A criminal law may be changed owing to various reasons. Obsoleteness, loopholes and insufficiency of penalties on the part of the existing criminal law are some of the justifications which may warrant its amendment or replacement. Even though changing a criminal law following changes in circumstances is vital and advisable, the advent of a new criminal law may create the difficulty of determining the temporal scope of application of the former and the new laws. An interesting solution for such problem is the principle of nonretroactivity of criminal law, which states that a criminal law is applicable only to offences committed subsequent to its enactment. Nevertheless, this principle has some exceptions, which allow the retrospective application of a criminal law.
The purpose of this article is, therefore, to explicate the meanings of and justifications for the (non) retroactivity of criminal law, to show how they are incorporated and how they must be comprehended under Ethiopian criminal law.
2. (Non)retroactivity of Criminal Law
The word “retroactive” denotes “extending in scope or effect to matters that have occurred in the past”. It follows that retroactive legislation, also known as ex post facto laws, are “[l]aws which, expressly or by implication, operate so as to affect acts done prior to their having been passed.” In the context of criminal law, retroactivity is “to make an action a crime that was not a crime at the time it was done.” As such, retroactivity of criminal law “means that even a person well-informed about the law will be ignorant of the illegality of her or his acts because those acts are not deemed illegal until the retroactive law is made.” Conversely, the notion of nonretroactivity of criminal law suggests that criminal law should be applicable only to crimes done after the coming into force of the law.
The principle that people should be free from retroactive law has its roots in another principle: that there is no crime or punishment except in accordance with law. On this regard, Hobbes also asserted that “[n]o law made after a fact done can make it a crime: because if the fact be against the law of nature, the law was before the fact; and a positive law cannot be taken notice of before it be made, and therefore cannot be obligatory.”
It must be noted that the nonretroactivity of laws is regarded as one of the indispensable components of the venerable concept of rule of law. Brian Tamanaha stated that the prospectivity of laws is among the minimum characteristics of rule of law. Besides, according to Lon Fuller, the nonretrospectivity of laws is an element of the “internal morality of law”.
Furthermore, the weighty value accorded to the protection of individuals from retroactive criminal law is manifestable from the fact that it is ingrained under international and regional human rights laws. Among others, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) safeguard individuals against retrospective criminal law. Other human rights instruments also proscribe the application of criminal laws ex post facto.
At this point, it has to be noted that the prosecution of Nazi leaders at the Nürnberg trials following World War II for the crime of aggressive war— a crime specifically defined for the first time in the Allied charter creating the International Military Tribunal for war criminals—provoked extensive discussion over the scope and applicability of the principle against retroactive criminal laws.
3. Raisons D'être for the Nonretroactivity of Criminal Law
There are certain robust justifications behind the principle of nonretroactivity of criminal law. Among others, retroactive criminal law cannot be in harmony with the principle of legality, particularly with the maxims nullum crimen sine lege (No crime without a law) and nulla poena sine lege (No punishment without a law authorizing it). This is due to the fact that an ex post facto criminal law is enacted and executed subsequent to the commission of the offence it purports to punish.
Some proponents of the principle also“claim that prohibiting retrospective law-making contributes to the stability and certainty of the justice system.” This is so because if laws are made applicable only prospectively, those who are governed by them can easily ascertain their contents and shape their comportments accordingly. Moreover, outlawing retroactive criminal law serves as a “safeguard against the historic practice of passing laws to punish particular individuals because of their political beliefs.” In other words, it is a tool for circumscribing the power of the law-making wing of the government against its unwarranted encroachments on the rights of individuals.
Another rationale in favour of the proscription of ex post facto criminal laws is founded on the impossibility of compliance with such laws. This is owing to the fact that retrospective laws are “inaccessible in the sense that they are not knowable at the time when the erstwhile legal acts or omissions occur.” Thus, the “application of the maxim [ignorantia juris non excusat] to such a situation is unfair as that ignorance is beyond the control of the person in question.”
4. Non retroactivity of Criminal Law in Ethiopia
The Constitution of the Federal Democratic Republic of Ethiopia (hereinafter “Constitution”) stipulates:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. Nor shall a heavier penalty be imposed on any person than the one that was applicable at the time when the criminal offence was committed.”
This provision of the Constitution enshrines the nonretrospectivity of criminal law and, at least by reading between the lines, the principle of legality, which are further expounded in the Criminal Code of the Federal Democratic Republic of Ethiopia (hereinafter “Criminal Code” or “Code”).
As a rationale for constitutionally entrenching the principle of nonretroactivity of criminal law, it is stated in the Explanatory Note on the Constitution that:
Any law should have the nature of stability and certainty, particularly a penal law. For individuals to refrain from violating a law or to infringe a law with information about the consequential punishment, there should exist a fixed, known and certain law. The fairness of a law which is frequently changed or issued solely to punish (a) certain act(s) is doubtful. If a law is enacted to punish this or that person, it means that it has lost its general nature.(Translation Mine)
Pursuant to Article 5 (1) of the Criminal Code, if an act, declared to be a crime both under the repealed legislation and this Code, was committed prior to the coming into force of this Code, it shall be tried in accordance with the repealed law. This rule is corollary to the principle of due notice which is incorporated under Article 1 Paragraph 2 of the Code. With respect to the principle of due notice, Philippe Graven has the following to say:
“[The Criminal Code] informs the citizens of how they are expected to behave and calls their attention to the rules the infringement of which is deemed contrary to the general interest; furthermore, by stating that ignorance of the rules is no defence to an infringement thereof, it supposes that everyone is aware of the existence and meaning of such rules.”
Accordingly, Article 5 (1) of the Criminal Code, by prescribing the application of the law which the offender could take notice of when committing the offence (the repealed one) instead of the latter Code, protects the offender from an ex post facto criminal law. Therefore, it is the principle that the Code will be applied for crimes committed after its effective date (9th of May, 2005) and which is not dealt with by other legislations.
It has to be borne in mind that the principle of nonretroactivity of the Criminal Code, in addition to Article 22 (1) of the Constitution, is relevant to other criminal legislations as per Article 3 of the Code, which states that the general principles embodied in it are applicable to special criminal laws except as otherwise expressly provided therein. Be this as it may, it is difficult to expect a special criminal legislation which sets aside the principle of nonretroactivity, unless it is beneficial to the accused or convict. This is because a legislation which violates the constitutional prohibition of retroactive application of criminal law, unless it benefits the accused or convict, would be contrary to Article 22 of the Constitution and, hence, null and void.
Legislatures, prosecutors and judges, inter alia, are under obligation to ensure the observance of the principle of nonretroactivity of criminal law as provided under the Constitution. This duty of lawmakers, prosecutors and judges stems from Article 13 (1) of the Constitution, which obliges them to respect and enforce the provisions of Chapter 3 on Fundamental Rights and Freedoms. Consequently, federal and state legislative bodies must refrain from enacting ex post facto criminal laws. Prosecutors as well should utilize criminal laws which favour individuals when instituting criminal charges. Judges also must rule on such individuals based on better criminal laws.
At this point, a question may be raised as to whether the principle of nonretroactivity is applicable to the Ethiopian criminal procedure law. It is possible to argue that since the principle requires criminal law to be nonretroactive and criminal law consists, in its wider sense, of substantive criminal law and procedural criminal law, both laws are non-retroactive. Yet, this does not seem to be the position of our Constitution, which protects individuals from criminal liability for an act that was not a crime at the time of its commission or from a heavier penalty than what was applicable during the commission of the crime. The relevant part of the Explanatory Note on the Constitution also does not deal with the law of criminal procedure, but solely with substantive criminal law. Besides, from the standpoint of the Criminal Code, Dejene argues our lawmakers did not intend to make the principle applicable to criminal procedure law since the Code prescribes the application of some rules, which are more of procedural than substantive, to cases which are not yet finally decided regardless of the effect they may have on the fate of the criminals.
5. Retroactivity of Criminal Law in Ethiopia
As is the case with many other human rights, the right to protection from retroactive criminal law is not an absolute right. In other words, there is an exceptional circumstance in which a criminal law may be retrospectively put into effect, i.e., when the ex post facto criminal law is favourable to the accused or convict. As an explanation for allowing this exception to the nonretroactivity of criminal law, it has been stated that:
“Where the legislature has thought it proper that an act which was previously declared to be an offence should no longer be punished or should be deserving of a lesser punishment, there is no reason why the offender should not be tried under this law and more satisfactory law, if its provision are more favourable to him than those of the law which he infringed. Neither the principle of legality nor equity prohibits an offender from being granted the benefit of the improvement of the law where no injustice will result from the new law being applied to acts done prior to its coming into operation.”
It is a universal exception to the principle of nonretroactivity of criminal law that a better criminal law than the one in force at the time of the commission of the crime must be applied for an accused or convict. In line with this fashion, the Constitution provides that “a law promulgated subsequent to the commission of the offence shall apply if it is advantageous to the accused or convicted person.” The ICCPR, which is an integral part of the law of the land pursuant to Article 9 (4), also stipulates that “if, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.” But, this exception, which is restricted only to light punishment, is narrower than what is provided under Article 22 (2) of the Constitution, which permits the retroactivity of criminal law not only when it lightens the penalty but also when it benefits the accused or convict in any other possible manner.
Besides, the Criminal Code states that “where the criminal is tried for an earlier crime after the coming into force of this Code, its provisions shall apply if they are more favourable to him than those in force at the time of the commission of the crime.” In order to determine whether a new law is in fact more favourable, judges should take all the relevant provisions into account. This is to say that a court may not confine itself to considering merely the punishment prescribed by each law for the offence committed, but that it must examine all the provisions which govern the liability to punishment or affect the nature or amount of punishment, such as the provisions regarding criminal responsibility and guilt or extenuating and aggravating circumstances.
There are some scenarios in which a newly passed criminal law may be advantageous to individuals accused or convicted of committing crimes based on a prior criminal law. These scenarios may generally be grouped into the following two broad categories.
a) Decriminalization of a Former Offence
Sometimes, it may happen that a new criminal law which decriminalizes a former crime can be enacted and put into practice. There may also be a possibility for a crime to be changed into an administrative or civil wrong through the enactment of a new law. In such instances, the latter decriminalizing criminal law will be retroactively applied to save individuals who committed the crimes before its coming into force from charges or remaining punishments. This is the simplest circumstance under which an ex post facto criminal law can be used to decide on offenders who committed crimes before its effective date.
According to Article 5 (3) of the Criminal Code, “no act shall be tried or punished where it was a crime committed under the repealed legislation but is not declared so to be under this Code.” If proceedings have been instituted, they should be discontinued. In addition, if a punishment was imposed, it shall no longer be enforceable or shall forthwith cease to have effect.
A case in point is the termination of a pregnancy which resulted from rape. Under the Penal Code, the termination of a pregnancy which resulted from rape even by a registered medical practitioner and within the period permitted by the profession was a crime. On the contrary, the Criminal Code allows terminating a pregnancy under such situations. Thus, for a medical professional who terminated a pregnancy which resulted from rape within the period permitted in the profession before the entry into force of the Criminal Code, it is the Criminal Code which is more favourable than the Penal Code and, hence, must be applicable to charge her/him. If, however, a proceeding has already been set in motion against her/him pursuant to the Penal Code, it should be terminated. If a sentence is passed against her/him according to the Penal Code, it must immediately cease to have effect.
b) Introduction of a Reduced Punishment
The other scenario for the retroactive application of criminal law is when the punishment which a crime may entail is lessened by making a new legislation. In such circumstances, however, determining whether a new criminal law is beneficial to the accused or convict is sometimes not as easy as the case of decriminalization.
To determine whether the punishment provided by the new criminal law is more lenient than the penalty stipulated under the previous law, regard must be had to the type, duration and amount of the punishments. In this respect, imprisonment is more lenient than the death penalty; simple imprisonment is more lenient than rigorous imprisonment; police arrest is more lenient than simple imprisonment; a fine is more lenient than any form of deprivation of liberty. To illustrate, a person who committed contempt of court before the coming into force of the Criminal Code must be charged or convicted in accordance with the Penal Code since the punishment it prescribes is lesser than that of the Criminal Code.
In addition, due consideration must be given to both the maximum and minimum levels of the penalties. This is on account of the fact that even though the maximum punishments set in the previous and new criminal laws are the same, they might differ in the minimum amount or period and vice versa. In such cases, if the maximum penalties are equal, the criminal law with the lesser minimum punishment must be applied. If, however, the minimum penalties are equal, the criminal law with the lower maximum punishment must be utilized. For example, a person who committed the crime of fraudulent bankruptcy (not in serious cases) is punishable with a minimum of six months simple imprisonment both under the Penal Code and the Criminal Code, while the maximum is five years under the Penal Code and three years in the Criminal Code. Thus, the Criminal Code is more advantageous than the Penal Code for a person who committed fraudulent bankruptcy before the effective date of the Criminal Code and should be applied retrospectively to her/him.
Similarly, where both laws provide for the same term of imprisonment but one of the laws prescribes that a fine must be imposed in addition, the latter law will normally not be held to be more favourable. This is because a criminal law which contemporaneously imposes imprisonment and fine on a convict affects her/his two interests, i.e., liberty and money.
Apart from examining the punishment specified in the pertinent provision, a judge should look into the sentencing manual issued by the Federal Supreme Court and apply it retroactively to crimes committed before its effective date, if it is beneficial to the accused. This position has been confirmed by the Federal Supreme Court Cassation Bench in SNNPRS’s Prosecutor v Solomon Dessalegn and Federal Prosecutor v Semir Ibrahim Hibu. In these cases, the Cassation Bench ruled that if the newly issued Sentencing Manual (No. 2/2006 E.C.) is more favourable to the accused, by extenuating the punishment to be imposed on her/him, than the one that existed at the time of the commission of the crime, the former (the new Sentencing Manual) should be retrospectively applicable.
At this juncture, it must be borne in mind that aside from the cases when a new criminal law is favourable to the accused or convict than the former law, the Criminal Code provides for other circumstances under which it is applicable without any comparison with the repealed law. These exceptions are solely based on the choice and determination of the House of People’s Representatives. In these cases, the court has no other alternative than basing its actions on these provisions. These exceptions are incorporated under Articles 7 (Application as to Measures), 8 (Application as to Periods of Limitation), 9 (2) and (3) (Enforcement of Judgments Passed under Repealed Legislation) and 10 of the Code (Application as to Cancellation and Reinstatement).
6. (Non) retroactivity of Criminal Law and Repeated Crimes
Some crimes may be committed repeatedly extending in scope before and after the coming into force of the new criminal law. In such cases, the principle of (non)retroactivity of criminal law cannot be of help. This is because it presupposes the consummation of a crime under a single criminal law. Hence, we have to look for another way out.
If, as per Article 61 of the Criminal Code, the repeated acts constitute a single crime, the time of the commission of the crime is the time when one of the repeated acts is committed. For example, if a married man repeatedly commits adultery from January 2005 - September 2005, the crime may be regarded as committed before, on or after May 9, 2005 (the effective date of the Criminal Code) in accordance with Article 25 (3) of the Criminal Code. Hence, this crime has multiple dates of commission, which makes the application of the (non)retroactivity principle difficult, if not impossible.
Some argue, in such circumstances, that the applicable law must be the law which was in force at the time of the commission of the first act, although the criminal act was continued subsequent to the enactment of the new law. Another option may be applying the new law as the commission of the crime is consummated under this law, even though the intention was formed and the act has commenced under the old law. Fascinatingly, Dejene proposes another more persuasive solution, based on the criminal law maxim ‘doubts shall benefit criminals’, by maintaining that “in as long as the crime committed is only one and it is not possible to pinpoint the exact time the crime is said to have been committed, the crime should be deemed to have been committed under the law that is more favorable to the [accused] and he should be tried thereunder.”
It is a common rule that a criminal law will apply for crimes committed after it came into force. There are some reasons which justify the widespread acceptance of this principle under national legislation and human right instruments. Exceptionally however, if it is more advantageous to the accused or convict when compared with the law which she/he infringed, a criminal law may be retrospectively used to handle offences committed prior to its effective date.
As expounded in the body of this article, the principle of nonretroactivity of criminal law along with its exception is entrenched in our Constitution and further detailed in the Criminal Code. Hence, criminal laws are, in principle, prospective in our legal system. Yet, if a new criminal law is more advantageous to the accused or convict than the law that was in force at the time of the commission of the crime, our system allows its retrospective application.