The Retroactive Application of Criminal Law in Favor of the Accused: A Comment on the FDRE Council of Constitutional Inquiry’s (CCI) Decision

Abstract

Article 182 of the Customs Proclamation (Proclamation No 859/ 2014) provides that cases pending before the coming into force of the Proclamation shall be treated in accordance with the previous law. In Melaku Fenta et al, the constitutionality of this provision was challenged because it denied the retroactive application of criminal law in favor of the accused. In its decision, the CCI declared the provision as constitutional and this comment aims to examine this decision. By examining the decision in light of Art 22(2) of FDRE Constitution, domestic laws, international legal frameworks and the literature concerning the retroactive application of criminal law in favor of the accused, this comment argues that the CCI should have declared Art 182 as unconstitutional to the extent it denied the retroactive application of criminal law in favor of the accused. Determining whether the accused could benefit from the decriminalization should have been left to the court to decide.