The right to liberty is recognized under the Ethiopian constitution and international human rights instruments. However, the right is not absolute; there are instances that may subject it to limitation. When deprivation of liberty is conducted by the government, in all cases it must be carried out in accordance with the law and must not be arbitrary. Therefore, to be in compliance with international standards specifically the standard of “lawfulness” the conditions for deprivation of liberty under domestic law must be clearly defined and the law must be foreseeable in its application. One way of depriving liberty is arrest. It could be with or without warrant as the case maybe. Depriving liberty through an arrest warrant is the exception to the inviolability of liberty.
Further depriving liberty without warrant is an exception to this exception. As a result, in principle arrest can only be done by the issuance of a warrant as indicated in international human right instruments. Liberty deprivation without warrant is illicitly restricted. This is because they are not only exceptions to the rule of liberty; rather, they are also exceptions to the exception. So it is only in a few circumstances that arrest can be effected without warrant of arrest. However, the Ethiopian criminal procedure law is wayward and drawn bizarrely with regard to safeguarding the above principle. This article tries to address this baffling issue.
Deprivation of the Right to Liberty
The right to liberty is recognized in numerous human rights treaties and is backed by the constitutional provisions of the vast majority of states in the world. Ethiopia has also recognized it under various legislations including the Federal Democratic Republic of Ethiopia constitution Art.17 (1) of the FDRE constitution states that “no one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law”. Besides, it also provides exceptional grounds of limitation of this right. Any deprivation of liberty must conform to the general principles of legality, legitimacy, necessity and proportionality. Deprivation must be construed narrowly in order to control illegal penetration in to personal freedom of individuals. To affirm this position, article 5 of the European Convention on Human Rights is a good and iconic example. Per this convention one may be held in detention for only reasons specified under the said provision.
Therefore, the government does not have any ground to detain someone unless it can justify the detention in one of those situations. This shows that the right to liberty could only be restrained on certain grounds. This is somewhat interfacing counterpart with provision in the Ethiopian Criminal Procedure Code (CPC, here in after). Article 51 of the CPC provides reasons under which arresting someone is guaranteed. However, there are issues that are worthy of further discussion due to being unclear. Among other things, the term “breach of peace” as incorporated under art 51 of the CPC can be mentioned here which requires further scrutiny. This kind of phraseology is very vague, general, and ambiguous which may lead to subjective interpretation. Furthermore, Art.17 sub article 2 of the FDRE constitution stipulates that deprivations of liberty must not be arbitrary. It provides that No person may be subjected to arbitrary arrest, and no person may be detained without a charge or conviction against him. Arbitrariness is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.
Legality of Deprivation of Liberty under Domestic Laws of Ethiopia
The principle of legality stipulates that the grounds for arrest and detention must be established by law. In the case of Clifford mcalawrence v Jamaica, Human Rights Committee states that the legality principle will be violated if an individual is arrested or detained on grounds which are not clearly established in domestic legislation. Legality principle has two aspects. These are the formal aspect and the material aspect. The material aspect indicates that the police can arrest individuals only for reasoned circumstances for the cases mentioned in the law. On the other hand, formal aspect shows that arrest could only be done in accordance with the laws or procedure established. Article 17 of the FDRE Constitution recognized these two aspects of the principle of legality. It provides that there must be the justification or reasons explicitly defined by law as grounds of deprivation of liberty. It also shows that arrest shall strictly adhere to or complies with the procedures
objectively set forth in the law. Therefore, arrest is said to be compatible with the Constitution if it complies with both material and formal aspects of deprivation of liberty.
Arrest without warrant
The law obliges issuance of warrant of arrest to detain individuals. This is because arrest in principle can only be carried out with an
arrest warrant. It is in few circumstances that arrest can be effected without a warrant. Under CPC arrest without warrant may take place as provided under Articles 50 in flagrant offences and where the circumstances of article 51 of the CPC materialized. Article 6(1) of the Vagrancy
Control Proclamation also allows a police officer to arrest without warrant any person who may reasonably be suspected of being a
vagrant. The newly issued Prevention and Suppression of Terrorism Crimes Proclamation 1176/2020 follows the Criminal Procedure Code investigation technique which ultimately authorized police officers to arrest without warrant. However, these scenarios must be construed narrowly. This is what the formal aspect of legality means. This shows that warrant is an essential tool to construct a ground of preserving individuals’ right to liberty from illegal and unlawful deprivation.
Looking at the awry of CPC Article 49 makes arrest with warrant the principle. The notion of this principle is that individuals will not be subject to arrest or detention without prior authorization from the court which can be effected through warrant. Article 17 of the FDRE Constitution also has the same implication. Article 49 of the CPC provides that no person may be arrested unless a warrant is issued and no person may be detained in custody except on an order by the court. As can be derived from this provision principally arrest must be conducted with warrant. However, this principle is deconstructed in the other parcel of the code and in other special legislations. Exceptionally a police officer or private person is authorized to arrest without a warrant. Though, the exceptional circumstance of arrest without a warrant is entertained in a very broad manner as opposed to the very notion of liberty. The CPC paves the way for the police officer to arrest individuals without warrant in many circumstances.
The heaps of these exceptional circumstances which likely predominates this principle leads some scholars to argue that, arrest without warrant seems to have an overriding status over arrest with warrant. Wondwossen Demissie Argues that the notion of articles 25, 26, 50, 51, 52 and 54 of the CPC and Article 6 of the Vagrancy Control Proclamation shows that arrest without a warrant is the rule. However this kind of solid conclusion is dangerous. The author of this article believes that still arrest with warrant is the principle even if the exceptions of this principle are considerably a lot. The CPC has room for limiting the discretion of the police officer. The second sentence of Art.49 of the CPC states that arrest without warrant may only be made on the conditions laid down in Section 1, chapter 1, title II of the CPC. This sentence narrowed the scope of arrest without warrant by circumscribing other laws to be executed pursuant to Article 51 of the CPC. Therefore, the broad interpretation of arrest without warrant shall be mitigated by cumulative reading of the Article 51 of CPC and other laws. If the case does not fall under the circumstances of Article 51 police officers shall not be authorized to arrest any person without warrant. Further there is enhancement in the application of antiterrorism law regime.
The repealed Antiterrorism proclamation under Article 19(1) allows the police officer to arrest without court warrant, anyone whom he reasonably suspects of having committed or is committing a terrorist act. However the new proclamation refers to the regular criminal procedure code investigation technique. Therefore, the cases of terrorism shall be entertained in line with the procedure of CPC which are better than the stance of the former arbitrary Anti-terrorism proclamation. Despite this line of argument, Ethiopian procedural laws, especially the CPC is vulnerable to the tendency of interpreting the exception broadly even if it does not suffice to conclude that arrest without warrant is principle, as opposed to what some scholars argued. The right to liberty is specified in chapter 3 of the constitution which ultimately lay a duty up on Ethiopia to interpret it in line with international human right standards. However, as discussed above the criminal procedure code as well as the vagrancy proclamation is interpreting the deprivation of liberty widely as opposed to Art.9 of ICCPR. Therefore, it shall be construed very narrowly. In addition, we shall not use our domestic laws as a pretext to justify the wide interpretation of arrest without warrant. Beyond that as the human rights committee decides the detention has to be reasonable and necessary.
Generally, the right to liberty could only be restrained in certain exceptional grounds. The deprivation shall not be construed broadly. As indicated under Article 17 of the constitution deprivation shall be complied with the procedures set forth in the law and there must be the reasons explicitly defined by law as a ground to deprivation of liberty. Since one ground to limit liberty is arrest, it must be complied with the procedures established by law. Arrest principally shall be carried out with warrant. This is because, since arrest with warrant is first exceptional circumstance to limit liberty, other worst exception (arrest without warrant) shall be very strictly interpreted. As a result, it is only in exceptional circumstances that arrest without warrant shall be allowed. Article 49 of CPC tries to affirm this notion. However, a large amount of exceptions in the CPC and vagrancy control proclamation makes this principle questionable. Irrespective of this fact, the author argues that the code shall not be interpreted widely and the rule is arrest with warrant. Therefore, arrest without warrant is an exception to the principle of arrest with warrant.