It seems that the First Criminal Bench of the Federal High Court has lots of surprises in store.  Last year, I criticized the court's decision to apply a law retroactively. That, I said, was an assault on a pillar of law - nulla poena sine liege. A couple of days ago, another fundamental legal principle was once again attacked by the same court. By suspending the decision of a lower court to grant bail to Ato Siye Abraha, who was arrested on suspicion of corruption, until it makes a ruling on the appeal of the police, the court not only  made a serious error of interpretation, it also paved smooth the protective moat of individual liberty- the presumption of innocence. 

The notion of presumption of innocence is firmly established in the laws of many countries. One of those rules derived from this notion, as stated in Article 19(6) of our constitution, is the right of persons arrested to be released on bail. The only purpose bail should be posted by the person arrested is to secure the individual's attendance in a court of law during trial. 

In inserting this right, the drafters of the constitution as well as the constitution of other countries, seemed to have confronted and reckoned a boggy task of reconciling as it is in the case of other rights the interest of society and the state as opposed to the liberty of the individual who is considered innocent. 

That is precisely why our constitution, after stating  the right of the arrested to be released on bail, asserted the discretion of the courts to deny bail or demand adequate guarantee for the conditional release of the arrested person in exceptional circumstances prescribed by law. By restricting the power of the courts to deny bail in exceptional circumstances prescribed by law, the drafters of our constitution seemed to have been more sympathetic and generous to the demands of an accused person than to the mighty and wealthy state. 

Though our criminal procedure Code came out long before the 1994 constitution, it has already made refusal to bail an exception to cases where the prosecutor or the police can show that the release of the accused could be an obstacle to the investigation of the state as the accused is likely to tamper with or conceal evidence or the penalty the accused would face if convicted is death or more that fifteen year's imprisonment and there is a likelihood of the victim of the offense dying or if set free the accused is likely to commit other offenses. 

If at least one of the requirements have not been fulfilled, the court has no right to refuse bail but is it possible for the prosecutor or police to appeal against the grant of bail? In the case of Siye Abraha the First Criminal Bench of the Federal High Court furnished positive answer to the question. I beg to differ. 

Article 75(1) of the Ethiopian criminal procedure code states the right of the accused to appeal against the decision of refusal of bail by a court of law. Many people argue that if the law permits the accused to appeal against the refusal of bail, the prosecutor or police should by analogy be allowed to do the same if a court of law grants bail to the accused. This kind of interpretation extends the narrow personal scope, which the letter and spirit of Article 75 (1) transpires, to a more comprehensive and unacceptable one. It also defeats the notion of the presumption of innocence. 

There is nothing under Article 75 (1) of the code, or all laws of criminal procedure for that matter, that warrant the court to extend the personal scope of Article 75(1). The wording of the article is neither vague nor ambiguous. It clearly limits the right of appeal to the accused. In fact, the heading of Article 75 also limits the scope of the article to cases of appeal where bail is refused. So, interpreting the article in any other way is a raw use of judicial fiat which defies the principle of separation of power among the three branches of government envisaged in our constitution. 

One may express contempt for my ''mechanical'' jurisprudence. We may take another familiar cannon of construction which says that ''a thing which is within the intention of makers of a statute or much within the statute as if it were within the letter, and a thing which is within the letter of the statute, is not within the statute - unless it be within the intention of the makers.'' Even then, the outcome won't be different from what the ''literal'' interpretation of the letter of the law dictates. 

It would be extremely absurd to suppose that the legislators of the Ethiopian Criminal procedure Code had all the consequences of the law in mind. But then, it is difficult to say  they could forget that the prosecutor or police would sometimes be unhappy and would be willing to appeal when a court of law grants bail to an accused. However, by narrowing the personal scope of Article 75(1), they have clearly indicated their intention of limiting the right of the prosecutor or police to cases of acquittal or sentence as stated under Article 185 (2). One can hardly mistake a release on bail for acquittal. 

Some may insist that the legislator's intention (expose de'motifs) cannot be figured out unless it is clearly stated in a document accompanying the law. I can, however, raise another reason for objecting to the court's decision. A law should be interpreted from the texts "not in historical isolation but against the background of general principles of law." In Riggs v. Palmer, an American court offered two reasons for the need to take into consideration general principles of law in construing a statute. 

First, "it is sensible to assume that legislators have a general and diffuse intention to respect traditional principles of justice unless they clearly indicate the contrary." Second, "since a statute forms part of a larger intellectual system - the law as a whole - it should be construed as to make that larger system coherent in principle." If the prosecutor or police is permitted to appeal when a court of law grants bail, the accused would serve an extended period of arrest between the date when the lower court allowed bail and the date the higher court decided on the appeal of the prosecutor or police. This is tantamount to punishment before determination of guilt, a clear intrusion of the constitutional notion of presumption of innocence. 

There is no principle of interpretation that warrants the high court to decide that the prosecutor or police has a right to lodge an appeal against grant of bail. Its interpretation erodes one of our cherished constitutional principles - the principle that every person is presumed innocent until proven guilty by a court of law.