11 March 2012 Written by  Glory Nirmala K. and Amha Mekonnen

Infancy under Ethiopian Law

 

 

According to Art.52 of the Ethiopian Criminal Code, infants are completely exonerated from criminal provisions. The lower limit of penal majority is made nine years under this article. Therefore, the Ethiopian criminal code never applies to children who commit an offence before having completed their ninth year. Whatever offence may be committed by a child who is not yet in his tenth year, he is not criminally liable and may not be subjected to a penalty under the law. He is presumed by law to be doli incapax, and showing that he understands what he is doing and that he would also understand the purposes of penalty cannot rebut the presumption. Furthermore, punishment, which in any event might do more harms than good owing to its psychological consequences, is not a proper objective for one who deals with infants.

The main task is to investigate why the infants do wrong and to bring about a change in the circumstances, which lead him to commit the offence. This is not to say, however, that children may do as they please, but merely that they are not the concern of the criminal law. Instead, they are under the exclusive jurisdiction of their parents or persons exercising parental authorities. If they do wrong, corrective steps may be ordered at home or at school, but not in court. And yet, provisions  of  the Revised Family Code and Arts.576, 659 are designed to ensure that infants do not become delinquents in consequences of their parents failing in their duties.

 

Classification of Young offenders under the Code:

 

Immaturity refers to inability to appreciate the nature and consequences of an act due to early age. It includes infancy, young criminal and persons in the transitory age.

 

Infancy:

 

Infancy is the period extending from birth to what might be called criminal majority. The age limit that marks the end of infancy varies from one country to another. In our country, infancy ends at the attainment of ninth year (article 52). The infants who have not attained the age of nine years are exonerated from criminal liability.

 

For example, Hamdi is eight years old. He set fire to a hut in which three persons were asleep. Two persons seriously injured in the fire. The third person died in the fire. Hamdi will not be liable for causing negligent homicide contrary to article 543 of the Criminal Code, nor will he be liable for injuries caused by negligence contrary to article 559 of the Criminal Code.

 

Young Persons:

 

 

Young persons are persons whose age is between nine and fifteen (article 53(1)). Young persons don not enjoy complete immunity from criminal liability. They are considered responsible for their acts.  However, the court may not treat young persons in the same manner as it does adults. The court orders the penalties and measures provided under article 157-168 rather than the punishments provided under the special part of the Criminal Code.

 

Young persons are criminally liable for two reasons. First, persons begin to understand the nature of their acts, to be able to form a decision and to keep to it between the age of nine and fifteen. During this period, their intelligence and volition develop and become gradually closer to those of adults. Secondly, the commission of a crime shows that the time has come to take action because no action has been taken at home or school or it has failed. Further, it is easy to correct young persons in early age and their separation from their family does not affect them.

 

The objective of subjecting young persons to any action is to turn juveniles into useful citizens. Therefore, the primary aims of any action taken with respect to young persons are and must be education and correction. The commission of a crime by the young persons implies that there are problems in bringing them up. These problems may arise from different causes that include the parents’ failure to perform their legal duty to bring up their child properly, disunited family, poverty, migration and association of young persons with criminals. Since the causes for criminal behavior of young persons are different, the court should apply different penalties and measures that can correct and educate them.

The court, according to article 54 of the Criminal Code, should require information about the conduct, position and circumstances of the young criminal. The court may obtain this information from persons having close relationship with the young criminal such as parents, representatives of the school, guardianship authorities and institutions. Besides, the court before passing measures or penalties may order the young criminal to be kept under observation in medical or educational center, a home or any other suitable institution.

The court after it has obtained necessary information assesses the penalties and measures by taking into account the age, character degree of mental and moral development of the young criminal, as will as the educational value of the penalties and measures to be applied.  Accordingly, when an adult commits a crime, he/she is liable to the penalties prescribed by law with the respect to this crime. Every crime carries with it a certain punishment the kind and extent of which vary depending on the kind and seriousness of the crime. However, young criminals are liable to only penalties and measures provided for them. Therefore, the court may order appropriate measure against young criminals irrespective of the kind and seriousness of the crime they committed.  In ordering the measure, the court should ascertain that the measure ordered could eliminate the problems of young criminals. In this regard, the work of judges of juvenile criminal is similar to that of the medical doctors.

 

The court is not bound by its orders and may at any time vary them if this is required in the interest of the young person. This is another point that distinguishes the penalties and measures ordered against young persons from that of the adults. In cases of adult, it is a generally admitted procedural principle that a final judgment may not be revised in the course of its enforcement. This difference is justified, as there is certain amount of experimentation involved in the dealing with young persons. It is unpredictable whether the measure ordered succeeds in reforming the young criminals. Thus, the court’s duties do not end after it has begun judgment. It may order a new measure if it appears that the one that is being enforced does not serve the purpose for which it is ordered.

The measures provided for young criminals under article 158-162 of the Criminal Code are five in number. They are summarized in the following table.

 

 

 

Transitory Age:

 

 

The criminal responsibility and guilt of persons between the age of fifteen and eighteen years are determined as though they were an adult, but the punishment that may be ordered is not necessary that which would be ordered if they were adults. As a result, the court has three options. First, it may order any of the penalties applicable to adults and mitigate it according to article 179. However, the mitigation is not compulsory. In such case, the court may not sentence the criminal to death penalty. Secondary, the court may order one of the special penalties applicable to young persons. Finally, the court may order special measures applicable to young criminals based on the conditions laid down under article 177.

 

 

Special Provisions Applicable to Young Persons:

 

 

Complete immunity from criminal liability is enjoyed only by infants and ceases to operate when they attain their tenth year. Thereafter and until they reach penal majority (i.e., when they attain their sixteenth year), young offenders, known in the Code as “young persons”, are no longer exonerated from criminal provisions, though they may not be treated in the same manner as adults.

 

Where a young person commits an offence the penalties and measures to be imposed by the court shall be those provided in Book II, Chapter IV of the Criminal Code between Arts. 157-168. The reason that the young persons are subjected to these special provisions is not because they do not deserve the ordinary penalties but because they are not as well suited to their requirements as those special measures and penalties. As compared to measures and penalties prescribed for adults, the court has wider option and allowance for flexibility. Besides these provisions that provide young persons, among other things, protection from being subjected to the ordinary penalties is applicable to adults or being kept in custody with adult offenders. By doing so, the provisions squarely fits with the Constitution of the Federal Democratic Republic of Ethiopia and the UN Convention on the Rights of the Child.

 

Reasons for Young Persons Criminal Liability

 

 

There are two basic reasons that underlie why young persons have to be held criminally liable. First, young persons are assumed to begin to understand the nature of their acts and able to form a decision and keep to it. During this period and therefore, their intelligence and volition develop and become gradually closer to that of an adult. Second, the commission of an offence by them calls action by the society because no action has been taken at home or at school or it has failed. On attaining their tenth year, therefore, minors are no longer a problem to their parents alone; they become the responsibility of the society as well. Thus, the community is entitled to ensure that its younger members are not let to corrupt and perish. Accordingly, the primary aim of any action taken with respect to young persons is and must be education and correction; penalties should be used in the last resort.

 

Assessment of Sentence  in Case of Young offenders:

 

 

Art. 55 provides some guidelines, that the court has to follow in assessing the sentence regarding young offenders. According to Art.55 first aliena, the court in assessing the sentence shall take into account the age, character, and degree of mental and moral development of the young offender as well as the educational value of the measures to be applied. In view of enhancing the capacity of the special measures and penalties prescribed bring the desired result, i.e. reform and rehabilitation; the second aliena of the same provision allowed the court to vary its orders at any time to ensure the best possible treatment. This implies that the court must always take into account the best interest of the young person, a standard adopted by the FDRE Constitution and ICRC.

 

 

Measures for the Problem of the Young Criminals

 

No.

Problems of young persons

Measures

Articles

Duration of Measures

 

 

1

Feeble mindedness, arrested development, mental disease, epilepsy, addiction to drink etc.

 

 

Treatment

 

 

158

When the purpose is served or when the court ordered or when the criminal attained 18 years (article 164(1))

 

2

 

Moral abandonment, corruption, absence of care and protection

 

Supervised education

 

 

159

When the purpose is served or when the court ordered or when the criminal attained 18 years (article 164(1))

 

 

3

Spending free hours and holidays with bad friends and places

Keeping the young criminal  at home or school

 

 

161

The duration is fixed by the court  (article 161)

 

4

 

Dangerous disposition, commission of grave crime

 

Admission to corrective institution

 

162

Between one to five years or when the young criminal attaines 18 years (article 164(2))

5

Any other problems

Reprimand and censure

160

No duration

 

The court may impose penalties on young criminals. These penalties as provided under article 166-168, are of two kinds. These are fine and imprisonment. The court may not sentence a young criminal to fine or imprisonment unless the measures applied under article 158-162 have been applied and failed.

A court may sentence a young criminal to fine when he/she is capable of paying the fine and of realizing the reason for its imposition. Thus, a court may not impose fine on young criminal who has no means of income. The fine should be proportionate to the criminal’s means and gravity of the crime (article 167). Thus, a court may impose different fine on two young criminals who have committed the same crime with the same circumstances if the magnitude of their income differs. The fine may be imposed in addition to imprisonment.

 

A court should not order the sale of property of the young criminal or  the conversion of fine into labor or compulsory labor. If the failure to pay the fine is deliberate,  the court may convert the fine into home or school arrest.

 

The court may impose imprisonment on young criminals when they committed a crime punishable with rigorous imprisonment of more than ten years or death penalty (article 168(1)). The young criminals serve the sentence either in corrective institution or penitentiary detention institution. If the court sends the young criminals to penitentiary detention institution, they will not be mixed with prisoners who are sentenced to rigorous imprisonment or special confinement. The court sends young criminal when they are incorrigible or likely to be a cause of trouble, insecurity or corruption to others. Thus, the court sends young criminals to penitentiary detention institution when the measures ordered against them could not reform them. The court shall transfer young criminals from corrective institution to penitentiary detention institution when they are dangerous or when they have attained 18 years and the sentence extends beyond the age of majority.

 

The period of detention shall extend from one year to ten years (article 168(2)). The enforcement of this period of detention takes place under the regime of simple imprisonment (168(3)). That is, the court should not send young criminals to a prison that is appointed for the purpose of rigorous imprisonment. If young criminals appear to have been reformed, they may be released on probation after they have served two-thirds of the sentence of imprisonment. Thus, a young criminal who is sentenced to six years of imprisonment may be released on probation if he/she serves four years of imprisonment.

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