29 Dec 2020

የፍትሐዊ ውሳኔ አሰጣጥ

የፍትሐዊ ውሳኔ አሰጣጥ ፥

ከስነ ስርዓት አካሄድ አንጻር ውሳኔ ሰጪ የሆነ የመንግስት አካል በቅን ልቦና ተመርቶ አድሎአዊ ያልሆነ ውሳኔ መስጠትና ከሁሉም በላይ በውሳኔው መብቱ ወይም ጥቅሙ ሊነካ ለሚች
ል ለማንኛውም ግለሰብ ከውሳኔው በፊት የመሰማት መብቱን ሊጠብቅለት ይገባል፡፡

የአስተዳደር ውሳኔ ፍትሐዊነት በዋነኛነት ሁለት መሰረታዊ መርሆዎችን ያቅፋል፡፡ አንደኛው የመሰማት መብት ሲሆን (The right to fair hearing) በላቲን audi alteram partem ተብሎ ሲጠራ አንዳንዴ ‘ተቃራኒውን ወገን ሰማው’ ወይም ‘ማንም ሰው መከላከያው ሳይሰማ እርምጃ ሊወሰድበት አይገባም’ (no one should be condemned unheard) በሚል ይገለጻል፡፡a

ሁለተኛው የኢ-አድሎአዊነት መርህ (The rale against bias) ነው፡፡ በላቲን nemo judex in causa sua የሚለውን የህግ አባባል / legal maxim/ ይወክላል፡፡ ወደ አማርኛው ስንመልሰው ‘አንድ ሰው በራሱ ጉዳይ ራሱ ዳኛ ሊሆን አይገባም’ የሚል መልዕክት አለው፡፡b በእንግሊዝ እነዚህ ሁለት መርሆዎች ‘የተፈጥሮ ፍትሕ’ የሚባለውን በዳኞች የዳበረ ፅንሰ ሀሳብ የሚወክሉ ሲሆን የህጉ የመሰረት ድንጋይ ተደርገው ይቆጠራሉ፡፡

የማንኛውም አገር የኃይማኖት፤ የፖለቲካና የትምህርት ስርዓት መለኪያ ስርዓቱ የቀረጸው ሰው ነው፡፡

የማንኛውም አገር የኃይማኖት፤ የፖለቲካና የትምህርት ስርዓት መለኪያ ስርዓቱ የቀረጸው ሰው ነው፡፡

የማንኛውም አገር የኃይማኖት፤ የፖለቲካና የትምህርት ስርዓት መለኪያ ስርዓቱ የቀረጸው ሰው ነው፡፡

የፍትሐዊ ውሳኔ አሰጣጥ

የፍትሐዊ ውሳኔ አሰጣጥ ፥

ከስነ ስርዓት አካሄድ አንጻር ውሳኔ ሰጪ የሆነ የመንግስት አካል በቅን ልቦና ተመርቶ አድሎአዊ ያልሆነ ውሳኔ መስጠትና ከሁሉም በላይ በውሳኔው መብቱ ወይም ጥቅሙ ሊነካ ለሚች
ል ለማንኛውም ግለሰብ ከውሳኔው በፊት የመሰማት መብቱን ሊጠብቅለት ይገባል፡፡

የአስተዳደር ውሳኔ ፍትሐዊነት በዋነኛነት ሁለት መሰረታዊ መርሆዎችን ያቅፋል፡፡ አንደኛው የመሰማት መብት ሲሆን (The right to fair hearing) በላቲን audi alteram partem ተብሎ ሲጠራ አንዳንዴ ‘ተቃራኒውን ወገን ሰማው’ ወይም ‘ማንም ሰው መከላከያው ሳይሰማ እርምጃ ሊወሰድበት አይገባም’ (no one should be condemned unheard) በሚል ይገለጻል፡፡a

ሁለተኛው የኢ-አድሎአዊነት መርህ (The rale against bias) ነው፡፡ በላቲን nemo judex in causa sua የሚለውን የህግ አባባል / legal maxim/ ይወክላል፡፡ ወደ አማርኛው ስንመልሰው ‘አንድ ሰው በራሱ ጉዳይ ራሱ ዳኛ ሊሆን አይገባም’ የሚል መልዕክት አለው፡፡b በእንግሊዝ እነዚህ ሁለት መርሆዎች ‘የተፈጥሮ ፍትሕ’ የሚባለውን በዳኞች የዳበረ ፅንሰ ሀሳብ የሚወክሉ ሲሆን የህጉ የመሰረት ድንጋይ ተደርገው ይቆጠራሉ፡፡

27 Dec 2020

በመከላከያ ሰራዊት አዋጅ 1100/2019፣ ክፍል 2 አንቀፅ 8 መሰረት፣



በመከላከያ ሰራዊት አዋጅ 1100/2019፣ ክፍል 2 አንቀፅ 8 መሰረት፣

 "ማንኛውም ምልምል ወታደር መሰረታዊ የዉትድርና ስልጠናውን እንዳጠናቀቀ [...ህዳግ/omitted...] ወታደራዊ ቃለ-መሐላ ይፈፅማል" ይልና፣ አንቀፅ 9 (2) ደግሞ "ማንኛውም የሰራዊት አባል ፣ ሕገ-መንግስቱን እና ህገመንግስታዊ ስርዓቱን የማክበርና ማስከበር ግዴታ" እንዳለበት፣ የቃለ-መሃላው ዋና አላማም ሕገ-መንግስቱንና የህገመንግስታዊ ስርዓቱን ማስከበር መሆኑን ይጠቁማል።

 ፪) ትዕዛዝ/Order:


 በተጨማሪ፣ በአዋጁ ክፍል 2፣ አንቀፅ 9፣ ንዑስ አንቀፅ (3) መሰረት፣ "የሰራዊቱ አባል፣ ሌሎች የሃገሪቱን ህጎች፣ ወታደራዊ ህጎች፣ መመሪያዎችና ቛሚ ትእዛዞችን የማክበር ግዴታ[ም]" እንዳለበት ያስረዳል።


 (ለ) የህጎች ተዋረድ /Hierarchy of Laws:


 ፩) ሕገ-መንግስት /Constitution:
 በኢ.ፌ.ድ.ሪ ሕገ-መንግስት አንቀፅ 9 (1): "ሕገ-መንግሥቱ የሀገሪቱ የበላይ ሕግ ነው፡፡ ማንኛውም ሕግ፣ ልማዳዊ አሰራር፣ እንዲሁም የመንግሥት አካል ወይም ባለሥልጣን ውሳኔ ከዚህ ሕገ መንግሥት ጋር የሚቃረን ከሆነ ተፈጻሚነት አይኖረውም" በማለት ሕገ- መንግስቱ የሀገሪቱ የበላይ ህግ (supreme law) ብቻ ሳይሆን ማንኛውም የመንግስት ባለስልጣን ትእዛዝ፣ ውሳኔ፣ ደንብ፣ አዋጅ ወዘተ…ከሕገ-መንግስቱ ከተቃረነ ተፈፃሚነት እደሌለው ያስረዳል።


 በሆኑም፣ አንድ የሰራዊት አባል ቃል ከገባለት የህገመንግስት ድንጋጌ የማይቃረኑ ውሳኔዎችን፣ ትእዛዞችን፣ መመሪያወችን ብቻ ያከብራል ማለት ነው። በ ሕገ-መንግሥቱ አንቀፅ 9 (1) በግልፅ እንደሰፈረው፣ የማናቸውም የመንግስት ባለስልጣን፣ የአስፈፃሚ አካል እና ሃላፊ ትእዛዝ ወይም መመሪያ የሕገመንግስቱን መሰረታዊ መርሆዎች ከጣሰ ተፈፃሚ እንደማይሆን ያመላክታል።


 ፪) የበታች ህጎች/ Subordinate Legislations:


 ሕገ-መንግስቱን ለመሙላት የሚወጡት የበታች ህጎች፣ ለምሳሌ፥ የፓርላማ አዋጆች፣ የሚኒስትሮች ምክር-ቤት ደንቦች፣ የመከላከያ ሚኒስቴር መመሪያዎች፣ የበላይ መኮነን ትእዛዞች ከሕገመንግስቱ ተቃርኖ ካላቸው ቅድሚያ ሊሰጠዉ የሚገባው ሕገ-መንግስቱ ይሆናል ማለት ነው።


 (ሐ) ትዕዛዝ ወይስ ቃለ-መሀላ/Order vs. Oath?


 ሕገ-መንግስት የህጎች የበላይ ስለሆነና የሰራዊት አባላት በቀዳሚነት ቃለ-መሃላ የሚገቡት ህገመንግስቱን ለመጠበቅ በመሆኑ፤ በሌላ መልኩ፣ አዋጆች፣ ደንቦች፣ መመሪያዎች እና ትእዛዞች ተፈፃሚነታቸዉ ከሕገ-መንግስቱ በታች ስለሆነ፣ የህግ ተቃርኖ ሲከሰት፣ ከመመሪያ፣ ደንብ ወይም ሌላ ህግ ይልቅ ልእልና ላለው ሕገ-መንግስት እና ለህሊናችው ታማኝ ይሆናሉ ማለት ነው።


 (መ) አለማቀፍ ልምዶች/International Norms:


 አለመረጋጋትና ብጥብጥ በሰፈነባቸው ሃገራት የመከላከያ ሰራዊት ጣልቃ እንዲገባ በሚታዘዝበት ወቅት ሰራዊቱ ሶስት መሠረታዊ የህሊና ግጭቶችን ያስተናግዳል:


 ● እንዲከላከልና እንዲጠብቅ ቃል የገባለት ሲቪል ዜጋ ላይ ጉዳት ማድረስ የሚፈጥረው የስነልቦና ተፅእኖ (insoluble moral dilemma)፣


 

 ●ጉዳት ካደረሰ ሊከተል የሚችለውን በ አለም አቀፍ የጦር ወንጀለኛ ፍርድ ቤት (international military tribunal) ተጠያቂነት ስጋት፤


 ● በሌላ መልኩ፣ የበላይ አለቃን ትእዛዝ (superior order) ባለማክበር የማእረግ መነጠቅ (reduction in rank)፣ ያለ ክብር መሰናበትና (dishonorable discharge) ብሎም በወታደር ፍርድ ቤት (martial court) መጠየቅን እስከ መፍራት ይደርሳል::



 ፩ኛ) ምሽግ መቀመጥ፣ አለመሳተፍ/Quartering:


 በመንግስትና ዜጎች መካከል ፍጥጫ፣ የርስበርስ ግጭት፣ ህዝባዊ አመፆች ሲቀሰቀሱ፣ ያንዳንድ ሃገራት ልምድ እንደሚያሳየው፣ የሰራዊት አባላት ምሽግ ውስጥ ወይም የተለየ ቦታ በመቀመጥ፣ በገለልተኝነት የየትኛውንም ጎራ ባለመደገፍ (neutral/passive)፣ ሊከሰት ይችል የነበረን አላስፈላጊ ደም መፋሰስ በማስቀረት፣ ሰላማዊ፣ ህጋዊና ሁሉን ያሳተፈ ዘላቂ መግባባት እንዲፈጠር የሚያደርጉበት ስልት አንድ ቦታ በመቀመጥ
 አለመሳተፍ /quartering/ ነው።

According to Article 8 of Article 2 of the Defense Forces Proclamation 1100/2019, "any recruited soldier shall perform a military oath as soon as he / she has completed his / her basic military training," and Article 9 (2) states that "any member of the Armed Forces  "It is an obligation to respect and uphold the constitution and the constitutional order," he said.

 1) Order:


 In addition, Article 2, Article 9, Sub-Article (3) of the Proclamation stipulates that "a member of the Armed Forces shall have the obligation to abide by other laws, military laws, directives and directives of the country."


 (B) Hierarchy of Laws:


 1) Constitution:
 Article 9 (1) of the FDRE Constitution states: "The Constitution is the supreme law of the land. Any law, customary practice, or decision of a government body or authority which is inconsistent with this Constitution shall not apply."  The government declares that not only the supreme law of the country but also any order, decision, regulation, proclamation, etc. of any government official is unconstitutional.


 In any case, it means that a member of the military will only obey decisions, orders, and directives that do not conflict with the Constitution.  As stated in Article 9 (1) of the Constitution, the order or directive of any government official, executive body and head shall not be enforced if it violates the basic principles of the Constitution.


 2) Subordinate Legislations:


 If the lower laws, such as the proclamations of the parliament, the regulations of the Council of Ministers, the directives of the Ministry of Defense, and the orders of the Chief of Staff are unconstitutional, then the constitution should be given priority.


 (C) Order Vs.  Oath?


 Because the constitution is the rule of law and members of the military are sworn in first to uphold the constitution;  On the other hand, because proclamations, rules, directives and orders are enforceable under the Constitution, when there is a conflict of law, they are more loyal to the Constitution and its conscience than to any directive, regulation or other law.


 (D) International Norms:


 When the army is ordered to intervene in countries of instability and violence, the army faces three basic conflicts of conscience:


 In The insoluble moral dilemma of harming a civilian who is promised protection


 

 ስጋት Consequences of international military tribunal liability for damages;


 ● On the other hand, disobedience to the superior order can lead to a reduction in rank, dishonorable discharge and even fear of being tried in a martial court.



 5) Fortification: Quartering:


 Conflict between government and citizens, civil strife, civil unrest, as the experience of some countries shows, by keeping members of the military in a fort or in a separate area, neutral / passive, avoiding unnecessary bloodshed, peaceful, legal and inclusive lasting  One of the ways to build consensus is to sit in a quarter.

13 Dec 2020

የአስተዳደር ጉባኤ

የአስተዳደር ጉባዔ
ስያሜና ትርጓሜ

የአስተዳደር ጉባዔ (Administrative Tribunal) ከመደበኛ ፍርድ ቤት ውጭ ያለ ገለልተኛ የዳኝነት አካል ነው፡፡ ከተግባራዊ እይታ አንፃር ከመደበኛ ፍርድ ቤትና ከአስተዳደር መስሪያ ቤት ከፊል ባህሪያትን ይጋራል፡፡ ሁለት ባህሪያትን በአንድ ጊዜ ቀይጦ በመያዙ ሙሉ በሙሉ ‘እዚህ ወይም እዚያ’ ብሎ መፈረጅ ይከብዳል፡፡ ከፊል ጎኑ አስተዳደራዊ ከፊሉ ደግሞ ዳኝነታዊ በመሆኑ ቁርጥ ያለ መደብ የለውም፡፡a
ይህን ድርብ መልኩን የሚያንፀባርቅ ትርጓሜ ከማየታችን በፊት ‘የአስተዳደር ጉባዔ’ የሚለው አገላለጽ ከቋንቋ አጠቃቀም አንጻር በዚህ መጽሐፍና በሌሎች አገራት ግልጋሎት ላይ የዋለበትን መንገድ በጥቂቱ ማውሳት ያስፈልጋል፡፡ በአገራችን በተለምዶ ‘የአስተዳደር ፍርድ ቤት’ ስንል በእንግሊዝ፣ በአውስትራሊያና በሌሎች አገራት Administrative Tribunal በመባል የሚታወቀውን ከላይ የተጠቀሰውን ከመደበኛ ፍርድ ቤት ውጭ ያለ አስተዳደራዊ ክርክሮችን ለመዳኘት የተቋቋመ አካል ማለታችን ነው፡፡ ሆኖም አማርኛውን ከእንግሊዝኛው ጋር ስናዛምደው የአስተዳደር ፍርድ ቤት እና Administrative Tribunal አቻ መልዕክት አያስተላልፉም፡፡ የአስተዳደር ፍርድ ቤትን በትክክል የሚገልጸው እንግሊዝኛ Administrative Court ሲሆን የእንግሊዝኛውን ‘Administrative Tribunal’ የሚወክል የአማርኛ ቃል ደግሞ ‘የአስተዳደር ጉባዔ ነው፡፡
Administrative Court በእንግሊዝ አጣሪ ዳኝነት ስልጣን ያለውን የከፍተኛውን ፍርድ ቤት የሚጠቁም ሲሆን ‘የአስተዳደር’ የሚለው ቅጥያ የተጨመረበት በአጣሪ ዳኝነት (Judicial Review) ስልጣኑ እንጂ ከአስተዳደሩ (ከስራ አስፈፃሚው) የመንግስት አካል ጋር ቅርበት ሆነ ግንኙነት ስላለው አይደለም፡፡ ፍርድ ቤቱ ሙሉ በሙሉ መደበኛ ፍርድ ቤት ነው፡፡ በጀርመን ‘Administrative Court’ የሚለው መጠሪያ ከታች ወደ ላይ ራሳቸውን ችለው ከተቋቋሙት አምስትb ዓይነት መደበኛ ፍርድ ቤቶች መካከል አንደኛው ነው፡፡c ወደ ፈረንሳይ ስንመጣ Administrative Court በብዙ መልኩ ‘ፀጉረ-ልውጥ’ ፍርድ ቤት ነው፡፡ በአወቃቀሩ የሥራ አስፈፃሚው አካል ሲሆን በዳኝነት ተግባሩ ከመደበኛው ፍ/ቤት ጋር የሚስተካከል ነጻነት ያለው ገለልተኛ የዳኝነት ተቋም ነው፡፡ በአደረጃጀቱ የወንጀልና የፍትሐብሔር ጉዳዮችን እንደሚያዩት መደበኛ ፍርድ ቤቶች የመጀመሪያ ደረጃ፣ የይግባኝ ሰሚ እና የሰበር ስልጣን ያላቸው የፍርድ ቤት ሰንሰለቶች አሉት፡፡
በዚህ መጽሐፍ ‘የአስተዳደር ጉባዔ’ የሚለው አገላለጽ ጥቅም ላይ የዋለው በእንግሊዝ፣ በጀርመንን አሊያም በፈረንሳይ ያለውን Administrative Court በማመልክት ሳይሆን በተቃራኒው የእንግሊዝኛውን Administrative Tribunal አቻ ትርጉም በመወከል ነው፡፡
ወደ ትርጓሜው ስንመጣ ምሁራን ከተግባራቱ አንጻር በሚከተለው መልኩ ገልጸውታል፡፡
Broadly, a tribunal is an adjudicative body, empowered to hear and decide disputes in particular circumstances. Tribunals are sometimes referred to as court substitutes, in that they have the power to make legally enforceable decisions, but they are regarded as having the advantages over courts of speed, cheapness, informality, and expertise.d
Tribunal ቃሉ ሲተረጎም ‘ችሎት’ ወይም ‘ዳኛው የሚያስችልበት ቦታ’ (seat of the judge)፣ ጉባዔ፣ ሸንጎ ማለት ነው፡፡ ስለሆነም የአስተዳደር ጉባዔ (Administrative Tribunal) ማለት በህግ ተለይተው የተደነገጉ የአስተዳደር ክርክሮችን ሰምቶ የመወሰን ስልጣን ያለው የዳኝነት አካል ማለት ነው፡፡ በስልጣኑ ስር የሚያያቸው ጉዳዮች በዋነኛነት በግለሰብና በመንግስት መካከል የሚነሱ ክርክሮችን ቢሆንም አልፎ አልፎ በግለሰቦች መካከል የሚፈጠሩ ክርክሮችን (ለምሳሌ የአሠሪና ሠራተኛ ጉዳይ ወሳኝ ቦርድ) ይዳኛል፡፡

አቶ ልደቱ አያሌ




12 Dec 2020

ART. 123-TRIAL TO BE FIXED


 

When the charge has been filed under Art. 109, the court shall forthwith fix the date of trial and cause the accused and the public prosecutor to be summoned to appear on the date and at the time fixed by the court. It shall take such steps as are necessary to secure the attendance of the accused, if in custody.
 
Art.124-Witness summonses.
 
(1) So soon as the date of the trial has been fixed, the public prosecutor and the accused shall give the registrar a list of their witnesses and expert, if any, whose presence is necessary. The registrar shall forthwith issue summonses in the form prescribed in the Third Schedule to this Code.
(2) The public prosecutor and the accused shall be responsible for ensuring the all exhibits to be produced at the trial shall be in court on the day fixed for the trial.
 
Art.125-Bench warrant.
 
Where an accused person or a witness, who has been duly summoned and there is proof of service of such summons, has failed to appear as required, the court may issue a bench warrant and such accused person or witness shall be brought before the court be the police.
 
Art.126-Opening of hearing.
 
(1) The court shall sit on the day and at the hour fixed for the hearing.
(2) Where an interpreter is required for the purposes of any proceedings, the court shall select a qualified court interpreter. Where none is available it will select a court shall select a qualified court interpreter. Where none is available it will select a competent interpreter but no person shall be selected who is a relative to the accused or prosecutor or is himself a witness.
(3) The case shall be called and the accused shall be produced.
 
Art.127-Attendace of accused.
 
(1) The accused shall appear personally to be informed of the charge and to defend himself. When he is assisted by an advocate the advocate shall appear with him.
(2) The accused shall be adequately guarded and shall not be chained unless there are good reasons to believe that he is dangerous or may become violent or may try to escape.
 
Art.128-Verification of identity;
 
When the accused has been brought into the dock his identity, age and trade shall be established.
 
Asrt.129.-Reading out of charge.
 
The charge shall be read out to the accused by the presiding judge who shall then ask the accused if he has any objection to the charge.
 
Art.130-Objection to the charge.
 
(1) If the accused has anything to say as to the form or contents of the charge, the provisions of Art.119 et seq. shall apply.
(2) The provisions of Art. 131 shall apply where the accused states:
(a) That he the case is pending before another court; or
(b) That he has previously been acquitted or convicted on the same charge or
(c) That the charge against him has been barred by limitation or the offence with which he been charged has been made the subject of pardon or amnesty; or
(d) That he will be embarrassed in his defiance if he is not granted a suppurate trial, where he is tried with others; or
(e) That no permission to prosecute as required by law has been obtained; or
(f) That the decision in the criminal case against him cannot be given until other proceedings have been completed; or
(g) That he is not responsible for his acts.
(3)where no objects is raised under this Article immediately after the accused has been required by the court to state his objections, the accused shall be barred from raising any such objection at any later stage in the trial, unless objection be such as to prevent a valid judgment being given.
 
Art.131-Settlement of objections.
 
(1) The court shall take down any objection that may have been raised under Art.130 (2) and shall ask the prosecutor whether he has any statement to make in relation to such objection.
(2) The court shall decide forthwith on the objection where the objection can be disposed of by reference to the law or the facts on which the objective is based are not disputed by the prosecutor.
(3) Where a decision cannot be made forthwith owing to lack of evidence. The court shall order that the necessary evidence be submitted without delay.
(4) The court shall make its decision forthwith upon the necessary evidence having been produced.
 
Art.132-place of accused.
 
(1) After the charge has been read out and explained to the accused, the presiding judge shall ask the accused whether he pleads guilty or not guilty.
(2) Where there is more than one charge the presiding judge shall read out and explain each charge one by one and shall record the plea of the accused in respect of each charge separately.
(3) The plea of the accused shall be recorded as nearly as possible in the words of the accused.
 
Art.133-Plea of not guilty.
 
(1) Where the accused says nothing in answer to the charge or denies the charge, a plea of not guilty shall be entered.
(2) Where the accused admits the charge with reservations, the court shall enter a plea of not guilty.
 
Art.134-Plea of guilty.
 
(1) Where the accused admit without reservations every ingredient in the offence charged, the court shall enter a plea of guilty and may forthwith convict the accused.
(2) Where a plea of guilty has been entered, the curt may require the prosecution to call such evidence for the prosecution as it considers necessary and may permit the accused to call evidence.
 
Art.135-Amendment of plea.
 
(1) Where a plea of guilty has been entered and it appears to the court in the course of proceedings that a plea of not guilty should have been entered, the court may change the plea to one of not guilty.
(2) The conviction, if any, shall then be set aside.
Section 2-Evidence and judgment
 
Art.136- opening of case of calling of witnesses for prosecution.
 
(1) After the plea of the accused has been entered, the public prosecutor shall open his case explaining shortly the charges he proposes to prove and the nature of the evidence he will lead. He shall do so in an impartial and objective manner.
(2) The public prosecutor shall then call his witnesses and experts, if any. The witnesses and experts shall be sworn or affirmed before they give their testimony.
(3) They shall be examined in chief by the public prosecutor, cross-examined by the accused or his advocate and may be re-examined by the public prosecutor.
(4) The court may at any time put to a witness any question which appears necessary for the just decision of the case.
 
Art 137- Form of questions put in examination-in-chief.
 
(1) Questions put in examination-in chief shall only relate to facts which are relevant to the issues to be decided and to such facts only of which the witness has direct or indirect knowledge.
(2) No leading question shall be put to a witness without the permission of the accused or his advocate of the public prosecutor, as the case may be.
(3) Question put in cross-examination shall tend to show to the court what is erroneous, doubtful or untrue in the answers given in examination- in chief. Leading question may be to a witness in cross-examination.
 
Art.138-Atecedents accused.
 
(1) Unless otherwise expressly provided by law, the previous convictions of an accused person shall not be disclosed to the court until after he has been convicted.
(2) The previous convictions of an accused person shall not be included in the record of any preliminary inquiry.
 
Art.139-Re-examiniation.
 
The public prosecutor, the accused or his advocate may on re-examination only ask questions for the purpose of clarifying matters which have been raised in cross-examination.
 
Art.140- Absence of cross-examination.
 
Failure to cross-examine on a particular point does not constitute an admission of the truth of the point by the opposite party.
 
Art.141- Acquittal of accused when no case for prosecution.
 
When the case for the prosecution is concluded, the court, if it finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, shall record an order of acquittal.
 
Art.142-Opening of case for defence.
 
(1) Where the court finds the t a case against the accused has been made out and the witnesses for the injured party, if any, have been heard it shall call on the accused to enter upon his defence and shall inform him that he may make a statement in answer to the charge and may call witnesses in his defence.
(2) The accused or his advocate may open his case and shortly explain his defence stating the evidence he proposes to put forward. He shall then call his witnesses and expert, if any, who shall be worn or affirmed before they give their testimony.
(3) The witnesses for the defense may be called in any order,
Provided that, where the accused wishes to make a statement, he shall speak first.
The accused may not be cross-examined on his statement but the court may put questions to him for the purpose of clarifying any part of his statement.
 
Art.143-Additional witnesses.
 
(1) The court may at any time before giving judgment call any witness whose testimony it thinks is necessary in the interests of justice.
(2) The prosecution and the accused may call any witness whose name does not appear on the list of witnesses. Such witness shall be summoned where the court is satisfied that he is a material witness and the application for a summons is not being made for the purpose of delaying the case.
(3) The prosecutor may in a case committed for trial to the High Court call any witness who has not given evidence at the preliminary inquiry where he informs the accused in writing of the name of the witness he proposes to call and of the nature of the testimony he will give.
 
Art.144-Depositions taken in preliminary inquire may be put in evidence.
 
(1) The deposition of a witness taken at a preliminary inquiry may be read and put in evidence before the High Court where the witness is dead or insane, cannot be found, is so ill as not to be able to attend the trial or is absent from the Empire.
(2) The deposition of an expert taken at a preliminary inquiry may be read and put in evidence before the High Court although he is not called as a witness.
 
Art.145-Statements made in police investigation may be put in evidence.
 
(1) The court may, on the request of the accused or the prosecutor, refer to statement made by a witness to a police officer in the curse of police investigation.
(2) In may then, if it thinks it expedient in the interests of justice, direct the accused to be furnished with a copy thereof and such statement may be used to impeach the credit of such witness.
 
Art-146-objection to evidence.
 
Where the prosecutor the accused objects to the admission of any evidence or the putting of a question to a witness, the court shall decide forthwith on the admissibility of such evidence.
 
Art-147-Recording of evidence
 
(1) The evidence of every witness shall start with his name, address, occupation and age an indication that he has been sworn or affirmed.
(2) The evidence of each witness shall be taken down in writing by the presiding judge or, if, for some reason, he is unable to record the evidence, by another judge or clerk under his personal direction and superintendence.
(3) The evidence shall be divided into evidence –in chief, cross-examination and re-examination with a not as to where the cross-examination and re-examination begin and end.
(4) The evidence shall ordinarily be taken down in the form of a narrative.
Provided that the presiding judge may, in his direction, take down or cause to be taken down any particular question and answer.
Art.148-Final addresses.
(1) After the evidence for the defence has been concluded the prosecutor may address the court on questions of law and fact.
(2) The accused or his advocate shall then address the court on questions of law and fact. He shall always have the last word.
(3) Where there are more than one accused the presiding judge shall decide in which order the accused or their advocates shall address the court.
Art.149-judgmetn and sentence
(1) When the final addresses including the addresses under Art.156, if any, have been concluded, the court shall give judgment. The judgment shall be dated and signed by the judge delivering it. The judgment shall contain summary of the evidence, shall give reasons for accepting or rejecting evidence and shall contain the provisions of the law on which it is based and, in the case of a conviction, the article of the law under which the conviction is made.
(2) Where the accused is found not guilty, the judgment shall contain an order of acquittal and, where appropriate, an order that the accused be released from custody.
(3) Where the accused is found guilty, the court shall ask the prosecutor whether he has anything to say as regards sentence by way of aggravation or mitigation. The prosecutor may call witnesses as to the character of the accused.
(4) Where the prosecutor has made his submissions on sentence the accused or his advocate shall be entitled to reply and may call witnesses as to character. Where accused does not admit any fact regarding his antecedents, the prosecutor shall be required to prove the same.
(5) The court shall then pass sentence and shall record the articles of the law under which the sentence has been passed.
(6) Nothing herein contained shall affect the provisions of Art.195 and 196 Penal Code.
(7) After delivery of judgment the prosecutor and the accused shall be informed of their right of appeal.
Chapter 5-Private prosecution
 
Art.150-Filing complain and charge
 
(1) Where a private complainant has been authorized under Art. 44 (1) to conduct a private prosecution, he shall within fifteen days file his complaint and the charge in the court having jurisdiction.
(2) Where a charge is not in accordance with the authorization the court shall require the private complainant to amend the charge to confirm to such authorization.
Art.151-Attempt to reconcile the parties.
(1) When the complaint and the charge have been filed the court shall summon the complainant and the accused to appear.
(2) Before reading out the charge to the accused the court shall attempt to reconcile the parties. Where a reconciliation is effected, if shall be recorded by the court and shall have the effect of a judgment.
Art.152- Security for costs.
Where a reconciliation has not affected, the court shall decide whether the private prosecutor should give security for costs. Where an order for security is made, the sum to be secured and the nature of the security shall be stated in the order.
Art.153-Hearing and judgment.
(1) Where the private prosecutor has complied with the order, if any, under Art.152, the case shall proceed in accordance with Art.123-149, the parties having the same rights and duties as in public proceedings.
(2) The court shall give judgment as in ordinary cases.
Chapter 6-injured party in criminal proceedings
Art.154-principle
(1) Where a person has been injured by a criminal offence, he or his representative may at the opening of the hearing apply to the court trying the case for an order that compensation be awarded for the injury caused. The application shall be in writing and shall specify the nature and amount of the compensation sought. He shall not on filing his application pay the prescribed court fees us though it were a civil case.
(2) The person making the application shall be shown the list of the witness to be called by the prosecution and defiance and shall be asked whether he wishes additional witnesses to be called. Where he wishes additional witnesses to be called, he shall be required to pay the prescribed fees for the issue of witness summonses as though it were a civil case.
(3) The provisions of this chapter shall apply to public and private prosecutions
(4) Where the person making the application acts in the capacity of private prosecutor, he shall specify which witnesses he calls in support of the prosecution and which he calls in support of his civil claim. The provisions of sub-art. (1) and (2) shall apply.
Art.155-Application dismissed.
(1) The court shall consider the application and shall of its own motion or on the request of the prosecution or the defence refuse the application where.
(a) A young person is the accused; or
(b) The accused is being tried in his absence; or
(c) The injured party has instituted proceedings in a civil court having jurisdiction; or
(d) The person making the application is not qualified for suing; or
(e) The claim for compensation cannot be determined without calling numerous witnesses in addition to those to be called by the prosecution and defiance; or
(f) The court is of opinion that the hearing of the injured party’s claim for compensation is likely to confuse, complicate or delay the hearing of the criminal case.
(2)The application shall be dismissed where the amount of compensation claimed exceeds the pecuniary jurisdiction of the court.
(3) where the court dismisses the application its decision shall be final and no appeal shall lie against it. The injured party shall be informed by the court that he may file a claim against the accused in a civil court.
Art.156- Application allowed.
(1) Where the application is allowed the injured party shall be entitled to take part in the proceedings and shall have with regard to evidence all the rights of an ordinary party.
(2) The court shall at the close of the case for the defence permit the injured party or his representative to address the court in person or by advocate on the question of the amount of compensation to be awarded. The accused of his advocate shall have the right to reply.
Art.157-injured party may withdraw.
An injured party may at any time before the close of the case for the defence withdraw his application and thereupon he may file a claim against the accused in the civil court having jurisdiction.
Art.158- Acquittal or discharge.
Where the accused is acquitted or discharged, the court shall not adjudicate on the question of compensation and shall inform the injured party that he may file a claim against the accused in the civil court having jurisdiction.
Art.159-Order on award of compensation.
(1) The court when awarding compensation to an injured party shall order that:
(a) The amount of compensation so awarded be paid to the injured party or his representative: and
(b) Costs as provided for civil cases be paid to the injured party or his representative; and
(c) The accused pay the court fees as if it were a civil case.
(2) Judgment shall be given as in an ordinary case.


ትኩሳት

ትኩሳት https://www.goodreads.com/book/show/8887849



ቤተልሄም ታፈሰ


10 Dec 2020

The implementation of the concept in our country


Before discussing the jurisdiction of the courts in our country, it is necessary to first make a few points on the content and implementation of the concept.  In order to have a clear picture of the place, current situation and future directions of our country's legal and constitutional system, we must begin by giving a national definition of the concept.  What is an Inquiry?  Except in the United Kingdom, the United States, France, or any other country, the answer is no.  This results from two things.  the first;  Administrative law is a reflection of a country's public administration, political and constitutional system and history more than any other domestic law.  As a result, the principles and concepts of the Inquisition and other administrative laws differ significantly from country to country.  The second point that accompanies this idea is that any interpretation presented to an inquiry judge provides a partial answer to the basic themes of the concept and its application.  Therefore, if we try to copy the divorce from England or France and apply it in our country on loan or in the name of experience, it will be 'cow dung'.
 There is no clear picture of the nature and performance of the Inquisition in Ethiopia, and there are only a handful of cases that have been presented to the courts.  This caused the concept to be inconsistent.
 If we start from the beginning, the question is, is there an inquisitive judiciary in Ethiopia?  There is no definite answer to this question.  If given, it will not be valid.  It is possible to unravel the complexity of the question, break it down into sub-questions, and come up with a concise conclusion.  In this way, its existence is based on fact.
 Here are some questions to be answered.
 Do our courts have jurisdiction to review and correct the actions of the administration?  If so, what is the legal and constitutional basis for their authority?
 What are the issues that can be considered by the Inquiry?  In other words, what administrative functions can the courts investigate?
 What grounds of judicial review can administrative actions be considered in court?
 When a client asks for an appeal to be heard by an investigator, what is the procedure that goes from questioning to 'hearing and decision making'?
 What decisions can the courts make when an appeal is made to an inquiry?  That is, what can the party who has been harmed by the administrative action find in the court?
 If there is an inquiry in Ethiopia, all the above questions need to be answered.  Sometimes there are answers to some questions, but for others it is difficult to find answers.  The final conclusion in answering these questions is that judicial activism, even if it is not judicial activism, requires courage to be fully implemented in Ethiopia.  Judges, on the one hand, must stand up for the rights and freedoms of individuals and, on the other hand, refrain from interfering in the work of the executive.
 Although the concept and scope of the Inquisition in general, and its structure in Ethiopia in particular, will be explored in subsequent chapters, one key and fundamental point should always be kept in mind.  Namely:  Administrative law in Ethiopia is not yet independent of the constitution and civil law.  The legitimacy of the administration's actions is not determined by an independent administrative law or a judicial inquiry system.  There is no separate administrative justice system (civil and criminal justice system) that holds the administration accountable for its actions, except for a limited number of cases that the legislature allows to appeal.

የአጣሪ ዳኝነት ምንነት እና ህገ መንግስታዊ ፋይዳው


የአጣሪ ዳኝነት ምንነት እና ህገ መንግስታዊ ፋይዳው
የአጣሪ ዳኝነት (Judicial Review) ትርጓሜ ከህገ መንግስት ወይም ከአስተዳደር ህግ አንጻር ሊቃኝ ይችላል፡፡ በህገ መንግስታዊነት ማዕቀፍ አጣሪ ዳኝነት ማለት በህግ አውጭው የሚወጡ ህጐች ህገ መንግስታዊ ባለመሆናቸው በመደበኛ ፍ/ቤት፣ በህገ መንግስታዊ ፍ/ቤት ወይም በሌላ ራሱን የቻለ ተቋም አማካይነት የሚሻሩበት ስርዓት ነው፡፡a በአስተዳደር ህግ ውስጥ አጣሪ ዳኝነት ማለት በህግ አስፈፃሚው ወይም በአስተዳደር መ/ቤቶች የሚወሰዱ ውሳኔዎች፣ የሚፈጸሙ ድርጊቶች እና በውክልና የሚወጡ ደንቦችና መመሪያዎች ህጋዊነት በመደበኛ ፍርድ ቤት የሚጣራበት ስርዓት ነው፡፡b ምንም እንኳን በህገ መንግስታዊነት እና በህጋዊነት መካከል ጥርት ያለ መለያ መስመር ማበጀት አዳጋች ቢሆንም የዚህ መጽሐፍ በተለይም የዚህ ምዕራፍ ወሰን ህገ መንግስታዊ አጣሪ ዳኝነትን አያካትትም፡፡
የአጣሪ ዳኝነትን ፅንሰ ሀሳብ በሚገባ ለመረዳት እንዲያስችለን በመስኩ ምሁራን የተሰጡ ሁለት ትርጓሜዎችን እንጠቅሳለን፡፡ በእንግሊዝ አጣሪ ዳኝነት ማለት በህግ ስልጣን የተሰጣቸው አካላት ስልጣናቸውን በመገልገል የሚፈጽሙት ድርጊት ወይም አልድርጊት (inaction) በከፍተኛው ፍርድ ቤት የሚጣራበት ስርዓት ነው፡፡
Judicial review can be defined as the procedure through which the High Court supervises the public law actions and inactions of public authorities and other bodies that are exercising statutory powers, performing public duties, and/or taking decisions on matters of public interest.c
በሌላ አነጋገር አጣሪ ዳኝነት ማለት የአስተዳደር መ/ቤቶች እና ሌሎች የማስተዳደር ስልጣን የተሰጣቸው አካላት በህግ አውጪነት (rule-making) እና ዳኝነት ሰጪነት (adjudicatory power) ስልጣናቸው የሚያወጣቸው ደንብና መመሪያዎች ወይም የሚሰጧቸው አስተዳደራዊ ውሳኔዎች ህጋዊነት በመደበኛ ፍ/ቤቶች የሚታረምበት ስነ-ስርዓት ነው፡፡ በማጣራቱ ሂደት የፍ/ቤቶች ሚና ህጋዊነትን ከማረጋገጥ አያልፍም፡፡ የሚከተለው ትርጓሜ ህጋዊነት የስርዓቱ አንኳር ባህርይ እንደሆነ ያሳየናል፡፡
Judicial review is essentially a procedure whereby the courts are able to determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision.d
መደበኛ ፍ/ቤቶች አንድን አስተዳደራዊ ውሳኔ በአጣሪ ዳኝነት በሚያዩበት ወቅት የውሳኔውን ህጋዊነት ከማረጋገጥ ባለፈ ትክክለኛነቱን የማየት ስልጣን የላቸውም፡፡ የውሳኔው ይዘት በጉዳዩ ላይ ልዩ እውቀት ላላቸው የአስተዳደር መ/ቤቶች የሚተው እንጂ በመደበኛ ፍ/ቤቶች ጣልቃ ገብተው የሚመረምሩት ጉዳይ አይደለም፡፡
የአስተዳደር ህግ በተለይም የአጣሪ ዳኝነት ጽንሰ ሀሳብ በዳኞች መስመር ቀያሽነት የለመለመና ያደገ፤ መሰረቱ በዳኞች የተተከለ ህግ ነው፡፡
Judicial review is in effect a judge-driven process as it stems from the common law. In other words, it is the courts themselves which have developed, expanded and refined the principles, grounds and remedies available in judicial review proceedings. In effect, the courts determine who can seek judicial review, against whom and on what grounds.e
የኮመን ሎው የህግ ስርዓት በሚከተሉ አገራት ብቻ ሳይሆን በተጻፈ ህግ ብቻ በምትመራው በፈረንሳይ ሳይቀር የአስተዳደር ህግ በተለይም አጣሪ ዳኝነት የዳኞች ህግ ነው፡፡ ይህ መሆኑ ዳኞች ወሰኑን (scope of judicial review) እንደየአገራቸው ነባራዊ ሁኔታ የግለሰቦችን መብትና ነፃነት ከውጤታማ አስተዳደር ጋር እያመዛዘኑ ህጋዊነት የማስፈን ሚናቸውን በብቃት እንዲወጡ ያስችላቸዋል፡፡ በአንድ በኩል ህገ-ወጥ በሆነ አስተዳደራዊ ድርጊት ምክንያት የግለሰቡ መብት እንዳይጣስ ፍ/ቤቶች ለተበደለ ወገን መፍትሄ መስጠት ይጠበቅባቸዋል፡፡ በሌላ በኩል በረባ ባልረባው በሚቀርብ ክስ ውጤታማ አስተዳደር ሊሰናከልና የመንግስት እጆች ሙሉ በሙሉ በፍ/ቤቶች ተጠፍንገው ‘አስተዳደራዊ መኮላሸት’ ሊሰፍን አይገባም፡፡
የአጣሪ ዳኝነት መሰረታዊ ግብ የስልጣን ባለቤት የሆኑ አካላት ተግባራቸውን በህግ ተለይቶ በተሰጣቸው የስልጣን ገደብ ውስጥ ማከናወናቸውን እንዲሁም በህግ የተጣለባቸውን ግዴታ መወጣታቸውን ማረጋገጥ ነው፡፡f በህገ መንግስት መነፅር ካየነው ፍርድ ቤቶች በአጣሪ ዳኝነት ሚናቸው የህግ የበላይነትን ያስከብራሉ፡፡ ሎርድ ሆፍማን የተባሉ የእንግሊዝ ዳኛ በአንድ ውሳኔ ላይ ይህንን ሲያብራሩ እንደተናገሩት፤
The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally in accordance with a fair procedure and within the powers conferred by Parliament.g
ወደ አማርኛ ሲመለስ፤
የአጣሪ ዳኝነት መርሆዎች አስተዳደራዊ ውሳኔዎችና እርምጃዎች በህግ አውጭው በተፈቀደ የስልጣን ገደብ ውስጥ ምክንያታዊ ይዘት ኖሯቸው በፍትሐዊ መንገድ መወሰዳቸውን ያረጋገጣሉ፡፡ በዚህም የህግ የበላይነት ፅንሰ ሀሳብን በተጨባጭ ይተገብራሉ፡፡

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Criminal Procedure Code 6/2013 PDF by ሕግ እና ፍትህ on Scribd