04 September 2012 Written by  Kahsay Debesu and Andualem Eshetu

Evidence in Ethiopia

The development of the Ethiopian evidence rule is traced back to the ancient days Fitha-Negest, the document which governs the spiritual and secular life the society before the enactments of modern codes. The document contains many provisions dealing about proof and means of proof, for instance it stressed the importance of man's oath in court and prevented parties and their kinsmen and close relatives from testifying. Moreover, it stresses the value of witnesses and contains its own hearsay rule. There is, there fore, a tradition of oral evidence in the ancient Ethiopian system.

However, since the application of Fitha negast was limited to Christian highlands, different traditional meanness of proof like Afersata ,lebashai ,waqif sera  had been in use etc until the enactment of the modern codes in different parts of the country . And later on the drafters have tried to reflect the sprits of those customary practices and ftha negast in those modern codes.  

Do you think Ethiopia has a separate mode of evidence?

You have to take note of the fact that up to now (Until the time of the preparation of this material) we in Ethiopia do not have a separate and codified law of evidence. Rather our evidentiary rules are found scattered throughout our substantive laws such as the criminal law, private laws you find in the civil code, commercial code, etc and adjective laws mainly the criminal procedure and the civil procedure. This here and there scattered evidence rules enables the Ethiopian evidence system to share both civil law and common law features.

Since our substantive laws are adopted from civil law legal system, considerable code emphasis is placed on the value of documentary evidence to include provisions for register and acts of notoriety, which is mainly the feature of continental approach. Moreover, since our substantive laws are adopted from the civil law legal system, we have a number of evidence rules scattered throughout our substantive laws like the Articles on proof of marriage, proof of will, proof of contract, proof of ownership and a lot of legal presumption which relate to evidence.

There are also common law features to the present Ethiopian evidence system. Since our procedural laws are adopted from the common law legal system, the method of presentation of evidence envisaged by the civil and criminal procedures is very much of the common law method of presentation of evidence. The common law features, for instance, cross-examination and impeachment of witnesses, objection to and rulings on admissibility of evidence and the like are included in our procedural laws. Therefore, we can say that, the present day Ethiopian evidence system is the hybrid of civil law and common law features.  

However, this here-and-there scattered evidence rules are far from being complete. There are gaps in statutory evidence provisions, which allow for a great deal of judicial discretion. This means, in order to fill the existing gaps, the courts are using those internationally accepted rules evidence in their day-to-day activities. For instance, many of the principles of the draft Rules of 1967 (DER) have been in use in our courts without citing them as a law since they are not yet ratified by the law-making organ of the country. This is not by accident but it is necessitated by the fact that our procedural laws required the implementation of some of the principles of the draft evidence law.

Ethiopians draft evidence rules basically copies the Indian evidence act with certain interesting twists of its own, particularly by way of omission. In Ethiopia, for more than forty years this draft evidence rules have been in use for academic purposes. It is recently accepted that we need to have separate rules of evidence and the preparation of the draft evidence law has already started thus, now it seems that we may have our evidence law in a foreseeable future. Generally, we can classify the present sources of Ethiopia’s evidence rules in to three: -

(i) The evidentially rules which are found scattered through out our substantive, Procedural and other proclamations.

(ii) Modern and internationally accepted principles of evidences have been in use in our courts just to fill the existing gaps found in out substantive and procedural laws. It is believed that, applying such principles of evidence has a great importance in incorporating those modern evidentiary principles in to our judicial custom and in developing the general jurisprudence of evidence in the country.

(iii) Even though the tradition of publishing and distribution of case reports is not as such developed, case laws are also considered as the third source of evidence rules in Ethiopia. This is similar with the common laws precedent system in which the lower courts are bound to follow the decisions of the higher court involving the same question of law or fact.

However, this precedent system does not work on cases involving the same question of facts in Ethiopia. According to Art 2(4) of the Federal Courts' Establishment proclamation re-amendment proclamation No. 454/2005, interpretation of law rendered by the federal Supreme Court cassation bench is binding on federal as well as regional courts of all level. Therefore, if the federal Supreme Court's cassation bench gives decision on question of law, which involves evidence, it shall be bidding on all other courts as a law.