QUESTIONING JURISDICTION OF OROMIA COURTS OVER CRIMES COMMITTED IN ADDIS ABABA
Draft Criminal Procedure and Evidence Code, Article 25 (3)
A Draft Criminal Procedure and Evidence Code (Draft Code) intended to replace the 1961 Criminal Procedure Code has been submitted to the House of Peoples’ Representatives (HoPR) for its approval and promulgation. One of the matters the Draft Code regulates relates to the criminal jurisdiction of courts over crimes under the 2004 Criminal Code. This article examines Article 25 (3) of the Draft Code that empowers Courts of State of Oromia to exercise jurisdiction over some criminal cases in Addis Ababa. When seen in the light of the Constitutional division of power between the Federal Government and the States, this provision is constitutionally dubious and pragmatically flawed. Thus, the HPR needs to consider its omission from the final version of the Draft Code.
Jurisdiction of Courts of the State of Oromia over Crimes Committed in Addis Ababa under the Draft Code
As per Article 25 (1) (g) of the Draft Code, “offences committed in cities or places accountable to the Federal Government” are within the jurisdiction of Federal Courts. To the extent this provision relates to Addis Ababa, it is subject to an exception that bestows jurisdiction upon the Oromia State courts. As provided under Article 25 (3) of the Draft Code, “notwithstanding the provisions of sub-article (1)(g) of this Article, Oromia Courts shall have criminal jurisdiction over offences committed against Oromia state institutions, properties, documents and interests situated in the Addis Ababa City Administration.”
According to Article 49 of the Constitution, all legislative, executive and judicial powers within the territory of Addis Ababa belong to the Addis Ababa City Administration or/and the Federal Government. Authorizing Oromia State Courts to exercise jurisdiction over crimes committed in Addis Ababa is a new development in Ethiopia’s close to three decades of federal experience warranting some level of enquiry.
One may think of three possible explanations for granting jurisdiction to Oromia State Courts over some crimes committed in Addis Ababa. First, this might be thought to be an aspect of what the Constitution of the Federal Democratic Republic of Ethiopia (Constitution), under its Article 49, refers to the “special interest” of the State of Oromia in Addis Ababa. The Constitution has provided instances where the State of Oromia might be treated differently from other states in relation to Addis Ababa City. According to Article 49 (5) of the Constitution, “the special interest of the State of Oromia in Addis Ababa, regarding the provision of social services or the utilization of natural resources and other similar matters, as well as joint administrative matters arising from the location of Addis Ababa …, shall be respected.” This provision anticipates a law that would determine “particulars” on this matter. No law has yet been legislated. The scope and content of special interest of the State of Oromia in Addis Ababa, in the absence of this law, would be far from being clear. However, as can be understood from the list of matters in connection with which Article 49 (5) of the Constitution recognizes the special interest of the State of Oromia in Addis Ababa, no matter how generously the provision might be interpreted, this constitutional provision would not authorize apportioning part of the federal government’s judicial power to Oromia Regional State.
The second way to view the allocation of jurisdiction over cases that arise in Addis Ababa to Oromia State courts might be a delegation from the federal government. Article 50 (9) of the Constitution allows the Federal Government to delegate its powers to the States. This constitutional provision authorizes the Federal Government, as it deems necessary, to “delegate to the States powers and functions granted to it by Article 51 of the Constitution.” The 21 powers of the Federal Government listed under Article 51 do not directly relate to its judicial power. Delegation of federal judicial power to States is specifically regulated by Articles 78 and 80 of the Constitution. These provisions delegate the jurisdiction of the Federal High and First Instance Courts to State Supreme and High Courts respectively until and unless these Federal Courts are established in the States. What these provisions mean is that where crimes within the jurisdiction of the Federal High Court are committed within the territory of the State of Oromia, the Supreme Court of Oromia would have jurisdiction over the crimes. Similarly, where crimes within the jurisdiction of the Federal First Instance Court are committed within the territory of the State of Oromia, the High Court of Oromia would have jurisdiction over these crimes. Thus, neither Article 50 (9), which relates to delegation of federal powers in general, nor Articles 78 and 80, which specifically relate to delegation of federal judicial power to state courts, accommodate the type of judicial jurisdiction Article 25 (3) of the Draft Code grants to Oromia State Courts.
Finally, empowering Oromia State courts over some crimes committed in Addis Ababa might be thought to be predicated on the assumption that the offences committed against “Oromia state institutions, properties, documents and interests” are state matters which would fall within the jurisdiction of the State of Oromia, even if they are committed in Addis Ababa. Be the very validity of this assumption as it may, there would be no reason, under this assumption, to privilege the State of Oromia over other States and empower its courts over such crimes committed in Addis Ababa. The assumption on which the exception for the State of Oromia is based would as well apply to crimes against institutions, properties, documents and interests of other States. That is, courts of any of the States against whose “institutions, properties, documents and interests” crime has been committed should have jurisdiction over such crimes despite the fact that the crimes are committed in Addis Ababa.
Understandably, due to geographical proximity of the State of Oromia to Addis Ababa, Oromia State Courts might have a greater number of such cases compared to other State Courts. However, there is no factual or legal basis to rule out the possibility for other States to have “institutions, properties, documents and interests located in Addis Ababa”against which crimes might be committed. For example, institutions of the State of Amhara such as the Amhara Credit and Saving Institution and the Amhara Mass Media Agency have branch offices in Addis Ababa. If state courts of Oromia have jurisdiction over crimes committed against institutions of the State of Oromia located in Addis Ababa, there is no reason for the State Courts of Amhara not to have jurisdiction on crimes committed against the Amhara State Institutions located in Addis Ababa such as the aforementioned ones.
The Way Forward
The jurisdiction of courts of the State of Oromia over cases arising in Addis Ababa, as provided under Article 25 (3) of the Draft Code, can hardly be sourced from the Constitution. Neither the special interest of Oromia nor delegation of federal powers to a State seems to justify this jurisdiction. To the extent the Draft Code gives this power to courts of the State of Oromia, it empowers the state courts to have jurisdiction that they do not have under the Constitution. That is, while Article 50 (8) of the Constitution provides that “federal and state powers are defined by this Constitution,” Article 25 (3) of the Draft Code gives the State of Oromia a judicial power that it does not have under the Constitution. Thus, this draft provision that allocates jurisdiction on offences committed in Addis Ababa to Oromia Courts would not be compatible with the Constitutional division of power between the Federal Government and the States. By denying a legal force to “any law …, which contravenes” it, the constitution, under its Article 9(1) prohibits such a law. Thus, the HoPR needs to consider removing Article 25 (3) from the Draft Code.
If Article 25 (3) of the Draft Code has to be retained in the final version of the Criminal Procedure and Evidence Code, the HoPR should broaden its scope, for the reason noted above, to allow not only the State Courts of Oromia but also courts of other States to have similar jurisdiction on similar cases thereby guaranteeing logical consistency and equal treatment of States.
Contributed by Wondwossen Demissie (PhD)
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