In a proceeding held on January 6th, 2022 before the Federal High Court, the public prosecutor made a submission ‘’informing”the court that it is withdrawing charges on three files: Public prosecutor v. Jawar Siraj Mohammed and others, public prosecutor v. Eskender Nega and others, and Public prosecutor v. Debretsion Gebremichael (Dr.) and others. In the first and second cases, charges against all the accused have been withdrawn but in the third one, only charges relating to six defendantsare terminated. “Public interest” is invoked for the withdrawal in all the three cases.
While the Prime Minster was commended by foreign authorities such as Joe Biden of the USA, António Guterres of the UN, and AU’s Moussa Faki, internally outcry engulfed the country following the release of former TPLF leaders. The sense of anger was so overwhelming that different organs of the government were forced to explain and justify the decision.
This piece examines the explanations in the light of the public interest requirement of the lawfor withdrawal of criminal charges in relation to the former TPLF leaders. It concludes that the official statements from different organs of the government did not clearly show the public interest to be served by their release. However, arguably, there appears to be a public interest in what has not been explicitly stated as a reason for their release. Being transparent on the real reason for the decision would have mitigated the outcry by making the government’s position plausible and its legality defendable in addition to proving the government’s commitment to transparency.
Public Interest as a Ground for Withdrawal of Charges
While “public interest” is invoked for withdrawal of criminal charges in all the three cases, age and health related humanitarian ground was specifically cited as the reason for the withdrawal of charges relating to the former TPLF leaders.
Laws related to the powers of the prosecution envision possibilities of withdrawal of a criminal charge and terminating a criminal proceeding at any time before judgment is passed. These laws allow the prosecution to withdraw a criminal charge where doing so is in the interest of the public. Thus, the legality of withdrawal of a criminal charge depends on whether or not it is in the interest of the public. What is controversial in the case at hand is not whether the prosecutor can withdraw a criminal charge as such but whether or not the withdrawal of the criminal charge is indeed in the interest of the public.
Ethiopian law does not provide a guideline as to what factors are to be considered to decide whether withdrawal of a criminal charge is in the interest of the public. Literature and legislation in other countries indicate that whether withdrawal is justified by the interest of the public is to be determined by considering a combination of several factors. These include offence related factors (such as its seriousness), offender related factors (such as the accused person’s antecedents and background; the offender’s culpability; the age and physical and mental health), victim related factors (such as the attitude of the victim to a prosecution, the entitlement of the victim to compensation), and other factors (such as the prevalence of the offence and the need for specific and general deterrence, the need to maintain public confidence in constitutional institutions such as the courts and the prosecution).
As noted, the withdrawal of charges against former TPLF leaders was linked to their age and health.While health and age of the accused are offender related relevant grounds, they are not the only factors to be considered in assessing public interest. There are offences and victim related factors which, in the present case, would militate against release of the accused. In view of the gravity of the offences they were charged for and the scale and gravity of the suffering of the victims, how the offender related factors (concern for their health and age) override the former to result in withdrawal of the charge is difficult to understand.
If age and health were the real reasons for the decision to withdraw the criminal charges, these could have been invoked as grounds to terminate the criminal proceeding at an earlier stage. Laws regarding the prosecution’s power (for example Article 6 (3) (a) of the Proclamation No. 943/2016) authorize the prosecution not only to withdraw a criminal charge during trial but also to order investigation to be discontinued on “public interest” ground.
The Prime Minster tried to justify their release based on mercy going to the extent of likening their release to what Ethiopian kings did to their enemies after victory in a battlefield. To link this with public interest is problematic at different levels. First, even if the tradition of mercy were to be considered as an Ethiopian virtue and following this precedent is therefore deemed to be in the interest of the public, the Prime Minister’s statement that “we were shocked when we heard this first” suggests that the idea did not come from the government following the Ethiopian tradition of mercy. Second and most importantly, in the wars the kings fought, none of the losers who benefited from mercy committed a crime against citizens at a scale comparable to what TPLF did commit.
Another point that would make one to be suspicious of the genuineness of the publicly stated ground for withdrawal of the criminal charges was the reference to possibility of resuming the criminal prosecution. The officials indicate that if those released do not act or act in a certain way the prosecution will commence. Even if withdrawal of a charge does not bar the government from restarting the prosecution at a later date, to justify their release based on their age and health and at times telling the public that, if necessary, it is still possible to resume the prosecution displays some sort of contradiction.
Federal Supreme Court’s Explanation
The Federal Supreme Court joined the government to explain the legality of withdrawal of the criminal charges. It issued a press release in which it simply indicates that the court ordered release of the accused upon request from the prosecution, different laws of the country allow criminal cases to be withdrawn, and that this power is given to the public prosecutor.
As can be inferred from the fact that the outcry relates to the withdrawal of charges against former TPLF leaders but not to that of Jawar Mohammed et al and Eskinder Nega et al, the public is not worried as to whether it is procedurally legal to terminate a criminal proceeding through withdrawal of a criminal charge. The anger is more on the substantive validity of the withdrawal of criminal charges in the case of the former TPLF leaders: whether or not it is in the interest of the public.
The Federal Supreme Court’s press release does not say anything about this thorny problem.The main message of the court’s press release is that the prosecution is procedurally allowed to withdraw a criminal charge, which is not an issue. Thus, the statement is more of washing hands of the withdrawal decision than providing any meaningful contribution in explaining its legality.
Undisclosed Public Interest?
As can be inferred from what is publicly known about the Prime Minister’s discussions with US president and UN General Secretary, it appears the government decided to withdraw the charges related to the former TPLF leaders anticipating peaceful settlement of the conflict in north Ethiopia. Also, the Federal Government’s Communication Office, in its latest statement, indicated that there are matters which have not been disclosed to the public. The government refers to tremendous advantages that will be obtained through the release of these people and that the decision is made in the interest of Ethiopia and its citizens.
The Communications Office further indicated that it is not uncommon for a democratic government to keep some matters confidential, which itself is in the interest of the public, and called for the citizens to have trust in their government.
If there is an intention to negotiate with TPLF and if the withdrawal of the charges is meant to pave the way for this, giving general information without going into the details, would not be prejudicial to public interest. In fact, if that were explicitly disclosed, at least in general terms, it would have been beneficial in different ways. First, the public, in whose name the withdrawal has been made, is entitled to know what exactly makes the withdrawal of their prosecution in its interest. This is so in particular where there is such a high demand from different directions. An explicit disclosure of the reason for the withdrawal would have demonstrated the government’s commitment to transparency in matters of such significance.
Second, there would not have been such confusion as to what exactly is the public interest to be served by their release. The disclosure would make it clear that the government’s position is that the public would benefit more by having a lasting peace than pursuing justice that might not necessarily bring a lasting peace. This would create an opportunity for a meaningful debate on peace versus justice approach on the current conflict.
Though the government’s position on this issue might still be subject to criticism and objection, this would have allowed it to spend its time defending and explaining its position than to simply appeal for trust. Furthermore, the public would have engaged in a more meaningful discussion/debate on the real issue than engaging in an array of assumptions as to what the government might have been doing.
Based on what has been disclosed to the public, there is not much that clearly links the release of the former TPLF leaders to public interest. Apart from the claim that it is on public interest ground that the case was terminated, no concrete explanation is given as to how their release serves public interest. To that extent the law that authorizes withdrawal of criminal charges on “public interest” ground has been distorted.
Instead of simply appealing for trust, the government has to consider being transparent in this matter in particular if it is considering negotiation with TPLF. The choice between peace and justice would not be easy. It would not be unreasonable if the government prioritizes peace to justice and justify the withdrawal on this ground and defend it being in the interest of the public.
This disclosure would make clear the public interest the government contemplates to be served by the release of the TPLF leaders. This, in turn, would make it easier for the government to link the withdrawal with the public interest it asserts to be served than engaging in a futile attempt to prove public interest by citing vaguely related factors such as the tradition of mercy and its one-sidedpublic interest consideration based on age and health of the accused persons— an approach that makes some to express that they are more disappointed by the explanation given to the decision than the decision itself.
Finally, this saga illustrates the need for the law on withdrawal of charges to be clarified. Despite that some (here and here) have called for “public interest” to be defined by law to prevent its potential misuse, no law that provides a clear definition has yet been passed. Nor does Ethiopian law, unlike laws of other jurisdictions, provide factors that should be taken into account in assessing public interest. The Draft Criminal Procedure and Evidence Code is being considered by the House of Peoples’ Representatives. The House should seize this opportunity to address this gap in the Draft Code and minimize potential misuse of the procedure in the future.
Wondwossen Demissie (PhD is a legal expert and teaches at the Addis Ababa University.
[This article does not necessarily reflect the position of The Reporter.]
Contributed by Wondwossen Demissie (PhD)