The structure of Ethiopian military court

and its limitation on the right to appeal of the

accused

The thesis is submitted to the instructor’s to Vrije

University of Amsterdam to fulfillment of LLM
research Methodology course final Examination

Submitted by Major, Tesfaye Geremamo Gajabo

Addis Ababa, Ethiopia

October 2019

1
 Acknowledgments

“I will give thanks to you, LORD, with all my heart; I will tell of all your wonderful deeds.
“Psalm 9:1

Throughout this study, I would like to forward my heartfelt gratitude to the Government of
Netherland and the General attorney of Ethiopia for giving this chance, which is allowing me to
study this program. And to the Instructors Haileselassie (PhD), Mrehatebeb (PhD) of research
methodology course and they were giving to me fundamental base of the course that enables me
to conduct this paper.
Next, I am very much indebted to express my sincere and profound gratitude to my beloved wife
w/ro Emebet Gobez, for all the times she has given things to me. Habtamu Mulugeta (Major) for
all the support you provide to me. The best start is to say thank you.
Finally, my appreciation and thanks go to the Ministry of National Defense members of court
directorate and primary and appellate military court judges all of you support me in receiving all
kinds of resources and cooperation in providing relevant information, available documents and
contribution in editing my work.

2
 Table of contents
Title page
Acknowledgments.........…….………………………………………………………….....ii
Table of contents…..........……………….……………………………………………….iii
List of Acronyms................................................................................................................iv
Abstract................................................................................................................................v
CHAPTER ONE:- Introduction .......................................................................................1
1.1. Background of the Study...............................................................................................1
1.2. Statement of the problem............................................................................................4
1.2.1. The Research Questions...........................................................................................4
1.2.2. Objectives of the Research........................................................................................5
1.2.3. General objective...................................................................................5
1.2.4. Specific objective...................................................................................5
1.3. Significance of the study..............................................................................................5
1.4. Delimitation (scope) of the study.................................................................................6
1.5. Limitation of the
study...................................................................................................6

1.6.Organization of the study...............................................................................................6

1.7.General Working definitions of the study......................................................................6
CHAPTER TWO;- OVERVIEW OF MILITARY COURTS STRUCTURE AND
EXPERIANCES.................................................................................................................8
2.1.Nature of Military Justice.......................................................................................8

2.2. The jurisdiction of Military courts......................................................................8

2.3.The Structure of military courts.............................................................................. 9

2.4. The structure of court martial Experiences……………….........…………………….9

2.4.1. The experience of Uganda defense force court martial…….................…….….….9

2.4.2. The experience of the Republic of Rwanda military court Martial…....................10

2.5. The History of Ethiopian Military court structure…………………........………....11

3
2.5.1. The Emperor Haileselassie Regime military court structure……..........………….11

2.5.2. The PDRE Military court structure……………………………..........…………...12

CHAPTER THREE:- METHODOLOGY OF THE RESEARCH….....……………13

3.1. Introduction……………………………………………………..........……………..13

3.2. The Research strategy …...……………………………………..........………….…..13

3.3. 19
3.4. The research approach…….......................................................……...………..........13

3.5.The Ethical consideration............................................................................................14

3.6. Data sources................................................................................................................14

3.7. Data collection instruments.........................................................................................14

3.8. Method of Data analysis and interpretation................................................................14

CHAPTER FOUR :- RESULT AND DISCUSSION...................................................15

4.1. Introduction.................................................................................................................15

4.2. The Ethiopian Military justice in General..................................................................16

4.3. The FDRE Military court structure ............................................................................16

4.3.1. The primary military court ......................................................................................17

4.3.2. The Military Appellate court ..................................................................................18

4.4. The power of the Federal Supreme court....................................................................19

4.5. The case seen in the Military appellate court..............................................................19

4.6. Military court structure compared with Benchmarks.................................................21

CHAPTER FIVE;- SUMMARY, CONCLUSION AND RECOMMENDATIONS

5.1. Summary.....................................................................................................................23
5.2. Conclusions.................................................................................................................23
5.3. Recommendations.......................................................................................................24
Reference...........................................................................................................................26

4
 List of Acronyms

● Art. - Articles
● CA- convening authority
● CORP - corporal
● DCAF - Geneva Centre for the Democratic Control of Armed Force
● DF -defense force
● FDRE - The Federal Democratic Republic of Ethiopia
● HPR – House of people’s representatives
● NDF –National Defense Force
● No. - Number
● PDRE – The People’s Democratic Republic of Ethiopia
● Procl: – proclamation
● UCMJ – The Uniform Code of Military Justice for united states
● US –united states
● UPDF Act -Uganda Peoples’ Defence Forces Act

5
 Abstract
This study examines into the structure of Ethiopian military courts and its limitation on the
right to appeal of the accused, investigation has mainly focused on revealing the limitation in the
law of armed force. By doing so, points of assessments pertaining to the gaps that affect the
implementation of the fundamental right of the accused and challenges associated as help full to
the concerned law amending bodies and other researchers in the field. The observations during
the researcher serving at central task force primary military court as a judge and in south
command primary military court, the gaps limited by the proclamation concerning the appeal to
the accused is motivated to know main problems of the proclamation at work and the structure of
the court. Reviews of legal instruments and secondary data were the major sources of data.
Qualitative analysis were employed, Comparative analysis is also used to examine the laws of
the military court structure and the right of appeal of the accused with other countries trend
taken as benchmark. The findings revealed that the right to appeal is a basic right which is
guaranteed. In case of levels of court structure during military high court reversed the decision
of lower military court, the accused have no solution to appeal. The appellate court is reversed
or varies the judgment of the lower court, judgment of guilty is the first and has been the right to
appeal but is no another court to submit appeal this shows that, the accuser’s basic
constitutional right of appeal limited by the Proclamation. Based on the findings observed some
recommendations were made in order to minimize or totally avoid the limitations.

Key word: military court, National defense, appeal, proclamation

6
 CHAPTER ONE

1. INTRODUCTION

This chapter introduces the research subject briefly and outlines the research back ground
incorporating the result and problems from past implementations of military laws. The statement
of problem is given and research objectives have been clearly described.

1.1 Background of the Study

A court-martial is designed to specifically try military offenses.1 A court-martial is empowered

to determine the guilt of members of the armed forces subject to military law, and, if the
defendant is found guilty, to decide upon punishment. In addition, courts-martial may be used to
try prisoners of war for war crimes. The military constitutes a specialized community governed
by a separate discipline from that of the civilian and military society has been a society apart
from civilian society, so "military law ... is a jurisprudence which exists separate and apart from
the law which governs,2 the civilian people. Twelve categories of people are subject to courts-
martial, including military personnel, members of certain quasi-military organizations (such as
Public Health Service members when serving with the armed forces), military prisoners,
prisoners of war, and under very limited circumstances, certain specified categories of civilians.3
These individuals are subject to the military justice system regardless of where the incident in
question occurred.

The need for special regulations in relation to military discipline, and the consequent need and
justification for a special and exclusive system of military justice, is too obvious to require

1
A Reporter’s Guide to Military Justice , http://www.rcfp.org/reporters-guide-military-justice/
what-court-martial pp2 last visited 9/27/2019 10:15 am
2
Kent s. Bernard/ Structures of American military justice, University Of Pennsylvania Law
Review (Vol. 125:307) pp 310.
3
Ibid.
7
extensive discussion; no military organization can function without strict discipline and
regulation that would be unacceptable in a civilian setting.4

Military justice developed as a separate legal system under command control because military
units were often isolated from both civilians and each other. Commanders needed the power to
convene a court-martial staffed with their own officers so that a quick the very different pretrial
process required by UCMJ (uniform court martial justice), (substantive offenses for example,
conduct unbecoming an officer), and constitutional protections (grand jury indictment being the
most obvious) that differ materially as between these two systems.5

Military courts might have different structures, hierarchies and competence. In some countries
their grades of courts martial with varying competence as regards persons whom they may try or
punishment they may impose. In the United States, Great Britain and Canada General Courts
Martial composed of not less than five officers with a legal adviser (military judge in the United
States) may deal with all persons subject to military law and pass any sentence authorized by the
code; special courts martial (US), district courts martial (Britain), and discipline courts martial
(Canada) consist of at least three officers and have limited powers. 6 Although under the Anglo-
American system in cases of minor importance prosecution and defense may be conducted by
regimental officers of no legal qualifications in the majority of countries, the prosecution will
normally be in the hands of a legally qualified official known variously as commissioner, fiscal
general, auditor or military prosecutors.7

The composition of military courts (courts-martial), they are generally composed, depending on
the type of case, of between three and seven judges; these are usually military officers, though in
some countries the membership of the court may include other ranks and even civilian judges. In
the United States, for instance, the accused may require that not less than one-third of the court
be made up of enlisted persons. British military law provides for the court to include civilian

STEPHEN I. VLADECK ,Military

4
Courts and Article III, The Georgetown Law Journal (2015) Vol.
103:933,pp.941
5
Ibid
6
DEMELASH SHIFERAW (PhD)., Teaching material on military laws, 2015,Mekelle
university school of law library unpublished PP46
7
Ibid
8
crown servants when the accused is a civilian, one if the court is a district court-martial and two
if the trial is by general court-martial.8

The FDRE constitution expressly gives judicial power to federal and state courts.9 The
structure of the federal and state courts have three levels of courts, these are, federal first instance
court, federal high court & federal Supreme Court and state supreme court, state high court and
state first instance court respectively.10

Judicial powers may also be exercised by other quasi-judicial bodies or tribunals. This is
happening when the parliament gives power to the tribunals by its legislation. The FDRE
constitution stipulates that “special or ad hoc courts which take judicial powers away from the
regular courts or institutions legally empowered to exercise judicial functions and which do not
follow legally prescribed procedures shall not be established”. 11

The Defense Force military courts are established according to the article 78(4) of the FDRE
constitution: “decisions orders, and rulings rendered by military courts in relation to their
jurisdictions shall bind every person”. The FDRE defense force since 1996 have about 4
proclamations amended to regulate defense force, the rest all are amended by Proc. No
1100/2019. The proclamation on its article 41 states that: The military courts shall have the
power to punish in accordance with the law, any person or organ that disobeys the same. In
disposing of cases they shall apply the criminal procedure code of Ethiopia Proc.No 1100/2019
article 43(1).The Ethiopian Defense Force military courts structure is as shown in Pro. No
1100/2019 article 37 has only two levels. These are the primary military court and the appellate
military court. These courts have jurisdiction on cases which are expressly given.12

8
ibid
9
FDRE. (I995). Constitution (Proclamation No. 1/1995, Negarit Gazeta, 1st Year No. 1). Article 79
10
Ibid
11
Ibid
12
The Defense Forces Proclamation, 2019, art.38, proclamation No.1100, Federal Neg.Gaz. year 25 No.19

9
1.2. Statement of the problem

Defense Forces is organized in accordance to the FDRE constitution Art.87 in Proclamation No

27/1996, since the first proclamation, till the proclamations amended almost 4 times and the last
amended by proc. No 1100/ 2019. The role and duties of military justice organ is improved from
time to time. According to the proclamations the military courts are structured in two levels.
Those are primary military court and the appellate military court. The jurisdiction of the primary
military court and the appellate military court are stipulated under Article 38 (1, 2) and Article
39 of the proclamation No 1100/2019 respectively. The appellate military court shall have
appellate jurisdiction on cases disposed of by the primary military court. It has no first instance
jurisdiction over military cases. The problem here is therefore, if the primary military court
acquits the accused person according to the criminal procedure code of Ethiopia article 149/2/,
the court by using the article can pass the decision, the accused is found not guilty, the judgment
shall contain an order of acquittal and, where appropriate, an order that the accused be released
from custody. The military prosecutor may ask an appeal to the appellate military court.
Accordingly, the appellate court may confirm, vary or reverse the decision of the primary
military court.13Hence, if the appellate military court reversed or varies the decision of the lower
court and convicted the accused. The decision will be final and the accused person will not have
the right of appeal because the structure is two levels. But Article 20/ 6/ of the constitution stated
that “All persons have the right of appeal to the competent court against an order or a judgment
of the court first heard the case”.14 The federal Supreme Court cassation bench will only see the
case under fundamental error of law. So there is limitation to protect the right to appeal of the
accused military members. Whether such structure of military court’s hierarchies fits the
constitutional provision which states on the constitution?

1.2.1 Research Questions

This study has tried to answer the following questions

1. Does the Defense Force proclamation number 1100/2019 allows an accused person to
exercise his right of appeal?

13
Imperial Ethiopian government Pro.No,185 of 1961 criminal procedure code of Ethiopia art 195 (3)
14
The Federal Democratic Republic of Ethiopia constitution, 1995, article 20(6), pro. No 1,Neg.gaz.year1 ,No 1
10
2. Is the Defense Force proclamation number 1100/2019 compatible with the constitutional
provision of right of accused person to appeal?

1.2.2. Objectives of the Research

To achieve the general objective, the thesis sets the following specific objectives.

1.2.3. General objective

The main objective of this research is Ethiopian military court structure and its limitations on
the right to appeal of accused, the existing military court structure could fulfill the
constitutionally granted right of accused or not.

1.2.4. Specific objectives

This research specifically intended to show;

To achieve the general objective, the paper sets the following specific objectives.

1. The legal gaps in the structure of military courts system vis-à-vis the right to appeal of
accused military members;
2. What effects could the structure of the courts have on the right to appeal of the accused
military members?
3. To study the legal and practical gaps in the structure of military courts system vis-à-vis the
right to appeal of accused military members;

1.3. Significance of the study

The research has intended to show the limitations with Defense Force proclamation. Thus the
recommendations and results of the study will be very significant in improving the practice of
rights and it will enable the concerned body to take possible measures to initiate the amendments
in the proclamation, to improve justice in the FDRE defense force. The information coming out
of this study will serve as a basis for further study in the area and the result can use as
academically as a reference.

11
1.4. Delimitation (scope) of the study

The study was delimited on the Ethiopian military court structure and its limitation on the right
to appeal of accused. The scope of this research is mainly on FDRE defense force military
courts.
1.5. Limitation of the study
The researcher faced in conducting this research there might be a shortage of time due to the
researcher conducting the research side by side with his formal military duty and the
availability of written materials about Ethiopian Military court history.

1.6. Organization of the study

To achieve the intended objective, the research will be divided into five chapters. The first
chapter will introduce the readers to the military courts. The second chapter will talk about the
military courts structure and appeal system of bench marked countries. Chapter three exclusively
deals with research methodology the researcher used to achieve the result. The fourth chapter
tries to show the analysis and gaps in structure and its limitation in the right of appeal and finally
fifth chapter will talk about the summary, conclusion and recommendations that summarize the
findings in the research.

1.7. General Working definitions of the study

● A court-martial:- is the military’s version of a civilian criminal trial. It is designed to
specifically try military offenses.15
● Military courts: - are the military courts established in accordance to the
proclamation of the Ethiopian defense force
● Primary Military courts:-is a court have jurisdiction over members responsible for
military offenses according to art 38 of defense proclamation No 1100/2019.
● Appellate military court is a court have jurisdiction over members responsible for
military offenses according to art 39 of defense proclamation No 1100/2019

15
Military Justice /the Reporters Committee for Freedom of the Press /Summer 2006/ https://www.google.com/
/

12
● Military justice: - it is the body of laws and procedures governing members of the
armed forces.
● Proclamation: - proclaimed for defense force in accordance with Article 55/1/ of
constitution of federal democratic republic of Ethiopia
● Accused: - a person charged with the commission of a crime by military prosecutor on
any military criminal matters.
● Appeal:-An appeal is grievance deposited to upper court on a judgment of a criminal
court whether it is a judgment convicting, discharging or acquitting an accused person.
● Defense force: - The Ethiopian defense force.

13
 CHAPTER TWO

OVERVIEW OF MILITARY COURTS STRUCTURE AND EXPERIENCES

2.1. Nature of Military Justice

Military justice is a distinct legal system that applies to members of the armed forces, and
in some cases, to civilians closely associated with the armed forces. The main purpose of
military justice is to preserve discipline and good order in the armed forces, and ensure its
operational effectiveness. Structures, rules and procedures in military justice can be
substantially different from their civilian counterparts.16 In many cases, military justice
operates in a separate court system with stricter rules and procedures in order to enforce
internal discipline and ensure the operational effectiveness of the armed forces.17 This
may lead to questions concerning the principle of civilian supremacy or issues of
compliance with international human rights standards.18 Military courts play a vital and
unique role in the administration of criminal justice with respect to people subject to military
law.19

2.2. The jurisdiction of Military court’s

The jurisdiction of military courts may be status-based (covering only members of the
armed forces), service-connected (covering only crimes related to military service) or
based on the notion of “purely military crimes” (covering only crimes of military
character). In practice, military justice systems often combine elements of these different
types.20 Status-based military jurisdiction, that all members of the armed forces and
personnel with a comparable status are tried by military courts, irrespective of the offence.

16
Security Center Integrity /https://securitysectorintegrity.com/standards-and-regulations/security-
sector-legislation/ last visited 28/10/2019
17
Ibid
18
MINDIA VASHAKMADZE Understanding Military Justice: Military Justice Geneva Center for the
Democratic control for armed force A Practice Note Geneva,2018 pp 2
19
Ronald Naluwairo , African Human Rights Law Journal Military Courts And Human Rights: A critical analysis
of the compliance of Uganda’s military justice with the right to an independent and impartial tribunal (August
2016)pp 449
20
Ibid
14
Service-connected jurisdiction means that military courts deal with all offences related to
military life and to the functioning of the military institution.

The definition of a service-connection is difficult to base on an objective criterion. The goal

of legislation should be to prevent the extension of military jurisdiction to civilians. If the
legislation is unclear, constitutional courts can play a crucial role in clarifying legal issues
and in limiting the scope of military jurisdiction. This jurisdiction can be limited to military
personnel on active service.21 It aims to preserve discipline and good order in the armed forces.
Structures, rules and procedures in military justice can be substantially different from their
civilian counterparts. Usually, military justice operates in a separate court system with strict rules
and procedures in order to enforce internal discipline and to ensure the operational effectiveness
of the armed forces.22 This may lead to questions on the principle of civilian supremacy or issues
of compliance with international standards, such as human rights and fair trial guarantees.23

2.3. The Structure of military courts

Systems of military justice may have three or more levels of courts. Trial courts usually
constitute the first instance. Second level military courts deal with appeals that have been
brought against the decision of its subordinate court. A special military chamber in a high court
may constitute the third level of the military justice system. At this stage, the civil Supreme
Court may deal with a wrong application or interpretation of the law.24 It may consider a
decision of the lower courts which is based on unlawful procedures. 25Military law should
identify the authority to deal with disciplinary offences, the type of punishment and the appeal
procedures.26

2.4. THE STRUCTURE OF COURT MARTIAL EXPERIENCES

2.4.1. The Experience Of Uganda Defense Force Court Martial

21
Mindia Vashakmadze , Understanding Military Justice, , Geneva Centre for the Democratic Control of Armed
Forces (DCAF), pp10)
22
Ibid
23
Ibid
24
Ibid
25
Ibid
26
“supra note” 6
15
 From a structural point of view, Uganda’s military courts comprised of a summary trial
authority, unit disciplinary committees and courts martial. Under courts martial, the Uganda
Peoples’ Defense Forces Act (UPDF Act) provides for a four-tier military court system, that is,
field courts martial; division courts martial; the general court martial; and the court martial
appeal court. The relevant details about these courts will be examined in the analysis that as
follows.27
● Division court martial: - according to the act in each division equivalent formation of the
defense force a division court martial shall be organized with ultimate original
jurisdiction under the act.
● General court martial: - consists of 5 members and have unlimited original consideration
under the act to hear and determine all appeals referred to it from the decisions of
division court martial and unit disciplinary committees. It has shall have revisionary
power in respect of any finding ,sentences order made or imposed by any summary trial
authority or unit disciplinary committee.
● Court martial appeal court: - There shall be a court martial appeal court for the defense
forces which shall hear and determine all appeals referred to it under the Uganda people’s
defense force act from decisions of general court martial. The court considering an appeal
against a judgment involving a sentence of death, five members and in any other cases
three members or judges.28
2.4.2. The experience of the Republic of Rwanda military court structure
According to the constitution of Rwanda Judicial Authority is vested in the Judiciary composed
of ordinary Courts and specialized Courts.29The High Council of the Judiciary is the supreme
governing organ of the Judiciary. Military Courts are represented in the Council. The
Constitution of the Republic of Rwanda of 2003 revised in 2015 and Organic Law No 51/2008
determining the Organization, Functioning and Jurisdiction of courts as updated today. Courts

27
Ronald Naluwairo / African Human Rights Law Journal /Military courts and human rights: A
critical analysis of the compliance of Uganda’s military justice with the right to an independent
and impartial tribunal , ( 2016) Pp. 459
28
UPDA (2005) The Uganda people’s defense force act, 23 of August 2005 art, 194,197,199 and 200.
29
The constitution of the Republic of Rwanda of 2003 revised in Official Gazette n° Special of
24/12/2015 art 148
16
consist of Ordinary and Specialized Courts. The Specialized Courts are comprised of
Commercial Courts and Military Courts.30
Military Courts are:
✔ Military Tribunal31
✔ Military High Court32
Organizational Structures
Military Courts are under the General Structure of the Ministry of Defence. Existed military
Courts are established in two levels, Military Tribunal (First instance level), it tries in the first
instance all offences except offences which constitute a threat to national security and
premeditated murder committed by all Military personnel irrespective of their rank. Military
High Court shall try, at first instance, all offences which constitute a threat to national security
and murder committed by soldiers irrespective of their ranks. Those cases may be appealed
against in the Supreme Court. The court hears on appeal level all cases tried by the Military
Tribunal. It shall also try cases of rehabilitation of persons tried by the Military Courts; the
decisions may be appealed against in the Supreme Court, in case the sentence passed is
equivalent to or exceeds ten (10) years of imprisonment.33 Cases tried by Military High Court
may be appealed against in the Supreme Court. Cases can be transferred from Military Courts to
the competent ordinary court and vice versa. Military Courts are represented in High Council of
the Magistrate which is the supreme governing organ of the Judiciary of the country.

2.5. THE HISTORY OF ETHIOPIAN MILITARY COURT STRUCTURE

2.5.1. The Emperor Haileselasse’s Regime Military Court Structure
Era of Emperor Haile Selassie was known by its Modern written constitution. The 1930 Penal
code has clear provisions in relation to troops. Modern military law is related to the
establishment of a standing army by Emp. H/selassie- establishment of Guenet training center
1935. Offences demoralization of troops, desertion and capitulation, mutiny & insubordination,
desertion, absence without leave, drunkenness, and disgraceful conducts are from the offenses

30
Ibid
31
Ibid
32
Ibid
33
Ibid
17
stated in the proclamation. There were three levels of Courts: General court-martial, District
court-martial and field General court-martial.34

The 1957 penal code proclaims military offences and disciplinary penalties.35Criminal procedure
code of 1961 applies to all matters coming within the jurisdiction of courts (military or regular)

2.5.2. THE PDRE MILITARY COURT STRUCTURE

According to the Constitution of the People’s Democratic Republic of Ethiopia Art 100/1987
judicial power vests in courts and Supreme Court is supreme judicial organ.36 There were three
branches, civil divisions, criminal division and military division of courts.37Military division of
the Supreme Court established in accordance with the Supreme Court establishment
proclamation.38 Under the military Supreme Court division two military courts are established.
They are Military primary court and military high courts.39 Concerning their jurisdiction,
Military Primary Court: has 1st instance jurisdictions only and Military High Court: has 1st
instance and appellate jurisdiction. Supreme Court military division have appellate jurisdiction to
hear and render final judgments on an appeal submitted to against the first instance judgment of
military high court. It has in addition to the appellate jurisdiction, supervision over the judicial
military functions of lower courts.

Proclamation no 10/1987 established the primary military court and high court along with their
material, personal and local jurisdictions. Criminal procedure code of Ethiopia proclamation
No.185 of 1961 applies to regular and military courts alike.

34
A proclamation to provide for the establishment and government of force styled the imperial
army No 68/1944, Art. 41 & 42
35
Penal code of the empire of Ethiopia, of 1957, Art 296 to 331 and Art.747- 748 Proclamation No. 158
Constitution of the People’s Democratic Republic of Ethiopia, 1987,Art. 100,proclamation number 1,
36

NegaGezze year 1 number 1

37
Ibid
38
PDRE Supreme Court establishment proclamation No 9/1987 Art 17/1/c/.
39
PDRE military court establishment proc. No. 10/1987 art. 2
18
 CHAPTER THREE

METHODOLOGY OF THE RESEARCH

3.1. Introduction
The objective of this chapter is to show the image of the type, nature and the reason of the
researcher choose the methodology to attain the objective of the chapter covers , the
methodology researcher used ,the study area, the sources of data and how it is collected, analysis
and interpretation is conducted.

3.2. The research strategy

In order to realize its planned purpose, this research undertaking has employed some of the
strategies in collecting important data. The researcher used to analyze this paper mostly
secondary source. Secondary data sources have been identified and listed out on the basis of their
relevance for the research and the data obtained from the sources have been providing
information with facts from the sources.
3.3. The research design

The researcher has employed the descriptive method for this research. The method was used
for it permits the researcher to study the limitations as they exist on the ground. Because it is
appropriate to enable the researcher describes the facts associated with the laws and logical
reasons through the objective analysis.

3.4. The Research approach

The research approach used is predominantly qualitative method. The researcher analyzed the
information and data obtained from reference materials, cases and laws. Secondary sources were
used for the research. Comparative analysis also used to examine the military court structure
with different states experiences.

19
3.5. Ethical Consideration

In the process of data collection due care was taken in order to make this research work is
ethically sound. The research conducted by using secondary data and laws connected to military
and pertinent federal and international trend during data collecting, the researcher discussed
with the institution law professionals to use cases and any materials to exclusive academic
purpose. Their consent was also obtained on the basis of consensus to fully respect, needs,
values, and desires as far as the issue of this research is concerned.
3.6. Data sources

Mainly secondary data were collected from laws, rules and regulations proclaimed on the area
of the research. These were national and international legal instruments, legal cases, laws, books,
journals, and theses.

3.7. Data Collection Instruments

Secondary data were collected from public and private documents. These were national and
international legal instruments, and legal cases, law journals, books, journal, periodical,
resolutions, senior essays, and theses

3.8. Method of data analysis and interpretation

After collecting data from sources, the results obtained were analysis and interpreted by using
qualitative data analysis tools. The data analysis was mainly conducted by descriptive method to
investigate the practicality of limitations on the accused rights, and the duties of national defense
force in accordance to FDRE constitution.

20
 CHAPTER FOUR

RESULT AND DISCUSSION

4.1. INTRODUCTION
The goal of law enforcement agencies should be ensuring justice of the citizens. A military
justice organ has the same obligation to insure justice within the military institution. Armed
forces are an integral part of a democratic state and society, fulfilling their defense and national
security functions, they play a prominent role in enabling a secured environment that allows
citizens to enjoy the inalienable rights and freedoms to which we are all entitled as a human
being. From those right to appeal is one of constitutional guaranteed right of all persons have,
and the right of appeal to the competent court against an order or a judgment of the court first
heard the case. The Constitution is the supreme law of the land according to the law of the land
all laws are subordinate and not contravenes with it. Any law, customary practice or a decision of
an organ of state or a public official which contravenes the Constitution shall be of no
effect.40Appeal is the complaint to a superior court of an injustice done or error committed by an
inferior one, whose judgment or decision the court above is called upon to correct or reverse.41So
how military justice system manage this constitutional right, we see it in this chapter as follows.

4.2. The Ethiopian Military Justice in general

In both federal and state levels, judicial powers are vested in the courts.42 The FDRE constitution
judicial power expressly promulgate for the establishment of both at federal and regional level.
At a federal level there are the Federal Supreme Court, the Federal High Court and the Federal
First Instance Court. The same to the central government, regional states also have state Supreme

40
Constitution of the Federal Democratic Republic of Ethiopia, 1995, art.9(1), proclamation No.1,Federal Neg.Gaz.
year 1 no.1
41
Black's Law Dictionary Free Online Legal Dictionary 2nd Ed. https://thelawdictionary.org/appeal/ last visited
September 26/2019
42
Constitution of the Federal Democratic Republic of Ethiopia, 1995, art.79 (1),proc. No.1, Federal Neg.Gaz. year 1
no.1
21
Court, State High Court and State First Instance Court. The constitution stipulates may constitute
special or ad hoc courts which take judicial powers away from the regular courts or institutions
legally empowered to exercise judicial functions and which do not follow legally prescribed
procedures shall not be established.43By a contrary reading from this article we can understand
special and ad hoc tribunals may be established by law but they shall be follow legally prescribed
procedures.

In accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of
Ethiopia, the HPR (House of Peoples of Representatives) proclaimed DF (defense force)
proclamation. The rationale for the existing proclamation No 1100/2019 as laid down in its
preamble are:

“ The Defense Forces of the Federal Democratic Republic of Ethiopia is organized, to safeguard
the country's sovereignty, to embody the equitable representation of nations, nationalities
and peoples, and to carry out its functions free of any partisanship to any political
organization; It has been found necessary to have a legal framework for the Defense
Forces of the Federal Democratic Republic of Ethiopia by which it is directed and which
is consistent with its contemporary commitments and which takes into account its future
commitments; and It has become necessary to revise and consolidate the existing legal
framework of the Defense Forces of the Federal Democratic Republic of Ethiopia; “
To achieve the purpose, which carries out tasks relating to military justice in the defense
forces, four military justice organs are established. These are;44
1. The military Police;
2. The military Prosecutor;
3. The military Courts; and
4. The military Defense Counsel.

43
Constitution of the Federal Democratic Republic of Ethiopia, 1995, art.78 (4), proclamation No.1,FederalNeg.Gaz.
year 1 no.1
44
The Defense Forces Proclamation, 2019, art.28, Proclamation No. 1100, Federal Neg.Gaz. year 25 No. 19

22
 4.3. The FDRE Military Court Structure

According to the proclamation of FDRE defense force, organization of defense force has
consists of ground force, air force, naval forces, and special operation forces.45 The proclamation
establishes four military justice organs to carry out tasks relating to military justice in the
defence forces primarily involved in the investigation, prosecution and trial of military offences.
These are military police, military prosecutor, military courts and military defence council. The
proclamation indicates two structures of military courts but gives no clue where the courts are
establishes and to whom they are responsible. In practice the primary military court benches
organized in four command head quarters, air force and defense staff, the courts are mainly
responsible and report to defense force courts directorate. Pursuant to the proclamation, 46 each
of these organs of the military justice organs plays a crucial role in the rendering of justice.
Military courts are clearly one of such institutions.

4.3.1. The Primary military court

The military courts have two hierarchies47as its name indicates, the primary military court
has primary (first instance) jurisdiction over military offences so defined under article 38 of
the proclamation. The Primary Military Court shall have jurisdiction over the following
matters:48

Article 38 of the proclamation states that:-

● persons responsible for military offences provided from Article 284 to Article 322 of
the Criminal Code;
● offences of murder or bodily assault committed among members of the defense
forces or offences the members of the defense forces committed among members of
defense force;

45
Ibid
46
The Defense Forces Proclamation, 2019, art.28, proclamation No. 1100, Federal Neg.Gaz. year 25 No. 19
47
Ibid
48
Ibid

23
 ● any offence committed at home by a member of the defense forces while on active
combat duty;
● any offence committed by a member of the defense forces or a civilian on mission
along with a section of an army deployed abroad while on task or active combat
duty;
● any offence committed by civilians, members of the regular police force or militia
deployed along with members of the defense forces on grounds of general
mobilization or the declaration of a state of war;
● any offence committed by a prisoner of war after being captured;
● offences falling under the jurisdiction of military courts committed by recruits after
entering into training camps or members of national reserve force after entering into
military training camps or joining the regular defense forces;
● Cases involving whether or not persons captivated during a time of war are
prisoners of war.
As we infer from the above article and sub articles the primary military court jurisdiction is mainly on
military crimes which are in number above 35 articles, besides among members committed
murder, physical assault; offences committed among military members; any offences while on
active combat duty; any offences abroad while on task or active combat duty are the main one.
4.3.2. Military appellate court
The proclamation indicates that military appellate court autonomously organized under defense
courts. But practically the court established under courts directorate, the courts director is an
administrator of all benches of four command courts, judges and appellate judge in appellate
military court in Addis Ababa at center of defense force.
49
Jurisdiction of an Appellate Military Court
● The Appellate Military Court shall have appellate jurisdiction on cases disposed
of by the Primary Military Court.
● The Appellate Military Court shall have the power to confirm, vary or reverse the
decision of the Primary Military Court.

49
Ibid

24
 ● Any party aggrieved by the decision of the Primary Military Court shall have the
right of appeal against it within thirty days of its pronouncement.

The appellate military court has appellate jurisdiction over cases disposed of by the primary
military court (Art.39/1).50 This indirectly recognizes the right to appeal, which is of course a
constitutional right. Nevertheless the right to appeal is explicitly recognized under sub-article 3
of article 39. Thus, the appellate court has jurisdiction with the power to confirm, vary, or
reverse the decision of the primary military court.51

The decisions of military court are binding on every person and military courts have the power
to execute their decisions, orders and rulings.52 This power includes the power to punish any
person or organ that disobeys these decisions, orders or rulings. It is also interesting to look at
the role or power of the federal Supreme Court in the rendering of justice in relation to military
offences. The decision of the appellate military court appears final and binding in the sense that
no appeal is possible under normal conditions.

4.4. Power of the Federal Supreme Court

In cases where the decisions contain fundamental error of law Federal Supreme Court shall have
power of cassation over any final decision of a military court which contains a basic error of
law.53 Final decisions given by the primary military Court in its First Instance jurisdiction are
subject to appeal to the Military Court of Appeals. Cases seen by a primary military court
which have got final decision any of the party or both of them have the right to appeal the
decision of the primary military court to the appellate military court. If there is an issue of fact,
or evidence, grievance on sentence passed by appellate court federal supreme court has no
jurisdiction to hear on those issues.
4.5. The case seen in the Military appellate court

50
Ibid

51
DEMELASH SHIFERAW,Phd, Assistant professor,(Teaching material on military lawMekelle
university school of law January 2016, pp62
52
“supra note” 41
53
Ibid

25
The focusing area of the researcher is the proclamation recently in duty, but during amending
previous proclamation the structure of military court is not given due attention. In both of the
proclamation existing as well as the amended proclamation structure of the military courts is the
same, because of that one cases taken by the researcher entertained during the previous
proclamation on active in military appellate court to show the limitation of the structure of
courts..

Case:-The case 2nd corporal Girma Haile Vs central command military prosecutor

The case opened in military appellate court on file No 004/2009 E.C. The case initiated from
central command primary military court on military prosecutor charge. It states that 19/11/07
E.C approximately at 3:00 am on the place where called Tigray region North West zone Tahtay
Adiabo werda on the specific area called Gosema, 2nd corporal Girma was at a guard duty. Then
without superior order, he has given his AKM weapon with its 30 bullets to the offender called
2nd corporal Aegegnew kochito, who was murdered corporal Dechasa Esimaeal ,with 2nd
corporal Girma’s weapon.
The prosecutor produces witness they have knowledge about the action of 2nd corporal Girma.
The wittiness testified the weapon which used 2nd corporal Aegegnew kochito, to murder
corporal Dechasa Esimaeal. He was given missed information during the gun fire was heard
surrounding their accommodation, in case of that he was charged by a compliance to murder.
The central command bench of primary military court decides that the accused is not found
guilty because the prosecutor did not proved his guilty of co-offender. Then the military
prosecutor submits his appeal to the military appellate court. The appellate courts sent back the
case to central command primary military court on the point that the accused raised during the
appeal litigation his defense whiteness were not heard. Then after that, on the another pending
day the primary court heard the defense of the accused and found that the accused is guilty of the
co-offender by changing the charge of military prosecutor article from 539/a/ to 540 by using
criminal procedure code art 113/2/ and sentenced 6 years and 6 month gregarious impressments.
The military prosecutor asked appeal on intended the offender was convicted guilty on Art 539
sub art(a) on the reason that the criminal is intentionally accomplices to the principal offender of
the federal criminal code but the primary court decision was convicted guilty in changed article
art 540 of the same code is not pertinent. The offender and co-offender should be convicted

26
guilty under the intention of the offender. So the central command bench primary military court
decision did not in the proper way. There was a cross appeal on the side of 2nd corporal Girma.

Finally the appellate military court is reversed the decision of the central command bench
primary military court and convicted guilty with Art 539 sub art(a) of the federal criminal code
of Ethiopia. 2nd corporal Girma was sentenced to 16 years and 6 months gregarious
impressments by the appellate military court. Her 2nd corporal Girma has the right to appeal the
decision but no way of appeal because the structure of the military court was two stages the
appellate court decision is final.54

When we see the military courts structure the researcher used as benchmark to the study,
Rwanda, Uganda and the PDRE military courts structures to compare with existing military court
structure.

4.6. Military court structure compared with the Benchmarks

When we see Rwandan military tribunal is the same compositions of Ethiopia. However, it
differs in Military Tribunal or First instance level is tries in the first instance all offences except
offences which constitute a threat to national security and premeditated murder committed by all
Military personnel irrespective of their rank . Military High Court shall try, at first instance, all
offences which constitute a threat to national security and murder committed by soldiers
irrespective of their ranks. Those cases may be appealed against in the Supreme Court. The court
hears on appeal level all cases tried by the Military Tribunal /primary military court/. It shall also
try cases of rehabilitation of persons tried by the Military Courts; the decisions may be appealed
against in the Supreme Court, in case the sentence passed is equivalent to or exceeds ten (10)
years of imprisonment.55 Cases tried by Military High Court may be appealed against in the
Supreme Court. The formation of the Rwandan Military Court provides a better opportunity for
accused than the structure of the Ethiopian military court in matters that begin with the primary
military court. Military high court in addition to its first instance jurisdiction hears on appeal
level all cases tried by the military tribunal. However, the cases begins at first instance in high

54
Appellate court file no 004/2009 the case of military prosecutor vs. the accused Girma and Agegnew defense
force appellate court.
55
The constitution of the republic of Rwanda of 2003 revised in Official Gazette n° Special of
24/12/2015 art 191
27
court is only one step of appeal to Supreme Court it can be understood in some way limiting the
right of appeal. In addition, the fact that military courts are a member of the country’s highest
judiciary council, military accused can appeal to the ordinary courts makes it a better.

The Uganda defense force act establishes three court structures. They are Division court
martial, general court martial, Court martial appellate courts. In addition to permanent court
martial’s field court martial is organized during war time only at battle place. The rest three are
permanent court martial. My discussion is focused on those three courts martial.

When we see their jurisdiction, Division court martial established in each division equivalent
formation of the defense force, a division court martial shall be organized with ultimate original
jurisdiction under the act. The court hears in its first instance jurisdiction and appellate
jurisdiction on the decisions of trial by commanding officer or officers commanding. General
court martial under its unlimited original jurisdiction to hear and determine all appeals referred
to it from the decisions of division court martial and have revisionary power in respect of any
findings, sentences or orders. Finally Court martial appeal court shall hear and determine all
appeals referred to it from decisions of general court martial. The structure shows that it gives a
wide range of appeal chance to aggrieved party on the decisions of each of the courts first
instance jurisdiction or on the decisions of its appellate jurisdictions.

The court structure of people’s democratic Republic of Ethiopia /PDRE/, judicial power vests in
courts and Supreme Court is supreme judicial organ. There were three branches of courts, civil
divisions, criminal division and military division of courts. Military division of the Supreme
Court established in accordance with the Supreme Court establishment proclamation. Under the
military Supreme Court division two military courts are established. Primary military court and
military high court, concerning their jurisdiction, Military Primary Court: has 1st instance
jurisdictions only and Military High Court: has 1st instance and appellate jurisdiction. Supreme
Court military division have appellate jurisdiction to hear and render final judgments on an
appeal submitted to against the first instance judgment of military high court. It has in addition to
the appellate jurisdiction, supervision over the judicial military functions of lower courts.

28
 CHAPTER FIVE

SUMMARY, CONCLUSION AND RECOMMENDATIONS

5.1 Summary

Right to appeal is a basic right which is guaranteed under our FDRE. According to the
jurisdiction given in the defense proclamation, the military appellate court can reverse or vary
the decision of the primary military court. After the research the researcher reached the following
implication.

The structure of the court permits to both parties on the decisions of primary military court, to
appellate military court. But here the question arsis is during the primary military court acquits
the suspect and the military prosecutor aggrieved by the decision of the primary military court
where the decision of lower court is reversed by military appellate court. Then military public
prosecutor is aggrieved on the decision, can submit his appeal to military appellate court. If the
military appellate court reverses the primary military court conviction of the accused, there is no
higher level court to be appealed. But according to the constitution, appeal is basic right which is
guaranteed by the constitution. The right to appeal convictions and sentences ICCPR 14(5) states
“everyone convicted of a crime shall have the right to his conviction and sentence being 20(6) of
the constitution “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.” Everyone convicted of a crime shall have the
right to his conviction and sentence being reviewed by a higher tribunal according to law. The
structure of the Military court limits for this fundamental right of the accused.
5.2. Conclusion

Appeal is a basic right which is guaranteed “All persons have the right to appeal to the
competent court against an order or a judgment of the court which first heard the case.” Any
party aggrieved by the decision of the Primary Military Court shall have the right of appeal
against it within thirty days of its pronouncement. Everyone convicted of a crime shall have the
right to his conviction and sentence being reviewed by a higher tribunal according to law.

29
Ethiopia is signed and ratified the ICCPR in 1964. According to the FDRE constitution art 9/4/
“All international agreements ratified by Ethiopia” are integral parts of the law of the land. The
provision guarantees the right of persons convicted and sentenced to appeal rights on the final
decisions. If the rights of military members are not well managed it is not initiates to the new
recruits, impedes confidence and trust on the justice system and gaps are not prevented
effectively, questions arise concerning the effectiveness of military discipline and criminal
justice systems. According to Article 20 (6) of the Constitution, the appeal is defined as the right,
when the Appellate court decides a contrary to the lower tribunal the criminal procedure code art
195 (3) stated the aggrieved party can initiate appealed, when in it the appellate court has
reversed, or varied the lower court decision. The defense proclamation states that military courts
shall in disposing of cases apply the criminal procedure code. However, the Proclamation did not
state the way of appeal on against the appellate court decisions. In other words, if the appellate
court makes a different decision than the lower court, it is the first decision in that case, and the
closing of the proclamation limits the right of appeal. Constitution states its supremacy in art
9/1/ any law, customary practice or a decision of an organ of state or a public official which
contravenes this Constitution shall be of no effect. According to the findings military court
structure is not enhance the accused to use its right and it is not compatible with the concept of
the constitution.

5.3. Recommendations

The right to appeal to the competent court against an order or a judgment of the court
which first heard the case is the all citizens’ right. Because according to the problem shown
in the research, the decision passed by defense appellate court is the first verdict ion on the
accused is guilty, To enforce the right of appeal, there must be next appellate court to submit
his disappointed on the decision passed by the court, but according to the proclamation of
defense force there is no court can entertain the case in appellate jurisdiction. So to solve the
problem the researcher recommended the following points:-

1. Appeal right is a basic right which is guaranteed under the FDRE constitution. To military,
courts in administering justice to make the necessary contributions, with regard to fostering

30
 military discipline to promote combat readiness and to secure these constitutional rights of
the member’s, courts may be established by three stages on their special proclamation.
2. The cases entertain under military courts are came from different divisions of the defense
sections. To solve the limitation of appeal, the structures of courts should be established in
each division by its name Division military court within first instance jurisdiction to entertain
the cases punished less than three years.
3. The primary military court in addition to its first instance jurisdiction may give the appellate
jurisdiction over decisions of Division military courts.
4. And finally the 3rd appellate military Supreme Court shall be here in the first instance the
member of defense those have the rank above lieutenant colonel rank, and the offenses
punished above 15 years rigorous imprisonment and appellate jurisdiction over all cases
entertained on military primary courts.
5. If the establishing of Military Courts on their own Proclamation is should not accepted by
the concerning bodies the existing proclamation number 1100/2019 has to be amended by
adding military Supreme Court and its jurisdiction, and may give the power to hear federal
supreme court over the decisions reversed or varied by the military appellate court.
6. Maintaining the structural autonomy of the military justice system, committed to revise its
structural elements and further develops should be ensure its effectiveness and compatibility
with international human rights standards.

31
 References

Books

✔ MINDIAVASHAKMADZE Guidebook, Understanding Military Justice, , Geneva Centre for the

Democratic Control of Armed Forces (DCAF)
✔ DEMELASH SHIFERAW (PhD)., Teaching material on military laws, 2015,Mekelle
university school of law library un published
✔ KENT S. BERNARD/ Structures of American military justice, University Of Pennsylvania
Law Review [Vol. 125:307)
Laws

✔ FDRE. (I995). The Constitution of the Federal Democratic Republic of Ethiopia

(Proclamation No. 1/1995, Negarit Gazeta, 1st Year No. 1). Addis Ababa: Berhanena SeIam
Printing Enterprise.
✔ FDRE (2019) The federal Democratic republic of Ethiopia Defense Forces Proclamation,
{proclamation No. 1100/2019, Federal Neg.Gaz. year 25 No. 19 Berhanena SeIam Printing
Enterprise
✔ PDRE(1987) The Constitution of the People’s Democratic Republic of Ethiopia,
proclamation number 1/1987 Negarit gaez, year 1 number 1 Berhanena SeIam Printing
Enterprise
✔ Imperial Ethiopian Government. (1961). Criminal procedure code of Ethiopia (Proclamation
No.185/1961 , Neg. Gaz., 21'h Year, No.7). Addis Ababa: Published by Authority of the Mini
stry of Pen.
✔ Imperial government of Ethiopia (1957) The Penal Code Of. Ethiopia,. Proc. No. 158/1957
✔ Imperial government of Ethiopia (1944) A proclamation to provide for the establishment of
the Emperor army Proclamation no 68/1944
✔ UPDA (2005) The Uganda people’s defense force act, 23 of August 2005
✔ The constitution of the Republic of Rwanda of 2003 revised in Official Gazette n° Special of
24/12/2015
✔ Constitution of the People’s Democratic Republic of Ethiopia, 1987,,proclamation number 1,
NegaGezze year 1 number 1
32
✔ PDRE (1987) people’s Democratic Republic of Ethiopia Supreme Court establishment
proclamation No 9/1987
✔ PDRE (1987) people’s Democratic Republic of Ethiopia military court establishment proc
proclamation No 10/1987

Websites

✔ Reporter’s Guide to Military Justice , http://www.rcfp.org/reporters-guide-military-justice/

what-court-martial
✔ http://www.hqmc.marines.mil/Portals/135/MJFACTSHTS%5B1%5D.html#Military justice
✔ Military Justice / /the Reporters Committee for Freedom of the Press /Summer 2006/
https://www.google.com/
✔ Understanding Military justice /https://securitysectorintegrity.com/standards-and-
regulations/security-sector-legislation/

Journals

● STEPHEN I. VLADECK ,Military Courts and Article III, The Georgetown Law Journal
(2015) Vol. 103:933,
● Ronald Naluwairo , African Human Rights Law Journal Military Courts And Human Rights:
A critical analysis of the compliance of Uganda’s military justice with the right to an
independent and impartial tribunal (August 2016)

Cases

● Crime litigation Appeal file No 004/2009 the case of military prosecutor vs. the accused
Girma and Agegnew defense force appellate court.

33