CHAPTER THREE: THE ETHIOPIAN LEGAL FRAMEWORK ON THE RIGHT TO REMAIN SILENT RIGHTS OF THE

ARRESTED PERSONS

3. Introduction

International human right instruments impose an obligation on states parties to respect and implement the
rights they have committed to protect. The obligation includes making legislative, administrative and
other measures necessary to implement them. As we know, Ethiopia is a signatory to some international
human right instruments such as UDHR, ICCPR and other regional agreements. As a result, Ethiopia
incorporates fundamental human rights freedoms under its substantive and procedural laws. The right of
accused persons to remain silent, to counsel and the right against self-incrimination are among the rights.

Accordingly, this chapter sub-divided in to two sections. In the first section the writer addresses the basic
constitutional guarantees to the accused and arrested persons as stipulated in FDRE constitution. The
second section discusses the recognition of the right to remain silent rights under Ethiopian criminal
justice, particularly, in the FDRE constitution, the criminal procedure code of 1961, the revised criminal
code, and the new anti-terrorism proclamation.

3.1 The Basic Constitutional Guarantees to the Accused and Arrested Persons

FDRE constitution guarantees to arrested and accused persons. The right to be informed the reasons for
their arrest and of any charge against them. This right is enshrined in article 19(1) and 20(2) of the
constitution.
Right of Persons Arrested
1. Persons arrested have the right to be informed promptly, in a language they understand, of the reasons
for their arrest and of any charge against them.
2. Persons, arrested have the right to remain silent. Upon arrest, they have the right to be informed
promptly, in a language they understand, that any statement they make may be used as evidence against
them in court.
3. Persons arrested have the right to be brought before a court within 48 hours of their arrest. Such time
shall not include the time reasonably required for the journey from the place of arrest to the court. On
appearing before a court, they have the right to be given prompt and specific
Explanation of the reasons for their arrest due to the alleged crime committed.

Rights of Persons Accused

1. Accused persons have the right to a public trial by an ordinary court of law within a reasonable time
after having been charged. The court may hear cases in a closed session only with a view to protecting the
right to privacy of the parties concerned, public morals and national security.
2. Accused persons have the right to be informed with sufficient particulars of the charge brought against
them and to be given the charge in writing.As per these sub-provisions, the arrested person shall be
informed the reasons of his arrest and why the police put him in custody. He has also the right to be
informed with the particulars of the charge brought against him and to be given the charge in writing.
Such information must be given as soon as the arrest takes place. The word “promptly” in the provision
implies that such notice shall be communicated to the arrested person at the possible earlier time when the
person put in to custody. Such information must be given in a language which is a mother tongue of the
arrested person if possible or if not in a language understandable to him. The other constitutional
guarantee is the right to be brought before a court within 48 hours of their arrest.
This enables the arrested person to be visited by and communicated with the court about his treatment and
other custodial rights. “Such time shall not include the time reasonably required for the journey from the
place of arrest to the court.” This is due to the fact that the person may be arrested in a place other than
place of court. Here, it is worth noting that the 48 hours are not the time to institute a charge against the
arrested person, rather the time for the police to bring the suspect before the nearest court thereby
informing that the civil rights and liberties of the person are respected. 1

Moreover, arrested persons have the right to be presumed innocent until proved guilty. This right is
enshrined in article 14(2) of the ICCPR. This article reads “everyone charged with a criminal offence
shall have the right to be presumed innocent until proved guilty according to law.All persons shall be
equal before the courts and tribunals. In the determination of any criminal charge against him, or of his
rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The Press and the public maybe
excluded from all or part of a trial for reasons of morals, public order (ordrepublic) or national security in
a democratic society, or when the interest of the private lives of the parties so requires, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the
interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public
except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial
disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved
guilty according to law.2

3.2 The FDRE Constitution

The FDRE constitution in chapter three incorporates basic human and democratic rights under the caption
of ‘fundamental rights and freedoms.’ Among others, the rights of arrested and accused persons have
been dealt with in article 19 and 20 of the constitution respectively. This section discusses the Miranda
rights of the arrested and accused person in a detailed manner as stipulated in the aforementioned
provisions.

Accordingly, article 19(2) states “Persons arrested have the right to remain silent. Upon arrest, they have

the right to be informed promptly, in a language they understand, that any statement they make may be

used as evidence against them in court. “Theright to remain silent give wide recognition article 19 (2)

FDRE constitution without limitation Persons, arrested have the right to remain silent.

The above sub-article contains two separate but interrelated rights of the arrested person. The first
statement provides for the right to remain silent of the arrested person. This is simply the
acknowledgement of the right without imposing any obligation upon the police to inform such right to the
arrested person. Here, we have to make a distinction between “the right to remain silent” and “the right to
be informed that you have the right to remain silent3
1
FDRE CONSTITUTION ,1995

2
ICCPR
3
The right to remain silent is incorporated in FDRE constitution while the latter is missed
The former is a substantive right of every one, which is always there with the individual. This is part of
his right to freedom of expression, since someone may express himself through silence. This right should
be given, not only to arrested persons but also to every person. Of course, this right may have special
relevance with arrested persons, due to their vulnerability to coercion. This right imposes no obligation
upon the police, even though the police shall not compel the arrested person to make confessions or
admissions which could be used in evidence against him. If the police obtain evidence through coercion,
such evidence shall not be admissible in court of law4

3.3 The Ethiopian Criminal Procedure Code

Ethiopia enacts the criminal procedure code in 1961 as part of the package of legislation enactments to
modernize its legal system. Book II chapter two of this code deals with the procedure that should be
adhered during police investigation.

Particularly, article 27 of the code read as follows;

1 “any person summoned under article 25 or arrested under article 26,50 or 51 shall…be asked to answer
the accusation or complain made against him.”

2 “he shall not be compelled to answer and shall be informed that he has the right not to answer and that
any statement he may make may be used in evidence.”

Sub article 2 of this provision contains three separated but interrelated rights;

 The right to remain silent

 The right to be informed that he has the right to remain silent

 The right to be informed that any statement he may make may be used in evidence against him

The Ethiopian criminal procedure code recognizes the right of the arrestee to consult a lawyer if she
requests so. As per article 61 of the criminal procedure code, any person detained or on remand shall be
permitted forthwith to call and interview his advocate. Wondwossen argue that since the provision
requires the authorities to allow the arrestee to consult his advocate “forthwith” the suspect must be
allowed to consult his lawyer at whatever stage the suspect expresses the desire to do so. 5

Ethiopian criminal procedure code recognized the right to remain silent only during police interrogation
time.

3.4 The 2004 Revised Criminal Cod

4
See Article 19(5) of the FDRE constitution.

5
WondwossenDemissiekassa, Ethiopian criminal procedure, school of law Addis Ababa university, 2012 pp 100.
The FDRE criminal code of 2004 incorporates some provisions to punish public servants charged with
arrest, custody or interrogation of an individual, if the act against the law and violate procedural guide
lines hence article 423 stipulates;

“any public servant who, contrary to law or in disregard of the forms and safeguards prescribed by law,
arrests, detainees or otherwise deprives another of his freedom is punishable with rigorous imprisonments
not exceeding 10 years and fine’’

This provision seems to cover the pre arrest, arrest as well as post arrest procedural requirements. The
term ‘’disregard of the forms and safeguards prescribed by law’’ has great importance in our case. These
procedural safeguards includes securing court warrant, bringing the arrested person to the nearest court
within 48 hours, respecting his or her human rights, and informing his or her right to remain silent, to
counsel as well as that anything he or she say may be used as evidence against his or her in court of law if
he or she is being interrogated. Hence, the police officer or any other public servant may face the
consequence stipulated in article423, if it has proved that he arrests or detainees another person“contrary
to law or in disregard of the forms and safeguard’s prescribed by law’’

More specifically, article 424 provides that any public servant charged with the arrest, custody,
supervision, escort or interrogation of a parson is criminally liable, if he or she “…improperly induces or
gives a promise, threatens or treats the person concerned in an improper or brutal manner…be it to obtain
a statement or a confessions…’’ the punishment provided for this crime is simple imprisonment or fine,
or in serious cases, with rigorous imprisonment not exceeding 10 years and fine. If the act constitutes an
additional crime, the person shall subject to concurrent punishment. Criminal Code of ETHIOPIA (2004) has
declared any improper practices against those rights during pretrial as criminal act.The legal frameworks of
ETHIOPIA do no prescribe exceptions to these rights. However, the legal frameworks remain silent concerning who
shall bear the burden of proving the existence or otherwise of coercion during interrogation against the accused.

Generally, the revised criminal code imposes criminal liability on law enforcement officials who acts
against law, or arrests or detains an individual without adhering to the procedural rights and safeguards of
the arrested person. This punishment is imposed in addition to the inadmissibility of the evidence
obtained through improper methods.6

3.5 The New Anti-Terrorism Proclamation

The FDRE House of Representatives enact anti-terrorism proclamation under proclamation no.652/2009.
This proclamation designed to prevent terrorism and terrorist attacks thereby enhancing the right of
people to live in peace, freedom and secure environment. To this end, the government is obliged to take
serious measures before, during and after terrorist attacks. In doing so, individual human rights and
freedoms may be violated or restricted. Even innocent individuals may be subject to police abuse and
their right might be infringed.Here, we are weighing the value of individual rights in relation to that of the
mass. The above proclamation contains few provisions regarding evidentiary and procedural rules. Hence,
article 23 of the proclamation reads as follows;

Ethiopian 2004 Revised criminal cod

6
“Without prejudice to the admissibility of evidences to be presented in accordance with the criminal
procedure code and other relevant legislations, the following shall be admissible in court for terrorism
cases;

1) Intelligence report prepared in relation to terrorism, even if the report does not disclose the
source or the method it was gathered

At this juncture, it is worth discussing that the legislature intends any evidence to be admissible in court
no matter its source and its method of gathering. The legislature seems to protect the public interest at the
expense of individual human and procedural rights. This opens a door to police abuse and extensive
human right violations. However, this can be justifiable by the public safety exception to the right to
remain silent (Miranda warning). According to this exception, a police officer can interrogate a suspect
without informing him that he has a right to remain silent; that anything he says may be used as evidence
against him; that he has a right to counsel; or if he is indigent, one will be appointed for him at state
expense. But still, the exception is only applicable in cases of emergency times. To state differently, the
police officer may proceed to question the suspect without giving him the right to remain silent( Miranda
warning) when there is a compelling circumstance that endangers the public safety or national security.
So, the provision seems to go beyond the scope of the exception. 7

CHAPTER FOUR: CONCLUSION AND RECOMMENDATION

4.1. CONCLUSION

Everyone has a right against self-incrimination. The arrested person shall not be compelled to testify
against himself. This protection is incorporated in international instruments constitutions and other
domestic laws. Many democratic countries upgraded their police custody system so as to ease the
interrogation environment to arrested persons.

Since the 1960s famous Miranda vs. Arizona case, courts have become doubtful about the confession
given by the suspect during police interrogation. This is because they have realized that the custody
environment itself is inherently fearsome and coercive. The Miranda warning was developed by the US
Supreme Court to give the suspect more protection.

The standard of Miranda warning incorporates four different but interrelated rights of the arrested person.
Accordingly, the arrested person shall be informed that she has a right to remain silent; that any statement
she does can and will be used as evidence against him in court of law; that she has a right to counsel; and
that if she is indigent a lawyer will be appointed for him. The above mentioned rights, otherwise called
Miranda rights, have been recognized under the international instruments, particularly the ICCPR.
However, such international instruments cannot be relied upon as a strong mechanism against systematic
abuses in detention centers, particularly, during custodial interrogations. Suspected persons may confess
due to the prolonged interrogation or boring and repetitive questions.

The right to remain silent

Despite its insufficiency, the Miranda warning helps the suspect to understand her procedural rights
during interrogation as well as to refrain from self-incriminatory statements. Since 1960s the Miranda
7
Ethiopian anti-terrorism proclamation
warning was suggested by the court as a guideline to follow by police officers during interrogation, at the
pain of refusal of evidence obtained without warning.

Inline to the above discussions, it is important to assess and discuss the Ethiopian criminal justice system
towards the recognition of Miranda rights. Ethiopia faced with great changes in respect to human and the
recognition of Miranda warning in Ethiopian criminal justice, we are talking about the provisions of the
FDRE constitution, Ethiopian criminal procedure code of 1961, the criminal code of 2005, the new anti-
terrorism proclamation No. 657/2009 and other relevant laws.

When we begin with the FDRE constitution, it only incorporates one sect of the Miranda warning. The
only recognized Miranda right in the constitution is “the right to be informed promptly… that any
statement they make may be used as evidence against them in court.” With regard to the other three
components of Miranda warning, the constitution simply puts the right to remain silent and the right to
counsel without imposing an obligation upon the interrogator to inform the suspect of his rights. To be
specific, there is a big difference between the right to remain silent and which is recognized in the
constitution and the right to be informed that you have the right to remain silent. Similarly, the right to
counsel is different from the right to be informed that you have the right to counsel. The constitution does
not guarantee the right of the arrested person to be informed that she has right to remain silent and to
counsel of her choice or if she is indigent a lawyer will be appointed for her at state expense before any
questioning. This makes the constitution incomplete with respect to the recognition of Miranda rights.

The Ethiopian criminal procedure code of 1961, recognizes two factions of Miranda warning guideline,
namely, the right to be informed that she has right to remain silent and that any statement she may make
may be used in evidence. Unfortunately, the code does not provide the right to counsel at all, let alone the
right to be informed that the suspect has the right to counsel.

The revised criminal code imposes criminal liability on law enforcement officials who acts against law, or
arrests or detains an individual without adhering to the procedural rights and safeguards of the arrested
person.

On the other hand, the new anti-terrorism proclamation seems hostile with the concept of Miranda rights.
This proclamation gives broad power to the police to obtain any evidence in whatever means. The
legislature intends any evidence to be admissible in court no matter its source and its method of gathering.
The public safety exception of Miranda warning stipulates that the interrogator can interrogate the suspect
without giving her Miranda warning, if there is compelling circumstance. This proclamation extends this
exception even to normal circumstances. So, it seems to go beyond the scope of the exception.

The writer is of the opinion that the Miranda rights are not fully recognized under the Ethiopian legal
system, nor developed through case law. This may lead to gross human right violations of arrested and
accused persons. Our constitution does not clear explanation about the right to remain silent during
pretrial hearing or at trial.
4.2. RECOMMENDATION

Pursuant to the above stated conclusions, the writer recommends the following points;

 The legislature shall enact specific and comprehensive interrogation rules. Such rules shall
contain provisions which clearly stipulate the procedures of arrest and interrogation. More
specifically, it shall contain provisions that impose upon the police an obligation to give Miranda
warning to the suspect before any questioning and shall also provide sanctions (serious
punishments) in case of non-observance. And also enact clear law about right to remain silent
both hearing or at pretrial.

 The government shall be politically committed to improve the environment of interrogation by

giving training and education to law enforcement officials about human and procedural rights of
arrested and accused persons.

 The police commission shall prepare a training manual for police officers. Such manual shall
include adequate coverage of human rights education as well as other relevant procedural
safeguards that protect the arrested and accused persons from self-incrimination, particularly,
during interrogation.

 The media shall play a great role in creating and improving public awareness about it’s the right
to remain silent Miranda rights. Violations of procedural safeguards of the arrested and accused
person shall be reported timely.

 Law schools and lawyers’ associations shall focus in improving interrogation laws and providing
training and education to law enforcement officials. Moreover, they shall produce professional
lawyers who stand to protect human right violations of arrested persons.

 Another comprehensive research shall be conducted to assess the practical difficulties that lead to
gross human right violations during interrogation.