Arbitrary Arrest and Detention in the Oromia Region: The Need to Address the Violations of the Constitution and International Human Rights Instruments

“Respect for the rule of law is not optional; it's fundamental.” Frans Timmermans

by Derara Ansha Roba

These days, predominantly in Oromia region, it has become common to listen to or read news headlines about arbitrary arrests and detentions in both the pre-trial and post-trial phases. The arbitrary detention of three judges from the Oromia Supreme Court by the police in Adama city, which drew widespread public condemnation, and the case of the prominent Oromo scholar Alemayehu Diro, who was denied the right to appear in the court after being detained by police for several days is a recent phenomenon. Such unlawful measures obliterate the grand norm — Rule of Law — and thereby quash public trust in the justice sector. Given this ongoing trend, this brief begins by introducing the right to liberty both under international human rights instruments and Ethiopian legal frameworks, and it will afterwards focus on arbitrary arrests and detentions.

Every human possesses fundamental rights and freedoms. These are inherent rights for every individual and thus are universal in nature. Hence, human rights by this nature can neither be given nor taken away by others. Numerous international human rights instruments 1 and regional human rights instruments2 have given strong emphasis and firm protections to these rights. At the national level, the Constitution of the Federal Democratic Republic of Ethiopia (FDRE) has incorporated human rights in its third chapter. Most importantly, the Constitution has explicitly imposed responsibility and duty on both federal and regional governments (legislative, executive, and judiciary) to respect and enforce these fundamental rights and freedoms.

Among the most fundamental of all human rights is the right to personal liberty. It constitutes one of the oldest and most fundamental guarantees constitutive of a free society and the rule of law. No one shall be deprived of these rights and subjected to arbitrary arrest and detention.3The FDRE constitution reiterates this under article 17 stating that “no one shall be deprived of his or her liberty…(and) subjected to arbitrary arrest and detention” (emphasis added). Therefore, according to both international human rights instruments and the FDRE Constitution, one of the most significant dimensions of a person’s rights and liberties is the protection from arbitrary detention and arrest. This entails that the right to personal liberty is not an absolute right, and it may be subjected to limitations if the injunction is carried out legally. Thus, arrest and detention may be carried out by the State’s authority through the criminal justice system.

A person maybe arrested or detained if and only if there is a justifiable ground for doing so that is both substantive and procedural4. The substantive requirement refers to the prior existence of a law that justifies the restriction of liberty, and the procedural requirement refers to whether the carried-out restriction aligns with the procedures provided. The FDRE Constitution is based on both requirements. Moreover, it extends another more stringent requirement: the necessity of charges or convictions against a person prior to enforcing a detention. Accordingly, these legal parameters must be fulfilled to arrest or detain a criminally suspected or convicted person. This point leads us to regularly ask if the requirements are not partially or fully carried out. And this question in return triggers the notion of arbitrary arrest and detention.

There is no explicit definition for “arbitrariness” in both international human rights instruments and national law, yet one can deduce the implication of the term by considering what constitutes legitimate arrest and detention. Thus, arbitrary arrest and detention is said to be carried out if (a) on grounds or in accordance with procedures other than those established by the law or (b) under the provisions of a law, the purpose of which is incompatible with the right to liberty and security of person. The Human Rights Council has elaborated arbitrariness broadly and outlined what constitutes the action. This includes the failure to comply with due process and without the legal protection of a fair trial. For instance, this may include a person arrested without a summons or criminal charge, an arrest or a detention of a person that fails to meet the criteria of “the interest of justice,” failure to inform an arrested or detained person why he/she is under police custody, an arrest or detention in an unknown place, a prolonged arrest or detention without a court appearance, police refusal to release upon a bail grant, arresting or detaining public authorities who have immunities such as judges, or refusal to release a convicted person who has finished his/her sentence. Such acts are not justified by the law and state actors cannot escape responsibility for it.

Although arbitrary laws may contribute to arbitrary arrests and detentions, in most cases the illegal actions emanate from State authorities. In this regard, the European Court of Human Rights (ECHR) states that arbitrary action may arise where there has been an element of bad faith or deception on the part of the authorities. Disregarding legal procedures and obliterating the criminal justice mechanism will intimidate civilians and disrupt public trust. As it violates the right to liberty, it exposes victims to further human rights violations given that they are not capable of defending themselves in a legal manner. Above all, maintaining the culture of the rule of law in established democracies would be impossible.

It is vital to recall that the right to protection from arbitrary arrest and detention is to protect individuals from unlawful government action through criminal administrations. The FDRE Constitution states general accountability under Article 8, asserting that state officials are accountable for any failure in official duties. In addition to the general duty, specific responsibility is provided under Article 13(1), writing that state officials are duty-bound to respect and ensure the right of protection from arbitrary arrest and detention. Failure in this regard would be backed by punishment as it is provided under the 2004 Criminal Code of Ethiopia, stating that unlawful arrest or detention is punishable with rigorous imprisonment not exceeding ten years and a fine if the perpetrator is a public servant5. The subsequent paragraph concludes the discussion forwarding recommendations.

As its main responsibility is to uphold and ensure international human rights laws and constitutional clauses, the government must act accordingly. Within this setting i.e., the Rule of law, the government is responsible to guarantee an independent judiciary, accountability, and transparency. The government, in particular, must closely monitor and respond to any acts that undermine the rule of law’s applicability, and officials involved must be held accountable. Besides the government roles, civil society organizations should empower citizens with awareness of law, monitor measures taken by the government to ensure that the rule of law is guaranteed and victims´ voices are heard.

1. Universal Declaration of Human Rights (UDHR), and International Covenant on Civil and Political Rights (ICCPR).
2. African Charter on Human and Peoples Rights (ACHPR), European Convention on Human Rights (ECHR), and American Convention on Human Rights (ACHR).
3. See art 3 & 9 of UDHR and art 9(1) of ICCPR.
4. Both requirements fall under the “principle of legality”.  
5. Article 423 of the Criminal Code.

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