UNIT TWO

Affirmative defenses
 Cont.…

• Contrary to the negative defenses under the previous section, which

from the very beginning denied the existence of crimes, affirmative
defenses are those that accept the existence of a crime but raise the
defense that there is a reason to perform it.
• Hence, affirmative defenses accept the existence of a charge, concede
the elements of the crime, and avoid liability, not responsibility.
• Affirmative defenses are classified as lawful acts, justifiable acts, and
excusable acts.
• Lawful acts: the accused admits that he committed the act in question
but maintains his omission or commission is lawful.
• Justifiable acts are acts that are prohibited by the law, but the violation
of the law will be acceptable under the circumstances because it
brings about a benefit to society.
• A lawful act is an act that a person is legally obliged or authorized to
do. The act is lawful, not because the law permits it. Rather, it is
inherently a punishable one.
 Cont.…..
• Lawful, justifiable, and excusable acts:
• Lawful Acts
• A lawful act is an act that a person is legally authorized to do.
• Even in some circumstances, the law provides more than
authorization and obliges a person to behave in contradiction to
the law.
• Because of the existence of the legal right or duty to act, the act,
which would otherwise be criminal, is a legitimate one for which
the doer is not punishable.
• Under some circumstances, certain positive results would not be
achieved unless there was an act being made in contradiction to
the law.
• The prohibitory law says: You must not kill.
• But the counter-law says: If you are a soldier in combat, you must
kill.
 Cont.…

• Acts Required or Authorized by Law: Art. 68

• Acts required or authorized by law do not constitute a crime and are not
• punishable; in particular:
• (a) acts in respect of public, state, or military duties done within the limits
• permitted by law;
• (b) acts reasonably done in exercising the right of correction or discipline;
• or
• (c) acts done in the exercise of private rights recognized by law where the
conditions and limits of the exercise of such rights are not exceeded.
A. Acts Relating to Public, State, or Military Duties:
1. Public duties:
• The law has no definition or reference as to what constitutes public duty.
• But if one compares it with state duty‘, which is more specific and requires the
claimant to possess an official status or be vested with some kind of power, it
appears the defense is available to anyone who does, in accordance with the
law, something for the public good.
• Any private person who arrests or participates in the arrest of an offender
commits an act pertaining to public duties. (no liability under Article 565 of the
Criminal Code)
 Cont.…..

• Two requirements must be fulfilled:

• The defense is applied in connection with public duty. It means it must be
performed for the public good.
• The doer must comply with the legal requirements governing the doing of this
act.
2. State duties:-
• Acts connected with state duties are those acts done by a person who
possesses an official statue in the performance of his duties.
• Are acts done by public servants, employees of a government, or others in the
execution of their duties as public servants?
• Three requirements are here.
• 1. The doer must be a public servant.
• The act must be performed in the performance of official duties.
• Must be done within the limit provided by the law.
• ØA police searches in violation of privacy or arrests in violation of liberity.
• A public prosecutor charges in violation of liberty
• A judge denies the right to bail in violation of liberty.
 Cont.…

3. Military duties
• Acts connected with military duties are acts done
by a member of the armed force in their capacity
as a soldier.
• Three conditions
• He or she must be a solider.
• The act must be connected with the official duty.
• The act must be done within the limits provided
by law. Must be in line with the law of war.
• Solder kills his enemy.
• An aircraft that drops bombs and kills
 Cont.…

B. Right of Correction or Discipline:

• The law gives a certain group of persons a right to take certain corrective or
disciplinary measures against another person.
• In the administration of such measures, it may inevitably result in some harm to the
individual subjected to them.
• Then, there shall be no criminal liability against those legally authorized for their acts
unless they have gone beyond the legal limit, namely the reasonableness of the action
and the seriousness of the fault sought to be corrected.
• Here….
• The person must be the authorized person to take the action, not any passerby.
• The fault deemed to be corrected needs to be serious.
• The action taken should be reasonable.
• Example…..
• Article 258/2 of the RFC provides that a guardian may take disciplinary action against
his children for their upbringing.
• üArt. 2039(c) of the Civil Code impliedly authorizes the parents, guardians, and
masters to use reasonable force for the purposes of chastisement.
• For the proper application of these provisions, Art. 576/3 of the Criminal Code puts a
qualification on the criminality of maltreatment of minors for the purpose of
correction or discipline.
 Cont.…

B. Exercising Private Rights:

• The government may not protect individuals at all places and times
because of resource limitations. In this circumstance, individuals may
be allowed to take the law into their own hands for the protection of
their rights.
• Then, acts done in the exercise of private rights recognized by law are
those acts performed by a private person to protect the right he has
over his property. They are also called acts of private justice.
• Thus, Arts. 1148 and 2076(2) are just some provisions of the Civil Code
that justify the protective actions of a holder of a thing and a
possessor of a land.
• Article 1148: Use force justified in the circumstances to avoid
interference or take back his property. Article 2076(2) says to kill an
animal if it causes greater damage.
• In both cases, the doer is not guilty of an offense of bodily injury or
damage to property since the law expressly authorizes him to act as
he does.
 1.2 Professional Duty: Art. 69

• An act done in the exercise of a professional duty is not liable to punishment

when it is in accordance with the accepted practice of the profession and the
doer does not commit any grave professional fault.
• Though they have different purposes, acts done in the exercise of professional
duty are similar to acts authorized by law and have the same justification.
• The professional activity may be conducted based on law or contract.
• A profession is any activity that a person habitually carries out for the
purposes of obtaining the resources necessary for his livelihood.
• Three elements
• The professional should act in accordance with the accepted practice of the
profession.
• Reference will have to be made to the professional regulations, if any, or to
the custom of the particular profession, which may be ascertained through
expert evidence.
• There is no defense if he performs surgery with a kitchen knife.
• There is no defense if you perform surgery in-house; the accepted practice is
hospital.
 Cont.…
• The professional acted in the exercise of his professional
duty.
• It must be that the act be done in performing a profession,
not leisure activities.
• It covers only real or competent professionals in that specific
area. Only a person entitled to practice a profession is
exempt from criminal liability. There is no defense if the
dentist performs surgery. If an eye doctor should cause the
death of a person by attempting to remove the appendix of
this person, he could obviously not be deemed to have acted
in the exercise of his profession and would therefore not be
justified under.
• Whether a person is paid with money or performs the
activity free of charge is immaterial to determining whether
the activity is professional or not.
 Cont.

• In relation to consent, though consent is a prerequisite to

perform the same professional duty, for example, to
perform an abortion or undergo surgery, it is not the
consent but the authorization of the law that exonerates
the person from criminal punishment.
• In cases of abortion, consent could not be a defense when it
is done in prohibited circumstances, though under the
permitted grounds, consent is a requirement.
• Here, the professional will be liable, if conducted with
consent but not allowed by the law, only based on the
termination of the pregnancy and not the mother's death, if
any, so long as he has performed it within the practice.
• The same is true vice versa, i.e., if the abortion is allowed
but he commits fault, he will only be liable for breach of
professional duty.
• The professional does not commit any grave
professional fault.
• The law tolerates small faults, for it is only
concerned with grave professional faults.
• There is no defense if he forgets medical
equipment inside after surgery.
• There is no defense if he injects poison instead of
medicine.
• There is no defense if the doctor uses unclean
equipment, which results in the death of the
penitent.
 Justifiable and excusable
Consent of the victim
Consent. Article 70
• Criminal matters are public matters rather than individual
matters, for they harm the public. Based on this logic,
consent is not generally a defense. For consent to serve as
a defense, it should be obtained from the public itself.
• That being the rule, under exceptional circumstances,
however, the consent of the victim could serve as a
defense. Rights could be relatively protected rights or
absolutely protected rights. Relatively protected rights are
those that demand the direct complaint of the victim to
institute an investigation, whereas absolutely protected
rights are those that proceed without the complaint of the
victim.
 Cont.…

Hence, the defenses of consent vary based on the above situations.

Crimes punishable upon complaint
• For crimes punishable by complaint, the consent of the victim is a
defense in that if the doer commits the crime with the consent of
the victim or his legal representative, then it will be an absolute
defense. (Article 70/1)
Crimes are not punishable based on complaints.
The opposite reading of Article 70(1) shows that for crimes punishable
without complaint, consent is not a defense. But there is one
exception under Article 70/2.
When any person, having entered into a contract of his own free will
without any commercial purposes, donates, while alive or causes to
be donated after his death, his body, a part of his body, or one of his
organs to another person for personal use or to a juridical person for
appropriate and necessary scientific research or experiment, the
recipient shall not be criminally liable.
 Cont.….
• However, if such a transaction is done with a commercial
motive, both the donor and the person who takes the bodily
organ from his body, i.e., the surgeon, are liable to punishment
under Art. 573, sub-articles (1) and (2), respectively.
• Hence, if the victim gives his consent and the body parts are
taken for the purpose stated above, then the consent of the
victim would be raised as evidence by either the person who
underwent the surgery or the individual who took the organ.
• The consent should be effective. As far as the timing is
concerned, consent may be served for crimes punishable not
up on complaint before or during the commission of the act,
but in the case of crimes punishable up on complaint, it could
be made before, during, or after the commission of the crime.
 2. Coercion/duress
• The criminal law gives individuals notice about the
criminality of an act and the penalties attached
thereto. However, individuals may disregard this
due notice and commit crimes either willfully or
out of their own will.
• One common circumstance where one disregards
the law out of his or her free will is when he or
she is compelled by another to violate the law.
• This is one of the affirmative defenses (excusable
acts) where the perpetrator will be exonerated
from criminal liability.
 Cont…
Why is coercion recognized as a defense?
• A loss of volition
• Though a person coerced knows the nature and consequences of his act,
his freedom of will has been denied because he does not have volitional
power. As far as this is concerned, he is insane and irresponsible. Hence,
there must be a defense.
• Social benefit
• The doer, by avoiding greater harm and causing less harm, may benefit
society. Their submission to the one who forces them may avoid further
harm being caused, which benefits society.
• Purpose of punishment
• The law only accepts an average person rather than an extremist coward
or hero. If the person was under duress, he would only think of
committing the crime rather than fearing future punishment, and hence
punishment does not serve its purpose. Further, since the guilt mind is
on the one who coerces, the punishment purpose will be served only if
he is punished.
 Cont.….
Absolute coercion( Article 71/
• In the case of absolute coercion, the perpetrator is aware of the fact that he is
committing a crime, but his freedom of will has been taken away. He is incapable at
the time of his act of regulating his conduct according to his or her understanding.
• Coercion in the Criminal Code ( 71/72)
• The defense of coercion is provided under Articles 71 and 72 of the Criminal Code.
It is classified as absolute and resistible coercion.
• Whoever, without causing greater harm than he could have suffered, commits a
crime under an absolute coercion that he could not possibly resist is not liable to
punishment. The person who exercised the coercion shall answer for the crime (Art.
32(1)(c)).
Under Article 71, the following requirements are stated for duress to serve as
defense:.
1. The duress must be absolute.
• The coercion has to be absolute and irresistible. Though it seems that there must
not exist any resistance, the defense is available if the person cannot possibly act
otherwise than he did.
• The question of whether resistance is possible shall be decided taking both
objective and subjective factors into account.
• Between the conduct of a hero and that of a coward,
there is the conduct of a reasonable man, which seems to
be something that should be taken into account.
• The court should consider the circumstances and age of
the coerced persons, as well as the strength of the
coerced and the coercer, to determine whether the
coercion is absolute and resistible.
2. He must cause less damage. If greater damage is to be
caused, the defense is not available. The coerced person
sustains less harm than someone who causes greater harm.
The danger caused should be proportional to the danger
avoided. We can understand this from the term
“without causing greater harm than he could have
suffered."
 Cont..
3. The damage must be imminent. The damage must
have nearly materialized. If the danger is not imminent,
the coerced person should say no to the demands of
the coercer. He could have another option.
• As far as the requirements of immanency and
continuity are concerned, though not expressly
provided, they are impliedly provided because,
without them, the coercion would not be absolute
and irresistible.
4. Source of the duress: The coercion should emanate
from a human agent, as we understand from Article
32(1)(a).
 Cont.…
Resistible coercion( Article 72)
• It is a coercion of intensity such that the coerced
person could reasonably be expected to resist or
avoid committing the act.
• Art. 72 is applicable when the coerced person, by
reason of his strength, age, or sex, and having
regard to the strength, age, or sex of the person
exercising the coercion, is capable of resisting the
coercion.
Conclusion: Where absolute coercion is a defense
under the criminal code, resistible coercion is not a
defense, saving that there will be free mitigation.
 Superior/Subordinate Relation: Arts. 73 & 74
• In the performance of official duties, a superior-
subordinate relationship may be created where the
superior has the right to order and the subordinate
has the duty to execute. Thus, the order given by the
superior to the subordinate is called the superior
order.
• In the course of the execution of an order, harm may
be sustained due to the illegal nature of the order. As
to who is responsible, there needs to be a legal
solution.
• The problem of superior-subordinate relations arises
when a person commits an offense on the order of
someone to whom he owes obedience.
 Cont..

liability of the superior.

• The principle is that the superior should give an
order that is lawful, and in such situations, no
accountability issue would arise. But if they give an
unlawful order as a result of which a crime has been
committed, then they will be liable.
When did the order become unlawful?
• A superior order will be lawful if it passes the test of
service and relevancy. Hence, firstly, the order must
be related to the service that his institution
established, or it must be relevant to achieving the
purpose of the institution.
 Cont….

• Article 73: Responsibility of the Person Giving an Order.

• In the case of an act committed by a subordinate on the express
order of an administrative or military superior who was
competent so to do, the person who gave the order is responsible
for the crime committed and is liable to punishment, where the
subordinate's act constitutes a crime and did not exceed the
order given (Art. 58(3)).
• 1) The two must have superior-subordinate relationships.
• 2) The relationship must exist in an administrative or military
relationship. This is because it is in these institutions that
superior supervisory relationships exist.
• 3) The superior must give an order. If the subordinate commits a
crime without an order, then there is no liability on the part of
the superior.
• 4) The order must be unlawful.
 Cont.…
• The order must be an express order. Hence, the
superior would not be liable if the subordinate
performed an act with only presumption.
• The superior must be competent enough to give
an order.
• The order must be executed, and harm must be
caused.
• The subordinate must not exceed the exact
amount, in which case only the subordinate will be
liable, saving the case of negligence.
• If all the above criteria have been fulfilled, then
the superior will be liable.
 Cont.…

• Liability of the subordinate

• As far as the liability of the subordinate is concerned, the subordinate
faces two evils: accepting the order and violating the law, or refusing
the order and accepting measures to be taken by the superior.
Obviously, because of the imminence of the boss's measure, he will
perform the order.
• There are three models related to the liability of the subordinate.
• 1. blind or passive obedience theory : the subordinate will not be liable
to punishment so long as he executes the order of his boss. At this
point, there is no difference between law and order.
• 2. intelligent infantry theory : the subordinate will be liable for all
orders performed by him so long as the order is illegal. He does have
the right to reject unlawful orders.
• 3. Manifest illegality theory : so long as the order is apparently or
clearly illegal, then he will be liable. In other circumstances, he will not
be liable.
 Cont.
• Article 74: Responsibility of the Subordinate.
• The code provides that the subordinate will be liable if he is
aware of the illegal nature of the order manifested in the
following two situations:
If the person who gave an order does not have the
right to order or no authority
if he knows the criminal nature of the act.
• In all other circumstances not falling under the above
conditions, the subordinate does not have criminal liability.
• It is an exception to the principle that ignorance of the law
has no excuse.
• Questions
• 1. Should the boss giving an order be an immediate boss?
 Necessity
• Which acts are justified by necessity?
• The defense of necessity justifies an act performed in a situation
so critical that the doing of harm is the only alternative to the
suffering of harm.
• The actor's rights or those of another person are in imminent and
serious danger, and a choice must be made between safeguarding
them and sacrificing them.
• Choosing either suffering harm or causing harm indicates the
conflict between legitimate interests, and the manner in which the
conflict is solved implies the success of neither right nor wrong.
• This is all about the pressure of natural forces that may sometimes
confront a person in an emergency with a choice of two evils: to
violate the clear meaning of criminal law and produce a harmful
result, or to comply with the law and let greater, equal, or lesser
harm occur.
 Cont.…

• The requirements to raise the defense of

necessity are:
• A. There must exist a state of necessity: a choice
must be made between two legitimate interests,
which would exist when the right under concern is
in imminent danger.
• B. The conflict may not be solved by any means:
the act is justified only when it is the sole way to
avoid the danger and he does not cause more
harm than he could have suffered.
 Cont.…
• The criminal code Article 75.-Necessity.
• Article 75(1): An act which is performed to protect from an imminent
and serious danger a legal right belonging to the person who performed
the act or a third party is not liable to punishment if the danger could
not have been otherwise averted.
• (22) No exemption shall apply in the case of a similar act done by a
person having a special professional duty to protect life or health;
however, the Court may reduce the penalty without restriction (Art. 180).
• Article 76: Excess of Necessity.
• If the abandonment of the threatened right could reasonably have been
• required in the circumstances of the case or if the encroachment upon
the third party's rights exceeded what was necessary or if the doer, by his
own fault, placed himself in a situation involving danger or necessity in
which He found himself, and the Court may, without restriction, reduce
the penalty. (Art. 180).
 Necessity cont.…

• From the cumulative reading of articles 75 and 76, to invoke necessity as a

defense, the following requirements must be fulfilled:
• 1)Imminence
• The actor should not cause harm when the interest in steak is not yet a
treat or no longer a threat, and if he does, then he is not in a state of
necessity.
• A danger that is already over or has not yet materialized is not to be
considered.
• The defense of necessity occurs when the danger is very close, leaving the
perpetrator no third choice.
• He is in between the two evils and has no alternative choice. If there is a
third choice to avert the danger, then it could not be imminent.
• The danger must be actual, pressing, and urgent.
Example :
• Throwing someone to the lake to save his life in the process of drowning a
boat can raise the defense of necessity.
• One kills the other in a lifeboat to extend the food available for three days
to six days. (not imminent and may not even)
 Cont.….

2) Serious danger:
• Serious danger implies that the harm must amount to more than a simple
inconvenience.
• A serious danger exists when the interest to be protected is more
valuable than the interest to be sacrificed.
• Example: taking the boat of another to bring a hat in the middle of the
lake is not serious.
3). last resort (which could not otherwise be averted)
• The option is available when the problem cannot otherwise be avoided.
• The defense of necessity is not available whenever there are legal means
in existence to avert the threat.
Example:-
• A starving person should seek public welfare rather than steal for his or
her survival.
• If A takes a fire extinguisher from B to cease a fire, then he will be in a
state of necessity only where he does not have time to call fire workers.
 Cont.…

4 .Fault.
• The situation that raised the necessity should not be created by the
person concerned for the necessity to be raised as evidence. Hence, if
his own fault created the situation, then necessity could not be raised
as a defense.
• For example, a driver who runs over a pedestrian while driving at
excessive speed because of the failure of the brake pedal cannot raise
necessity as a defense, for he was at fault first.
• If the situation was created intentionally, he will be liable for causing
intentional harm; if it was caused negligently, he will be liable for
negligently causing the harm.
5.Source.
• In some jurisdictions, the defense of necessity will not be invoked if the
situation is brought about by a human source but should be a natural
factor.
• But in Ethiopia, it could be raised whether it emanates from a natural
force or a human agent.
 Cont….
6. Proportionality
• The criminal code is silent as to whether the damage that should be
averted must be equal to or greater than the damage to be caused.
But the provision uses the term... The encroachment on third
parties' rights went beyond what was necessary (Article 76).
• It is only when the threatened right is at least as important as the
right infringed upon that the doer can avail himself of the defense of
necessity.
• To put it differently, when causing harm is the only way to avert
danger, the doer is justified only if he does not cause more harm than
he would have suffered had he refrained from acting. If the case is
otherwise, the actor may not be justified since, in such
circumstances, he is reasonably expected to abandon his right.
Protecting his right by causing more harm than he would have
suffered will contradict the very rationale of the defense of necessity,
i.e., the choice of the lesser evil.
 Cont.…..
• Thus, regard shall be given to comparing the interests at stake to both
objective and subjective standards.
• q It seems that the code only makes a defense of necessity when the
person takes an action beyond what is necessary. It has to be understood
to include the proportionality between the two dangers.
7. Intention:
• If an act is performed without the intention to avert danger, then it cannot
amount to a necessary act because necessity is an intentional act. It is
explicitly stated under Article 75 to protect.
Example: He will not be protected by necessity if he trespasses on another
compound and the latter realizes that he was run after by a dog.
8. Means used.
• From the reading of Article 75 of the Criminal Code (Amharic Version), we
can understand that the means to be used should be proportional;
otherwise, excess of necessity will come into play.
• The rule of self-defense will not work for professionals who have the duty
to protect the rights of others.
 Self-defense/legitimate defense
• The rule of law entrusts the government with a monopoly over using
force and with the obligation to protect the people from illegal
attacks.
• Nevertheless, practically speaking, in some cases, the government
agents may not be around when they are needed to extend
protection. In such cases, individuals should be allowed to use force
to protect themselves, their homes, property, and the rights of other
individuals against illegal attacks. This is called a legitimate defense.
• Legitimate defense refers to the use of force to prevent unlawful
attacks against individuals, their homes, property, and the rights of
another person.
• It is “taking the law into one's own hands." Apparently, allowing
individuals to use force to repel unlawful attacks contradicts the
fundamental principle of constitutional democracy, i.e., the rule of
law.
 Cont.…
It has three components.
• self-defense (defense of self-preservation)
• the defense of others
• defense of property
N.B. However, legitimate defense allows neither preemptive
measures to avert future attack nor retaliation, where a person
acts to pay back for what has been done to him for preemptive
attack comes too soon and retaliation comes too late.
Article 78: Legitimate Defense
• An act done in self-defense or the defense of another person
against an unlawful attack or an imminent and unlawful attack
against a legally protected right shall not be punishable if the
attack or imminent attack could not have been otherwise averted
and if the defense was proportionate to the needs of the case.
Elements of legitimate defense
• There are conditions that should be complied with when
exercising this right. These include the following:.
1. Actual attack or imminent attack
• The attack must be actual, or at least imminent, in the
sense that his act should not amount to preemptive
stride or retaliation.
• The attack should be in the course of being executed or
imminent, which indicates the existence of a state of
actual danger, in order for a person to use force to avert
it.
• Otherwise, it would amount to giving individuals a free
hand to cause harm merely out of fear or vengeance.
 Cont..

Question1 :- Is legitimate self-defense available against

self-defense?
• Someone may be in a state of self-defense to protect
his property from being taken away by an intruder,
and at this time, the intruder could not be in a state of
self-defense if he takes action against the owner.
• The right is available against an offense, and so an
aggressor cannot claim the right to legitimate defense.
The right cannot be used as a shield to justify an act of
aggression. In other words, there is no private defense
against private defense.
• But if the owner exceeds the limit of self-defense, then
he could take action for self-defense.
 Cont.…

2) against legally protected rights

• The protected right could belong to the defendant or another person.
3) The attack must be unlawful.
• The act done by the aggressor should be objectively contrary to the law. It is not
required that the aggression have criminal liability.
• The reason behind this solution is that the defender cannot be expected to know or has
no time to find out whether the aggressor is, subjectively, at fault.
4) Last resort
• It is only when the actual or imminent unlawful attack endangering the legally
protected right could not have been averted otherwise than through the use of force
that the defender can exercise his right to legitimate defense.
• The defender should first exhaust, if there is another available means, the use of force
to avert the attack.
• If he does have time, then he can request the help of authorities. If he is in a position
to get help from the police, then he is required to use that.
Question 2: Is he required to run away? (duty to retreat)... is there a duty to retreat in the
criminal code? Other jurisdictions allow the duty to retreat, so long as it is made safely. But
no one is forced to retreat from his compound, business place, etc. except for a coworker.
Question 3: Should he visit a police station closer to him rather than use force?
 Cont.…
• 4) Proportionality
• When all of the above-described conditions are satisfied, a person
can exercise his right to a legitimate defense by repulsing unlawful
attacks. Nevertheless, acts of legitimate defense are not to be
exercised without limit.
• An act of legitimate defense is justified only when it is
“proportionate to the needs of the case.”.
• In determining the proportionality of an act of legitimate defense,
regard shall be given to the danger, the gravity of the attack, and the
seriousness of the harm to be caused to the legally protected right.
• Proportionality is to be considered, taking into account the means
employed in the attack and defense and the respective sex, age,
strength, or state of health of the aggressor and the defender.
• If two or more interests are at stake, then the most valuable of
such interests should be considered.
 Cont..
Question 5
• If someone says your money or your life, would it be self-
defense? Could someone protect his property without saving
his life?
Question 6
• What would be the case if B threatened A with a pop gun and
the latter killed him, believing that it was a real gun? Or
someone points a gun, but only to create fear.
• If the person reasonably believes that an action is to be taken
by the aggressor, he is not required to know the real mind of
the aggressor. Reasonable…..
Question 7
• Would the issue of self-defense be available against those
irresponsible people?
 Cont.…
• A person under legitimate defense would be liable so long as the action he takes
does not exceed the limit. The action of the attacker would be regarded as
exceeding the limit where:
The means he used are not proportional to the crime committed
(disproportionate means).
• A defender is said to have used disproportionate means when he caused more
harm than he had reasons to fear that the aggressor would cause.
• It would be disproportionate; it is manifestly excessive, like killing to save cloth.
• Even if the person has the right to defend his property, he is not entitled to
defend it by taking such an extremely harsh measure.
2. When he goes beyond what is necessary to repel the unlawful attack,.
• This happens when the person continues to take action after the act has been
repealed. This occurs when he continues to cause harm, even if this is not
necessary because the attack has already been repelled in an adequate manner.
• Needless to mention, an act done in excess of legitimate defense, be it by using
disproportionate means or by causing harm beyond what is necessary to avert
the danger, is unlawful. Thus, the defender who acts beyond the limit of
legitimate defense is liable to punishment.
 Continued
• What are the differences between necessity and
legitimate defense?
I. Necessity is basically one of aggression
(violence), while an act under Art. 78 is one of
defense.
II. The doer of a necessary act, unlike a person who
defends himself, is not resisting an unlawful
assault.
In the case of necessity, the conflict occurs
between two legitimate interests, but in the case
of legitimate defense, the conflict does not occur
between two legitimate interests.
 Mistake of fact
• What is the Meaning of ‘Fact’?
• A “fact” is any event, circumstance, or quality of a
material of personal nature whose existence or non-
existence affects the court’s decision on guilt and/or
sentence.
• Is the mistake of the person concerning him, or is the
status of the person relevant?
• It is immaterial for the purposes of Art. 80, whether the
fact as to which the doer is mistaken concerns him
personally or not.
• For example, he marries, believing himself to be a
widower, or he has sexual intercourse with a woman
whom he believes to be unmarried.
 Cont..
• It is also immaterial whether the existence or non-existence
of the fact is conditional upon the possession of certain
legal status or the existence of a certain legal relationship
(e.g., the quality of being a public servant, the owner of
some property, or the relative of some person).
• When a Mistake of Fact May Be Invoked (Applicable)?
• According to Art. 80 of the criminal code, a person who
commits an offense in consequence of an erroneous
appreciation of the true facts of the situation must be tried
as though the situation, which he believes to exist, did
actually exist. Art. 58(3) of the Criminal Code supports this
rule.
• Article 80, therefore, may be invoked in the following cases:
 Cont..
Article 80/1/
A. When the doer is mistaken as to a fact, which is a material ingredient of an
offence
 If A kills B believing that it is a lion. For homicide, the victim must be a human belong
 If A marries believing that she is above 18 but actually not. Age is material ingredient of early
marriage

 If B takes the property of A believing that it is his own property . Other property is material
ingredient of theft
B. When the doer is mistaken as to fact, which did it, exist, would legitimate or
justify his act. Mistakes in doing an act of the nature defined in Art.68: as
imaginary necessity; imaginary legitimate defense. This Article excuses a person
who has done what by law is an offence, under a misconception of facts,
leading him to believe in good faith that he was commanded by law to do it. A,
an officer of a Court of justice, being ordered by that court to arrest Y, and after
due enquiry, believing Z to be Y, arrests Z. A has committed no offence.
C. When the actor is unaware of the fact that he acts in aggravating
circumstances: if a takes others property without however knowing that the
property is to religious property.
 Cont..

• Is a mistake of fact committed by negligence or in bad faith punishable?

• According to Art. 80 of the criminal code, a person who commits an offense in
consequence of erroneous appreciation of the true facts of the situation shall be
excluded from punishment, but the doer may nonetheless be punished for having
committed this offense because of negligence; he could have avoided the mistake
by exercising the care that could reasonably be expected of him in the
circumstances (Art. 80 (1)).
• Thus, a doctor who caused the death of a patient by giving him, by mistake, a
poison instead of a drug is not guilty of international homicide, yet a person in his
position should obviously be particularly careful not to commit a mistake of this
kind.
• Are separate and independent offenses punishable? Art.80 (2)
• The doer of an act who is free from any punishment due to the mistake of fact is
not free from punishment for another offense, which in itself constitutes a
separate offense under Art. 80(2). Intentional guilt, even if it is to be excluded in
relation to a given offense, may be presented in relation to a different offense, as
is the case, for instance, when concurrent offenses are committed. (e.g., sexual
intercourse in public with a girl whose age is wrongly appreciated)
 Cont...
• When is a mistake in the identity of the victim or the objective of the
offense used as a defense?
• According to Art. 80(3), a mistake as to a fact, such as a mistake
concerning the identity of the victim or the object of the offense, is
not to be taken into account. Mistakes of this kind are sometimes
referred to as non-fundamental mistakes, in opposition to
fundamental or essential mistakes, which are the only ones that Art.
80 is concerned with.
• The principle laid down in Art. 80(3) is, however, applicable only
when the mistake as to the identity of the victim or the object of the
offense is without the influence of the actor’s guilt. Thus, A is not
guilty of incest when he has sexual intercourse with Miss B, who,
unknown to him, is his second cousin whom he never saw before in
his life; nor is he guilty of intentional theft when he takes B’s coat,
believing it to be his own, or of aggravated theft when he steals an
object that, unknown to him, is a religious one.
 Cont..

• Mistake of Law and Ignorance of Law:

• A mistake of law occurs when the person commits an error when
understanding or interpreting legal provisions, while ignorance of law
occurs when a person is unaware of the very existence of a law that
prohibits a certain conduct.
• The criminal code, under Article 81, provides that ignorance of the law is
not an excuse, could be a ground of mitigation, or may be a ground of
excuse.
• The principle is that ignorance of the law has no excuse, as stated in Article
81/1/.
• And Article 81/2/ provides that it could be a ground of mitigation if he acts
in good faith( if he suspects the existence of law), believing that he has a
right to act and having definite and adequate reasons( if the English
version and the Amharic one hold different meanings) for holding this
erroneous belief.
• Article 81/3 provides an exception to the rule that ignorance of law has no
excuse for putting an exception when ignorance of law fulfills three
requirements. 1) The ignorance must be absolute and justifiable; 2) it must
emanate from good faith. 3: no intention to commit a crime