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Grass-roots Justice in Ethiopia

 | 
Alula Pankhurst
, 
Getachew Assefa

Regional Case Studies

4. Customary Dispute Resolution Institutions: The Case of the Nuer of the Gambella Region

Dereje Feyissa

Texte intégral

Profile of Gambella Region

1Gambella region is located in western Ethiopia about 780 kilometres from the national capital, Addis Ababa. Its current land size covers 25,274 square kilometres, consisting of nine weredas.

2According to the 1994 Census, the population of Gambella region is estimated at 200,000. There are five ethnic groups living in Gambella region: the Anywaa, the Nuer, Majangir, Opo and Komo, the first two (the Anywaa and the Nuer) belong to the Nilotic language family whereas the last three belong to the Koman language group within the Nilo-Saharan language family (Bender 1976). According to the Census, the Nuer constitute 40%; the Anywaa 27%; the Majangir 6% and the Komo and the Opo 3%. Gambella is also home for migrant people who come from different parts of the country at various times. This group of people do not form an ethnic group and are referred to by the generic term ‘highlandersh’, comprising 25% of the region’s population. The various groups are also differentiated along their livelihood strategies. Thus, the Anywaa and the Opo are predominantly cultivators, the Nuer practice pastoralism (steadily changing into agro-pastoralism); while the Majangir combine hunting and gathering with shifting cultivation (Stauder 1971). The Nuer predominantly live in the two districts of Jikow and Akobo and in recent times groups of Nuer have been settling in Itang district and Gambellla town. The Nuer live on both sides of the international boundary between Ethiopia and Southern Sudan. Those who are living in the Gambella region are called the Jikany:

Diagram 1. The Jikany Nuer divisions

Diagram 1. The Jikany Nuer divisions

General observations of CDR among the Nuer

Cuong - The normative order

3The Nuer belong to a type of society which is known as ‘stateless’ or segmentary lineage system. Stateless societies have minimal or no government; no one has authority to make decisions about the rules and enforce these on others. In these societies, there is an unwillingness to empower anyone with authority. Nevertheless, there is a consensus about the norms and the rules of behavior and actions towards others; these rules are maintained largely by consensus. When a rule or custom is violated, then the injured party or his/her kinsmen can take reprisals as long as public opinion favors the action taken. The reprisals must be considered equal to and not greater than the injury originally inflicted (i.e. ‘an eye for an eye’). Thus, enforcement is a real possibility; deterrence is based on the likelihood of retaliation by the victim or his/her kin group. On the other hand, public opinion sets the limits for the avengers.

4There are also usually provisions for resolving disputes and settling feuds. Compensation from the perpetrator and his/her kin group is one way; public opinion usually brings pressure to bear upon the victim’s kin group to accept. The kin group leaders may hold negotiations, perhaps assisted by individuals who act as mediators, to resolve the conflict. These provisions allow some stability and order to exist in a society without investing power in the hands of particular officials or offices.

5The Nuer have no regular institutions for the enforcement of customary law. Social control is not maintained through the systematic application of the force of politically organised society. There are recognised standards for the control of human relationships even though they are maintained by sanctions too indeterminate to be called legal. Like other segmentary societies, therefore, the Nuer do not have a set of regular institutions which guarantee the swift settlement of disputes and enforce judgments. They do not see their judicial procedure in these terms. Their procedure is not designed to pronounce on guilt and innocence, or to enforce deterrent punishments. It is a system of arbitration. Nuer concepts of justice are founded on principles of social obligation and a spiritually sanctioned moral order, where moral and social obligations often merge.

6The Nuer have an elaborate law to settle disputes in which the cattle assume a legal entity. A homicide costs 40 cattle, an adultery five cows and an ox, and a list of compensations for injuries to the person (e.g. ten cattle for a broken leg/skull and ten cows for the loss of an eye). A marriage involves 25 cows as bride wealth. Up on divorce, the groom could reclaim the cows provided that his wife did not bear him a child. When the wife dies without issue the husband is likely to demand and receive without undue argument all his cattle; if one child is born the wife’s family will retain sufficient only to legitimize that child (five head for a boy and six for a girl); and if two children are born the husband may be content to leave all his bride wealth cattle with the wife’s family or may demand the remainder after deduction of legitimization fee. If a wife dies in her first pregnancy or child birth, the husband is held responsible and he loses the bride-cattle he has paid.

  • 138 The concept of cuong is also applicable to the cattle – human relationship. As Evans-Pritchard note (...)

7A Nuer thinks in terms of rights which he calls cuong and of wrongs which he calls duer. Duer thus means the failure to recognise a right or the infringement of a right. The failure to honour a social obligation could become a duer which could result in nueer, a ‘sin’ (Evans-Pritchard 1940a: 171-2). The decision to take restitutive action is supposed to be based on cuong, moral right, to receive either spiritual or social sanction. Thus a curse (biit) pronounced by, or on behalf of, an aggrieved party is thought to have no effect if that person was not in the right138.

8There are different kinds of sanctions to enforce the normative order. The primary sanction is the sanction of self-help, i.e. retaliation if a wrong is committed, or the use of force to claim a right (Howell 1971). The wrong doers do not receive support from their kinsmen. The principle of collective responsibility (i.e. that my kinsmen share the ‘bill’ of my duer) also serves as a deterrent. Besides, social reprobation; unpopularity; loss of approval and respect of neighbours; loss of privileges (social, political and economic) and religious sanctions play a role.

The segmentary opposition as a dispute resolution mechanism

9The efficacy of the sanctions is also embedded in the Nuer mode of governance - structural relativity. Evans-Pritchard described Nuer society as having two main mechanisms for dealing with conflict. The first was an extraordinary system of political mobilisation. He claims that groups of like sizes mobilised against or in defence of one another on the basis of descent. The boundaries marking peace and conflict were thus defined by shared ideas about the past and by the location of particular groups in relation to one another as a consequence of their understanding of that past. The force of the sanctions is relative to the position in the social structure of the persons concerned, i.e. social obligations are likely to be binding on persons not only related by blood but also closely associated in the activities of day-to-day life. Loss of privilege is a greater loss in such circumstances. Generally speaking, the closer the relationship, expressed in terms of kinship, in association by common residence, and economic cooperation, the greater the need to abide by accepted modes of behaviour.

10These local groups form oppositional units of a balanced nature. The nested hierarchy that emerges operates through the principle of segmentation, smaller units forming a wider unit until they all stand as one in opposition to non-Nuer groups. These units of local identification (called ciengs by the Nuer, and segments by Evans-Pritchard) had no absolute existence (except at the very basic level, which operates at the economic unit) but emerged in specific situations, called into being in opposition to like units. The segmentary lineage model described by Evans-Pritchard runs as follows: If a man in one village kills a man in another village, the two villages would be forced into confrontation, and if a man in either of these villages killed a man in another district, then all the villages in his district would unite against all the villages in the other district. Accordingly, people who are related by descent but live in the warring villages or districts employ ‘face-saving’ formula by not directly confronting their relative-enemies. Drawing on a similar stateless society in West Africa (the Tiv of Nigeria) Bohannan depicted the segmentary lineage model in simplistic terms as follows:

11In this model, the different segments in the hierarchy represent different levels in the kinship hierarchy, not a political hierarchy; as stateless societies, there are no political structures or hierarchies. According to Bohannan, the model is based upon widely observed phenomena—(a) 2 brothers may quarrel, but if an outsider becomes involved with either, the brothers combine to oppose the outsider. (b) Though brothers fight, there are usually limitations to their fighting and their actions against each other as they will have to compose their differences later. However, where relationships are remote or non-existent, actions may be much less restrained. If a and b have a quarrel, it is contained within segment 1, but if a and d are involved, then a and b (segment 1) will be ranged against c and d (segment 2). If a and h are involved, then all of segment A will be united against segment B; similarly, a quarrel between a and p will result in all of segment I being united against everyone in segment II.

12Such a system depends a good deal upon a (theoretical at least) balance of power and equivalence at all levels. In theory, all conflict is between relatively equal groups. Moreover, until one reaches the highest levels, third parties are usually peacemakers rather than joiners in the fray as this kinship framework means that they are related to both parties. Disputes are frequently resolved by the elders getting together to discuss the issue and compose differences.

Ad hoc community leaders

13Contrary to Evans-Pritchard’s representation of the Nuer as a society of radical egalitarianism, the Nuer are and always have been acutely conscious of the need for unity and are always seeking someone by whom and through whom social disharmony can be averted, though these aspirations for order are not institutionalized but focused on personalities. The bearer of this aspiration is identified with the Nuer ideals – the desire and the ability to bind the people together to mediate and to settle internal quarrels and disputes to negotiate agreements with other tribes and peoples if they are to the advantage of the Nuer, to maintain good relationships with neighbours to check the process of fission which is highly undesirable, a type of leadership which is derived from the power of persuasion.

14The settlement of disputes among the Nuer is a process of negotiation. Arbitration in disputes between social groups often meant uncovering all reasonable obligations involved and deciding whether and how they could be met. Such disputes are settled through discussions between adhoc groups of mediators, rather than through pronouncements of a single ruler. In this traditional legal space, each side has its full say which could include threats as well as self-justification. As Evans-Pritchard pointed out, ‘it is the rule of such gatherings that everything a man has in his heart against others must be revealed and no bitterness kept secret’ (1956: 109). The case is fully talked out until there is a consensus, and an opinion given by an influential person is couched in persuasive language and not as a judgement delivered with authority. There are three categories of community leaders involved in dispute resolution i) Ruec-wec (local courts), ii) Ring (Diversional rights), iii) Guk (spiritual rights)

Ruec-wec

15The word ruic is derived from the same root as ruac meaning ‘speech’ or ‘talk’, and a ruic is said to have ruec, which Lewis translated as ‘influence’ (Lewis 1951). The qualities of a ruic are: helping in the provision of marriage cattle, seeing that compensation is paid in homicide cases, ensuring that the tribe has enough to eat and, above all, by being an orator at once clever and eloquent. The position of these ruic depends mainly on their own personalities. The possession of ritual powers helps as well as membership in the dominant clan; wealth is a distinct asset as well as courage and military qualities. But it is a man’s character and personality that decides whether his fellows accept his leadership or not. The conditions under which ruic are likely to emerge are war and migration. Helping a community occupy new lands and successfully establishing a community in new lands is a crucial political asset.

16The Ruec are chosen to serve for a certain period of time. But the tenure is flexible depending on the performance of the individual ruec. Ruec are categorized into the following sub groups

Gaat tutni

17The word Gaat tutni means ‘children of the bull’, referring to the descendants of the original occupiers of a certain village called dil. A dil is a member of the dominant clan in each tribe with a slightly superior social position. Nevertheless, the clan system has no hereditary leadership. There are three categories of people in Nuer society: dil, rul andjang. Evans-Pritchard (1940) defined dil as an aristocratic clan, the dominant lineage, though minority, provide a lineage structure on which the tribal organisation is built. A Nuer is a dil only in the one tribe where his clan has superior status. Rul are Nuer immigrants who attach themselves into the dil clan through affinal ties. A rul is a Nuer who in certain tribe not a dil, though he may be a dil in another tribe (p. 216). Jang are non-Nuer, captives or immigrants. A jang either joins the dil through adoption or attach himself through affinal ties. The word jang might denote any of the following categories of people: any foreigner, a raidable category, specifically the Dinka in their lands, Dinka of absorbed pockets of settlements in Nuer territory, recent Dinka immigrant.

18Gaat tutni is chosen from a dil family with an average of a village of 200-250 size. He has a non-elected assistant called Buryan, at times a friend of Gaat tutni who serves as a trusted deputy. He is not necessarily a dil. The jurisdiction of the gaat tutni includes: cases of adultery, elopement, theft, cattle raiding, rape, and divorce, duel fighting and individual disputes. His mandate includes dealing with primary cases called Wic luaok. The law enforcement capacity of the gaat tutni emanates from the authority he receives from the community upon his election. He also commands a rudimentary coercive power in which the Buryan sometimes serves him as a policeman as well as other aides. He also closely works with the village elders. Should the accused run away to avoid punishment, one of his closest family member would be charged, which includes confiscation of his property. The Gaat tutni work towards compromise, consensus or they may make decisions on their own. In the majority of the cases the decision of the gaat tutni is guided by public opinion. What many people agree on is most likely the decision of the gaat tutni. The cases are all discussed by the people who attend and wish to talk. As many people as possible are randomly chosen to talk.

Kaar (Lam)

  • 139 The election is made through the following procedure. The election date is announced and all people (...)

19In case of dissatisfaction from any one or group, he or she could appeal to the higher local court (tur) called kaar. The process of referring the appeal from Gaat tutni to kaar is called Nang tuur. This is a leader chosen by the public through democratic election.139 A kaar follows the same procedure like gaat-tutni, i.e. letting people investigate the truth between the two disputants. But the situation is somewhat more respected here because if one misbehaves the punishment is more severe: one can be punished for disturbance by having to provide a cow or two whether one is at fault or not. In majority of tire cases only the elders are allowed to get the chance to talk. If they fail to reach a consensus, a new election will be held to elect a naye-kaara.

20The population size for a kaar depends on the size of the clan. On average ten and more gaat tutni can be found under Kaar with approximately 2000 inhabitants. And as an appellate body, it entertains cases involving homicide and other compensation claims on different grounds. He also oversees the malpractices of Gaat tutni and can take measures of correction.

Bok

  • 140 These are Doup Bichiok (a Bok for all the Cieng Reng, Cieng Nyajani, part of the Cieng Cany, and Th (...)

21Bok is a senior level that presides over a population of more than 50,000. There are for instance two Bok for the Gaajak tribe in the Jikow district.140 The electoral procedure for the Bok is similar with the kaar. There are two types of Bok: Bok-in-Bor - senior local administrator and Bok-in-Char - assistant local administrator. The jurisdiction of the Bok is similar with the kaar but things are more organized at this level. The Bok is linked with the government legal institutions. The responsibilities of the Bok are administrative (on matters of peace, resource allocation and fixing relations with the government) and supervisionary (supervises all the kaar and concludes the cases and report to the government and the police). Cases which are reported by the Bok to the police are those which incur up to 5 years of imprisonment. Bok is equivalent to a supreme/high court in Nuer terms. A Bok is often involved in settling disputes that arise at the clan level. Depending on the amount of loss incurred by the inter-clan fight, a Bok might impose up to 200 cows as compensation. The compensation is collected by the kaar and gaat tutni, part of which is allocated to officiate a reconciliation ceremony carried out by ritual experts. If the disputant(s) are not satisfied by the Bok’s verdict they can still appeal to religious experts with a legal mandate particularly to the Kuaar muon (the Leopard Skin Chief).

Ring (Diversional right)

22Etymologically ring means coming into existence. It connotes the ancestral blessings given to individuals in order to protect them and with the capacity to mediate when disputes arise. The most effective mediators are those who have the divinity Ring (Flesh) in their bodies and it is this divinity which gives their words force. Ring/Flesh is incarnate in the master’s bodies; it awakens in them at sacrifices where it is invoked; it inspires them to know the truth. The moral and spiritual source of ring is ultimately located at Gee, the ancestor of the Nuer. All the spiritual forces with a legal dimension in contemporary Nuer society trace their origin to one or the other children of Gee: the Kuaar Muon from Bul, Ceng, Denay and Laak; Thoc (spirits) to Dok and Mut, Dual and Deth to Kiir. The following are the prominent contemporary spirits in Nuer society with some legal authority

Wut ghok (Jang Win Duar Chany)

23Wut ghok, also called Jang Win, is considered as a man of cattle with a power to affect the wellbeing of cattle. Among the Gaajak tribe, the Wut ghok is from the Cieng Cany clan, also responsible for the initiation ceremony related to the age set system. One of the events during the initiation ceremony is the spiritual guidance for the initiand to abstain from the act of stealing. A wut (an initiated man that bears the six parallel scars on his forehead, called gar) is expected not to involve in the stealing of maize or cattle. There are social and religious sanctions to enforce this restriction. Socially, if his act of stealing is known by the Wut ghok he will make it public such that the culprit will loose his social status, particularly not being able to find a girl to marry. Even if the person who stole something keeps it secret an affliction is believed to strike him in his blood as a form of curse and that the person will loose all his good fortunes in his future life.

Kuaar muon (the ‘Leopard Chief)

24Kuaar Muon is the special functionary who is called upon to act as arbitrator in the settlement of a blood-feud. His powers are derived from his association with the land and extend to mankind because it is upon the products of the land that mankind exists. But he is popularly known by his badge of office (Leopard skin). He helps people with general problems such as carrying out a ritual to protect the people from an attack by wild animals and settle dispute on land use. Should the disputants fail to agree he makes a sacrifice and curses the land to cause affliction on the person who violates his decision. He also solves disputes which have no evidence, particularly for homicide.

25The Kuaar muon has a sacred association with the earth (mun) which gives him certain ritual power to bless or curse. They are regarded by the Nuer as agents through whom disputes of a certain kind can be settled and defilement of a certain kind can be effaced. Only certain lineages could be Kuaar moun and only some men of these lineages practice as such. In many parts of Nuerland the Kuaar moun do not belong to the dominant clans in the tribes in which they function. It is this structural position which gives them the status of neutrality. Contrary to tire conventional description of him as a chief, the Kuuar moun has no judicial or executive authority. The chief’s curse is not in itself the real sanction in the settlement of feuds, which is known to every one in advance and is allowed for in their calculation. The state of affairs that surround the functions of the chief is like a game (Howell 1970).

26As ritual objects there are four types of kuac (Leopard skin) with different functions. All are kept in the house of the Kuaar moun and are brought out when they are needed

  1. Kuac-in-thoan – it is used for ceremonies like wedding or other peace making ceremonies.

  2. Kuac-in-lual – a red leopard skin which the Kuaar muon wears while solving a land dispute, particularly when he circumscribes a kuel, a nogo zone area between the two disputants.

  3. Kuac-in-bor – a white leopard skin which he wears while solving cattle disputes, when he identifies who is the right claimer. If a person sits on this skin he is believed to die should he not tell the truth. But if the person tells the truth on time the skin is believed to save him after the Kuaar moun kills a cow as a form of sacrifice.

  4. Kuac-in-char – a black leopard skin which he wears while solving homicidal cases, adultery and other serious problems. The procedure is taking some hair from the skin and burn them into ashes. Then the ash is mixed with water. The disputants are required to drink it. The person with a duer will die and it is believed that nothing can save the person from dying. Unlike the kuac-in-Bor, there is no possibility of retrieving the duer (wrong). Even changing mind after having once decided to go through the procedure would cost him four cows and a sheep.

27Kuaar Muon also deals with cases which are decided by the Ruec Wec but whose decision is not accepted by one or the other disputant. In the majority of cases this happens when there is argument between two or more people about who really committed the action without good evidence i.e. killing a person or if the case of stealing is brought against a person who denies the charge.

Wiw

28Wiw is a sacred spear which is believed as the god of war and guardian spirit among the Jikany (eastern Nuer). The spirit is hosted by the Thiang clan of the Gaajak tribe. There is a myth which explains why Wiw is hosted by the Thiang clan. This myth is related to Kir (the mythological ancestor of the Jikany Nuer) and how his descendants shared his ritual belongings and spirits.

29Wiw is believed as a god that can help the Nuer especially during times of war with other tribes. Like the Kuaar Muon, Wiw also solves disputes. Wiw is a spear like metal that is kept on a chair. Elders of the community that were willing to serve him are the ones who carry out his works. They build a shrine for Wiw with two fences. The smaller fence surrounding the shrine is only for Wiw and elders that serve him. The bigger fence is a place where people gather and solicit his help. The youth and a person who still sleeps with his wife are not allowed to enter into the compound. This is because it is believed that once you enter into the compound you will not be able to bear children. Besides these categories of people could be peth (evil eye) who do harm to people. When the Nuer go to war with other people they solicit Wiw’s support to ensure them victory. From the crowd the elders enter the compound, bring out the Wiw and point the spear in the direction of the enemy. They spend the time praying, dancing and sacrificing cattle. The guardian of Wiw asks Wiw to help them defeat their enemy. The spirit of Wiw is not invoked for intra-Nuer conflict, even not by the people of his village. The only exception is that people of Wiw’s village are not supposed to be chased from their village even if they are defeated in a battle.

30Failure to observe this rule will invite troubles. Wiw’s diversional right is also legitimated by Ngundeng the greatest of the Nuer prophets. Νgundeng is said to have bestowed upon Wiw with the power to protect the Nuer. The guardian of Wiw is appointed only from the Gaat Diat family of the Thiang clan. Any person from the Gaat Diat have equal chance of being the guardian of the Wiw spirit. Once a person is appointed as the chief he will remain so until he dies. The bearer of the office makes an oath to serve the Nuer impartially.

Guk (Spiritual Right)

31Guk consists of three types: Guk Kuoth (prophets), Kiir (spirit-possessed mediums), and Ji Wall (magicians).

Guk Kuoth (prophets)

32This group is respected by the people because they are believed to be able to foresee events and could identify who did what in front of the public. Ngundeng is the first and most popular of all Nuer prophets. Ngundeng, who lived in the later part of the 19th century, is believed to have been possessed by the spirit Deng, the ancestral spirit of most Nilotic communities. One of the main activities of the prophets is peace making. Prophets mediate homicidal cases, perform the sacrifices which compose feuds and ensure that compensation cattle are paid. In common with the Kuaar moun and respected elders they institute preventive measures. As prophets they have additional sanctions which enforce compliance with their mediation. The prophet’s reputation for being able to kill by word or thought encourages persons to attend their summons. Prophets are also extra-local; their jurisdiction often goes beyond their immediate communities.

Kiir (spirit possessed mediums)

33Although its origin is not well known it is believed that Kiir is the god of Kiir, the ancestor of the Jikany (eastern Nuer). When Kiir died he is said to have inherited his god to his youngest son, Nyang, the ancestor of the present-day Gaguang tribe. The spirit of kiiris said to have possessed a person called Kun Thoa. The family of Kun is believed to possess muon which enlightens him to solve disputes. Failure to observe his verdict is believed to cause a deadly affliction. Although his authority is more manifest among the Gagwang, kir/Kun’s service is also available for other Nuer provided that they pay him.

Ji Wall (magicians)

34A sub class of the Jool that threaten people. They are believed to possess a protective spirit. Should any one dare to take their property or offend them they can cause death. Riek Diew (Cieng Chany) and Deng Yat (Cieng Nyajani) are two examples from Jikow. The service of Jiwall is solicited by elders to enforce a collective decision in dispute settlement. One such case is the role of Riek Diem in the 1996 intra-Chatty clan conflict. After a bloody conflict that cost the lives of many people Riek Diem blessed the settlement and cursed any one who would first break the agreement, ‘may a fly refuse to get out of his family!’, a figure of speech which denotes a fatal curse for those who are not abiding by the decision.

Gurtong

35Gurtong is a phrase consisting of two words: a verb ‘gur’ and a. noun ‘tong’. Gar means to ‘grind’ or ‘to blunt’ and tong means ‘spear’. Gurtong therefore means ‘to blunt the spear’ by grinding the sharp edges of the spear against something hard until it is blunt. The words and the phrase have their origins in most Nilotic languages other than the Nuer including the Anywaa. Gurtong is mainly used in settling disputes between two ethnic groups. Gurtong is the name of a ceremony where two parties to a conflict settle a dispute, in which lives have been lost, through peaceful discussions. The blunting of a spear symbolizes forgiveness and reconciliation.

36This gurtong was conducted in 1993 in Gambella town after a series of conflicts between the Anywaa and the Nuer which cost the lives of many people and caused immense material destruction. The ritual was conducted by the wat ngomi (first settler) of Pinkeo village. In front of the ritual expert stood senior regional government officials including the first president of the Gambella regional state.

Description and analysis of the institution of Kuaar Muon

37The Kuaar Muon settles different kinds of dispute, such as homicide, theft and adultery. The settlement of these disputes involves elaborate rituals and standard procedures. In the following some examples are described.

The Kuaar Muon and the procedure of settling a homicide dispute

38Evans-Pritchard and Howell described the procedure of settling a homicide dispute by the Kuaar moun as follows. As soon as a man slays another person he hastens to the home of a Kuaar Muon to cleanse himself from the blood he has spilt and to seek sanctuary from the retaliation he has incurred. He may neither drink nor eat till the blood of the dead man has been let out of his body, for it is thought to pass into it in some way. To this end the Kuaar Muon makes one or two vertical incisions on his arm by a downward stroke from the shoulder with a fishing spear. The slayer presents the Kuaar Muon with a steer, ram or he-goat, for a sacrifice. This rite and the mark of Cain on the arm are known as bir. As soon as the kinsmen of the dead man know that he has been killed they seek to avenge his death on the slayer, for vengeance is the most binding obligation of paternal kinship and an epitome proof of all its obligations. By living with the Kuaar Muon as his guest from the moment his arm has been cut till the final settlement, the slayer has ‘asylum’ because the Kuaar Muon is sacred and blood must not be shed in his homestead. The slayer is expected not to leave his compound, lest he might be avenged by the kinsmen of the deceased. This state of affairs might go on for some weeks before the Kuaar Muon opens negotiations for settlement after the mortuary ceremony has been held and tempers have cooled a little. The negotiations are leisurely conducted. The Kuaar Muon first finds out what cattle the slayer’s people, known as the jithunga, possess and that they are prepared to pay compensation. Unless, there were a number of unsettled feuds between the sections concerned the jithunga are generally willing to enter into the negotiation and are keen to restore the social relationship with the kinsmen of the slain, known as the jiran. The Kuaar Muon then visits the jiran and asks them to accept cattle for the life. They usually refuse, for it is a point of honour to be obstinate, but their refusal does not mean that they are unwilling to accept compensation. The Kuaar Muon knows this and insists on their acceptance, even threatening to curse them if they do not give way, and his exhortations are supported by the advice of distant paternal kinsmen and cognatic relatives who will not receive any of the cattle and need not, therefore, show such pride and stubbornness, but who have a right to make their opinion known in virtue of their relationship to the dead man. The voice of compromise is also supported by the bias of custom. Nevertheless, the close kinsmen must refuse to listen to it till the Kuaar Muon has reached the limit of his arguments, and when they give way they declare that they are accepting the cattle only in order to honour him and not because they are ready to take cattle for the life of their dead kinsman.

39The Kuaar moun are called in to remove spiritual difficulties by ritual performances and to act as intermediaries between the warring parties because by reason of his special association with the land he can curse people. He can interpose himself between the contestants in an actual fight and draw a line on the earth between them which theoretically no man would dare to pass. The Kuaar Muon, however, only exerts his influence when he knows that the contestants wish him to do so. He is then the mediator who conducts the opposed groups peacefully through the elaborate processes of settlement, who acts as assessor where cattle are concerned, and who deals with the problems of taboo and spiritual observance which arise i.e. he plays the role of the traditional ‘Third Party’.

  • 141 The Nuer practice a vicarious marriage popularly known in the literature as ghost marriage. If a ma (...)

40In theory forty to fifty head of cattle are paid but it is unlikely that they are paid at once. The ceremony of attonment is performed when some twenty have been handed over, and then the slayer’s kin may go about without fear of being waylaid, at least for the time being. Even if all the cattle are paid there is always the danger of vengeance. The Kuaar Muon takes the cattle to the dead man’s home. They are partly distributed among the kinsmen of the dead man and partly used to marry a wife to his name to give him heirs.141 If a man on either side has been killed cattle must be paid by both parties for the ghosts must be appeased. Also sacrifices must be performed to rid the villages of death, which is loose in them and must be sent into the bush, and kinsmen on both sides must be purified from their unseemliness. For his part in the proceedings the Kuaar Muon receives a bull called ruath riem (the bull-calf of the blood) as service charge. The remaining cattle are allocated for sacrifice, cleansing ritual and compensation payment to the kinsmen of the deceased and the sacrificial cattle are arranged in the following manner:

  • The tut ghok (the bull of the herd), a purification ceremony required to allow the ji -ran to drink the milk of the compensation cattle without incurring spiritual contamination.

  • Ruath birre (letting the blood)

  • Yang kweini – (cow of the journey) paid to the Kuaar moun by the jithunge.

  • Yang jyup (the cow of the axe) – a cow given to the buthni relatives of the ji ran by the jithonga

  • Gwan buthni of the jithonga (the collateral branch of the lineage)

  • Rauth kethe (the bull-calf of the gall-bladder) for spearing to initiate the reconciliation

  • Tut ghok (the bull of the herd) – to avoid contamination for the jiran

  • Ghok pale loic (the cattle of the easing of the heart)

  • Cuil (two cows in calf are handed over to the father and the mother of the deceased to appease both kinship groups)

  • Math – the final ceremony conducted by the Kuaar moun in order to remove all fear of future contamination and to remove the taboos of eating together. A bull called yang tul coka is sacrificed and ceremonially divided between the jiran and jithonga, who partake together of its meat.

  • Ghok pale loic (to ease the heart) - as a sign that the feud is really ended

41Thus, a homicide does not concern only the man who has committed it, but also his close agnatic kinsmen. There is mutual hostility between the kinsmen on both sides and they may not eat or drink together until compensation is made because it is believed that ‘a bone [the dead man] lies between them’. The closer the groups are tied in economic, political and social terms, however, the keener they are to fix and restore the balance. Under such a circumstance, feuds are settled more quickly and are not so likely to break out again after settlement.

42Who are the persons normally concerned in the collection and receipt of compensation? The blood-wealth is equated with the bride wealth because the ultimate motive of compensation is to enable the dead man to marry so that the children may be raised to his name. Thus those who participate in the compensation payment are those who normally contribute for the bride wealth (all bride wealth and gift receivers of kinsmen of the collateral lineages). Besides, the Nuer recognise different types of homicide:

  • Thung ran – when a man is killed intentionally. The rate of compensation depends on the weapon used, a distinction which perhaps reflects the degree of intent with which the act was carried out.

  • Thung loic ran – delayed confession of homicide for fear of nueer – extra compensation is required to restore a balance against the ritual danger on top of the original wrong.

  • Thung nyindet – when a man dies as a result of an old wound.

  • Thung gwacka – compensation for accidental killing (less).

  • Thung yiika – if a man seduces an unmarried girl and as a result she dies in child birth.

  • Biem – killing by ambush.

Kuaar Muon and Settlement of Minor Disputes

43A man who has a cow stolen may ask the Kuaar Muon to go with him to request the return of the cow. The Kuaar Muon goes first, with several of the elders of his village, to the plaintiff’s homestead, where he is given beer to drink. Later they go, with a deputation from the plaintiff’s village, to the defendant’s, and here also the chief may be presented with some beer or goat. The Kuaar Muon is considered to be neutral and certain sanctity attaches to his person so that there is little likelihood of the deputation being injured. The visiting elders sit with elders of the defendant’s village and the chief in one of the byres and talk about the matter in dispute. The owner of the animal gives his view and the man who has stolen it attempts to justify his action. Then the Kuaar Muon, and anybody else who wishes to do so, expresses an opinion on the question. When everybody has his say the Kuaar Muon and elders withdraw to discuss the matter among them and to agree up on the decision. The disputants accept the verdict of the Kuaar Muon and the elders and, later, the owner of the animal gives the Kuaar Muon a young steer or a ram unless he is a very poor man.

44If a man has a dispute with another of the same neighbourhood, they may both go to the homestead of a local Kuaar Muon and lay their spear upright in his byre. A man would not plant his spear upright in Kuaar Muon’s byre. When both men have stated their views the Kuaar Muon and the elders discuss the matter outside the byre and re-enter it to acquaint the disputants of their decision. The person in whose favour the decision has been given hands his spear to the chief, who either gives it to a friend or spits on it or returns to its owner. The Kuaar Muon gives his final decision as an opinion couched in persuasive language, and not as a judgement delivered with authority. Moreover, whilst the sacredness of the Kuaar Muon and the influence of the elders carry weight, the verdict is only accepted because both parties agree to it (mediation on demand). The man against whom the decision is pronounced may give way to honour the elders and the Kuaar Muon where he would not give way directly and without their intervention, for he does not lose prestige by accepting their verdict, a face-saving formula projected into the sacred sphere. If there is any doubt about the fact, certain oaths, which are in the nature of ordeals, may be employed, such as swearing statements on the leopard skin. The Kuaar Muon s duties are clearly those of a mediator and not those of a judge.

45According to Evans-Pritchard, the five important elements in a settlement of this kind seem to be: i) the desire of the disputants to settle their dispute ii) the sanctity of the chief’s person and his traditional role of mediator, iii) full and free discussion leading to a high measure of agreement between all present, iv) the feeling that a man can give way to the chief and elders without loss of dignity where he would not have given way to his opponent, and v) recognition by the losing party of the justice of the other side’s case (Evans-Pritchard 1940: 164-65).

Evaluation and comparison with the formal institutions and laws

Linkages with the formal institutions: The institutions of Bok and the Sefer Shum

46As indicated earlier on, the Bok is linked with the government legal institutions. He oversees the people’s relationship with the government and reports to the government and the police on major cases that come before him.

47The Sefer Shum is the most visible form of articulation between the Nuer customary law and the modern state law. The Sefer Shum was established in 1980 when Nuer settlements in Gambella town started. Prior to 1980 only a handful of Nuer were living in the town except for those who were coming for trade. It was a pragmatic decision by the Nuer elders and the police when it became increasingly difficult to entirely and satisfactorily settle Nuer disputes in the government courts because this entails competence in Nuer culture. Cognizant of its complications the police authorized the Nuer elders in Gambella town to handle disputes that arise from adultery, divorce and cattle raiding. The tenure of office was originally fixed for five years but in the course of time it has become more or less on the basis of the performance of the leaders. It consists of six leaders who are all elected. The Sefer Shum is a blend of tradition and modern court system. It has borrowed from tradition the legal procedure and compensation combined with the modern coercive system. In addition to its linkage with the formal police the Sefer Shum has its own informal police force to enforce decisions. Although the Sefer Shum is being established in the rural areas, it is most effective and strong in Gambella town. Located in Newland, the main Nuer residence area in Gambella town, the Gambella Sefer Shum handles disputes daily, at times more than one case per day depending on how long the first case takes. Most of the disputes handled by the Sefer Shum are resolved in a manner satisfactory to both parties and only few of the cases are referred to the modern court. The leaders of the Sefer Shum receive rewards for their service in the form of fines imposed on the wrong doers. Dispute between individuals incur between 150 to 250 birr, marriage related disputes (divorce, abduction etc) up to 250 birr, compensation for teeth 200 birr.

  • 142 In order to severe an incestuous relationship a live ox is split down the middle by the Kuaar moun (...)

48In May 1, 2004, the writer attended a dispute settlement by the Sefer Shum in Gambella town. The issue was an allegation that adultery was committed. It took the whole afternoon to verify the allegation. In the following, the procedure of dispute settlement observed will be described. Upon hearing the story of his wife committed adultery, Gatluak brought the issue to the Sefer Shum. He was informed by the friend of his wife, Bok. Bok, who is not yet married, claimed to be at the scene where Nyanuer, Gatluak’s wife, committed adultery. According to Bok, Nyanuer took her to a friend’s house to introduce her with a lom, lover. In the house, there was another person who was courting Nyanuer. Bok did not like Choul and she wanted to leave. Nyanuer tried to persuade her but could not. Finally, Bok left Nyanuer with Choul and reported what happened to Nyanuer’s husband. The Sefer Shum had to deal with the case with allegations and very thin evidence which a modern court could have easily dismissed. As usual with other adultery case, this one also attracted the attention of many people and the turnout was more than 50 people. The session started by hearing a lengthy report by the husband of Nyanuer. Then Nyanuer was given the chance to account for the matter. She readily confirmed introducing Bok to Choul but firmly denied the allegation that she committed adultery with Choul. The Sefer Shum leaders then capitalised on what they considered an awkward situation – why Nyanuer did not leave together with Bok. When asked to clarify the situation, Choul on his part denied any affair with Nyanuer. At one point he even denied being with her in the same room. The fact that Nyanuer, a married woman, was left behind with an unmarried man in the same room, and the awkward situation of Choul (with a trembling voice) further alerted the judges and the public that the accused were lying. The more they pressed the weaker the defenders became. Ultimately Nyanuer confessed. Choul still pleaded innocent until he was taken by the Sefer Shum police who threatened to beat him unless he confessed. Finally, Choul, too, pleaded guilty. The judges then went on asking whether there is a blood relationship between Choul and Nyanuer. It was found out that there is indeed a blood relation between the two and this made Choul ‘doubly’ in the wrong. He not only committed adultery but practiced incest. According to Nuer culture if a man commits adultery with a woman whom he is related with, this would cause affliction not only to him but endangers his kinsmen. This is called rual. Rual could only be cleansed after a sacrifice is made.142 The court session was concluded after Choul was ordered to pay the standard compensation payment and to make the cleansing ritual.

49The degree of participation by the parties in dispute and the public is remarkable. The judges worked with a combination of common sense, competence in customary law, and experience in similar cases (precedence), the norms as a common frame of reference for the accuser and the accused, and rhetoric. The accused were given the benefit of doubt until they reached a point where their position became obviously precarious. For the general public this was not an ordinary inter-personal dispute but a forum where Nuer values were reconfirmed and the social order is maintained. The involvement of the Sefer Shum police and the threat to call the formal police gave the institution of the Sefer Shum a new coercive (executive) power which the traditional dispute resolution institutions lack.

  • 143 The effectiveness of the Sefer Shum is so strong that even senior government officials prefer to se (...)

50The Sefer Shum appears to be an ideal mix between customary and state law for the Nuer. From the discussions I had with various categories of people after the session confirmed this. Nothing illustrates this better than the fact that in the Sefer Shum court the Nuer pay a lot (up to 250 birr) to get their disputes settled whereas they do not pay in the government court. Nevertheless, given its holistic approach, it is preferred to a government court. Besides, the Sefer Shum is preferred for its efficiency. When asked why he prefers a Sefer Shum court to a government court (kume) a Nuer said to me ‘there is no qetero [Amharic word meaning, appointment] in the Sefer Shum whereas it takes so long before a dispute is solved by the kume’. Moreover, the Sefer Shum, largely operating within the cultural context, is perceived to be less corrupt, truth-seeking and socially concerned about the implication of a particular and inter-personal dispute. Many of the attendants noted that this case would have ended short of addressing the various social issues which it has raised (such as rual) in the government court; if at all it is accepted as a case in the first place given the ‘thinness’ of the evidence against the accused.143

Conformity with the Legal Norms

51In Nuer customary law, the legal unit goes beyond the individual. For a homicidal case, for instance, the kinsmen of a slain man try to kill the gwan thunga, the slayer, but they have a right to kill any of his close agnates, gaat gwanlen. This is because of the overarching principle of collective responsibility as a basis for social organisation, which at its most social end, serves the role of a deterrent to individuals not to commit a crime.

52The customary law also differs in its scope from the modern law. The largest recognised political unit within which the normative order is valid is the tribe. Between members of different tribes there is no question of redress, i.e. the law operates weakly outside a very limited radius (intra-tribal) and nowhere very effectively (lack of social control). A Nuer, for instance, has no hesitation in stealing cows from persons belonging to neighbouring tribes and will even go with friends to another tribe in order to steal them. Intra-tribal theft, on the other hand, is settling a debt by other means. Likewise, adultery with the wife of a man of another tribe is a matter of no importance. The general rule of paying an indemnity of five cows and an ox is unlikely to be expected.

Overall Advantages and Disadvantages

53The concept of compensation defined and understood in modern legal terms and in Nuer society differs substantially. In a government court, for instance, a homicide incurs an imprisonment. For a Nuer this is unacceptable. A Nuer would grudgingly ask ‘what good does imprisonment make for the victim and his family? After all he is well fed in the prison!’ A legitimate compensation for a Nuer is the one which involves cattle. The Nuer are basically a pastoralist society and the bovine ideology is one of the main structuring principle in social organisation and the means through which social relationships are created, maintained and restored. The death of a person introduces elements of disorder into the social system. It threatens the continuity of a lineage, thus through blood wealth a ghost-marriage is arranged to ensure continuity. A Nuer also thinks in terms of opportunity cost – had the person been alive, he would have had children some of whom would bring bride wealth (the daughters) and others defend his community (the sons). Both concerns are redressed in the pattern of distribution of the compensation. As long as the Nuer life-world remains bovine, the idea of compensation in the form of cattle will continue to be relevant, and with this the attraction to the customary law will persist.

Limitations of the CDR

The functionality of violence in the reproduction of the political system

54The segmentary opposition is a type of violence which is functional to the maintenance of social order. The primary sociological approach to violence paradoxically reveals a fundamental ordering principle in an activity normally associated with anarchy and destruction. The basic thesis, however, is a familiar one: the threat of violence creates a source of unity and direction within a society by emphasizing the danger imposed by an external enemy. In stateless societies this consolidating process is especially important because of the fluid nature of group and the absence of formal institutions to limit personal violence.

55Evans-Pritchard’s analysis of social order among the Nuer, a typical tribal society, identifies a particularly intricate system of controlling violence and reinforcing group identities in the form of segmentary opposition. Segmentary opposition involves the ordering of cooperation and conflict according to the boundaries of lineage segments, or more accurately, of territories associated with them. Concerted action within the group is activated by a dispute between one of its members and someone in an opposing unit. The dynamic of conflict within the segmentary system has two important implications: 1) The imposition of a common opponent or enemy group on each level crystallizes the identification of a lineage/territorial group. 2) The need for concerted action against an opposed group on one level leads to the resolution of hostilities between groups on a lower level.

The basis of law is force (self-help)

56As Evans-Prichard noted, the club and spear are the sanctions of rights. What chiefly makes people pay compensation is fear that the injured man and his kin may take to violence. The stronger one’s group is the higher the tendency to resort to violence as a mechanism of redress. This kind of violence is considered positive because it emanates from cuong. The Nuer have a very strong notion of right – the end (serving justice) justifies the means (the use of force). That is why in actual terms a feud never ends. Although compensation brings cessation of hostility in the short term there is always a danger of renewed feud. For years after cattle have been paid close agnates of the slayer avoid close agnates of the dead man, especially at dances, for in the excitement they engender the mere knocking against a man whose kinsman has been slain may cause a fight to break out, because the offence is never forgiven and the score must finally be paid with a life. As Evans-Pritchard described it, when the dead man is married the bride is rubbed with ashes by her dead husband’s kinsmen and God is invoked by them that she may bear a male child who will avenge his father. Such a child is gat ter, a child of feud. At the sacrifices the ghost is told that his kinsmen have accepted cattle and will marry him a wife with them, but he is assured that one day they will avenge him properly with the spear. Ultimately, the enmity between the jithunge and the jiran continues and they remain jiter, people who are at feud, even if there is no overt hostility.

The customary law also involves elements of asymmetry

57What happens when a man kills another depends on the relationship between the persons concerned and on their structural positions? There are different payments for a ‘true’ Nuer (rul), non-Nuer living in Nuer land who have not yet fully become Nuer (jang) and members of the dominant lineage (the dil). The ability to prosecute a feud and thereby to obtain a redress by a life or by payment of cattle depends to some extent on the strength of a man’s lineage and on his kin relationships.

Scarcity of legal experts (mediators) such as the Kuaar Muon’s

58As the scarcity becomes more evident in the context of population growth and amidst social change, the problem of law enforcement has become more and more problematic. In most part of rural Nuerland, particularly among the Jikany, we find a situation in which traditional dispute settlement mechanisms have been weakened without being replaced by modern and governmental institutions of law and order. That partly explains the escalation of inter-group conflict and its protractive nature among contemporary Nuer.

Conclusion and recommendations

59In Nuer society, like in other traditional African societies, customary law is embedded in cultural practices. The main concern is not so much judgement as restoring social relationships that are damaged by a dispute. Thus, the emphasis is on mediation and arbitration. And the art of mediation entails persuasive skills more than an institutionalised system of authority (law enforcement agencies). The emphasis on mediation seems to have introduced a strong bias towards a non-institutionalised, ad hoc system of leadership that presides over the legal process. None of the personalities and institutions involved in dispute settlement wields executive power. Although the incumbents of the offices pertinent to the maintenance of law and order get their position hereditarily, their legitimacy ultimately lies how persuasive they are in bringing the disputes to a consensus, and through that their degree of success in fixing strained social relationships.

60Contrary to the representation of customary law as highly oppressive to certain categories of people, Nuer law gives space for the parties to a dispute to voice and offers a gradation of appeals and counter appeals. True, it is limited in its scope and involves elements of asymmetry. But nevertheless, it gives a wider space for consensus. The main attraction to the traditional dispute settlement is their social embeddness; the traditional concept of compensation (which always involves cattle) and its efficacy. Nevertheless, the scarcity of legal experts and social change has made the customary law inadequate. Against the backdrop of internal strains and external pressure (encroachment of modern law as a result of the integration of the Nuer into the wider Ethiopian society), the emergence of the Sefer Shum is an apt compromise. While it takes the workload off the government courts, it provides social control and orients the people amidst social change.

61The following should be done in order to make the traditional CDR means of the Nuer society serve the society better.

  1. The research has indicated that currently some Nuer societies have a shortage of the technical experts who are versed in the traditions of the Nuer to settle disputes. This resulted in the weakening of the traditional system. This has happened without the formal justice system effectively replacing the traditional system. Therefore, measure should be taken to strengthen the traditional system. We believe also that this can present a good opportunity to add some modern packages into the traditional norms.

  2. It is almost characteristic of all Nuer traditional systems that negotiation and mediation are the tools of dispute settlement employed. Therefore, creating a mechanism to strengthen the substantive contents of the tools can help the quality of justice without affecting the methods.

  3. The already existing linkages between the formal and traditional systems (in case of Bok and the Sefer Shum institutions) should be strengthened. However, the formal justice system must constantly inject the norms of the formal system in a systematic way. For example, training the members of the institution on how to obtain evidence, etc, should be paid attention to.

  4. It seems also to be possible to think of paying remuneration to judges of the traditional systems in the Nuer society. There number is limited by rule as they come to office either through election or through spiritual claim. Therefore, along with the decision of integration, payment of remuneration can easily be done.

Notes

138 The concept of cuong is also applicable to the cattle – human relationship. As Evans-Pritchard noted, an ox slain simply from desire for meat may cien, take ghastly vengeance on its slayers, for it is believed to have cuong in the matter. Cattle are killed only for sacrifice (1956:265).

139 The election is made through the following procedure. The election date is announced and all people are informed to meet at a specific place and time. Only adults are allowed to come for voting and few women (nearly more than 30 years of age). The competitors are placed in front of all the people. The people then line up behind the person of their choice. Finally a head count is made to decide who has more supporters. The one with highest number of people will be chosen as kaar. The candidate with the second highest number of supporters will be chosen as naye-kaarka, provided that the majority of the people like him including the people who voted for the kaar. If many people do not agree on him, new voting is done among the first three candidates. The winner of this round of competition will be the assistant of kaar.

140 These are Doup Bichiok (a Bok for all the Cieng Reng, Cieng Nyajani, part of the Cieng Cany, and Thiang Cieng Kaang clans), and Ruot Guandong (part of the Cieng Cany, the Cieng Wau and the Thiang Cieng Taar clans).

141 The Nuer practice a vicarious marriage popularly known in the literature as ghost marriage. If a man dies without legal male heirs, a kinsman of his ought to take a wife to his name. Ghost marriage is also arranged for a homicidal case. In this instance, the vicarious husband (genitor) acting as though he were the true husband in the marriage ceremonies and afterwards in cohabitation and domestic life. The legal husband (pater) is the ghost in whose name the bride wealth was paid, thus the legitimate owner of the children out of the marriage. The woman is ciekjooka, the wife of a ghost, and her children are gaatjooka, children of a ghost (Evans-Pritchard 1940).

142 In order to severe an incestuous relationship a live ox is split down the middle by the Kuaar moun as the parties to the incest hold opposite legs.

143 The effectiveness of the Sefer Shum is so strong that even senior government officials prefer to settle their disputes there instead of the government court. Recently, the Nuer Vice President brought a dispute that arises from a divorce case.

Table des illustrations

Titre Diagram 1. The Jikany Nuer divisions
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