Burdens and Standards of Proof in Possession of Unexplained Property Prosecutions

Abstract

While possession of unexplained property (illicit enrichment) is expressly
criminalized under Article 419 of the 2004 Criminal Code of Ethiopia, there are practical problems in its prosecution, inter alia, regarding burden and standards of proof. Cases such as Workineh Kenbato & Amelework Dalie demonstrate the confusion regarding who bears what burden, for which facts the burden would apply and the required standard of proof thereof. Despite efforts to use the prosecution of illicit enrichment as a weapon in the combat against corruption, there are concerns triggered by such prosecutions. There is public interest to punish and deter corruption and seize and confiscate the proceeds of corruption; meanwhile there is the need for precaution against endangering the right to fair trial of the accused (especially the right to presumption of innocence, right to remain silent, right against self-incrimination) and property rights of innocent persons. This Article examines issues of the allocation of burdens and standards of proof in the prosecution of illicit enrichment cases. It
assesses the relevant legal framework in Ethiopia and examines some court practices. The author argues that the binding interpretation adopted in Workineh Kenbato & Amelework Dalie case is erroneous and calls for its
rectification in future cases that involve similar issues.

Key words: Possession of Unexplained Property, illicit enrichment, burden of proof, standard of proof, easing of burden of proof, Criminal Code of Ethiopia