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Grass-roots Justice in Ethiopia

 | 
Alula Pankhurst
, 
Getachew Assefa

Preface

Texte intégral

1Much of the justice that is delivered in Ethiopia is provided at a very local level using Customary Dispute Resolution (CDR) institutions and mechanisms. The studies in this book have shown that CDR systems are vibrant and prevalent throughout the country at a local level and are the dominant justice systems in the peripheral and pastoralist areas. The situation differs somewhat in urban areas where the influence of the formal justice system can be felt most strongly. But even in urban areas such as the capital city Addis Ababa, CDR systems still operate and perform an important function in the community. However, the role they play is often not understood and recognised.

2The past and present governments of Ethiopia have undertaken major reforms of the whole justice system in the country, with the goal of modernizing the legal system. The focus has been on improving the functioning of the formal system and its objective can be seen as making the formal system the prevalent and dominant justice system in the country. However, there is a great deal of distance to travel in achieving those goals, and the scope for accommodating CDR institutions and collaboration between the formal and customary systems while protecting individual human rights and those of women, children and minorities deserves further consideration.

3It is believed that this study can make a positive contribution to the process of reforming the justice system. By demonstrating the reality that CDR systems carry out valuable and important work in the justice sector in the country, the studies point to the importance of paying attention to and learning from customary systems. Ethiopia has the potential to develop a unique legal system that reflects its distinctive cultural heritage, meets the needs of its people and befits a country that is fully engaged in world affairs. This potential is more likely to be actualised if the country takes steps to ensure that what is best about existing CDR systems is not lost but preserved, maintained and incorporated as integral to Ethiopian justice.

4The context of decentralisation from the Federal State to the Regional States and recently to the wereda level provides an unparalleled opportunity for fostering a genuine dialogue between federal, regional, wereda and community justice institutions. This juncture offers a rare potential for bridging the disconnect between the national and the local levels and enhancing mutual cooperation. The formal justice system can recognise customary institutions and benefit from their support in reducing caseloads, whereas the customary systems can be made aware of national and international norms and be assisted to reform and adapt to the contemporary world.

Research design and process

5The studies incorporated in this book were sponsored by the Embassy of France at the request of the Ethiopian Ministry of Justice. The research stages were designed and supervised by a team of lawyers and a social anthropologist (the Steering Committee) working under the auspices of the Ministry of Justice and organized by the French Centre of Ethiopian Studies. Close links were established with researchers at Addis Ababa University and the Civil Service College.

6The objective of the research was to provide a survey of CDR systems currently operating in Ethiopia, with a view to recommending whether and if so, how CDR systems might be integrated with or linked to formal systems. The goal of the research was to contribute to the current efforts to reform the justice system so that it may improve the services provided to the community.

7The Steering Committee developed a structure for conducting the research, recruited the researchers, and provided them with a detailed checklist of questions and formats for oral and written reporting. Teams of two researchers from complementary disciplines, one student from anthropology and the other from law went together to each of the Regional States of Ethiopia. Two teams were formed in Addis Ababa given a particular interest in commercial law in the Mercato area. Due to security problems, Gambella Region was initially excluded. However, Dereje Feyissa, a social anthropologist who had worked in the area on related topics, was able to cover the issues raised and wrote a chapter on the Region which has been included in the book.

8The research was carried out between February and March 2004 (except the Gambella study which was carried out in May and June) in two phases of one week to ten days each with a review workshop in between. The first phase sought to provide an overview of the dispute resolution mechanisms/institutions within each region, mapping the types and basic characteristics. Prior to embarking on the first phase, the student researchers were involved in a training workshop in February 2004 during which their assignments and the research methodology were explained and discussed. After the conclusion of the first phase, the researchers were asked to present their findings at a one-day workshop held on March 6, 2004. The purpose of this workshop was to assess the results and assist the researchers in selecting an area of concentration for the second phase of their research. At this point the work of one of the anthropology students working in Addis Ababa was deemed by the steering committee to be inadequate and a substitute researcher was sought and carried out the subsequent work. The second phase focused attention upon a selected dispute resolution institution in a specific locality within each region. For this phase, more detailed research questions and a reporting format were designed and provided to the researchers. At the conclusion of the second phase the researchers presented their findings at a workshop held on April 3, 2004.

9The Steering Committee held numerous meetings to review the findings, comment on the conclusions on the basis of their prior experience and expertise and provide insights into areas that were not fully or adequately covered in the research reports. The Steering Committee went through the recommendations to assess their validity and propose relevant options and suggestions drawn from the individual studies and adapted them to reflect the situation in all the regions and in terms of the federal context.

10The chapters included in the book are reduced and edited versions of research reports written jointly by the anthropology and law students who co-wrote the individual reports, except for the report on Gambella which was written by an experienced anthropologist. In the case of Addis Ababa, the Mercato study was carried out jointly by the anthropology and law students, whereas the other team of two researchers wrote separate reports. The initial anthropology oral report lacked substance so a new study was carried out by another researcher which has been included. The law student’s report focused on the Social Courts which are established by the state justice system and are therefore more formal than most of the customary institutions considered in this study and was therefore not included in the book. All the reports were considerably reduced for publication, omitting general sections, objectives, methodology etc., and were edited to avoid repetitions and inconsistencies and improve the presentation. The views expressed are those of the authors and do not necessarily reflect those of the steering committee, the editors or the sponsoring organisations.

Choice and definition of terms: ADR, IDR or CDR?

11A number of expressions may be considered to characterise the subject matter with which this project is concerned: Alternative Dispute Resolution (ADR), Informal Dispute Resolution (IDR), Customary Dispute Resolution (CDR). Each of these terms highlights particular aspects of institutions under review, and each of these terms offers advantage and disadvantages, which should be taken into consideration.

Alternative Dispute Resolution (ADR)

12The project had been using as its working title for the subject matter ‘Alternative Dispute Resolution’ (ADR). This term has become widely recognised internationally on the assumption that in many parts of the world the formal, state-organised legal system is prevalent and predominant, and other forms of dispute resolution offer alternatives. The expression ADR has the merit of suggesting that such forms of justice are different from those established by the state and legal institutions, and that they provide other avenues or options for resolving conflicts.

13However, in the Ethiopian context in some regions of the country these forms of dispute resolution are fairly strong in contrast to the state justice system and they have important roles to play which may be thought to go beyond offering ‘alternative’ justice. In fact, in some regions they may be considered the ‘primary’ justice system.

Informal Dispute Resolution (IDR)

14One of the most salient features of the kinds of dispute resolution institutions considered in this study is the fact that they tend to be ‘informal’, that is to say that they are generally not formally recognised, tend to operate without written records, tend to vary from place to place and group to group and are often not organised into a clear hierarchical structure. The expression IDR has the merit of highlighting the distinction with the formal, state-organised and legally recognised layered structure and emphasises the flexible and informal nature of the institutions under consideration.

15However, in the Ethiopian context, some of these institutions have highly elaborate rules, many have been gradually become more formal, and some collaborate at least informally with the legal or state authorities, and in a few states recieve some recognition or even support. Some CDR institutions are also organized like the formal justice system with three tiers: first instance, appeal and cassation. The term informal also characterises such institutions primarily in negative terms as lacking formality and may not convey the importance that they hold for the people who make use of them.

Customary Dispute Resolution (CDR)

16Finally, it is necessary to explain and justify the choice of the term CDR. The subject matter of this book could have as well been called Alternative Dispute Resolution or Informal Dispute Resolution Systems. One of the clearest distinctions of the institutions under consideration is that they operate on the basis of local customary or cultural norms and rules, as opposed to those set out from above from the state or internationally. The expression CDR has the merit of recognising the customary basis of such institutions and that they are culturally conditioned. The term is also used in some of the legal statutes in contrast with the formal state legal system and therefore has the advantage of already being used in the Ethiopian context. The term· CDR is also preferable to ‘Traditional Dispute Resolution’ (TDR), as the latter may give more of an impression that such institutions are rigid and unchanging.

17However, the term CDR may still suggest that such institutions are fixed rather than dynamic and may not necessarily convey the religious basis of some such institutions. Legal documents sometimes use two terms ‘customary and religious courts’ together in one phrase. Although many cultural and customary dispute resolution institutions do have some basis in religious beliefs, the project has not been directly concerned with institutions, notably the Shari’a courts, which are primarily religious in nature and have some formal recognition. However, some of the findings and conclusions of this project may also be relevant to Religious Dispute Resolution (RDR) institutions.

18In conclusion, it is believed that although terms such as Alternative Dispute Resolution (ADR), Informal Dispute Resolution (IDR), Traditional Dispute Resolution (TDR), and Religious Dispute Resolution (RDR) may characterise certain aspects of the institutions under consideration, the most appropriate and useful term in the Ethiopian context is Customary Dispute Resolution (CDR). Hence all the systems included in this book are referred to as CDR institutions or mechanisms.

Structure of the book

19The book is composed of fourteen chapters. The introductory chapter by the editors reviews state and customary law in Ethiopia, provides an overview of CDR in the different regions of Ethiopia and draws general conclusions regarding CDR institutions. This is followed by a background chapter on the relationships between state and customary law in Africa. The main part of the book is composed of eleven case study chapters, one relating to each of the Regions, and two case studies on Addis Ababa, one of which focuses on commercial disputes in the Mercato area and the other on civil and criminal cases in Yeka Sub-City area. The concluding chapter by the editors discusses the major characteristics, advantages and limitations of CDR and its relations with the formal justice system. The recommendations section considers a range of options for greater recognition of CDR and mutual collaboration in view of establishing a pluralist legal system.

© Centre français des études éthiopiennes, 2008

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