As we all know, globalization and radical advancements in technology have immensely facilitated traveling, enabling people to traverse the globe more easily. This has increased the threats posed by transnational criminals to national security and the international community. No country, irrespective of its economic development, is self-sufficient in dealing with these threats. Due to this, countries around the world need to work closely together. Ethiopia, as part of the world, is not immune from facing such problems.
Many criminal activities today, including corruption, organized crime, and terrorism, are either transnational in character and/or contain key transnational elements. Therefore, evidence has to be secured through legal means by issuing a letter of request or warrant. This includes obtaining testimony from a non‐voluntary witness, seeking to interview a suspect under caution, obtaining account information and documentary evidence from banks and financial institutions, requesting search and seizure, obtaining internet records and the contents of emails, and transferring consenting persons into custody (in order for testimony to be given).
The competent authority to issue a letter of request may be a prosecutor or judge (depending on whom, in domestic law, is designated as a competent authority to issue a request). It, therefore, requires investigators and prosecutors to gather evidence across borders. It also needs mutual legal assistance between countries in the judiciary and calls for a mechanism for international cooperation. In this essay, I will try to assess the legal instruments that Ethiopia is a party to in fighting against transnational crimes and the challenges in the process of fighting these crimes.
The Legal Framework of Extradition and Mutual Legal Assistance in Ethiopia:
Ethiopia, based on Article 9 and 13 of its constitution, has ratified or acceded to a number of treaties, conventions, and other instruments related to mutual legal assistance and extradition. Some of these include:
- The United Nations Convention for the Suppression of the Financing of Terrorism, in which Ethiopia acceded on 20 March 2012.
- The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 20th December 1988, in which Ethiopia acceded on 11 October 1994.
- The United Nations Convention against Transnational Organized Crime, New York, 15th November 2000 (also referred to as the Palermo Convention), ratified by Ethiopia on 23 July 2007.
- United Nations Convention against Corruption, New York, 31st October 2003, ratified on 26 November 2007.
- OAU convention on the prevention and combating of terrorism - ratified on 24 February 2002.
- IGAD Convention on Mutual Legal Assistance in criminal matters and Extradition (not in force; Only Ethiopia and Djibouti ratified).
Ethiopia has also ratified bilateral agreements with Uganda, Djibouti, Turkey, UAE, China, Sudan, and Yemen, and with Rwanda (signed). Some agreements are also under negotiation with countries like South Africa, Kenya, Canada, and the USA. In addition to that, there is an agreement to use the INTERPOL channel, mostly for informal communication purposes before preparing and sending a Letter of Request. This mechanism is very useful for locating, tracking, and identifying individuals or properties vital for the trial.
When we look at national legislation, we first find The Criminal Justice Policy. This policy explicitly stipulates that Ethiopian law implementing institutions should govern themselves by international laws and principles accepted by the countries in multilateral, bilateral agreements, or national laws when dealing with criminal matters involving international cooperation.
The policy, in an illustrative form, provides the types of international cooperation in criminal matters. It includes, among others, investigative cooperation against transnational organized crimes, cooperation in the protection of witnesses and victims of crime, recognition and enforcement of court decisions, transfer of proceedings in criminal matters, extradition, mutual legal assistance, freezing, and confiscation of proceeds of crimes. Furthermore, the policy provides a direction that any international cooperation in criminal matters shall be conducted through a diplomatic channel (Ministry of Foreign Affairs). It also states that the Ministry of Justice shall serve as a coordinator.
The FDRE Criminal Code under Article 21 deals with extradition. It states that any foreigner who commits an ordinary crime outside the territory of Ethiopia and takes refuge in Ethiopia may be extradited in accordance with the provisions of the law, treaties, or international custom. It also states that no Ethiopian national having that status at the time of the commission of the crime or at the time of the request for his extradition may be handed over to a foreign country. However, he shall be tried by Ethiopian courts under Ethiopian law based on the well-known principle of extradite or prosecute.
We also have Proclamations 943/2016 and 1263/2021, which establish the office of the general attorney and define the powers and duties of the executive organ, respectively. Proclamation 943/2016 empowers the Ministry of Justice to undertake international relations and cooperation in criminal and civil matters, as per Article 6 (12). We also have Proclamation 780/2013 on Money Laundering and Financing of Terrorism. The Ministry of Justice is responsible for managing all crimes without prejudice to similar mandates given to the Financial Intelligence Centre (FIC), as per Proclamation number 780/2013. Furthermore, there is Proclamation 958/2016 (Computer Crime Proclamation) which covers some issues of international cooperation in criminal matters in relation to countering cyber-related crimes.
The Challenges in Extradition and Mutual Legal Assistance in Ethiopia:
The road to cooperation in fighting transboundary crimes is not easy. Firstly, there is a lack of comprehensive and clear national law. The existing criminal code and the Criminal Procedure Codes provide no substantive and procedural provisions on how to deal with issues of international cooperation in criminal matters. Article 21 of the Criminal Code dealing with non-extradition of Ethiopian nationals provides the general direction that extradition shall be governed by international agreements to which Ethiopia is a party or by international customary practice. The office of the attorney general establishment proclamation number 943/2016, apart from stating that the office shall have the power to coordinate international cooperation in criminal and civil matters as per Article 6 (12), adds nothing substantive or procedural. The only proclamation which stipulates relatively detailed provisions compared to the other national laws is proclamation number 780/2013 that governs crimes of money laundering and financing of terrorism.
Secondly, there is a lack of expertise in the field. Because of the outflow of experts with necessary skills and experience and the lack of organized administration and training for professionals in the justice system, the country suffers from the lack of empowered peoplepower. Furthermore, there is a lack of sufficient bilateral agreements. For example, in order to bring back fugitives to face justice through an extradition request, the most effective mechanism is to have a bilateral agreement between states. The last but not the least challenge is budget constraints. The process of negotiating draft agreements requires a budget from the government side, and the absence of it is challenging.
Ethiopia takes the lead in mobilizing resources in fighting transnational crimes in the horn. It can be said that there is enough legislation to work with other countries. However, the lack of commitment and experience in the field hinders the justice system from fighting these crimes compared to other well-developed countries. I, therefore, recommend all stakeholders in the legal systems in Ethiopia to establish bilateral/multilateral partnerships with these countries and international institutions (like INTERPOL, EUROPOL, etc.) to handle transnational crimes.