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Grass-roots Justice in Ethiopia

 | 
Alula Pankhurst
, 
Getachew Assefa

Understanding Customary Dispute Resolution in Ethiopia

Alula Pankhurst et Getachew Assefa

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1In his article on customary law in the Encyclopaedia Aethiopica the late legal historian Aberra Jembere noted that customary law is ‘made by the people and not the state’ and derives its legitimacy ‘from participation and consensus of the community and its recognition of the same by the government’ (Aberra 2003:839). Customary dispute resolution is paradoxically both general and specific in Ethiopia. On the one hand it is widespread and found spatially almost ubiquitously throughout the country and has worked historically in the absence of the state justice system as well as where it exists in the past and in the present. On the other hand it is localised and the constituency and jurisdiction of CDR institutions are generally limited to particular localities within ethnic groups. CDR institutions often function at the community level, based on trust among people who generally know each other personally in face-to-face contexts where resolution of conflict is crucial for day-to-day coexistence.

2This introductory chapter starts by reviewing state and customary law in Ethiopia. The second part provides an overview of customary dispute resolution in the different regions of Ethiopia, outlining the sources, the CDR institutions and judicial procedures by region and lastly considers interethnic systems. In the final part we seek to draw some conclusions about the relationship between social and legal structures, principles of organisation in CDR institutions, key concepts and culture areas, judicial processes in CDR, types of disputes with a focus on homicide, inclusion and exclusion relating to gerontocratic power, gender, age and marginalised status, and transformations of CDR institutions.

State and Customary Law in Ethiopia

3The relationship between State and Customary law can be divided into three phases: (1) The imperial sacred tradition in the pre-modern era, (2) the modern secular imported nation-building period under Emperor Haile Sellassie and the Derg, and (3) the post-modern ethnic federalist period under the EPRDF.

4The first phase during the imperial period from the 15th century till the early 20th century can be characterised within the realm of the Empire by the imperial reliance on reference to indigenised translated texts based on ‘imported’ biblical and Roman-Byzantine traditions with a strongly sacred flavour. There was only nominal and limited reference to the importance or precedence of local customary law in imperial edicts and much of the country remained beyond the confines of the monarchies, administered in practice in legal terms through customary law.

5The second phase began with Emperor Haile Sellassie’s modernising drive from the early 1930s, pursued more vigorously after the Italian occupation especially in the mid 1950s and 1960s with the development of legal codes. Here again much of the legislative drive and influence, signalled most clearly in the assigning of the drafting work to foreign experts, was external to the Ethiopian context. Customary law was repealed by the Civil Code which included only token references to limited areas where customary rules could be applied. The second modernist nation-building phase ended with a socialist twist under the Derg, which continued the centralist project with very minor concessions to religious and ethnic interests as expressed in the 1987 Constitution.

6The third post-modern ethnic federalist phase began with the defeat of the Derg in 1991 and is most clearly expressed in the 1995 Constitution which represented a radical break from the centralist unitary past and was exceptional in the extent to which ethnicity was proposed as the organising principle. Logically this premise implied a greater recognition of customary values. In fact customary and religious laws and courts were provided at least some constitutional space in family and personal law. However, the translation of constitutional provisions into practice to date has not provided clear legal recognition of customary institutions and the lack of constitutional mention of their potential role in criminal and other legal areas restricts their mandate de facto despite their clear and vigorous involvement in all legal domains, and the strong informal reliance of the formal judicial system on them as testified in the chapters in this book.

7We conclude by arguing that the role of customary dispute resolution needs revisiting and suggest that the recognition of the mandate of credible customary institutions and their relationships and interactions with the formal judicial structure should be reconsidered to enhance local level justice delivery, while ensuring the protection of human rights, notably those of women, children and minorities.

1) The imperial sacred tradition in the pre-modern era

8Ethiopia is believed to have existed as a polity, shrinking and/or expanding in shape and power, for more than two thousand years. Its long history of existence was for the most part dominated by a history of traditional mode of administration and social relationships. Modern bureaucracy started to emerge in Ethiopia during the early 20th century under Emperor Menelik II (r. 1889-1913). This coincides with the time in which the present Ethiopia was also consolidated under the same ruler through expansion and conquest (Bahru 1991).

9Ethiopia had its first written Constitution in 1931 under Emperor Haile Sellassie I (r. 1930-1974). Before this Constitution, customary law and some legal instruments governed the socio-political life of the people. The first attempts at using written codified law date back to the 14th and 15th centuries. Ser’ate Mengist, the ‘Law of the Monarchy’ was a short collection containing altogether twenty-one articles of law, which appears to record a continuous legislative activity which started in the 14th century, with King Amde Tsion (r. 1314-1344) and culminated in the 17th with King Fasiledes (r. 1632-1667). This Law mostly deals with religious affairs, but also contains texts on civil and penal matters, scattered among attacks against heresies of the time (Vanderlinden/1966). The first codified law of Ethiopia was Fewuse Menfessawi (‘the Spiritual Remedy’), according to Aberra (1988a). Emperor Za’ra Ya’eqob (r. 1434-1468) caused the compilation of this law, which had 24 articles through the Ethiopian church scholars from the principles of the Old Testament of the Bible.

  • 2 Notable early laws were the 1930 Criminal Code which formally replaced the Fitha Negest in the crim (...)

10Later during the same Emperor’s rule, a more elaborate law that had both secular and religious rules was ‘imported’ from abroad and made to replace Fewuse Menfessawi. This law was the Fitha Negest (‘Justice of the Kings’). The Fitha Negest was introduced into Ethiopia from the Coptic Church of Alexandria and was translated from Arabic into Ge’ez. It comprised two parts, the first based on biblical texts, and the second mainly on Roman-Byzantine laws (Paulos 2005:534). /The Fitha Negest was used as a law in both criminal and civil matters from the 16th century under the kings / and was mentioned in chronicles of at least eight emperors from Sersa Dingil who reigned in the late 16th century until Haile Sellassie (Girma 2005:274-9). The first Penal Code of 1930 stated that it was a ‘revision’ of the Fitha Negest updated to meet the needs of present times and the revision in 1957 and the Civil Code of 1960 also refer to it creating an impression of continued legitimacy (Paulos 2005:535).2

11The Fitha Negest and other written legal instruments were used in areas under the monarchical administration and therefore covered limited areas of the country among Christians, and people living in other areas had their cases adjudicated and disputes settled through customary institutions (Krzeczunowicz/1965). This tendency as shall be argued below, has continued to the present time, particularly in the borderlands.

12Much of the pre-modern legal tradition used by the monarchs was thus foreign in inspiration. However, Aberra noted (2003:839) that the emperors on assuming power, ‘stated in the preamble of their first decree that the custom of each and every locality should be respected and that cases were to be adjudicated according to the customary law of the locality’. He also suggests that at times customary laws, if found useful, could receive the status of law and be accepted as atse sir’at, ‘the law of the emperors’, which he translates as ‘presidential jurisprudence’ used as precedent for future cases.

2) Modern secular nation-building laws under Emperor Haile Sellassie and the Derg

13Ethiopia embarked on a politically motivated modernization of its laws with the coming to power of Emperor Haile Selassie I, and the drafting of the first Constitution of 1931 and more emphatically as of 1955 when the Constitution was revised. The 1931 Constitution was drafted by Bejirond Tekle Hawaryat Tekle Mariam, and was influenced by the Japanese Meiji Constitution of 1889, (which in turn was influenced by German Constitutions) and the drafter was said to have been provided by the Emperor ‘English’, German, Italian and Japanese constitutions (Bahru 2002b:62). The 1955 ‘revised’ Constitution was influence by Anglo-American constitutional traditions, the Westminster Model and the 1948 United Nations Declaration of Human rights, but also further consolidated imperial powers including as head of the chilot, the imperial court (Scholler 2003:788).

  • 3 The codes were the Penal Code (1957), Civil Code (1960), Commercial Code (1960), Maritime Code (196 (...)

14From 1957-1965, Ethiopia gave itself six modern legal codes in a massive codification project that aimed at ‘modernizing’ the legal system.3 These laws have a predominantly western flavour, and seem to bear little relation to the traditional patterns of life prevailing in the country (Fisher 1971). The chief drafter of the Civil Code of 1960, René David, borrowed from continental civil codes notably the French, Swiss, Italian and Greek, though he also consulted Egyptian, Lebanese, and German codes, and for some provisions Portuguese, Turkish, Iranian and Soviet codes. Though some attempt was made to incorporate certain principles of customary law into the enacted modern codes, they aimed at being comprehensive and governing all the legal relations in the country without leaving any space for the widely-practiced customary mode of dispute settlement. This state policy was clear notably in the Civil Code, which in its repeals provision, states in article 3347:

Unless otherwise expressly provided, all rules whether written or customary previously in force concerning matters provided for in this code shall be replaced by this code and are hereby repealed. (Emphasis added).

15It is striking that the repeal by the Civil Code did not aim only at those customary rules that were inconsistent with the provisions of the Code, but rather at all 4 customary rules concerning matters provided for in the Code, whether they are consistent with the Civil Code or not. Nor did the Code allow some grace period until the Code could be disseminated – both physically and in content – but rather its immediate enforcement was sanctioned, superseding the customary laws extant in the various groups of the Ethiopian society.

  • 4 See Art 567, 573, 577, 580, 606, 624, and 807-8 of the Civil Code.
  • 5 See Art 1713 of the Civil Code.
  • 6 See Art. 1132, 1168, 1171, 1489 and 1496 of the Civil Code.
  • 7 See Art 2116 of the Civil Code.

16The drafters of the Code in fact made an attempt to include some elements of the customary rules into the Civil Code. Some have claimed that the ‘general’ custom of the land (its ‘common law’) in areas of civil matters has been more or less included in the Ethiopian Civil Code (Krzeczunowicz 1966). There are in fact certain examples of inclusion of the pre-existing customs of the Ethiopian peoples in, for example, family matters (concerning betrothal, moral prejudice, kinds of marriage, and intestate inheritance),4 contracts,5 property law (about the principle of usucaption, right of way, and rural servitude),6 and torts (in fixing the amount of fair compensation)7 (Aberra 2003:840, Scholler 2003:750).

17However, these cannot be taken as a fair and realistic treatment of the customary law in the country. In the first place, the examples of incorporation cited above could not possibly represent the customary laws of all the ethno-national groups of the country. Secondly, the so called incorporation of the general custom was made in rather limited areas and do not match the body of customary laws with a veritable mass of rules in all areas of the civil and criminal law. Thirdly, the modern legal system of Ethiopia did not give any place for the customary institutions that exist in various sections of the society. All courts of judicature, therefore, were restricted to be the ones that would be established by the State to apply the State formulated and codified laws.

18The political motives and justifications for this usurping of customary law was primarily the belief that providing a uniform and modern legal regime would be necessary for the socio-economic development of the country, and a precondition for effective nation-building. However, half a century after the enactment of the modern codes and the establishment of a modern judicial system, neither was the much sought legal uniformity achieved nor were the modern codes able to successfully supplant customary laws and institutions of dispute settlement. Fifty years after the enactment of the Penal Code and the Civil Code which aimed at providing a comprehensive body of law in the criminal and civil matters, respectively, customary laws and institutions are still active and vibrant, as the case studies presented in this book amply testify. This may indicate that the approaches taken by the modernizers of the Ethiopian law might have been wrong, or at least require rethinking and revision.

19The Derg period introduced a socialist orientation reflected in the 1987 Constitution of the People’s Democratic Republic of Ethiopia (PDRE), drafted by the Institute for the Study of Ethiopian Nationalities in 1986. It was modelled along the lines of Marxist-Leninist constitutions, notably those of the Soviet Union, Romania, and Albania (Scholler 2003:789). Although there was recognition that the Ethiopian state has ‘from the beginning been a multi-national state’, the constitution is centralist and the PDRE is viewed as a unitary state, which ‘shall ensure the equality of nationalities, combat chauvinism and narrow nationalism and advance the unity of the Working People of all nationalities’ (Article 2), with only token concessions to the idea of autonomy (Clapham 1988:92-5). Despite the Derg’s attempt to instil secular values, the only significant change from the draft to the final text which was debated prior to approval by referendum was a minor concession to religious interests in the removal of the monogamy clause (Clapham 1988: 95, Pankhurst 1994).

3) The post-modern ethnic federalist period under the EPRDF

20After the defeat of the Derg by the EPRDF in 1991 the new approach based on ethnic federalism was both radical and pioneering (Turton 2006:1). The principle of self-determination for federated regional units was a departure from the formerly highly centralised and unitary state which went further than any African state and took ethnicity as its fundamental organising principle to a greater extent than ‘almost any state worldwide’ (Clapham 2002:27).

21The 1995 Constitution of the Federal Democratic Republic of Ethiopia approved through a referendum reflects these changes in direction which have a direct bearing on customary dispute resolution and its relation to the formal justice system. The Constitution, itself a product of the shift in paradigms of approaches to the complex nature of the Ethiopian society and its problems, has allowed a greater space for customary and religious laws and courts extant in the country. The 1995 Constitution embodied a clear recognition of the jurisdiction of customary and religious laws and courts in family and personal matters among the disputants that consent to such a jurisdiction:

22Article 34(5):

This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious or customary laws, with the consent of the parties to the dispute. Particulars shall be determined by law.

23Art. 78(5):

Pursuant to Sub-Article 5 of Article 34 the House of Peoples’ Representatives and State Councils can establish or give official recognition to religious and customary courts. Religious and customary courts that had state recognition and functioned prior to the adoption of the Constitution shall be organized on the basis of recognition accorded to them by this Constitution.

24These articles therefore imply that at least in those areas mentioned, the CDR systems can exist separately from, and parallel with the state-sponsored legal-judicial system. In effect family law and the law of succession are therefore now potentially within the competence of the members states (Article 55) (Scholler 2003:751).

25However, there is the danger that customary institutions that reflect societal structures and represent dominant interests may pass judgements that are against the interests of women, children and minorities. Although the Constitution’s article 34(4) specifies that disputes relating to personal and family matters can be adjudicated according to religious or customary laws ‘with the consent of the parties to the dispute, as Meaza points out (2007:108): ‘there are various social and economic factors that push women litigants to submit to customary and religious courts. In the rare event that women assert their right to submit their case to secular courts may find religious courts not allowing them to exercise these rights’.

26There are also serious risks for individual human rights, notably of women, children and minorities that need to be taken into consideration and protected through federal as well as state legislation and legal provisions. The advocacy work and campaign of the Ethiopian Women’s Lawyers Association achieved tremendous progress in this respect in obtaining the proclamation of the Revised Family Code in 2000 (FDRE 2000) and the Penal Code which was renamed the Criminal Code in 2004. This removed the discrimination between men and women evident in the 1960 Civil Code which had differential marriage ages for men and women, designated the husband as the household head with the right to chose common residence and manage common property, disallowed divorce until fault was proved, and did not recognize common law marriages. Likewise the Penal Code of 1957 criminalised abortion, did not recognise or criminalise domestic violence, or female genital mutilation, and provided an inadequate penalty for rape. However, four Regions, notably Afar and Somali, have still to adopt their family laws (Meaza 2007:100-2).

27Regarding other civil matters than family and personal, the Constitution does not specifically prohibit the operation of CDR systems. Although this could potentially provide the space for the involvement of CDR systems in other legal domains, the fact that CDR is mentioned in the contexts of family and personal law without reference to other legal areas creates a pervasive impression that CDR jurisdiction is or should be restricted to family and personal law. Under the system of division of the legislative competence among federal and state governments in Ethiopia, civil matters (other than those specifically mentioned as federal under Art. 55 of the Constitution) fall under state jurisdiction. One could therefore imagine the possibility of States recognizing certain jurisdiction for the CDR systems when they enact laws on those civil matters.

28With regard to criminal matters, however, the old, de jure state of affairs still continues under the new constitutional regime: the uniformity of criminal law and jurisdiction. CDR systems are not allowed any formal space of operation in the criminal law areas in spite of the fact that they are heavily involved in criminal matters. Indeed the case material from this book amply demonstrates that de facto CDR institutions are involved in criminal cases in many of the States, particularly, though not exclusively, in the border regions. Moreover, the formal justice system often relies on CDR institutions to solve less serious cases, to bring criminals to courts, to ensure that verdicts are upheld and to achieve reconciliation after cases are concluded. Therefore, the customary institutions and legal processes would need to gain legal recognition of their role in the criminal area to collaborate effectively with the state judicial system.

29In general the whole question of the mandate of customary dispute resolution institutions and their relations and interactions with the formal justice system deserves careful reconsideration to allow for greater recognition while ensuring that human rights abuses are avoided and the rights of women, children and minorities are respected. We are not as such proposing that all customary dispute resolution institutions are worthy of legal recognition, nor are we arguing that customary institutions do not have weaknesses - indeed many of these have been highlighted in the chapters of this book, and are taken up in our conclusion. However, we believe there is a strong case for acknowledging the value of certain customary institutions, and the rights of people to make use of them in legally recognised ways. CDR systems can contribute through partnership and collaboration with the formal system to providing culturally acceptable and meaningful justice.

30In short, we believe that the Constitutional space for CDR is still limited and even the space that has been accorded has not been followed through with practical provisions and the creation of an enabling environment for a fruitful cooperation, alliance and partnership in the legal sphere between state and civil institutions. We return to this topic and the questions raised by the potential integration of CDR with the formal justice system in our conclusion.

Customary Dispute Resolution in the Regions of Ethiopia

31The following section considers CDR in the different regions of Ethiopia (presented in alphabetical order), provides an outline of the major sources for each region, reviews the literature and presents a brief discussion of the types of institutions that are found. The discussion is based on the current regional division of states, though in some cases historical data refers to earlier administrative entities.

Afar Region8

  • 8 We are grateful to François Piguet who drafted this section based on a report by Karim Rahem (2002) (...)

32Just as butter stays at the surface without diluting, so justice ends up triumphing

33Better say what you want during the meeting and then accept the assembly’s decision

34It is the conclusion that matters and not all that was said during the session

35Afar sayings, Aramis Houmed Souleh (n.d.)

36The Afar live in Northeast Ethiopia, Djibouti and coastal Eritrea. In Ethiopia their territory covering over 100,000 sq. kilometres is largely in the Awash Valley and the Danakil depression. Their livelihood has been based on transhumant pastoralism, extraction of salt and trade between the Red Sea and the highlands. Their social organisation is based on a strong patrilineal clan system with confederations, above which sultanates developed between the 17th and the 19th century (I. Lewis 1955, Morin 2003:117). The Afar population was just under one million in the 1994 Census, and was projected to reach about 1.5 million by 2008.

37Sources on CDR in Afar include the PhD and MA theses in social anthropology by Kelemework (2000,2006) focusing on the Ab’ala Afar, a senior essay in political science by Helen (2005) and a paper on Afar CDR by Jamaluddin Redo (1973), as well as sections in books on Afar notably by Lewis (1955) and Getachew (2000). Fitawrari Yasin Mohameda devoted the last decade and half of his life to recording the memories of Afar elders on customary law later published by Jamaluddin Redo. Notes and reports relating to Afar customary law have been produced by Karim Rahem (2002) and Aramis Houmed Soulé (1991; n.d).

Judicial structures and institutions for conflict resolution

  • 9 The proportion of cases dealt with through CDR was estimated at 90 percent by Ali Hussen, the Head (...)

38There are four dispute resolution institutions in Afar. (1) the customary law (mada’a) carried out during special meetings, known as mablo, (2) especially in the past the Sultan, Amoyta, played a crucial role (3) the Islamic law enacted by the Shari’a Court, and (4) the codified law of formal ‘modern’ courts. Currently customary law is involved in resolving the vast majority of civil and criminal cases.9 In the urban areas, people use mostly Shari’a Court to resolve issues related to marriage, divorce and inheritance. Non-Afar residents in the Afar Region tend to appeal to the formal courts to resolve disputes that arise between themselves, or between Afar and non-Afar. However, Afar customary law has a separate term for justice with non-Afar (adanle), and there are inter-ethnic institutions notably the gereb with the Tigray.

39Criminal acts are divided into five types: crime on life, body, property, adultery and insults, and responsibility rests with the clan and tribe (Jamaluddin 1973). Minor disputes are resolved by elders and sub-clans leaders, the Aba Kedo and more serious ones are taken to the clan leaders, the makaban. The more serious cases rely on customary law (mada’a). The law is called afare when it concerns disputes within the Afar and adanle for those with outsiders. This orally-transmitted law is very precise and provides specific scales for compensation for various degrees of injury and offences and assumes that crime is the collective responsibility of the patrilineal clan (kedo), which can lead to reprisals unless compensation is paid (Morin 2003:116). Certain lineages are highly reputed for their knowledge of the mada’a. In the event of major litigation or of a previously unheard-of-case or when the various clan leaders have been unable to impose their judgement on the litigants, an appeal is made to the mada’a abba (‘the father of the law’), chosen and backed by the elders for his knowledge of the law. When appeal is made to him in an unheard-of-case, he gathers an assembly, the malla, which functions as a legal body to pronounce a new judgement, which in turn will be incorporated into the mada’a.

40There are a range of terms for various offences, and specific compensation rules; payments for murdered female victims are half those for men. In many cases the amount is negotiable and reduced, so for instance in homicide cases the customary amount of 100 camels for a man and 50 for a woman is reduced and the amount paid may be less than half. In fact it seems that the number of 100 may be symbolic as it was already mentioned by travellers in the 19th century (I. Lewis 1955:166)

CDR Procedures

  • 10 The importance of witnesses and swearing arc evident in the following Afar proverbs: The pro-of of (...)

41When a dispute arises a session called maro is held under a tree on a specified date. The makaban, elders known for the dispute resolution skills, the disputants, witnesses and observers sit in a circle. The makaban starts by requesting the disputants to bring relatives as habi, who guarantee the good behaviour and acceptance of the decision. The makaban gives the first chance to the plaintiff to explain his case personally or through a representative usually chief of his clan. The defendant or his representative are then given the chance to explain their version. The makaban may give a second chance for both parties to counter accusations, and witnesses may be called. In the absence of witnesses and if the defendant denied the allegation, the makaban may adjourn the session to give a chance for family and clan members to persuade the defendant to admit the allegation; otherwise he is asked to take an oath by putting his hand on the Qor’an, and may be set free.10 If the defendant admits the allegation the proceedings may be summarised by any volunteer and the makaban and elders discuss among themselves and agree on a decision. Finally, the makaban pronounce the decision orally in public and the maro is closed by an elder’s blessing. In inter-clan disputes the makaban of one of the disputant clans bring this case to a makaban of a neutral clan or the sultan (Amoyta) to prevent revenge. The family of the offender and his clan members guarantee the implementation of the makaban’s decision and often contribute to compensation payments. The clan may ostracize a member if he refuses to respect the decision. In inter-clan disputes the execution of the decision is guaranteed by fear of further killing, revealing that social sanctions are a key enforcement mechanism.

42In homicide cases the murderer must leave the area and appeal to other groups to act as go-betweens lest the victims take vengeance. A reconciliation session is held during which, as a precondition, a cow or camel is sacrificed before which the victim should not be buried. The offender’s group are disarmed and wear garments loosely and follow the makaban clan leader in single file past the seated group of the victim’s clan repeating ‘forgive and forget’ after which the makaban pronounces the Fatiha, the first verse of the Qor’an, to seal the case.

43Minor intra-clan cases are heard by sub-clan chiefs called kedo aba. A dissatisfied disputant can bring the case to the makaban in appeal. Inter-clan disputes, generally over grazing or homicide are brought to makaban of a neutral clan, who resolve the issue by the help of elders selected from different clans. A dissatisfied clan may take its case to the sultan, whose decision of is final.

Inter-ethnic conflict resolution

44There have been inter-ethnic conflicts and resolution mechanisms between Afar, Issa, Tigrayans, and Argobba. These mechanisms are known as xinto among the Afar, édiblé among the Issa, gereb among the Tigrayans, aborogé among the Amhara, and arrara among the Oromo and were promoted by bond friendships known as qalla among the Afar, fuqur among the Tigrayans, and konissa among the Oromo (Kelemework 2006, Aramis n.d.) After a conflict, messengers requesting peace are either elderly women who are traditionally not subject to vengeance killings, or representatives of clans among the Afar that were not involved in the conflict, and among the Oromo the jarsoota araara, ‘elders of reconcilation’, religious leaders or the halekie, wealthy pastoralists who settle in border areas and have links with members of other ethnic groups and live in no-man’s land abandoned due to conflicts; in disputes with the Issa, Afar clan chiefs and elderly women (Ayalew 2001:179-81, Aramis, n.d.; Ahmed 1994). Inter-ethnic conflicts over land and homicide between Afar and Tigrayan may be resolved through the gereb institution (Assefa 1995, Kelemework 2006). Conflicts with Amhara, Oromo and Issa are sometimes resolved through CDR institutions and/or committees of mediators or arbitrators composed of elders and government officials from both sides. Kelemework (2002:883) notes that the involvement of the state can be observed in three phases: 1) after conflict escalates in restoring relative order to create an enabling environment for gereb proceedings, 2) providing logistical support for the Abo gereb to convene the assembly, and 3) in enforcing resolutions decided by the gereb. Reconciliation rituals between Afar and Karayyu involve the sacrifice of a bullock, and the conflicting parties shake hands through the pierced skin and swear to abstain from reprisals or further violence (Ayalew 2001, Aramis n.d.).

45To conclude, all the customary dispute resolution proceedings are public and Afar use CDR mechanisms to resolve criminal cases that ranges from insult to homicide and all types of civil cases without taking into account the amount of money the case involves. There are complex rules stipulating specific compensation payments for a wide range of offences. Afar CDR is accessible, cheap, and often timely, though inter-clan homicide cases may take many years. The Afar have developed inter-ethnic CDR institutions and mechanisms with most of the their neighbours notably the Tigrayans, the Karrayu, the Issa, the Argobba and Amhara.

Amhara Region

A king who wants reconciliation can use a peasant mediator but a peasant who does not want reconciliation can’t even be reconciled by a king
Amharic saying, Solomon (1992:60)

46Historically Amhara was a region of historic North-Central Ethiopia situated currently in Wello that came to prominence in the 13th century. Over time the area associated with speakers of Amharic came to include in addition to Wello, Begemdir, Gojjam, and Menz (Levine 2003:230-1). The current Amhara Region shares borders with Oromia, Afar, Beni-Shangul-Gumuz, and Tigray, and Sudan in the west. The Region comprises eleven zones including three special zones and had a population of almost 14 million in the 1994 census, estimated to reach 20 million in 2008.

47The sources on dispute resolution in Amhara include historical accounts particularly on land tenure disputes and resolutions in Begemder and Gojjam (Crummey 1982, 2005, Hoben 1973), an MA thesis in social anthropology mainly on family disputes and their resolutions (Yohannes 1998), various articles on dispute settlement in general (Solomon 1992, Aberra 1998), case studies in particular areas such as Gondar (Yohannes 1998), Wello (Pankhurst 2003c), North Shewa and Gojjam (Pankhurst 2006b), and as well as on specific institutions, notably the afersata (Carmichael 2003).

  • 11 Aberra notes that Esette-Ageba-Muget was used interchangeably with Tatayyaq to denote features of (...)

48In the imperial period litigation over land was considered almost a way of life (Levine 1965). In some areas, notably Gojjam, rist land was inherited by peasants ambilineally through either parent, more distant kin or wives. Litigation was in effect a means for the more powerful men to obtain greater shares by manipulating the ideology of inheritance from ancestors and obtaining enough support to introduce changes in the division of land to their advantage (Hoben 1973). In other areas the nobility had gult land rights to land including rights to tribute and rent (Crummey 2005). There were also land rights known as rim which were put out to tenants under rent arrangements and could be sold. Records of land grants, wills, sales, litigation settlement and reconciliation have survived in the marginalia and blank pages of church manuscripts from the 18th and 19th centuries particularly from Begemdir. About a third of these discussed by Crummey (1982) involved women, and disputes were sometimes resolved with reference to the Fitha Negest, the ‘Law of the Kings’, used since the 16th century based on a 13th century work of a Christian Egyptian jurist (Paulos 2005:534). In Wello a special form of litigation poetry called Iset-ageba developed using the Wax and Gold’ (Levine 1965) mode of overt and hidden meanings (Teferi 2000:185). The traditional litigation in Amhara became institutionalised in the mode of litigation in the court system known as teteyeq muggit,11 involving a highly sophisticated technique of interrogation and cross-examination, the use of up to eight different kinds of guarantors (was) and oral and documentary evidence, the laying of wagers or bets (wurrered metekel), the art of advocacy and challenge (wurd menzat or bela labelah), the giving of opinions and rendering of judgement with the possibility of appeal to higher courts (Aberra 1988).

Types of CDR institutions in Amhara Region

49Customary dispute settlement is common all over Amhara Region. Four forms of somewhat overlapping institutions may be distinguished: 1) informal elders’ moots, some of which have regional names and particularities, 2) Religious leaders, including Orthodox Christian, Muslim and local spiritual leaders, 3) community gatherings to find thieves and thief seeking experts, and 4) associations, notably funeral, migrant, socio-religious, and savings and credit associations, which can become involved in dispute settlement among members.

The shimagillé (elders)

50The most common form of dispute resolution throughout the region at a local community level involves elders known as shimagillé who play a key role in mediation. Indeed, as Solomon (1992b:55) notes the term shimagillé in standard Amharic dictionaries denotes as well as age ‘a peace-maker, reconciler and/or mediator’. Moreover, dispute resolution mediation is often termed shimgilinna a noun derived from the word for ‘elder’ which one might translate as ‘eldering’ (Pankhurst 1992b:73). If parties do not agree with the verdict they may take the case to the formal structure, in the past the chiqa shum the local government representative, or beyond that to the wereda court, then the awraja or even supreme court with increasing cost implications (Giday 2000).

51In some cases, as suggested in the case study in this book, regional institutions involving elders exist at a local level. Two principles can be used for the formation of elders’ groups. This can be either on the basis of of locality or kinship. The former is exemplified by the Yewenz lijoch or ‘Children of one river’ in Gojjam. The latter is exemplified by the Yezemed lijoch, or ‘Children of kin’ in North Wello, and yezemed dagna ‘judge from relatives’ in South Wello. In parts of South Wello the elders are referred to as Sheni, which comes from the Oromo term shan, meaning five and no doubt derives from the the Oromo institution of five elders involved in CDR mentioned by Areba and Berhanu in this book, although the number five is not necessarily adhered to (Pankhurst 2003b:71-3). The Amare Kuna in Southern Wello is an institution whereby an offender asks the Amare to negotiate a reconciliation with the family of the victim. The institution works at three levels: the village, the wereda and inter-wereda amare with the possibility of appeals.

  • 12 Three of the cases involved marital disputes. In one the wife threatened to divorce and ask for her (...)

52The most detailed case study of local level dispute resolution processes in Amhara regions was carried out in North Gondar over land, family and marital cases described in a master’s thesis in anthropology by Yohannes (1998). The study which was carried out in the Chihera area in six kebeles, focuses on irq, reconciliation.12 The shimagillé elders emphasise community values, repairing broken social relations, and cultural consensus. The elders consider any kind of dispute relying on the voluntary participation of the litigants.

Judicial procedure

53In the examples from Gondar, a case may be initiated by either litigant, elders, neighbours, friends or kin of either party. Elders work with reference to orally transmitted customary norms referred to as Yeabat ager hig ‘the law of the land of the fathers’. In terms of the procedure elders listen to both parties, and then dismiss them to discuss the case, investigate the evidence, and reach a consensus on a verdict. Some conflicts require kassa, compensation, and are resolved through irq, reconciliation, whereas others may simply require forgiveness which is referred to as Yiqir leIgziabher ‘forgiveness in the name of God’. Litigants may reject the verdict and seek to take the case to court. The shimgilinna is portrayed as more economical, time saving, open, flexible, and responsive to the needs of the conflicting parties and community, who are involved in the resolution process.

Religious institutions and leaders

54The role of religious leaders, Orthodox Christian, Muslim and customary in dispute resolution is very important in many parts of the Region. In many Orthodox Christian areas priests and especially Yenefs Abbat ‘the soul father’ or ‘father confessor’ — each family having one – play an important role and are solicited to resolve conflicts. An offender may seek forgiveness Yiqir leIgziabher or ‘forgiveness in the name of God’ by kneeling in front of the passing Ark of the Covenant on a holy day, or by going into a Church and ringing the bell at odd hours to call for reconciliation and ask the clergy to intervene (Solomon 1992:58-9, Donovan and Getachew 2003:519). Elders may also ask litigants to swear in the church.

55Muslim religious leaders are also known for their role in dispute resolution, particularly in the context of important pilgrimage sites, especially in Southern Wello. Despite attempts to replace customary with Islamic law, going back to the reign of Muhammad Ali Abba Jebo (r. 1771-85) (Hussein 2001:119-121), many such practices have continued to this day and the abbegar leaders of customary rituals play important roles in dispute settlement (Teferi 2000, Pankhurst 2001).

  • 13 From the Oromo Abba gar who are leaders of customary rituals in Wello (Hussein 2001:111).

56Traditional religious leaders and spirit mediums play a key role in dispute resolution in many parts of Amara Region. In south Wello the Abbegar13 are customary religious leaders who are also referred to as Dem adriq or ‘blood dryers’, highlighting their role in homicide cases. The Abbegars are often involved in dispute resolution, and have a rekebot literally ‘coffee table’ referring to their ‘court’ particularly in homicide cases and in finding out who a thief is (Pankhurst 2001a:100). The Abbegars are feared for their curses, and are involved in seeking out guilty persons through the belé institution described below. The Abbegar is an inherited position and Teferi shows how in the period just after the defeat of the Derg in 1991 the state officials sought to make use of them in maintaining peace and stability and finding culprits, which fitted with the ideology of self-governance based on ethnic identity and the need to rely on local institutions and leadership in a period of transition. He illustrates this with a case of an Abbegar who receives written support to reclaim his father’s customary functions after he had migrated away (Teferi 2000:191).

  • 14 The term wofa is used in different ways and may denote a generic category of spiritual expert, the (...)

57In North Shewa the Wofa14 institution of spiritual experts often have a vital role to play in dispute resolution and have a considerable reputation beyond their region. The case study in this book focuses on the case of Wofa Legesse, who has gained an important reputation as a dispute settler. People come to him not just from close by but from other areas within the region and beyond with grievances. It is believed that through the threat of invoking the spirits he can make those who are guilty come and confess and accept reconciliation. This form of spirit mediumship involved in dispute resolution is common in North Shewa (Aspen 1994). The balewuqabi or spirit medium in zar cults often have a dispute resolution role (Setargaw 2002, Aspen 1994, 1995). There are some suggestions that this institution came from the Oromo, and the similarities with the transformed Qallu institution with spirit-mediumship roles among the Western Oromo (Knutsson 1967) and the Qallu among the Ad’a Oromo (Morton 1975) is striking. Some of Aspen’s informants suggested that this may have happened as recently as the time of the Italian occupation (1936-41), though he points out that 19th century travellers mentioned zar ceremonies in Ankober. The practice increased during the Derg period with the weakening of the lords and the church, fitting with the notion of spiritual revival in times of crisis (Aspen 1995:38).

Institutions for finding guilty persons and thieves

  • 15 Walker (1933:153) suggests that this word is of Oromo origin but it does not figure in the standard (...)

58A number of institutions are invoked to discover thieves or culprits. These are known as afersata15 awch’ach’ign and léba shay and are used to seek out those who committed crimes. The main difference between them relates to whether the investigation takes a collective or individual approach. Some of these seemed to have emerged in relation to state justice systems. Afersata took the form of a communal inquest, in which all adult males were called to a meeting place and were obliged to remain until each had given a testimony swearing an oath to a group of investigators from among the community. It is not clear to what extent this is an indigenous institution rather than one that emerged in connection with state interventions, since it seems that it was often instigated by officials or judges who then apprehended the named person. On 2 August 1933 the central government issued a proclamation detailing procedural and substantive rules for conducting afersatas, to limit the hardships and provide safeguards against false complaints and untrue or malicious testimony (Carmichael 1993:122, Walker 1933:153-56, Mahteme Sellassie Welde Mesqal 1969:99).

59The léba shay or ‘thief seeker’ involves families of thief finders who made a boy (their son or slave) drink medicine and smoke herbs. He then went into a kind of trance and was followed until he identified the thief or the stolen goods by entering the house and laying on the bed in a trance or seizing the man hitting him with his knee or washing his feet at the place of the theft (Walker 1933:157-62). According to Garretson (2006) the léba Shay was an early form of police force which probably developed before the 19th century when it peaked. The institution seems to have been introduced to Shewa from Gonder by Menilek II. The imperial authority gave a licence to administer the drug. The practice was considered unjust by lij Iyasu in 1912, and abolished by Empress Zewditu after opposition by the rich and nobility, and was replaced by the afersata (Moelvar 1994:329-30). It was banned by Haile Sellassie I (Ullendorff 1976: 74-5).

  • 16 As one respondent aptly put it: ‘belé is our AIDS’ (Pankhurst 2003).

60The belé institution run by abbegars in South Wello involves the community gathering after a theft or other crime and each person having to step over a stick or spear swearing innocence. Swearing falsely is believed to be very dangerous leading to a curse that could last seven generations16 and culprits tend to admit. However, the power of the curse has been waning and the institution may have become less powerful (Pankhurst 2003c).

Associations: socio-religious, funerary, migrant, and credit

61Various forms of association between groups of individuals, including socio-religious mehaber of groups meeting monthly on a favourite saint’s day (H Pankhurst 1992), funeral associations known as iddir in many parts of Ethiopia and qire in Wello (Pankhurst 2003b), credit associations known as iqqub, and migrants’ associations known as mehaber, some of whom developed in an urban setting, as a form of social organisation that was independent from the state (Pankhurst 2006c) can play an important role in dispute resolution among members. Such associations can threaten the sanction of social ostracism referred to as imbidadé in North Wello, and semona in South Wello, of people who do not conform to community decisions, and could potentially be refused burial services (Pankhurst 2001a:100, 2003c:74).

62In conclusion there are a wide range of customary institutions and practices in Amhara region involving elders’ councils, spiritual leaders and vountary associations, some of which have developed sophisticated forms of litigation. Some of these developed in collaboration with state structures and/or were incorporated into the state mode of litigation in courts and others emerged in contradistinction to state influences.

Beni-Shangul Gumuz Region

The ostracised person asks the elders forgiveness holding a bone in his mouth, saying ‘I will be subject to you like a dog.’
Bayisa and Lemessa, (in the Chapter on Beni-Shangul Gumuz in this book)

  • 17 Literally ‘sucking the breast’ or the thumb of the patron mixed with honey (and sometimes milk) sym (...)

63The current area of Beni-Shangul Gumuz Region was part of the borderlands between Ethiopia and Sudan, famous in the past for its gold and infamous for the slave trade (Cerulli 1956, Triulzi 1981, Abdussamad 1988). From the late 16th Century emperors of the central state raided the Gumuz and established indirect rule by appointing Agew chiefs over them, resulting in some groups fleeing to the lowlands (Taddese 1988, James 1986). From the 18th century the Oromo expanded to the west raiding, exacting tribute, and incorporating some groups through various mechanisms (Negaso 1984, Berihun 2004). These included setting slaves free, luba basu, group or individual adoption or fostering, mogassa or gudifacha, patronage, harma hodha,17 and bond-friendships, michu, which remains an important element of establishing and maintaining peaceful interethnic relations (Bartels 1983:167, Baxter 2005b:901, Blackhurst 1996:240, Mohammed 1990:21, Wolde Sellassie 2002, Ίsega 2002, 2006).

64Currently Beni-Shangul Gumuz Region is located in the Northwestern part of the country bordering Amhara region in the north, Oromia in the east, Gambella in the south and Sudan in the west. The region is divided into three administrative zones namely Assosa, Metekel and Kamashi, and has twenty weredas, with a population of over half a million according to the 1994 census. The native people of the region are the Berta, Gumuz, Shinasha, Mao and Komo. More recent migrants notably Oromo, Amhara, Agew and others, came as settlers and traders, or were brought by government resettlement programme in the mid 1980s.

65The sources on customary dispute resolution include a senior essay in Law (Aysheshim 1987) on crime and dispute resolution among the Gumuz, relevant parts in four PhD theses, three in social anthropology, one by Berihun (2004) on the Gumuz and the other two by Gebre (2001, 2003) and Wolde-Sellassie (2002, 2004) on the resettlement program and its impact on the Gumuz, and the fourth on interethnic relations (Tsega 2006). There are also two MA theses, one in social anthropology on interethnic relations (Berihun 1996) and the other in social work by Uthman (2006) on the role of religion in inter-ethnic integration focusing on the Bertha. The case study in this book focuses on the Shinasha multi-layered institution, involving four levels.

Types of dispute resolution institutions

66Customary dispute resolution in Beni-Shangul Gumuz Region involves seven types of overlapping institutions: 1) elders’ meetings, 2) religious leaders 3) clan appointed mediators, 4) customary institutions with different levels, 5) bride compensation, 6) reconciliation through ritual oath, and 7) interethnic institutions. In some cases there are combinations of the above. The CDR institutions consider all kinds of crimes from minor ones up to homicide. The account by Aysheshim (1987) focuses on homicide among the Gumuz. Rape and abduction were said to be resolved through payment of cattle, often not exceeding three animals, and adultery was compensated by giving a gun or its equivalent value in cattle to the husband.

Elders’ meetings

67Elders are involved in dispute resolution in all the societies, notably the Gumuz, Bertha, Mao, Komo and Shinasha. According to the authors of the chapter in this book the number of elders varies. Among the Komo 9 elders are involved or 18 in serious cases, and among the Mao 9 elders work with the Qallu. The elders among the Bertha are called Shiyabe or Al-Sheba, and are expected to be versed in Islamic Shari’a matters (Uthman 2006). Among the Gumuz the elders are called obtisbiga (Berihun 2004:242), and the local elders’ institution is called Mangima (Wolde Sellassie 2002).

Religious leaders

68The customary religious leaders who are also involved in dispute resolution are referred to as Qallu among the Mao, and Qolla among the Shinasha, with no doubt similarities with the Oromo Qallu (Knutsson 1967), and Gafia among the Gumuz, who may be either male or female (Tsega 2002). It would seem that this is part of a cultural area where spirit mediums take on an important dispute resolution role. In some cases they work alongside local elders who may deal with minor issues and refer more difficult cases to the spiritual leaders.

Clan appointed mediators

69Among the Gumuz disputes within clans may be dealt with by a clan appointed mediator called tesa, while disputes that go beyond the clan involving several groups fall under the jurisdiction of the government courts. (Abbink 2005b:916-7).

Layered institutions

70According to the authors of the study in this book, a sophisticated layered institution is found among the Shinasha with four levels: Burra, Nemma, Terra, and Falla such that matters not solved at the lower level can be taken to the next level. Whereas the lower levels involved ‘judges’ who are elders, the highest level, Falla, involved the spiritual leader Qolla/Nihana along with two neutral ‘juries’.

Bride compensation

71This form of resolving feuds is described among the Gumuz by Aysheshim (1987) and Berihun (2004:100-2). When a person has been killed, the main way in which peace is restored is by a claim of compensation called Bahizikua meaning ‘person (female) for bone’ through which a bride is given to the clan of the deceased. The children of the woman who is given are considered to be the substitutes for the potential children of the deceased.

Reconciliation through ritual oath

72The ritual oath, called Shirt’a is an institution used among the Gumuz to resolve claims and counterclaims and bring about reconciliation through simultaneous cursing and blessing, particularly in the case of marriage disputes and potential abuse by husbands. When there is a deadlock in resolving a dispute the system is used through reference to the supernatural misa which is seen as revealing the truth through the oath and prevents the escalation of violence allowing for the parties to be reconciled (Berihun 2004:246).

Inter-ethnic institutions

  • 18 Oromo traders had bond-friends among the Gumuz involved in gold panning (Tsega 2002:526).
  • 19 Tsega (2002:527) notes that the Dongoro Oromo and their chief Tufa Foroso who settled in the area w (...)

73Inter-ethnic institutions can promote peace and may prevent conflict and are sometimes instituted after a conflict. There may be the borrowing or extension of an institution existing in one group. Thus the Gumuz mangima institution was involved in resolving disputes with highlanders, including the resettlers (Wolde-Sellassie 2002:247-69). The Oromo michu institution literally meaning friendship, created bonds with the lowlander Gumuz,18 but also with the Shinasha and Agaw, who also made use of the institution with the Gumuz. The Amhara coming to the region also adopted the institution. (Wolde-Sellassie 2002:273, Tsega 2002:528). Such bond-friendship were sometimes initiated during a ceremony involving slaughtering of livestock, with members of both sides mixing their blood and breaking a bone to depict ending their quarrels and elders’ blessings and oaths of not breaking the peace (Tsega 2002:526). Though the ceremony takes place once, the friendship is considered binding and may pass on from one generation to the next and may help maintain peace.19

Judicial procedure

74The procedure in homicide as discussed by Aysheshim depended on the relationship between the offender and the victim and their clans. If they were closely related it might not require compensation or lead to retaliation. Otherwise, there was the likelihood of revenge murders that could lead to a succession of homicides. To resolve the conflict elders gathered men from the clan and elders from other clans. Compensation took the form of a woman to be provided as a wife to a male relative of the deceased, ideally his younger brother, and several cattle, and the reconciliation involved slaughtering of livestock provided by the offender. As Berihun (2004) noted the provision of a bride is understood in terms of ‘life being only paid back with life’ and creates a bond between the parties.

  • 20 This involves taking a pinch of bounded bark mixed with sorghum flour with which elders anoint all (...)

75Wolde Sellassie’s account noted two stages to the conflict resolution process. In the initial stage those involved in the killing were not present to avoid tensions and were represented by their relatives. A ritual was performed on neutral territory at which cattle were slaughtered and both parties were asked to swear that they would refrain from activities that could provoke further hostilities. This was followed by blessings by the elders, and relatives of the offender were asked to swear an oath. After a couple of years a full reconciliation was effected through rituals in both villages in the houses and by a river,20 and a bride was provided to the family of the victim.

  • 21 Five objects were brought as symbols of peace during the swearing ritual: a bullet, a thorny plant (...)

76In dispute settlement between the Gumuz and the resettlers after violent conflict elders from both sides and others from the Agew considered to be neutral were involved, while the proceedings were closely followed by the local state authorities and soldiers. The peace making ritual was performed at the Beles River and the Gumuz offered two goats and the Amhara an ox (Wolde Sellassie 2002:263-7).21

77In conclusion CDR institutions in the Beni-Shangul Gumuz are numerous, complex and sophisticated involving elders and spiritual leaders, and some, such as the one described in this book, are multi-layered. There are also institutions that facilitate inter-ethnic relations in an area where there have been and continue to be conflicts. These are based on dyadic relations between individuals, and may promote peaceful coexistence and possibly prevent conflict.

Gambella Region22

  • 22 We wish to thank Dereje Feyisa, the author of the chapter on the Gambella Region for drafting this (...)

With talking the problems go to the cow
Rev. James Duoth, Gambella, May 2005, quoted in Sommer (2007:36)

78Gambella is inhabited by Nilotic and Nilo-Saharan communities most of whom live on both sides of the Ethiopian and Sudanese borders. The Anywaa, the Nuer, Majangir, Opo and Komo, are the five native groups living in Gambella State of Ethiopia. In addition, during the Derg period, resettlers were brought to the area from the highlands. The region has a total land size of about 25,274 square kilometres. According to the 1994 Housing and Population Census, the total population of the State was about 200,000, and with the national estimated annual growth of 2.7%; the estimate for 2008 is 275,000. The Anywaa and the Nuer constitute close to 70% of the population of the State while about 25% of the population is made up of non-natives. Much more has been written regarding CDR among the Nuer as noted in the chapter in this book, and there is far less among the Anywaa, and very little among the other minority groups.

CDR among the Nuer

79The Nuer of Gambella are well represented in the anthropological literature. The pioneering work on the Nilotic societies is by Evans-Pritchard who wrote three books on the political, the social and religious systems of the Nuer. All these works have relevance to our understanding of Nuer legal philosophy. The Nuer: Description of the modes of livelihood and political institutions of a Nilotic people (1940) describes and analyses the Nuer as people without laws or leaders with social order maintained by community values and a segmentary tribal and lineage system. Kinship and marriage among the Nuer (1954) extensively discusses the legal underpinnings of marriage and divorce whereas Nuer religion (1956) embeds the Nuer law in their notion of morality (the concept of cuok). A work which is exclusively devoted to the Nuer legal system is the one by Howell entitled A Manual of Nuer Law (1954). In this book a detailed account, exemplified by numerous cases, is given of the native law and custom administered in the Nuer tribal courts, with chapters on homicide and bodily injuries, marriage and divorce, violation of rights in women, property rights and succession, and religious concepts in relation to law. The concluding chapter on the nature of Nuer law is of special interest as reflecting the effect on native custom of the establishment of courts and the beginnings of codification. Another important scholarly work with a focus on institutions of conflict resolution among the Nuer is Douglas Johnson’s Nuer prophets: history of prophecy from the Upper Nile in the 19th and 20th centuries (1994). Refuting earlier works which represented the Nuer prophets as primarily military leaders, Johnson has shown that they are rather seekers of health and peace. Johnson’s work has significantly amended Evans-Pritchard’s trilogy in the sense that it is not mere ordered anarchy (the segmentary system) which brings solidarity and order among the Nuer but also the prophets who hold the Nuer together. The prophets often act as mediators of peace. Duany’s dissertation, Neither palaces nor prisons: The constitution of order among the Nuer (1992) is a significant addition to our understanding of legal processes among the Nuer. The study explores the Nuer conceptualization of their universe, where the conception of God (kuoth) as the source of creation is fundamental to the understanding of the institutional arrangements among the Nuer. On the basis of the belief in God and the concept of law, the Nuer developed their system of order which recognizes multiple agents with limited jurisdiction that can be called upon to resolve conflicts and take leadership when the need arises. Political processes involve diverse intermediaries whose task is to resolve conflicts or breaches of covenant where someone has offended against what is presumed to be right. William Lowrey’s dissertation, Passing the peace, people to people: The role of religion in an indigenous peace process among the Nuer people of Sudan (1996) is also a significant contribution in the field. Taking the example of the protracted resource conflict between the Lou and the Jikany Nuer, the dissertation analyzed the role of religion in the conflict and peace process. Specifically, it considers how religion affected the process of conflict resolution; how the religious leaders, from both the Nuer traditional religion and the Christian church, played a part in the peace process. To date, however, no significant study has been made on alternative dispute resolution mechanisms among the Ethiopian Nuer.

80The Nuer society has a well-developed CDR system both for the resolution of disputes and for the maintenance of law and order. The three most important institutions of the Nuer are 1) Ruec wec 2) Ring and 3) Guk.

Ruech wec (local courts)

81According to Lewis (1954), the word ruec means ‘influence’, itself associated with the word ruic, the term for a person with a persuasive skill. He identified three categories of ruic. The Gaat tutni, the Kaar and Bok. The jurisdiction of the Gaat tutni is over primary cases such as adultery, elopement, theft, divorce and other disputes arising in a village with an average of 200-250 people. Dispute settlement at this level is more democratic than the higher levels inasmuch as the cases are all discussed by the people who attend and wish to talk. At an intermediary level we find Kaar which serves as an appellate body to the decisions of Gaat Tutni. The level of popular participation is more restricted at this level, for in the majority of cases only the elders are allowed to get the chance to talk. On average, ten or more Gat Tutni can be found under a Kaar. The Kaar’s jurisdiction involves homicide and other compensations as well as overseeing the malpractices of Gat Tutni. At the highest level we find a Nuer court called Bok, equivalent to a formal supreme court. The institution of Bok operates at the district level over a population of over 50,000 and works closely with the Gaat Tutni and Kaar who help collect the fines.

Ring Diversional rights

82The word ring connotes the ancestral blessings given to individuals with the capacity to mediate when disputes arise. Three types of ring with diversional rights were identified. These are 1) Wut ghok 2) Kuaar moun and 3) Wiw. The Wut ghok is considered a man of cattle with a power to affect the wellbeing of cattle, the economic mainstay and the principal means through which social relationships are created and maintained among the Nuer. The Wut ghok presides over the male initiation ceremony related to the Nuer age set system in which he provides the spiritual guidance for the initiands to abstain from the act of stealing under the pain of losing social status or incurring afflictions. The Kuaar moun, widely known as the Leopard Skin Chief is the special functionary who is called upon to act as arbiter on demand in the settlement of a blood feud (Evans-Pritchard, 1940a). The Kuaar moun derive their power from their association with the land (Howell, 1970). Wiw is a sacred spear, the guardian spirit. In addition to protecting the Nuer from external threats Wiw also solves internal disputes.

Guk (Spiritual rights)

83Guk is a legal right with a spiritual base. There are three types of Guk: 1) Guk Kuoth 2) Kiir and 3) Ji Wall. Guk Kuoths are prophets who are principally considered as peace makers. They mediate homicide cases, perform the sacrifices which compose feuds and ensure that compensation is paid. The Kiir are possessed by a spirit and believed to be able to solve disputes and the Ji Wall are believed to possess a protective spirit and are solicited by elders to enforce collective decisions in disputes resolution.

CDR among the Anywaa

84The first thorough description of the Anywaa (Anuak) is by Evans-Pritchard in his book, The political system of the Anuak of the Anglo Egyptian Sudan (1940). This book is a study of the nobility (Nyiya) and of the way in which the insignia of kingship, spears, beads, stools etc pass from one representative of royal power to another. Actually the power of the kingship is limited, for it is based only on a village or group of lineages, and it has very restricted judicial and political authority. Complementing Evans-Pritchard’s book is an article on Anuak village headmen (kwaro) by Lienhardt (1957). The focus of the study is on political succession but it also contains some information on the legal system. Another study is by Perner (1994). In four volumes entitled The Anyuak: Living on earth in the sky, he discusses at length the spiritual underpinning of the Anuak notion of justice evident in the institution of cursing (achieni). A study by Monika Sommer (2005) shows that the Nyiya is personally involved in cases of serious crimes/events like homicide and undertakes the settlement process by mediating between the two feuding sides. She suggests that in ordinary cases, elders, appointed by the nyiya, regularly settle marriage and family disputes.

CDR among the Majangir

85As compared with the Nuer and the Anuak, the Majangir are the least studied with the single exception of Stauder’s thorough examination of their social organization. In his book entitled the Majangir: Ecology and society of a southwest Ethiopian people (1971), Stauder discusses the subsistence and the settlement pattern of the Majangir. The book also contains information about rules that govern access to natural resources and the judiciary role of ritual leaders. They also have institutions combining ritual leadership and dispute settlement functions. A book by Alan Tippet includes a short chapter on murder and justice among the Majangir, according to which retribution can involve the killing of the murderer (Tippet 1970).

86A study focuses on the Manjangir and directly deals with the issue of traditional institutions of conflict resolution among the Nilotes of Ethiopia in the Gambella region was commissioned by ACORD (Agency for Cooperation and Research in Development), one of the few NGOs operating in the Gambella region. The study entitled Traditional institutions of governance and conflict resolution and management mechanisms in the Gambella Region (2005) discusses these issues among the Majangir, Anuak and the Nuer. According to this study, the traditional legal institutions are more effective than the modern courts because the traditional leaders and elders are closer to the community and are also more accessible to the people than the modern law enforcing organs. Furthermore, the traditional conflict resolution system helps to resolve conflicts before their escalation, thus minimizing human and material loss. In the traditional conflict resolution mechanisms the power of the traditional leaders is assumed to be both spiritual and political. As a result the people consider the leaders as legitimate. The high cost of compensation is also a deterrent factor. The level of corruption is also less than in modern legal institutions. The traditional system has been overwhelmingly dominated by evangelization and has also lost authority in part due to the introduction of modern court system.

87To conclude the, CDR institutions in Gambella Region are very sophisticated, and complex with several layers, functional specialisation and include a range of actors including elders, powerful individuals, leaders, hereditary experts, spiritual possession as well as prophets. However, most of the institutions in the region are intra-group and the paucity of inter-group CDR mechanisms and institutions, with the notable exception of the gurtong spear-blunting peace-making, may have been one of the reasons why recent tensions escalated into conflicts that could not be resolved easily.

Harari Region

In Harar a man can live without relatives and friends but never withouth an afocha.
Yusuf Ahmed (1965:125)

88The Harari state is one of the smallest of the nine federated states of Ethiopia. The major groups that inhabit the State are the Oromo, the Amhara, the Harari, the Argobba and the Gurage. The state is named after the Harari people, also referred to in the literature as ‘Adare’. The Harari State is found in Eastern part of Ethiopia surrounded by the Eastern Hararghe Zone of Oromia State. The wall surrounding the city was built in the 16th century ensuring that the governing emirate could regulate and tax traders (Gibb 2005:1026). According to the 1994 Housing and Population Census, the total population of the State was about 131,000, out of whom about 30,000 were living in the walled city. Based on the projection of growth of population (2.7% annual growth rate), the estimate for 2008 is about 180,000. The chapter in this book by Biruk and Jira also considers the case of the Argobba and their institution the damina.

  • 23 Tunsus is a wedding related festivity which is performed for two days and nights and three days and (...)

89There is limited research on the social institutions of th Harari people and even less on the CDR systems. These are all related to the Afocha, an association of neighbours, with separate ones for men and women whose primary purpose is to assist the members in wedding and funeral ceremony as well as in other times of need (Hecht 2003:1278). The ethnography of Harar carried out by Waldron (1975) entitled Social organisation and social control in the walled city of Harar has an entire chapter on Afocha but does not discuss CDR aspects except to say that expulsion from an Afocha for breaking the rules would damage a person’s reputation and isolate them. Two works that make reference to the CDR aspects of the Afocha are Yusuf Ahmed’s (1965) Afocha and Mustafa Hassen’s (1988) ΒΑ thesis in Sociology: Culture on transition: A case of Adare (Harari) ethnic group. According to Yusuf, the Afocha engages in dispute settlement activity in an incidental way and as an additional responsibility, rather than as its primary responsibility. A group of elders in a given Afocha, called Ragac, pass important decisions regarding the affairs of the Afocha. The Ragac is also responsible for the settlement of disputes. Membership in Afocha is by invitation, and there is no caste or class system. Young men and women are expected to join an Afocha after their first year of marriage. Men are invited by their fathers’ Afocha, while women are invited to join their mother-in-laws’ Afocha. Over the years the Afocha has developed a complex set of procedures, code of conduct and rules for the regulation of its associational affairs and election of its officials. The leader of the Afocha is known as Khatib, and the Afocha has other officials whose tasks are recordkeeping, convening of the members on necessary occasions, supervising of fee collection and keeping attendance at meetings. Afocha brings together kinsmen, friends, relatives, non-relatives, regardless of differences on wealth, social status, or occupation in a manner that cross-cuts class and occupational categories (Mustafa 1988). The male and female afochas seek to preserve the customs of the Harari people and have reacted together, under Pan-Afocha Conferences, to reinforce or alter the culture and tradition of the people. According to Mustafa, Pan-Afocha assemblies were held in 1957, 1970, 1975, 1982, 1984. At the Pan-Afocha meetings, the afochas discuss matters of overarching importance to their associations and values. For example, it was at the Pan-Afocha assemblies that Tunsus23 celebrations were banned during wedding ceremonies.

Judicial procedure

90The study reported in this book by Biruk Haile and Jira Mekonnen shows that afocha provides a platform for the elders to resolve disputes. The elders are elected on an ad hoc basis to settle conflicts among members of the afocha. The jurisdiction of the afocha includes bodily injury, manslaughter, adult confrontations, trespass on land and others. However, there is a general reluctance on the part of the elders to try criminal cases originating from theft, adultery, intentional homicide, and other crimes.

91Procedurally, once the elders are elected and assigned, the process of dispute settlement takes place by hearing the cases of the parties separately. This is said to help avoid confrontation and speed-up the reconciliation process. The role of witnesses in the dispute settlement process is kept to a minimum because the disputants are forewarned to speak the truth and are trusted to do so in most cases. The redress in most cases is compensation to the plaintiff which would be calculated on the basis of religious rules (the Shari’a) and custom. The compensation would be calculated in heads of cattle or money equivalent.

92To conclude, in Harar the strong neighbourhood identity organised in Afocha provides a context and institution for resolving tensions and disputes between members. The associations are formalised and have elaborate rules and procedures and can rely on the threat or sanction of social ostracism to ensure compliance. The Pan-Afocha assemblies have been a forum for discussion relevant issues and instituting reforms of cultural customs which may no longer be useful.

Oromia Region

In a dispute one must either settle it or make haste to get safely away.
As long as fire stays in one’s breast it does not cool down.
Oromo sayings (Sumner 1995:200)

93The State of Oromia is the largest of all the states of the Ethiopian Federation with an area of 353,690 km2. According to the 1994 Census, the population of the State amounted to about 19 million, and by 2.7% estimated annual growth rate, the estimate for 2008 stands at about 26 million.

94Oromo society is very rich and diverse in culture, history and legal traditions. Many types of CDR abound in the society. There are considerable regional variations within the Oromo society regarding types of dispute settlement. However, the various systems have some basic similarities in terms of who settles the disputes, the jurisdiction of the dispute settlers and the attitude of the society towards these systems. The most important reason for the relationship among the various CDR systems in Oromo society is their common origin which is the Gadaa cultural framework. The CDR systems now in operation within the diverse geo-cultural clusters of the Oromo society are offshoots of the former, developed under the influence of time since the Oromo migrations from the 16th century, their relations with neighbouring groups, and changes in their way of life, economy, political, religious and cultural and social relations.

95There is a wealth of literature on CDR institutions in Oromia including three PhD theses (Sperry 1973, Nicolas 2005, Mamo 2006), five MA theses, four in Social Anthropology (Assefa 1995, Dejene 2002, Demissie 2005, Ayehu 2005) and one MA thesis in literature (Solomon 2006a); eleven senior essays, four in Law (Dinsa 1975, Seid 1984, Mamma 1986, Girma 1980) six in sociology (Hajo 1986, Abdurahman 1991, Dawit 1994, Tessema 1997, Ibsa 2003, Demie 2005) and one in political science (Awel 2005). Moreover there is a massive classical anthropological literature on various Oromo groups some of which discuss CDR (notably, in chronological order, Huntingford 1955, Baxter 1954, Haberland.1963, Asmarom 1973, Knutsson 1968, PI. Lewis 1965, Hinnant 1977, Helland 1980, Hogg 1981, Bartels 1983, Hultin 1987, Schlee 1989, Gemetchu 1993, Bassi 1996, 2005, Asmarom 2000). Comparative works include Age, generation and time edited by Baxter and Almagor (1978), and Being and becoming Oromo (Baxter et al. eds 1996). Furthermore, a number of scholars have written articles or papers that are more directly pertinent to CDR issues (notably H. Lewis 1988, Bassi 1992 and 1994, Wako 1997, Ayalew 2001, Yacob 2001, Dejene and Abdurahman 2005, Assefa Abebe 2005, Mammo 2006b, Nicolas 2006). There is not the space to review all of these works; however, some of the more relevant ones are considered by type of CDR institution.

CDR institutions

  • 24 These are those in which third parties are involved as mediators or arbitrators of some sort. Other (...)

96The three major CDR Systems in Oromo society are: 1) the judicial (dispute settlement) aspect of Gadaa, 2) the Jaarsa Biyyaa (also known as Jaarsaa Araaraa or jaarsumaa), 3) the Qallu spiritual leaders and their transformations into spirit-medium mediators. In addition regional institutions have developed such as the Allo Arssi Council and, in contexts of interethnic relations, funerary associations known as Qire in Wellega have taken on some dispute resolution roles.24

Gadaa age-graded assemblies

97Numerous studies have been conducted on the Gadaa, starting with the classical studies of Baxter (1954), Haberland (1963), and Asmarom (1973), with further accounts by Baxter (1978), Hogg (1993) and Bassi (1996) among the Borana, and Hinnant (1977) among the Guji. The legal aspects of Gadaa governance is the focus of Dinsa’s thesis (1975) and the Borana’s traditional Capacity for Conflict Management is considered by Yacob (2001).

98The gadaa has been portrayed as an egalitarian system of governance in which in every eight years one generation set (Luuba), consisting of a segment of one-fifth of the men of the same generation, becomes responsible for maintaining the ‘Peace of the Boran’ through prayer and sacrifice. The Gadaa consists of a series of elaborate rules and rituals, and a number of Gadaa officials are appointed every eight years to act as arbitrators, law makers and ritual leaders. It has become a key word’ and ‘social ideology’ of Oromo society. There has been some controversy as to the extent to which Gadaa has been a political institution rather than primarily a cultural and spiritual one and whether this has changed over time (Baxter and Almagor 1978). However, there is agreement that it plays a key role in integrating clans, promoting peace, and mediating between human and divine worlds (Baxter 2005a:633-5, Bassi 1996). Moreover, the gumi gaayo ‘meeting of the multitude’, held every eight years provides the context for promulgating, adapting or repealing the seera (law) and aadaa (customs). Furthermore the ritual calendar allows for meetings and provides an organisational capacity which provides a context for dispute settlement (Nicolas 2006).

Judicial Process

99Clansmen are expected to settle their disputes amicably at clan meetings. Household heads can take part and air their views. However, age, experience and the ability to speak in public are respected. Decisions are taken by consensus, and reference is constantly made to the body of customary law called Aadaa Borana. Decisions and fines are made by councils or assemblies. If a consensus decision is impossible, or one of the parties does not accept the decision, then the case can be passed to a clan assembly, Kara Gossa. If the matter is not settled here, it goes to the highest level. The ultimate assembly of appeal is the assembly of all Boran (Gumi Gaayo) held every eight years at Gayu. However, most matters very rarely reach this level and are generally resolved by councils based on locality (kora olaa, kora deeda) or kinship (koragossa). Inter-clan matters are resolved by the gadaa and qallu councils (yaa’agadaa, yaa’a qallu). The councils rely largely on persuasion and the rhetorical threat of sanctions including fines and corporal punishments which, however, are not usually implemented. The ultimate sanction is exclusion from the Nagaa Boran, ‘the peace of the Boran’, such that the person will not be greeted or blessed and will not receive social and ritual support and may be cursed (abarsa). However, admission of guilt and the public humiliation of asking forgiveness involving using ritual formulas and/or ridicule can lead to the sentence being reduced or even waved (Baxter 1978, Hogg 1993, Bassi 1994, 1996).

100Dinsa (1975) documented that criminal and civil wrongs are punishable pursuant to the provisions of the Sera coffee (the law passed by the general assembly that serves as a legislative body). Depending on the gravity of the offences, the punishments include death penalty; payment of blood price with or without a reconciliation ceremony; exile; exclusion from association and participation in the communal socio-economic activities; corporal punishment; condemnation of the wrongdoer; and asking for apologies. However, with the exception of death penalty and corporal punishment, the emphasis in the Oromo administration of justice is on restitution and not retribution. Apart from the death penalty, because of its gravity and the nature of its commission, all wrongs are dealt with a system which resembles mediation or arbitration rather than punishment. According to Dinsa, in the Gadaa legal system, the death penalty is the highest form of punishment and would be imposed only in case of homicide of parents by their children; homicide committed by a wrongdoer after a peace-settlement ceremony was concluded; intentional homicide of a pregnant woman; murder of a kinsman who refuses to participate in the payment of the blood-price and recommends death penalty on the wrongdoer; and homicide where peace-settlement negotiation fails.

101Dinsa’s study shows that all dispute settlement proceedings are open to public participation by those who are assembled. Case proceedings are initiated either by the victims or by elders of the concerned clan or village. The parties present their case after taking an oath. Prior to the declaration of the decision by the Judges (Jilba), all who participated in the litigation allegedly ‘vote’ in favour or against in a manner that resembles a trial by jury. As there are no written decisions, it is mandatory that the executive officers be present at the Jilba’s proceedings, to be able to enforce decisions. The Jilba is independent of pressure or influence by the executive. It is the Messensa that selects or removes the Jilba members. Dinsa states that almost all cases are settled by compensation. For instance, one who kills a man intentionally would be required to pay about a hundred heads of cattle. Accidental killings involve mitigated payments or no payments at all. A man who rapes an unmarried woman was expected to pay about fifteen heads of cattle in compensation in addition to being forced to retain the raped woman as his wife subject to the fulfilment of marriage formalities. A man who rapes a married woman provides one head of cattle as compensation. For defaming the Aba Biya (‘Chief Executive’) a person is required to pay 4 to 16 heads of cattle. For defaming an ordinary person, the compensation was four heads of cattle.

102The study by Wako (1997) stresses the democratic nature of the Gadaa system and its overall structures and organization for administration, law making and dispute settlement. The studies by Hinnant (1977) and Yacob Arsano (2001) suggest that the Borena and Guji Oromo have successfully maintained their Gadaa institution. They still retain the essential aspect of their customary polity with its capacity for conflict management and peace promotion. These two studies suggest that communities rely on the Gadaa-related CDR mechanisms for most of the cases since the solution needs to be lasting and aims at an overall peace and reconciliation. The dispute settlement procedures, the penalties to be imposed and the kinds of disputes to be settled by the Gadaa are similar to those among the rest of the Oromo. The study by Yacob however emphasizes that the death penalty seems no longer to be imposed by the Gadaa justice system because of an apparent relinquishment of this capacity to the formal system.

Jarsa Biyya (elders’ assemblies)

  • 25 In fact, age is not strictly a consideration. In some cases, male adults with recognized wisdom and (...)

103Jaarsaa Biyyaa (‘elders of the soil’, i.e. ‘of the country’) is a customary institution for resolving conflicts which is discussed at length in this book in the Chapter by Berhanu and Areba. It is constituted by elderly and respected men who have the experience of resolving conflicts.25 There is a veritable mass of studies on the jaarsaa Biyyaa institution. The notable ones include Mamo Hebo’s (2006) study on local custom and state policies on land tenure and land disputes settlement among the Arsii Oromo; Awel Ebrahim’s (2005) research on the Jaarsaa Araaraa system of dispute settlement conducted on the Dinsho area; Ayalew Gebre’s (2001) study on conflict management, resolution and institutions among the Karrayu and their neighbours; Dejene Aredo and Abdurahman Ame’s (2005) on settlement of disputes in pastoral areas which focuses on the well council and Arara of Borena; Demissie Gudisa’s (2005) study on social networks, conflict and indigenous conflict resolution mechanisms among the Derba Oromo of North Shewa; Dejene Gemechu’s (2002) study of conflict and its resolution among Waliso Oromo; and a study by Girma Gelaye (1980) on the liability for wrongs under the Kottu-Oromo Customary Law.

104The studies by Awel (2005), Ayalew (2001), Dejene and Abdurahman (2005), Demissie (2005), Dejene (2002) and Girma (1980) show that all types of cases from simple civil matter to complex criminal cases are subject to the jurisdiction of the Jaarsaa Biyyaa or Jarsa Araaraa (literally ‘elders of reconciliation’). These include homicide, loans, cattle raiding, land, property or inheritance, personal injury, defamation, theft, accidental or wilful destruction of property, adultery and killing of animal. The Jaarsaa Biyyaa is the most widely used of the CDR systems in Oromo society with some minor regional variations brought about by the interplay of culture and way of life.

Judicial procedure

105Mamo’s (2006) study conducted on the resolution of land disputes asserts that the Jaarsaa Biyyaa successfully settle land related disputes. Cases can be taken to the disputants or an elder or elders may take initiatives to solve the disputes. Once cases are referred to them, the elders first listen to what both parties have to say. Then they contact other elders in the neighbourhood of the disputants to verify necessary facts. Then in the next meeting or so, the disputants are called separately and advised to compromise. The wrongdoing party would be advised to admit the offence and the truth (dhugaa) to the other party, and the wronged party also would be asked to give in some way to the offender in return for the truth, for the sake of the clan or the lineage and the elders, so that persistent hostilities are mitigated. The study describes cases of successful dispute settlement relating to land disputes.

106Awel Ebrahim’s (2005) research on the Jaarsaa Araaraa system of dispute settlement conducted in the Dinsho area shows that the Jaarsaa Araaraa is made up of elders constituted on an ad hoc basis whenever disputes arise, but that the same elders can participate in the settlement of many cases if so selected. According to Awel, the selection is made by the disputants depending on their own previous knowledge of the elders or any sort of relationship which gives rise to the trust.

107As noted in many studies hearings often begin by one of the elders making prayers asking waqa (God) and the spirits to bless their deliberations after which the wronged person would be given the chance to present his part of the case. This will happen in the presence of the defendant. The disputants are strictly prohibited from interrupting one another when they make their statements. The hearing is open to allow the disputants to ‘cross-examine’ each other to find out the truth. Once the parties have spoken the public session is adjourned and the Jaarsaa Araaraa, will approach them separately in turn; when one party is approached, the other remains at some distance. This gives the elders the opportunity to concentrate on points of disagreement between the parties and assist in the fact finding and reconciliation or Araaraa. Depending on the outcome of the private deliberations with the parties, they continue the process. If the wrong-doing party makes admissions, without going to other procedures, the elders direct the discussion on how to reconcile the parties. If the defendant denies the claim, the case will proceed to the next step which is the evidence hearing process where the claimant will be asked to produce witnesses and/or other evidences.

108If the evidence by the claimant could not establish the truth about the defendant’s commission of the said wrong, the defendant will be required to take an oath (kakuu) which is considered to be very dangerous if he/she has committed the crime. The main purpose of taking an oath is to justify whether an individual is free from the act or not. An oath can be taken using material cultural objects prepared for such purposes such as a stick or knife. The assumption is that if the defendant accepts to take a kakuu, it means that he was not the wrongdoer. But if the real wrongdoer is found out by this process, the elders will proceed to redressing the claimant and consolidate the reconciliation process. Depending on the nature of the dispute, the wrongdoer would be made to pay compensation or do other things as found commensurate to the wrong done. Nicolas (2005) argues that the very procedure, including the setting and formalisation gives elders respect, provides efficacy and creates their ability to achieve rather than impose reconciliation over time.

Qallu (spirit-medium-based mediation)

109The Qallu among the Western Oromo came to take on more than just a spiritual role, and are involved in dispute settlement institution based on spirit-possession-mediumship. The Qallu is a person who serves as a medium for the Ayyaanaa (the spirit) and is believed to have a capacity to communicate with Waaqa (God). He is considered as the spiritual leader of the community. In most cases the Qallu inherits the position and capacity from his forefathers. As Knutsson’s study (1067) shows the Qallu adjudicates alongside the jarsa arraara, the elders of reconciliation. Cases may be taken to the Qallu if the elders are unable to solve the case or if it relates to ritual cases such as ritual appeasement or lifting of curses or serious matters, which may also be referred to him by the state legal system. Knutsson argues that the Qallu has sufficient authority to render his decisions effective and definitive. The institution has the jurisdiction to pass judgement upon any kind of matter from simple theft to homicide (Giday 2000, Ibsa 2003, H. Lewis 1988).

110Tesema Tolera’s (1997) study on the Ofa-Sarba is instructive of the Qallu institution’s role in dispute settlement. Ofa-Sarba is the name of the male ayyaana (spirit) found in the District of Ginda Beret. The Qallu is considered to be the highest human judge who communicates with the ayyaana. The qaalluu is selected by the ayyaana based on the hereditary system and charisma of a given individual. A lower level traditional elders’ court, known as Shanee-Seeraa, whose judges are appointed by the qaalluu on the basis of the purity, maturity and knowledge about the religious and cultural norms of the society, wisdom, ability to deal with conflict resolution, is organized and functions in the area. The appointment of the judges (Shanee-Seeraa) is approved by the ayyaana. According to Tesema, disputes on loans, land disputes, theft, inheritance disputes, marital disputes, defamation and injury which may arise between individuals, families, groups, clans, and tribes are subject to the jurisdiction of the qaalluu.

Judicial procedure

111Though cases can be taken by the disputants directly to the Qallu, he also usually serves as the highest appellate body over the decisions of all other customary institutions of the Oromo in the locality. Parties dissatisfied with the decisions for example of the Jaarsaa Biyyaa may take their cases to the Qallu. The verdicts of the Qallu have a better chance of being obeyed by the losers since the Qallu is believed to have the spiritual power to cause misfortunes to the party disobeying his decisions. A defiant opponent in a dispute is also more likely to be brought before this institution than to non-spiritual CDR systems.

112According to Tesema (1997) a case is first taken to the Shanee-Seeraa by the victim and the elders send a messenger to the offender. The Shanee-Seeraa may also order the litigants to produce guarantors or sureties to make sure that the parties accept the judgment rendered by the elders, without affecting their right to appeal. Each session is opened with blessings and prayers so that the ayyaana helps the elders render justice impartially and conduct reconciliation peacefully. During the proceedings, the Shanee-Seeraa may hear each litigant separately and may require production of witnesses if needed. Finally, after discussing the case thoroughly, the presiding elder will ask the opinion of the other elders and the decision of the majority will be accepted. If the litigants are not satisfied with the decision, they can appeal to the qaalluu.

Allo Arsi

113A study on the Allo Arsi council of elders among the Arsi by Abdurahman Kabato (1991) states that it is the unwritten local codes and customary norms which are implemented by the council of elders in the dispute settlement process. Under the Allo Arssi, the council of elders consist of notables, elders and clan chiefs. All these men are elected from the clan to take part in conflict resolution. In the Allo Arssi women have no role to play in the leadership. Abdurahman’s account shows that Allo Arssi was originally part of the Gadaa system, but has undergone a considerable change under the influence of the Arssi Oromo culture and social composition. The disputes that are handled and resolved by the Allo Arssi include any type of individual disputes, inter-clan, and inter-ethnic conflicts. Like any other CDR system, it has a reconciliatory effect that is directed towards future cooperation that overrides the dispute resolution mechanisms in the formal state settings. Procedurally, cases could be taken to the Allo Arsi either by the disputants or the leaders of their clans. The elders’ council members, the victim, and the criminal along with family members and clan elders normally participate in the proceedings and decisions can be based on pure confession (Dugaa) of the wrongdoer or on fact-finding process through evidences (ragaa).

Inter-ethnic dispute resolution

  • 26 Literally ‘sucking the breast’ or the thumb of the patron mixed with honey (and sometimes milk) sym (...)

114There are many kinds of institutions that promote inter-ethnic dispute resolution including Oromo traditions of group or individual adoption and fostering mogassa or gudifacha, patronage, harma hodha,26 and bond-friendships, michu, which remains an important element of establishing and maintaining peaceful interethnic relations (Bartels 1983:167, Baxter 2005b:901, Blackhurst 1996:240, Mohammed 1990:21, Tsega 2002).

115In parts of Shewa where Oromo and Amhara lived intermingled in close proximity they developed a shared institution of dispute resolution (Nicolas 2005:62-68). This complex was able to develop due to a common tradition of reliance on elders in dispute settlement. Differences in traditional institutions, languages, and mediation procedures were overcome due to state influence, cultural exchange and assimilation, and some acceptance of elements of each others’ traditions. Means of accommodation including ‘supplementation’ from each others traditions, ‘doubling’ by using both traditions, curtailing or replacement of traditions which did not have resonance from the other group (Nicolas 2005:66-7).

116Various associations such as iddir funeral associations, mehaber, associations in the name of a Saint, and iqqub rotating credit associations play a dispute resolution role between members. Herbert Lewis (1989) suggests that this is part of a Cushitic emphasis on voluntary and achieved status. However, these institutions may also have developed in contexts of culture contact, exchange and urbanisation, and in reaction to the pervasive state and hierarchical religious system (Pankhurst 2003).

117In North-eastern Wellega where Oromo live in close proximity with Amhara migrants the funeral association known as Qire is a social support institution which takes on some conflict resolution roles. It is managed by the elders of the community and is involved in the settlement of interpersonal and other types of disputes arising in the community (Assefa 1995). Cases are normally brought to the. Qire by one of the parties in a conflict. The leader of the institution tells the disputants to select elders on each side, who would consider the case. The elders chosen to decide the case at hand and the conflicting parties participate in the process. After discussing among themselves the elders pass their decision, which is usually a compromise. The elders advise and convince the parties in a dispute to accept the decision passed. Offenders in the dispute are made to pay compensation, which might involve serving the participants with food and drink.

118To conclude, the CDR traditions among the Oromo are rich and diverse, involving assemblies in the context of the gadaa framework deriving from the Borana, councils of elders involved in reconcilation which is the most widespread form, and spirit-medium based adjudication by the qallu in western Oromia. Dispute resolution mechanisms in interethnic contexts have also been developed resulting in cultural borrowings and merged systems.

Somali Region

Renouncing traditional values leads to annoying Allah
He who cannot wait [to listen to] words, cannot also wait [to use] the spear
A bribe-influenced man, is just like a man taken away by the sword
Somali proverb, Mohammed and Zewdie (chapter on Somali).

119The Somali people of Ethiopia live in the Ethiopian Somali State (earlier known as the Ogaden) bordering the states of Somalia and more recently Somaliland. According to the 1994 census estimate, the population of the State was about 3.5 million; the 2008 projection of the population would top 4,800,000. The social organization of the Somali people is on the basis of clan and sub-clan structures with varying degrees of complexity. The Somali have maintained their autonomy and lived detached from the central Ethiopian state from early days to the present. They have been predominantly governed by their own customary institutions including in relation to dispute settlement. Since the policy of devolution of powers was embarked upon under the federal arrangement beginning from 1991 in Ethiopia, the people of the Somali State have been brought closer to the modern state system.

120Studies on CDR among the Somali are limited especially on the Somali in Ethiopia. They include relevant sections in the classical anthropological literature, notably the books by I. Lewis (1955, 1961), a law senior essay on customary resolution of homicide cases (Jemal 1999), and a social anthropology MA thesis on kinship marriage and dispute resolution with particular reference to the Sab minority (Daniel 2005).

CDR institutions

121The Somali law – the Xeer – is a very sophisticated and elaborate system that provides dispute settlement rules on a range of disputes from the simplest to the most complex. All kinds of disputes, including those involving homicide, are settled through payment of compensation to the wronged clan or group by the clan or group to which the perpetrator belongs. The Xeer could be revised from time to time at the gathering of elders’ council, known as Shir. According to Jemal (1999) male adult Somalis within a community come to and speak at the Shir. The Xeer is protected from violations by imposing on the individuals different sanctions.

122There are variations within the clans of the Ethiopian Somali regarding the most common CDR system in use and also on specific rules that apply to a given dispute. (Gezahegn and Yigzaw 1994). The chapter by Mohammed and Zewdie in this book concludes that the Odayaal is currently the dominant CDR system used by the various clans of the Somali people. They also claims that the Odayaal has now replaced the traditional court system for the settlement of disputes known as Xeerbeegti. In fact both the Odayaal and Xeerbeegti are ad hoc councils of elders that are given the mandate to settle disputes between groups and members of a corporate group (Jemal 1999).

Judicial procedures

  • 27 The following case explains how the Qisaas is actually put in place: ‘In 1997 a man who is known to (...)

123Procedurally, Jemal’s study shows that cases are normally brought to the elders by victims, who are given the first chance to state their cases. Then defendants take the stage to respond to the allegation. Every male community member has the right to hear the proceedings. The redress is usually made in the form of compensation. The full ‘bloodwealth’ for males is set at a standard value of 100 camels and is half that amount in the case of women, with no distinction by age, nor on the basis of physical or mental condition. As an additional payment called Samirsis the murderer’s kin may give a ‘nubile girl’ known as Godobtir without bridewealth to create an affinal link of amity. A third of the bloodwealth which is called Rafisi is paid instantly and the remaining portion, referred to as Mog-Dheer is paid within the period fixed by the assembly of both clans. The former portion goes to the victim’s children, wife and brothers while the latter portion goes to the more distant kinsmen. Jemal’s study also shows that elders of some clans have more severe way of dealing with members who commit murder against clansmen. This sanction is called Qisaas, which is a formalized retaliation particularly in the manner in which it is executed.27

124Studies have shown that the Somali Xeer embodies a discriminatory treatment of the outcast groups who are not allowed to participate in the Shir whether that relates to the law-making or law revision (Daniel 2005). The Gaboye group, which consists of Madigo, Tumallo and Yibro, are the main marginalized groups in the Somali social system. There is a discriminatory enforcement of the Xeer depending on the social status of the victims or the perpetrators. It is possible for example that no compensation is paid for a person killed from among the Gaboye group by a member of Somali of higher social status.

125To conclude, the Somali customary dispute resolution system is complex and highly regulated in terms of the rules for particular offences. The system reflects the Somali clan structure and the homicide paying and receiving unit are crucial aspects of clan identity.

Southern Nations and Nationalities Peoples’ Region

Let us forget our fighting, let our stomach become one
Aike Berinas (Baldambe) quoted in Lydall and Strecker (1979:33)

126The SNNPR is the most diverse and complex region within Ethiopia. The SNNP Regional State is the third largest region in Ethiopia covering an area of over 100,000 km2 bisected by the Rift Valley and the Omo-Gibe River Basin. The region is inhabited by some fifty groups with distinct languages and traditions. The population was over 10 million in the 1994 Census with a projection of over 15 million in 2008. There were only three groups with over a million people in 1994, the Sidama whose CDR is considered in the chapter in this book, the Gurage and the Wolayta, and a large number of small groups, particularly in the Omo valley. The SNNPRS is administratively divided into thirteen Zones, 104 weredas and eight Special weredas.

  • 28 Such as one on the Dirashe by Hansemo (1983) and one on the Kore by Awoke (1985). See Shiferaw (199 (...)

127Trying to discuss CDR throughout the SNNPR is a difficult task; this is partly because of the large number of different groups, many of whom have been researched by social anthropologists in general studies with only passing reference to CDR, and since the traditional socio-political structures are varied ranging from hierarchical kingdoms and chiefdoms with courts to small egalitarian agro-pastoral groups relying on consensual and deliberative dispute resolution. There is also a discrepancy in the literature with a few groups having been studied fairly intensively and many groups with no specific CDR studies; most of the studies relate to the more hierarchical and centralised societies. This review is limited largely to publications and theses that have a specific intention to consider dispute resolution. There is not the scope within this introduction to review the vast anthropological literature on ethnic groups in the southern region, as well as historical studies, notably history MAs and senior essays28 that discuss local institutions, some of which are involved in CDR.

128Most of the CDR studies focus on three groups: the Gurage, the Kambata and the Sidama. CDR studies on Gurage include on the Sebat bet Gurage two articles by Shack (1966, 1967), an MA thesis in literature and folklore (Yewondwossen 2006), an MA in social anthropology on local institutions (Mengistu 2000), an MA in local and regional development studies on indigenous institutions (Getinet 1999), a senior essay in Law (Bereda 1999) focusing on marriage, a chapter by Bahru (2002) on the Yejoka qicha and some references in the book by Gebreyesus (1991). Among the Kistane there is a MA thesis in social anthropology (Walelign 2006), and the chapter by Bahru (2002) on the Gordena sera. CDR studies on Kambata include two articles by Singer (1975, 1980), a senior essay in political science (Seifu 1970) and a chapter by Yacob (2002). Sources on CDR among the Sidama include two articles by Hamer (1972, 1980), one by Stanley (1970), and a senior essay in political science (Melese 2002). Studies of CDR among other groups are much less common. These include three MA theses, one in social anthropology on traditional institutions among the Gedeo (Paulos 2005) and two MAs in literature and folkore, one on the Wolayta (Yilma 2006) and the other on Gamo (Temesgen 2006), and a chapter on inter-ethnic peace-making in South Omo among the Arbore and their neighbours (Pankhurst 2005).

CDR institutions

Gurage

129Among the Gurage, the case of Chaha of the Sebat-bet Gurage was discussed by Shack in terms of the role of kinship sanctions, religious notions of morality and ethics and the ridicule of public opinion in dispute resolution. CDR institutions among the Gurage are based on notions of kinship and of territory. There are two levels and institutions involved in CDR: at a lower level ‘moots’ operate at village level involving elders from neighbourhoods (sabugnet) or clans (gosa or bet) called wofencha (literally relatives) or senecha in Kistane. At a higher level the yejoka general assembly used to settle inter-clan and inter-tribe disputes among the Sebat Bet (Giday 2000, Yewondwossen 2006) and the Gordena Sera among the Kistane (Walelign 2005, Bahru 2002). The Yejoka is located in a specific place in Chaha where elders used to gather under a Podocarpus tree whose branches yaj were burred in the ground, yoka, only to sprout again (Gabreyesus 1991, Bahru 2002:21). The yejoka was said to be composed of seven ‘judges’ from each of the seven ‘houses’ of the Sebat-bet Gurage (Shack 1967). Among the Kistane in territorial terms there are village councils (sabugnet), and at a higher level district councils (Ye-Ager Shengo), as well as kinship-based councils of the patrilineal group (ye-Abotold Sbengo) dealing with cases within family and clan groups. There is also an appeal court (Gefeche), a higher court (Wemano/Gutache Sera), and finally the general assembly of all male Kistane elders (Ye-Gordena Sera). Failure to respect the decision of the Yejoka can lead to ostracism from iddir funeral associations, refusal to act as the person’s guarantor, to share food and drink, and potential exclusion of the person’s supporters (Getinet 1999). This ostracism among the Muhur is termed eka, and participants at the meeting go to the person’s house and curse him (Mengistu 2000); likewise in Kistane the person would be subjected to punitive visitations of progressively increasing numbers of ‘guests’ expecting hospitality (yekka); non-compliance could result in more serious measures ranging from confiscation of property to ostracism (Bahru 2002).

Judicial procedure

130In terms of judicial procedure each disputant has to produce a guarantee. The plaintiff presents his case and litigants have a right to respond. Witnesses may be called, or disputants maybe asked to take oaths (Bereda 1999). If disputes cannot be solved in the neighbourhood by the village headman and elders they can select their own elders as judges, whose verdict is often limited to an apology in minor cases with reconciliation ceremonies involving consumption of food and drink; there may also be fines in cash, though the emphasis is on compensation of the victim, and restoring peaceful relations. Disputants who are not satisfied can take their cases to the yejoka whose verdict is final.

131Cases related to marriage, adultery and desertion of wives were dealt with first by a special judge with a hereditary title known as Ye-Anq’it Dane (Bereda 1999). Land disputes were dealt with by another judge known as Ye-Zhre Dane, who distributed land, controlled boundaries and solved problems (Gabreyesus 1991). Among the Sebat-Bet there were legal experts known as Eqicha dana who would advise individuals. The assemblies termed shengo had standard procedures and a formal seating arrangement. Sessions dealt with all kinds of disputes notably marriage and divorce, homicide, arson and land use. Premeditated murder was differentiated terminologically from unpremeditated murder and inadvertent homicide (Bahru 2002). Decision were arrived at by consensus after exhaustive discussion, though occasionally cases would be referred to a smaller groups known as amseya among the Sebat Bet who would discuss the matter in detail and present their recommendations to the assembly (Bahru 2002). Sessions were opened and closed with blessings. Homicide cases involve guda a reconciliation ritual after the payment of the blood money (guma) (Walelign 2005). Shack suggests that the yejoka emerged in about the 1840s with the attempt by the Chaha to dominate the other groups, through their control of the main Gurage cults.

132Until 1942 the CDR institutions were independent, after which the authority of the clan chiefs was brought under the central government which established courts in Gurageland over which the district Governor presided. However, the yejoka continued to function and still has an important role. Gurage customary law is one of the very few to have been written and codified with the advice of legal experts resulting in the book translated as Kitcha: The Guraghe customary law (GPSDO 1999). Some changes and additions were effected in the codification process notably addressing gender concerns, especially in the section on marriage providing for mutual consent, divorce rights for women and penalties for adultery and abduction. Other articles included injunctions against lavish feasts, concern about enset being replaced by cash crops, wilful infection with HIV/AIDS being equated with homicide, and measures against smoking, alcoholism and chat-chewing. Among the Kistane the basic principles were laid down in 1994, and the more elaborate code approved in 2000, with similar attempts to oppose harmful customs notably abduction, excessive wedding and funeral customs and ostentation (Bahru 2002).

Kambata

133Among the Kambata the CDR system operates within the customary code of conduct termed seera, (also known at maretta meaning ‘commitment to truth’) which is widespread in southern Ethiopia (Yacob 2002). Local territorial institutions include the heera at the lowest level, followed by the cotcho at an intermediate level and the kokota as the largest territorial unit. Breech of the decision of the kokota was said to attract the ‘black’ eye and result in a curse. Kambata CDR was operative at two distinct levels (Singer 1980). There was a legal structure tied to the political system and a second one that was part of the overall kinship structure. However the two systems overlapped at both the lower village level and at the highest level of the king (woma) who was the ruler from the Oyeta dominant clan. Judges at the village level were referred to as woshebi dana (elders). Cases that could not be resolved by them were taken to district judges (gacho dana) who were appointed by the woma. The Ilemi dana or Boki Dana who was the chief judge, deals with all inheritance matters. Disputants dissatisfied with the verdict of village judges could take their case to the Ilemi dana and finally to the woma. The Kambata also had assemblies ya’a at which thieves could be found out and ostracised with no one visiting them or going to their funeral (Seifu 1970).

Sidama

134Among the Sidama there are four to five levels of CDR: the hamlet or neighbourhood (olla or allauw), dealing with simple matters, lineage, village, sub-clan (bosello) and clan, and among the Aleta inter-clan (Hamer 1972, Melese 2002). At neighbourhood Olla level disputes are considered at Songo councils to which disputants present their cases in front of the elders presided by a respected elder. The oldest elder starts the proceedings with the phrase ‘do you hear?’. The plaintiff presents his case, followed by the defendant. The elders then withdraw to consider the case and reach a consensual decision. The wrongdoer is asked to confess, pay a fine and render compensation when necessary. If guilt is not evident elders may take the suspect aside and attempt to persuade him to tell the truth. If the suspect refuses elders declare that only the sky god Magino can judge what is right, which is tantamount to a curse. The legal sanction of the songo was termed sera and fines could be imposed; so long as the person did not pay he would remain a ritual outcast. Litigants might be required to take an oath to testify that the information they give is based on truth. Witnesses might be called and also be asked to take an oath. At a higher level the ritual leader Godan was involved in stopping fighting and considered cases, along with Songo councils (Stanley 1970). Wrongdoers ask forgiveness, or pay fines or blood price in homicide cases. Those who did not comply could face cursing and ostracism. Among the Sidama voluntary associations mahabar also play a role in settling disputes; the committee of this recent institution which arose with the monetisation of the economy took on the customary term songo, and sought to mediate between individual and collective interests (Hamer 1980).

Gedeo

135Among the Gedeo, according to Paulos (2005), the gadaa institution plays a key role in dispute resolution. The general assembly called ya’a takes overall decisions, and cases are considered at different levels depending on their severity. The fear of cursing and ostracism is a powerful force for compliance. Sanctions may include fines and cleansing rituals in the case of unintentional murder. Dissatisfied litigants can take their cases to higher gadaa officials, but the decision of the Aba Gadaa is considered binding, as it is the highest rank after the ya’a assembly.

Wolayta

136Among the Wolayta according to Yilma (2006) at a local level disputes are resolved between neighbours and/or relatives by chimata elders. Disputes involving homicide are dealt with by the chucha-checha institution. When an oath is required the mechanism is referred to as chako. The Protestant church is involved in dispute resolution through its elders, referred to as wassa keta chima. Where disputes involve inter-clan conflicts notably over land, grazing and livestock theft, 12 elders are selected from each side. An elder from the side that is considered guilty will cover his face in soot, and a cow and sheep are slaughtered in a reconciliation ceremony when the litigants eat and drink together. In homicide cases a day is set for a public reconciliation at which the offender appears with his face covered in soot and begs for forgiveness, and a cow and sheep are slaughtered. The offender and the father of the deceased will drink from the same cup to mark the end of the conflict.

Gamo

137Among the Gamo according to Temesgen (2006) in Doko there are a range of individuals and institutions involved in dispute resolution. The korefinie is the senior man in a given clan responsible for administering the clan and settling internal disputes. The shalle are the elders of the area by this name who are considered to be particularly knowledgeable about dispute resolution. In homicide cases they go to the house of the deceased carrying a stone and plead for forgiveness and organise a reconciliation ritual. If the relatives refuse they leave the stone at the gate and curse them. At the reconciliation the offender shaves his hair and covers his body with soot. The ceremony involves slaughtering a cow and the offender falls at the feet of the deceased’s brother, kissing his knees asking for forgiveness and the brother is expected to embrace him. They then both eat the liver of a cow starting from opposite directions and drink together. The Bollanne Donna is involved in homicide cases and is a hereditary role. The Giqqa Eeqa are hereditary positions involved in boundary and land disputes, with one person for each of the three areas within Doko. The Gesbo maaka is a clan involved in reconciling people who commit incest with the rest of the society, which requires a purification ritual by a river and the shaving of the heads of the offenders by the despised degala tanners to avoid ostracism. The maro are ritual experts that can suggest the causes of conflicts and may suggest solutions. The Kare is a person responsible to protect people from other areas and resolve disputes with them. The Wogaa Era so are people knowledgeable about the traditional institutions of other areas of Gamo and are consulted when decisions made in Doko generate disagreements. The study by Freeman (2002:134-8) shows the importance of assembly places Dubusha in Doko where sacrifices are carried out to maintain or reassert the peace and fertility of the community dere, preceded by blessings. Often a wise and neutral third party, ganna, is involved in helping resolve conflicts. The assemblies allow all persons to speak, and continue till a consensus is reached, whereupon the wrongdoer gets down on his knees and asks for forgiveness; first the wronged person forgives him and then the rest of the assembly.

The south-west

138In the southwest, notably among agro-pastoralist groups, authority has often been based on oratory, and decision making and dispute settlement depends on lengthy discussion to reach a consensus, after which the position is summed up by leaders (Turton 1975, Strecker 1988). Inter-group conflict and warfare has been common in the southwest and particularly South Omo area. Starting with the book Warfare among East African herders edited by Fukui and Turton in 1979, there has been considerable debate about the reasons for these conflicts and the relative importance of ecology, economic factors, the spread of automatic firearms, resource competition, cultural values, age-organisation, ritual, and human agency (Strecker 1994, Abbink 1994, 1999, 2000, Tadesse Berisso1994, Turton 1999, Taddesse Wolde 1999).

139There has been much less writing on traditions of dispute resolution although there are cross cutting institutions notably bond-friendships and trading networks (Taddesse 2005). Lydall and Strecker (1979:33) noted how Baldambe gave an outline of peacemaking between the Hamar and Nyangatom over half a century ago. Abbink (1994) suggests that peace-making is constrained by insecurities, resource competition, relations between highland and lowland groups, among pastoralist groups, and with the state. He concludes that only if new resources become available with shared development projects can a trans-local ‘community’ emerge. A peace ceremony with the participation of several groups in the region was carried out in 1993 with the involvement of anthropologists, an NGO and government representatives. The ceremony involved cursing war by blunting, breaking and burying spears and blessing peace through the sacrifice of animals, the wearing of fatty strips and the exchange of staffs and agricultural tools symbolic of the different groups, as well as much debating about the causes of the conflict and ways to resolve it. At the event the discourse that sought to create convergence used mutual metaphors, allusions to shared kinship, reference to commensality, recalling economic links necessary for social and political reproduction, reference to similar and interrelated forms of leadership and institutions, and shared conceptions of spiritual agency along with blessing and cursing as archetypal cultural forms (Pankhurst 2005). There have also been a number of more recent government and/or NGO organised ‘peace conferences’, that have sought to promote inter-ethnic harmony, which it is beyond the scope of this chapter to review.

140To conclude CDR institutions in the SNNPR are extremely diverse and complex, involving a wide range of systems including hierarchical institutions with courts, and a layered structure, sometimes with judicial experts, the involvement of religious and clan leaders, in some societies highly regulated assemblies, some involving age-grading, and often elders’ councils.

Tigray Region

No one became wealthy from compensation and no one got drunk from milk water
Irob saying, Shimelis and Taddesse (chapter on Tigray in this book)

141Tigray was the center of power of the Ethiopian state during the first millennium until the end of Aksumite period around the 7th century. Tigrayan monarchical traditions continued to play a role in later stages of the imperial period. The current region of Tigray had a population of 3.6 million in 1994 according to the census, with an estimated projection of 4.5 million in 2008. The population is fairly homogenous composed of mainly Orthodox Christian Tegreni representing 95 percent, and small Kunama, Irob, Agew and Saho minorities.

142Case studies of CDR in Tigray include an MA thesis in social anthropology by Tarekegn (2005), and a senior essay in political science by Abrha (2005) both of which focus on the Wajirat people. An MA thesis in social Anthropology by Assefa (1995) has a chapter dealing with inter-ethnic relations between Afar and Tigray which is discussed under the Afar section. The book by Giday (2000) also has a section on Tigray.

143Three forms of CDR are important in Tigray First, the most widespread is the role of elders who come together when the need arises to resolve local disputes. Second, the church and its priests may be involved, either as members of the elders groups, or by directly putting pressure on disputants and in particular the wrongdoer to compromise using the sanction of the threat of excommunication. The third form is a sophisticated elders’ council called gereb with assemblies known as demer found in the Wajirat area.

144CDR in Tigray thus relies on the services of elders, who are often members with a good reputation in the community. Sometimes, an Orthodox Christian priest may also take part as one member of the elders. The Church itself may be involved in serious cases since the fear of ex-communication is a powerful incentive for compliance. Abrha (2005) also mentions the ribke-kabinat, a general assembly of clergymen which meets once a month to discuss various issues including dispute settlement, and mentions that a priest will travel with his cross to a murderer’s house along with the elders to request mercy in the name of the offender.

Judicial procedure

145Procedurally cases are initiated by plaintiffs and defendants are asked whether they accept, which they generally do. The litigants are brought face to face and asked to give their respective accounts and then questioned. The elders ask the litigants if they agree to be bound by the decision to which they usually agree. After considering the case the elders pass their decision. Since any violation of the verdict can lead to monetary penalties payable to the wronged party, litigants are said to accept the decision which is considered binding (Giday 2000).

  • 29 The cases discussed by Tarekegn include four murder cases: in the first the murderer had been impri (...)

146The Wajirat institution called gereb is very elaborate (Tarekegn 2005). It was involved in tackling all kinds of problems particularly at times of crisis such as war or famine.29 It is run by the abo gereb the elders from the twenty ambas, villages, which are divided into two parts. Disputes are resolved in the context of the demer, an assembly held at two levels. First at the amba level if the dispute is localised and minor, and second, if it is more widespread involving people from different villages, at a general assembly which all men were expected to attend on a Saturday. The demer would designate a chairman for the day and any man could participate. At the end the chairman would summarize the consensus to ensure that there was no opposition. In serious cases the demer may appoint one representative from each amba to consider the matter and suggest a solution. Abrha (2005) notes that if the 20 men are unable to find a solution further members up to 80 are selected.

147Elderly women also had an institution called debarte, which was involved in organising prayers in times of drought or epidemics, and had a role in mediation, notably in cases of homicide. Abrha (2005) suggests that people fear the curse of the debarte if they reject their suggestions. If relatives request arbitration, the women travel with elders and priests to the family of the deceased to request acceptance of an apology by the wrongdoer.

148The gereb institution is thus highly involved in resolving homicide cases through imposition of blood money, reconciliation feasts with participation of religious leaders and sometimes the imposition on the murderer that he should leave the area. The gereb is also said to be effective in inter-ethnic homicides and conflicts over grazing, territory, and livestock theft involving homicide. The local government relies on the gereb to resolve such cases, but according to Abrha (2005) local administrators are not very appreciative of the role of CDR.

149In recent times there have been attempts in Tigray by the political authorities and the formal system to make use of customary social capital and the legitimacy of respected elders in resolving conflicts. During its struggle against the Derg the TPLF involved community members in dispute resolution through the siwa institution, composed of three elected members of the locality, and the fird Bayto, a semi-government court council that serves as a link between government and community institutions (Giday 2000).

150To conclude, CDR institution in Tigray involve a variety of institutions, with a prevalence of elders’ councils, the frequent involvement of the orthodox church, strong regional institutions notably among the Wajirat, and recent linkages with the formal system.

Interethnic conflict resolution

151In general, in most regions, CDR institutions serve a particular ethnic group and do not cut across ethnic boundaries. This is not surprising in that most such institutions are built on cultural rules linked to local belief systems. In some cases institutions are even limited to a small geographic area or community in which elders play a key role. However, some cultural concepts cross geographic boundaries of specific ethnic groups and may be used within culture areas. Sometimes in border areas and ethnically mixed areas joint institutions have developed. Certain institutions also facilitate trade, exchanges, intermarriage and peaceful coexistence within broader regions, between highlands and lowlands and between different ethnic groups. Moreover, notions of reconciliation are ubiquitous and conceptions of right and wrong universal frameworks.

  • 30 Oromo traders had bond-friends among the Gumuz involved in gold panning (Tsega 2002:526).

152Certain traditions may help create cross-cutting links and ties on an individual basis that can reduce tensions in times of conflict and allow those involved to travel safely in each others’ territory. The most common in this respect in the bond friendship which are important in the east, west and south and can cut across ethnic boundaries. In the Southwest the institution is known as bel and jala (Tadesse 2005), in the East qalla among the Afar, fuqur among the Tigrayans, and konissa among the Oromo (Aramis n.d, Ayalew 2001). In the West the Oromo michu institution, literally meaning friendship, created bonds with the lowlanderGumuz,30 but also with the Shinasha and Agaw, who also made use of the institution with the Gumuz. The Amhara coming to the region also adopted the institution. (Wolde-Sellassie 2002:273, Tsega 2002:528). Inter-ethnic institutions may promote peace and prevent conflict and may be instituted after a conflict.

  • 31 Tsega (2002:527) notes that the Dongoro Oromo and their chief Tufa Foroso who settled in the area w (...)

153There may also be borrowing or extension of an institution existing in one group. Thus in the West the Gumuz mangima institution was involved in resolving disputes with highlanders, including the resettlers (Wolde-Sellassie 2002:247-69). Such bond-friendship apparently were sometimes initiated during a ceremony involving slaughtering of livestock, with members of both sides mixing their blood and breaking a bone to depict ending their quarrels and elders’ blessings and an oaths of not breaking the peace (Tsega 2002:526). Though the ceremony takes place once, the friendship is considered binding and may pass on from one generation to the next and help maintain peace.31

154How far this actually helps in dispute resolution rather than merely creating conditions for peaceful coexistence and ensuring that bond friends can travel safely in each others’ territories would need further corroboration. In the South Tadesse (2005) notes how bond friends may protect one another at times of conflict and remain latent at times of war to be reactivated as soon as peace resumes and suggests that the institution helps to sustain peace or at least limit the likelihood of endless war. Another institution facilitating trade and interethnic relations across a wide area, is the fuld’o institution which solves disputes among members.

  • 32 There were also three cases of inter-ethnic CDR with the Afar. The first between Afar and people fr (...)

155In the east the most developed interethnic dispute resolution institutions is between the Afar and their neighbours. Inter-ethnic conflict resolution mechanisms between Afar, Issa, Tigrayans, and Argobba, are known as xinto among the Afar, édiblé among the Issa, gereb among the Tigrayans, Aborogé among the Amhara, and arrara among the Omoro. Inter-ethnic conflicts over land and homicide between Afar and Tigrayans and the Wajirat were resolved through the gereb institution. The elders who form the institution are known as abo gereb and are composed of elders from each side (Assefa 1995, Kelemework 1996, Tarekegn 2005). The gereb is particularly concerned with resolving homicide cases usually through the payment of compensation blood money as the cases discussed by Tarekegn show.32 There has been much discussion in the literature about how such institutions have been weakened in part through the extension of the state justice system.

156In the east, an institution called sedqo creating relationships between an Amhara and members of a Somali clan developed probably at the beginning of the 20th century (Tibebe 1994). A member of the Somali acted as the father taking the Amhara as an adopted son in a ceremony at which an two oxen were slaughtered (one for the Amhara as Christians and the other for the Somali as Muslims) with each party holding the head of the oxen for the other group during the slaughtering as a gesture of friendship; they would utter a commitment and as a symbol of oath-taking pool the eyes of the other’s cattle and break the legs and declare that the same would happen if they break the pact. The adopted son would be placed on a stool and the fictitious father would carry him on his back while songs were sung. The ceremony was concluded by blessings by elders who also outlined the rights and obligations. The bond entitled the Amhara to land, and to entrust herding of his cattle. He was also responsible to contribute to blood payments for his adoptive group. The Amhara would provide hospitality in town to his Somali ‘father’. In some cases the sedqo institution developed such that whole communities were involved rather than just individuals. However the policies of the British and Italians undermined the institution and sowed the seeds of greater discord in the post war era.

  • 33 Literally ‘sucking the breast’ or the thumb of the patron mixed with honey (and sometimes milk) sym (...)

157The Oromo gradually expanded from south to the centre and west through raids and population movements, exacting tribute, and incorporating groups through various mechanisms (Negaso 1984). These included setting slaves free, luba basu, group or individual adoption or fostering, mogassa or gudifacha, patronage, harma hodha,33 and bond-friendships, michu, which remains an important element of establishing and maintaining peaceful interethnic relations (Bartels 1983:167, Baxter 2005b:901, Blackhurst 1996:240, Mohammed 1990:21, Wolde Sellassie 2002, Tsega 2002). In parts of Shewa where Oromo and Amhara lived intermingled in close proximity there developed a shared institution of dispute resolution (Nicolas 2005:62-68). This shared complex was able to develop due to a common tradition of reliance on elders in dispute settlement. Differences in traditional institutions, languages, and mediation procedures were overcome due to the state influence, cultural exchange and assimilation, and some acceptance of elements of each others’ traditions. Means of accommodation including ‘supplementation’ from each others traditions, ‘doubling’ by using both traditions, curtailing or replacement of traditions which did not have resonance from the other group (Nicolas 2005:66-7)

158In urban contexts institutions have also developed which have been involved in inter-ethnic disputes settlement in part through mehaber voluntary associations of migrants and iddir burial associations; whereas the former were initially formed on the basis of common origins of a single group in the urban setting of Addis Ababa even from the early period of the 20th century multi-ethnic iddirs developed along with urbanisation and monetisation of the economy resulting in semi-formalised institutions with their own rules and sanctions that could involve fines or ostracism (Pankhurst 2003b, Dercon et al. 2006, de Weerdt et al. 2007). In the early 1970s the majority of iddir leaders in Addis Ababa (87%) saw resolving misunderstandings among members as the second most important role after arranging funerals and burials (Koehn and Koehn 1975:406). In situations of contact between groups even in the small-multi-ethnic settlement referred to as Tabia in the Horr country joint institutions developed between the Hor and the Fuld’o to settle disputes including those that involve civil servants often by imposing a fine (Tadesse 2005:141).

Conclusion

159In the final part of this chapter we consider the spectrum of social and legal structures, principle of social organisation in CDR institutions, including territory, kinship and spiritual authority, key concepts and culture areas, judicial processes in Customary Dispute Resolution, types of disputes with a focus on homicide, inclusion and exclusion relating to gerontocratic power, gender, age and marginalised status, and transformations of CDR institutions.

Social and legal structures

160It is a common assumption in anthropology that political and legal structures can be expected to correspond to types of society. This was the basis of the dichotomous classification of African societies into two types, by Fortes and Evans Pritchard in their African Political Systems (1940) in which centralised systems are differentiated from ‘acephalous’ ones without overall leaders. In Ethiopia societies with more centralised political systems had customary legal systems that involved courts, with several levels of jurisdiction, concentration of power and the use of coercive punishments. This is clearest in the case of the central state of the emperors and kings, and in some of the monarchies and chiefdoms in the south and west. It is also true that the smaller more egalitarian societies have customary dispute resolution institutions based on assemblies and/or gatherings of elders generally at a localised level, often resolving disputes on an ad hoc basis as they arise and relying largely on deliberation, persuasion and consensus.

161However, this stereotype is inadequate in several respects. First, there is a continuum from centralised to egalitarian social formations rather than a dichotomy with a range of intermediary forms. Second, many customary systems have institutionalised measures that rely on spiritual sanction backed by the threat of cursing or social exclusion which can be effective and coercive. Third, some of the ‘egalitarian’ societies do have forms of informal leadership that may be based on inherited kinship statuses, wealth and big-man status, or spiritual authority for instance related to being ‘rain-chiefs’, or prophets. Fourth, many of the more egalitarian systems are very complex, elaborate and sophisticated and some have functional specialisation relating to dispute resolution roles. Fifth, some egalitarian systems have specialists for different types of disputes.

162In fact one could argue that the judicial systems of the more egalitarian and less centralised societies are often more intricate and ingenious in their judicial procedures in five respects: First, in the formulation and flexible use of legal precedence; Second in drawing on cultural repertoires of proverbs, sayings, fables, myths etc; third, in the setting of ranges or levels of compensation or punishment; fourth, in avoiding, reducing punishments or transmuting them to symbolic sanctions, an apology or public riducule. Fifth, and most importantly, in enabling reconciliation, often through elaborate restorative rituals involving commensality. As such they are often more effective than court systems relying on punishment and imprisonment, which render the offenders unproductive, impose hardships on their families and can foster resentment, bitterness and continued feuding.

Principles of organisation in CDR institutions

163Customary institutions have as a major function maintaining or restoring peace. The legal structures of CDR systems often reflect principles of social organisation and key judicial concepts that may be related to specific cultures or culture. In considering the diversity of CDR systems and institutions in Ethiopia they can be considered to rely on three principles and combinations thereof: (1) territory, (2) kinship, and (3) spiritual authority.

Territory

  • 34 It is significant that the Sycamore is included in the centre of the Oromia Region flag.

164The most prevalent form of dispute resolution rests on locality. Throughout Ethiopia groups of elders are called upon to mediate and settle disputes. This is particularly the case in disputes within and between families and households. The elders are people known to the litigants and living in the same village or area. Such gatherings may be located at specific places. In some societies there are ritual spaces for assemblies that consider among other things disputes. The most famous such cases of distinct fora for assemblies are the Konso mora and Gamo dubusha (Tadesse 1994). Dispute resolution sessions are often held under trees appreciated for their shade during lengthy sessions. Among the Oromo the meeting places of gadaa assemblies, known as Ch’affee, were held under sacred odaa, Sycamore trees.34 The most famous were those of Liban and Dirre in Borana, that of Odaa Nabi, some 30 km east of Addis Ababa, Odaa Bisil in the west, and Odaa Bultum in the east (Mohammed 2003:662, Nicolas 2006). Among the Afar the mablo dispute resolution session was held in a circle called maro, often under a kusra or Zizyphus tree (Aramis, n.d.). Among the Gurage the yejoka institution met under a famous Podocarpus tree whose branches were said to have bent so low that they become buried in the ground and sprouted again (Bahru 2002). In Sidama as described by Ayke and Mekonnen in this book, the Gudumaale that literally means ‘justice place’ is a hilly ground outside the village where disputes are resolved.

165In some CDR systems different villages or communities may have fora that bring them together in cross-cutting cases, such as the Demer institution among the Wajirat. In a few cases there may be a location that serves for meetings of larger groupings that go beyond specific communities bringing together several clans or sub-ethnic groups. Among the Borana the meeting place at Gaayo, now located in the central area of Boranaland is where the Gumii Gaayo, the ‘meeting of the multitude’ brings together Borana from different places every eight years according to the gaadaa cycle and are contexts for the announcement or amendment of customary law (Schlee 1994, Abdullahi 1994). Among the Cheha Gurage and neighbouring Sebat-Bet Gurage the yejoka tree is used for dispute resolution going well beyond the immediate locality.

166Meetings in many CDR systems tend to take place on an ad hoc basis as the need arises when unpredicted conflicts occur, and may therefore depend on where the dispute arose. Elders may choose a convenient intermediary or neutral place and a convenient time. There are however, days that are considered propitious or not for dispute settlement among various groups. Reconciliation sessions especially after homicide cases in many societies are protracted and a considerable time, often of a year of more, should elapse before the final rituals are held. Meetings for other purposes that are regular such as mehaber, religious associations in the name of a particular saint held monthly in different members’ houses in rotation, monthly iddir funeral association meetings that may be held in a tent or hall, and iqqub rotating credit association meetings in members’ houses can also be contexts for solving disputes among members.

Kinship

167A second key principle used in the organisation of CDR institutions is kinship. Even where we do not find clan systems, mediators are often selected among kin of the disputants. So for instance among the Amhara the yezemed dagna, the ‘relative judge’ represents litigants to whom they are related. In many Ethiopian societies the kinship system is highly involved in dispute settlement. Thus clan heads are often involved in adjudication for instance among the Afar. There may also be individuals selected by the clan to fulfil general or specific dispute resolution roles as among the Gamo, or there may be specific clans with a reputation as mediators such as among the Nuer.

168Collective responsibility of the extended kinship unit, usually the exogamous clan, particularly for payment of blood money in homicide cases is often a defining aspect of group identity as noted by Evans Pritchard in his famous study of the Nuer (1940a). In many societies where kinship plays a key role in social organisation, such as among the Somali, the kinship unit is actually referred to as the diya ‘blood money’ paying group, using an Arabic term, highlighting the importance of dispute resolution for defining local identity and responsibility (I. Lewis 1955, 1961). Even where there are no strong corporate clans or lineages such as in Amhara, blood feuds and vendettas involving reprisals can be an important aspect of disputes and their settlement. In a number of societies the different levels of the kinship system have their own mediators going up to the highest levels, for instance among the Kambata.

169However, territory and kinship should not be conceived of as mutually exclusive principles of social organisation and they are often not clearly differentiated, especially where they overlap. In many societies kinship and territory are involved as complementary principles. For instance among the Gurage, Kambata and Borana separate assemblies are formed on the basis of clanship and of locality in villages or settlements. Herbert Lewis (1974) has argued that among the Oromo and Cushitic people in general the role of kinship has been exaggerated in the literature and that territory, voluntary associations, achievement and universalism are more important. However, Helland (1994) shows that among the Borana at least kinship plays a key role along with territorial organisation.

Spiritual authority

170The third pervasive principle of social organisation in CDR institutions is spiritual authority. Even where spiritual authority is not a principal component of the CDR system, three elements of spiritual authority are often present: blessing, cursing and oath taking, and are common at key moments in the judicial process.

171Blessing

172A CDR session is often opened with blessings, and most importantly the conclusion, particularly in cases of reconciliation usually involve blessings by the elders or a spiritual leader. Among the Oromo at ceremonies the blessings may take on a formulaic nature in which the blessing by one clan representative is responded to by another in what Mirgissa (1994) referred to as ‘argumentative blessing’. This relates to the balanced opposition of blessings which is a customary poetical mode of expression among the Borana (Baxter 1990). In societies that are of have become Muslim or Orthodox Christian blessings may be carried out by a sheikh or priest who may accompany elders, for instance in trying to persuade parties to be reconciled. Among the Afar the Fatiha, the opening verse of the Qur’an is pronounced by the clan leader to seal a homicide case. Among Christians priests may likewise conduct final blessings, and may carry the tabot or Ark of the Covenant to the reconciliation session as noted by Melaku and Wubishet in this book.

173Blessings in southern Ethiopia often take the form of religious leaders blowing spittle in the direction of those to be blessed or pardoned while issuing often standard cultural formulas of wishing fertility for people, livestock and crops, and banishing ill-health, drought and conflict; these may also be linked with coffee ceremonies and anointing the head with butter (Baxter 1990). In a peace ceremony in Arbore, blessings were carried out in three contexts. First, in unison by elders following the spiritual leaders raising and lowering their ritual sticks. Second, the most senior woman anointed the heads of the spiritual leaders and their ritual sticks with butter uttering blessings. Third, final blessings were performed by representatives of different groups in their respective languages and cultural and personal styles with the audience echoing the last word of each blessing in chorus, thus creating a sense of unison, assent and convergence (Pankhurst 2005:271-3).

Cursing

174Blessing and cursing are usually not conceptually separated but rather are often inextricably linked ‘archetypal cultural forms’. In the Arbore peace ceremony they were linked through the sun since the rising sun was associated with blessing and the setting sun with cursing evil. They were also linked through the two ends of the woko stick, with the hooked end serving to pull blessing towards one, and the forked one to send evil away (Pankhurst 2005:271). Cursing is thus intimately connected to blessing as a negative formulation, and may also be used in the event that litigants do not comply with decisions or swear falsely. It is considered potentially more powerful and inherently dangerous, but its force relies in the threat, and in practice it is used parsimoniously lest it value depreciates and since its power lies in its deterrence effect (Pankhurst 1992b). Whereas blessings are used liberally in daily life (Strecker 2006) as well as in special rituals and dispute settlement, cursing is performed very rarely and primarily in the context of dispute settlement. Blessing and cursing is often the prerogative of spiritual leaders. For instance among the Nuer the Kuaar muon, the ‘Leopard-Skin Chief’ has a sacred association with the earth (mutt) which gives him certain ritual power to bless or curse.

Spear-blunting

175In the Arbore peace ceremony the spears that symbolise war were blunted, broken and buried along with cursing of those who would try to use them. The main curse was related to the notion that anyone who unearthed the buried spear would have the spear turn against him in a kind of ‘boomerang effect’. As one elder put it to wide applause ‘one who takes out the spear, Let God kill him; he is not one of us’ (Pankhurst 2005:274). Likewise, in peace ceremonies among the Anywaa and Nuer the spear tips used in the animal sacrifice are blunted and bent, and among the former the spears from each side are kept as a witness to the agreement in the inside of the roof of the ruler’s house. Among the Nuer the sacrificer who is the carrier of the clan’s spear-spirit curses anyone who will break the agreement reached in the reconciliation process. The ceremony referred to as Gurtong is a phrase consisting of two words: Gur means to ‘grind’ or ‘blunt’ and tong means ‘spear’. The words and the phrase exist in most Nilotic languages including Anywaa. Gurtong is mainly used in settling disputes between two ethnic groups. (Dereje in this book, Sommer 2005, 2007). Among the Oromo the bringing of a gun and spear to rituals of reconciliation after homicide and swearing and promising not to disturb the peace symbolise the idea that the person who did so would be killed (Nicolas 2005:184). Spears used as symbols in cursing were also mentioned in Wellο (Pankhurst 2001). The occurrence of spear blunting linked to cursing over a wide area may thus be an important ‘cultural archetype’. The curse of certain groups, or clans may be greatly feared. For instance, Tadesse notes that the curse of the Fund’o is particularly feared because it is the curse of the clan leader of the despised craftsmen (2005:141).

Swearing oaths

176Oath-taking is another important spiritual aspect used in many CDR institutions. It may take place in different contexts and phases and involve various actors or combinations in the CDR process, including 1) the accused if there is no proof, 2) witnesses, that they will tell the truth, 3) elders that they will be fair, 4) both disputants that they will abide by the decision, and 5) all the members that in turn that they are not guilty.

177Among the Oromo the term kakuu is used and is also the word for lightning, which is said to strike someone who swears falsely (Nicolas 2005:217). The elders themselves may be required to take an oath. Thus among the Oromo the jaarsa biyyaa may be expected to take a public oath, to promise to be fair and faithful to both parties, as noted by Areba and Berhanu in this book. An oath may also be taken when there is not enough evidence (ruga). It may be expected that not just the suspected criminal but his close relatives including his father, mother, elder brother, and wife also take the oath. The oath may be taken in the name of Waqa (God) or in the name of the whip which is the symbol of status of the mediators representing the seera and used in gaada assemblies where laws are proclaimed as well as in dispute resolution cases (Nicolas 2005:207-8).

178Oath-taking is most common where the identity of the person who committed the offence is not known but the plaintiff has suspicions. Thus among the Somali, if the plaintiff does not have witnesses, the defendant may be required to take an oath denying the allegation as noted by Mohammed and Zewdie in this book. Among the Nuer when there is uncertainly in a dispute brought to the Kuaar Muon, the Leopard-skin Chief, oaths, which are in the nature of ordeals, such as swearing statements on the leopard skin, may be employed as noted by Dereje in this book. Among the Sidama before giving their account, the witnesses have to swear in front of the Moticha by touching his forehead with their palm, and again by touching the surface of the Gudumaalee (the ground) only to tell the truth, what they have seen and heard as mentioned by Ayke and Mekonnen in this book. Another context where swearing may be required is in reconciliation, notably of homicide, where litigants may be required to take an oath that they will not resume the conflict as noted among the Oromo (Nicolas 2005:90). Among the Gumuz a ritual of oath taking is resorted to resolve a deadlock (Berihun 2004). Among the Wolayta when an oath is required this is refered to as chako (Yilma 2006).

179Oath-taking, particularly relating to swearing innocence, is sometimes associated with monotheistic traditions. In Muslim societies swearing over the Qur’an may occur as among the Afar, where the defendant swears an oath putting his hand on the Qu’ran that he did not commit the offence, whereupon he may be set free from the allegation as noted by Getachew and Shimelis in this book. In some Christian traditions the party against whom a witness testified had the right to request a court to require a witness to tender an oath, usually done during mass, when the holy communion was offered. The witness would close the door of the church or hold the holy bible (Aberra 1988:247).

180Some CDR systems rely on oath taking to find culprits at collective meetings, notably in the cases of afersata and belé where members of the community have to swear that they are not guilty. This may involve the use of symbols of spiritual authority, and may involve an ‘ordeal’ which may not in fact be implemented or a symbolic act such as walking over a stick to prove and signify innocence, which may replace the verbal utterance. Swearing falsely is said to lead to misfortune and result in affliction not just for the person but also for their offspring, in the belé case said to result in cursing and misfortune for seven generations.

Spirit-based dispute resolution

181Spiritual leaders are not always involved directly in dispute resolution unless the dispute relates to spiritual matters or transgressions, though they may be witnesses or participants that provide spiritual sanction, or may be called upon in very serious cases, as a final authority. However, in many societies ritual leaders have a crucial role in dispute settlement and may be the final appeal as in the case of the Shinasha Qolla discussed in this book by Ayke and Mekonnen. How central religion is as a basis for authority is a complex issue. Ioan Lewis distinguishes between central and peripheral cults in his book Ecstatic Religion (1971). He argues that among the Kaffa possession cults are central whereas among the Macha Oromo they are peripheral. However, among the Macha the role of the Qallu ritual leaders in dispute settlement, as Knutsson (1967) demonstrates, is important. The Qallu are involved in dispute settlement, enter trances and are possessed by spirits that provide guidance about guilt and how to resolve conflicts. The Qallu may be involved as one of the elders in dispute settlement or, if the elders’ dispute resolution fails, cases may be referred to them. They also play a central role in cases requiring ritual appeasement including homicide and lifting curses. The Qallu has sufficient authority to render his decisions definitive and effective (Knutsson 1967:131).

182The case presented by Melaku and Wubishet in this book of Wofa Legese in Northern Shewa is part of a wider phenomenon of ecstatic religion and especially the zar possession cults (I. Lewis 1971), with a clear dispute resolution component and may be considered to be part of a cultural complex. The Wofa’s extraordinary judicial authority in dispute settlement and his secular power are crucially related to his role as a spirit-medium. Spirit-medium-based dispute resolution plays a crucial role in Kaffa (Orent 1969), is important among the Macha Oromo (Knutsson 1967), the Tulama Oromo (Morton 1975), and among the Amhara in Northern Shewa (Aspen 1994 and the case study in this book). It would seem that this complex is found mainly in the west of Ethiopia and is also reported among borderland groups notably the Gumuz, and the Me’en. Though it is a feature of the central Oromo it is absent among the Oromo in the south and east. In many cases this form of dispute resolution is used when matters cannot be solved by local elders, or where there is no conclusive proof but just suspicion on the part of the victim. The aggrieved person will then approach the spirit medium who will summon the accused. The process often involves the tying of a thread on a tree or building of the ritual shrine and failure to appear before the medium is said to result in misfortune, illness or death. When both parties are present they may be questioned and the medium will enter a trance to elicit the verdict of the spirit. The final settlement may, however, involve elders who finalise the agreement and reconciliation.

Territory, kinship and spiritual authority

183Just as notions of territory and kinship are not necessarily in contradiction but rather are overlapping and complementary, likewise in many cases the principle of spiritual authority may be used in conjunction with or in a supplementary way to kinship and/or territory. For instance among the Gamo as Bureau (1981) points out the saga elders through their spiritual authority provide justice on demand whereas cases that they cannot resolve are taken to the dulata assemblies, with a more secular authority based on territory backed by the sanction of ostracism (hilo).

184Among the Macha Oromo elders who mediate may bring cases that they are unable to deal with to the. Qallu spiritual leaders (Knutsson 1967). The spiritual authority may thus be reserved for more serious cases or cases that involve moral transgressions. In some cases the secular and spiritual authorities are merged in traditional leaders whose power may be in part be related to or legitimised by spiritual authority which may often be inherited.

185Among the Konso the Poqalla are hereditary clan lineage and clan heads, and were mediators among hostile towns (Amborn 1984, Shako 1994). However, Watson (1997) shows that there are two levels the ‘small poqalla’ who have jurisdiction within their villages and the ‘large poqalla’ or regional ones who have authority over a number of villages within an area, with their power deriving from their control of land and thereby labour. Thus the economic, kinship and religious elements are ‘embedded in each other and cannot be separated’, and territorial, kinship and spiritual aspects are inextricably linked.

Key concepts and culture areas

  • 35 Such classification may be based on linguistic criteria, differentiating Cushitic, Semitic, Omotic (...)

186In many societies key concepts structure peoples ideas of justice. Notions such as custom, peace, justice, reconciliation, and moral conceptions of right, wrong, truth and falsehood may be considered universal. However, certain concepts are given more salience and may have wider ranges or specific connotations and resonances within specific cultures and wider culture areas. The concept of culture areas35 or ‘circles’ (Kulturkreise) was coined by the German scholar Leo Frobenius, developed by his followers and applied in the Southern Ethiopian context by the researchers of the Frobenius Institute on the basis of expeditions to Ethiopia in 1934-5, and in the 1950s and was used to characterise groupings that share cultural traits or forms of social organisation beyond specific ethnic groups (Braukämper 2002, Pankhurst 2006a). More recent regional comparison in structural, historical and agency-oriented approaches point to important trans-group connections and the development of shared customs, kinship patterns, religious ideas, and rituals (Abbink 2005a).

Sir’at

  • 36 The current terms in Amharic for culture bahl ‘culture, tradition, custom’ (Kane 1990:855), is not (...)
  • 37 Tatayyeq literally means ‘be interrogated’ and muggit ‘litigation’. (Aberra 1988:245).

187A broad term relating to the link between culture and law in northern Ethiopia is Sir’at.36 It is related to the Arabic term ‘Shara’a’ meaning ‘prescribe, enact’ (Wehr 1976:465), hence the term Shari’a, to refer to Islamic Law. The Ge’ez verb sari’a has a range of connotation including ones to do with order: ‘set in order, establish order, arrange’, but also ones relating to law making: ‘enact, decree, stipulate, legislate, promulgate, prescribe’. The Geez noun Sir’at has, in addition to these notions of order: ‘ordering, arrangement, ordered rank’ and the notion of law-making: ‘decree, edict, statute, law’, the notion of ceremony: ‘procession, ceremony, rite, ritual,’ and also the notion of custom: ‘pact, custom, habit, tradition’, thus making a link between law and custom (Leslau 1987:532-3). The Amharic verb Serra as with the Tigrigna verb seri’e, means ‘decree, order, prescribe’, but also adds the notion of ‘impose a penalty, a fine’. The noun Sir’at has a wide range of connotations including ‘procedure, system, regulation, principle, order, statute, rule’, but also ceremony and formality, as well as discipline and manners. The expression sir’at lebese means ‘to bow to the law, accept a legal decision’, and sir’at gebba means ‘to recite or report the charges to a judge in the commencement of a traditional court case’. The expression sir’at abew was used for customary law regarding inheritance (Kane 1990:480-1), whereas Àté sir’at referred to royal decrees or statutes, and sir’ate midir were ‘just laws’. Thus the term sir’at had been applied traditionally both to imperial and customary law. The mode of litigation in law courts was referred to as muggit beteteyeq sir’at or teteyeq muggit (Aberra 1988)37 The terms sir’at goes back at least to the 14th century as it is in the title of the work sir’ate mengist produced during the reign of Amde Tsion (r. 1314-1344), which included religious as well as civilian and penal rules.

Sera/Seeraa

  • 38 Bahru’s study deals with the Kistane but he notes (2002:19) that sera is also used among the Silte, (...)
  • 39 This is noted in the proverb: ‘Where there is no custom (aadaa) there is no law (seera), and the sa (...)

188There is an interesting possible connection between this Semitic concept or sir’at and the Cushitic term sera found in Oromo, Sidamo, Somali etc (Leslau 1987:532). The term has been used for customary institutions in southern Ethiopia notably among the Oromo, Kambata, Sidama and Gurage38 (Bahru 2002, Aadland 2002, Yacob 2002). Among the Borana the seeraa is used for laws and considered inseparable from the customs aadaa.39 The Abba seeraa (literally ‘father of the laws’ is the oldest living Abba Gadaa who judges in critical cases (Leus and Salvadori 2006:580).

189Among the Kambata, seera refers to the ‘code of conduct practiced and internalised... it is alternatively known as Marietta, which means commitment to the truth. Seera is a broadly conceived normative realm within which individuals and groups are expected to behave’ (Yacob 2002). Among the Sidama sera is ‘almost and ethic and moral codex. It may be seen as an unwritten law but it constitutes at the same time the morality and conscience of the individual and the community. .. It provides the community with a procedure of decision making through consensus. It obliges the individual to accommodate to the majority, to seek harmony and consensus rather than an individual opinion and personalised justice’ (Aadland 2002:41). In their chapter in this book Ayke and Mekonnen suggest a more restricted use for the term among the Sidama suggesting that it is a social sanction which practically alienates the defendant who refused to accept the decisions passed against him by the council. The sera is announced at a public gathering, and will affect any person that cooperates with the offender and lasts until the offender requests an official excuse from the Gudumaalee Council.

Aadaa

190A very widespread notion for culture in southern Ethiopia is the term aadaa which is said to be of Arabic origin and used in the Muslim world for customary law in contrast and inferior to shari’a, the revealed law. Aadaa may be translated as ‘custom’, ‘rules’, ‘traditions’ and ‘traditional laws’ (Baxter 2003:1). Among the Borana Oromo, as noted in the dictionary of Borana culture entitled Aadaa Boraanaa (Leus and Salvadori 2006:2), aadaa is a ‘key concept’ with the meaning ‘custom, tradition, but also incorporates a sense of being binding’; the verb aadeessa means ‘to convince according to the aadaa used in disputes’, and aadaaniti means ‘against custom’, used for things not done. Aadaa is often used alongside or contrasted with seera, the customary laws (Leus and Salvadori 2006:579). Aadaa is used among various Oromo groups (Gragg 1982:1) and more widely among Cushitic groups in the south. This contrast between general custom and specific laws is also found among Omotic groups where the concept of woga is similar to aada referring to tradition, norms and laws and sera is used for laws passed by the assemblies (Bureau 1981).

Gome

191The concept of Gome ‘transgression of norms’ is a key element in disputes and their settlement in Omotic societies. Among the Gamo the transgression of taboos is used as an explanation of misfortune understood as resulting from offending the spirits and ancestors and requiring purification rituals to remove the offence (Sperber 1978, Abélès 1981). Among the Wolayta, Altaye (1994:77) describes Gomya it as a mechanism of social control, which occurs when rules are violated. He mentions three stages: in the first called kangetta the party that is offended will curse the offender; then in the second phase named hambalashuwa the two sides are in a negative and potentially dangerous relationship unless forgiveness is begged for. In the third phase called gomya wursuwa the person who has been cursed or whose request for forgiveness has not been headed calls a council of elders to decide on the case. After the guilt is decided the offended pronounces formulas of forgiveness which members of the council all recite. Finally by way of forgiveness the offended sprays spit in the direction of the guilty party followed by the elders doing likewise as a blessing.

Irq- araara (forgiveness and reconciliation)

192The notion of reconciliation has cultural salience among various groups. As Schaeffer (2006) points out acts of clemency by Emperors such as Tewodros, Yohannes and Menelik were not uncommon, the tabot was sometimes brought out to signify a truce, and clemency was often shown after battles in return for ritualised acts of submission. Schaeffer concludes (2006:355) ‘on a continuum between vengence and forgiveness, feudal Ethiopia appears to lie closer to forgiveness’.

193Among the Amhara the concept of irq, from the verbal form tarreqe ‘to make peace, be reconciled’ Kane 1990:1147), is central in dispute resolution (Solomon 1992; Yohannes 1998). As Solomon points out, successful shimgilinna ‘dispute settlement by elders’ results either in irq, reconciliation often involving compensation or yiqir leIgziabher ‘forgiveness in the name of God’. An offender may stop the procession of the tabot, the Ark of the Covenant on a saint’s day, kneel under the Ark, and beg the aggrieved for irq in the name of the Ark. The priests then become involved and plead in the name of the Ark that the aggrieved either forgive the offender or abandon his spite and agree to negotiate for reconciliation (Solomon 1992:59).

194The importance of reconciliation is central in Oromo society where the very name for the elders jarsa araara ‘elders of reconciliation’ underscores the salience of this concept (Nicolas 2005). Reconciliation and forgiveness often go hand in hand particularly in cases that do not require compensation. In some cases punishments that are declared by the elders may not in fact be carried out and they may be symbolic sanctions that are pronounced and accepted by the litigants but need not be implemented since the aim is reconciliation (Pankhurst 1992b), or the guilty party may have to ask for forgiveness in a manner that involves ridicule as amon the Borana (Bassi 1992).

195Forgiveness often requires the guilty person to show gestures of humility and humiliation. For instance in Gamo the wrongdoer get down on his knees and asks for forgiveness, in turn first to the wronged person and then the rest of the assembly (Freeman 2002). Most dramatically among the Shinasha, as noted by Bayisa and Lemessa, a person who has been ostracised is expected to ask forgiveness by holding a bone in his mouth, and saying to the elders Ί will be subject to you like a dog’.

Restorative rituals

196An important principle is that for reconciliation to be achieved a ceremony must be held often involving an animal sacrifice and eating and drinking together, and blessings and sometimes cursing. In serious cases, notably homicide, the ceremony is more elaborate, and there may be special terms for the reconciliation such as the guda among the Gurage. Rituals may involve stages as noted by Wolde Sellassie (2002:263-7) among the Gumuz with initial rituals in neutral territory to avoid reprisals, at which cattle are slaughtered and both parties are expected to swear that they would refrain from reprisals. The final rituals were performed up to two years later through rituals at both villages and by a river.

197In homicide reconciliation there are also often symbolic ways in which the side of the murderer accept guilts and asks for forgiveness, such as carrying a heavy stone in penitance, and shaving the hair of the murderer which is common in many societies. Among the Oromo, his hair is shaved using an obsidian stone as noted by Areba and Berhanu in this book. Among the Nuer, as noted by Dereje, the murderer has one or two vertical incisions on his arm made by a downward stroke of a fishing spear by the Knaar Muon, with whom he seeks refuge. This ‘mark of Cain’ is known as bir. Among the Gamo the relatives of the murderer appear at the reconciliation rituals covering their faces in soot. Both sides are expected to drink from the same cup symbolising reconciliation. The murderer or his relatives go to the relatives of the deceased to plead for forgiveness and organise a reconciliation ceremony. The murderer shows his guilt by shaving his hair and covering his face with soot and falls at the feet of the relatives of the deceased kissing their knees begging forgiveness. The relative is expected to embrace him. Among the Amhara as noted by Melaku and Woubishet, the victim should lift the stone from the wrongdoer’s shoulder and throw it on the ground.

198There are often ways of symbolically stressing the end of enmity and the binding of the feuding parties becoming related, often involving eating and drinking from the same containers and with the same spoon which is prohibited beforehand. In rituals of animal sacrifice parts of the animal including the blood, intestines, liver or lung are shared or eaten together. Among the Oromo, the parties may wash their hands in blood, pass between a sheep cut in two (Bartels 1983) or pass through the intestines stretched in a circle signifying passage from hostility to peace or if related shake hands through the liver, symbolising that they are not enemies but relatives who share common flesh and blood as mentioned by Areba and Berhanu in this book. Among the Afar an ox is sacrificed and the conflicting parties who have lost a member shake hands through the pierced skin and swear to abstain from reprisals or further violence (Aramis n.d.). In the Gondaro ritual in Wolayta members of each of the feuding parties are tied with the intestines of a slaughtered bull, and a blood and milk mixture is poured over their heads (Tsehai 1992:65). Among the Gurage, in the ceremony called guda, the murderer and relative of the deceased eat the liver of a cow starting from opposite ends and drink together from the same cup (Walelign 2005). Among the Sidama, as described by Ayke and Mekonnen, the two families shake hands immersed in the blood of the sacrificial ox, and the murderer will take out the lung of a slaughtered sheep before it dies and use it to brush his eyes and that of the victim’s relatives. Among the Amhara, as noted by Melaku and Wubishet, they must step over a gun and shut the church gate to symbolically erase any grudges.

Ostracism - social exclusion

199One of the most powerful sanction that CDR institutions have at their disposal and sometimes the only one is the threat (though seldom the actual imposition) of ostracism or social exclusion. This is referred to with different terms in various languages, and even with regional variations. In Amhara Region in North Wello the term imbidadé was used whereas the term semona was used in South Wello (Pankhurst 1992b, 2001a). Among the Gamo, the term hilo refers to the ostracism imposed by dulata assemblies (Bureau 1981). Among the Gurage the term yekka or eka is used and the offender may be subjected to punitive visitations of progressively increasing numbers of ‘guests’ expecting hospitality; non-compliance could result in more serious measures ranging from confiscation of property to ostracism (Bahru 2002). The murderer may also be sent into exile, known as sher-damea among the Shinasha as recorded by Bayisa and Lamesa in this book.

200Common idioms used to explain social exclusion include not allowing the ostracised family to light fires from others which symbolises neighbourliness and stands for sociability (Pankhurst 1992:77), refusal to share food and drink thus denying commensality, refusal to help with burial or exclusion from the iddir funeral association, refusal to allow the person to participate in work parties, to graze cattle together, and provide help if an ox falls down a cliff as noted by Ayke and Mekonnen in this book. Among the Shinasha the roof of the house in which the person lives may be uncovered to penalise the offender, and the wife and children will not be allowed to socialise with neighbours and others as recorded by Bayisa and Lemessa in this book. In extreme cases in Orthodox Christian societies the offender may be excommunicated from the Orthodox church as was noted in the Tigray case by Shimelis and Taddese. In many societies the sanction may also be applied to people who cooperated with the offender to increase the pressure for the person to request forgiveness and reinstatement, as with the Gurage multiplying ‘guests’ strategy.

201A murderer may also be excluded from the community, sent into exile and be forced to beg on the road-side telling his story and asking help to collect the blood wealth compensation money. Among the Shinasha, he will hold a gourd filled with blood with which he shakes the hands of those from whom he begs. A person who has been subjected to the tsala ostracism in Shinasha is expected to hold a bone in his mouth like a dog to ask forgiveness as recorded by Bayisa and Lemessa in this book.

Judicial processes in Customary Dispute Resolution

Initiation and institutions

202In many societies most dispute resolution takes place on an ad-hoc basis whenever disputes arise, and if the litigants are willing to agree for elders to try to reconcile them. Litigants, their kin or neighbours usually select mediating elders, who meet to resolve the specific case at hand. There may be elders that represent either side in the dispute and/or others considered to be neutral, often from a neutral clan.

  • 40 Once in the church compound a murderer cannot be pursued and he may ring the church bell to ask for (...)

203In some cases religious leaders may be involved. In serious cases notably homicide the perpetrator may need to flee to another area or seek refuge with persons or institutions such as the Church,40 spiritual leader or chief, who can protect him, until an initial agreement to avoid reprisals has been brokered. Among the Oromo he may be imprisoned in a cave or empty house by the Abba boku whose protection he seeks and he may be kept under the custody of the waata as recorded by Areba and Berhanu in their chapter on CDR in Oromia. The murderer may also be sent into exile, as mentioned in several case studies in this book.

204However, where more formalised institutions exist the plaintiffs or their representatives may take the matter to the assemblies, councils, spirit-mediums, leaders, prophets, chiefs or courts, who may summon the defendant and witnesses. There are also societies where customary experts, sometimes different ones depending on the subject, are involved. For instance, among the Gurage, there were experts dealing with land distribution and disputes over boundaries known as Ye-Zhre Dane, and cases relating to marriages issues were addressed by a special judge known as Ye-Anq’it dane, and there were legal experts known as Eqicha dana who would advise individuals (Bereda 1999, Gabreyesus 1991). Among the Gamo the giqqa eeqa are hereditary positions involved in boundary and land disputes, the gesho maaka is a clan involved in reconciling people who have been involved in incest, and the bollanne donna are involved in homicide cases (Temesgen 2006). In most societies serious cases, notably homicide might involve representatives of the state, who in the past sometimes organised sessions for finding the guilty party, such as the afersata.

Judicial process and procedure

205An important principle in many CDR institutions is allowing the disputants to state their case without interruption. Often mediating elders will ask supplementary questions. Once the position of the litigants has become clear elders may call upon witnesses, who might be required to take an oath. Often once the facts seem to have been established the elders may ask the litigants to leave and then confer about the case and what strategies to adopt to convince the parties to be reconciled. An important principle is that of compromise. Often, the elders will then approach each party separately, with suggestions for compromise. They may even hint that if they do not compromise the outcome might end up going against them.

206Elders may often postpone making a decision and adjourn the proceedings, especially if it seems that the parties are not ready to agree, in order to give time for the parties to reach a settlement and for anger and resentment to cool off. These delaying tactics may also allow for kin to put pressure on litigants to reach an amicable resolution. The threat of curses or ostracism may be invoked in a veiled fashion but, as we have seen, the symbolic power of such sanctions rests on their not being depreciated by being used. Where spiritual leaders are involved, notably in spirit-medium based institutions, the medium may enter a trance and consult with the spirit. The very procedure of the dispute resolution process and the rituals involved, as Nicolas (2005) argues, may be a major aspect of its efficacy.

Decision-making and settlement

207CDR tends to rely on elders developing a consensus and persuading litigants to reach a compromise. The verdict of the elders may require merely an apology if the matter is simple, but often it requires some form of compensation. In serious cases such as homicide ‘blood money’ is usually required. Often the amount is open to negotiation and reduction, and may be substituted by a symbolic payment, institutional forgiveness or may even be waived in return for the humiliation of a public apology. Payments may also be delayed over long periods though final reconciliation may require a ritual on completed payment. Where spirit-mediums are involved a session may be held at which the medium consults the spirit before reaching a verdict. The elders may also require the guilty party to provide a guarantor who undertakes to ensure that the verdict is respected.

Types of dispute

208Conceptions of justice in customary societies tend not to be limited to individual responsibility and may involve the family, kin, clan or even the wider group. Concepts of justice may be broader than merely the notion of crime and guilt. In some cultures, notably the Omotic societies, the question of transgression of taboos, and not carrying out the required sacrifices may be considered relevant in understanding disputes.

209Many CDR systems have sophisticated conceptualisations of different types of dispute as several of the case studies in this book and the regional descriptions in this introduction demonstrate. There are often a range of punishments, usually in the form of compensation, which may vary depending on whether the crime was committed intentionally or not, and who it affected.

  • 41 This was based on a consideration of dispute cases from four rural sites in the two regions of Amha (...)
  • 42 Between levels 1 and 2 distinctions are not always clear. Some intra-generational disputes between (...)
  • 43 Between levels 2 and 3 sometimes the dispute may be seen as involving just the household heads but (...)
  • 44 Within Level 1 six sub-types were distinguished: 1) marital between husband and wife, 2) between si (...)

210CDR institutions deal with the whole range of disputes from ones relating to inter-personal intra-household disputes to inter-group ones. One classification of types of disputes based on limited case studies identified five levels:41 1) intra-household, 2) inter-households, 3) inter-personal, 4) inter group within the community, and 5) inter-community (Pankhurst 2006b). However, the data highlighted some problems with this initial classification by levels and types. First, of all levels not fully discrete.42 Second, it was not always clear to which level certain disputes should be assigned.43 Third, some of the levels could be further sub-divided.44 A final problem is that sometimes the dispute may involve more than one level, and that the dispute may evolve and change over time, especially if it becomes more serious, involves more people and escalates. Most of the disputes were in the lower levels, and marital disputes seem to be the most frequent.

Homicide

211There are good grounds for considering homicide separately as the archetypal conflict, with the greatest cultural elaboration in terms of categorisations, retribution and compensation, and restorative rituals. There are often clearest differences in categories, terms, forms of payment and reconciliation concerning homicide.

Terminologies and differences

212Classification of types of homicide tend to distinguish as to whether the act was intentional, negligent or accidental and may be symbolically ‘colour coded’ in different ways. Among the Oromo three types of homicide with differential settlements are distinguished, as noted by Areba and Berhanu. These are intentional homicide (gumaa adii or ‘white gumaa’), negligent homicide for instance using a weapon (gumaa barruu) and ones that do not fall into these two categories for instance during sport (gumaa gurratti ‘black gumaa’). Among the Afar data-biilu ‘black blood’ refers to intentional homicide whereas unintentional homicide is termed qado biilu or ‘white blood’. Among the Wajirat tselim dem ‘dark blood’ is for intentional cruel murder, tsa’da dem ‘white blood’ is given for murder as a result of negligence, and qeyih dem ‘red blood’ is for accidental murder (Tarekegn 2005:111-4). Likewise, among the Gurage premeditated murder was differentiated terminologically from unpremeditated murder and inadvertent homicide (Bahru 2002). In some societies there are furthr distinctions. Among the Sidama as described by Ayke and Mekonnen in this book there are terms for intentional deliberate murder (tudda), unintentional murder (kege), as well as terms for injury with bleeding or bone breakage (haraffo), and for injury with bleeding or bone breakage (sorra), with corresponding compensation provisions. The Nuer as noted by Dereje in his chapter, distinguish between intentional killing (Thung ran), delayed confession of homicide (Thung loic ran), compensation for accidental killing (Thung gwacka), killing by ambush (Biem), death resulting from an old wound (Thung nyindet), and death in childbirth after abduction (Thung yiika).

Meritorious, blood-wealth, bride-compensation and ghost marriage complexes

213A number of cultural complexes relating to homicide may be mentioned including the ‘meritorious complex’ celebrating killers, the ‘blood-wealth complex’ of providing compensation for the death, ‘the bride-compensation’ complex of providing a bride to a relative of the deceased, and the ‘ghost marriage’ institution of using the blood wealth for a relative to marry a woman in the name of the deceased. Whereas the ‘blood wealth’ complex is found throughout much of the country and is common worldwide, the ‘meritorious complex’ was widespread in Southern Ethiopia, and the ‘bride compensation complex’ was more restricted, and the ‘ghost’ marriage is described only among the Nuer.

The meritorious complex

  • 45 To prove the deed the genital organs of slain men and tails skins or tusks of animals were shown as (...)

214The tendency to kill for honour and to honour killers has been termed the ‘meritorious complex’ (Braukämper 2002) involving the killing by young men of male enemies and wild animals to enhance their status, enabling them to wear killers’ insignia and marry,45 the feasting of heroes, and conspicuous funerals and memorial monuments for them. However, killing within the group and of women was considered shameful, dangerous for group unity and required the payment of ‘blood wealth’ to prevent or stop revenge killings.

215There are some mentions of customs of the murderer being handed over to the family of the deceased who are allowed to kill him in the same way as he was killed among a number of societies including the Burji, Konta, Koma, Manjangir (Cerulli 1956, Tippet 1970). The death sentence was imposed as a punishment among the Oromo kingdoms such as that of Abba Jifar, for offences such as conspiracy (Lewis 1965). Among the Irob a murderer used to be stoned to death (Tsegay 2006). Among the Somali if a person kills a kinsman a formalized retaliation is allowed and referred to as Qisaas and has occurred fairly recently (Jemal 1999). However, in most cases this seems to have been a mythical injunction sometimes related to Biblical norms, a theoretical judgement or an abandoned practice. For practical purposes blood wealth compensation seems to be the culturally preferred form of dealing with homicide.

The blood wealth complex

216The Oromo term Gumaa which primarily means ‘revenge for murder’ (Gragg 1982: 186) and ‘vendettas, blood-feuds’ (Tilahun 1989:278) also refers to blood wealth (Nicolas 2005:912). The term is widely adopted in many parts of the country and is used in Amharic (puma), Kambata (gumo), Harari, Argobba (gumma), Somali (guno) and Afar guma (Leslau 1987:193). Among the Somali there are a range of rules applicable to homicide (dit) and the term mag and the Arabic loan word diya are used for blood compensation payments (Lewis 1967). Among the Afar the term Guma is used as well as diyata from the Arabic diya or the term gidiyi (Aramis n.d). Blood money involved a nominal customary sum such as one hundred camels among the Afar and Somali, one hundred cattle among the Oromo and one hundred and one among the Argobba. This is no doubt a symbolic amount since it is mentioned by 19th century travellers and in practice may be negotiable, reduced, and converted to money. Among the Karrayu the number of one hundred is said to be total livestock which could include camels, cattle and small ruminants (Ayalew 2001:180), which may provide for some flexibility.

217Though most payment is usually in the form of livestock notably camels, cattle and sheep, it may also in addition include other items such as guns or machine guns among the Somali and blankets among the Sidama. The amount of payment also varies between groups and over time, and can vary within groups and between the sexes, with payment for women being half those for men as among the Somali and Afar, possibly due to Islamic legal influences. In the past the payment for a slave or person from the despised occupational group was less and the payment also increased if the murderer was rich (Huntingford 1955:63). Between the Afar and the Issa the amount was increased during Haile Sellassie’s reign from thirty to fifty camels. Among the Afar there is a part that can be converted known as solta baqlo and another part that cannot known as inaaqitta baklo (Aramis, n.d.), and among the Argobba it should not be exclusively in money according to Biruk and Jirra.

  • 46 See for instance the Nuer case described by Dereje in this book.

218No blood wealth is expected when the murderer and murdered are close relatives. Some of the blood wealth payment may be made rapidly to prevent revenge killing, whereas the final payment may be made at the reconciliation session. Among the Somali, as noted by Mohammed and Zewdie, the two payments have specific terms, Rafisi for the initial payment and Mog-Dheer for the final one. Among the Nuer, as noted by Dereje about half the expected 40 to 50 cattle are expected to be paid rapidly. Among the Argobba, as noted by Biruk and Jira, 12 cattle are expected to be given immediately as refisa, and the remaining 89 a week later. Group responsibility for the payment is widespread and the payment often does not go just to immediate family but to more distant kin often in complex divisions.46 However, in some societies the murderer may be sent into exile and have to collect the ‘blood wealth’ by begging on his way, as was mentioned for the Shinasha by Bayisa and Lemessa in this book.

The bride-compensation complex

219The provision of a girl to be married to a relative of the deceased as a form of compensation is mentioned in a number of societies, including the Gumuz, Koma, Manjangir and Me‘en (Cerulli 1956). Among the Somali the ‘nubile girl’ who is provided is referred to as Godbtir and the marriage ends hostilities by ensuring an affinal link of amity. Among the Gumuz, as noted by Berihun (2004:100-2) this is referred to as Bahizikua meaning ‘person (female) for bone’ and is understood in terms of ‘life being only paid back with life’ and creates a bond between the parties. The children of the woman who is given are considered to be the substitutes for the potential children of the deceased. Among the Me’en the asha compensation include as well as cattle a girl who should be 12-14 years old who will grow up in the house of the victim and be adopted by the head who will distribute the bridewealth given for her (Abbink 1992).

The ghost marriage institution

220Among the Nuer the blood wealth for a murdered man may be used as bridewealth to marry a wife in the name of the deceased in what has been referred to in the literature as ghost marriage, enabling the dead man to marry and have children raised in his name. A relative of his will then marry a woman using the cattle provided as blood wealth for the bride wealth. The woman will be known as ciekjooka, the ‘wife of a ghost’ and her children as gaatjooka, ‘children of a ghost’ (Evans Pritchard 1940a: Dereje in this book).

Inclusion and exclusion: Gerontocratic power, gender, age and marginalised status

  • 47 The verb shemeggele ‘to age, arbitrate, reconcile,’ has the forms teshemegele ‘to be settled by arb (...)
  • 48 The world does not appear in the dictionary of Borana Oromo by Leus and Salvadori nor in that of We (...)

221To a considerable extent CDR reflects existing societal structures, is controlled by elderly men and reproduces unequal rights, notably with regard to women, children and occupational minorities. The most common term for customary dispute resolution in Amharic is shimgilinna, deriving from the word for elder, shimagillé, which might be translated literally as ‘eldering’ (Pankhurst 1992) meaning ‘arbitration’ (Kane 1990:616).47 Likewise, in Oromo jarsumma48 deriving from the world for elder, jaarsa, means ‘the thing that elders do’ i.e. arbitration or mediation (Tilahun 1989: 338, Nicolas 2005:5). Though those involved in arbitration need not necessarily be old, conceptually the idea of reconciling is linked with ageing, and in practice elders tend to be those who have the time, experience, respect and standing to engage in reconciling litigants. The term shimagille is also inherently linked with patriarchal notions, as it refers to male elders.

222We have also seen that in some CDR institutions, in addition to age, kinship status is important for involvement as mediators, arbitrators or judges. At a local level disputants may select an elder who is related to them. In many societies lineage or clan heads play an important role in dispute resolution and usually have greater authority and may have the final say if among other elders. Spiritual leaders, including spirit-mediums, and Christian and Muslim religious leaders also play a key role in dispute settlement. In Orthodox Christian societies sometimes the ‘father confessor’ yenefs abbat, may be involved either on his own or be called by elders to persuade a disputant for whom he is ‘spiritually responsible’ to renounce an uncompromising position (Pankhurst 2006b).

Gender, age and minority status

223Women, children and minority groups tend to be excluded from dispute resolution in a number of ways including: 1) not being selected as mediators, 2) not being allowed to participate in CDR sessions, 3) requiring others to represent them, 4) facing discrimination in verdicts, and 4) receiving less compensation than men.

Women and gender

224Women are generally not selected as elders and in many societies have had to be represented by a male relative, although there are some signs that this is changing, with women more able to bring cases to customary institutions, represent themselves, and obtain favourable judgements (Pankhurst 2006). However, women are involved in certain societies in certain types or aspects of dispute settlement and rituals of reconciliation. In the Christian tradition there were a number of women saints who had reputations for advocating peace, one of whom, Welete Petros, went so far in her zeal for reconciliation that she was reputed to have prayed to God to forgive and be reconciled with Satan (Ephrem 2007). Among the Afar elderly women are sent notably after an inter-ethnic conflict as messengers of peace as they are considered to be respected and will not be subject to revenge (Aramis n.d.). Likewise among the Karrayu, women are mediating messengers (Ayalew 2001:179). In Oromo society elderly women are highly respected (Østebø 2007), though their role in mediation tends to be limited to intra-familial intra-female quarrels (Nicolas 2005:53). In the Arbore peace ceremony a senior woman anointed the heads of the spiritual leaders and their ritual sticks with butter, pronouncing blessings for peace and curses of war (Pankhurst 2005).

  • 49 No doubt from the Oromo dubarti ‘woman, girl’ (Tilahun 1989:182).

225Elderly women referred to as deberte49 among the Wajirat are highly influential, conduct prayers at times of difficulties and are involved in dispute settlement (Tarekegn 2005). Women may also be involved in dispute settlement within groups or associations of women; thus women’s Atete groups among the Oromo, as discussed in this book by Areba and Beranu, provide women with an institution to address serious problems and counter men’s dominance. In Oromo homicide reconciliations two respected women are involved in sprinkling water over both parties at a river as a sign of peace. In Orthodox Christian societies women’s mehabers dedicated to the Virgin Mary, are also fora for women’s cooperation (H. Pankhurst 1992) which can help prevent or solve disputes among themselves as was noted in the case study in Tigray by Shimelis and Taddesse.

226Women are also often conceived of as minors as expressed in the Somali proverb: ‘women are minors with large footprints’ as recorded by Mohammed and Zewde in their chapter in this book. They are therefore expected to be represented by a relative and may even be excluded from attending the very sessions that concern them in disputes. This is expressed in the Somali proverb ‘Women should not go to the tree’ recorded by Mohammed and Zewde.

227Despite the involvement of some categories of women, often the elderly and respected in certain aspects of CDR, notably rituals, and within women’s groups, CDR institutions tend to reflect patriarchal values and are often discriminatory in their judgements towards women. Discrimination in judgements by elders against women is often apparent when it comes to marital conflict where elders often tend to try to persuade women to ‘return to their husbands’, sometimes merely insisting on an apology by the husband or the provision of compensation for instance in the form of a dress (Pankhurst 1990). When a case results in divorce elders may not ensure that women obtain their share of the property so that divorcee women are among the poorest and most disadvantaged in Amhara Region, although there is some evidence of this changing. Likewise in inheritance cases women may face discrimination and this affect widows who may themselves be ‘inherited’ and married against their will to a brother of their deceased husband, for instance in some Oromo societies (Bevan and Pankhurst 2007).

228Forms of violence against women including abduction, rape, domestic violence and female-genital mutilation may be condemned but condoned by elders who deplore the practices. They may not try to stop the practices seeking to maintain stability and patriarchal control by resolving conflicts, for instance through arranging marriages after abductions rather than insuring that justice is done (Bevan and Pankhurst 2007). In homicide cases blood money payments among certain groups such as the Afar and Somali in compensation for the death of a woman is half that for a man. Practices of giving a woman or girl as part of the compensation payment exist among a number of groups as noted earlier, though some attempts at resistance to these customs by women have been noted (Abbink 1992).

Children’s involvement and rights

229Children do not figure in dispute resolution except perhaps in the case of youths involved as thief finders in the leba shay institution - though this may also be construed as an abuse of child rights. Girls are often married against their will in some cases, notably in Amhara at a very early age, and may be given in marriage as compensation for homicide to a relative of the deceased in some societies as noted above. Even where the girl may not wish this and may be supported by her female relatives who may try to resist for a while, as in the case described among the Me’en by Abbink (1992), in the end patriarchal pressure tends to prevail, although external influences may well result in internal changes in such customs.

Minority occupational groups’ involvement and rights

230Occupational minorities of artisans and hunters have been excluded from societies throughout Ethiopia and particularly in the southwest and may not be able to seek or obtain justice in customary institutions (Pankhurst 1999, 2001b, Freeman and Pankhurst 2003). Another sign of differential treatment is that customary blood-money payments in the case of former slaves or occupational groups may have been reduced or waived. The marginalised groups are often not allowed to participate in dispute resolution. If the dispute is between two member of the occupational group they may be represented by members of the dominant group as was noted in the Somali case where, however, unlike women they are allowed to go to the dispute resolution session as noted by Mohammed and Zewde in their chapter.

231However, the curse of members of many such occupational groups is feared and there are some cases where they play important ritual roles and even are involved in reconciliation. In some centralised societies of the south they were the prison guards and executioners (Pankhurst 2001b). Among Borana Oromo the Wata were involved in various rituals (Kassam and Bashuna 2004) and among the Arsi Oromo the Wata play a role in reconciliation between individuals and their curse is much feared (Ayehu 2005). In homicide reconciliation rituals they are the ones who throw the murderer into the river and fetch him out, as Areba and Berhanu noted. Among the Konso the artisans and merchants formed an organisation called Fuld’o which promotes inter-ethnic peace and trade over a wide area of southwest Ethiopia, and solves disputes among members using the threat of expulsion as the main sanction (Amborn 2005:586). In disputes between members of different groups, the fuld’o applies the customary law of the disputing members to discipline them, which may involve fining or flogging (Tadesse 2005:136).

Transformations of CDR institutions

232CDR institutions do not exist in a vacuum and are not static and unchanging. In fact they have been highly responsive to changing conditions and external influences. There have been tremendous transformations notably during the 20th century with the extension of state law, the influence of writing, formalisation and monetisation of the economy, and the influence of monotheistic religions: Islam, Orthodox Christianity and Protestantism.

233Important changes in the 20th century related to the extension of the state justice system that took on the prerogative of settling serious cases notably homicide and cases involving breaches in law and order, in areas where the central state was able to extend its control. Cases relating to land also became in theory a domain of the state particularly after the 1975 reform, leading to conflicting legitimacies between state and customary dispute resolution (Mamo 2006).

234Some systems as they have been described in the literature may in fact have emerged as the result of earlier transformations. Among the Borana Oromo customary prescriptions of the aadaa-seera, seem to have been highly influenced by an abba gadaa named Dawwe Gobbo at the beginning of the 18th century (Helland 1994:179). More generally the Oromo social and political systems have been radically transformed through the migrations and involvement in sedentary agriculture. The Qallu institution became transformed in the west among the Macha and Tulama into an ecstatic cult (Knutsson 1967, Morton 1975, H. Lewis 1990), and in Jimma and neighbouring Oromo monarchies absolute power of monarchs with courts and layered judicial systems emerged (I. Lewis 1965). Among the Gamo a prophet named Esa Ditha at the beginning of the 20th century introduced changes in the woga customary law rejecting the principle of seniority and sacrifices to spirits that was central to Gamo relations, leading to a split in traditions (Bureau 1981:174-5, Freeman 2002:34).

235Among the Sidama voluntary associations that arose with the monetisation of the economy and coffee cash cropping took on the customary term songo of elders councils and sought to mediate between individual and collective interests in resolving disputes (Hamer 1980). Voluntary associations for funerals iddirs, and credit associations iqqub, that emerged in a context of urbanisation and monetisation and spread throughout most of the country in the course of the 20th century as a form of organisation independent from the state system began to play a role of dispute settlement among members (Koehn and Koehn 1975, Pankhurst 2003).

The use of writing and money

236The use of writing notably for contracts, agreements and resolutions that required compensation has become an important feature of CDR with litigants and elders keeping copies of agreements (Nicolas 2005, Pankhurst 2006b). The monetisation of the economy also had important implications. The type of traditional compensation payment in livestock was often changed into monetary payments (Nicolas 2005), and reconciliation payments which were consumed in the form of beer and food began to be set aside for instance in Gamo for other social purposes. This raised the question of who keeps the money and how it is used (Bureau 1981). Likewise voluntary associations notably as iddir burial associations and iqqub credit associations developed more formalised structures and began to take on a dispute resolution role when necessary among members (Pankhurst 2003b).

237There have also been attempts to write down customary law notably the work of Fitawrari Yasin Mohamede who devoted much of the last part of his life to recording the memories of Afar elders on customary law. Among the Gurage the Kitcha Customary Law was codified with the advice of legal experts and published in Amharic and among the Kistane Gurage a code was approved in 2000 (GPSDO 1998, Bahru 2002).

Religious influences

238The role of external religions in changing customary rules has also been important. For instance Islamic leaders in Wello sought to reduce the influence of customary dispute resolution in favour of the Shari’a law (Hussein 2001). Likewise the traditional Gomiya concept in Wolayta which was central in dispute resolution was replaced by dispute resolution of the Protestant Church (Altaye 1992).

State influences

239The influence of the state system has been very pervasive. We have seen that some traditional litigation modes were incorporated into the litigation mode of the traditional state (Aberra 1998). In the conquest of the south traditional leaders were in some areas set up by the state as ballabat who were responsible for administration in an ‘indirect rule’ system (Donham 1986) in some senses akin to some aspects of colonial administration as discussed by Kohlhagen in this book. In the Somali region Mohammed and Zewdie in their chapter in this book suggest that the British administration in the 1940s sought to work with elders in setting up the xeer administration. During the Haile Sellassie era, the state system took over many of the functions carried out by CDR institutions. However, even then there was some collaboration as noted by Knutsson (1967) in his study of the Qallu institition. During the Derg collaboration with customary institutions was minimal. However, Dereje shows how the sefer shum institution set up in 1980 in an urban context became a useful compromise involving customary leaders. In a resettlement context a marriage and divorce committee was set up involving customary leaders but with a secretary who was part of the administration (Pankhurst 1992). In the early EPRDF period there were examples of cooperation with customary institutions as noted in Wello by Pankhurst (2003c), and more recently the Ministry of Federal Affairs has sought to involve elders in dispute resolution between groups in conflict (Asnake 2006). There is also evidence in a number of the studies in this book of some degree of collaboration, particularly in the border regions. Thus in the Somali case as noted by Mohammed and Zewdie, the state relies heavily on the customary institutions. Likewise, among the Afar as described by Getachew and Shimeles, the regional government allocates budges to facilitate the work of the elders. In Gambella as described by Dereje, the sefer shum also provides a compromise institution that involves local customary leadership.

Modernising customary dispute resolution

  • 50 For instance the Gumi Gayo of Jaldessa Liban (1960-68) discouraged junior raab couples from ‘throwi (...)

240Since CDR has been orally transmitted it is particularly flexible and able to adapt to changing circumstances. There have been attempts to ‘modernise’ customary laws and make them more sensitive to current national and international concerns. The Gadaa assembly of the Gumi Gaayo meeting every eight years has been a context to review the seera, consider changes in the customary law and do away with ones that are considered outdated, such an abandoning infants, and current concerns notably gender issues such as girls’ education, unmarried girls getting pregnant, and HIV/AIDS.50 The cajee bacho council among the Macha Oromo decided in 1960 that the homicide blood-wealth payment for a woman should be equal to that of a man (Knutsson 1968:174).

241In Harar the Pan-Afocha assemblies have been a forum for discussing change and promoting the reform of lengthy wedding celebrations. In the process of writing down and codifying Gurage customary laws gender affirmative elements were introduced recognising the need for mutual consent in marriage, divorce rights for women and penalties for adultery and abduction. There are also references to other customs considered to be harmful including measures against smoking, alcoholism and chat-chewing, and injunctions against lavish feasts for marriage and funerals, and concern about enset being replaced by cash crops. A recent issue relating to human rights was the equation of deliberate infection with HIV/AIDS with homicide.

The potential for a way forward

242The above examples demonstrate that many CDR institutions are flexible, have been evolving, are aware of the need for reform, have had internal reformers, and continue to adapt to a modern world in creative ways. If they are given the chance, CDR systems can be responsive to change, adapt, alter or abandon aspects that are incompatible with national and international norms. They are able to address current concerns, can act as agents of change and development and move with the times.

243As we discuss in our concluding chapter the challenge ahead is to take advantage of the current greater decentralisation to promote legal pluralism while ensuring that human rights are respected, to legalise recognition of customary systems, to encourage their adaptation and reform, and to promote better understanding and partnership between state and customary legal systems.

Notes

2 Notable early laws were the 1930 Criminal Code which formally replaced the Fitha Negest in the criminal area, and the 1923 Law on Loans in the civil law area.

3 The codes were the Penal Code (1957), Civil Code (1960), Commercial Code (1960), Maritime Code (1961), Criminal Procedure Code (1961) and the Civil Procedure Code (1965). Almost all of these codes are drafted by European comparative law specialists. However, the Civil Procedure Code was drafted by the Codification Department of the Ministry of Justice rather than by foreign experts (Scholler 2003:751).

4 See Art 567, 573, 577, 580, 606, 624, and 807-8 of the Civil Code.

5 See Art 1713 of the Civil Code.

6 See Art. 1132, 1168, 1171, 1489 and 1496 of the Civil Code.

7 See Art 2116 of the Civil Code.

8 We are grateful to François Piguet who drafted this section based on a report by Karim Rahem (2002) and an interview with Amoyta Ali Mirah on November 16, 2004.

9 The proportion of cases dealt with through CDR was estimated at 90 percent by Ali Hussen, the Head of the Civil and Criminal Affairs Department in the Justice Bureau of the Afar Regional State

10 The importance of witnesses and swearing arc evident in the following Afar proverbs: The pro-of of and act against someone’s honour is established on the basis of a witnesses or a sermon’, and ‘contestation is pointless in the face of witnesses, and witnesses are rendered null by the oath’ (Aramis n.d.)

11 Aberra notes that Esette-Ageba-Muget was used interchangeably with Tatayyaq to denote features of court proceedings and the same mode of litigation’ (1988:245).

12 Three of the cases involved marital disputes. In one the wife threatened to divorce and ask for her share of the property since the husband had an affair and a child from another woman, but she was persuaded to remain with her husband after he paid her compensation. In a second case the wife accused the husband of pretending that his contribution of an ox to the couple’s parental endowment was lost when it was ‘found’ in his uncle’s herd and the elders made him provide the ox and compensate his wife. In a third case an arranged marriage of a young boy and girl was resisted by the boy who wanted to go to school and his father was made to pay compensation to the bride’s family. A fourth case concerned a mother trying to claim that her son from a married man had inheritance rights. The fifth case was a dispute over land allocation between a father and his son, who felt that his father had given him insufficient land. The final case was about counterclaims regarding theft with one man claiming another had stolen his two goats and the latter accusing the former of stealing his two beehives. The elders made the litigants take and oath in the church, and the defendant admitted the theft but asked that the plaintiff swear that he did not steal his bee-hives.

13 From the Oromo Abba gar who are leaders of customary rituals in Wello (Hussein 2001:111).

14 The term wofa is used in different ways and may denote a generic category of spiritual expert, the spiritual sources of power the experts use, the personal name of a particular spirit or a tide of a particular expert (Aspen 1995:117).

15 Walker (1933:153) suggests that this word is of Oromo origin but it does not figure in the standard Oromo dictionaries.

16 As one respondent aptly put it: ‘belé is our AIDS’ (Pankhurst 2003).

17 Literally ‘sucking the breast’ or the thumb of the patron mixed with honey (and sometimes milk) symbolising the establishment of a close fictive kinship with reciprocal obligations (Blackhurst 1996:240).

18 Oromo traders had bond-friends among the Gumuz involved in gold panning (Tsega 2002:526).

19 Tsega (2002:527) notes that the Dongoro Oromo and their chief Tufa Foroso who settled in the area where the Gumuz were living in the 19th century, after fighting established peace through a michu ritual at the river Qersa, named Qersa Arara ‘reconciliation river’.

20 This involves taking a pinch of bounded bark mixed with sorghum flour with which elders anoint all participants after which they crossed the river exchanging friendly kisses symbolising cleaning away polluting spirits.

21 Five objects were brought as symbols of peace during the swearing ritual: a bullet, a thorny plant (Qontir; Capparis tomentosa lam.) a stone, dry donkey-dung, and the front leg bone of a goat.

22 We wish to thank Dereje Feyisa, the author of the chapter on the Gambella Region for drafting this section.

23 Tunsus is a wedding related festivity which is performed for two days and nights and three days and nights at the groom’s and bride’s house, respectively, thereby giving the youngsters opportunity to engage in consuming alcoholic drinks and sexual affairs.

24 These are those in which third parties are involved as mediators or arbitrators of some sort. Other systems exist wherein the disputants engage in discussions and negotiations to solve the conflicts without the involvement of third parties. Ilafi Ilamee is one such a system. It is a system of negotiation or compromise in which the parties involved in an existing conflict resolve the conflict, or prevent a conflict from arising in the future. This is of course applicable in cases of parties that are in talking terms with each other. See Assefa Abebe (2005), and Dejene Gemechu (2002).

25 In fact, age is not strictly a consideration. In some cases, male adults with recognized wisdom and integrity would make part of the elders. Generally, the Institution requires that the elders follow rules of dhugaa (truth) and refrain from any sor or soba (untruthfulness), chubbuu (unjustness), and crime.

26 Literally ‘sucking the breast’ or the thumb of the patron mixed with honey (and sometimes milk) symbolising the establishment of a close fictive kinship with reciprocal obligations (Blackhurst 1996:240).

27 The following case explains how the Qisaas is actually put in place: ‘In 1997 a man who is known to be a notorious offender had killed another man of his clan (but of different sub-clan) in the rural area of Galadi district. The council of elders (Shir) immediately assembled and ordered the kinsmen of the murderer to detain him. The Shir also established the informal court consisting of 51 judges. After one month of deliberation over the matter the court condemned the offender to death. The murderer was in accordance to the decision submitted to the deceased’s group who had executed him immediately (Jemal 1999).

28 Such as one on the Dirashe by Hansemo (1983) and one on the Kore by Awoke (1985). See Shiferaw (1992) for a list up till that date.

29 The cases discussed by Tarekegn include four murder cases: in the first the murderer had been imprisoned for 17 years and was released on parole but was forced to make a deal in the customary way which involved paying 10,000 birr as blood money and he was forced to leave his place of residence. The second case involved 10,000 birr blood money, the third 30,000 birr each by two men, and the fourth no blood money but insistence that the murderer left the area.

30 Oromo traders had bond-friends among the Gumuz involved in gold panning (Tsega 2002:526).

31 Tsega (2002:527) notes that the Dongoro Oromo and their chief Tufa Foroso who settled in the area where the Gumuz were living in the 19th century, after fighting established peace through a michu ritual at the river Qersa, named Qersa Arara ‘negotiation river’.

32 There were also three cases of inter-ethnic CDR with the Afar. The first between Afar and people from Raya Azebo involved two men from the latter being killed by the former, and the gereb imposing 10000 birr blood money and 2000 birr as expenses for the gereb. The second was between Wajirat and Hurta Afar, over theft of livestock found in the other sides grazing area, followed by killing of seven Afar and four Wajirat. The case was resolved without blood money but a large feast was held with the involvement of religious figures. The third case was between Raya Azebo and Omole Afar in a territorial conflict in which 11 Afar and six Raya were killed. It was resolved through payment of 10000 birr blood money for each victim and a feast.

33 Literally ‘sucking the breast’ or the thumb of the patron mixed with honey (and sometimes milk) symbolising the establishment of a close fictive kinship with reciprocal obligations (Blackhurst 1996:240).

34 It is significant that the Sycamore is included in the centre of the Oromia Region flag.

35 Such classification may be based on linguistic criteria, differentiating Cushitic, Semitic, Omotic and Nilotic, on the basis of economic lifeways, cereal agriculture, ensete complex, pastoralism, material culture, or socio-political organisation or various combinations of these and/or other criteria.

36 The current terms in Amharic for culture bahl ‘culture, tradition, custom’ (Kane 1990:855), is not related to notions of justice in the same way of aadaa. In fact the Ge’ez is more about expression from the verb Bihile, ‘say, speak, call, announce, command, with bahl meaning ‘a saying, statement, word, speech, discussion, mode of expression, although Bahle Ager means ‘custom of country’ (Leslau 1987:89). In northern Ethiopia the concept of ser’at has a long history with both statal and societal connotations related to norms, order, and justice.

37 Tatayyeq literally means ‘be interrogated’ and muggit ‘litigation’. (Aberra 1988:245).

38 Bahru’s study deals with the Kistane but he notes (2002:19) that sera is also used among the Silte, Meskan and Dobi Gurage.

39 This is noted in the proverb: ‘Where there is no custom (aadaa) there is no law (seera), and the saying that the laws came from the customs’ (Leus and Salvadori 2006: 579).

40 Once in the church compound a murderer cannot be pursued and he may ring the church bell to ask for the clergy to intervene.

41 This was based on a consideration of dispute cases from four rural sites in the two regions of Amhara and Oromia and two urban sites in Addis Ababa and Shashemene.

42 Between levels 1 and 2 distinctions are not always clear. Some intra-generational disputes between siblings are within households, but others are between households that have separated. Likewise, inter-generational disputes between father and son, mother and son, father and daughter, and mother and daughter are sometimes within the household but most of them involve separate households. Disputes involving generation and affinity tended to be between the parents and their children whereas the spouses seem to aggravate the dispute, notably in cases of mothers feeling that their sons listened more to their wives. Moreover, disputes between household heads and labourers or servants may only be within the household if the employee lives in the household.

43 Between levels 2 and 3 sometimes the dispute may be seen as involving just the household heads but often it involved spouses, children or other relatives. Similarly, between levels 3 and-4 disputes may be between individuals or groups, and sometimes it seems that disputes moved: from involving individuals to involving groups or vice-versa. Between levels 4 and 5 the boundary of communities may be unclear.

44 Within Level 1 six sub-types were distinguished: 1) marital between husband and wife, 2) between siblings, 3) inter-generation same gender, including father-son and mother-daughter, 4) inter-generation and gender including father-daughter and mother-son, 5) inter-generation and affinity, between father-in-law or mother-in-law and son-in-law or daughter-in-law, and 6) with non-relatives living in the household, including between the household head or spouse and servant or labourer. Level 3 could also be divided into whether the individuals arc related by kinship or marriage, and whether the persons have entered agreements such as between employer and employee, household head and labourer or servant, share-cropper and tenant, house owner and tenant etc. Level 4 could also include additional sub-categories, notably between individuals and groups, disputes within institutions, and between organisations. In urban areas sub-types could be added within the community between 1) friends, 2) lovers, 3) employer and employee, 4) service givers and clients, 5) landlords and renters, 6) workmates and 7) roommates. Additional levels may exist between 1) the Kebele and a household, notably over housing, 2) organisations/firms and individuals, notably over land, 3) an institution and group of people, and 4) between members of the same association.

45 To prove the deed the genital organs of slain men and tails skins or tusks of animals were shown as trophies.

46 See for instance the Nuer case described by Dereje in this book.

47 The verb shemeggele ‘to age, arbitrate, reconcile,’ has the forms teshemegele ‘to be settled by arbitration, to be reconciled’, ashemeggele ‘to nominate arbitrators, appoint as arbitrator’, and the noun shimgela ‘being an elder, arbitrating’ (Kane 1990:615-6).

48 The world does not appear in the dictionary of Borana Oromo by Leus and Salvadori nor in that of Western Oromo by Gragg, which might suggest that it was formed by analogy with the Amharic shimgilinna.

49 No doubt from the Oromo dubarti ‘woman, girl’ (Tilahun 1989:182).

50 For instance the Gumi Gayo of Jaldessa Liban (1960-68) discouraged junior raab couples from ‘throwing away’ their infants. The Gumi gayo of 2004 discussed girls education, unmarried girls getting pregnant and HIV/AIDS (Leus and Salvadori 2006:237-8).

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