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Grass-roots Justice in Ethiopia

 | 
Alula Pankhurst
, 
Getachew Assefa

State Law and Local Law in Sub-Saharan Africa

Dominik Kohlhagen

Texte intégral

  • 51 ‘We did not have the concern, in Ethiopia, to work out a Code which is founded on Ethiopian customs (...)

‘Nous n’avons pas eu la préoccupation, en Ethiopie, d'élaborer un Code qui soit fondé sur les coutumes éthiopiennes’51
René David, drafter of the Ethiopian civil Code, 1962.

1When between 1957 and 1965 the major body of present Ethiopian law was enacted, the principal aim was to achieve a modernization of the legal system. Although the country knew a great variety of local legal traditions, the new legislation was almost exclusively inspired by western conceptions of law. Rather than to reflect social realities, the codes were to become a model for the society. But half a century later, local traditions still remain vivid and continue to coexist with the statutory law. As a result, large parts of legal practices today are not recognised by the formal law, as is noted in the other chapters and case studies in this book. The possible integration of traditional and popular law into state law has thus become a concern for present legal reform projects. Most African countries today are facing the same problem.

State law and ‘living law’ in sub-Saharan Africa

2All over the African continent, state law has in some way or the other been shaped on an originally western model. Outside Ethiopia, it had exclusively been imported for the purposes of colonial occupation and had all but been elaborated to reflect the living conditions of people living in Africa. After having achieved independence, almost all African states inherited the colonial legal framework. The state legal systems have since become part of a truly African reality in which lots of Africans grow up and are educated. For those who can afford education fees and university studies abroad, the state and its institutions provide indeed an accessible, coherent and profitable system of social regulation. The vast majority of Africans however still does not identify with it. In key issues like land administration, successions, family and personal law, social practices amongst the population differ considerably from the should-be declared by legislation. In almost all African countries, only an infinitely small number of disputes is dealt with by formal tribunals.

  • 52 For a comprehensive introduction to the problematic one should refer to: Le Roy (2004).

3There are multiple reasons for this discrepancy. To some extent, one has to blame the limited infrastructure of formal justice and the difficulties of access from rural areas. Corruption and clientelism are also part of the problem. Furthermore, in most countries, the language of the judiciary is the one inherited from the colonial occupants and frequently is not spoken by the local inhabitants. But the crucial point has been made out by legal anthropologists. For many Africans, adhering to state law also means renouncing a complete system of values, a district but equally coherent legal framework based on fundamentally different moral and religious ideas. Local law, based on such systems of values, is not static but has, on the contrary, started to evolve in spectacular ways in the shantytowns around great cities. There seems, however, to be no considerable evolution towards a strengthening of state law. It is not only the implementation but also the whole logics of state law which opposes the needs and expectations of people who have been socialised in very different contexts.52

4One major problem today is that it is within the minoritarian elite that international organisations and Western donors find the interlocutors who speak the language they are familiar with. This situation leads to a profound misunderstanding of social realities amongst those who carry out legal reform projects. Since the 1960s, legal scholars and practitioners have paid less and less attention to traditional and popular justice.

5Nevertheless, since Western law has been introduced in sub-Saharan Africa, there have repeatedly been attempts to reconcile it with the local realities. This article purposes to present a survey of the most significant experiences in this field. The text adopts an intentionally non-anthropological perspective focusing on the formal legal systems and the rather few occasions where traditional and other informal regulation systems have explicitly been taken into account. The suggested distinction between common law and civil law countries is somehow arbitrary, especially as many African legal systems, like the Ethiopian system, comprise elements of both. It will be shown, however, that the perception and acceptation of local forms of law have largely been influenced by the predominant conception of state law.

The experience of African common law countries

  • 53 As Professor Allott points out, ‘there was thus produced a built-in obsolescence, (...) somewhat of (...)

6Under colonial rule, common law has been transplanted to Africa in different forms which have generally been retained after independence. Most British territories simply took over the common and statute law as it existed in a specified place at a specified moment in time.53 In West Africa, the adopted law was the one in force in England at the End of the 19th century; most East African territories imported the law of British India. The law of the Anglo-Egyptian Sudan, expressed as being based on ‘justice, equity and good conscience’, was essentially inspired by English law. The independent state of Liberia opted for common law in its Anglo-American form. South of the Zambezi, the pre-existing Roman-Dutch law became the basis of a legal system supplemented with elements of common law.

  • 54 Gonidec (1967: 252).
  • 55 The idea of ‘indirect rule’ is attributed to Frederick Lugard, high commissioner of the British pro (...)

7The common law system has often been praised for its ability to take into account regional and non written law and could be regarded as well suited for the need to reconcile local customs in one common body. But the position of traditional and popular law in the anglophone African countries is also determined by the way it had been integrated under colonialism. All over the continent, the colonial administrative systems were centralised and authoritative, and only the colonial authority was considered as the true authority. The indigenous law was systematically relegated to second rank within the legal framework.54 In the British territories, its perception was mainly influenced by the policy of ‘indirect rule’. The general idea of this concept was to preserve the existing indigenous political and legal structures and to integrate them into the colonial administration. While justice for Europeans was ensured under the imported common law, responsibility for regional administration and justice for Africans was rather given to identified ‘traditional authorities’.55 This led to the creation of Native Courts that coexisted independently together with the regular courts and which were presided by local ‘chiefs’ or ‘headmen’.

  • 56 The ‘invention of tradition’ is an important aspect to understand the interaction between state law (...)
  • 57 See e.g. High Court of Lagos Ordinance, s27 (1), 3 Laws of the Federation of Nigeria and Lagos 1576 (...)
  • 58 Allott (1984: 60).

8The quite pragmatic idea of ‘customary law’ had of course to be compatible with European ideas of rule and hierarchies. The ‘indirect rule’ thus did not only sanction a status quo, but also contributed to an ‘invention of tradition’.56 Not all African chiefs, leaders or councils of elders were willing to collaborate with the British and consequently were replaced; in other places no adequate structures could be found at all or the role of ‘authorities’ was misunderstood. Furthermore, all Native Courts were supervised by British District Commissioners and ‘customary law’ was only applicable as far as it was not ‘repugnant to natural justice, equity and good conscience’.57 The ‘repugnancy clause’ had an important impact on the development of the customary law as rendered by the Native Courts and its growing divergence from social realities. The gap between what Professor Allott terms ‘judicial’ and ‘popular’ customary law58 was intensified in some territories (particularly in today’s Ghana, Nigeria and Cameroon) by the possibility of appeal from traditional to regular courts applying western legal principals. Towards the end of colonial rule, the court system tended to be more and more centralised as most territories appointed officers at a national level to ensure the function of the local District Commissioners. In 1953 and 1956, these judicial advisers came together in two special conferences and expressed their intention to work for a further integration of customary law into the general law. A right of appeal from native to regular courts was created in those regions where this right did not exist yet.

9After independence, the most important problem those states were facing that inherited a dual legal system was that it was based on an idea of segregation. For this reason, all states formerly ruled by the United Kingdom were preoccupied by the full integration of the Native Courts system.

  • 59 Courts Act, C.A. 9 (1960); Local Courts Instrument, E.I. 118 (1960); Native Courts Proclamation, L. (...)

10Ghana was the first independent country to opt for a radical unification process and to introduce a single judiciary. All Native Courts were abolished in 1960, both customary and Islamic law were integrated by Constitution into ‘the laws of Ghana’ and now fall under the jurisdiction of all courts.59 Ghana thus has its own definition of ‘common law’: article 11 (2) of the 1992 Constitution provides that ‘the common law shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature’. ‘Chiefs’ and ‘paramountcies’ which were recognised to have judicial and administrative power under colonial rule are represented at regional and national levels by a House of Chiefs and by local Traditional Councils. They only have original jurisdiction in matters relating to chieftaincy.

11Although the Ghanaian state law provides a certain flexibility to incorporate local and oral customs into the general law, there is nevertheless a tendency to privilege statutory law and to favour the fixation of local customs in a written form. Written law takes precedence over other forms of law, and according to the Constitution’s article 273, the National House of Chiefs shall ‘undertake the progressive study, interpretation and codification of customary law with a view to evolving, in appropriate cases, a unified system of rules of customary law, and compiling the customary laws and lines of succession...’. In matters of land administration, the present policy also favours a formalisation of customary titles through registration.

  • 60 Woodman (1996).

12De facto, the situation in Ghana is one of legal pluralism. In addition to general law and what it considers as ‘customary law’, there is a multitude of institutions and procedures for regulating local disputes. Increasing demand for land and rapid urbanisation have led to the emergence of new informal legal forums, but ‘chiefs’ and ‘paramountcies’ also continue to play a role which largely exceeds their formally recognized competences.60

  • 61 Magistrates’ Courts Act of 1963.

13Tanzania is another common law country having unified its legal system.61 The only exception has been provided for Zanzibar however where decisions of Islamic Qadi Courts can be appealed at the High Court of the island. Unlike Ghana, Tanzania has explicitly favoured a unification in the form of statutory law. Since independence, a series of laws have been enacted with the aim to create a codified customary law in the national language Swahili. The Marriage Act of 1971 recognises different types of marital union and regimes, including polygamy and Muslim marriages. In practice however, many local practices are not taken into account by the state law.

  • 62 Section 3 (8) of the Judicature Act of 1967.
  • 63 Cotran (1983).

14Kenya has unified its judiciary in 1968. The Judiciary Act considers ‘customary law’ as an independent source of law besides common law, but limits its application to ‘civil cases in which one or more of the parties are subject to or affected by it’; the colonial repugnancy clause has been retained literally.62 Kenyan common law is still strongly linked to English law, which, in its transposed form of 1897, remains the main source and, in its recent form, is imported in whole subjects by reference. In the courts’ practice, local customs play a minor role. However, and in spite of the fact that Islamic law is not explicitly considered as ‘source of law’, the Kenyan Constitution has provided for the existence of local Kadhi’s Courts. They have restricted jurisdiction in questions of inheritance and family law.63

15Other former British colonies have retained the dual court system entirely. But mechanisms of appeal and review of judgements have been devised since independence to provide links between the two structures. A proper dualistic system does probably not exist anymore, and in most countries the customary courts have more or less been subjected to the common law jurisdictions.

  • 64 Section 275 to 284 of the 1999 Constitution.

16Nigeria has a particularly significant local judiciary. The Nigerian court structure is relatively complex as each of the 36 federal states has its own judicial organisation. Under the federal Constitution, every state ‘that requires it’ shall have an independent Shari’a Court of Appeal and a Customary Court of Appeal beside the common law High Court.64 Most states have a Customary Court system whereas Shari’a Courts operate mainly in the northern part of the country. Appeals from courts of any kind of jurisdiction lie to the federal Court of Appeal. When decisions of a Shari’a Court of Appeal or a Customary Court of Appeal must be considered, the Court has to consist of Justices learned in Islamic or in customary law respectively. The last, common, appeal instance is the Supreme Court.

  • 65 Okany (1984).

17In most states, the Customary Courts are established by the Chief Justice, and many judges, especially in the appeal courts, are legal practitioners. Common law logic thus has a sensitive influence. The functioning of the courts varies considerably from one state to the other, but in general the courts are far from dealing with all disputes resolved at a local level. The abolition of Customary Courts has repeatedly been discussed.65

  • 66 Amnesty International Press Release, 21 May 2004, AI Index: AFR 44/017/2004.

18The Shari’a Courts, in most states, have always been quite important. In November 1999, the northern state of Zamfara extended the jurisdiction of Shari’a Courts to penal law, although the federal Constitution limits their competence to Islamic personal law and prohibits the adoption of a state religion. Most of the 19 states in Nigeria’s northern region have since followed the decision of Zamfara state. Despite a presidential and other official declarations, the extended jurisdiction continues to be implemented. However, none of the internationally mediatised condemnations to death by stoning have so far been carried out. Most cases are pending or have been dismissed in appeal.66

  • 67 Griffiths (1983).

19Botswana is an example of a country in which the Customary Courts have to some extent successfully been rooted in society as they deal with the majority of conflicts that are brought to court. It is difficult however to estimate the number of disputes that are settled in a non-institutionalised way. In addition, not all operating courts are formally recognised by the state, and a clear distinction between formal and informal justice is hardly possible.67

  • 68 Customary Law (Application and Ascertainment) Act No. 51 of 1969; Customary Courts Act of 1968; Mag (...)

20Since independence from Britain, the Botswana legal system has not significantly changed. Still a difference is made between the Roman-Dutch inspired ‘common law’ and ‘customary law’, the court structure is dual. Both, customary and magistrates’ courts have their own appeal instances that converge at the National High Court and the National Court of Appeal which both apply common law.68 The structure of the Customary Courts reproduces a system of courts that existed prior to colonial occupation in the Tswana society and which is imbedded in a hierarchy of progressively more inclusive groupings, starting with coresidential households up to extended family groups. Legal representation before the Customary Courts is forbidden, and the courts are exclusively chaired by lay persons who receive no training by the state. The chiefs who preside the higher customary courts also have legislative power and are represented in the House of Chiefs that, together with the National Assembly, forms the legislature of Botswana.

  • 69 Juliette Bastin, ‘Vive la reine!’ in Jeune Afrique l’Intelligent, 14 September 2003; Griffiths (199 (...)

21According to the Customary Law Act, the system is primarily applicable between ‘tribesmen’ in civil matters. Constitutional and labour law fall exclusively into the domain of common law. Criminal law is generally subject to the magistrates’ judiciary, but certain minor cases can optionally be submitted to the Customary Courts. During the past years, many citizens of neighbouring Zimbabwe who emigrated to escape the economic crisis in their country and who got involved in accusations of theft have opted for this possibility. This drew Zimbabwean and international attention on condemnations to corporal punishments in the form of caning and lashing on the buttocks. The practice has since been defended by the national government. Another problem that has frequently been pointed out by external observers is the situation of women, as the Customary Courts are almost all presided by men and still reflect the colonial view of a male dominated Tswana society. Nevertheless, the first ever Chief woman was appointed in 2003, which could be an indicator of a beginning social change.69

  • 70 For more details see: PRI (2000: 60-72); Resistance Councils and Committees Statute of 1987; Resist (...)

22Uganda integrated customary and common-law courts under the republican constitution of 1967, but reconsidered this decision under the rather authoritarian regime of Museveni. In 1987, the locally organised Resistance Councils, which had principally been created to ensure a decentralised administration, were also recognised judicial capacity. The declared intention was to prevent the inefficiency of the magistrates’ judiciary and its inadequation to African culture. The councils were renamed Local Councils (LCs) in 1996 and are today organised in three distinct local administrative and judicial appeal levels (the village, the parish and the subcounty). Appeals from the last instance (the subcounty) lie to the first instance of appeal within the magistrates’ courts hierarchy which can uphold or overturn decisions or send the case back to either a magistrates or a LC court. The councils have jurisdiction over all customary law disputes concerning land, succession and family law, as well as over civil cases with a minor subject value, cases relating to conversion or damage to property and petty criminal offences by children.70

23At the village level, LC members are directly elected by the villagers. The other LCs are constituted by electoral colleges. The language spoken in the court may be a local language, and a record of the proceedings has to be kept in this language. Interpreters must be provided when necessary. No party can be represented by lawyers, except in cases of infringement of written law.

  • 71 One should refer to PRI (2000: 60-72) and DANIDA (1998).
  • 72 Quoted by DANIDA (1998: 44).

24In the present context of unrest and instability which affects large parts of the country, there are only few reliable studies which provide information about the functioning and the success of the LCs.71 The impact however seems to be quite important, even if some procedural requirements are not respected by all courts: some LCs, for instance, charge extra fees for the provision of jurisdiction, and appeals to the next level are sometimes made difficult. Sometimes LCs go beyond their jurisdiction, presiding even over cases like murder or rape. Nevertheless, on the whole, the integration of locally recognised authorities has well succeeded. But this also means that the LCs reflect the traditional under-representation of women in power which is particularly sensitive in matters of marital land disputes. According to a survey of the Danish International Development Agency, the non separation of executive and judicial power in the LC system is not perceived as a major issue, as in local traditions ‘you cannot be a judge without being a leader’.72

25Besides the LCs, the Ugandan magistrates’ courts of first instance also often taken account of non state law. While according to the Judicature Act written law takes precedence over customary law, courts frequently tend to apply local laws. Furthermore, the courts have the possibility to initiate an extra-judicial dispute resolution: under the Magistrates’ Court Act, magistrates are authorised to suspend proceedings and to pursue mediation or an out-of-court settlement. More generally however, the formal legal system presently suffers from corrupt practices amongst its personnel.

  • 73 Schärf (2000).

26South Africa, in a very different social and political context, is presently planning a reorganisation of its local courts. Under the apartheid regime, South Africa had retained the dual judiciary inherited from the British colonisers. With the introduction of the Black Administration Act in 1927, the court system was fully integrated in the formal court hierarchy and the exercising chiefs became state functionaries. The chiefs’ courts were known for being subject to important manipulation by the government and bribery. They played a minor role in the effective dispute settlement processes. In the townships and urban settlements, this function is still mainly in the hands of the Street Committees which were created during the anti-apartheid struggle. The committees generally aim to achieve reconciliation over retribution and are influenced by traditional mechanisms.73

27Nevertheless, the South African Law Reform Commission, in its draft legislation for a renewed customary law judiciary, did not consider these structures. But its work is still going on and includes extensive research on the experiences of other countries in southern Africa.74

The situation in African civil law countries

28Civil law was mainly imported into the former colonies of France, Portugal and Belgium. The colonial administration in those countries had been more centralised than in the British territories and had not recognised chiefs or other local authorities as independent administrative units. There have been no significant attempts to integrate indigenous law into the general law. However, for matters relating to family, inheritance or land, a dual system of law was created and customary courts were established. The competent jurisdiction was determined by the litigants’ civil status, which could be either civilian or customary and which was recorded by the colonial administration.

29The French also proceeded to an important codification of what they regarded as customary law. The coutumiers were not considered as codes but as a working document for the tribunaux indigènes (and the later tribunaux coutumiers). Despite the absence of any statutory limitation, the French courts regularly abrogated indigenous rules and customs which were regarded as contrary to the ordre public. The request of ‘public policy’, as the repugnancy clause, had an impact on the evolution of the official customary law and its divergence from the living law. Thus, in the end, things did not look much different from those in the British dependencies. But one unexpressed ideal of the French administration seems to have been the mission civilisatrice of the colonial power. Implicitly it assumed an evolutionary process towards a unique legal system, the French one. French civil status could only be obtained by a permanent and complete renunciation of indigenous laws and had to be formally declared before a court competent to apply French law.

  • 75 Gonidec (1968); Conac (1980).

30Ironically, it was only after independence that in quite a few francophone countries traditional conceptions started to be banned from the legal systems. As in the anglophone countries, the integration of the dual legal system was considered as being a major issue. But as the main reference for this reform process remained the French civil law system, the francophone countries had to deal with an additional problem: the difficulty, within this system, to consider non statutory law as ‘law’. Unlike the common law countries, the former French colonies could not proceed to an integration through the redefinition of the sources of law, but had to opt for a unified legislative model which could be understood as the sole valid ‘law’. Since independence, codification has thus been a major concern for most of these countries.75

  • 76 Loi n° 72-41 du 7 mars 1972 portant code de la famille du Sénégal.
  • 77 Le Roy (1994).
  • 78 Décret n° 99-1124 du 17 novembre 1999 relatif aux maisons de justice, à la médiation et à la concil (...)

31Senegal was one of the first countries to achieve an important series of civil codes. Its family Code of 1972 tempted to take account of the legal pluralism in society by providing the possibility to choose the form and conditions of marital union, marital regime or succession and by regulating large parts of what it considered as being traditional or Islamic law.76 Nevertheless, in practice, the corpus of written state laws has only remained one source of law amongst others. Local and Islamic law continue to function in their original form, and the great majority of conflicts is dealt with in an extra-judicial way.77 In order to facilitate access to the formal justice system, in 2000, legislation was appointed for the establishment of alternative justice mechanisms, including a maison de la justice for the purpose of mediation and conciliation, however without any reference to traditional or other local dispute settlement mechanisms.78

  • 79 Loi n° 98-750 du 23 décembre 1998 relative au domaine foncier rural.

32Côte d’Ivoire has chosen deliberately to widely exclude non western law from its new legislation. Extensive programmes of public education have accompanied the implementation of the new laws. But like in neighbouring Ghana, the perseverance and evolution of local practices, urbanisation and growing demand for farming areas have led to a serious insecurity in landownership. As a result, in 1998, a law was enacted to recognise customary land rights. The intention of this law, however, is the conversion of these rights into formally established forms of legal ownership during the upcoming years.79

33In those francophone countries that have not undertaken a codification process, customs are generally still recognised by the formal judiciary in the same restricted domains as before independence (especially family law and rights of succession). But as almost all countries have abolished their tribunaux coutumiers, cases have to be brought to the regular courts which are frequently assisted by assessors.

34The only countries retaining a dual system of courts after independence from France were the two mandatory territories of Togo and French Cameroon.

35Togo abolished its customary courts only in 1978 and transferred their competence to justices of peace and to the courts of first instance. Nevertheless, traditional authorities continue to play a major role in the settlement of disputes.

  • 80 Loi n° 64-28 du 09 décembre 1964 portant organisation judiciaire au Bénin.

36Benin, the former Dohomey, has replaced its tribunaux coutumiers with conciliation tribunals. These tribunaux de conciliation exist throughout the country and are competent to hear almost all matters of dispute (the main exception being labour law), related to custom or to written law. Their records are transmitted to the court of first instance which either confirms the successful conciliation or assumes jurisdiction if the conciliation fails. If the decision is confirmed, the conciliation record acquires the force of a final judgement and can only be contested to questions of law through an appeal to the Supreme Court.80

  • 81 Loi n° 2002-07 du 24 août 2004 portant code des personnes et de la famille.

37Before a unified code regulating family law and successions came into force in 2004,81 Benin’s regular courts could be seized to adjudicate either in ‘modern law’ or in ‘traditional law’. For ‘traditional law’ cases, the court adjoined one ore two assessors for advisory, but the colonial Coutumier du Dahomey, written in 1931, was also considered as source of law.

  • 82 Nkou Mvondo (2002).

38Cameroon has a quite startling legal system. In the west it is based on common law as inherited from the British colonial administration, while in the central and eastern parts it is founded on the civil law imported by the French. In both parts, customary law jurisdiction exists in accordance to the respective colonial heritage: Customary Courts and Islamic Alkali Courts in the west, tribunaux coutumiers and regular courts in the rest of the country deal with customary and Shari’a law. Both, the regular and the customary judiciary are presently facing important problems. Despite the significant number of customary law courts, traditional and popular justice is mainly rendered in an extra-judicial way.82

39As to the lusophone countries, the integration of local law has been subject to evolution different from the development in the former French colonies.

  • 83 PRI (2000: 47).

40During time of colonialism, the Portuguese Estatuto dos Indígenas maintained two separate legal systems based on civil status: one for Europeans and assimilados and one for the Africans. From 1929, Africans and mulattoes could gain the status of assimilados if they proved that they could read and write Portuguese, had rejected tribal customs and were gainfully employed. But by 1961, in Mozambique, less than one percent of the population had been granted this status. The dual legal system operated unchanged until 1961 when international pressure compelled Salazar to abolish the Estatuto dos Indígenas. But still Africans had to carry identity cards different from those of Europeans and were de jure subject to social and economic discrimination until the achievement of independence in the 1970s.83

  • 84 Sachs (1988: 4).

41The ‘traditional justice’ was rendered by controlled authorities that were assisted by local chiefs as assessors. Customary rules were disregarded when adverse to the ‘healthy conscience’ or to the ‘dictates of mankind’. The collaboration of the chiefs with the colonial administration in the policy of forced labour and forced cultivation discredited them considerably. Their poor recognition was reinforced by their inclination for corruption: ‘...traditional law was relegated to the status of ‘uses and customs’, to be applied by the local colonial administrator assisted by the chiefs. In reality the use and custom that really counted was the one of going to the chief’s house the night before the trial, bearing a chicken, a goat or a large tin of cashew nuts.’84

42This situation, but also the desperate and violent struggle for independence, accounts for the fact that in the lusophone countries the break with the colonial legacy was more consistent than elsewhere. Even before achieving independence, liberation movements had started to build up parallel administration and judiciary.

  • 85 Sachs (1988).

43Mozambique had a judiciary established by the Liberation Front FRELIMO which already operated in many parts of the country during the war with Portugal. Popular Courts, presided by four to six locally elected lay judges, generally gathered at weekends and people were encouraged to attend and participate. Proceedings were held in regional languages. The applicable law was considered as being customary, but was also influenced by the social and economic values of the liberation movement.85 In 1992, the Popular Courts were separated from the state hierarchy and renamed Community Courts. State law is now limited to the inherited Portuguese civil law. The Community Courts today have great influence on the settlement of disputes. Although formally their competence has been limited to mediation and conciliation, they also deal with criminal affairs and pronounce sanctions like fines or community service.

44As well as the Portuguese, the Belgian colonial administration and judiciary were very much based on segregation. The general law, mainly founded on the Code civil du Congo, a simplified version of the Belgian Code civil, was applicable to Europeans and to assimilés. Belgium codified customary law which was applied by separate courts, the juridictions indigènes.

45Congo (DRC) unified its judiciary in 1968 and provided for a progressive replacement of the customary law courts by tribunaux de paix which are the regular tribunals of first instance for minor criminal offences and civil matters. The tribunal de paix consists of a single judge who is assisted by two assessors if the tribunal is seized in family matters. Since independence however, the Congolese judiciary has suffered from a lack of personnel, as nearly the entire corps of the Belgian Congo’s magistrates had been Belgians who left the country. The entire replacement of the customary law judiciary has never been achieved. Presently, only little reliable information is available about its functioning.

46Burundi has unified its judiciary and integrated elements of local law into its legislation. Towards the end of the 1980s, a formal recognition of the institution of Basbingantahe started to be considered. The Basbingantahe are traditional councils which exist all over the country. The central figure of the Basbingantahe are the Ubushingantahe, men recognised for having high moral integrity and for being devoted to the community – some kind of Burundian gentleman. Before becoming an Umushingantahe (singular), they have to undergo training and initiation rites. As a model for social behaviour, the Ubushingantahe exercise both political and judicial power.

  • 86 Ntabona (2002); Adrien Ntabona is the President of the Conseil National des Bashingantahe.

47The 1992 Constitution proposed the quality of being Umushingantahe as a criterion of eligibility for community councils. After the terrible events following the coup attempt of 1993, the genocide that cost more than 100,000 lives and the beginning of a civil war, the new transitional government of 1998 instituted a Conseil National des Bashingantahe. In 2002, the 17 elected members of this council adopted a charta, the first written document since the establishment of the first Bashingantahe at the end of the 17th century. It contains criteria relating to the election, the jurisdiction and the political capacities of the Bashingantahe. Even if they are not formally integrated into the state legal system, they are nevertheless recognised as sharing competences with the national institutions. They could play an important role in dealing with the still ongoing turmoil in Burundi.86

  • 87 Loi organique n° 40/2000 du 26 janvier 2001 portant création des ‘Juridictions Gacaca’ et organisan (...)

48Rwanda experienced a genocide during which more than one million people died. About 130,000 persons are presently detained and accused of being involved. Prison conditions are very poor, and the state judiciary does not at all have the capacity to adjudicate all detainees, while the international tribunal set up as soon as in 1994 has also come into criticism for its poor performances. Therefore, an alternative system inspired by the traditional institution of Gacaca was created in 1996 and became operational after 2002.87 First trials were hold in 2006.

49The offences and crimes committed during the 1994 genocide have been classified into four categories. Category 1 includes the people accused of planning the genocide and category 2 those accused of homicide or rape. Category 3 applies to people accused of assaults without the intention to kill and category 4 to those accused of offences against property. While category 1 crimes continue to be dealt with by the regular justice only, all others can be submitted to the Gacacas. The law provides for the creation of more than 10,000 Gacaca courts. Their mission is not only to adjudicate but also to achieve national reconciliation. Communities shall participate in establishing the facts and hearing confessions. The criterion for being part of the Gacacas, beside a minimum age of 21 years, is to be an ‘honourable’ person. The term ‘honourable’ is mainly defined by reference to moral standards. The Gacaca judges receive no compensation for their work.

  • 88 Sarkin (2001).

50The system is inspired by the formerly existing Gacacas whereby people traditionally solved disputes through mediation, but is also an innovation insofar as it will lead to the creation of new Gacacas in a renewed form. For the moment, the system is exclusively limited to cases relating to the genocide. The aim to extend it to other fields or to integrate it durably into the legal system has not yet been expressed.88

Conclusions

51As the present overview shows, there is quite a variety of ways to define the position of traditional and popular justice vis-à-vis the state legal system. Although these experiences are imbedded in particular historical contexts, some of them could be a source of inspiration for future legal reforms in Ethiopia. In summary, they could be classified as follows.

52Codification of local conceptions of law has been favoured by many francophone countries and some common law countries like Tanzania. This procedure has the advantage to provide accessible and reliable documents that can be used in a written law procedure. Its problem is that it does not take into account the dynamics and flexibility of most local legal systems which prefer negotiation to the strict application of a set of rules.

53Integration of local law into the state legal system in a non-written form as practised in Ghana or in some francophone countries limits the risk of inappropriate determination of fixed rules. It requires the nomination of assessors in court and is a quite easy and practicable way to adjust the law to local customs and practices. However, as the experience of the countries mentioned shows, its impact is limited because it does not render the structure of the judiciary more accessible for people who are not familiar with it.

54Incorporation of local institutions into the state legal systems without codification of procedures and the law they use has been practiced under the British ‘indirect rule’. This way presumes not only that adequate institutions actually exist but also that their logics of functioning are compatible with state law. It requires an important knowledge of the real impact well specified institutions have in well specified regions and represents a risk for minorities and socially marginalized groups.

55Tolerated self-regulation is probably the de facto situation in most African countries where extra-legal mechanisms of social regulation are known and tolerated by the state’s institutions.

56Cooperation in a more explicit manner is practised with the Bashingantahe in Burundi and in Mozambique, where the Community Courts are now recognised as conciliation boards without being part of the state judiciary. The risks of this procedure are the same as those of incorporation, but it provides a greater flexibility. The exercise of partial competences can be recognised as being assumed by certain extra-legal forums without being subject to control by the state. Outside Africa, this option is presently experienced quite successfully in the Nunavut region of Canada or in Greenland.

57Innovation, like the rehabilitation of traditional dispute settlement mechanisms in Rwanda or the creation of new institutions integrating locally recognised authorities in post-independence Mozambique and in Uganda, is another possible way. At the moment, this possibility has only been chosen on the background of very specific historical or ideological experiences.

58On the whole, there is quite a variety of options for the reconciliation of state law with local realities. All possible reforms would of course require a comprehensive knowledge of existing local practises and should take into account the important regional differences in a culturally rich country like Ethiopia. And it will most certainly be necessary to accept the limits of possible reforms: the limits of what state law can provide.

Notes

51 ‘We did not have the concern, in Ethiopia, to work out a Code which is founded on Ethiopian customs’, David quoted by: Verhelst (1968.).

52 For a comprehensive introduction to the problematic one should refer to: Le Roy (2004).

53 As Professor Allott points out, ‘there was thus produced a built-in obsolescence, (...) somewhat of a damnosa hereditas for the new African states’, Allott (1984: 57).

54 Gonidec (1967: 252).

55 The idea of ‘indirect rule’ is attributed to Frederick Lugard, high commissioner of the British protectorate of Northern Nigeria, who based it on observations of the Sokoto Caliphate and the kingdom of Buganda; see Lugard (1922).

56 The ‘invention of tradition’ is an important aspect to understand the interaction between state law and local law in former British territories; see Ranger 1983 and the critical comments of Benda-Beckmann (1984).

57 See e.g. High Court of Lagos Ordinance, s27 (1), 3 Laws of the Federation of Nigeria and Lagos 1576, 1585 (1958).

58 Allott (1984: 60).

59 Courts Act, C.A. 9 (1960); Local Courts Instrument, E.I. 118 (1960); Native Courts Proclamation, L.I. (1960).

60 Woodman (1996).

61 Magistrates’ Courts Act of 1963.

62 Section 3 (8) of the Judicature Act of 1967.

63 Cotran (1983).

64 Section 275 to 284 of the 1999 Constitution.

65 Okany (1984).

66 Amnesty International Press Release, 21 May 2004, AI Index: AFR 44/017/2004.

67 Griffiths (1983).

68 Customary Law (Application and Ascertainment) Act No. 51 of 1969; Customary Courts Act of 1968; Magistrates’ Courts Act as amended by the Magistrates’ Courts Amendment Act of 1992.

69 Juliette Bastin, ‘Vive la reine!’ in Jeune Afrique l’Intelligent, 14 September 2003; Griffiths (1998).

70 For more details see: PRI (2000: 60-72); Resistance Councils and Committees Statute of 1987; Resistance Committees (Judicial Power) Statute of 1988; Ugandan Constitution of 1995; Children Statute of 1996; Local Governments Act No. 1 of 1997.

71 One should refer to PRI (2000: 60-72) and DANIDA (1998).

72 Quoted by DANIDA (1998: 44).

73 Schärf (2000).

74 Many documents are available on the internet: http://www.law.wits.ac.za/salc/salc.html.

75 Gonidec (1968); Conac (1980).

76 Loi n° 72-41 du 7 mars 1972 portant code de la famille du Sénégal.

77 Le Roy (1994).

78 Décret n° 99-1124 du 17 novembre 1999 relatif aux maisons de justice, à la médiation et à la conciliation.

79 Loi n° 98-750 du 23 décembre 1998 relative au domaine foncier rural.

80 Loi n° 64-28 du 09 décembre 1964 portant organisation judiciaire au Bénin.

81 Loi n° 2002-07 du 24 août 2004 portant code des personnes et de la famille.

82 Nkou Mvondo (2002).

83 PRI (2000: 47).

84 Sachs (1988: 4).

85 Sachs (1988).

86 Ntabona (2002); Adrien Ntabona is the President of the Conseil National des Bashingantahe.

87 Loi organique n° 40/2000 du 26 janvier 2001 portant création des ‘Juridictions Gacaca’ et organisant la poursuite des infractions constitutives du crime de génocide ou de crimes contre l’humanité commis entre le 1er octobre 1990 et le 31 décembre 1994; this law has replaced the Loi organique n° 8/96 du 30 août 1996 sur l’organisation des poursuites des infractions constitutives du crime de génocide ou de crimes contre l’humanité, commises à partir du 1er octobre 1990.

88 Sarkin (2001).

© Centre français des études éthiopiennes, 2008

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