School of Law

LLM Program, International Human Rights Law

International Human Rights Course

Examining the Inadequacies of Bail Legislation in Ethiopian Criminal Justice System:

Focused on Corruption Cases

Submitted By: Solomon Meazaw Terefe

Submitted To: Brook K (Lecturer, School of Law)

February, 2023
 Examining the Inadequacies of Bail Legislation in Ethiopian Criminal Justice System:
Focused on Corruption Case

By Solomon Meazaw Terefe*

Abstract

Currently the issue of corruption has becoming the alarming issue in Ethiopia, as it is highly prevalent.
In the recent time the federal government of Ethiopia give due attention to prevent and combat corruption
in all its administration and bring suspects in the court o law. In the national call of the government to
fight against corruption to protect the interest of the people at large and to safe the economy of the country
which is highly faced by the mal administration of the corruptors, many suspects detained in the
corruption offences. The challenges bail increase the case have increased due to the national call to fight
against corruption is highly gained due attention by the FDRE and regional governments on its level of
the government. It is, therefore, many of suspected of persons in corruption case arrested, the issue of
bail is raised, however, there are no clear guidelines to govern the court for to deny or grant bail in
corruption cases except providing punishment ranges to grant or deny bail. And also, the punishment
clause in corruption offences, in bail case is debatable is among lawyers and even courts varying in
interpretation.

Furthermore, the corruption offences stating under anti corruption proclamation 881/2015, contains in
all its provision on the offence, lower limit of punishment less than ten years. Another issue in such a
case is laid on how the courts determine the alleged offence punishable more than ten years for the
purpose of bail proceedings. There is the need to have clear legislation that will govern the courts to
decide bail bond in corruption cases in conforming to the FDRE constitution and international human
rights instruments. This paper seeks to examine the inadequacy of the laws on bail in corruption cases in
Ethiopia. Additionally, it focuses on what the grounds of the court use to deny or grant bail right.
Moreover, the effects of the inadequate of bail legislation in corruption on the specific fundamental and
basic human rights are the concern of this paper.

Key words: Bail, Federal Ethics and Anti - Corruption Legislation, fundamental human rights, Ethiopia

*LLB (Gondar University, School of Law), Candidate of LLM (Gondar university, School of Law)
,Currently Working as Public Prosecutor –Head of Human Rights department-west Gondar
 Introduction

Ethiopia is the 94 least corrupt nations out of 180 countries, according to the 2022 corruption perceptions
index reported by transparency international. Now, corruption is an aching issue in Ethiopia. It remains
a pervasive issue and has becoming a matter of great concern that the Ethiopian government request a
national call to combat corruption both at the regional and federal level of government, has established
national anti -corruption committee to coordinate the governments campaign against corruption. The
FDRE government has take high commitment and pledged to make addressing it a priority. It has been a
pain for the past 30 years and till now that has stabbed the Ethiopian economy in back and has hindered
a lot of development of the country. Even corruptions become a means of conflict and unrest, because
corruption not only involves high culprit /officials in different levels of the government, but also, it also
trickles down to the common citizen of Ethiopia. It affects the country’s social economic development
and governance structure. FDRE Prime minister Abiy Ahmed said "Corruption a pest that eats a country
from the inside and depletes its resources and it is a threat to Ethiopian’s national security",1 and he added
corruptors, “they turned the red line we put in place for corruption in to a red carpet and theft is being
considered as right.”2 Prime Minister Abiy Ahmed further stressed the need to take serious measures,
which includes both legal measures as well as the implementation of reform tools against corruption. 3
Due to the national call to fight against corruption to minimize its effects and to bring criminals in front
of justice to safeguard the interest of the public at general, the established investigating committees have
investigating corruption crimes and arresting many of suspects.4 At this juncture, the most common
experience shows in corruption case the police before gathering relevant evidence about the crime
committed, arrest the individuals for the mere accusation and the arrestee obliged to stay long time in the
custody or prison. In a bid to promote fair trial, the right to bail has been provided on reasonable
conditions to an arrested person as they await trial on reasonable conditions unless there are compelling

1
Prime Minister of the Federal Democratic Republic of Ethiopia, Official Speech<
http://www.9555pmo.et > accessed in February 19, 2023.
2
Id.
3
Id.
4
National Anti – Corruption Committee Commences Operations to Fight Organized Theft,
Corruption, Addis Ababa, December 2, 2022 (Fana Broad Cast Corporation). <
https://wwwfanabc.com > English, accessed in February 19, 2023.
reasons not to be released. 5 And bail right is clearly provided under the FDRE Constitution.6 Bail is not
just a matter of abstract in criminal justice system, but a practice with real effects on the accused /arrested
persons.7 In deed these accounts demonstrate that the proceedings of bail needs due attention in the
criminal justice system. And also, the law governing bail shall be legislated in line with a state
constitution and international human rights standard.

Ethiopian anti- corruption laws adopted new dimension as requirements for bail issue, granting or
denying of bail rights based on imprisonment ranges 8 that the corruption offence holds which dangerous
to the accused/arrested person’s fundamental human rights. The Ethiopian Anti-Corruption Special
Procedure and Rule of Evidence Proclamation articulates the prediction of guilty for the denial of bail
rights .therefore , as this paper examines the inadequacy of bail legislation in Ethiopian criminal justice
in the case of corruption cases , organized by four sections. First, legal framework of bail is addressed.
Second, Courts Empowered in Deciding Bail on Corruption Case in Ethiopia pointed out. Third, Bail on
Ethiopian anti- corruption legislation and its impacts on some specific human rights is the concern of this
paper. Forth, Grounds in denying bail for non - bailable corruption offences is examined.

In addressing these sections, I examined Ethiopian anti – corruption legislation providing bail in line with
FDRE constitution and international human rights document.

1. Legal framework of bail in corruption Cases

1.1. International Human Rights Instrument

5
Article 19(4) , FDRE Constitution.
6
Id , Article 20 (6)
7
Baughman shima B, The Bail Book: A comparative look at bail in America’s criminal justice
system- introduction, Cambridge university press (2007), p.1
8
Article 3, The amendment Anti-Corruption Special Procedure and Rule of Evidence
Proclamation No.882/2015
International human rights instruments directly or indirectly regulate the right to bail. The United Nations
on international covenant on civil and political rights (ICCPR) guarantees any person arrested/ detained
on a criminal charge, the right to be brought promptly before a judge or other officer authorized by the
law, along with the right to be tried with the reasonable time, or to be release.9The ICCPR also states it
shall not be the general rule that persons awaiting trial are detained in a custody ,but release may be
subjected to guarantees to appear for trial at any other stage of the judicial proceedings and, should be
occasion arise, for execution the judgment.10 Additionally, the covenants attempt to highlight the rights
of an arrested person has the right to liberty and security.11 It further states that an arrested person ought
to be informed at the time of arrest , reason for the arrest and be informed the charged against him. 12
These particular provisions indicate for an arrested person to be granted the right to bail in criminal
charges made against him.

Another international human rights instrument that indirectly guarantees the right bail is Universal
Declaration of Human Rights (UDHR). It recognized that every one charged with a penal offence has the
right to presumed innocent until proved guilty. It further articulates that everyone has the right to life,
liberty and security of a person.13 Even though the declaration did not explicitly provided for the right to
bail, it indirectly recognize by providing the right to security, and liberty of a person and acknowledge
that the foundation of freedom ,justice, and peace in the world is the inherent dignity and inalienable
rights of members o the family.14

1.2. Regional Human Rights Instruments

In addition to international human rights instrument, the regional human right system, the African charter
on human and people’s rights the so-called “Banjul” charter, Ethiopia is a party, indirectly articulates

9
Article 9(3), UN General Assembly, ICCPR, December 16, 1996, United Nations Treaty Series,
Vol , 999, p.171
10
Id
11
Article 9(1), ICCPR, December 16, 1996
12
Id ,Article 9 (2 )
13
Article 3, Universal Declaration of Human Rights, December 10, 1948.
14
Id, the Preamble
the right to bail. The charter states that every individual have the right to have their cause heard, 15 the
right to appeal,16the right to be presumed innocent until proved guilty by a competent court or tribunal, 17
and the right to be tried in a reasonable time. 18 As it is obviously known that the African charter misses
some rights to include by name explicitly, it does not mean that thus rights did not have place in African
human right system. The African peoples and human rights commission adopted resolution in its different
decision the inclusion of these rights through interpretation by which the charter contains interpretation
provision on which the charter shall be interpreted in line with international human rights standard and
practice.19

Additionally, one can infer from African union convention on preventing and combating corruption as a
legal frame work related with human rights approach. The African union seeks a continental approach to
the problem of corruption which is similar to human rights issue in 1980s.20 The AU anti corruption
convention has adopted in July 11, 2003 and entered in to force august 5, 2005 with the objective of to
promote and strengthen the development of anti corruption mechanisms in Africa, promote and facilitate
cooperation among state parties, coordinate and harmonize policies, and legislations between states,
remove obstacles for the protection and realization of human rights, and establish necessary conditions
to foster transparency and accountability. 21State parties to the convention to discharge the objective and
goals of the convention, obliged by the principles of respect for human and people’s rights in accordance
with the African charter and other relevant human rights instrument. Most importantly the convention
provides that in preventing and combating corruption, state parties shall respect the offender’s fair trial
and prohibition of double jeopardy 22. This provision shows that the convention adopted a human rights
approach in its strategies in preventing and combating corruption in Africa. Taking in to account the

15
Article 7(1) , ACHPR, June 27 ,1981
16
Id ,art 7(1)( a)
17
Id ,art 7(1)(b)
18
Id, art 7(1)(d)
19
Id art 57
20
Transparency International, Global Corruption Report 2004, political corruption supra notes 62,
p.117 -118.
21
See the AU Anti Corruption Convention, art, 2(1, 2, 3, 4, and 5).
22
AU Anti - Corruption Convention, Art, 2(4), 3(2), 5(7), 13(3), 14.
African charter, combating and fighting against corruption without respecting human rights is a futile.23
Therefore one can concluded that the offenders fair trial and related rights the right to bail shall be
respected when the states take measures against to prevent and combat corruption.

2. National legal framework providing bail in corruption legislations

2.1 constitution of Ethiopia

Ethiopia in different regime, have adopted four written constitution in its history. The first written
constitution which was adopted in 1931, has articulated that No Ethiopian subject may be arrested,
sentenced, or imprisoned except in accordance the law. 24As one can understand the provision of 1931
constitution of Ethiopia, bail right has not explicitly recognized, however this is the only provision which
can have an implication for the protection of the right to bail for the fact that the right to personal liberty
is the basic notion which underlines the right o bail in addition to the due process of law that is an integral
part of the constitution. One can argued that inferring from article 23 of the 1931 Ethiopian constitution,
the right to bail was constitutionally guaranteed.

In the same regime, the revised constitution of 1955 had the progress for protection and adoption of
human rights by stating the right to presumption innocence, due process of law, the right to liberty, and
the right to access to justice,25 and other relating rights having an important legal significance for the
protection of the right to bail.26It is possible to say respecting these rights entails respecting the right bail.
The vise verse is true because of human rights are interrelated and interdependence, and the 1955 revise
constitution gave due attention for the progressive of human rights and hence it guaranteed the right to
bail. The third constitution is adopted in 1987 in the Dreg regime. In line with the constitution, no person
may be arrested except red handed , the arrested person shall produced in court within 48 hours,27and no

23
Berihun Adugna Gebeye , The Legal Regime of Corruption in Ethiopia : An Assessment from
International Law Perspective, Oromia Law Journal [ Vol .4, No.1], p .94
24
Article 23, Constitution, the Empire of Ethiopia, 1931
25
Article 43, 53, 108, 110, the revised imperial constitution of Ethiopia, 1955
26
Kelali Kiros The Bail Justice in Ethiopia : Challenges of its Administration ,Addis Ababa
,University, November 2011, p.21
27
Article 44 (1 ,2) , PDRF Constitution ,1987
person accused of violating the criminal law shall be considered guilty unless so determined by the
court.28 The constitution did not directly provide the right to bail, but indirectly provided by stating the
above indicated rights.

The current working constitution of Ethiopia, the FDRE constitution is adopted in 1995 which is the
supreme law of the land articulated that a person arrested have the right to be released on bail. In
exceptional circumstances prescribed by the law, the court may deny or demand adequate guarantee for
the conditional release of the arrested person. 29 Unlike the three previous written constitution, the right
to bail explicitly provided in FDRE constitution, and also, since international instruments and treaties
that ratified by Ethiopia are part and parcel of the law of the land, 30fundamental rights and freedoms
enshrined in the constitution shall be interpreted in line with international human rights instruments that
Ethiopia has adopted.31 So, bail is a constitutionally guaranteed right with limitation provided by the law.

2.2 National Anti – Corruption Legislation Providing Bail Right in Ethiopia

This paper not aimed to wrote in detail about bail in general including as other legislation provided, but
specifically address bail in corruption legislations in Ethiopia. The first legislation that provided about
bail was anti –corruption special procedure and rule of evidence proclamation No. 239 /2001.. According
to this legislation a person who is arrested on a suspicion of having committed a corruption offence shall
not be release on bail. 32 This proclamation totally neglected the right to bail. As most commentators’
argued a state in preventing and combating corruption shall respect fundamental rights and freedoms,
unless otherwise human rights will be in danger. When I see this proclamation which I mentioned above
absolutely eroded the right to bail which is totally contrary to FDRE constitution and international human
rights standards, and it was unfriendly with human rights. However, this proclamation did not work for
more than four years, and repealed by the revised anti –corruption special procedure and rule of evidence
proc No.434/2005. The revised proclamation adopted new dimension about bail rights.

28
Id, article 45(1)
29
Article 19 (6) 0f the FDRE Constitution, 1995
30
Id ,Art , 9(4)
31
Id, Art, 13 (2)
32
Article 51 (2), ACSPREP, Proc No.239 /2001
To begin with, the current working legislation which provides bail right is the revised ACSPREP No.
434/2005 and the amendment proc.882/2015 thereof. In these revised and amendment proclamations, it
is clear that some detailed provision are incorporating the right to bail. To point out what the two
legislations articulates, the paper has illustrated the content and idea of the provision which deals about
bail and related issues. As proclamation No 434/ 2005 states that the investigator may release ,on bail
,with or without surety ,a person arrested or suspected corruption offences where ;it is doubt that the
offence complained of has been committed, or it is doubt the arrested person has committed the offence
complained ,or the offence for which the person arrested is not punishable with rigorous imprisonment. 33
This provision states about police bail how the investigator release the arrested person alleged for the
commission of corruption offences.

Most importantly, in other way the two proclamations provides about court bail. In accordance with thus
proclamation the arrested person who is not released according to article 4 (2) of proc No. 434 /2005,
may apply to the court to be released on bail. 34 Furthermore the proclamation articulates that any arrested
person for corruption offences may apply to a court to be released on bail. However, as to the
proclamation an arrested person charging with a corruption offence punishable for more than ten years
imprisonment may not release on bail. 35However, this provision is amended by proclamation
No.882/2015 anti corruption special procedure and rule of evidence proclamation as amended. The
amended proclamations come up with additional criteria for non - bailable offences. The added article
states that any arrested person for a corruption offences may apply to the court to released on bail ;
provided; however that an arrested person charged or suspected with a corruption offence punishable for
more than ten years shall not be released on bail. In the same phrase of the provision, where there are
concurrent crimes punishable with more than four years and less than ten years as the punishment of two
crimes is more than ten years, the arrested person shall not be released on bail.36 A contrary reading of
this article indicates that an arrested person charged of a corruption offence punishable less than or equal
to ten years imprisonment, the arrested or accused person shall be released on bail. But, this is not
applicable without conditions. In another words, according to article 4 (4) of anti corruption special

33
Article 4(2) , The revised ACSPREP, Proc No. 434 /2005
34
Article 4(3) , The revised ACSPREP, Proc No. 434 /2005
35
Article 4(1) , The revised ACSPREP, Proc No. 434 /2005
36
Article 3 (1) , the amendment ACSPREP No.882 /2015
procedure and rule of evidence proclamation No .434/2005, the court may not allow an application to be
released on bail of the accused or the suspected may abscond, tamper with evidence, or committee other
offences. The right to bail may extend to appeal where aggravated decision made by the lower court, the
arrested or accused person may appeal to the appealable court. 37

3. Courts Empowered in Deciding Bail on Corruption Case in Ethiopia

3.1 Material jurisdiction

An independent judiciary is established by FDRE constitution. 38 Supreme judicial authority is vested in

the federal Supreme Court. The HPR may, by two third of majority vote, establish nationwide, or in some
parts of the country only ,the federal high court and first instance courts it deems necessary. Unless
decided in the manner, the jurisdiction o the federal high court and first instance court hereby delegated
to state courts.39 Additionally, states shall established state supreme, high, and first instance
courts.40Since Ethiopia is a federal state, constitutionally courts are established in both federal and
regional states to see the matter falling in their jurisdiction determined by particular laws.

Some legislation in accordance with their aim and the specific issue they adopted to solve, they are
legislated with procedural law. Anti- corruption law of Ethiopia has its own substantive and procedural
and rule of evidence legislation.41In doing so, the issue of bail jurisdiction in corruption case is
incorporated on anti- corruption special procedure and rule of evidence proclamation. In this regard, the
revised anti – corruption special procedure and rule of evidence proclamation No.434/2005 states that
matters related with arrest, search, remand, bail, restraining order or any other related matter with
investigation of corruption offence shall be made to the court which has jurisdiction to hear cases of
corruption offences.42According to this provision, the federal high court has the power to decide on bail

37
Article 5 , The revised ACSPREP, Proc No. 434 /2005
38
Article 78(1), FDRE Constitution, 1995
39
Id, Article, 78 (2)
40
Id, Article,78 (3)
41
See The revised ACSPREP, Proc No. 434/2005 and The Amendment proc No. 882/20015
42
Article 7(4) , The revised ACSPREP, Proc No. 434 /2005
over corruption offence failing under the federal matters43 whereas state courts have first instance
jurisdiction to decide on bail over corruption offences failing under state matters. 44The revised anti
corruption special procedure and rule of evidence proclamation added that corruption offences
committed in connection with the Addis Ababa or Dire Dawa administration shall be that of the
appropriate federal court as the case may be. 45 Based on the above provisions, on bail issue, the federal
courts, state high courts, and federal high courts established in Addis Ababa and Dire Dawa city
administration are empowered to decide on bail issue.

The law clearly provides that only federal and state high courts are empowered to see bail application,
but first instance courts of both federal and regional states have not empowered. However, but not clear,
the amendment anti –corruption special procedure and rule of evidence proclamation No. 882/2015 in
its amendment provision provides that The following new sub- article (5) is added after sub -article (4)
of the proclamation. The new added provision articulates that the appropriate organ may decide to submit
such matters to the nearest first instance courts when it believes that submission of such procedural
matters to the court having jurisdiction on corruption offences would affect the right of the accused, cause
loose of evidence or cause disproportionate cost.46The new provision of the amendment proclamation
seems like incorporating new dimension about bail jurisdiction empowering both first instance courts of
federal and regional states. However, who is the appropriate authority that may order the bail to be
entertained in those first instance courts stated above is not clear, and also according to the provision,
federal and regional state courts may have the power to entertain bail issue only if the appropriate
authority believes that on the ground stated under the provision. Still then, since the law is vague and
open for interpretation, it is not applicable.

As one can infer the above provision which articulates about bail jurisdiction, a person arrested suspicious
of committing corruption offences, shall apply to the court that have the jurisdiction to entertain the case
i.e. federal and regional states high courts unless the appropriate organ orders to see the matter in first

43
Id , cumulative reading of article 7(1)&d article 7(4)
44
Id ,cumulative reading of article 7(2)& article 7(4)
45
Id cumulative reading of article 7(3) &article 7(4)
46
Article 4 ,The amendment ACSPREP No.882/2015 &The new added article 7 (5) (a) , the
revised ACSPREP No 434/2005
instance courts of both states. The issue in this regard Courts is that federal high courts are not nationwide
established in Ethiopia and the same is true regional high courts are not established in the accessible
manner in all regional states territory. The non accessibility of courts not only affects the efficacy of
criminal justice system of the country but also it affects the fundamental human rights of the arrested
person who seeks to released on bail.

The fundamental human rights incorporated under ICCPR; the right to speedy trial, access to courts,
access to justice, the right to brought promptly before a judge immediately from arrest, the right to be
tried without undue delay, 47and the African charter on human and people’s rights document recognized
the bright to brought to the court in a reasonable time48those fundamental human rights of the arrested or
accused , the right access to justice, the right to speedy trial, the right to liberty, the right to brought before
a court within reasonable time, the right to have public trial within a reasonable time are provided in
FDRE constitution.49 As the writer of this paper viewed, those rights indicted above will be protected and
realized when courts are easily accessible or convenient to the accused / arrested person; or all courts
which are established in federal and regional state shall empowered by the law in order to see bail case
like that of as criminal procedure code states all courts have the power to decide on bail. 50 Bail jurisdiction
stated under the revised anti-corruption special procedure and rule of evidence proclamation No.434/200
& amendment anti-corruption special procedure and rule of evidence proclamation No.882/2015 are
inadequate to protect and realize fundamental human rights of the arrested /accused that are enshrined
under FDRE constitution, international and regional human rights instrument –Ethiopia has ratified.

3.2 Appellate Jurisdiction of Bail in Corruption Cases

In corruption case in relation with the issue of bail, both the federal and regional state supreme courts
have appellate jurisdiction. 51However, if the appropriate organ orders the bail to be entertained by the

47
Article 9 & 14 , ICCPR, December 16, 1996
48
Article 7(1 -d) , ACHPR, June 27 ,1981
49
Article 17, 19(3, 4), 20(1), 37, FDRE Constitution
50
Article ,Ethiopian criminal procedure code ,1952
51
article 5 (1) , 7 (1 ,2,3,4) RACSPREP No .434/2005
federal and regional state first instance courts, the appeal can be taken to the federal or state high courts. 52
Surprisingly, the same Proclamation provide, where an appeal is taken objecting the decision

Granting bail or the amount of bail, the decision of the lower court shall stay from being executed without
the order of the appellate court. 53 This can be taken as one limitation on the right to bail of the arrested/
accused on corruption offence since the time for how long the execution of the decision stay is not clearly
specified under the proclamation. In addition to this, sub article 2 of this provision recognizes the power
right to appeal of prosecutor and investigator are set in a general manner that where the prosecutor or the
investigator objecting the decision granting bail, the decision of the lower court stay from being executed,
this gives a wide discretionary power to the prosecutors and investigators. This hampers the enforcement
of a decision rendered by lower courts, which results a person granted bail to remain under custody.

4. Bail on Ethiopian anti- corruption legislation and its impacts on some specific human rights

4.1 Bail for Bailable Corruption offence

The law lexicon defined bail as the security or the appearance of the accused person on which he /she
released in pending trial or investigation.54What is contemplated by bail is to “procure the release of a
person from legal custody, by the undertaking that he /she shall appear at the time and place designated
and submit him/her self to the jurisdiction and judgment of the court.55In corruption legislation, the
revised federal anti- corruption special procedure and rule of evidence proclamation No.434/2005 and
the amendment federal anti- corruption special procedure and rule of evidence proclamation 882/2015
did not define bail, though the term bailable and non- bailable corruption offence are clearly stipulated
based on penalty clause or range of punishments under federal anti- corruption proclamation
No.881/20015.56 According to this provision if the offence committed is bailable ,then ,the accused is

52
Article 5 (1) , 7 , RACSPREP No .434/2005 cum Article 4 , Amendment RACSPREP No
.882/2015
53
Article 5 (3) , RACSPREP No .434/2005
54
Ramant Lyer, Law Lexicon (3rd ed.)
55
Black’s Law Dictionary 177 (4th Ed.)
56
Article 4 (1-2), the Revised ACSPREP No. 434/2005
entitled for bail as a matter of right, may be granted before police station “ police bail”57 or if the accused
may not released by police bail my apply to the court to be released on bail.58 To this effect, the reading
of amendment ACSPREP states that arrested person charged or suspected with a corruption offence
punishable for less than or equal to ten years shall be released on bail by the court.59

In Ethiopia criminal justice system, in corruption case, the corruption offence is clearly provided on
federal anti-corruption proclamation No 881/2015.60 According to this proclamation, there are 25
corruption offences. Those offenses have held different range of punishments in their legal element
arrangements. Almost all types of corruption offences have minimum punishment started with less than
ten years and having upper punishment more than or less than ten years imprisonment . No corruption
offences have minimum /lower imprisonment starting with more than ten years. When I see about the
issue of bail, in corruption case, bail is granted or denied based on penalty /punishment ranges provided
in the revised anti - corruption special procedure and rule of evidence proclamation No. 434/2005 and
the amendment proclamation thereof proclamation No. 882/20015. As a principle a person arrested or
suspected of corruption offence punishable less than or equal to ten years, May granted bail. In this
regard, since the offence is bailable, the arrested person as a right not favor is released on bail. In other
words if the offence is bailable, there is no the question of dictionary power of the court in granting of
bail based on penalty clauses. However, this is not always applicable for bailable offences. The law has
putting other criteria for bailable offence which gives a dictionary power for courts in granting or
denying bail rights. The criteria stated under the proclamation is that, a court may not allow an
application to be released on bail of the accused or arrested where ; the accused likely to be abscond,
tamper with evidence and commit another crimes. In such a case, even thought the alleged offence is
punishable less than or equal to ten years, the public prosecutor refuse bail application on the ground
that the arrested /accused person will abscond or tamper with evidence or commit another crime, and
the court believe in that way, may deny the bail application, and order the person to stay on custody till
his/her innocence is proved by the court. According to this provision , the offence committed by the
suspect or accused person the imprisonment that impose on him/her, might be less than or equal to ten

57
Id, Article 4(2)
58
Id ,Article 4(3)
59
Article 3(2),The amendment EACSPREP No.882/20015
60
Article 9 to 32, Federal Anti-Corruption Proclamation No 881/2015
years is not guarantee for to be released on bail, because of the law puts condition that the court may
consider to grant or deny bail. It mean that whatever the alleged offence is not punishable more than ten
years, the court may deny bail application of the accused /arrested person based on the condition laid
down article 4 of revised anti –corruption special procedure and rule of evidence proclamation
No.434/2005.

Furthermore an issue is coming in mind that, when the court proved that and passed a decision, the
accused /arrested person shall be released on bail bond, the court may order cautionary measures
alternatively or cumulatively such as restrict the movement of suspect in a limited region or place;
prohibit the suspect from reaching places where he might tamper evidences; instruct the suspect to report
to the relevant authority within a prescribed time; prohibit the suspect going abroad.61 Pursuant to this
provision, even if the offence committed by the accused /arrested person is bailable and the court
decides the accused /arrested person to be released on bail, the law gives a power to the court to order
injunction on the right of movement of the accused/arrested person .
The right to movement is fundamental human rights incorporated under international human rights
instrument (ICCPR) regional human rights instrument (ACHPR), and FDRE constitution.62 This right
is a fundamental human rights and that everyone can entitled to exercise freely their freedom of
movement and to choose their residence within as well as abroad. Regarding the right to movement in
corruption legislation, where the court decides that the arrested /accused person released on bail, the
court may order an injunction on the right to movement.63

As one can see and as I viewed that the revised anti – corruption special procedure and rule of evidence
proclamation No.434 /2005 article 6, the injunction or cautionary measures stated here under affects the
fundamental human rights of movement which resulted in a negative impact on other rights such as the
right to presumption of innocence, the right to speedy trial, the right to defense, and the right to liberty
that are recognized under international, regional human rights instrument and FDRE constitution. The

61
Article 6, The revised anti – corruption special procedure and rule of evidence proclamation No.
434/005
62
Article 32, FDRE constitution
63
Article 6,The Revised Anti –Corruption Special Procedure and Rule of Evidence Proclamation
No .434/2005
injunction provided in this proclamation resulted a hazardous consequence that the arrested person to
fell sense of insecurity, prior guiltiness of the offence before the court finds his /her guilty of the offence,
unable to produce his documentary evidence and witness to defense for his/her the charge made by the
public prosecutor. In other words the injunction not only has negative impact on the fundamental human
rights of the arrested /accused person but also affects the criminal justice of the country. It is so because
that the government in its structure through the investigator or the public prosecutor can have easily
collect pertinent evidence for the charge instituting against the accused /suspected person of the
complained offence where as the injunction ordered by the court may restrict the arrested or the accused
for to collect his/her own evidence to brought in front of the court entertaining the case to prove his/her
innocence.

The injunction stated under this proclamation is not compatible with FDRE constitution and
international and regional human rights instruments that Ethiopia has ratified. Therefore, in this regard
the provision is unfriendly for human rights approach. Protecting and combating corruption by
restricting human rights is not sound. To this effect, the law provides injunction on right to freedom of
movement is inadequate to protect fundamental human rights enshrined in FDRE constitution and
international human rights instrument.

4.2. Bail for Non -Bailable Corruption Offences

Bail right is one of fundamental human rights enshrined in international human rights instrument as well
as guaranteed by FDRE constitution. Bail right may be restricted in the manner prescribed by the law to
secure the interest of the public. As this paper examines the inadequacy of bail legislations in corruption
cases, in this section the writer examined the law that provides bail in non - bailable corruption offences
and its impacts on fundamental human rights of the accused/arrested persons.

As one can understood, Ethiopian anti –corruption special procedure and rule of evidence proclamation,
for the purpose of bail for non-bailable offences, the legislator has classified those under two heads.64
These are offences which are punishable with more than ten years imprisonment and where the
punishment of two or more concurrent corruption offences is more than ten years imprisonment; the
arrested /accused person shall not be released on bail. According to this provision the court may deny

64
Article 3(2),The amendment EACSPREP No.882/20015
bail application of the arrested /accused person for the mere reason that he /she is charged by the
corruption offence having punishment clause that may lead more than ten years imprisonment. In this
regard to examine the procedural issue of bail, first it is better to analyze substantive issue of corruption
offence of their range of punishment stipulated under anti -corruption proclamation No .881/2015. In
accordance with this proclamation there are 25 corruption offences holding different punishments with
simple imprisonment up to 25 years imprisonments.65 The corruption offences stated under proclamation
No 88/20015 , abuse of power or responsibility, bribery, acceptance of undue advantage corruption
committed by arbitrators and other persons ,maladministration of government or public enterprise of
work, .unlawful disposal of objects in charge ,appropriation and miss appropriation in the discharge of
duties ,traffic in official power or responsibility ,illegal collection or disbursement ,undue delay of
matters ,taking things of values without or with inadequate considerations, granting or approving license
improperly ,breaches of official secrecy ,material forgery of official or public organization documents
or using forged documents ,suppression of official or organizational documents, give bribe or undue
advantage ,give things without or with inadequate consideration ,fascinating act of bribery ,use of
pretended authority ,traffic in private influence ,corrupt electoral practices, aggravated breach of trust ,
aggravated fraudulent misrepresentation and money laundering are the illustrative list of corruption
offences. Those all listed corruption offence have lower limit of punishment less than ten years and
upper limit of punishment less or more than ten years imprisonments . As one can infer from the
corruption offence illustrated under anti -corruption proclamation No. 881/2015, there is no corruption
offences which entails the lower limit of punishments more than ten years imprisonment. The rationality
behind how courts determine a certain corruption offences committed by the arrested /accused persons
consequence punishment more or less than ten years is debatable issue. The inadequacy of the law
denying bail application of the arrested /accused person for the mere reason of imprisonment range of
the offence is the concern of this section.

The debatable issue is that, how the courts deny or refuse to accept the bail application by simply seeing
the penalty clause of the offence punishable more than ten years imprisonment. In this regard, numerous
commentators have argued and positioned in three different arenas. Firstly, some commentator argued
that denying bail application of the arrested /accused person in the mere reason of punishment clause,
presents layered problems for the exercising of fundamental human rights incorporated under

65
See from article 9 to 32 of Ethiopian anti -corruption proc, No.881/2015
international human rights instrument and FDRE constitution. 66 In this view of argument when the
accused is charged by the corruption offences punishable for more than ten years but the initial or lower
limit of punishment is less than or equal to ten years, the accused/arrested person shall be released on
bail.67 In this scenario, one can argued that every corruption offence stated under anti-corruption
proclamation of Ethiopia, have minimum limit of punishment is less than or equal to ten years. and so,
the accused or arrested person may found guilty and punished less than or equal to ten years even the
upper limit offence is punishable more than ten years. Therefore, as commentators in this regard argued,
since every corruption offence in Ethiopia is bailable, the accused shall be released on bail if the court
proved that he /she may not abscond, tamper with evidence or commit other crimes as provided under
article 4, the revised anti – corruption special procedure and rule o evidence proclamation No. 434/
2005. The second argument is in effect related with the first argument. As the commentators of this
argument argued that in accordance with anti-corruption proclamation No. 881/2015, no corruption
offence starting with lower punishments more than ten years, due to this every corruption offence is
bailable.68

The third commentators based their argument in crime control model and public interests. As they
argued that, even though in corruption offence, the initial or lower limit of the offence is less than ten
years but the upper limit is more than ten years, bail is denied.69 Most importantly, their justification is
public interest. They argued that public interest shall be prevailing over individual interest. They add
that if courts did not interpret the law in such a way, every suspected /accused will be released on bail
and public interest will be in danger.

66
Kelali Kiros, The Bail Justice in Ethiopia : Challenges of its Administration, Addis Ababa
,University, November 2011, p. 100
67
Gebrehiwet Hadush, The Right to Bail Under Ethiopian Anti-Corruption Laws : Implication on
the Rights of the Accused (Case oriented Study) ,Partial Fulfillment of Masters of Art in Human
Rights , Addis Ababa university , 2013, p .30.
68
Id, p. 31.
69
Id ,p.34
The writer of this paper position relied on the first and second arguments. Besides arrest, bail is the most
important criminal justice decision70 made today in every countries criminal justice system or policy.
The decision to deny or grant bail has a great role to the fate of the defendants than any other decisions
besides arrest. The decision to deny bail leads to more detention even those who claim innocence.71If
bail is denied arbitrary, fundamental human rights of the accused /arrested person will be in danger, and
rights recognized in international human right instruments will be in the condition of hazardous. Most
importantly, bail as of the fundamental human rights of a person arrested/ accused person enshrined in
FDRE constitution and international human rights instrument as Ethiopia is signatory, any law that
provides the right to bail shall be interpreting in conforming with not only FDRE constitution and also
international human rights standards.72As one can infer from the amendment anti- corruption special
procedure and rule of evidence proclamation No.882/2015 article 3 as amended, the provision restricts
the court to grant bail for non bailable corruption offence by providing punishment clause not to grant
bail. The legislator deprived the power of the court and I can conclude that in this regard the judge is the
legislature not the court. In the case of corruption case, Ethiopian, amendment ACSPREP No.882/2015
is hazardous for the protection of fundamental human rights of the arrested/accused person.

Be in mind the above stand of writer of this paper, a person in charge of a corruption offence maximum
limit of punishment is more than ten years but the minimum or lower limit o the corruption offence is
punishable less than or equal to ten years, the arrested /accused shall be released on bail. In this regard
my stand relies on four reasoning’s. firstly, in the criminal proceedings, when the accused found guilty
by the court the offence he /she charged might be punished less than or equal to ten years. Therefore,
since there is no the legal regime bail after conviction in Ethiopia, the accused shall be released on bail.
Secondly, in the national and international human rights law perspective, no law that governs
presumption of guiltiness rather the law in FDRE constitution 73 and ICCPR 74including APHRC protects

70
Baughman Shima B, The Bail Book: A comparative look at bail in America’s criminal justice
system- introduction, Cambridge university press (2007), p. 6
71
The center of research, policy and program development at the John Howard society of Ontario,
Reasonable Bail, p
72
Article 13 (2) , FDRE constitution.
73
Article 20(3), FDRE constitution
74
Article 14 (2), ICCPR
presumption of innocence. Therefore denied bail by presuming that the accused might be punished more
than ten years is not compatible with FDRE constitution and international human rights instrument.
thirdly, according to corruption crime proclamation No. 881/2015 , all 25 corruption offences stated
under part two of the Proclamation , has a lower limit of punishment less than or equal to ten years.
Looking in to the proclamation provision, no corruption offence found having with punishment clause
that penalizes more than ten years imprisonment. Therefore, every corruption offence stated under anti
corruption proclamation of Ethiopia is bailable. Fourthly, regarding concurrent corruption offences,
imprisonments of each offence must not be added before the verdict of conviction by the court. As
criminal code of Ethiopia provides concurrent of crimes shall be take in consideration to aggravate
penalty after the court proved guilty. 75

As the stand of the writer, fighting corruption in the view of public interest by violating human rights
did not sound and unjustifiable, and if so, it is dangerous for the protection of human rights. Public
interest should not be an obstacle for the realization and protection of human rights of the
accused/arrested persons. Because, the government is huge and organized institution having prosecutors,
investigators, and security organs even it works with Interpol police at the international level to brought
the accused /arrested persons changed on corruption offence. So, the government in its structure may
have a power to bring the released person on bail to the court if he /she did not respect or violates the
bail bond condition ordered by the court.

To concluded. The bail provision shall be interpreted in line with the FDRE constitution and
international human right instruments unless fundamental human rights of the accused would be in
danger and the outcome of the proceedings of the court will not have fair justice.

5. Grounds in Denying Bail for Non - Bailable Corruption Offences

In the above section of this paper has discussed about bailable and non- bailable corruption offences
based on the punishment on which the accused /arrested might be imprisoned if found guilty by the
verdict of the court so decides. However, the question is come in mind is that how the court determine
the offence that the arrested /accused person committed is punishable more or less than ten years
imprisonment? Is the court without any consideration accepting the prosecutor’s refusal by aggravating

75
Article 86 , 184 ( 1 , b), FDRE Criminal Code, 2004
the charge against accused/arrested person on the mere reason that the alleged offence is punishable
more than ten years of imprisonment? The issue is debatable.

As the practice of the federal and regional state high court showed , the court in deciding bail application,
in addition to consider the amount of imprisonment the corruption offence holds, have also used a
certain criteria /grounds which they should regard before setting denying bail.76 These include (1)
degree of power or responsibility of the accused /arrested person or power of culprit; (2) the extent of
the advantage gained from the commission of the offence; (3) the extent of the harm caused to public,
private and state interests; (4) the seriousness of the corruption offence. This all are the court used to
determine the alleged offence committed by the accused is punishable either less than or more than ten
years of imprisonment. The revised sentencing guideline further provides that the degree of
responsibility of the culprit77 from the lower position /power78 to higher public officials stating under
the revised federal ethics and anti- corruption commission establishment proclamation No.433/2005
article 2(5).79 Additionally, the sentencing guanines outlines the extent of advantage by expressing
interns of money80 that is above 500,000 birr very higher advantages, from 100,001 birr to 500,000 birr
higher advantage , 25,001 birr to 100,000 birr medium advantage , from 1,001 birr to 25,000 lower
advantage ,and till 1000 birr is considered as very lower advantage .

The trends of the court indicate that, its critique remain constant and discussed after analyzed court
rulings, the court used the above criteria/grounds stating under the revised federal supreme court
sentencing guidelines No. 2/20014 to determine whether the alleged offence is punishable more than
ten years imprisonment or not. Some court rulings regarding non bailable offence examined as the
following to clarify more and to make a picture grounds of denying bail and its relevancy using the
revise federal Supreme Court sentencing guidelines.

West Gondar zone public prosecutor v Inspector Damtaw Molla

76
The Revised Federal Supreme Court Sentencing Guidelines No.2/2014 , article 11 ( 2 )
77
Id ,Art ,11(3)
78
Id ,art, 11(2)
79
article 2(5), Supra note, the RFEACCEP No 433/2005
80
Id art, 11(4 )
The accused was charged of corruption offences in aggravating breach of trust contrary to article 31 (2)
of anti –corruption proclamation 881 /2015. The accused was applied to be released on bail for west
Gondar zone high court. 81According to the facts of the case, the accused is charged of committing
aggravating breach of trust by gaining 491,000 birr. The public prosecutor refused bail application to
the court on the ground that pursuant to the revised federal supreme court sentencing guideline, the
defendant working as police office criminal investigation department head degree of responsibility is
medium and the extent of the advantage gained is high which is more than 100,000 birr, the alleged
offence he was charged is punishable more than ten years. However the accused was argued that, even
though the corruption offence charged against him I was punishable 7 to 25 years imprisonment, the
court may be penalized me less than ten years. As he argued, since no clear law to determine the extent
of the advantage gained and degree of responsibility in corruption law, and sentencing guideline is used
for to determine penalty after conviction, not pertinent law for the purpose of bail, the court should not
accept the aggravating charge and shall order to be released on bail. The court after heard the
proceedings, denied bail application of the accused by stating that the degree of responsibility of the
accused is medium and the advantage gained is high , the prosecutor charged is right, and since the
alleged offence is punishable more than ten years. 82

When I observed the ruling the court regarding the above cases, the court denied bail because the
applicant committed a corruption offence punishable with more than ten years imprisonment. the court
83
based its decision on the revised sentencing guidelines stating that the extent of the advantage the
applicant gained is more than 100,000 birr which high and the degree of responsibility medium, and so,
the prosecutor objection against bail application is tenable .according to the facts of the case, the court
based their decision on the potential penalty that the accused may punished when the court founds his
/her guilty. Additionally, the extent of advantage gained, the degree of responsibly and the extent of
harm caused, are the criteria to deny bail application. As court practice shows, to determine and
differentiate bailable corruption offence from non- bailable one, the used the above criteria stating under
federal supreme court sentencing guidelines No .2/2014 article 11( 2,3,4,5). The trends of the court using

81
West Gondar Zone Public Prosecutor v Inspector Damtaw Molla, 2022, West Gondar Zone High
Court Criminal file No. 03-01890 ( Genda Whua )
82
Id
83
Article 11, The revised Federal Supreme Court Sentencing Guidelines No. 2/2014 ,
sentencing guidelines to determine the grounds of denying bail in corruption case is not out of critiques
which I am sharing. The federal Supreme Court sentencing guidelines aimed at to make similarity,
proximity and proportionality of sentencing 84 based on the gravity of crime and dangerous of the
criminals. Sentencing is an action that is made by the judge after the verdict of the defendant. 85 The
courts are using sentencing guideline after decide the conviction of the defendant to determine
imprisonment. Sentencing is the most crucial stage in the area of criminal justice system because it can
affect the life, liberty of individuals.86It is more hazardous using sentencing guidelines to determine
whether the alleged offence is punishable more than ten years or not for the purpose of to deny bail. The
practice of the court is not tenable because whatever it could be, the Supreme Court sentencing
guidelines No .2/2014 used only after the verdict of conviction. The practice of the court is contrary
FDRE constitution and international human rights instrument which affects fundamental rights of the
accused/arrested person.

Conclusion

This paper focused on examining the inadequacy of bail legislation in Ethiopia criminal justice system
with special emphases to the federal anti -corruption laws providing bail rights. As it has been noted in
this paper, the right to bail of an accused/arrested person is one of the fundamental rights recognized
under the FDRE constitution and International human right instruments to which Ethiopia is a party.
The FDRE constitution and all international human rights instrument incorporate a provision prohibiting
arbitrary arrest and detention. Bail right is not absolute right, but the right shall be restricted prescribed
by the law in line with FDRE constitution and international human rights standards.
The Ethiopian Revised Anti-corruption Special Procedure and Rules of Evidence proclamation
No.434/2005 article 4 and the amendment Anti-corruption Special Procedure and Rules of Evidence
proclamation No.882/ 2015 article 3 are providing the right to bail. Accordingly article 4 of the Revised
Corruption Special Procedure and Rules of Evidence, an arrested/accused person suspecting on
corruption offence may not be released on bail in the following conditions: where he/she is likely to

84
The Preamble of Revised Federal supreme Court Sentencing Guidelines NO. 2/2014.
85
Sefinew Ayenew Demle, Sentencing Guidelines and Their Application in Ethiopia Federal
Courts .International Journal of Law and Society .vol.5,No 1,2022,p.13.
86
Id ,p .18
abscond, where he/she is likely to tamper with evidence or commit other offences and where he/she is
charged with a corruption offence punishable for more than ten years. Even though ,the court grants
bail, the revised anti – corruption special procedure and rule of evidence proclamation No.434 /2005
article 6, provide an injunction or cautionary measures that affects the fundamental human rights of
movement which resulted in a negative impact on other rights such as the right to presumption of
innocence, the right to speedy trial, the right to defense, and the right to liberty that are recognized under
international, regional human rights instrument and FDRE constitution.
Furthermore according to the amendment anti –corruption special procedure and rule of evidence
proclamation No. 882 /2015 article3 corruption offences which are punishable with more than ten years
imprisonment and where the punishment of two or more concurrent corruption offences is more than
ten years imprisonment; the arrested /accused person shall not be released on bail. According this
provision, the law supposes presumption of guilt that affects fundamental human rights of the
accused/arrested person which is contrary to FDRE constitution and international human rights
instrument.
Moreover, the common court practice shows, to determine the given offence is punishable more or less
than ten years of imprisonment, courts have used sentencing guidelines for the purpose of deciding on
bail. These practices make the right to presumption innocence and other related rights to be in effective.
Additionally, pursuant to anti-corruption laws of Ethiopia, federal and state high courts are empowered
to entertained bail issue, but these courts are not accessible in all territory of the country that leads to
the violation fundamental human rights such as the right justice, access to courts, speedy trial and such
a like.
Generally, looking in to forwarded the Ethiopian anti – corruption law providing bail, the legislature
restricts the dictionary power of the court in denying or granting of bail based on the corruption offence
punishment clause by imprisonment ranges .The law presumes potential imprisonment of the
accused/arrested person if found guilty. I can conclude that anti- corruption law of Ethiopia providing
bail presumes guiltiness of the accuse/arrested person before conviction. The provisions on anti
corruption law stating bail right is unfriendly with human rights, and it is not compatible with FDRE
constitution and international human rights instrument for the protection bail rights and other related
fundamental human rights of the accused/arrested persons.
``