CHAPTER ONE

INTRODUCTION

1.1 Background

Jurisdiction is the power or authority of a court over a particular person, area or subject matter.
The Black’s Law Dictionary defines jurisdiction as ‘‘the power and authority constitutionally
conferred up on (or constitutionally recognized as existing in) in a court or judge to pronounce
the sentence of the law, or to award the remedies provided by law, up on a state of facts proved
or admitted”1 In particular criminal jurisdiction is a power or authority of a court to try and
punish the accused for violation of government’s criminal law. First instance or original
jurisdiction is the power of a court to hear a case for the first time. 2 Generally, jurisdiction grants
courts the power to handle law suits.

In Ethiopia, Federal judicial power is vested on federal courts. Based on their competence as
provided by law, federal courts are arranged as the Federal Supreme Court (FSC), the Federal
High Courts (FHC) and the Federal First Instance Courts (FFIC). 3 Federal judicial power in
relation to matters falling under the jurisdiction of federal high courts and first instance courts at
the state level is delegated to state Supreme Court and high courts respectively. 4

In principle the major grounds for the federal courts to assume jurisdiction over offences are law,
parties to the case and places of commission.5

The House of Peoples Representative (here in after the HPR) proclaimed a new proclamation in
1996 in view of determining the jurisdiction of the Federal Courts of Ethiopia. 6 This

1
Black’s Law Dictionary, 8th ed., s.v. “jurisdiction”
2
Encyclopaedia Britanica, 13th ed., “jurisdiction”
3
Tesfaye Abate, Introduction to Law and Ethiopian Legal System, Justice and Legal System Research Institute,
Addis Ababa, 2009, pp. 225
4
Proclamation of Constitution of Federal Democratic Republic of Ethiopia , 1995, Negarit Gazzeta, Proc No.
1, 1st year, No.1, Art 78(3). [here in after, the FDRE Constitution]
5
Aderajew Teklu and Kedir Mohammed, Ethiopian Criminal Procedure Teaching Material, Justice and Legal
Research Institute, Addis Ababa, 2009, pp. 219
6
See the preamble of the proclamation

1
proclamation may be cited as the ‘Federal Courts Proclamation No. 25/1996’ (Herein, after the
proclamation). The proclamation gives first instance jurisdiction to the Federal Supreme Court
by the virtue of article 8. This article grants the Federal Supreme Court an exclusive first
instance jurisdiction over offences for which officials of the Federal Government are held liable
in connection with their official responsibility; 7 without prejudice to international diplomatic law
and custom, offences for which foreign ambassadors, consuls as well as representatives of
international organizations and foreign states are held liable; application for change of venue
from one Federal High Court to another or to itself, in accordance with law. 8 Hence, it is only the
Federal Supreme Court which has a jurisdiction over offences which held officials of Ethiopian
Federal Government liable in connection with their official liability and ambassadors, consuls
and representatives of international organizations and foreign states save as international
diplomatic law and customs.

“Once the trial is concluded, a range of steps be taken. These steps include appeal, cassation,
enforcement of the court’s decree, and pardon.” 9An appeal means that one of the parties is
requesting that the decision given by a lower court to be looked at again by a higher court. It
occurs when the higher court reviews a decision of the lower court and either it affirms or
reverses that decision.

The Free Dictionary defined appeal as ‘‘timely resort by unsuccessful party in law suit or
administrative proceeding to an appropriate superior court empowered to review a final decision
on the ground that it was based up on an erroneous application of law.” 10 So the right to appeal is
a right that can be exercised, within specified period of time, by parties to the case up on
grievance with the decision of the lower court which heard the case first.

The purpose of appeal is to seek a better decision from a tribunal other than the trial court which
is higher in hierarchy from the later. It aimed at ensuring at least two levels of judicial scrutiny of
a case, the second of which must take place before a higher tribunal.11

7
Federal Courts Proclamation, 1996, Federal Negarit Gazzeta, Proc. No. 25, 2nd year, No. 13, Art 8(1) [here in
after, Proc. No. 25/1996]
8
See art 8(2) and 8(3) of the Proc. No. 25/1996
9
Wondwossen Demissie Kasa, Ethiopian Criminal Procedure, Addis Ababa University, Addis Ababa, 2012,
pp. 367
10
The Free Dictionary, Farlex Incorporation, United States, 2016
11
Lawyers Committee for Human Rights, What is Fair Trial, United States of America, 2000, p. 21.

2
In Ethiopia, the party who is not satisfied with the decision of the court shall submit his notice of
appeal to the court which renders the decision within fifteen days. 12 The registrar of the court
copy the judgment appealed against if it accepts the notice of appeal.

The right to appeal is a right which is recognized by the constitution of the Federal Democratic
Republic of Ethiopia (herein after the FDRE Constitution). 13 The constitution assures that all
persons have the right to lodge an appeal to the competent court following a grievance or
dissatisfaction by the order or judgment of the court which first heard the case. The International
Covenant on Civil and Political Rights (ICCPR), which is ratified by Ethiopia, also recognized
the right to appeal.14 To the ICCPR, any person who is convicted of crime has the right to lodge
an appeal, to the higher tribunal, in order to his or her conviction and sentence be reviewed by it.
Here, the Covenant empowers the convicted person a right to appeal against the decision of the
trial court. Hence, any inclination from the provision directly affects the fundamental right.

The right to appeal exists so long as there is hierarchy or level of courts. This is true since appeal
is always lodged to the next high level of court against the decisions of the court which heard the
case first. To this effect there should always exist a higher court after the trial court to review the
decision of the later court (especially in criminal cases which are highly sensitive)

1.2 Statement of Problem

Federal Courts Proclamation No. 25/1996 empowered, under article 8, the Federal Supreme
Court an exclusive first instance jurisdiction over specific matters. Offences for which officials
of the Federal Government are held liable in connection with their official liability and offences
for which foreign ambassadors, consuls and representatives of international organizations and
foreign states are held liable (art 8(1) and 8(2) respectively) are two of the three first instance
jurisdiction of the court. There is no possibility of expressing grievance in the form of appeal if a
case is heard by the Federal Supreme Court first instance jurisdiction. This is because of the fact
that the Federal Supreme Court is the highest judicial organ in the country. 15 On the other hand,

12
Criminal Procedure Code of the Empire of Ethiopia, 1961, Negarit Gazetta, Extraordinary issue, 21st year,
No. 7, Art 187(1). [here in after, the Criminal Procedure Code]
13
See art 20(6) of the FDRE Constitution
14
International Covenant on Civil and Political Rights, adopted by way of General Assembly resolution 2200A
(XXI) Article 14(5) at <http:/www2.ohchr.org/English/law/ccpr.htm> [here in after, the ICCPR]
15
See Art 78(2) of the FRDE Constitution

3
the right to appeal is a fundamental right which is recognized by the FDRE Constitution and
international instruments like ICCPR.16

The existence of these legislations creates confusion as to exercising the right to appeal. The
disparity of positions and comments on the same issue by different lawyers are manifestations of
the confusion.17 Hence, it is better to appraise and critically evaluate whether the Federal
Supreme Court first instance jurisdiction is against the well recognized right to appeal.

1.3 Objective of the Study

The general objective of this research is to appraise or assess the implication first instance
jurisdiction of the Federal Supreme Court of Ethiopia on the right to appeal.

Specific Objectives

1. To discuss the extent/scope of the right appeal

2. To discuss the concept of first instance jurisdiction
3. To elaborate the purposes of the right to appeal

1.4 Research Questions

The major question that this paper seeks to address is “Is the Federal Supreme Court first
instance jurisdiction compatible with the right to appeal?” this major issue will be addressed
through analyzing the fact and the extent to which the right to appeal is guaranteed in national
and international human right instruments to which Ethiopia is party.

In order to address the central question of the paper effectively, the following sub-questions will
be given due attention:

1. What is the extent or scope of the right to appeal?

16
See Art 20(6) of the FDRE Constitution and art 14(5) of the ICCPR
17
Dessalegn Berhanu Wagasa, ‘All about Words on the Procedure of Constitutional Interpretation in Ethiopia:
A Case Comment on Melaku Fenta Case’, Oromia Law Journal, Vol. 4, No. 4.

4
 2. What is first instance jurisdiction?
3. What are the very purposes of the right to appeal?

1.5 Significance of the Study

Initially, this research will have undeniable significance to potential researchers who are
obsessed to conduct researches on the area. They may use this study as a clue or source for
theirs. Also it serves as a lobbying tool on the legislator to amend the Federal Courts
Proclamation No. 25/1996 (specifically art 8 of the proclamation). On the other side the writer
also believes that the study will benefit the House of Federation to give a constitutional
interpretation on art 20(6) of the FDRE Constitution.

1.6 Limitation of the Study

The major limitation of the paper is the difficulty of having well organized printed sources on the
area. To the researcher’s knowledge, there are no books that directly concentrate on the issue.
Therefore, this paper is highly dependent on internet based sources.

Secondly, time constrain is another limitation of this study. The researcher faces difficulty in
allocation of time for the research and other academic tasks such as day to day class lessons and
the National Exit Exam.

1.7 Scope of the Study

This research is intended to cover the Federal Courts Proclamation No. 25/1996 with regard to its
position with the right to appeal in the FDRE Constitution and the ICCPR. The study is focused
only on the jurisdiction, particularly exclusive first instance jurisdiction, of the Federal Supreme
Court of Ethiopia. Hence, the jurisdiction of Federal Courts other than the Federal Supreme
Court is out of the reach of the study. As far as appeal is concerned this study is concerned the
scope of this study is limited to criminal appeals. Thus, the use of the term appeal implies the
criminal appeal.

1.8 Methodology

5
Taking into account the research questions that this research is going to answer, this study fall
under the type of doctrinal legal research. Hence, qualitative data method will be employed.
Accordingly, legal analysis will be made in a way that can answer the research questions through
analysis of written books, reviews, concepts from websites and opinions from law professionals
and authorities.

1.9 Organizational Structure of the Study

Chapter One introduces the primary concern of the paper. After introducing the agenda to be
addressed in the paper the details of research problem, the objectives, questions, significance,
scope and methodology employed to the paper are addressed.

Chapter Two covers the general overview of appeal and jurisdiction. Accordingly, issues in
relation with the definition and types of appeal and jurisdiction of both appeal and jurisdiction
are addressed. The scope, purposes and different kinds of appeal are also issues that addressed in
this chapter.

Chapter Three is the principal part of the paper. Detailed analysis is made to appraise the first
instance jurisdiction of the Federal Supreme Court of Ethiopia with the right to appeal. The
appraisal is made on the first instance jurisdiction of the court with the right to appeal in the
FDRE Constitution and the ICCPR. Finally, conclusion and recommendations are forwarded in
this chapter.

CHAPTER TWO

6
 APPEAL AND JURISDICTION: GENERAL OVERVIEW

2.1 Historical Background of Appeal

The concept of appeal is not a recent phenomenon. Rather it has existed for a very long period of
time. “During the first dynasty of Babylon, Hammurabi and his governors served as the highest
appellate courts of the land,”18 However, the history of development of appeal in civil and
common law jurisdiction is different.19 The right to appeal is somehow recent in common law
jurisdiction. “In fact, commentators have observed that common law jurisdiction was particularly
slow to incorporate a right to appeal in to either its civil or criminal jurisprudence.” 20 The
concept of discretion to order a new trial in certain criminal appeals comes to exist in the
seventeenth century in common law jurisprudence.21 However, the new trial could only be sought
in very narrow range of cases and the process was restricted to small number of cases. 22 During
this time review was restricted to procedural errors. Evidentiary rulings, jury instructions and the
factual basis for conviction were not subjects of review.23

During the half of the nineteenth century pressure began to build for a right to appeal in criminal
cases. From 1844-1906 31 bills concerning appeal introduced to the parliament of England. 24
And finally, in 1907 a Criminal Appeal Act passed and established the Court of Criminal Appeal
in England.25

2.2 Defining Appeal

18
Joseph W. Dellapenna and Joyeeta Gupta, The Evolution of the Law and Politics of Water, 2009, pp. 29, as
quoted by Wikipedia
19
Peter D. Marshall, ‘A Comparative Analysis of the Right to Appeal’, Duke Journal of Comparative and
International Law, 2011, Vol. 22, No. 1, pp. 1-46, at p. 4
20
Stan Keillor, Should Minnesota recognize a State Constitutional Right to a Criminal Appeal?, 2013, pp. 399-
402, as quoted by Wikipedia
21
Supra note no.19 at p. 5
22
Ibid
23
Id at P. 6
24
Ibid
25
Id at p. 9

7
An appeal can be best described as a review of a decision of a lower court and a chance to
determine how those decisions led to the current outcome.

The ordinary dictionary defines the term appeal as ‘‘an application to a higher court for a
decision to be reversed.”26 The Free Dictionary defines appeal as ‘‘timely resort by unsuccessful
party in lawsuit or administrative proceeding to an appropriate superior court empowered to
review a final decision on the ground that it was based up on an erroneous application of law.” 27
Appeal is defined by the Black’s Law Dictionary as ‘‘a proceeding undertaken to have a decision
reconsidered by a higher authority; especially, the submission of the lower court’s or agency’s
decision to higher court for review and possible reversal.”28

Some common elements might be picked from the definition of appeal as defined by the Free
Dictionary and the Black’s Law Dictionary. These elements are dissatisfied party, lower court,
final decision and higher court.

1. Dissatisfied party: the grievance of parties to the case is a corner stone of the right to
appeal. Either of the parties should be unsatisfied with decision of the court which heard
the case first. One of the parties argues that something goes wrong with the first decision
and it should be changed.29
2. Lower court: this is the court which heard the case first. This court entertained the case
and rendered a decision and lastly the decision dissatisfied either of the parties to the
case. All first instance courts fall under the category of lower court. In addition, the
decisions of High Courts are also appealable since there is a court which is higher in
hierarchy i.e. the Supreme Court.
3. Final decision: an appeal is only lodged against the final decision of the court which
heard the case first. A judgment is considered final for purpose of appeal when it ends the
action in the court in which it was brought and nothing is to be decided.
4. Higher court: this court is obviously the appellate court for which an appeal is submitted
to. It is higher in hierarchy than the court that an appeal is lodged against its decision. In

26
Oxford Dictionary , 10th ed., s.v. “appeal”
27
Collins English Dictionary, 2014, 12th ed, “appeal”
28
Black’s Law Dictionary, 8th ed., s.v. “appeal”
29
“Appealing” at <law.freeadvice.com/litigation/appeals/appealing.html> [Last accessed 7, December 2016]

8
 most legal systems Higher Courts (within their appellate jurisdiction) and the Supreme
Court are appellate courts that can review decision of lower courts.

2.3 Philosophical Foundation of Appeal

The right to appeal is a single leaf of the broad human right. It is fundamental right of human
beings. Hence, dealing the philosophical foundation of human rights also incorporates the right
to appeal.

The fundamental questions on how human rights may be justified have always been the headache
of philosophers. The philosophers provided different answers for these questions. They
forwarded equality, autonomy, human dignity, fundamental human interest and even democracy
as philosophical foundations of human rights.30 Basically, there are two most prominent
philosophical attempts to justify human rights namely interest theory and will theory.

a) The interest theory approach: advocates of this approach argue that “securing human
being’s essential interest is the principal ground up on which human rights may be
morally justified.”31 To this approach assuring the well being of human beings is the
corner stone for philosophical foundation of human right. Here, the existence of rights is
to serve the relevant interests of the right holder. 32 John Finns and James Nickel were
leading proponents of interest theory approach.
b) The will theory approach: the will theory approach is the flip side of the interest theory
approach. “[T]he will theory approach attempts to establish the philosophical validity of
human rights up on a single human right attribute: the capacity to freedom.” 33 To this
approach the philosophical foundation of human rights stand on the concept of liberty. H.L.A
Hart, Henry Shue and Alan Gewirth were theorist of will theory approach. 34 As it has been
said earlier the right to appeal is a human right. Thus, to this approach freedom and liberty
are bases to hold and exercise such right.

30
“Philosophical Foundation of Human Rights” at <www.oxfordsccholarship.com> [last accessed 7, December
2016]
31
Ibid
32
Norman Barry, An Introduction to Modern Political Theory, Macmillan Press, London, 2000, pp. 249
33
“Philosophical Foundation of Human Rights” at <www.oxfordsccholarship.com> [last accessed 7, December
2016]
34
Ibid

9
2.4 Scope of the Right to Appeal

The fact that appeal is a fundamental human right does not imply that it has no limitation. The
consumer of this right can’t use it as many times as he wishes. Appeal is a right of any aggrieved
party which could only be exercised only once.” 35 An aggrieved party’s right to lodge an appeal
is to the high court against the decision of first instance court and to the Supreme Court against
the decision of the High court. The appeal process ends here since there is no higher court after
the Federal Supreme Court.

The right to appeal cannot be exercised against all decisions of the lower court. The Criminal
Procedure Code of the Empire of Ethiopia made some decisions out of the reach of the right to
appeal.

Art. 184. No interlocutory appeals.

No interlocutory appeal shall lie from a decision of a court:

(a) Granting or refusing an adjournment under Art. 94; or

(b) Regarding an objection under Art. 131; or
(c) Regarding the admissibility or non-admissibility of evidence under Art. 146, but any such decision
may form the subject of a ground of appeal where an appeal is lodged against conviction, discharge or
acquittal.

Hence, appeal is prohibited from a decision of the court granting or refusing adjournment under
Article 94, regarding an objection under Article 131, and regarding the admissibility or non-
admissibility of evidence under Article 146.

In terms of parties, the right to appeal is limited to those parties to the proceeding who are
dissatisfied by the decision. Both the defendant and the public prosecutor of a case enjoy equal
right of appeal if they are aggrieved by the decision of the court. A public prosecutor may lodge
an appeal following the acquittal of the accused.36 On the other hand the accused may lodge an
appeal when he thinks that the penalty imposed on him is more than what he deserves.37

2.5 Purposes of Appeal

35
Supra note no. 5, at p. 288
36
See art 185(2) of the Criminal Procedure Code
37
See art 185(1) of the Criminal Procedure Code

10
Convictions and acquittal cannot be treated as final until appeal rights have been either exhausted
or waived. Once a defendant is convicted does not mean that the trial is the final stage in
criminal process. A convicted person has the right to appeal against, or seek review of,
conviction and sentence.38 Peter D. Marshall on his article, comparative analysis of the right to
appeal, deals about the function of appeal as

Miscarriages arise in at least two ways. First, an innocent defendant may be wrongly convicted. There
are many possible reasons for such errors. The fact finder may fail to assess the evidence properly;
may be misled by irrelevant, prejudicial or fabricated evidence; or exculpatory evidence may not be
produced at trial. Second, a defendant may not receive a fair trial for a myriad of potential reasons.
Appeals provide a forum in which defendants may have these concerns addressed. 39

Here, the purpose of appeal is addressing the errors made by the lower court to which the case is
first presented for. At the broadest level of generality, appeals are concerned with correcting
error. “The primary function of the modern right to appeal is to protect against miscarriage of
justice.”40 Appeal is crucial for ensuring that justice is made in each case. This is the
manifestation of the inclusion of appeal right in modern human right instruments. 41 Obviously,
the appellant lodge an appeal aiming at the reversal of the decision of the trial court by the higher
court after it. The right to appeal is consumed by an aggrieved party in search of a better decision
from higher tribunal where the judges have high academic status and deep experience. Basically,
the right to appeal aimed at ensuring at least two levels of judicial scrutiny of a case, the second
of which must take place before a higher tribunal. 42 The first level is the trial court itself and the
appellate court is the second level. Hence, appeal functions as a process for correction of error
and process for the clarification and interpretation of law. Appeal also provides legitimacy to the
criminal justice system as a whole. Public confidence in the administration of justice increases
when miscarriages do not occur.

2.6 Kinds of Appeal

2.6.1 Appeal as of Right Vs Discretionary Appeal

38
Supra note no. 19, at p. 1
39
Id at p. 5
40
Id at p. 3.
41
Ibid
42
Supra note no. 10, at p. 21

11
All appeals, whether they are from civil trials or criminal trials cannot escape from being appeal
as of right or discretionary appeal.43 An appeal as of right is an appeal lodged against the
decision of the court which heard the case first. Here dissatisfied party has a statutory right to
appeal to the next level of court against the decision of the trial court. The FDRE Constitution
recognized appeal as of right.44 Most state laws mandate that an appeal court hear any appeal
coming directly from trial court’s decision. Discretionary appeal has different aspect from appeal
as of right. Unlike appeal as of right parties do not have statutory or legal right to a discretionary
appeal. Rather, the appellate court determines whether or not to allow dissatisfied party to bring
its case to it.45 Here, appeal right of the party is directly dependant on the discretional power of
the appellate court. A court with discretionary appellate review power may deny review for any
number of reasons other than the perceived correctness of the lower court’s ruling.46

2.6.2 Direct Appeal Vs Collateral Appeal

These kinds of appeal are not common in civil cases. The area of law in which this distinction
matters most is habeas corpus law, which involves challenges against convictions made in
criminal trials. In a criminal case, a direct appeal is an appeal of the criminal verdict made
directly from the trial court to the state or federal court of appeals and/or from the court of
appeals to a higher court. Just like in civil cases, the first appeal of a criminal conviction is as of
right in most courts, while appeals after the first, including appeals to the state’s highest court,
47
are discretionary. Collateral appeal takes place only after direct appeal has run its course. 48 It
aims at challenging the legality of the conviction or sentence. 49 Hence, pointing out the errors
and negligence that directly affected the conviction, made in the trial court are out of the reach of
collateral appeal. Unlike direct appeal, “collateral appeal is more at the discretion of the courts as
to whether to entertain or approve them.”50

43
“What are Different Kinds of Appeal” <www.rotlaw.com> [last accessed 7, December 2016]
44
See art 20(6) of the FDRE Constitution
45
“What are Different Kinds of Appeal” <www.rotlaw.com> [last accessed 7, December 2016]
46
Robertson, Cassandra Burke, ‘The Right to Appeal’, North Carolina Law Review, 2013, Vol. 91, PP. 1220-
1282, at p. 1268
47
Ibid
48
“ What is a collateral appeal” <federalcriminallawcenter.com/frequently-asked-questions/what-is-a-collateral-
appeal/> [last accessed 12, January 2017]
49
Ibid
50
Ibid

12
2.7 Procedural Requirements of Appeal

There is no considerable difference among the procedures of appeal in most jurisdictions. These
procedures are incorporated in procedural laws of the states. A party to exercise this right first
should fulfill the pre conditions and procedural requirements set by procedure laws.

“The first essential step in taking an appeal is the transfer of jurisdiction to the appellate court.
This should involve nothing more than a formal notice to the trial court of the transfer to the
appellate court, or where appeal is by leave, a request for a transfer.” 51 “…the party who is not
satisfied with the decision of a court, if he wants to appeal to the next higher court, it shall
submit his notice of appeal to the court which renders the judgment in respect of which appeal is
sought.”52 The Ethiopian Criminal Procedure code obliges the appellant or his advocate to submit
a notice of appeal to the registrar of the court which gives the decision, within fifteen days of the
delivery of the decision.53 Hence, the initial stage of appeal process of Ethiopian criminal justice
system is filing a notice of appeal. The appellant in United State’s courts shall submit notice of
appeal to the clerk of the court in which the case was heard. 54 Here, the only difference between
the two criminal justice systems in terms of filing notice of appeal is the time of filing. The
appellant is given fourteen days, after an order is announced, to submit his notice of appeal in US
courts.55 This limit increases by one in Ethiopia. The registrar of the court, on the receipt of the
notice of appeal, copies the judgment appealed against and give to the appellant or his advocate.
Then after the appellant has thirty days, after he receive the copy of the decision appealed
against, to file the memorandum of appeal.56

Art. 189._ Contents of memorandum of appeal

1) The memorandum of appeal shall forth concisely and under distinct heads the grounds of
objection to the judgment appealed against without any arguments and such grounds shall

51
Lester B. Orefield, ‘The Procedure of Appeal in Criminal Cases’, California Law Review, 1936, Vol. 24,
Issue 2, PP. 407-427, at p. 410
52
Supra note no. 5, at p. 288
53
See Art 187(1) of Criminal Procedure Code
54
“How to Appeal a Criminal Case to the United States Courts of Appeals for the Second Circuit”, at
<www.ca2.uscourts.gov> [last accessed 7, December 2016]

55
Ibid
56
See Art 187(2) of the Criminal Procedure Code

13
 be numbered consecutively. The memorandum shall be accompanied by a copy of the
judgment appealed against. The memorandum of appeal of appeal shall sate the nature of
the relief that is sought.
2) The memorandum of appeal shall be signed by the appellant and his advocate, if any.

Hence, the appellant, whose notice of appeal is received by the registrar of the court and handed
the copy of the decision of the judgment, shall file a signed memorandum of appeal which
constitutes the grounds of objection of the judgment and the nature of the relief sought.

Ordering the trial record is the next step in Arizona’s lower courts appeal process, after filing the
notice of appeal.57 Here, the appellant must decide what items are needed for the record on
appeal since the appellate court will not retry the case.58

An arrangement for payment of transcript preparation fee is another step of appeal process in
Arizona courts that should be taken within fourteen days after filing of notice of appeal. 59

2.8 Appeal Vs Review

To figure out the difference between appeal and review is not such an easy task. The similarities
and overlap of these two concepts create undeniable confusion on many people. 60 The system of
appealing against the decision of lower court and requesting a review on the legality of a
decision are, in fact, confusing.

“Review is a tool that is used by an aggrieved party to request a court of law to take a second
look at its decision or verdict.” 61 The original court itself is requested to review its own decision.
“Review of judgment by the court of rendition is a procedure, which is about reopening of a
case, by the trial court once after it pronounce judgment for various reasons.” 62 The rendition
court takes the action of revising, in a careful manner, with a view of correcting or improving its
verdict. Here, the crucial fact that must be understood is that the request of revision is only made

57
Appealing a criminal case to the Supreme Court, July 2008, p 7
58
Ibid
59
Ibid
60
“Difference between Appeal and Review” at <www.differencebetween.com/difference-between-appeal-and-
vs-review.html > [last accessed 7, December 2016]
61
Ibid
62
Supra note no. 5, at p. 284

14
to the rendition court itself. There is no need to seek a higher court in this case. Hence, “review is
sought in the same court from where the original decision came.”63

The right of an aggrieved party to request a review of judgment is not a statutory right. Rather, it
is the discretion of the court that the request is brought before. The Ethiopian legal system does
not recognize review as a statutory right. There is no law to enforce the review of judgment. 64
However, the Draft Criminal Procedure Code introduces the concept of review of judgment by
providing that “an application to reopen a case after final judgment may be submitted by the
defendant (the convicted person) on any of the grounds provided for by the law to the court that
renders the judgment that is sought to be reopened.”65

On the other hand, appeal is a process of re examination of a judgment rendered by the original
(lower) court, by the next high level of court. Parties who are dissatisfied by the decision of a
lower court may seek relief from this judgment by appealing to a higher court. 66 Here, unlike
review there is involvement of two courts which are different in hierarchy. In the case of appeal
the decision of the lower court itself will be appealed to a higher court not the procedural
irregularities.

Generally, the major distinctions between appeal and review may be singled out as follows

1. Review is filed in the same court whereas appeal is filed in higher court.
2. An appeal is a right based remedy and can be claimed as of right whereas review is
discretionary remedy and cannot be claimed as of right.
3. Procedural irregularities, impropriety, and illegality form the basis of review whereas
dissatisfaction or disappointment is grounds to file an appeal.
4. Appealing is a request to change or modify the decision whereas review is a request to
look in to the legality of the ruling.

63
“What is the Difference between Judicial Review and Appeal” at
<www.lawgradinpink.blogspot.com/2015/11/what-is-difference-between-judicial.html> [last accessed 9,
December 2016]
64
Supra note no. 5, at p. 285
65
See Art 237 of the Draft Criminal Procedure Code
66
“Difference between Appeal and Review” at <www.differencebetween.com/difference-between-appeal-and-
vs-review.html> [last accessed 9, December 2016]

15
It is necessarily important to deal with the concept of jurisdiction and appeal in broad before
appraising the implication of first instance jurisdiction on the right to appeal. The issue of appeal
has been discussed in the previous pages. The concept of jurisdiction is elaborated in the
following manner.

2.9 Definition of Jurisdiction

The term “Jurisdiction” is a Latin word composed of two other words “juris” which means law
and “dicere” means to speak.67 The Black’s Law Dictionary defines jurisdiction as “the power and
authority constitutionally conferred up on (or constitutionally recognized as existing in) in a
court or judge to pronounce the sentence of the law, or to award the remedies provided by law,
up on a state of facts proved or admitted.” 68 Jurisdiction also defined on by Oxford Dictionary as
“the official power to make legal decisions and judgments, the territory or sphere over which the
legal authority of a court or other institution extends.” 69 “Jurisdiction is a power of a court or
other body to hear and decide a case or make an order.” 70 There is no substantial disparity
between the above two definitions. From this jurisdiction may be defined as the authority granted
to a formally constituted legal body to deal with and make pronouncements on legal matters. It is
a power or authority conferred up on courts by law to make judgments. It is a power of a court
over particular person, area or subject matter.

2.10 Elements of Jurisdiction

Jurisdiction has three elements namely judicial jurisdiction, material jurisdiction, and local
jurisdiction. The jurisdiction of a court is over a particular criminal act is directly dependant on
these elements. Judicial jurisdiction is concerned on whether the courts of a certain country have
the power to see adjudicate a certain a case or not. 71 Material jurisdiction is an element of
jurisdiction which determines among the courts of a country which courts have jurisdiction over

67
Jo Stigen, National Criminal Jurisdiction, 2015, p. 2
68
Black’s Law Dictionary, 8th ed., s.v. “jurisdiction”
69
Oxford Dictionary , 10th ed., s.v. “jurisdiction”
70
W.J. Stewart, Collins Dictionary of Law, 2006, s.v. “jurisdiction”
71
Supra note no. 5, at p. 222

16
a certain case. Lastly, local jurisdiction emphasis on the determination of jurisdiction among
existed same level of courts.72

The writer founds that among the aforementioned elements of jurisdiction, material jurisdiction
worth more discussion. So, it is elaborated as follows;

2.10.1 Material Jurisdiction

Once the issue of which countries’ courts have jurisdiction over a certain case, is settled down ,
determining specifically, which court has jurisdiction to entertain the case is the next crucial
question. “Material jurisdiction refers to the power of the court to hear the kind of a case that is
before it.”73 Material jurisdiction “usually it will involve the question of which courts should hear
the case.”74 Structural organization of courts is the base for material jurisdiction since it depends
on the level of courts and the type of court that should hear the case. 75 It means the organization
of courts as state and federal courts with different level is crucial for determination of material
jurisdiction. Here, the issue is whether the federal or the state courts and which level of court has
jurisdiction are addressed by material jurisdiction.

Determination of material jurisdiction is left for the legislator. However, it may be concluded
that case arise on federal laws may be federal matters and the rest may be categorized as state
matters. The constitution of Federal Republic of Nigeria determined the jurisdiction of Federal
High Court by stating that it has jurisdiction and power in respect of treason, treasonable felony
and allied offences.76 The constitution also states other jurisdictions of the court. The Supreme
Court of India has an original jurisdiction in cases involving union Vs state(s), union and state(s)
Vs state(s) and between states.77 Proclamation No. 25/1996 determines criminal jurisdiction of
Federal courts of Ethiopia.78

72
Id, at p. 240
73
Robert Allen Sedler, Ethiopian Civil Procedure, Faculty of Law Haile Sellasie I University in association
with Oxford University Press, Addis Ababa, 1968, pp. 19
74
Id, at p. 27
75
Supra note no. 5, at p. 231
76
Constitution of the Federal Republic of Nigeria, 1999, Art 232.1
77
Constitution of India, 1950, Art 124
78
See Art 4 of Proc No. 25/96

17
2.11 Types of Jurisdiction

Jurisdiction may be classified as personal jurisdiction, subject matter jurisdiction and territorial
jurisdiction. Jurisdiction may also be of concurrent jurisdiction, original jurisdiction, appellate
jurisdiction and exclusive jurisdiction. The second types of jurisdiction are more close to the
scope of this study. Again among such types the writer believes that discussing concurrent
jurisdiction is insignificant for the study. So, the other remaining types of jurisdictions would be
discussed as follows;

2.11.1 Original Jurisdiction

The term “first instance jurisdiction” can be used interchangeably with original jurisdiction.
Original jurisdiction is “a court’s power to hear and decide a case before any appellant review.” 79
80
A court has a power to hear a case at first. It means that a court has a power to hear a case in
first instance rather than an appeal. The court takes cases which are instituted to it in the first
instance. Original jurisdiction is a jurisdiction by which parties can directly bring a case to the
court which has it. Here, the court which has an original jurisdiction precedes all other courts to
hear the case. However, the decision of such court is subject to appellate review. In US the
Federal District courts, which are lower courts, have original jurisdiction over all cases that
involve federal laws.81

2.11.2 Appellate Jurisdiction

The Free Dictionary defines appellate jurisdiction as “the jurisdiction which has superior court
has to hear appeal of causes which have been tried in inferior courts.” 82 It is the power of a court
to hear appeals from lower courts. The scope of this power extends up to affirming, modifying
and even reversing the decision rendered by the lower court.

79
“Original Jurisdiction” at <www.law.cornell.edu>
80
“Original Jurisdiction” at <www.study.com >
81
“Original Versus Appellate Jurisdiction” at <www.study.com>
82
Collins English Dictionary, 2014, s.v “appellate jurisdiction”

18
Appellate jurisdiction is given by statutes to appellate courts to hear appeal about the judgment
of the lower court that tried a case, and to order reversal or other correction if error is found. In
Ethiopia, the Federal High Court has an appellate jurisdiction over decisions of the Federal First
Instance Jurisdiction.83 The decisions of the Federal First Instance Court are subject to the
Federal High Court’s appellate jurisdiction. As far as the Federal Supreme Court is concerned it
has an appellate jurisdiction over decisions of the Federal High Court exercising its first instance
jurisdiction and over decisions of the same court exercising appellate jurisdiction if it varies the
decision of the Federal First Instance Court.84 The same is true for state/regional courts.

2.11.3 Exclusive Jurisdiction

“Exclusive jurisdiction refers to power of a court to adjudicate a case to the exclusion of another
court.”85 It is a jurisdiction given to a particular court to the exclusion of other courts. 86 Hence, in
the case of exclusive jurisdiction there is no court that competes to assume jurisdiction other than
the particular court which is granted jurisdiction by law. Here, the court that has power to hear
the case is the court of first and last resort.

CHAPTER THREE

THE APPRAISAL OF FIRST INSTANCE JURISDICTION

OF THE FEDERAL SUPREME COURT OF ETHIOPIA
WITH THE RIGHT TO APPEAL

83
See Art 13 of Proc No. 25/1996
84
See Art 9 of Proc No. 25/1996
85
“Exclusive Jurisdiction” at <http://definitions.uslegal.com/e/exclusive-jurisdiction.html>
86
“Exclusive Jurisdiction” at <www.lawyers.com/glossary/exclusive-jurisdiction.html>

19
3.1 Introduction

The FDRE Constitution gives strict care and attention for for the fundamental rights and
freedoms it incorporates under its Chapter Three. The responsibility and duty imposed on all
federal and state government organs to respect and enforce the provisions of the chapter is a clear
manifestation for this fact. Hence, every provision located under this chapter shall be strictly
respected and enforced.

The right to appeal is among the fundamental rights listed under Chapter Three of the FDRE
Constitution. Article 20(6) deals about who are subjects of to the enjoyment of such right. The
sub article grants right to appeal for all persons. A judgment by the court which heard the case
and a competent appellate court are stated in the sub article as conditions to exercise appeal right.

Moreover, the fundamental nature of the right to appeal is understood by international

instruments like the ICCPR. This Covenant addresses the issue of appeal under article 14(5).
Beyond this Human Rights Committee render a General Comment on this article 87 aiming at
ensuring the proper administration of justice.

With the existence of the above mentioned major legislations Federal Courts Proclamation No.
25/1996 come to effect. This proclamation, under article 8, empowers the Federal Supreme Court
of Ethiopia to assume an exclusive first instance jurisdiction over specific cases listed in the sub
article. This court is the highest and final judicial organ in Ethiopia. 88 To this effect, the
enjoyment of the right to appeal is at question. Hence, the following two topics try to reveal the
implication of such jurisdiction on the right to appeal.

3.2 First Instance Jurisdiction of the Federal Supreme Court of Ethiopian

Visa Vis the Right to Appeal in the FDRE Constitution

A Constitution is an umbrella for the continuation of the existence of a democratic state. It is a

superior of all other laws in the state. It incorporates fundamental principles and organic rights.

87
General Comment No. 32: Article 14 Right to equality before the courts and tribunals and to a fair trial, 2007
88
See article 78(2) of the FDRE Constitution

20
Constitution is not only higher in hierarchy but also a source for all other laws because any law
that contravenes the constitution has no effect.89

The value of the FDRE Constitution begins from its preamble. It notes that, the constitution is
strongly committed to ensure a democratic order. It is further convinced that this requires the full
respect of individuals and peoples’ fundamental rights and freedoms. Article 9 of the constitution
preaches its supremacy. Hence, any law made by the legislator or a decision of an organ of state
or public officials and even customary practices should be in line with the FDRE Constitution.
The applicability of any law in Ethiopia directly depends on its compatibility with the
constitution.

Article 20(6) of the constitution grants all persons the right to appeal in unequivocal manner. The
judgment or order of the court which heard the case first is subject to appeal by a competent
court.

Article 20

Rights of Persons Accused

6. All persons have the right of appeal to the competent court against an order or a judgment of the
court which first heard the case.

Here, the issue that should be understood is that the expression “competent court” is to mean the
next high level of court after the trial court.

Appeal from the decision of Federal First Instance Court lies to the Federal High Court. And
appeal form Federal High in its first instance or appellate jurisdiction where it reversed or varied
the decision of the Federal First Instance Court lies to Federal Supreme Court. 90 If the case has
been tried by regional high court in its delegated jurisdiction, appeal lies to the Regional
Supreme Court. Again the State Supreme Court’s decisions on federal matters are subjects to

89
See Article 9(1) of the FDRE Constitution
90
Supra note No. 5, at p. 289

21
appeal by the Federal Supreme Court.91 Once the case is taken to the Supreme Court, both
Federal and Regional, no appeal lies for there is no higher court.92

The HPR make laws as it has given a power to do so by the constitution. 93 In 1996 it proclaimed
a Federal Courts Proclamation No. 25/1996. Article 8 of this proclamation empowers the Federal
Supreme Court of Ethiopia to assume jurisdiction over cases in which officials of the Federal
government are charged in connection with their official responsibility and over offences for
which foreign ambassadors, consuls and representatives of international organizations and
foreign states are charged.

Ethiopian Federal Courts are arranged as Federal First Instance Court, Federal High Court and
the Federal Supreme Court depend on their hierarchy. All of these courts have their own
jurisdiction based on law, parties to the case and place of commission.

Practically and legally, the Federal Supreme Court is the highest judicial organ in Ethiopia. 94
This implies that there is no court which is higher in hierarchy than the Supreme Court. The
enforcement of the right to appeal, which is fundamental and constitutional right, is at question
with the absence of such court since appeal is always lodged to the next high level of court
against the decision of the trial court. A person charged of an offence before the any courts of
Ethiopia can exercise this or her right of appeal. But this is not true if the charge is brought
before the Federal Supreme Court. Here, the crucial point that should be given emphasis is that
the wording of Article 20(6) tries to grant the right to appeal to all persons regardless of the type
of court their case has been tried. Hence, there is no legal possibility to deprive the right to
appeal of persons on whom criminal charge is instituted against them before the Federal
Supreme Court. Rendering decision on the basis of first instance jurisdiction means that the
losing party automatically loses his right of appeal against the decision. Therefore, obviously
there is no chance of appeal once the case is tried and decided by the Federal Supreme Court.
This results the denial of the constitutional right to appeal.

Generally, the first instance jurisdiction of the Federal Supreme Court under art 8 of Proc No.
25/1996 and the right to appeal in 20(6) of the FDRE Constitution are two different extremes
91
See Art 80(1) of the FDRE Constitution
92
Ibid
93
See Art 55(1) of the FDRE Constitution
94
See Art 78(2) of the FDRE Constitution

22
which cannot stay inline. Moreover, there is a clear contradiction between provision of the
proclamation and the constitution. Even though, there is an appellate bench in the Federal
Supreme Court, its jurisdiction is up to reviewing the decisions made by the Federal High Courts
and State Supreme Court’s decision on federal matters. Decisions made Federal Supreme Court
decisions within its first instance jurisdiction are not subject to appeal by its appellate bench.
Hence, adjudication of cases by the Federal Supreme Court on the basis of its first instance
jurisdiction violates individual’s appeal right guaranteed by the constitution.

3.3 First Instance Jurisdiction of the Federal Supreme Court of Ethiopian

Visa Vis the Right to Appeal in the ICCPR

The most credible contribution of the FDRE Constitution lies in its recognition and
domestication International Human Right Instruments ratified by the country as an integral part
of the laws of the land.

Art 9

Supremacy of the Constitution

4. All international agreements ratified by Ethiopia are an integral part of the law of the land

Art 13

Scope of application and interpretation

2. The fundamental rights and freedoms specified in this chapter shall be interpreted in a manner
conforming to the principles of Universal Declaration of Human Rights, International Covenants on
Human Rights and international instruments adopted by Ethiopia.

Once an international agreement is ratified by Ethiopia it considered as an integral part of the law
of the land and assumed that it has been made by the legislator of the country. The wording Art
13(2) reflects that any national legislation including the provisions enshrined under Chapter
Three of the constitution shall be interpreted and implemented in the manner consistent with the
international human right standards to which Ethiopia is party.

23
The ICCPR recognized the right to appeal as fundamental right. “Everyone convicted of a crime
shall have the right to his conviction and sentence being reviewed by a higher tribunal according
to law.”95 Any state party to the ICCPR shall enforce this right and shall not enact laws which are
contradictory to this provision. The expression “according to law” in the article is not there to
leave the existence and exercise of the right to appeal the discretion of state parties. 96 Hence,
state parties cannot dismantle the right to appeal from individuals through making laws. They
cannot justify that the non existence the right is done in accordance with the law.

The right recognized under Art 14(5) of the ICCPR will be violated if the trial court’s, with its
first instance jurisdiction, decision is final.97

Thus, the first instance jurisdiction of the Federal Supreme Court of Ethiopia granted by Art 8 of
Proc No. 25/1996 is not compatible with Art 14(5) of the ICCPR. There is no any means that the
above two provisions can go in the same line.

Conclusion

The right to appeal or a review by a higher court is a fundamental human right which is
recognized by the FDRE Constitution under Art 20(6) and other International Instrument to
which Ethiopia is party. The ICCPR is one of them. It recognized the right under Art 14(5).

In Ethiopia, criminal cases related to Federal government officials in connection with their
official responsibility and foreign ambassadors, consuls and representatives of international
95
See Art 14(5) of the ICCPR
96
General Comment No. 32 on art 14(5): review by a higher tribunal, 2007, pp. 3, Para 45
97
Ibid

24
organizations and foreign states are tried by the Federal Supreme Court by the virtue of Art 8 of
Proc No. 25/1996. This aimed at giving efficient and quality justice to the parties. However,
individuals whose criminal charge is instituted before the court are claiming their constitutional
right to appeal be respected by raising the unconstitutionality of the provision which granted the
court a first instance jurisdiction. The case between public prosecutor and Tmirat Layne, et.al is
a manifestation for this fact.

Having all the above points in mind, the legal assessment of the situation implies that the right to
appeal guaranteed under Art 20(6) of the FDRE Constitution is violated by the first instance
jurisdiction of the Federal Supreme Court of Ethiopia granted by Art 8 of Proc No. 25/1996.

Whatever the justification behind granting first instance jurisdiction to the court is, it is
incompatible with the constitution provision. Therefore, the writer of this research, taking in to
consideration all of the above findings, suggests some plausible recommendation to avoid the
existing legal problem.

Recommendations

Based on the findings of the study the writer proposes specific suggestions to be stakeholders to
solve the observed legal gap. The suggestions may not be settled and accomplished over night
and it may require rigorous effort and urgent reaction from responsible organs.

As a first and the most principal step, the legislative organ of the country (HPR) need to take a
due care and deep observation before making law which contravenes the constitution. For the

25
fact that any law that contravenes the constitution shall have no effect, critical emphasis should
be made, in terms of checking its compatibility with the constitution, before the enactment of a
new law.

Since the judges of the Federal Supreme Court are human beings, error may happen any time
during the trial of case. Criminal charges, by nature, are highly sensitive. They may result the
judgment of heavy load of punishment on the accused. Here, the life of the accused may be
highly affected because of the erroneous acts of the preceding judges at a trial. Moreover, the
errors are not going to be fixed since the court’ decision on the case is final. To this effect, the
Federal Supreme Court should not be granted first instance jurisdiction over criminal matters.
Hence, it would be better if first instance jurisdiction of the court is dismantled from its
jurisdiction

The HPR has to make an amendment on Federal Courts Proclamation No.25/1996, specifically
on Article 8. And the amendment should be made in a way that protects individual’s
constitutional right to appeal.

Finally, as an alternative means the writer recommend the establishment of an ad-hoc judiciary
organ for each specific cases tried by the Federal Supreme Court exercising its first instance
jurisdiction. The ad-hoc organ receives the grievance of a party who wants to appeal and review
it. The organ will be dismissed after it renders a decision on a specific case and it will be
established again for other specific case.

Bibliography

I. Books and Articles

1. Aderajew Teklu and Kedir Mohammed, Ethiopian Criminal Procedure Teaching

Material, Justice and Legal Research Institute, 2009.
2. Alan M. Trammel and Derek E. Bambauer, ‘Personal Jurisdiction and the Interwebs’,
Cornell Law Review, Vol. 100.

26
 3. Dessalegn Berhanu Wagasa, ‘All about Words on the Procedure of Constitutional
Interpretation in Ethiopia: A Case Comment on Melaku Fenta Case’, Oromia Law Journal,
Vol. 4, No. 4.
4. Joseph W. Dellapenna and Joyeeta Gupta, The Evolution of the Law and Politics of
Water, 2009.
5. Jo Stigen, National Criminal Jurisdiction, 2015.
6. Lawyers Committee for Human Rights, What is Fair Trial, United States, 2000.
7. Lester B. Orefield, ‘The Procedure of Appeal in Criminal Cases’, California Law Review,
1936, Vol. 24.
8. Norman Barry, An Introduction to Modern Political Theory, Macmillan Press, London,
2000.
9. Peter D. Marshall, ‘A Comparative Analysis of the Right to Appeal’, Duke Journal of
Comparative and International Law’, 2011, Vol. 1.
10. Robert Allen Sedler, Ethiopian Civil Procedure, Faculty of Law Hailesselasie I
University in association with Oxford University Press, Addis Ababa, 1968.
11. Robertson Cassandra Burke, ‘The Right to Appeal’, North Carolina Law Review, 2013,
Vol. 91.
12. Stan Keillor, Should Minnesota Recognized a State Constitutional Right to a Criminal
Appeal, 2013.
13. Tesfaye Abate, Introduction to Law and Ethiopian Legal System, Justice and Legal
Research Institute, 2009.
14. William A. Edmundson, ‘An Introduction to Rights’ Cambridge University Press,
Cambridge, 2004.
15. Wondwossen Demissie Kasa, Ethiopian Criminal Procedure, Addis Ababa University,
Addis Ababa, 2012.
16. Yonas Tesfa and Tilahun Weldie, Criminal Procedure Law, Bahir Dar and Jimma
Universities, 2010

II. Legal Instruments

a. Treaties, Declarations and Resolutions

27
 1. International Covenant on Civil and Political Rights, adopted by way of General
Assembly Resolution 2200A (XXI), Art 14(5), at
<http://www2.orchr.org/english/law/ccpr.htm>
2. Universal Declaration of Human Rights, 1948, reprinted in Brownlie, I., and Goodwin
Gill G., Basic documents on International Human Rights, 5 th ed., Oxford University
Press, Oxford, New York, 2006, Art 8
b. National Legislation
Ethiopia
1. Criminal Procedure Code of the Empire of Ethiopia, 1961, Negarit Gazzeta,
Extraordinary Issue, 21st year, No. 7. Art
2. Federal Courts Proclamation, 1995, Federal Negarit Gazzeta, Proc No. 25, 2 nd year,
No.13, Art 8-13
3. Proclamation of Constitution of Federal Democratic Republic of Ethiopia, 1995,
Negarit Gazzeta, Proc No. 1, 1st year, No. 1, Art 9(4), 13(2) and 20(6).

Nigeria

1. Constitution of the Federal Republic of Nigeria, 1999, Art 232.1

India

1. Constitution of India, 1950, Art 124

III. Cases

i. National Courts
a) Ethiopia

1. Melaku Fenta V Federal Ethics and Anti-Corruption Prosecutor Team, Federal Supreme
Court, 2014 [unpublished]

2. Public Prosecutor V Tmirat Layne, et al., Federal Supreme Court, 1989, Criminal File No.
1/1989.

28
29