Contraband has always been one of the most serious challenges to legitimate trade. Laws governing import and export trade attempt to minimize the incidence of the smuggling of goods to or from a given national customs territory.

Contraband defies the entire legal regime applicable to all import and export goods. It distorts legitimate trade, harms the health of the people, results in losses to state revenue and engenders numerous adverse effects to citizens.

On the other hand, it is undeniable that contraband generates short term, albeit immoral and illegal, benefits  - sometimes with immense returns. The major preoccupation of customs administrations the world over is to prevent, fight and control contraband goods by all legitimate means available.

Ethiopia neighbours a country with a long border devoid of an effective, organized, central government. As such, it finds itself in a particularly difficult situation when it comes to curbing the influx of contraband goods in and out of the country.

In the Ethiopian context, contraband goods are introduced into or out of the national customs territory primarily by means of  transport such as trucks, airplanes, trains and draught animals.

When Customs Proclamation 145/1955 was adopted by the Imperial Parliament, it was decided that all means of transport found conveying contraband goods shall be subject to seizure and forfeiture.

The forfeiture of the goods and the means of transport may be ordered by a competent court through full compliance with the due process of law after the owner is found guilty and convicted of violating the relevant provisions of customs law for transporting the contraband goods. This is because, no one may be denied of his property rights under a constitution except upon a judgment by court of law.

In 1997, when parliament discussed the draft bill for the Re-establishment and Modernization of the Customs Authority Proclamation, the provision of the bill that provided for the forfeiture of the means of transport came under fire. Members of parliament insisted that it was completely inappropriate for the Customs Authority to be allowed to confiscate the means of transport.

"Is this ridiculous bill meant to demand  the confiscation of an airplane or train?" most MPs questioned with exceptional wonder.

As a result, the bill had to be adopted as a law with an absurd provision under Article 64 (4) which provided that the means of transport is not subject to confiscation notwithstanding the conviction of the owner accused of transporting the contraband goods.

This weird formulation of the defunct customs proclamation was later modified by an amendment, consistent with the Convention on Simplification and Harmonization of Customs Procedures to allow confiscation where the owner is convicted for transporting the contraband goods with his vehicle, draught animal or other personal conveyance.

Where the owner is not found guilty of transporting the contraband goods, the amended customs proclamation put in no uncertain terms, that the means of transport shall be released with no precondition whatsoever.

The new customs proclamation - though it upheld most principles on forfeiture of the means of transport for contraband goods if the owner is convicted for such a violation - nevertheless marked a complete departure from any modern or even ancient legal principles known to this writer.

"…where the owner of the means of transport proves that the offence is committed without his knowledge or consent," provides Article 109(2) of the customs Proclamation 622/2009,” the means of transport shall be returned to him upon being penalized with a fine from 10,000 up to 50,000 Br." 

According to this provision of the new customs proclamation, the owner of a means of transport, who is not found guilty; or in other words, the owner of a means of transport seized by the customs officers for carrying contraband goods without his knowledge or consent, may have the means of transport released only after she he is fined for his innocence.

Put otherwise, an innocent owner whose commercial bus or truck is seized for carrying contraband goods by one or more passengers or by his driver can demand the release of his/her vehicle. where upon customs may then discharge the means of transport seized only after the owner paid a fine ranging from a minimum of 10,000 up to 50,000 Br as the case may be. In effect, the new customs proclamation introduced a very strange and awkward legal principle perhaps not known in all civilized states and not even in the Bible of old.

According to the Bible, "… he who knows much shall be punished much, he who knows little shall be punished little." This maxim however, never implies that an innocent person may be punished at all. "No one can be punished for a crime," also provides the current criminal code of Ethiopia under article 57(1), "unless he has been found guilty under the law."   

This writer desperately tried to confirm whether such a law exists in any other modern legal system. However, he could not succeed in corroborating that such a law  anywhere.

Attempts were also made to find out whether Ethiopia's ancient and medieval laws, if any, may have helped in drafting such a rule. And again, much to the frustration of this writer, neither the 1930 Ethiopian penal code nor the Fetha Negest allow the punishment of an innocent person who is not convicted of guilt in any offence charged.

The Ethiopian Revenue and Customs Authority (ERCA) or any other person may argue that this draconian law is necessary to effectively combat and "create popular mobilization for collective responsibility," in a campaign against breach of customs laws.

This, however, is an unlawful and unacceptable burden on law- abiding citizens which rewards criminality at the expense of legality. It may tempt innocent persons to weigh the costs and benefits of getting involved in contraband acts. Where such an act is proven to be profitable it could push citizens to join the ranks of offenders.

And why not? They risk punishment even if they do not consciously participate.  So, why not at least try to make some profit out of the situation by consciously selling their services?

Finally, how would this preposterous law apply to owners of transport and particularly those engaged in the commercial transport of passengers and freight? Obviously, any person or business organization that is an owner of a means of transport would have to create a special budget title in their accounts for deviant conducts of its drivers or any of its passengers.

In the short run, a fine imposed on the multitude of innocent   transportion owner will soon start to generate what the ERCA may not collect from such sources of revenue, such as stamp duty.

Citizens or business organizations must generate income from legitimate occupations and it is absolutely proper for any state to collect taxes and duties from such income. It is also acceptable to collect revenue from the fines of convicted criminals. 

Collection of taxes from immoral and illegal acts is, however, against the very principle of public finance. It is also objectionable morally and legally to punish innocent persons while collecting fines for the state coffers.

Therefore, this law should either have been removed, as suggested when the bill was tabled for public discussion in the parliament, or the ERCA must publicly announce that this rule is not  enforceable, pending its amendment, and that no employee of the authority will exercise this power.

The latter solution appears to be dangerous and may have a serious and negative impact on the rule of law. Some may even argue that, "a good citizen must respect even a bad law." Nevertheless, one should also recall the principle that it is better for several criminals to flee than an innocent person to be detained.