ANALYSIS: CONDUCTING PRELIMINARY INQUIRY IN ‘JAWAR MOHAMMED ET AL. V. ETHIOPIA’: TACTICAL OR TECHNICAL PROCEDURE?
BY JETU EDOSA @JCHEWAKA
Addis Abeba, August 07/2020 –(addisstandard)– After several weeks of remand in custody of Jawar Mohammed et al., due to the non-completion of police investigation report, the Federal its hearing yesterday, the Federal First Instance Court ruled the Federal Attorney General Office to hold Preliminary Inquiry. The Court’s ruling has created speculations aired in various Ethiopian social media platforms. This short writing will investigate the legal merits of why the Attorney General’s office resorted to Preliminary Inquiry when the trial can be held immediately after all this time and after the police finished its investigations. This piece also inquires the purpose of conducting preliminary inquiry as enshrined under the 1961 Criminal Procedure Code of Ethiopia.
Meaning And Purpose Of Preliminary Inquiry
In principle, a Preliminary Inquiry (PI) as the name indicates, is a preliminary judicial hearing that is used in serious criminal cases such as ‘homicide in the first degree’ or ‘aggravated homicide’ (CPC, 1961: art 80.1) to determine whether the evidence adduced by the public prosecutor against the accused is enough or sufficient to require a trial in a court having jurisdiction. However, it is also possible to conduct PI in case the Public Prosecutor orders that a PI be held (CPC, 1961: arts 80.2 Cum 38.b). In various criminal justice systems, it is also called ‘preliminary hearing’ preliminary examination’, ‘evidentiary hearing’ or ‘probable cause hearing’.
The PI does not constitute a trial and that the decision as to the guilt or innocence of the accused person shall be taken by a court having jurisdiction and not by the committing court – court that is conducting PI (CPC, 1961: art 85.2). In most countries, the purpose of PI is just to serve as a ‘venue of discovery’, which is ancillary to the main purpose of hearing at the trial. But, in the case of Ethiopian criminal justice, PI is just a venue for ‘recording evidence of the prosecution’ and there is no judicial discretion of the committal court judge to determine whether there is sufficient and admissible evidence which could, if it were believed, result in conviction of the accused person.
The pertinent question is: why has it suddenly become necessary at this time to conduct a PI in Jawar Mohammed et al. case, where the practice of conducting such kinds of hearing is rare in the Ethiopian criminal justice system? Is it necessary to realize ‘expeditious charge-screening mechanism’? If the answer to this question is affirmative why did the prosecution take so long to order PI given the fact that both public prosecutor and the investigating police were working on the case at the same time? Or is it necessary ‘to protect the accused from a needless, and indeed, improper, exposure to public trial where the law enforcement is not in possession of evidence to warrant the continuation of the process’? The answer to this question could not be in the affirmative given the fact that the court inquiring the case at the preliminary level is not empowered to dismiss the case for lack of sufficient evidence or inadmissibility. In fact the power to institute criminal proceedings after determining ‘whether there are sufficient grounds for prosecuting the accused’ is the ultimate discretion of the prosecution (CPC, 1961: art 40.1).
Thus, in view of the ultimate discretion of the public prosecutor to institute or not to institute criminal proceedings against Jawar Mohammed et al Case, conducting PI serves no purpose than buying or delaying the time before the actual public trial before the actual court having criminal jurisdiction over the case is set in motion. As long as the prosecution is not putting its evidence for judicial scrutiny before the committal court, there is no meaningful purpose of ordering PI. The prosecution rather ‘order further investigation’ in case he or she is of the opinion that there should be additional evidence to justify a conviction. It is for this very reason that part of the PI provisions in the current Criminal Procedure Code is not incorporated in the draft Criminal Procedure Code under reform.
Courts Having Jurisdiction To Conduct PI
In principle the ordinary place of trial is ‘by the court within the local limits of whose jurisdiction it was committed’ (CPC, 1961: art 99). In other words, the accused person should be ‘triable in a place where act is done or where the consequences ensued’ (CPC, 1961: art 100). The court having jurisdiction to conduct PI is the court ‘within whose area of jurisdiction the offense was committed’ (CPC, 1961: art 81). One should note that if the power to dispose the case belongs to the jurisdiction of the Federal High Court, the committal court shall be Federal First Instance Court. This means that the court that disposes the case through trial procedure and the court that conducts PI shouldn’t be one and the same. In the current context of Jawar Mohammed et al Case, the role of Federal First Instance Court Lideta Criminal Bench is considered as the committal court to conduct PI (CPC, 1961: art 83.1). It is unprecedented why the prosecution suddenly turned to PI in a Federal First Instance Court to which the case was initially directed to dispose through public trial.
The Recording Of Evidence During PI
The reason why PI in Ethiopian criminal justice system is just redundancy is the fact that it is only a venue for taking evidence of the prosecution which would however be conveniently taken at the actual court having jurisdiction to dispose the case for the sake of speedy trial. The reason for this assertion is that exactly the same procedure that should have occurred in federal high court would be repeated during PI. For instance, recording of evidence, taking statement of the accused, summoning additional witness (arts 85 & 86), remand in custody (art 90.2) and adjournments (art 82.2) are just a few to mention that are similar to actual trail procedure.
THE FAMOUS LEGAL NOTION – RIGHT TO ‘EQUALITY OF ARMS’ UNDERLINES ACCUSED PERSONS RIGHT TO GET FULL ACCESS TO ANY EVIDENCE PRESENTED BY THE PROSECUTOR AS AN ASPECT OF FAIR PUBLIC TRIAL ON EQUAL FOOTING WITH THE PROSECUTION
Cross Examination Of Witnesses By The Accused Person During PI
It should be noted that cross-examination is key to a fair court trial process which provides an opportunity to challenge the trustworthiness of prosecution witness and expose lies and contradictions in the oral account. For this very fact, cross-examination is dubbed as ‘the greatest legal engine ever invented for the discovery of truth’ which is guaranteed in international human rights law and the FDRE Constitution. The FDRE Constitution provides that ‘accused persons have the right to full access to any evidence presented against them, to examine witnesses testifying against them, to adduce or to have evidence produced in their own defense, and to obtain the attendance of and examination of witnesses on their behalf before the court’ (art 20.4). The Criminal Procedure Code also recognizes the right to cross examination with the purpose to ‘show to the court what is erroneous, doubtful or untrue in the answers given in examination-in-chief’ (art 136). The famous legal notion – right to ‘equality of arms’ underlines accused persons right to get full access to any evidence presented by the prosecutor as an aspect of fair public trial on equal footing with the prosecution. If conducting PI has something to do with seeking the truth, cross-examination of prosecution witness provides accused persons or counsel and even the judges with the opportunity to ascertain the veracity of the testimony by looking at ‘the demeanor of the witness, the manner of giving testimony, physical and emotional reaction to questions’.
However, some writers argue that ‘the accused cannot cross-examine the witness at the preliminary inquiry- [he/she] is a passive observer while the prosecutor and the judge are the main actors’. Of course there is no explicit provision that provides for the right of the accused person to cross-examine witness or ‘objects to the admission of any evidence or the putting of a question to a witness by the prosecution’ during the PI in the CPC. The provisions of the Criminal Procedure Code regulating PI dominantly outlines the taking or recordings of prosecution witness while the accused persons are entitled to make a statement (arts 85 & 86). It is only through cross reference to article 147 that one can make a positive interpretation that cross-examination of prosecution witness during the PI by the accused person may be realized (art 88). This is because the committal court is required to record prosecution evidence and each witness in accordance to the rules indicated under article 147 of the CPC. This provision under sub-article 3 stipulates that the recording of ‘the evidence shall be divided into evidence in chief, cross examination and re-examination with a note as to where the cross examination and re-examination begin and end.’ Therefore, given the importance of cross-examination, it can be strongly argued that the accused person should be provided with the opportunity to confront prosecution witness during the recording of evidence in the PI. This is especially critical in case the recorded evidences taken during PI are unexamined by the trial court for its admissibility.
Preliminary Inquiry: Tactical Or Technical Procedure?
It is unprecedented why the public prosecutor orders the Preliminary Inquiry at the time when the public prosecutor has to institute a charge or drop the case for lack of sufficient evidence against Jawar Mohammed et al. Given the minimal role of conducting PI – just for the mere purpose of recording prosecution evidence, one can only contemplate that such move is only a tactical move to keep the accused persons in custody until that actual trial begins (CPC, 1961: art 93). The order to conduct PI in the committal court in the present context could not be reasonably justified by any legal maxim as a ‘venue for discovery of truth’ in the face of the ultimate procedural discretion of the public prosecutor to order further police investigation – which was already done through serious of remands in police custody in case policy investigation was not completed. The move of the public prosecutor to conduct PI is not even technical given the limited contribution of conducting PI in Ethiopian Criminal Justice System. For those practitioners and academics acquainted with the day to day use of the 1961 CPC, the provisions governing PI is already ‘repealed by disuse’. Under the current Criminal Justice Procedure reform, it is a concern of the past as the new draft already discarded it.
FOR THOSE PRACTITIONERS AND ACADEMICS ACQUAINTED WITH THE DAY TO DAY USE OF THE 1961 CPC, THE PROVISIONS GOVERNING PI IS ALREADY ‘REPEALED BY DISUSE’. UNDER THE CURRENT CRIMINAL JUSTICE PROCEDURE REFORM, IT IS A CONCERN OF THE PAST AS THE NEW DRAFT ALREADY DISCARDED IT.
Yet its tactical nature is more apparent given the power of the court to adjourn the case and remand the accused persons in police custody for additional conditions of adjournment during PI. In normal cases of remand in police custody, the court adjourns the accused persons under the guise of non-completion of police investigation report as stipulated under the infamous article 59 (2) of the CPC. This is because since adjournment conditions under article 94 of the CPC that normally apply during actual trial will also apply during PI. One can imagine the time it might take to finalize PI given the list of conditions for adjournment under article 94 of the CPC. Therefore, the order of PI in Jawar Mohammed et al. case adds only another layer to the criminal investigation procedure with no value adding purpose both for the accused persons and the public seen from the vantage points of time and resource use. Given the limited purpose of PI in the Ethiopian criminal justice system as solely for the judicial recording of prosecution evidence, the order of PI in Jawar Mohammed et al. case only serves the intended or unintended purposes of delaying justice, not to mention the huge involvement of public resources before the actual trial showdown begins. The irony is that the accused persons are not even entitled for ‘specific charge or charges on which he or she is committed for trial’ (CPC, 1961: art 89.1). It is excruciating experience for any person to remain in police custody without knowing the charge brought against you. AS