Hailye's Final Thesis

Jimma university COLLEGE OF LAW AND
GOVERNANCE
SCHOOL OF LAW
CRITICAL ANALYSIS OF REVISED SENTENCING GUIDELINE OF
FDRE SUPREME COURT AND ITS PRACTICAL APPLICATION:-THE
CASE OF JIMMA ZONE
BY: - HAILIYE GEBREMEDHIN
A RESEARCH SUBMITTED TO THE SCHOOL OF LAW AT JIMMA UNIVERSITY IN

PARTIAL FULFILLMENT OF THE REQUIREMENTS OF MASTERS OF LAW (LL.M)
DEGREE IN HUMAN RIGHTS AND CRIMINAL LAW
JUNE. 2016
JIMMA, ETHIOPIA
1
Critical Analysis of Revised Sentencing Guideline of FDRE Supreme Court
and its practical Application:-the Case of Jimma Zone
By: - Hailye G/Medhin
Advisor:-Alemu Mihiret (PhD)
A Research Submitted to the School of Law at Jimma University in Partial Fulfillment of

the Requirements of Masters of Law (LL.M) Degree in Human Rights and Criminal Law
June. 2016
Jimma-Ethiopia
2
Declaration
I, Hailye G/Medhin hereby declare that this thesis represents my own

original work ,with citation and quotation where others peoples works have
been used ,which has not been submitted before to any other institution for
any other purpose.
Name: Hailye G/Medhin
Signature.
Date .
Advisor: Alemu Mihiret (PhD)
Signature
Date.
APPROVED BY BOARD OF EXAMINERS
3
NAME DATE SIGNATURE
1 ALEMU MIHIRET .. ..
ADVISOR
2
CHAIR PERSON
3
EXAMINER
Acknowledgments
First and foremost, I would like to praise the omnipotent, omnipresent and omniscient God for
helping me go through the challenging of life and complete this work.
My sincere gratitude goes to my advisor Alemu Mihiret (PhD), who has supported me to the
completion of this work through his precious advice and critical comments.
I would like to express my deepest gratitude to Oromia Justice Bureau and Jimma Zone Justice
Office for giving me the chance for this program.
4
I would like to express my especial tanks to Mr. Habtamu Dibaba, Mr.Taye Demisie, Ms. Bijigdu
Biya, Mr. Engida Nigussie ,My brother Kibru Gonta and Mr. Fiseha Alemayehu who helped me in
those my trouble and frustration days. I lack words to express your support. God bless you and your
families.
I would also like to express my warmest gratitude to Mr. Muktar Sherefudin and his family, Mr.
Seyid Mustefa, Mr. Chalo Samuel and Mr. Samson Tefera who provided me with different materials
that helped me to accomplish this work.
My mother, Bizunesh Eshete and Evangelist Girma Alemu, I believe that your pray helped me to
complete this work. God bless you.
Lastly but not the least, I am also thankful to all members of fellowship and my class comrade who
assisted me in one way or another. God bless you.
Table of Content
DECLARATION............................................................................................................ iii
Acknowledgments...................................................................................................... v
List of Acronyms....................................................................................................... viii
Abstract..................................................................................................................... ix
Chapter One............................................................................................................... 1
Introduction................................................................................................................ 1
1.1 BACK GROUND.................................................................................................. 1
1.2 STATEMENT OF THE PROBLEM...........................................................................7
1.3. OBJECTIVES OF THE STUDY..............................................................................8
5
1.3.1GENERAL OBJECTIVE.................................................................................... 8
1.3.2 SPECIFIC OBJECTIVES..................................................................................8
1.4. RESEARCH QUESTIONS..................................................................................... 8
1.5. SIGNIFICANCE OF THE STUDY...........................................................................9
1.6 RESEARCH METHODOLOGY............................................................................... 9
1.6.1. Selection of populations for the research.................................................10
1.6.2. Methods of selection of institutions and population for data collection.......10
1.7. SCOPE OF COVERAGE AND LIMITATION OF THE STUDY..................................10
1.8. ORGANIZATION OF THE STUDY.......................................................................11
CHPTER TWO............................................................................................................ 12
GENERAL CONCEPTS AND TRENDS ON SENTENCING GUIDELINES...........................12
2.1. Introduction....................................................................................................... 12
2.2. Definition and purposes of sentencing guidelines..........................................12
2.3. Formats of sentencing guideline....................................................................13
2.4. Trends in Other Jurisdiction on Sentencing Guideline and Sentencing Guideline
Bodies................................................................................................................... 14
2.4.1. United States of America............................................................................. 15
2.4.3. England and Wales...................................................................................... 16
2.4.4. Uganda........................................................................................................ 17
CHAPTER THREE....................................................................................................... 20
Sentencing Guideline in Ethiopia..............................................................................20
3.1. Introduction....................................................................................................... 20
3.2. Organ to adopt sentencing guideline in Ethiopia...............................................20
3.3. Publication of the sentencing guideline.............................................................22
3.4. Proportionality, Consistency and Transparency Punishment from the Guideline
................................................................................................................................. 23
3.5 Minimum starting punishment in RSG.............................................................24
Chapter Four............................................................................................................. 26
Data interpretation................................................................................................... 26
4.1. Introduction.................................................................................................... 26
4.2. Fixing the levels of punishment by the courts and proportionality, consistency
and transparency punishment from the guideline.................................................26
4.3. Attempt crimes and proportionality of punishment........................................29
4.4. Negligent Homicide and proportionality of punishment.................................31
6
4.5. Overlap of punishment levels predictability and proportionality....................32
4.6. Recidivism and predictability and proportionality of punishment...................33
4.7. Variation from the SGL................................................................................... 34
4.8. Submitting mitigating and aggravating circumstances..................................35
4.9. Consistency and the two sentencing guidelines.............................................36
Chapter Five............................................................................................................. 38
Conclusion and Recommendations...........................................................................38
5.1. Conclusions.................................................................................................... 38
5.2. Recommendations.......................................................................................... 40
REFERENCE MATERIALS............................................................................................... i
1. Book....................................................................................................................... i
2. Laws....................................................................................................................... i
3. Articles.................................................................................................................... i
4. Interviews............................................................................................................ ii
5. Reports................................................................................................................ ii
6. Internet sources................................................................................................... ii
Appendices................................................................................................................. v
List of Acronyms and Vibrations
EC Ethiopian Calendar
EAC Especial Aggravating Circumstance
ETB Ethiopian Birr
EMC Especial Mitigating Circumstance

FDRE Federal Democratic Republic of Ethiopia
FSC Federal Supreme Court
FSG First Sentencing Guideline
FNG Federal Negarite Gazeta
7
GAC General Aggravating Circumstance
GMC General Mitigating Circumstance

HCJZ High Court of Jimma Zone
HPR House of Peoples Representatives
JZ Jimma Zone
ONRSG Oromia National Regional State Government
PP Public Prosecutor
RI Rigorous Imprisonment
RSG Revised Sentencing Guideline
SGB Sentencing Guideline Bodies
SI Simple Imprisonment
Abstract
Punishment imposed on offender shall be imposed in a manner that achieves the purposes of
punishment, incapacitation, rehabilitation, deterrence and retribution. In order to meet these
purposes punishment need to be proportional, consistence and transparent. Public and victims
interest on one hand and individualization of punishment on the other hand make sentencing
difficult. To make sentencing easier and that achieve its goal sentencing guideline play crucial
role by decreasing judicial discretion. In Ethiopia criminal law adopted by the parliament (HPR)
while enacting sentencing guideline is the power of the Federal Supreme Court. Based the power
granted to it, the Federal Supreme Court enacted the sentencing guideline in 2010 and amended
it after four years in 2013 to realize the purpose of sentencing guideline. However, sentencing
guideline in Ethiopia has a gap in its structure, overlaps in punishment level and it increased the
minimum starting punishments. It also failed to cover important issues that need to be included.
The issues of attempt crime, recidivism, variation from the guideline and labeling the level of
crimes which did not covered by the sentencing guideline became a reason for variation for
sentencing. Practical applications of the sentencing guidelines bold out the gaps in sentencing
guideline. The lack of controlling mechanism, lack publication on FNG, lack of assigned organ
that conduct research and enhance the sentencing guideline, overlaps on sentencing levels, lack
8
of criteria to label the ranks of crimes as low, middle and high, anchoring minimum starting
punishment, making aggravation in cases of general aggravation circumstance judicial
discretion, are those problems in the contents of the Revised sentencing guideline. Lack of
reporting decisions in variation from the sentencing guideline, reducing the level of punishment,
the difference in punishment of attempt crime, disparities in submission and accepting mitigation
and aggravation circumstances, failure to appeal to the next court on the part of public
prosecutor on cases which the court misinterpret the sentencing guideline could be reasons for
limitations in achieving the goals and purposes of sentencing guidelines in Jimma zone.
CHAPTER ONE
INTRODUCTION
1.1 Background of the Study

Punishment imposed on offenders should not be arbitrary because it expected to meet one or
more basic goals of the criminal justice system. There is serious disagreement on the intended
goal of why states punish criminals. Some of the rationales might be retribution; deterrence,
incapacitation, and rehabilitation.1 Retribution is one of the oldest goals of punishment, which
have an idea that the criminal must pay for the wrong he has done. According to this theory
punishment should fit the wrong committed in order to deter future crimes. Deterrence looks in
to preventive consequence of punishment. It relies on fear and threats through punishment.
According to this justification individuals could not commit crime if they are afraid of
punishments. Incapacitation intended in denying the criminal the chance to commit crime. In
addition to these, rehabilitation is the latest and the loftiest justification of punishment, refers to
the idea that a criminal can be reformed so that he can function in a civil society without
committing another crime.2
1 Dejene Girma Janka(PhD), The Relevance of Hobbesian Principles of Punishment in Todays World in
Light of the Ethiopian Criminal System, Jimma University Journal of Law, Vol. 4, No. 1, 2012, P.39.
2 Ibid
9
Different political philosophers reflect different idea on the issue of which goal should be given
priority. As per the Hobbesian theory, the goal of punishment is not only to deter but also to
terror the criminals.3 According to this theory punishment must fit the crime committed. For
classical retributivism culpable wrong doing is enough to justify state criminal punishment. As
Kant insisted, whatever the result of punishment is not the reason of punishment rather
punishment must be deserved.4 According to Classical theory, punishment can be viewed as
an essential element of criminal justice system as an end by itself rather
than as a means to an end.5Unlike the retributive theory of punishment, the utilitarian
theory of punishment, as elucidated by William Paley, the goal of punishment is not satisfaction
of justice rather it is to prevent crime. Punishment must be proportional to the guilt. 6 As
explained by Jeremy Bentham, punishment is not greater than the happiness it brings to the
society.7 According to utilitarian theory punishment imposed on the criminal could be less grave
than the gravity of the crime so long as it achieves the purpose of rehabilitation.
It is not adequate to rely on one theory or the other. This makes state to follow another best
theory called the inclusive theory of punishment although there is also disagreement on the
prioritization of one or another theory. Because of the fact that all theories punishment have
their own inherent defects which one of them ought to be adopted states use intermixing different
theories together.8 Based on their interests and local situations states incorporate one or more
justification of punishment in their criminal codes.
The FDRE criminal code of 2004 incorporated justifications of deterrence and rehabilitation in
the preamble and on its article 1. As indicated in the preamble Punishment can deter
3 Id p.40
4 William Wilson, Central Issues in Criminal Laws: Reader in Criminal theory, Hart Publishing,
Oxford-Portland Oregon,(2002)55.
5 Ibid
6 Dejene Girma Janka (n 1) 42.
7 Ibid
8 Dejene Girma Janka (PhD),A Handbook on the Criminal Code of Ethiopia, (Addis Ababa-
Ethiopia,2013)153.
2
wrongdoers from committing other crimes; it can also serve as a warning to prospective
wrongdoers.9 And alsohelps wrongdoers to lead a peaceful life and it indicates the major
place, which the Criminal Law has allocated for their rehabilitation.10 The reflection of the
preamble clearly adopted in similar wordings in article 1 of the code. It reads: It aims at the
prevention of crimes by giving due notice of the crimes and penalties prescribed by law and
should this be ineffective by providing for the punishment of criminals in order to deter them
from committing another crime and make them a lesson to others, or by providing for their
reform and measures to prevent the commission of further crimes.11From this, one can understand
that the criminal code included deterrence, preventive, incapacitation and rehabilitation goals. In
recent time there is a need for restoration and protection of victims rights. In restoration and
victims rights theory the court bring together the offenders and the victims in harmony.12
Besides following the inclusive theory of punishment, application of punishment by the judiciary
is the crucial factor that makes those goals animate. This claim the existence of scheme that
enable courts to inflict punishment which convey proportional, effective, uniform sentencing by
narrowing the wide discretionary power of the courts. Sentencing guidelines serve these
purposes. Because of the enactment and implementation of sentencing guideline in Ethiopia has
history of less than a decade, it is not well researched. There is only one LL.M thesis titled
Ethiopian Sentencing guidelines and their practical applications by Sefiew Ayenew.13 The
author of this research endeavored to answer the application of consistency and fairness,
proportionality and predictability of sentencing in Federal courts. However, there are researches
conducted in other jurisdictions and sentencing guideline of other jurisdictions can be models to
9Criminal Code of the FDRE, 2004, Proclamation no 414, Neg. Gaz. Year 10 No 58 Preamble
paragraph. 8
10Ibid paragraph 9.
11 Ibid article 1.
12 Sefiew Ayenew, Sentencing Guidelines in Ethiopia and their Application: A Case Study in Federal
Courts, June 2014 (Addis Ababa, Ethiopia June 2014) 12.
13Ibid pp.2-3.
3
enhance our guideline from the formation of sentencing guideline bodies to enactment and
amendment of sentencing guidelines.
Countries follow different approach in establishing sentencing guideline bodies, in drafting and
implementation of sentencing guideline. There are differences not only in objectives, purposes,
membership of sentencing guideline bodies, structures and appointments of members, the format
of guidelines, but also in relations of sentencing guideline bodies with other institutions
including legislatures and courts.14 For example, in US the Sentencing Commission is an
independent agency in the Judiciary branch composed of seven voting and two non-voting ex-
officio members. The commission has a primary purpose to set up sentencing policies and
practices for the federal government.15 The commission submits the sentencing guideline to the
Congress before its approval. The second chapter two of the study will discuss these issues in
detail.
The role of some sentencing bodies extends above enacting and following up the implementation
of sentencing guideline in some jurisdictions. They also involve in parole issues. For example,
the Sentencing Advisory Council in New South Wales and Australia has the purpose of advising
the Attorney General on the minimum period that the criminal must serve for certain serious
offences before gaining parole. In similar way, in New Zealand the sentencing council has a
function of producing guideline, counseling, collect and providing information on parole issues.16
Sentencing advisory councils in Victoria, Queensland and Tasmania have a function of obtaining
public opinion and provide public educations.
When we come to ours the sentencing guideline is enacted by the Federal Supreme Court. There
is no an independent body under the umbrella of the FSC to established to enact and enhance the
sentencing guideline. Thus, this research will show some of the structural defects of the
Ethiopian sentencing guideline and practical challenges in its implementation in.
14Fiona OConnell, Comparative Research into Sentencing Guidelines Mechanisms,

Paper 66/11,2011 p.18
15 US Sentencing Guidelines Manual Enacted on November 1, 2012, article 1.
16 Fiona OConnell (n 14) 21.
4
The criminal code laid down principles that help the court to determine sentence. As indicated in
the preamble of the criminal code courts pass penalties for each case similar punishment on
similar cases carefully examining from the lightest to the most severe penalty. 17 This idea also
raised in the general part. It states that the Court shall carefully examine from lightest to the most
severe punishment, determine only the penalty appropriate for each case. 18 In order to ensure the
predictability and uniformity of sentencing, the Federal Supreme Court shall issue a manual
relating to sentencing.19 Based up on the empowerment of this provision the Supreme Court of
FDRE adopted the guideline No.1/2010 and then the revised sentencing guideline No.2/2013.
As sentencing guidelines are standards for determining a punishment that a person convicted of
crime should receive relying on the nature of crime and criminal history of the offender.20The
purposes of the guideline as indicated in the SG are ensuring transparency, accountability,
effective and predictable judgments by the courts.21 It has two goals:-to enable courts to entertain
similar cases similarly and to impose similar punishment and to impose proportional punishment
based on the gravity and seriousness of the crime. 22 The Criminal Justice Administration policy
incorporated more rationales of punishment than that of the criminal code. As indicated in this
Policy the purpose of sentencing guideline is achieving the purposes of deterrence, incapacitation
and rehabilitation and condemnation of criminals and crime.23
17Criminal Code of Ethiopia 2004, Preamble para.6
18 Ibid article 88(3)
19 Ibid, article.88(4)
20Sentencing guidelines Law and Definition, http://www.search.ask.com/web?

q=definitions+of+Sentencing+manual&o=10148&tpr=2&tpr=3 accessed on 29, Feb. 2016 at 9:30
21 Revised Sentencing Guideline of Federal Democratic Republic of Ethiopia Supreme Court No.2/2013
entered into force as of the 9th day of October 2013, done at Addis Ababa 9th day of October 2014, article
3(1).
22 Revised Sentencing Guideline (n 21) article 3(2)(a)(b).
23 The Criminal Justice Administration Policy of Federal Democratic Republic of Ethiopia, entered in to
force, March 3/2011, article 5.1.
5
Although RSG indicated the punishment starts from the minimum penalty and then increase to
maximum, it stated that the punishment will start above the minimum punishment which laid
down in the criminal code in some kinds of crimes. As indicated in the guideline, based on
nature of certain crimes which it fails to impose proportional and fair punishment in accordance
with the goals of the criminal law the punishment shall start above the minimum penalty. 24 Based
on this provision of the SG, minimum punishment for theft raised from simple imprisonment,
which normally starts from 10 days of imprisonment to imprisonment of eight months.25
It can be one indication that the current SG emphasized on aggravation of punishments. For
example, crime of theft of which amounts less than 100ETB has no coverage under the former
SG,26 but the new SG make theft which is less than 100ETB punishable a minimum of 8 months
of imprisonment.27 In similar way, starting of punishment for an accused of article 627(1), sexual
outrages committed on infants which have least punishment of 13 years rigorous imprisonment
increased to 15 years of rigorous imprisonment in some cases 20 years of rigorous imprisonment
can be taken as starting punishment.28 It is inevitable that the RSG augmented the starting
punishment contradicting with the principle laid down under the criminal code that orders Court
to examine punishment from lightest to the most severe punishment.29
In contrast with its purposes and goals, the RSG allows the court to choose simple or rigorous
imprisonment when the two kinds of crimes incorporated as an alternative punishment for certain
kinds of crime.30 Without putting criterions that enable the courts to rely on the SG gave broad
24 Revised Sentencing Guideline (n 21) article 4(4) .
25 ibid, article 16 .
26 Sentencing Guideline of Federal Democratic Republic of Ethiopia Supreme Court, entered in to force,
May, 17/2010,article 10(3).
27 Revised Sentencing Guideline (n 21), article 16.
28 Ibid, article 15(13).
29 Criminal Code Federal Democratic Republic of Ethiopia (n 9), article 88(3).
30 Revised Sentencing Guideline (n 21) article 26(1)(c).
6
power to the court that could lead to disparity in sentencing. This provision is one of the
provisions that give a broad discretionary power to the courts opposing the general objectives of
the SG. There is no criterion pointed out for the court to choose a simple or rigorous
imprisonment it is also the same if fine is an alternative punishment to one of these punishment.
As indicated in the RSG the court is obliged to tell the accused persons including those who have
no defense lawyer, to present their opinions of punishment according to the guideline adopted. 31
Those accused persons who unable or unwilling to present their opinion they should be
represented by lawyer if they unable to pay for it and discourage of justice would result.32
The other controversial issue is mitigation of punishment in cases of attempted crime. The
criminal code stated that if the circumstance so justify the court reduces the punishment in cases
of attempt. But, the RSG have no article that shows the imposition of sentence in cases of
attempted crime. In such cases the practice of the courts will be covered in this study.
The other issue which should be assessed is the issue of publication and the issue of taking
judicial notice. As indicated in the Federal Negarite Gazeta establishment proclamation, all laws
of the Federal Government shall be published on the Federal Negarite Gazeta. 33 As indicated in
this provision it is mandatory to publish all Federal laws on the Federal Negarite Gazeta. But
both guidelines adopted so far by FSC are not promulgated in the official Gazeta rather these two
SGL promulgated with seal of the Supreme Court signed by the president of the Supreme Court
though SG are Federal laws.
This research will strive to analyze whether the revised guideline is adopted in a way that can
achieve the purposes of consistency, to treat like cases alike, proportionality: - to punish more
serious offences more severely. The practical application of the guideline in the courts of
ONRSG specifically, in Jimma Zone Courts and identifying practical problems faced in
implementing the SGs also covered in this study.
31 Revised Sentencing Guideline (n 21) article 29.
32 Constitution of the FDRE, 1995, Proclamation no 1, Neg. Gaz., Year 1 No 1
33 Federal Negarite Gazeta establishment proclamation No.3/1995, entered in to force as of the 22 nd day
of August, 1995, done at Addis Ababa, this 22nd day of August, article 2(2).
7
1.2 Statement of the Problem
It is undeniable that there is extensive gap between minimum and maximum punishment under
Ethiopia criminal law. From the enactment of the first penal law to the promulgation of
sentencing guideline, the same crime which constitute the same facts or at least nearer facts, have
been subjected to highly diversified decision even by individual judge. Although the enactment
sentencing guideline by the Federal supreme court as per Article 88(4) of FDRE Criminal code
expected to rectify arbitrariness and promotes uniformity as well as predictability of punishment,
it should be examined whether the SG enacted in a way that achieve these goals both structurally
and practically.
Beside the fact that the issues of sentencing guideline is a new issue in Ethiopia, the Supreme
Court of FDRE initially adopted Sentencing guideline No.1/2010 with inclusion of insignificant
number of crimes listed under special part of the criminal code and then after amended it by
adopting Revised Federal Supreme Court Sentencing guideline No.2/2013 which encompassed
more list of crime than the first.
The process through in which the Supreme Court passed during the enactment of the SG and
whether there is an organ which is accountable for the enactment, amendment and publication of
the SG or not should be studied. Regardless of the objectives and purposes attained by this
sentencing guideline some issues concerning lawfulness in line of discretionary power given for
courts and judges by law, its efficacy in line of practical applicability has to be scrutinized. When
we explore through the amended sentencing guideline it maximize minimum punishments
beyond what is provided under criminal code for some crimes. It should be examined how far it
lead courts to impose severe punishment.
The scarcity of research in the area claims the need for further research whether the enactment of
SG achieved its purpose by investigating cases before and after the enactments of the SG.
Further improvement of the SG also requests analyzing the guideline with guideline of other
jurisdictions.
Therefore, the purpose of this research paper is to analyze legality and practical problems of this
guideline. In doing so, the trend in some selected other countries will be investigated to
recommend best practices in other states. The study will aspire to examine the limitations of the
8
sentencing guideline No.2/2013 and practical problems faced in organs involving criminal justice
administration of Jimma Zone.
1.3. Objectives of the Study
The general and specific objective of the research indicated as follows.
1.3.1. General Objective

The general objective of this research is to analyze critically the revised sentencing
guideline of FDRE Supreme Court and its practical application in Courts of Jimma Zone.
1.3.2 Specific Objectives
The specific objectives of this study are:
To evaluate the structure and contents of the Federal Supreme Court RSG with other laws
governing criminal matters in Ethiopia.
To point out some gap of the Ethiopian RSG.
To examine the structure and framework of the Ethiopian RSG comparatively with other
states sentencing guidelines.
To examine whether the practical application of the RSG in the courts of Jimma Zone
meets up the purpose of the sentencing guideline.
To identify and suggest mechanisms which can help to improve the sentencing guideline.
To identify and suggest available solution that can solve practical problems in the
implementation of the SG.
1.4. Research Questions

The questions that are going to be answered in this research are:
Is the Sentencing Guideline compatible with the existing laws governing criminal matters
and the legal structures?
9
What gaps existed in the Ethiopian Sentencing guideline those hinder achieving the goal
and the purpose of the sentencing guideline?
Does the SG allow the courts to analyze individual circumstances of the accused?
What practical problems encountered institutions of criminal justice administrations of JZ

in application of the Sentencing guideline?
How far these practical problems became obstacle on achieving the purpose of the SG?
1.5. Significance of the Study
This study will provides some structural gaps and content problem in RSG. It will
analyze the gaps and tries to show some defects in RSG seeing it with other laws in
Ethiopia and the trend in other jurisdictions.
It also attempt to identify practical problems in implementing the guideline in the courts
of Jimma Zone. Although it is clear that the situation in Jimma Zone is not representative
of the entire country, studying the practice in this Zone can be an implication of the
practical problems in the country.
This research can be used as an input for those parties involved in the criminal justice
administration especially for Courts and other administrative bodies such as Justice
Bureaus and Ministry of Justice, Commissions of Ethics and Anti- Corruption.
Moreover, since it is a new field of study, this work can also contribute towards
understanding the values and principles of sentencing guideline. Since there is only one
research done in this area, it helps professionals of law as an input for further research
and to have acquaintance to this area of study.
1.6 Research Methodology
The research uses both primary and secondary sources of data. It will mainly employ qualitative
method. It also utilizes quantitative method. The primary data includes the guidelines in
Ethiopia, relevant laws in Ethiopia including international human rights instruments those
ratified by Ethiopia, semi-structured interview to key informants /to judges, public prosecutors
and private advocates will be conducted, which is guided by semi-structured question to gather
data on the limitations and effectiveness of the revised sentencing guideline. The minutes written
10
during the enactment of the guideline will be used as a source of data for this research. The
study involved examination of court cases in some selected courts in Jimma Zone on selected
criminal matters.
Secondary sources such as books, journals, in Ethiopia and other jurisdictions and if any are
investigated in order to accomplish the research.
1.6.1. Selection of Populations for the Research
The study covered Supreme Court of FDRE, Jimma Zone high court, three woreda
courts in the zone, and Jimma Zone justice office.
Supreme Court of the FDRE to assess the processes of enacting and follow up of the
sentencing guideline through interview individuals who take part in enacting and
implementing the SG.
The lonely High Court in this Zone is one of institutions that covered for this the
research.
Three Wereda Courts selected from 18 Wereda Courts of Jimma zone based on the
high number of cases these courts entertained in the years between 2003 and 2007
E.C.
Jimma Zone Justice Office is one place of the research.
1.6.2. Methods of Selection of Institutions and Population

Purposive sampling method employed to choose three Wereda courts based on the
number of cases they entertained.
Five crimes which found at the peak of statistical data of Jimma Zone Justice Office
selected for the study. .
Top five prosecuted crimes in the zone selected for the research. Four files for each crime
selected from selected for the research. For comparison purpose some cases from cases
entertained during the application of the FSG with purposive sampling method.
Purposive sampling method employed to choose two judges who work on criminal bench
of HCJZ, and three prosecutors from Jimma Zone Justice Office.
11
1.7. Scope of Coverage and Limitation of the Study
In an attempt of evaluating of the structural and practical implementation of the SG, the research
confined few researches done in Ethiopia and other jurisdictions and related literatures. To assess
the practical application the study covered only courts of Jimma Zone to assess practical
problems which faced in the courts. It also concentrated on cases which presented by the public
prosecutor of the Jimma Zone with its regular power. It will not include corruption cases and
cases presented by the public prosecutor of Inland and custom Revenue Authority.
The limitations or constraints in studying this research also include.
- Time limitation,
- Financial shortage, and
- Limitation of previous research on the field, are the constraints of this research.
These limitations make the researcher to choose Jimma Zone. This Zone is convenient to the
researcher to utilize his time and finance properly although the Supreme Court included to
interview individuals who have knowledge on enactment and enforcement of the sentencing
guideline.
1.8. Organization of the Study
The research is organized in five chapters.
- Chapter one deals with the proposal part. It contains, background of the study, statement
of problem of the study, objectives of the study, research question, methodology used,
scope of the study and limitations of the study.
- Chapter two address general concepts and trends on sentencing guideline in other
jurisdictions.
- Chapter three tried to discuss about SG in Ethiopia and laws which govern criminal
matters in Ethiopia including the FDRE criminal code.
- The forth chapter consisted data and data interpretation.
- The fifth chapter forwards Conclusions and Recommendations.
12
CHPTER TWO
GENERAL CONCEPTS AND TRENDS ON SENTENCING

GUIDELINES
2.1. Introduction
In this chapter of the study definition, purposes of sentencing guideline and approaches which
different states follow in drafting, adopting, amending and improving, publication and
mechanisms of follow up the improvement and reporting system of sentencing guidelines and
sentencing guideline bodies will be addressed. There are differences among approaches of states
not only on purposes and membership of sentencing guideline bodies but also on the relations of
sentencing guideline bodies with other institutions of government including legislatures and
courts.34 The functions of some of sentencing guideline bodies confined in adoption of
sentencing guideline while the function of others extended to involving making research on the
implementation of the SG and on public confidence and involving in parole issues.
In this chapter I will discuss definition, purpose and formats of sentencing guideline. The trend
of establishing sentencing guideline body, enacting and implementing sentencing guideline in
some selected jurisdictions especially the US, England and Wales, Uganda and Republic of
South Africa will be assessed in an effort to search the better practice on issues related to
sentencing guideline.
2.2. Definition and Purposes of Sentencing Guidelines

Sentencing guidelines are standards for determining a punishment that a person convicted of
crime should receive relying on the nature of crime and criminal history of the offender. 35 They
are sets of rules and principles which help the judges to decide about the sentence imposed on
34 Fiona OConnell (n 14) p.18.
13
the criminal which found criminally liable.36 These manuals help the court to impose punishment
that is proportional, consistent and transparent punishment from the guideline.
Disparities of sentencing have been one of major problems in criminal justice administration
because of the structure of indeterminate sentencing guidelines, the discretionary power of the
judges in sentencing and the mechanics of plea bargaining, the statutory the minimum and
maximum terms of imprisonment combined with fines or other alternatives of sentencing
possibilities for certain crime, based on difference in jurisdiction, the community and philosophy
of individual judge.37Sentencing guidelines is best mechanism for Ethiopian courts; firstly, they
create uniformity in sentencing not only in specific bench but also uniformity in sentencing in
the whole country, secondly, to save time and not expected to meet in every single case, thirdly, it
limit judges discretionary power in reasonable manner so that it helps to ensure transparency,
certainty and fairness in sentencing and fourthly, to maintain rationality and transparency in
criminal justice system of a given state.38
2.3. Formats of Sentencing Guideline

Sentencing guidelines can be divided in to two kinds called narrative and numerical sentencing
guidelines depending on their format.39
Narrative Guidelines
Sentencing guidelines which contain different kinds of crimes and the seriousness of the crimes,
range of crimes and the starting points in the punishment range are narrative guidelines. It should
also include a list of mitigating and aggravating circumstances and criteria that should be given
when determining the weight of previous convictions. 40 Sentencing guidelines in England and
35Sentencing guidelines Law and Definition (n 20).
36ibid.
37 Sefiew Ayenew (n 12) 24-25.
38 Ibid 28.
39 Revised Sentencing Guideline (n 30) 23.
14
Wales is example of narrative sentencing guideline. 41 The Ethiopian sentencing guideline also is
Narrative guideline in which the gravity of the crimes and the criminal history of the criminal
determine the amount of the punishment which imposed on the criminals.42
Numerical Guidelines
Numerical guideline is guideline in which the point of offence level and criminal history
intersect determines the amount of punishment imposed on the criminal. 43 This kind of
sentencing guideline is the one which set up on the table. 44 The US federal guideline and the
Minnesota guideline operate in similar grid system with two axes one state the severity of the
offence and the other set out the criminal history of the criminal.45
2.4. Trends in Other Jurisdiction on Sentencing Guideline

and Sentencing Guideline Bodies
Some jurisdictions do not have sentencing guideline bodies and sentencing guideline while
others have such bodies and sentencing guideline. In some countries which do not have there are
a pieces penal laws or codified penal codes which lay down the purposes and principles of
sentencing and minimum and maximum punishment for different crimes. 46 For example,
countries like Germany, France, Canada and Netherlands do not have sentencing guideline
bodies and sentencing guidelines.47On the other hand, there are also states which have sentencing
40 Ibid 23.
42 Revised Sentencing Guideline (n 21) Article 5.
43Sefiew Ayenew (n 12) 24.
44 Ibid
45 Sefiew Ayenew (n 12) 24.
47 Ibid pp.33-36.
15
guideline bodies and sentencing guidelines but with different approaches. Those states which
have sentencing guideline to enact and enhance the applicability of their sentencing guidelines
include the US, Northern Ireland and England and Wales and Uganda.
There are states which give power to perform different tasks in addition to enacting and
enhancing its implementation. Some sentencing bodies in addition to their roles in sentencing
issue involve in parole issues. For example, the Sentencing Advisory Council in New South
Wales and Australia has the purpose of advising the Attorney General on the minimum period
that the criminal must serve for certain serious offences before gaining parole. In similar way, in
New Zealand the sentencing council has a function of producing guideline, counseling, collect
and providing information on parole issues.48 Sentencing advisory councils in Victoria,
Queensland and Tasmania have a function of obtaining public opinion and provide public
educations. In Scotland the sentencing Council have similar function to that of England and
Wales except the council in Scotland submits the guideline to the High Court of Justiciary for
approval.49
This part of the chapter discuss the trend in different state in enacting sentencing guideline,
different kinds of sentencing guideline bodies and their mandates in enacting and follow up of
the implementation of SG.
2.4.1. United States of America
In US indeterminate sentencing practice were predominant for several decades up to reform

efforts undertaken by the federal government and many states from mid-to late 1970s and early
1980s.50 In 1984 the US congress established the US sentencing commission to eliminate
indeterminate sentencing at federal level by sentencing reform act of 1984. 51 The US sentencing
48 Ibid 21.
49 Ibid pp.20-21.
50 Lisa M. Seghetti and Alison M. Smith, CRS report for Congress, Federal Sentencing Guidelines:
Background, Legal Analysis, and Policy Options, p.10
51Ibid
16
Commission is an independent body in the Judiciary branch of the federal government. 52 The
purpose of the commission was to examine unjustifiable differences in federal sentencing
policy.53 The commission composed of seven voting and two non-voting ex-officio members and
it has a primary purpose to set up sentencing policies and practices for the federal government. 54
The commission submits the sentencing guideline to the Congress before its approval.
Establishing sentencing policies and practices for the US federal courts, advising and assisting
the Congress and the executive branch in development effective and efficient criminal policy and
conducting research and distributing information to the organs of the government, for
practitioners, to the academic community and the general public are the main purposes of the US
sentencing commission.55
2.4.3. England and Wales
In England and Wales sentencing guideline bodies are established to enact and follow up the
enhancement of sentencing guideline. The Sentencing Council is an autonomous non
departmental body of the Ministry of Justice and accountable to Parliament in terms of achieving
its statutory remit.56 In England and Wales the sentencing council divided into three areas: - legal,
analysis and research; and policy and confidence. Each structure has its own head while there is
also a Head of the Sentencing Council.57
52 Ibid
53 Ibid
54US Sentencing Guidelines (n 15) article 1.
56Clare Feikert-Ahalt, Sentencing guidelines, Australia, England and Wales, India, South Africa and
Uganda, the Law Library of Congress, Global Research Center, 2014 p.18
17
The main function of Sentencing Council is enacting the sentencing guideline and publishing
other materials which enhance effective implementation of the guideline, examining the
operation and consequence of guidelines, dissemination of information on sentencing practice in
local areas; and creation of awareness on the issues related to the sentencing guideline.58
The other issue which should be seen is that the relationship of the sentencing guideline body
with other branches of government especially with that of the legislator and the court. The
sentencing council in England and Wales expected to consult the Lord of Chancellor and the
Justice committee on draft sentencing guidelines. A report by House of Lord select Committee
has showed that the legislation supplies for the parliamentary select committee to be consulted
on draft of the sentencing guideline with but does not make provision of approval by
parliament.59 The judicial organ can also participate by proposing adoption or reversal of the SG.
The court of appeal can propose that the sentencing council adopt or revises sentencing guideline
on that particular crime when deciding an appeal on particular criminal case.60
All sentencing Courts in England and Wales must follow the sentencing guideline. Section 125
of justice act of 2009 states that unless a court is silicified that it would be contrary to the
interests of justice to do so, they must follow the sentencing guideline adopted by the council.
The prosecutors and advocate must be familiar with sentencing guidelines adopted by the
sentencing council and sentencing guideline adopted by sentencing advisory panel and
sentencing advisory council which exist before the sentencing council come to exist.61 .
2.4.4. Uganda
In Uganda the Chief Justice of Supreme Court has the power to issue sentencing guideline based
up on section 133 of the Constitution which empowers the same to enact orders and directions to
the courts in Uganda. The sentencing guidelines were developed by 25 number task force of the
58 Ibid 20 .
59 Ibid 28.
60 Ibid 29.
61Sentencing Guideline in England and Wales, available at: www.cps..uk/legal/s-to-u/sentencing--

general-principles accessed on May,13/2016 at 4:15 pm
18
Justice Law and order sector established by Chief Justice with the Supreme Court principal judge
as a chair person.62 The sentencing guidelines were enacted to lessen challenges that the
judiciary of this country face in criminal sentencing by introducing uniformity and transparency
to the process of sentencing through sentencing ranges of specific crimes and other tools to
standardize the process of sentencing.63
The Ugandan sentencing guideline are not binding, rather they are advisory in nature. They
cannot override the judicial discretionary power of the judge but they help the judge to arrive at
fair and just sentence.64 The sentencing guideline in this county are not developed well. They
provide specific sentencing proposals for little number of crimes, murder, rape, aggravated
defilement, robbery, kidnapping with intent to murder, terrorism, and treason and manslaughter;
robbery; defilement; trespass; corruption and related offenses; and theft and related offenses.65
The Ugandan sentencing guideline has notable principles. It grants place to the victims, public
impact assessment and restorative justice. The courts may order the prosecutor to produce victim
impact statement and public impact assessment, and the sentencing guideline set restorative
justice as part of general principles of sentencing and the prosecutor also compelled to seek
restorative justice.66
Other unique features of the Ugandan sentencing guideline are encouraging courts to avoid
custodial sentencing whenever possible and in cases of dealing certain classes of offenders. It
also discourages courts from imposing custodial sentence if the offender is above the age of
seventy five years, pregnant, underage and terminally ill person.67 It also provides
62 Clare Feikert-Ahalt, (n 56) 47.
63 Ibid pp.47-48,
65 Ibid 49.
66 Ibid pp.49-50.
67Ibid 51.
19
recommendations with regard to child offenders to protect the best interest of the child and non
custodian options offered under the Children Act and striving to minimize sentence for offenders
which have dependent.68
The Ugandan sentencing guideline Committee is unique by participating large number of

members from different institutions that have participation in criminal justice system in one or
another way. The people also have a say in adoption of sentencing guidelines.69
It comprises of the following members representing:
The Supreme Court,
The court of Appeal,
The High court criminal division,
The Attorney general Office,
The Public Prosecutors Office,
The Office of Inspector General of the Police,
The Ugandan Law Reform Commission,
The Justice Law and Order Sector,
The Office of the Commissioner General of Prison,
The National Community Service Committee,
The Ugandan Judicial Officers Association, and
Three Representatives of general public,70
68Fiona OConnell (n 14) 51.
69Sentencing Guideline: Uganda, available at: http://www.loc.gov/law/help/sentencing

guideline/uganda.php accessed on may 25/2016 10:15 am
70 Ibid
20
In addition to the above representatives, the Committee has an organ called research arm
headed by the members of the Ugandan Law Reform Commission. 71 The Ugandan sentencing
guideline body, unlike that of US, and England and Wales give attention to victims of crime, age
of the accused person and it is also encompassed representatives from different professions.
The components of the Ugandan Sentencing guideline Committee enable it to gain information
and knowledge from different members. Different institutions which have different knowledge
from different dimensions on the area can contribute for development of the sentencing guideline
that enables this country to have better sentencing mechanism.
71 Ibid
21
CHAPTER THREE
SENTENCING GUIDELINE IN ETHIOPIA
3.1. Introduction
As discussed in Chapter one of this study the issue of sentencing guideline is a new concept for
the Ethiopian criminal justice administration. The revised criminal code came up with the
provision which empower the Federal Supreme court to enact sentencing guideline. 72 Based on
this power the Federal Supreme court adopted the first sentencing guideline in 2010 for the first
time and then revised sentencing guideline No. 2/2014. Since it is a progressive field in Ethiopia,
adoption and implementation of sentencing guideline need continues follow up. This chapter
aspires to see the organ which empowered to enact SG in Ethiopia, process of enacting SG, the
issues of publication of SG, the professionals and the general public, the contents of the RSG that
can affect the goals and purposes of the sentencing guideline.
The chapter also tries to show process making the sentencing guideline in Ethiopia. It also tries
to assess some provisions of the RSG that affect the goals and purposes of the SG. It attempt to
show some provisions of the RSG that contradict with the criminal code and provisions of the
RSG which give broad discretionary power to courts in contradicting the goal and the purpose of
the sentencing guideline.
3.2. Organ to Adopt Sentencing Guideline in Ethiopia
As discussed above, the Criminal code of Ethiopia empowered the FDRE Supreme court to enact
sentencing guideline. This shows that the Supreme Court enacted the sentencing guidelines via
delegation of the HPR.. Since the Supreme Court engaged in numerous activities, a better
administration of the SG require separate organ that adopt and administer implementation of the
SG under the umbrella of the FSC. Both sentencing guidelines adopted so far in Ethiopia did not
indicate the existence of sentencing guideline body under the umbrella of the Federal Supreme
Court. There is no detailed law that governs the processes of adoption and enforcing SG by the
72Criminal Code of FDRE (n 9) article 88(4).
22
Federal Supreme Court. In the process of drafting of guidelines the management of the federal
Supreme Court established ad-hock committee for the purpose of drafting sentencing guideline.73
The management of the Supreme Court assigned six members from different level of Federal
Courts, one Judge from Federal 1st instance court, one judge from Federal High court, two judges
from federal Supreme Court and two legal experts from the Federal Supreme Court to prepare a
draft that amend the first sentencing guideline.74
After the drafting committee prepared the draft amendment, the committee submitted it to the
management of the court. The court submitted the draft for deliberation in which representatives
of the Federal and State Courts, representatives from Ministry of Justice, Regional Bureaus of
Justice, Public prosecutors from Inland Revenue and custom duty Authority, Ethics and Anti-
Corruption Commission and representatives from the Police take part. Ideas raised during
deliberation by participants accepted and the committee incorporated these ideas in the revised
sentencing guideline.75
After approval of the sentencing guideline by the President of the Supreme Court, the members
of committee returned to their official duty no body assigned to follow up the implementation of
the SG and make a research on merit and demerits of the SG and to receive and consider the
report of variance from all courts of federal government and courts of member state of the
Federation.76 There is no research done whether the SG achieved its goals and purpose or not by
the Research and Legal Aid Directorate of the Federal Supreme Court also. The Directorate
started giving training for Judges of the Federal courts and Judges of states courts on RSG.
During training the Directorate is collecting feedback from the trainees to study the
73 Seare Mengistu, the head of Federal Democratic Republic of Ethiopia Supreme Court Judicial
Administration Office and member of drafting Committee of revised sentencing guideline, personal
communication, April, 18/2016.
74 Ibid
75Ibid
76Ibid
23
achievements and drawback of the RSG although this work is not specifically allocated to the
Directorate by law.77
After receiving a report of variation from the SG from courts the president of the Supreme Court
refer it to the Research and Legal Aid Directorate and the Directorate collects it for a research
purpose though no research has been done so far by the directorate. 78 The RSG require all courts
to report variation from the SG without putting any procedure for time and method of reporting
and giving its comment or reversal to such court.
From the examining SGs and through the respondents reflections one can clearly understand
there is no separate organ which authorized to adopt, amend, follow up the implementation of the
SG, make research, to give public education and to give training to the Judges and public
prosecutors. The power to follow up the implementation of the SG and taking reports in Cases
of when courts decide cases in deviations from the guideline and to build public confidence and
making researches on the issue of whether the SG achieved its purpose and goals is not assigned
to specific organ under the Supreme Court.
3.3. Publication of the Sentencing Guideline
Sefiew Ayenew argues that accessibility of the SG is an important issue to create common
understanding for professional actors and for real implementation of the SG. It should be
accessible to all people in a working language of all state and English in addition to Amharic. 79
Although Publication of the SG could be a place of academic debate, it is not a crucial issue
since the Supreme Court distributed the SG to all levels of federal courts and all state courts as
soon as it adopted. It is also accessible on internet sources. 80 The respondent indicated that
publication or otherwise of the SG on Negarite gazette is not vital issue.
77 Marta Mellese, Director of research and Legal Aid Directorate at Federal Supreme Court, personal
communication, April, 20/2016.
78 Marta Mellese, (n 77).
79 Sefiew Ayenew (n 12) 92.
80 Seare Mengistu, (n 73).
24
The other respondent, Habtamu Dibaba, argues that since judges expected and obliged to take
notice of federal laws from the Negarite Gazeta, which is official gazette for federal laws 81 as
clearly indicated on article Federal Negarite Gazeta establishment proclamation it is
mandatory for the SG to be published on Federal Negarite Gazeta. 82 All Federal or Regional
legislative, executive, and judicial organs as well as any natural or judicial person shall take
judicial notice of Law published in the Federal Negarite Gazeta.83
3.4. Proportionality, Consistency and Transparency

Punishment from the Guideline
There are provisions that give broad power to the courts in the revised sentencing guideline in
contrast of its goal and purpose. These include provisions that empower the court to choose
simple imprisonment or rigorous imprisonment and in labeling the gravity of the crime as to
light, middle or grave.
Article 26(C) the court empowered to choose either simple imprisonment or rigorous
imprisonment without any criteria to choose one of the two. This seem forgetting that sentence of
rigorous imprisonment should be imposed for very crimes and criminals which are particularly
dangerous to the society and it intended also to provide for a strict confinement of the criminal
and for special protection to society.84
Article 26 (2) (b) to label the kind of the crime light, middle, grave no criterion put to select it. In
similar fashion article 26(3) of the starting point became the sum of the two. Then the courts
mitigate or aggravate the punishment depending on the sum. What if the convicted person
81 Habtamu Dibaba, Public Prosecutor at Jimma Zone Justice Office, personal communication, April 20,
2016.
82 Federal Negarite Gazeta establishment proclamation No/3/1195 entered in to force as of the 22 nd day
of August,1995
83 Ibid, article 2(3).
84 Criminal Code of the Federal Democratic Republic of Ethiopia (n 9) art.108 (1).
25
committed crimes of rape and insult and admit the insult. This directly violates the principle of
proportionality because the convicted person gained undue advantage from the mitigation.
Article 622 and 623 of the criminal law which start from simple imprisonment for not less than
one year, article 627(3) which start from one year of rigorous imprisonment, and article 625
which start from 10 days of simple imprisonment labeled the on the 7 th label which start from
one year imprisonment. Making the starting punishment of different gravity equal violates the
principle of proportionality and predictability of punishment.
Proportionality and fairness in sentencing require not only similarity of punishment on the one
crime but also in similar crimes. It is unjust to impose severe punishment on accused person who
convicted of less severe crime than an accused person who convicted of more severe crime. As
seen from the above provisions the RSG has a hole to impose grave punishment on a person who
committed less grave crime than a person who committed more grave offence than that of the
first. These kinds of labeling in RSG clearly contravene the purpose of the Sentencing
guidelines.
3.5 Minimum Starting Punishment in RSG

The sentencing guideline is bellow criminal law since it adopted through delegation of the HPR.
The Federal Supreme court cannot increase the minimum starting punishment through SG. In the
RSG there are different provisions that increase the minimum starting punishment that laid down
in the Criminal code by the law maker. Bellow I will assess some provisions of the RSG that
increase the minimum punishment that the courts shall start assessing punishment according to
the criminal code.85
According to article 665(1) of the criminal code theft is punishable from ten days of simple
imprisonment to five years of rigorous imprisonment but the RSG make the starting punishment
8th level which consist starting punishment of eight months. It is only accused person who has
four general mitigating circumstances can be punished a minimum starting punishment for theft
which is 10 days of simple imprisonment. For example, on criminal case PP Vs Amino A/Bor,
file No. 12072 of Omo Nadda court, an accused person who stole chair estimated 200ETB
punished imprisonment of 1 year and 2 months though there is one GAC. On other criminal case
85 Criminal Code Federal Democratic Republic of Ethiopia (n 9), article 88(3).
26
of Gomma Wereda, criminal file No. 22049, accused person who convicted guilty of theft of chat
estimated 100ETB under article 665(1) punished SI of 6 months.
Sisay W/Gebrel Gurmu argues that it is not only unfair but also injustice to punish an accused
person who stole one ETB with 8 months of imprisonment. He also argues that, from experiences
he indicated that many defendants punished 8 months of imprisonment stealing property
estimated less than 100ETB.86
According to the RSG the minimum punishment of article 627(1) of the criminal code which
starts from thirteen years of rigorous imprisonment increased to 15 years of rigorous
imprisonment under level 34. Similarly, the starting punishment of article 555 of the criminal
code under level 17, in which any accused person expected to be punished 3 years and 3 months
of rigorous imprisonment in cases of absence of mitigation and aggravation circumstances.
Accused person expected to have 10 mitigating circumstances to be punished 1 year rigorous
imprisonment which is the minimum punishment attached for this crime by the HPR. In similar
way, starting punishment attached for article 620(2) from five years of rigorous imprisonment to
imprisonment of 8 years and 5 months under level 27 of annex one.
Since the Federal Supreme Court enacted the RSG through delegation and the hierarchy of the
RSG is far below the Criminal Code, legitimacy of above provisions and other similar provisions
is in question. The FSC cannot bar through sentencing guideline the right of accused persons be
punished the less grave punishment. The criminal code state that court shall carefully examine
from lightest to the most severe punishment, determine only the penalty appropriate for each
case.87
86Sisay W/Gebrel Gurmu, Public Prosecutor at Jimma Zone Justice Office, personal communication,
May, 16/2016
87 Criminal Code of Federal Democratic Republic of Ethiopia (n 9), article 88(3).
27
Ismael A/Bor88, Abdurahman Mohammed89 and Engida Nigussie90 argues increasing the starting
punishment in a way that bar courts imposing the minimum punishment could not be practicable
through sentencing guideline is unfair and injustice. As Ismael and Abdurahman answered
where they decide such cases they tries to compromise the difference between the Criminal code
and the RSG by decreasing the punishment so that it achieve the purposes of criminal law and
the purpose of punishment.
The sentencing guideline must be in conformity with the criminal law that is superior law than
the sentencing guideline which is adopted through delegation of the House of peoples
Representative. It cannot bar any rights that both the public prosecutor and the accused person
gained by the Criminal laws in Ethiopia.
CHAPTER FOUR
DATA INTERPRETATION
4.1. Introduction
In this chapter data collected from different, especially criminal cases of top five prosecuted in
the Zone will be discussed and analyzed the based on the goal and purpose of sentencing revised
sentencing guideline. The main focus of this chapter is to investigate the application of the
sentencing guideline in the zone and showing problems incurred during application of the
sentencing guideline by the courts and public prosecutors in the zone.
88 Ismael A/Bor, Process owner of Criminal Bench at Jimma Zone High Court, personal
communication, May, 30/2016.
89 Abdurahman Mohammed, Judge at Jimma Zone High Court, personal communication may, 30/2016.
90 Engida Nigussie, Head of Jimma Zone Justice Office, personal communication may, 15, 2016.
28
In doing so, top five prosecuted cases in all levels of Justice Offices in Jimma Zone based on the
five years report (2003-2007E.C) of Jimma Zone Justice Office crimes of body injury, theft,
negligent homicide, attempted homicide, and homicide ranked from 1 st to 5th figuring 3,440,
2,377, 536, 174, and 161 respectively.91In order to analyze the practice of Courts of the Zone,
criminal cases of body injury and theft selected from Omo Nadda Wereda, Gomma Wereda and
Jimma Town Wereda courts and negligent homicide, attempted homicide, and homicide selected
from High Court of Jimma Zone. These cases analyzed and interpreted whether courts in the
Zone indulged cases according to the sentencing guideline.
4.2. Fixing the levels of punishment by the Courts and

Proportionality, Consistency and Transparency punishment
from the Guideline
On the criminal case of Omo Nadda Wereda Court, file no.12658, Public Prosecutor Vs A/Fira
A/Bor, the accused persons charged under article 32(1)665(1) theft involving an ox estimated
7,000ETB. After plea of guilty the court imposed imprisonment of 2 years and 2 months under
level 11. There was one general mitigating circumstance under article 82(1) (a) and there were
two general aggravating circumstances under article 84(1) (a)(d). According the RSG the level of
theft of property estimated 7000ETB is level 12. One general mitigating circumstance decrease
the level to 11 and two general aggravating circumstances increase it to 13 which consisted of
imprisonment of 2 years & 3months up to 2 years and 9 months.
On the criminal case of Public Prosecutor Vs Abebaw Balcha, of Jimma Town Wereda Court, file
no. 34309, the accused person charged under article 665(1) of the criminal cases theft involving
460 ETB. Court proved guilty of the accused person under same provision. There was one GMC
under 82(1) (a) and no aggravating Circumstances. The court imposed simple imprisonment of
1year under level 7. The level of the punishment before mitigation is 8, one GMC decrease it to
level 7 which consists of imprisonment of one year up to one year and six months.
On the criminal of theft, file no. 12072, Public Prosecutor Vs Amino A/Bor Omo Nadda Wereda
Court, the accused person pleaded guilty of theft stealing chair estimated of 200ETB, under
article 665(1). There was one GMC under 82(1) (a). The court imposed simple imprisonment of
91Jimma Zone Justice Office, Five years (2003-2007 E.C.) report, Jimma July, 15 2007 E.C.
29
1 year and 2 months under level 6. The level of the punishment according to RSG is 8 and one
GMC decrease it to level 7 which consists of imprisonment of one year to one year and six
month
On the above three cases the court left out different levels of punishment in contradiction with
the RSG. The courts omitted two levels and one levels of punishment on the second and the third
cases. In doing so, the court did not put why they omitted these levels. These decisions affect
proportionality, predictability and consistency of punishment. In these cases the court omitted
one or more levels but without putting justification. These kinds of decisions are variation from
sentencing guideline according to the RSG.92 But there is no statement of justification that shows
such decision is variation from the SG and there is also no clear order so that copy of such
decision to be sent to the FSC.
There is also case in which the court changed imprisonment to monetary penalty. On the criminal
case of body injury file No. 22093 of Gomma Wereda court, the accused person charged under
article 556(2) (a) crime involving hurting head of the victim using material which able to bring
body injury called Zappa. After conviction, the court imposed punishment of 1310ETB taking
in to account one GMC, article 82(1) (a) under level 4.93 According to the sentencing guideline
the punishment level of this crime is five, and one GMC decrease it to level four which consisted
of punishment of imprisonment of 4 to 10 months. The court cannot replace imprisonment by
other kind of penalty i.e. monetary punishment except in cases of especial mitigating
circumstances.94 On the case at hand, the court did not justify why it changed the punishment of
imprisonment to the monetary punishment.
On the criminal case PP Vs A/Fira A/Bor (2P), file no.12658, the accused persons convicted of
theft stealing an ox estimated 7,000ETB under article 665(1). After considering one GMC and
two GAC, the level of punishment becomes 13 but, Omo Nadda Wereda court fixed the label 11
92Revised Sentencing Guideline (n 21), article 27(1) (3).
93Criminal cases collected from Gomma Wereda Court mentioned by file number because the court did
not allowed mentioning the names of the accused person on this research. All cases cited in text including
cases from other Courts.
94 Criminal Code of Federal Democratic Republic of Ethiopia (n 9) Article 180.
30
and punished the accused persons SI of 2 years & 2 months. The punishment would be
imprisonment between 2 years & 3months and two 2 and 9months. On case, PP Vs Awel
A/Temam 2p, file no.12949, the accused persons convicted of theft stealing cow estimated
2,700ETB under article 665(1). After considering one GMC and one GAC, the level of
punishment becomes 12 but, Omo Nadda court fixed the label 11 and punished the accused
persons SI of 2 years. The punishment would be imprisonment between 2 years and two 2 & 9
months.
There are also cases in which courts punished accused persons the maximum punishment laid
down for the level. On the criminal case at Gomma Wereda Court, File No.22415, PP Vs accused
person, the court pleaded guilty of the accused person stealing coffee estimated 40ETB under
article 665(1) and punished him imprisonment of one year & two months which is the maximum
punishment for level 6. If this crime is committed at the time when the 1 st SG, was in force the
accused person face only charge of petty offence.95 This punishment imposed on criminal based
on the 1st level for article 665(1). This kind of severe punishment for theft of coffee estimated
40ETB does not serve the purpose of the SG, especially the principle of proportionality and
fairness in punishment. The ranks and the levels and the le of punishment for article 665 adopted
based on the amount of money gained by the defendant. But, the punishment must the one that fit
the amount of the money stolen and personal circumstances of the criminal.
From the above cases one can understand that in almost all cases most the courts incline to
mitigate the punishment. This can be affirmed based on four reasons. Firstly, courts reduce levels
of punishment from what is adopted by RSG favoring the accused; second, on most cases the
courts imposed the starting punishment laid down on the sentencing guideline, thirdly, changing
the type of punishment i.e. the court changed imprisonment to monetary punishment, and
fourthly, courts impose maximum penalty provided for the level. The principle of the criminal
code that impose obligation to assess punishment starting from the less severe also works in
cases where they use the sentencing guideline. Even though it is judicial discretion to punish the
minimum starting punishment from the level, it extended to the extent of decreasing the level of
the punishment and changing the type of the punishment.
95 Sentencing Guideline of FDRE (n 26) article 10(3).
31
4.3. Attempt Crimes and Proportionality of Punishment
The revised sentencing guideline has no provision that cover mitigation of punishment using
article 27(3) of the Criminal code. Ismael A/Bor argues that although the RSG did not cover
mitigation of punishment according to this provision, the court should mitigate punishment one
level from the level of that crime similar to general mitigating circumstances. 96 Abdurahman
Mohammed shares the view of Ismael A/Bor on reducing one level from committed crime. 97
Engida Nigussie and Sisay W/Gebrel argue that mitigation of punishment in cases of attempted
crimes according to article 27(3) should be only where the circumstances so justify. For them, for
example, accused person who convicted of complete attempt should not be beneficial from such
mitigation.98
The following table shows the practice in Jimma Zone High Court in the year 2006 E.C. in
which the court apply article 27(3) and article179 in three different ways. There are using it as
one general mitigating circumstance, using to mitigate the punishment within the boundaries of
article 179 of the criminal code and leaving the mitigating punishment demonstrating that the
revised sentencing guideline does not cover mitigation of punishment in cases of attempt.
Level
Punishment
N File Name of Provision MC AC
o No. accused GMC EMC GAC EMC
1 30807 Farid 27(1)540 82(1)(a) - 84(1) - 33 RI of 9

A/Fita 27(3),179 (a) years
96 Ismael A/Bor, (n 86).
97 Abdurahman Mohammed, Judge at Jimma Zone High Court, personal communication may, 30/2016
98 Sisay W/Gebrel, Supra note 86 and Engida Nigussie, Supra note 90.
32
2 30591 Bediru 27(1)540 82(1)(a) - - - 31 RI of 12
Sh/Yusuf years
3 30546 Adisu 27(1)540 82(1)(a) - - - 32 RI of 5
Guta 179(c ) years
4 35696 Reshad 27(1)540 82(1)(a) - 84(1) - 23 RI of 6
A/Diga (b)27(3),17 (c) years
9
Table 1- Criminal cases of attempt crime, HCJZ in 2006
As one can understand from table one, from four cases of attempt homicide cases using article
179 of the criminal code, the court mitigate 5 levels, 11 levels on the 1 st and 3th cases respectively
while it did not used this article on the 2nd case.
Different approach followed by the High court on the 4th case by using the article 27(3) & 179 as
general mitigating circumstance. Putting the level of punishment 23, the court imposed
punishment on the accused under the same level. In this case the court remain silent
From the response of respondent and practical cases of the high court it is easy to conclude that
mitigation of punishment in cases of attempted crimes became one area of disparity in
sentencing. As indicated above the court reduced the punishment from 14 years to 9 years of
rigorous imprisonment on the first case and from minimum of 13 years imprisonment of to 5
years of rigorous imprisonment while remain on the same level on the on the 2 nd case. Since
attempt crimes have a large number in the Zone it is easy to see its effects. For example, crime of
attempt Homicide alone ranked the 4th. It is known that an attempted crime is always punishable
unless otherwise provided by the law.99
4.4. Negligent Homicide and Proportionality of

Punishment
The sentencing guideline covered criminal cases of negligent homicide dividing in two three,
543(1), 543(2) and 543 (3). For the purpose the research four cases of 543(2) from Jimma Zone
High Court seen as follows to assess how courts apply the RSG.
99 Criminal Code of Federal Democratic Republic of Ethiopia (n 9), article 27(2).
33
Punish
Lev
N File Name of Circumstances of the MC AC
ment
o No. accused crime
1 35849 Ibrahim Advertent negligent with 82(1)(d)(e) - 8 SI of 1year
Sabsibe contribution of the victim and7M
179
&4000ETB
35742 Biniyam Advertent negligence and 82(2)(a) 7 SI of 1year
2 -
Tesema contribution of the victim and 2M and
3000ETB
35828 Selam Inadvertent negligence 82(2)(a) (b) 6 SI 8M and
3 -
Alemu and contribution of the 3000ETB
victim
Table 2- Criminal cases of Negligent Homicide, HCJZ in 2006 E.C
In the cases indicated in the table two in all cases, the accused persons are licensed drivers. On
the first and second on the cases the pedestrians who are crossing negligently killed by the
accused persons. On these cases the negligence of the drivers was the one that can be adverted.
The victims also contributed to the crime. So, the level of the crimes is 14 which consisted of
punishment of 2 years & 6 months up to 3 years. The court imposed 1year & 7 months
imprisonment and 4000ETB on the first case and on the second case imprisonment of 1 year & 2
months and 3000ETB. The court decreased the levels of punishment on both cases. In these two
cases the court favored the accused person.
On first case the court mitigated the punishment based on article 179 of the criminal code. But,
this article states that, in all cases where the law provides that the Court mitigate the penalty
under this Article, it shall, if it deems the mitigation justified. 100There no indication on the
provision that the accused person proved guilty (543) that empower the court to mitigate the
punishment based on article 179 of the criminal code.
On the other hand, on the third case the accused person killed a victim who stands at right edge
of the road. The act amount inadvertent negligent and the victim contributed to the crime
standing in on the right edge of the road. The level of the punishment is 7 and two GMC reduce
100 Criminal Code of Federal Democratic Republic of Ethiopia (n 9) article 179.
34
the punishment to level 5. But the court punished simple imprisonment of 8 and 3000ETB
months under level 6.
The above cases shows that the practice of the court on the cases of negligent homicide
inconsistent and disproportionate in imposing punishment. There are inappropriate reduction of
the level of punishment and inappropriate use of article 179 of the criminal code.
4.5. Overlap of punishment levels predictability and

proportionality
The appendix one of the RSG designed in a manner which brings overlap in punishment. This
means the punishment in one level intermixed or overlaps with the punishment in anther levels.
This kind of overlap ranged from two levels to four levels of punishment. For example, 6 months
of imprisonment incorporated from level two up to level five. Imprisonment of one year and
eight months is a maximum penalty in level 8 and it is also the minimum penalty in level 11. The
court can punish this punishment in four consecutive levels, i.e. level 8, level 9, level 10 and
level 11.101 This clearly shows that the sentencing guideline formed in a way that punishment on
one level overlap from punishment of the other level.
This kind of over lapping in punishment practically happened in courts of Jimma Zone. For
example, On the criminal case of PP Vs Nezif A/Fita, File no. 12967, Omo Nadda Wereda Court,
the court proved guilty of the accused persons under article 32(1)556(2)(a) of the criminal code
crime with crime involving harming of the victim via stick. The court imposed simple
imprisonment of 7 months under level 4. This level consisted punishment ranged from
punishment of 6 month up to 1 year. This shows that level 4 and level six have intermixing
points.
On criminal case, file no.12254 Omo Nadda Wereda court, PP Vs Teha A/Jihad 2P, the accused
persons convicted under article 32(3) 665(1) of the criminal code theft involving sheep estimated
700ETB under level 8. There is one GMC (82(1)(a) that decrease the level to 7 and two GAC
which make up level 9 which consisted of punishment of 1year &4 months up to 1year & 10
months. The court punished the accused simple imprisonment of 1 year and 6 months fixing the
level 7. In this case, the court imposed punishment reducing one level from the exact level which
101 Revised Sentencing Guideline (n 21), Appendix one.
35
is which is level 9. But, the court can punish the same term of punishment if it also takes the
exact level according to the RSG. This shows the overlapping of punishment levels in the RSG.
4.6. Recidivism and predictability and proportionality of

punishment
Beside the general aggravating circumstances the special aggravating circumstance is one
important point that should be properly handled to realize proportionality, predictability and
fairness in sentencing. Unless cases of recidivism treated in line with the goal and purposes of
the sentencing guideline it becomes one outlet for differences in sentencing. Aggravation in cases
recidivism is one requirement of the Criminal Code102and the first SG103. As indicated in the SG,
the court can aggravate the punishment adding one level from the level that indicated in the RSG
for that specific crime. In the RSG the same provision included that give discretion to the
court104.Both the first and the revised sentencing guideline do not impose obligation on the court
to aggravate the punishment rather it give discretion to aggravate or to abandon. From the critical
reading of article 67 and 188 one can understand the need for aggravation in case of recidivism
should be more than that of aggravation in cases of general aggravating circumstances.
The criminal code stated that the Court shall aggravate the penalty, and may pass a sentence
exceeding the maximum penalty laid down in the Special Part of this Code for the new crime.105
Unlike the RSG the criminal code impose obligation on the court to aggravate punishment. The
following cases show how the courts are using their discretion during aggravating punishment of
in cases of recidivism.
On 23/06/2005 E.C. on the case PP Vs Miftahu A/Jihad, criminal case file no. 11182 of Omo
Nadda Wereda Court the accused person convicted guilty of theft under article 665(1) of the CC
stealing shoe estimated 1200. The public prosecutor submitted evidence which shows the
102 Criminal Code of Federal Democratic Republic of Ethiopia (n 9). article 65 and 188(1).
103Sentencing Guideline of FDRE (n 26) article 15(2).
104 Revised Sentencing Guideline (n 21) article 22(2).
105 Criminal Code of FDRE (n 9), article 188(1).
36
defendant is a recidivist. In doing so, the PP submitted decision of the same court, file No.07172
the accused was punishes two years of simple imprisonment on 27/04/2003. The court punished
the defendant 2 years of simple imprisonment increasing the level from 10 to level 12 based on
the sentencing guideline No. 1/2002. On the other case, on the case submitted to Jimma town
Wereda Court file No.34325, PP Vs Elias Indris, the defendant pleaded guilty of theft of 3 sheep
estimated 2700ETB. The courts aggravated the crime from level 12 to level 13 and punished him
simple imprisonment of 2 years and 4 months based on the evidence file No.31503 decided on
21/05/2007, by which the defendant punished imprisonment of 9 months.
On both cases the courts entertained the cases as indicated in the SGs. But, these decisions show
that the sentencing guidelines gives broad discretion to the court in which individual judge
decide as he/she thinks correct. In addition to this, it is not reasonable to make obligation to
aggravate punishment in case of general aggravating circumstances 106 and making judicial
discretion in case of recidivism which illustrate the dangerous behavior of the criminal.
4.7. Variation from the SGL
The sentencing guideline in Ethiopia does not totally bar judicial discretionary power of the
judges rather it narrowed and structured its range. 107It allowed courts to decide punishment in
variation with the guideline. Because of difficulty to the Supreme Court to incorporate each &
every detail of aggravation and mitigation circumstances and all circumstances of commission of
crime or manner of the crime in sentencing guideline. So, courts allowed for variation from the
guideline if they believe that deciding the case based on the SG will fail to achieve the goal and
purpose of the criminal law.108If Courts decide in variation to the SG they shall order reporting of
the decision to the Federal Supreme Court. 109 A copy such decision shall be deliver to the FSC
within 60 days.110
106Criminal Code of Federal Democratic Republic of Ethiopia ( n 9), articles 84 &184.
107Sefiew Ayenew (n 12) 85.
108Revised Sentencing Guideline (n 21) article 27(1).
109Ibid, article 27(2).
37
Variation from the guideline is not mandatory to the courts rather it is discretion to the courts.
They can vary from the SG if they believe that there is a good reason to believe deciding based
on the SG will fail to achieve the goals and purposes of the criminal law. The SG impose
obligation on courts to send a copy of decision rendered in variation from the sentencing
guideline within 60 days. In the absence of mechanisms of communication and supervisory it is
difficult to think of observance of this rule.
In practice there are cases that show the differing of the SG. On the case of Public prosecutor Vs
Wudad A/Bor file No. 20612 High Court of Jimma Zone, the accused killed the victim hitting on
his chest by knife the court indicated that the Sentencing guideline does not included to apply the
guideline on accused person between the age of 9-15 years. There is no clear order so that the
copy of such decision to be sent to the FSC. There is an order which say Haaluma kanaan haa
barreefamu, to mean let it wrote in similar way. On the case, public prosecutor Vs Mohammed
Kabir File no. 30925 JZHC calculated the punishment according to the SG and put the level of
punishment under 30, and then, gave similar reason and imposed punishment of rigorous
imprisonment of 3 years varying from the RSG according to article157 of the CC and article
27(1) of the RSG. Nevertheless, the court did not order such decision shall to be sent to the FSC.
Meanwhile, no copy of such order existed in these files.
In these cases the reasons for decision in variance with the sentencing guideline is plausible.
These decisions plainly showed the gap in the RSG from the dimension of the criminal rather
than the circumstance of the crime. As indicated on article 27(1) the court the court can decide
in variance with the SG if it believed that fixing the punishment as laid down in the SG will fail
to achieve the goal and the purpose of the criminal law, or if circumstance or commission of the
crime does not covered by the RSG. This article did not state about the convicted person rather it
elucidates about the circumstances or the nature of the crime.
From this one can conclude that the decisions of the High Court showed the gap of the RSG on
one hand the failure of the court to send the variance of decision to the FSC.
110Ibid, article 27(3).
38
4.8. Submitting Mitigating and Accepting Aggravating
Circumstances
Article 29 of the RSG impose obligation the public prosecutor and the accused persons to submit
their suggestions on punishment to the court after the court plead guilty. The practice in the Zone
varies between the Zonal prosecutors and Wereda prosecutors. The files from Jimma Zone High
Court reveal that the public prosecutors of Jimma Zone Justice office submitted their ideas on all
cases according to sentencing guideline. All cases seen from Wereda Court of Gomma have no
punishment of public prosecutor according to the SG. On the other hand some of cases from
Omo Nadda court do have punishment idea, while others do not have such ideas.
The same is true for defendants prosecuted in Wereda courts. They simply apply to the court that
they have large number of family under their nourishment and safeguard, lack of prior criminal
record and so on.
In most cases the courts accept mitigating circumstances if the defendants mention the existence
of some kind of mitigating circumstances. For example, if the accused person mention the lack
of prior record in the part of him, the court accept it as mitigating circumstances in most cases
while it court refuse to accept on other cases. For example, on the case Public prosecutor Vs
Abate G/Michael, File No. 28589 of Jimma town Wereda Court, the defendant raised that he has
no prior criminal records as a mitigating circumstances but the court refused to accept stating it
did not submitted as article 82 of the CC. The same court accepted such fact as general
mitigating circumstance on criminal case PP Vs Birhanu Ayele File No. 34357. Moreover, on
criminal case PP Vs Abebe Tilahun File no. 27415 the court accepted the accused claim of lack
of criminal record as mitigation circumstance. The court also used article 82(1)(d)(e) to mitigate
the punishment by its own initiations.
This revealed that there are differences in accepting in accepting and rejecting of mitigation
circumstances. These have negative effect on proportionality, similarity and predictability of
punishment.
4.9. Consistency and the two Sentencing Guidelines

Consistency of punishment also requires that punishment imposed on criminals shall be
proportional through the use of the same provision of criminal law. Amendments on SG need to
39
maintain the principles of the criminal law. It shall not come up with a great difference in
punishment. There is a big difference between the FSG and the RSG in labeling punishment of
some crimes. Crime of theft is a good example to show the radical change on RSG making the
punishment severe on this crime. As indicated on article 10(3) of the FSG crime of theft of
property estimated below 100ETB is not punishable under article 665(1) of the criminal code
rather it is punishable under petty offences. The RSG came up with 8 months of minimum
starting punishment for theft. On the criminal case at Gomma Wereda Court, File No.22415, PP
Vs accused person, the accused person charged and proved guilty crime involving theft of coffee
estimated 40ETB under article 665(1) of the criminal code. The court punished him
imprisonment of one year & two months under level 6, which is the least level for crime of theft.
The FSG make the punishment for theft more lenient unlike that of the RSG. The punishment
imposed by the courts was more lenient than punishment based imposed by the courts based on
the RSG. On the criminal case at Omo Nadda Wereda Court, File No.09056, PP Vs A/Diga
A/Koyas, the accused person proved guilty of theft stealing door estimated 800ETB under article
665(1). The court punished him simple imprisonment of two months under level 1 of FSG.
Similarly, on the criminal case at Gomma Wereda Court, File No.18423, the public prosecutor
charged the accused person under article 665(1) of theft involving coffee estimated 132ETB.
After proving the guilty of the accused person the court punished him simple imprisonment of
twenty days under level 1 of FSG.
The property involved in the first case is less than the property involved in the second and third
cases. Though the level of the punishment adopted based on the amount of the property and the
property involved in the two later cases is greater than the first one, the punishment imposed on
the first case is more than five times than the later two cases. This obviously shows that there is a
great difference between the punishments imposed at the time of the FSG was in force and
punishment imposed by courts using the RSG although the criminal code applicable in both
times the FDRE criminal code. From this one can easily understand the sentencing guidelines in
Ethiopia are brought huge difference on amount of punishment imposed on criminals in some
rimes. These kinds of difference affect the principle consistency in punishment.
40
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.1. Conclusions
Since proportionality, predictability, consistency and accountability in sentencing is crucial for
proper administration of criminal justice system and goals and purposes of punishment, the
significance of sentencing guideline is not questionable. There are two conflicting interests in
criminal sentencing the interest of the general public and the victims on the one hand and the
interest of the accused person on the other hand. Sentencing imposed on accused persons should
be the one which based on personal circumstances and punishment which is laid down in the
criminal law. Unless sentencing is imposed in a way that achieves the purpose of sentencing
guideline, it negatively affects not only the right of the accused but also the interest of the society
to live in peace and security.
Based on its power conferred to FSC by the FDRE criminal code, it came up with the SG
No.1/2010 and amended it in 2013 only after four years of enforcement. Even though,
sentencing guidelines in Ethiopia claimed to rectify by correcting the failures of the FSG and
promote proportionality, predictability, consistency and accountability in sentencing. However,
there are limitations on structure of the RSG on the one hand and there are also problems in
applying the sentencing guideline.
The FSC come up with the 1 st SG after 6 year of empowerment by the FDRE criminal code.
There is no detailed rule that regulate the enactment process and rule that indicate the members
and composition of individuals who participate in drafting and adopting process like other state
like Uganda, USA and England and Wales. For example, during the preparation of the RSG the
management of the FSC assigned four judges and two legal experts who worked being members
of ad-hoc Committee to draft the RSG.
There is no authorized department that empowered to draft, adopt, follow the enforcement of the
SG, make a research and enhance implementation of the guideline under the umbrella of the
FSC. This created gap in enforcement of the SG and in the creation awareness to the judges and
41
public prosecutors. There is also no research done to assess whether the SGs in Ethiopia
achieved their goals and purposes.
According to the proclamation which establishes Federal Negarite Gazeta all laws of the Federal
government shall be published on the Federal Negarite Gazeta and all organs of the Federal or
Regional governments and individuals shall take judicial notice from the official gazette. This
proclamation did not mention the status of the law that shall be published on the FNG rather it
included all laws. The phrase all laws of the federal government include the laws of the federal
government from the supreme law of the land to the guidelines which adopted by one institution
through power granted via regulation. The SG in Ethiopia adopted through power granted by
proclamation to the FSC their status became the status of regulation. Failure of observance of the
SG will follow accountability on the parts of Judges, public prosecutor. Sentencing guideline
adopted so far did not published yet on Federal Negarite Gazeta so that institutions and
individuals notice them.
The RSG claimed to promote the principle of proportionality and fairness in punishment.
However, there are a number of limitations on RSG in assessing proportionality of punishment
between similar crimes and crimes which have different gravity. The RSG also raised the
minimum starting punishment in a way that bar the right of accused person to be punished the
less severe punishment. There are also overlap of punishment under different level in which
accused person who punished under a lower level be punished more than that of accused who
punished under the higher level. As indicated in RSG aggravation of punishment in cases of
Recidivism judicial discretion. The courts are free to aggravate or not to aggravate punishment in
cases involving recidivist offender while they have an obligation to aggravate punishment on
offence involving general mitigation circumstances. This allowed the courts to impose different
punishment on similar crimes on the one hand and failed to achieve the purposes of
proportionality, consistency and fairness in punishments.
The Practical cases investigated four types of imposition of punishment. Firstly, courts reduce
levels of punishment that favors the accused persons; second, on most cases the courts impose
the starting punishment even after reducing the level of punishment; thirdly, the court changes
the type of punishment, and fourthly, in few courts they impose maximum penalty provided for
the level. The principle of the criminal code that impose obligation to assess punishment starting
42
from the less severe also works in cases where they use the sentencing guideline. Even though it
is judicial discretion to punish the minimum starting punishment from the level, it extended to
the extent of decreasing the level of the punishment and changing the type of the punishment.
Practical cases in this Zone showed that the lack of criteria on the usage of article 179 of the CC
in cases of attempt crimes became one reason for difference in vitiations in sentencing. In
addition, courts are not reporting to the FSC in case of variation from the SG.
There is a difference in submitting and accepting MC between the courts and public prosecutors.
Some courts mitigate punishment even if the defendant fail to submit his idea on punishment
while others remain silent.
5.2. Recommendations
To achieve the goals and purposes of sentencing guideline and the criminal law of Ethiopia, the
following are recommended by the researcher.
Since the FSC have so many duties to carry out including adjudication of criminal, civil,
and cassation division, it need to assign separate and standing organ to administer
enactment and enforcement of sentencing guideline. An Accountable standing body
should be established for drafting, amending, following the enforcement of the SGs,
making a research and training. It shall receive periodic report from Federal and
Regional courts.
The FSC shall adopt a law that governs adoption and enforcing of Sentencing Guideline
in Ethiopia. It shall include the roles of stake holders.
The RSG shall be amended in manner that achieve its goals and purposes and in a
manner that conform to principles of the criminal code. Attempt crime, aggravation and
mitigation in the case of recidivism must be given priority. It shall also put standards to
rank crimes crime as low, middle and high for crimes which are not covered by the SG.
Appendix one shall be amended in a manner that impede overlap in punishment.
The Sentencing guideline shall be published on Federal Negarite Gazeta for Judges,
public prosecutors, practitioners and the general public. In addition to this it shall be
accessible in working language of Regional state.
43
There shall be a periodic training and consultation session between the FSC, Regional
courts and other stake holders like the Office of General Attorney, States Justice Bureaus
and Police Commissions and Prison Administrative Commissions both at Federal and
Regional levels.
There shall be mechanism of reporting in cases of variation from the guideline. In

addition to report of variation on each case within 60 days there shall be periodic report
on variation. The FSC shall give comments on variation to the courts that decide in
variation from the sentencing guideline.
Regional Supreme Courts and the office of Attorney General shall take part in adoption
and enforcing of sentencing guideline.
Judges need to give attention to levels of punishment during application of sentencing

guideline.
Public prosecutors should appeal to the next court in cases which the court misapply the
sentencing guideline.
REFERENCE MATERIALS
1. Books
Girma. D (PhD), A Handbook on the Criminal Code of Ethiopia, Addis Ababa-Ethiopia, (2013)
Oxford-Portland Oregon, (2002)
Wilson .W, Central Issues in Criminal Laws, Reader in Criminal theory, Hart Publishing,
2. Laws
Constitution of the FDRE, 1995, Proclamation no 1, Neg. Gaz., Year 1 No 1
Criminal Code of the FDRE, 2004, Proclamation no 414, Neg. Gaz. Year 10 No 58
Federal Negarite Gazeta establishment proclamation No.3/1995
Revised Sentencing guideline of RDRE Supreme Court No.2/2014
Sentencing guideline of FDRE Supreme court, entered in to force, May, 17/2010
44
The Criminal Justice Administration Policy of FDRE, entered in to force, March 3/2011
The US Sentencing guidelines Manual enacted on November 1, 2012
3. Articles and Journals
Clare Feikert-Ahalt, Sentencing guidelines, Australia, England and Wales, India, South Africa
& Uganda, the Law Library of Congress, Global Research Center, 2014
Dejene Girma Janka (PhD), The Relevance of Hobbesian Principles of Punishment in Todays
World in Light of the Ethiopian Criminal System, Jimma University Journal of Law, Vol. 4,
No.1.2012
Fiona OConnell, Comparative research into Sentencing Guidelines Mechanisms, Paper 66/11,
2011. 4
Sefiew Ayenew, Sentencing guidelines in Ethiopia and their application, A case study in
Federal courts, June 2014
4. Interviews
Abdurahman Mohammed, Judge at Jimma Zone High Court.
Engida Nigussie, Head of Jimma Zone Justice Office.
Habtamu Dibaba, Public Prosecutor at Jimma Zone Justice Office.
Ismael A/Bor, Process owner of Criminal Bench at Jimma Zone High Court.
Marta Mellese, Director of research and Legal Aid Directorate at Federal Supreme Court
Seare Mengistu, the head of FDRE Supreme Court Judicial Administration Office and member of
drafting Committee of revised sentencing guideline.
Sisay W/Gebrel, Public Prosecutor at Jimma Zone Justice Office.
5. Reports
Jimma Zone Justice Office five years report, Jimma July, 15 2007 E.C.
Lisa M. Seghetti and Alison M. Smith, CRS report for Congress, Federal Sentencing Guidelines:
Background, Legal Analysis, and Policy Options.
2
6. Internet sources
Sentencing guidelines Law and Definition, http://www.search.ask.com/web?
q=definitions+of+Sentencing+manual&o=10148&tpr=2&tpr=3
Sentencing Guideline in England and Wales, available at: www.cps..uk/legal/s-to-u/sentencing--general-

principles
Sentencing Guideline: Uganda, available at: http://www.loc.gov/law/help/sentencing

guideline/uganda.php
7. List of Cases
I. Criminal Cases from HCJZ
Case no. 30807 (P. Prosecutor Vs Farid A/Fita)
Case no. 30591 (P. Prosecutor Vs Bediru Sh/Yusuf)
Cases no.30546 (P. Prosecutor Vs Adisu Guta)
Case no.35696 (P. Prosecutor Vs Reshad A/Diga)
Case no.35849 (P. Prosecutor Vs Ibrahim Sabsibe)
Case no. 35742 (P. Prosecutor Vs Biniyam Tesema)
Case no.35828 (P. Prosecutor Vs Selam Alemu)
Case no. 20612 (P. prosecutor Vs Wudad A/Bor)
Case no. 30925 (P. prosecutor Vs Mohammed Kabir)
3
II.Criminal files from Omo Nadda Wereda Court
Case no. 12072 (P. Prosecutor Vs Amino A/Bor)
Case no. 12967 (P. Prosecutor Vs Nezif A/Fita)
Case no. 12254 (P. Prosecutor Vs Teha A/Jihad 2Person)
Case no. 11182 (P. Prosecutor Vs Miftahu A/Jihad)
Case no.12658 (P. Prosecutor Vs A/Fira A/Bor)
Case no.12949 (P. Prosecutor Vs Awel A/Temam 2 person)
Case no.09056 (P. Prosecutor Vs A/Diga A/Koyas)
III. Gomma Wereda Court Cases
Case no. 22049 (Prosecutor Vs Accused person)
Case no. 22093(p. Prosecutor Vs Accused Person)
Case no. 22415 (P. Prosecutor Vs Accused person)
Case no.22415 (P. Prosecutor Vs Accused person)
Case no. 18423(P. prosecutor Vs Accused person)
IV. Jimma Town Wereda Courts Cases
Case no. 34309 (P. Prosecutor Vs Abebaw Balcha)
Case no.34325 (P. Prosecutor Vs Elias Indris)
Case no. 28589 (P. prosecutor Vs Abate G/Michael)
Case no. 34357 (P. Prosecutor Vs Birhanu Ayele)
4
Case no. 27415 (P. Prosecutor Vs Abebe Tilahun)
Appendices
Semi structural Interview conducted with individuals who participated in enacting RSG at
FSC
First of all thank you for your cooperation for the interview!
Name of the Institution_______________________________________________
Name of interviewee________________________________________________
Occupation_______________________________________________________
A. Questions related to organ to adopt the SG.
1. Is there any Accountable organ that empowered to enact SG under the umbrella of FSC?
2. Is there a law that established this organ? If yes, is it detail?
3. How many members that organ consists of?
4. What are the members comprising the organ?
B. Questions Related to the process of adoption of SG.
1. What are the processes passed during the enactment of the SG?
2. Why the SG did not published on FNG?
5
C. Questions related to enforcement of RSG and researches.
1. Is there any institution other than the court that have been participated in adoption of the RSG?
2. What were the contributions of these institutions?
3. Is there any research conducted before the amendment of the first SG?
4. If yes, what are the gaps of the first sentencing guideline?
5. Did the RSG adopted in a way that assesses personal circumstances of accused persons?
6. Who is responsible to monitor the enforcement of the SG?
7. Is there any research conducted to assess whether the SG achieved its goals and purposes?
8. Are courts reporting cases of variance? To whom such decision submitted? To the criminal
bench or to the president of the FSC?
Semi structural Interview conducted with Judges at High Court of Jimma Zone and Justice
Office of Jimma Zone
First of all thank you for your cooperation for the interview!
Name of the Institution ________________________________________________
Date________________________ time_________________________________
Name of interviewee________________________________________________
Occupation_______________________________________________________
1. Have you rendered /come across/ decisions in variation with the sentencing guideline?
2. Shall the sentencing guideline in Ethiopia published on the FNG?
3. How you decided on the cases related with Attempt of Crimes by using the SG?
4. How you decide cases of articles in which the RSG increased the starting punishment
more than the criminal code?
5. What problems you faced in applying the RSG?
6
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Jimma university COLLEGE OF LAW AND

BY: - HAILIYE GEBREMEDHIN

A RESEARCH SUBMITTED TO THE SCHOOL OF LAW AT JIMMA UNIVERSITY IN

By: - Hailye G/Medhin

Advisor:-Alemu Mihiret (PhD)

A Research Submitted to the School of Law at Jimma University in Partial Fulfillment of

I, Hailye G/Medhin hereby declare that this thesis represents my own

Name: Hailye G/Medhin

Advisor: Alemu Mihiret (PhD)

APPROVED BY BOARD OF EXAMINERS

List of Acronyms and Vibrations

EAC Especial Aggravating Circumstance

ETB Ethiopian Birr

EMC Especial Mitigating Circumstance

FSG First Sentencing Guideline

FNG Federal Negarite Gazeta

GMC General Mitigating Circumstance

1.1 Background of the Study

6 Dejene Girma Janka (n 1) 42.

14Fiona OConnell, Comparative Research into Sentencing Guidelines Mechanisms,

15 US Sentencing Guidelines Manual Enacted on November 1, 2012, article 1.

16 Fiona OConnell (n 14) 21.

17Criminal Code of Ethiopia 2004, Preamble para.6

18 Ibid article 88(3)

20Sentencing guidelines Law and Definition, http://www.search.ask.com/web?

22 Revised Sentencing Guideline (n 21) article 3(2)(a)(b).

24 Revised Sentencing Guideline (n 21) article 4(4) .

27 Revised Sentencing Guideline (n 21), article 16.

28 Ibid, article 15(13).

29 Criminal Code Federal Democratic Republic of Ethiopia (n 9), article 88(3).

30 Revised Sentencing Guideline (n 21) article 26(1)(c).

31 Revised Sentencing Guideline (n 21) article 29.

32 Constitution of the FDRE, 1995, Proclamation no 1, Neg. Gaz., Year 1 No 1

1.3. Objectives of the Study

The general and specific objective of the research indicated as follows.

1.3.1. General Objective

1.3.2 Specific Objectives

The specific objectives of this study are:

To point out some gap of the Ethiopian RSG.

1.4. Research Questions

What practical problems encountered institutions of criminal justice administrations of JZ

1.5. Significance of the Study

1.6 Research Methodology

1.6.1. Selection of Populations for the Research

Jimma Zone Justice Office is one place of the research.

1.6.2. Methods of Selection of Institutions and Population

The limitations or constraints in studying this research also include.

- Financial shortage, and

1.8. Organization of the Study

The research is organized in five chapters.

- The forth chapter consisted data and data interpretation.

- The fifth chapter forwards Conclusions and Recommendations.

GENERAL CONCEPTS AND TRENDS ON SENTENCING

2.2. Definition and Purposes of Sentencing Guidelines

2.3. Formats of Sentencing Guideline

35Sentencing guidelines Law and Definition (n 20).

37 Sefiew Ayenew (n 12) 24-25.

39 Revised Sentencing Guideline (n 30) 23.

2.4. Trends in Other Jurisdiction on Sentencing Guideline

41 Fiona OConnell (n 14) 23.

42 Revised Sentencing Guideline (n 21) Article 5.

43Sefiew Ayenew (n 12) 24.

45 Sefiew Ayenew (n 12) 24.

46 Fiona OConnell (n 14) 33.

Hailye's Final Thesis

Hailye's Final Thesis