Stepping Away from Traditional Sentencing: Exploring Alternative Punishment Methods in Ethiopia to Reduce Prison Overcrowding

Author: Henok Wolka Worsiso

Senior Human Rights Officer at the Ethiopian Human Rights Commission.

Introduction

The Ethiopian justice system has long been confronted with a multitude of challenges, including issues such as prison overcrowding, limited resources, and a lack of focus on rehabilitation. Traditional sentencing methods, which predominantly rely on punitive measures, have proven to be inefficient in addressing the root causes of crime especially in case of less serious crimes. Thus, exploring alternative punishment methods has emerged as a potential solution to alleviate these concerns and promote a more just and rehabilitative approach. According to United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) there are several non-custodial or alternative punishments available as alternatives to imprisonment. In this paper attention is paid to the two alternative punishments specifically: community service and probation.  

Beyond Bars: Unlocking the Benefits of Alternative Punishment

One of the benefits of alternative punishments is addressing prison overcrowding. According to the USA state Department report of 2022 Ethiopia’s prisons are facing severe overcrowding issues, leading to inhumane living conditions and potential breeding grounds for further criminal activities. In many Ethiopian prisons, the dormitories resemble sardine cans, with three or even four individuals crammed into what should be personal spaces. Alternative punishment measures could alleviate the strain on the correctional system and reduce recidivism rates.

Additionally, alternative punishments are effective in addressing low-level crimes. Many Ethiopian prisons are filled with criminals who have committed less serious crimes. Resorting to alternatives helps to prevent low-level criminals from being trapped in a cycle of incarceration and ensures that more serious criminals receive appropriate attention.

There is also an economic impact associated with alternative punishment. High incarceration rates place a financial burden on Ethiopia’s economy. By adopting alternative sentencing options, the government can redirect resources towards other crucial sectors like education and social welfare.

Types of alternative punishment in Ethiopia

Although there are several other punishments available as alternatives to imprisonment in Ethiopia, in this paper attention is paid to compulsory labour and probation.

Compulsory labour: A Path to Redemption

Compulsory labour, as an alternative to imprisonment, is an approach that allows individuals convicted of less serious crimes to contribute positively to their communities.

There are two types of compulsory labour: those that restrict personal freedom and those that do not. Compulsory work that restricts personal freedom may be necessary if the court believes that it is important to combine a deprivation of liberty with the mandatory work. On the other hand, compulsory work that does not restrict personal freedom allows the individual to maintain their freedom while being monitored and controlled. It must be highlighted at the outset that compulsory labour as a form of punishment for commission of a crime is compliant with article 8 of the International Covenant on Civil and Political Rights (ICCPR).

As clearly stated under article 95 and 96 of the 2004 Criminal Code of the Federal Democratic Republic of Ethiopia compulsory labour can be imposed as a substitute for a fine. As per article 103 of the criminal code this form of punishment can also be imposed as substitute for simple imprisonment not exceeding six month provided that the criminal is healthy and is not dangerous to the society. The work is not gratuitous as the criminal retains at least two third of the fruit of his labour. The other important condition where simple imprisonment can be converted to compulsory labour is envisaged under article 107 of the criminal code. That is where there are administrative difficulties to execution of this sentence in a prison and prison is not conducive to reform or rehabilitation of the criminal, compulsory labour can be imposed in lieu of simple imprisonment. This form of punishment not only benefits the criminal but also promotes empathy and personal growth.

When a court decides to impose compulsory labour, there are several key points that must be considered according to article 104 of the criminal code. Firstly, the duration of compulsory labour should be specified. Additionally, the location and type of work to be performed must be determined. Lastly, the court must establish the body responsible for overseeing the work and the type of control that will be implemented.

If the individual becomes ill while performing the work, the work may be temporarily suspended until they recover. It is important for the court to assess the health and determine if the convict is capable of resuming the work or if an alternative penalty should be imposed.

However, there are several problems associated with the implementation of compulsory labour in Ethiopia. One issue is the tendency to default to imprisonment as the only punishment option, rather than considering alternative forms of punishment. Additionally, lack of detailed laws and the absence of a dedicated institution to oversee the provision of mandatory work pose significant challenges that need attention. Unlike some countries such as South Africa and Ireland, where specific departments are responsible for supervising individuals sentenced to community service, Ethiopia lacks a structured system for monitoring and ensuring compliance with mandatory work requirements.

In South Africa, the oversight of individuals sentenced to community service is managed by the Department of Correctional Services. This department collaborates closely with various stakeholders, including community organisations, non-profit entities, and government agencies, to ensure the effective implementation of community service programs.

In Ireland, the supervision of individuals sentenced to community service is overseen by the Probation Service, an agency under the Department of Justice and Equality. The Probation Service is tasked with monitoring criminals who have been ordered by the courts to perform community service. Through its oversight role, the Probation Service plays a crucial part in ensuring that individuals fulfill their community service obligations and contribute positively to society.

Probation: A Second Chance at Reform

Black’s Law Dictionary defines probation as: ‘the sentence imposed for commission of crime whereby a convicted criminal   is released into the community under the supervision of   a   probation   officer   in   lieu   of   incarceration’. According to article 190 of the criminal code, Ethiopian courts have the power to use condition suspension of penalty or probation instead of imprisonment for certain non-violent crimes. Suspension of penalty in this case refers to both suspension of pronouncement of penalty and suspension of enforcement of penalty. Article 191 further explains that probation can be used when the criminal has no previous convictions, is not considered dangerous, and the crime they committed carries a punishment of fine, compulsory labor, or simple imprisonment for up to three years. The court, after having convicted the criminal, may suspend sentence and place the criminal on probation, where it is of the opinion that such decision will lead to the reform of the criminal. When a judge imposes a suspended sentence, they have a significant degree of discretion in determining the length of probation based on the nature and severity of the crime committed.

If a criminal placed on probation adheres to the conditions set forth by the court, their criminal record will not be entered into the criminal register, and their conviction will be considered non-existent in case of Suspension of Pronouncement of the penalty according to article 191 of the criminal code. However, in case of suspension of enforcement of the penalty if the probation is successfully undergone the sentence shall be remitted but the conviction entered in the judgment register shall remain with all its consequences as per article 192 of the criminal code.

As vividly stated under article 196 of the criminal code probation periods cannot be less than two years and greater than five years. It’s important to note that there are instances where the suspension of penalty is not applicable, as mentioned under article 194. As per article 194 1(a), of the criminal code suspension of penalty shall not be allowed if the criminal has previously served a sentence of rigorous or simple imprisonment exceeding three years and is sentenced again for the same crime, without prejudice to recidivism provisions.

Additionally, if a criminal who has not been sentenced before receives a term of rigorous imprisonment exceeding five years for the current crime, suspension of penalty is not permitted.

The Court has the authority to revoke a suspension of penalty if: (a) the criminal commits another crime after being granted suspension, and the nature and extent of the penalty for the new crime meet the requirements; (b) the criminal intentionally commits a new crime during the probation period; or (c) the Court believes that the conditional suspension will not lead to positive outcomes.

In some cases, the court may choose to give the criminal a serious warning instead of enforcing the sentence, as stated in article 192. After convicting the criminal, the court can pass the sentence but suspend its execution for a specific period of probation without suspending measures imposed according to articles 127-159 of the criminal code. These conditions include ordering treatment for criminals with mental illness, requiring the convicted to enter into a recognizance for good behavior with sureties if a convicted person shows intent to commit further crimes or poses a threat, seizure of items used or likely to be used in crimes that endanger public order, safety, health, or decency, a court may also restrict a convicted person’s access to certain places that may have contributed to the commission of the crime or may expose the individual to committing further offenses.

During probation, the criminal is released under supervision and must follow certain conditions as outlined in articles 197-200 of the criminal code. These conditions could include regular reporting to probation officers, participating in rehabilitation programs, or avoiding specific people or places. This approach aims to reintegrate criminals into society while still ensuring deterrence and public safety.

If the probation period is completed successfully, the sentence will be remitted, but the conviction will still remain in the Judgment register with all its consequences. However, if the probation is unsuccessful, the suspended penalty will be enforced according to article 200(3) of the criminal code.

Although the Criminal Code of Ethiopia encompasses comprehensive provisions on probation and allows its usage, there exists a considerable disparity in its application across various courts. These courts often default to imprisonment instead of granting probation, even for eligible individuals. Additionally, there is a gap in understanding the legal provisions concerning probation, as well as a lack of appropriate institutional facilities and organisations dedicated to supervising probationers and providing court updates on their progress.

To address the disparity in application of the criminal code provision dealing with probation, the Federal Supreme Court Cassation Bench has made a decision in order to create uniformity in the implementation of probation by issuing binding authority decisions in criminal cases such as case No. 94404 and case 34280, as well as in other cases. Under this court decisions, it was explicitly stated that individuals who fulfill the criteria outlined in article 192 and 197 of the criminal code are eligible and are entitled for probation, unless such eligibility is expressly prohibited by article 194 of the same code.

Conclusion

Alternative punishment methods offer several benefits to both the justice system and the wider society. By moving away from traditional sentencing, these approaches prioritise the rehabilitation and reintegration of criminals. Moreover, for the Ethiopian context, where prison overcrowding is a pressing issue, embracing alternative punishment can help alleviate the strain on correctional facilities. In order to effectively utilise community service and probation as alternative punishment in Ethiopia the following should be done:-

There should be a department within correction intuitions that is dedicated to oversee community service and probations. Alternatively, the state should consider establishing a specialised institution dedicated to effectively monitoring and implementing court decisions related to mandatory public service as a criminal sentence.

To maximise the benefits of probation, it is crucial for the government to establish well-equipped probation departments to effectively supervise and support probationers. This can be achieved through the implementation of comprehensive laws that define the structure and function of probation. It is also essential for judges to utilise the option of probationary sentences and release individuals who are deemed eligible for probation.

About the Author:

Henok Wolka Worsiso, is a blogger, with a strong legal foundation built on experience as a Public Prosecutor and a Master’s degree in International Law. He is currently serving as a senior Human Rights Officer at the Ethiopian Human Rights Commission.