Criminalization of Possession of Unexplained Property by non- public servants and by non- employees of public organizations in Ethiopia now and then

 

 Author: Zeray Weldesenbet
The criminalization of possession of unexplained property in the private sector is not new in Ethiopia. There was a proclamation with a penalty clause that penalized anyone, excluding public servants and employees of public organizations, who was in control of property disproportionate to their present or past lawful income or obtained from other lawful means.
The criminalization of possession of unexplained property in the private sector is provided by Article 15 of Proclamation No. 657/2009, titled 'Proclamation on the Prevention and Suppression of Money Laundering and the Financing of Terrorism.'

Article 15 states as follows:

"Article 15. Unexplained Property
 
1. Without prejudice to Article 419 of the Criminal Code, any person, who is in control of pecuniary resources or property disproportionate to his present or past lawful income or obtained from other lawful means shall, unless he gives a satisfactory explanation to the court as to how such pecuniary resources or property come under his control be punished, without prejudice to confiscation of the property or pecuniary resources or restitution to the rightful owner, as it deems appropriate, with imprisonment from three to five years and fine from Birr 5,000 to Birr 10,000.
 
2. Where the court, during proceeding under sub-article (1) of this Article, is satisfied that there is reason to believe that any person owing to his closeness to the accused or other circumstances, was holding pecuniary resource or property in trust or otherwise on behalf of the accused or acquired, as a gift, such resources or property shall, in the absence of evidence to the contrary, be presumed to have been under the control of the accused."
 
Article 15 of Proclamation No. 657/2009 addresses the possession of unexplained property specifically within the private sector.

Here's a summary of the key elements of the provisions of Article 15 of Proclamation No. 657/2009: 
1. "Without prejudice to Article 419 of the Criminal Code": When Article 15 of Proclamation No. 657/2009 states 'without prejudice to Article 419 of the Criminal Code,' it implies that the provisions of Article 419 of the Criminal Code, which specifically address the possession of unexplained property by public servants (and employees of public organizations), remain valid and unaffected.
Therefore, Article 15 of Proclamation No. 657/2009 applies to individuals who are not public servants, meaning it pertains to the private sector namely others who are not covered by the specific provisions of Article 419 of the Criminal Code.
2. Disproportionate Control: It applies to individuals who control pecuniary resources or property that are disproportionate to their present or past lawful income or acquired from other lawful means. 
3. Criminal Penalties: If a person cannot provide a satisfactory explanation to the court regarding how such property came under their control, they are subject to:
Imprisonment for a period ranging from three to five years.
A fine ranging from Birr 5,000 to Birr 10,000.
Confiscation of the property or pecuniary resources, or restitution to the rightful owner, as deemed appropriate by the court.
4. Presumption Clause: If during proceedings it is found that someone close to the accused was holding property in trust or received it as a gift, and there is no evidence to the contrary, such property is presumed to have been under the control of the accused.

Additionally, the proclamation did not include a retrospective clause. It was applicable from the time of its promulgation in the Federal Negarit Gazette.
However, Proclamation No. 657/2009, including its Article 15 concerning the possession of unexplained property in the private sector, was repealed by Article 57(1)(a) of Proclamation No. 780/2013, effective from February 4th, 2013.

Consequently, there is currently no federal law governing the possession of unexplained property in the private sector.
Currently, the federal government, through its Ministry of Justice, has drafted a very controversial proclamation specifically aimed at regulating the possession of unexplained property in the private sector.

This draft includes a retrospective application of up to 10 years, along with other highly controversial clauses. At the present time, this draft proclamation is under review by the legal committee of the Ethiopian federal parliament.
 
 Note: The author, Zeray Weldesenbet, a private advocate in both federal courts and courts in the Afar regional state at all levels.