Prosecution Duty Of Disclosure Of Criminal Evidence Under Ethiopian Criminal Justice System

Abstract

In criminal justice system prosecutor have enormous powers in every phases of criminal cases from start of investigation to sentencing of defendants. While, if there is no controlling mechanisms for disparity of power and resource, it creates unbridgeable gaps of power and resource between the two parties and puts the defendant at serious disadvantage in relation to the prosecutor. One of fair trial components that used to control this imbalance of power and resource is prosecution duty of disclosure. Disclosure allows the defendant to gain knowledge of the case against him and therefore put him in the position to mount an informed defence. Having said that, disclosure is one of the most important step in the preparation of defence and safeguarding equality of arms which is enshrined under art 14(3b&e) of ICCPR. However, this research is to investigate whether prosecution duty of disclosure of criminal evidence is sufficiently incorporated in Ethiopian law. The research has revealed that, Ethiopian disclosure rule is accompanied by the problems that include; legal, structural and practical problems; the first, lack of clear legal recognition of prosecution duty of disclosure can be inevitable consequences of the inequality of the parties. Besides, the lack of clear rule of disclosure, witness protection proc. no. 699/2010 gives uncontrolled power for prosecutor to grant or reject anonymity/concealment of identity of witnesses; this is strongly jeopardize fair trial right of accused. Second, structural problems surrounding disclosure include; one-sided investigation process and non-participation of defendants and their lawyers in investigation process and prohibition of any communication with prosecution witnesses are the causes for non-disclosure. The third, the practice of CCI and federal high court indeed failed to manifested disclosure as duty of prosecution. The decisions were also reached without balancing the disclosure right and other competing interests. Hence, the research used the combination of doctrinal legal research for analysis of laws and cases on the issues of disclosure; qualitative approach for investigation of practical applications of disclosure and it also used of some experiences from other jurisdictions that are used as a lesson for Ethiopia on how to balance competing interests. To that end, the study found out Ethiopian criminal justice system has not been expressly incorporated disclosure rule, absence of enforcement mechanism, legitimate limitation grounds with standards of balancing mechanism. Therefore, the research recommends that government should reform the existing Ethiopian laws of disclosure and enact disclosure rules that envisage fair proceeding.