum fixed, i.e. twenty
five years.

d. Aggravation of punishment in cases of recidivism

The aggravation of penalty in cases of recidivism is to made inn

accordance with Article 188.

Article 188:- Aggravation in case of recidivism

1) Where a fresh crime is committed in the

circumstances specified under Article 67 of this
Code, the court shall aggravate the penalty, and
may pass a sentence exceeding the maximum
penalty laid down in the Special Part of this Code
for the fresh crime.

It may double the penalty provided in the Special

Part of this Code for the fresh crime or for the most
serious fresh crime in case of concurrence.

2) Having regard to the nature and multiplicity of

crimes, the degree of guilt and the danger
represented by the criminal, the court may, without
being bound by the maximum penalty provided in

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sub-article(1) above, aggravate up to the maximum
penalty laid down in the General Part of this Code
for the kind of punishment applied.

Where the criminal is a persistent recidivist the

court shall aggravate the sentence by going beyond
double penalty prescribed for the fresh crime.

3) The penalty to be determined under the provision

(1) or (2) of this Article shall in no case exceed the
maximum penalty prescribed in the General Part of
this Code for the kind of penalty applied (Arts. 106
and 108)

The penalty to be imposed on recidivist shall be aggravated, pursuant

Article 188(1), exceeding the maximum penalty prescribed for the fresh
crime by the Special Part of the Code.

In this respect the court can increase the penalty to the extent of twice
of the penalty prescribed by the Special Part of the Code for the fresh
crime or for he most serious crime in case of concurrent. In doing so,
however, the court may not impose a penalty exceeding the two fold of
the maximum penalty prescribed by the relevant provision defining the
fresh crime or the general maximum fixed under Article 106 or 108 as
the case may be.

For instance A, who has been sentenced to serve ten years rigorous
imprisonment for committing crime of rape, is convicted for crime of
robbery which he had committed within a month after he has served
his term. In this case, the court can increase the penalty exceeding the
penalty prescribed for robbery, i.e., fifteen years rigorous
imprisonment. It can increase the penalty to the extent of two fold of
the penalty prescribed for the fresh crime by the Special Part of the

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Code without exceeding the general maximum fixed for rigorous
imprisonment. Thus, here the court can increase the penalty to the
extent of twenty-five years rigorous imprisonment.

Under Article 188(2), however, the court can aggravate the penalty
even exceeding two fold of the maximum penalty prescribed by the
special part of the code for the fresh crime where the nature and
multiplicity of crimes and the dangerous disposition of the criminal
justifies such aggravation or the criminal is a persistent recidivist.
However, even in such cases, the court may not exceed the general
maximum fixed by the General Part of the Code.

3.3.3 Other general extenuating and aggravations

circumstances

Do you think there are other aggravating and extenuating

circumstances than what we have considered so far?

Article 86 of the FDRE Criminal Code answer the above question in

the positive.

The court shall give reasons for applying general

extenuating (Art. 179) or aggravating (Art. 182)
circumstances not expressly (Art. 179) or aggravating
( Art 182) circumstances not expressly provided for in
this Code and shall state clearly its reasons for such
application.

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From the reading of this provision, we can infer that courts are
empowered to consider other circumstances than those expressly
provided by the Criminal Code as extenuating or aggravating
circumstance. In that case, the court what is required from the court
is to state its reason for taking a certain circumstance, which is not
expressly provided by law, as aggravating or extenuating factor.

3.3.4 Cumulation of extenuating and aggravating

circumstances

How are courts going to assess penalty in cases where both

extenuating and aggravating circumstances are present together in a
particular case?

Penalty is to be assessed pursuant to Article 189 where aggravating

and extenuating circumstances are present concurrently in a
particular case.

Article 183:- Accumulation of different extenuating and

aggravating circumstances

In case of different extenuating and aggravating circumstances,

the court shall determine the penalty, as provided below:
(1) In the event of concurrent general aggravating and
extenuating circumstances the court shall fix the penalty,
having regard to the aggravating circumstances (183) and

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then shall reduce the penalty in light of the extenuating
circumstances (Arts. 179, 180).

(2) Where in a case of recidivism the criminal has at same

time been convicted of concurrent crimes the court shall
first assess sentence for the concurrent crimes and then
increase it having regard to recidivism.

(3) When there exist different types of aggravating and

extenuating circumstances specified in sub article (1) and
(2) above, the court shall first fix the penalty having
regard to the aggravating circumstances and shall reduce
the penalty in light of the extenuating circumstances.

As it can be understood from the reading of Article 189(1) and (3),

where there are aggravating and extenuating circumstances, courts
are required to fix the penalty first based on the aggravating
circumstances and then reduce the penalty in light of the extenuating
circumstances.

Furthermore, courts are instructed by Article 189(2), where the

criminal is recidivist and has committed concurrent crimes, to fix first
the penalty for the concurrent crimes and then increase the penalty in
light of the recidivism.

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Summary

After the guilty of the accused person is established, the court will
pass a sentence which is appropriate for the crime committed. In
imposing sentence the court should bear in mind the purposes of
punishment. Historically, the concept of purpose of punishment has
undergone a progressive development, i.e., from simple purpose of
punishment to mixed or combined purpose of punishment. In modern
criminal law, the purpose of punishment is multifaceted which include
deterrence, incapacitation and reformation or rehabilitation.

According to FDRE Criminal Code, punishment has the purpose of

deterring the criminal and other form committing further crime,
incapacitating the criminals and reforming the criminals.

In assessing punishment, the court shall also take into account the
dangerous disposition of the criminal with a view to individualize his
degree of guilt. In this regard the court shall consider the criminal‟s
antecedent, motive, personal circumstance, standard of education and
the gravity of the crime and the circumstances in which the crime is
committed.

The FDRE Criminal Code has provided for different types of penalties
which include primary penalties, secondary penalties and measures.

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Primary penalties are believed to have an effect on the property, liberty
and life of the criminal. The law has also provided for special type
penalties applicable to young criminals. Secondary penalties are
penalties which are imposed together with primary penalties. These
include caution, reprimand, admonishment, public apology and
deprecation of rights.

On the other hand, measures are quite different from primary and
secondary penalties. The sole purpose of measures is reforming the
criminal. For this reason, strictly speaking, measures are not
punishment. There are preventive, corrective and curative measures
applicable to young and irresponsible persons.

In assessing punishment, courts are required to consider extenuating

and aggravating circumstances. The FDRE Criminal Code has
provided for general and special extenuating circumstances on one
hand and general and special aggravating circumstances on the other.
Therefore, regard shall be had to those aggravating and extenuating
circumstances in imposing punishment on the criminal.

Miscellaneous questions

1. Discuss the basic features of punishment.

2. Explain different purposes of punishment.

3. Discuss the three models of structuring punishment.

4. What are the purposes of punishment under the FDRE Criminal

Code?

5. Discuss principles of punishment.

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6. What are the grounds for suspension of punishment?

7. Discuss the two ways of suspending punishment.

8. List the different types of punishment provided under the FDRE

Criminal Code.

9. Explain primary penalty, secondary penalty and measures.

10. Compare and contrast rigorous punishment and simple

imprisonment.

11. Explain the notions of aggravating circumstance and extenuating

circumstance.

12. Discuss the difference between general extenuating and special

extenuating circumstances.

13. Compare and contrast general aggravating and special aggravating

circumstances.

14. Do you think that double aggravation and extenuation is

prohibited?

15. Illustrate special aggravating circumstances.

16. Explain material concurrence and notional concurrence.

17. Discuss the legal effects of material concurrence.

18. How is the court to assess punishment in cases of notional

concurrence?

19. What the legal effect of recidivism vis-a-vis assessment of

punishment?

20. How is the court to assess penalty in cases of cumulation of

aggravating and extenuating circumstances?

21. Do you agree with the way the court assess the penalty in
Getachew Haile Vs Public prosecutor?

22. What is your stand with the appellate court‟s decision on the
sentence passed by the lower court in the case Habtamu Denbi Vs
public prosecutor

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23. How do you see the factor the cacceiasion court has taken into
account in considering the punishment imposed on the criminal in
the case between sheik Abdulahi Gelmo Vs Public prosecutor

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