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Grass-roots Justice in Ethiopia

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Alula Pankhurst
, 
Getachew Assefa

Regional Case Studies

6. Customary Dispute Resolution Institutions in Oromia Region: The Case of Jaarsa Biyyaa

Areba Abdella et Berhanu Amenew

Texte intégral

Profile of the Region

1The Regional State of Oromia lies in the central part of the Federal Democratic Republic of Ethiopia, with larger projection towards the south and west. It shares borders with the Sudan and Kenya in the West and Southwest and with all regions of Ethiopia except Tigray. With an area of 353,690 km2 (about 32% of the total area of the country), it is the largest region of the country. Addis Abeba (Finfine) is the political capital of the State of Oromia.

2According to the 1994 Census projections, in the year 1997, Oromia would have about 20 million people, of whom 17,730,000 were rural (49.8% females) and 2,300,000 were urban (52% females), making it the most populous State.

Institutions of Customary Dispute Settlement in Oromia Region: An Overview

  • 168 Interview with the Oromia State police officer

3In the past disputes among the clans, lineages and sub-lineages within the Oromo peoples were primarily caused by the competition for grazing land or water (Abbas 1982). However, sources of conflict became more diverse, including competition over pastureland, ownership question of water points like elaa (pond); confiscation of property; looting and/or raiding of livestock; and boundary claims over plots of land.168 As a result, individual, inter-clan, or intra-clan strife may culminate in large-scale tribal feuds embracing the whole community. Sometimes wars are fought to solve temporary contradictions resulting in looting of cattle or other wealth by the group that won the war. The defeated group would prepare itself to avenge and take back its lost property. Often, however, the disputes were solved by peaceful means (Abbas 1982).

The Jaarsa Biyyaa institution

4The most famous institution of governance and dispute settlement of the Oromo people is the Gadaa. This is an institution in which wise individuals with deep knowledge of tribal and customary laws and capable of good leadership are democratically elected to be in office for eight years. Within the Gadaa system there was a sub-structure led by the Abba seeraa (Father of law). This sub-structure, handled any sort of disputes among individuals, groups, clans, and sub-clans. In areas where the Gadaa system is still in full operation any sort of disputes is presented to this organ and are dealt with accordingly (Asmarom 1973).

5The Gadaa system currently is not functional throughout Oromia. In areas where there is no Gadaa system cases of conflicts are dealt with and resolved by the institution called Jaarsa Biyyaa (elders of the community). Each and every balbala (sub-clan) Ganda (village), and Gosa (clan), have their own and well-known Jaarsa Biyyaas who are responsible to settle conflicts voluntarily. Members of the Jaarsa biyyaa do not come to their positions through election, as it is the case with the functionaries of the Gadaa. They rather qualify based on their personal qualities, and through characters such as truthfulness, generosity, deep knowledge of tribal and customary laws which the society considers as central to their values.

6The institution of Jaarsa Biyyaa is used by the community to solve most of the collective or individual disputes in the civil, criminal and commercial fields. This institution handles both minor and serious issues. Regarding the procedures for referral the institution itself considers cases voluntarily without any formal invitation from the disputants and mediate the disagreement to restore peace and reconciliation.

7A detailed account of the institution will be provided later in this Chapter.

The Qalluu Institution

8Qalluus are considered to be the spiritual leaders of Oromo religion. The Oromo believe that Waqa (God) speaks to them thorough qalluu. As Muslims believe in messages of the prophet Muhammad or as Christians believe in Jesus Christ’s word the Oromo believe and respect the orders and the words of Qalluu. The Qalluu institution though basically involved in ritual purposes also serves as dispute resolving institution through the annexed ayyanaa (spirit) court. It is particularly concerned with matters involving religious elements (Meseret, 1995)

9The process of settlement of disputes by the Qalluu is normally set in motion by the plaintiff). The Qalluu dully investigates the issue and passes a decision according to the customary rules. Though this institution has become weaker in most parts of the region, it is still functioning in some places particularly among the Shewa Oromo.

The Ateetee Institution

10Ateetee may be considered a religious practice including songs, rituals and dances used as a means to express reverences of the supreme God so that the worshippers would see that peace, prosperity, health, and social ethics prevail, and that evil deeds are forgiven, maledictions are heard, and so forth. However, some have sought to narrow the concept of the Ateetee institution and restrict it to women’s worship. For example, Tilahun Gamta defined it as a ritual worshiped by Oromo women. According to some informants Ateetee is generally observed for two major purposes. First, it is observed to seek solutions for natural problems. Second to express resentment of social or moral sufferings in the community. An important typical event that calls for Ateetee performance is a violent natural disaster. When a period of drought, frost, war, epidemic diseases is prolonged the elders in the community initiate their women to get up for a group expression and surrender to their God and express their longing for the welfare of the community. By that they hope the normal happy way of life will be restored.

11The women go out of their village taking with them siinqee (a ritual stick), ciicoo (utensils filled with milk), gaadii (a cord with which they hobble cows during milking) and then gather around large trees such as qiltu (Ficus) or by river banks or on the top of prominent hills. When they leave their village the women also wear a garment called bunko, which is worn as a ceremonial marker.

12The second purpose of observing Ateetee is to express restatements of social or moral suffering. This occurs as a result of an infringement upon the socially recognized rights by men against women. In Oromo rule there are special restrictions related to the rights of women, which should be observed carefully. Through this mechanism women punish men who offended the rights of any of them and ensure peace and order between males and females.

Case Study: The Jaarsa Biyyaa

13The Jaarsa Biyyaa institution is the commonest traditional institution of dispute settlement, with different levels of organization taking into account family, village, sub-clan and clan organizations.

Jurisdiction of Jaarsa Biyyaa tribunals

14The power of the Jaarsa Biyyaa tribunal to entertain a case and decide upon it in accordance with the customary rules was said to have been developed in the Gadaa system or later. Jurisdiction, in this case can be considered in two ways. The first one is territorial jurisdiction. In Oromo society localities are classified in terms of kinship relationships. Following incremental order: balbalaa, Gandaa, Gosa, Sadan (the three), shanan, (the five) and Seglan’ (the nine). Finally, the Borena and Borentuma are the two major moieties of the Oromo.

15Based on these levels of kinship, there are tribunals at the level of the above groupings consisting of three, five or nine informal judges in each group having principally local jurisdiction over cases arising in relation to their respective levels. When it comes to the jurisdiction of the Jaarsa Biyyaa, any kind of dispute whether it is criminal, civil or commercial in nature, falls within its competence.

16One can generally say that the different levels of the Jaarsa Biyyaa institution, from lower to higher, are related to each other hierarchically, and a case would move in appeal from the lower to the higher level, until it is resolved. This means that first and foremost it has to be entertained by the local elders before it passes on to clan leaders or elders.

17The first level of local jurisdiction of the Jaarsa Biyyaa is the lineage grouping that has a territorial nature as well. Accordingly, family issues, mainly marriage-related disputes are entertained first by the nearest family or sub-clan tribunals. As to the amount of money there is no limitation. What matters is the locality (territory) and the disputant person’s belonging to that locality. In terms of the jurisdiction, the institution entertains both individual dispute cases and collective disputes that arise between different clans within the Oromo people. In practice, however, the Jaarsa Biyyaa mainly serves to settle individual disputes.

Substantive rules applied by the Jaarsa Biyyaa Institution

18It is widely held that the origins of most of the rules traditionally in use by this institution are those developed by the Gadaa. The Oromo have an unwritten but well organized body of laws called seera Oromo (Oromo law). The Seera comprise of Murtii (literally judgment). Murtii was a foundation on which all socio-political conditions of Oromo were based. It deals with all aspects of life. The institution of Jaarsa Biyyaa uses the Murtii (laws) while they handle disputes and pass decisions. The first Murtii was said to have been drawn up during the heyday of the Gadaa system, by unknown Oromo elders to be used by Oromo clans as a whole. However, as the Oromo people split up and divided over the years, each tribe developed and improved the Murtii to be applied to its daily life and activities (Abbas 1982). This diversified body of rules covers pretty much all areas of dispute: civil, criminal, commercial as well as collective disputes.

The Case Processing before the Jaarsa Biyyaa

19Cases are referred to the Jaarsa Biyyaa tribunals in two ways. The first way is in which the aggrieved party or victim or a relative or his clan may present his petition orally to the institution. In the second situation, members of the Jaarsa Biyyaa themselves approach the parties to disclose the cause of their disagreement. The latter happens for example when the members of Jaarsa Biyyaa tribunals understand the case from the conduct of the disputants or obtain some indirect information on the existence of a dispute or disagreement between individuals. It is part of the social life that even when the parties are reluctant to present their cases, one of the duties of elders is to interfere to entertain the case to ensure peace. When disputes or enmity simmers for a long period of time among individuals or sub-groups in the society, people say: Jaarsa Biyyaa hinjiruu? (Literally ‘Is there no elder in that community?’). The above two ways of referral apply to criminal, civil and commercial cases alike. But, it seems that when the dispute is of nature that is capable of destabilizing the community, the Jaarsa Biyyaa would become involved faster and take a more proactive role.

20Having received the case in any one of the above referral systems, the elders fix the date and place of meeting. It is usually carried out at central place called Aradda mostly under Oda tree (a Sycamore under which the Oromo usually call public gatherings) during the week.

21Regarding the actual process of the dispute settlement before the Jaarsa Biyyaa, it starts by the members electing of one among them (their number normally varies from three to five for minor cases and the number may increase more than this for serious cases) as Abbaa Murtii (Judge) and two others as investigators (lamii qoraa).

22Before taking up this responsibility these elders are required to take a traditional oath called kakuu. They usually take an oath in front of a public gathering. The kakuu is believed to make the justice process objective. This is because, after an oath, every member of Jaarsa Biyyaa is expected to be free from any kind of corruption and bribery and is believed to be fair and faithful to both parties regardless of their social status and clan background.

23The elders swear to waqa lafaaf sami (God of earth and sky) not to make any injustice or show partiality. The elders swear in the following manner reciting very harsh statements against themselves.

Himata bin dabsu

I never take the side of the defendant.

Himatamaa bin dabsu

I never take the side of the plaintiff

Dhugaa murteessuf jidduu tee ta’e

I have come and sat amidst you to judge the truth

Dhugaa dubbadhaa bindabsu

I would speak the truth and not take sides.

yoo dhugaa dabse

If I never judge the truth.

Uumaan haa beeytu

Let uumaa (nature) witness against us.

Halangeen haa beeytu

Let halangee (whip) witness against us.

Dharti mana kiyyatti haa galtu

Let the evil besiege our home.

Dharti sa’a kiyyatti haa galtu

Let the evil besiege our cattle (herds)

Dharti ilmaan kiyyatti haa galtu

Let the evil besiege our children.

Dharti malkaa kiyyaatti haa galtu

Let the evil besiege our river.

Uumaa fi Uumeen na haa lagattu

Let the creator and the created deny my existence

24After the swearing, the elders are considered to have been fully transformed and are believed to speak and do nothing but the truth making them capable of handling the issue of reconciliation and bringing peace among the disputant parties.

25The three men, i.e. Abbaa Murtii and the two lamii qoraas have special positions in the Jaarsa Biyyaa. The Lamii qoras sit on opposite sides looking at each other. They all are required to handle a halange (a whip of considerable length), which is considered as a sign of truth. When they want to raise an issue of special concern, one of the lamii qoras, mostly the elder one, says koottu (come on or look here) and the second one responds dbufe (I have come). This style of talking is called kottu / – / dhufee. Kottu / – / dhufee does not involve any action of body movement. They say verbally Kottu/ - /dhufe/e without any physical movement from where they sit. While the hearing process is in progress, no issue is raised without saying Kottu-dhufe.

26After the qoraa opened the discussion saying kottu - dbufe the appeal is heard from both sides, that is from the accuser and the accused respectively. Here both of them have a very wide ‘democratic’ right to argue over their cases in a way that they thought advantageous to their cases. They are seriously questioned and examined by the qoraas and other participants of the meeting. The defendants may completely deny the crime of which s/he was accused. In fact, the defendant is expected to confess. During the argument, all the participants of the meeting have full rights to suggest what they felt as a solution for the case under treatment.

27Participants express their feeling and grievance through a mechanism called gumgumaa (verbally expressing one’s opinion). Whenever someone from among the participants wants to give his opinion, he would ask the Abbaa Murtii or the lamii qoraas saying nagumgumachisi (allow me to speak). He speaks whether his idea is valid or invalid. It is up to the elders to decide whether to consider or not what he raised. If the defendant has insisted on denial after a long investigation by the lamii qoraas and other participants of the meeting, both parties are ordered by the Abbaa Murtii to stay alone and separately for a short time at away from the site of discussion. The judges and the participants discuss, investigate and argue about all what the plaintiff and the defendant have said. If the verdict was not naturally in order on that date, aspontaneous judgment would not be passed. The problem will be allowed to rest in accordance with the principle of bultii (postponing the issue to another day of meeting).

28The Jaarsa Biyyaa elders would come together on the date of adjournment and utilize the mechanism called Cokoo (separating the disputant parties). In this case the disputant parties are made to stay at different places to investigate the case in detail. Each group is dealt with separately in turn. Here the elders order both parties to stay away from the site of discussion to evaluate the degree of credibility of the statements made by both parties. The elders report what they heard from the defendant to plaintiff and vice-versa separately.

29If the defendant still continues to refuse to confess, the elders call the plaintiff to present his evidence. The witnesses are also required to take an oath before they give their witness, in the presence of the criminal and his relatives. After the available evidences confirm the crime, he would be proved to be the criminal. Then the elders pass a decision that the convicted should pay compensation or return all what he owes the plaintiff. The amount and kind of compensation or redress depends on the nature of the wrong done. If for example, the crime was an insult or verbal attack the criminal may just have, to beg pardon verbally. Sometimes the accused person who is proved to be a criminal may be required to compensate the victim either financially by giving cash money or slaughtering a sheep, goat or an ox. In case of damage or injury to the body or loss of life, the procedures as well as the penalties to be determined follow a procedure of Gumaa (blood compensation).

30In cases where the truth or fact-finding process takes long and seems impossible due to lack of Raga (evidence) or the unwillingness of the defendant, the latter has to take Kakuu together with notable men including his father, mother, elder brother, wife (if any). These persons who would take an oath with the suspected criminal are called Fitensa (close relative). But if one of these persons is absent or refuses to submit to the Kakku, the Kakku taken by the defendant would be invalid and the defendant will be easily proved to be the criminal. No one will be willing to take an oath unless he knows for sure that the suspected person did not commit the crime. If they are confident that the suspected person has not committed the said crime, they would recite the following statements after the eldest person among the Jaarsa Biyyaa.

Halangee tana dhugaan isaa na bin jirtu
I swear by name of this
halangee (whip)

Akka halangee tanatti Rabbi na haa luqqisu.
Let God live me naked like this whip

Ilma halangee (hayyicha Rabbi) na haa dhabsisu
Let God deny me the son of
halangee (whip);

31If the Kakku is undertaken by all who are required to undergo the process – without any one missing or refusing – it gives assurance that the suspected person did not commit the crime. In this case, the elders bless both parties to conclude the reconciliation.

The Gumaa Case proceedings. Meaning

32Gumaa can be defined as a mechanism to settle disputes among different Oromo clans as well as those arising within clans and families who entered into conflicts against one another particularly when life is lost. It is a mechanism which restores peace and stability based on justice and truth. Gumaa is a justice based social institution to compensate the victim through punishing the criminal.

Classification of Gumaa

33The Gumaa Proceedings in homicide cases are categorized into three based on the cause of the act and other circumstances surrounding the offence. The following are the types of the Gumma:

  1. Gumaa Adii (Gumaa of intentional homicide)

  2. Gumaa Barruu (Gumaa of negligent homicide)

  3. Gumaa Gurratti (Gumaa of homicide other than the above two cases).

Gumaa Adii

34This happens when the murder is committed intentionally by one of the rival groups against another. In this case life is lost as a result of already existing conflicts. In some localities of Oromia, such kind of killing is called ajjechaa gadoo (murder of revenge). The murderer kills a person who was once his enemy to be known as a winner. In this kind of Gumaa, the murderer is required to pay 100 head of cattle or its equivalent money provided that the murdered is male. If the murdered is female the murderer is obliged to pay only 50 heads or equivalent amount of money. This type of Gumaa proceeding is different from the rest essentially because it is processed quickly as the stakes here are very high.

Gumaa Barruu

35This is a Gumaa applicable to cases of homicide which were unintended but somehow contributed to by the negligence of the perpetrator. For example, if a gun, knife, sword, spear, etc, thrown for hunting misses its target and kills a person, it is referred to as Gumaa barruu. In this case, there is no sense of enemity between the killer and the killed. Tthe killed person and the killer may not even know each other. However, the killer is considered as a culprit because of his/her using deadly weapons without sufficient care. The person who killed another person in self-defence is also considered as a killer who committed Gumaa Barruu. The Gumaa (blood money) paid for such cases is not as high as the Gumaa Adii. Tolerance and patience is highly expected form the victim’s family or clan.

Gumaa Guuratii

36This kind of Gumaa happens when a person kills another friendly person without using any sort of deadly weapons. In this category homicide is committed by unforeseen situations but the offender acted in normal circumstances or undertakes practices accepted asusual in the society. For instance, if murder is committed in one of the public traditional sports like gombisaa (horse riding), adamo (traditional hunting), wal’ansoo (wrestling), the case is treated under Gumaa gurraatti. In the case of Gumaa gurrattii, the victimized family will not receive any kind of blood money as compensation except one cow that would be slaughtered during the final ritual settlement ceremony to declare the killer innocent.

37Regarding the setting in motion of a Gumaa process, the Jaarsa Biyyaa of the Gosa in question and the neighboring Gosa are the most responsible. The elders who usually handle cases of Gumaa are known as Rayya Anbba (neutral groups). Rayya Anbaa is a neutral group that is formed temporarily independent of both side (the criminal and the victim) to process the dispute settlement activity.

38The first role of Rayyaa Anbaa is to carry out the burying of the deceased. In Oromo society when somebody is killed, he would not be burried silently as a person who died a natural death. His/her death should be announced with the fact that he was killed by someone. No burial ceremony is to be carried out only by the kinsmen and relatives of the deceased in the absence of the Abbaa Bokuu (Father of scepter) (if any) or one preeminent elder form the neutral clans. If the victim was buried without the knowledge of the Abba Bokkuu and/or other elders, there would be no legal bases to claim Gumaa.

39In Oromo tradition when a person dies a natural death, one of the closest relatives is required to dig the site of burial primary as a way of sight-showing or choosing. But, in the case of homicide, the Abbaa Bokkuu, or the elder to the Gosa or the chief elder of the neighboring Gosa make the first mark and then others dig the grave. This designates the beginning of the shouldering of responsibility by the elders. Upon the completion of the funeral ceremony, the Abbaa Bokkuu or one of the chief elders of the neighboring clan call for public gathering at the point of the graveyard to ask several questions one after another. The first question that should be clearly understood is whether the murderer is an Oromo or not. This is because a non-Oromo will not be required or obliged to pay blood money. But, an Oromo who killed another Oromo is considered a criminal and required to pay Gumaa.

40The second question that has to be asked by elders and answered by people would be whether both the murderer and the victim are from the same clan or from different clans. If the murderer and the victim are from the same clan the weight of the crime could be less than the man who killed another person outside his/her clan

41The third question that has to be clarified would be whether the killer and the killed are kinsmen. This is because the degree of crime of a man who has killed his relative is less than a man who has killed a non-related person.

42The fourth point on which the elders need clarification is whether the murderer and the victim are people from the same family. Because, if the murderer and the victim are both from one family no blood compensation is to be paid. In this case the ritual ceremony of cleaning Gumaa is performed.

43Finally, the elders would investigate the manner in which the killing was carried out. In other words, they would identify whether the Gumaa was adii, barruu or gurratti. If the murder committed is other than intentional or negligent, it is called Danuu (the act of the will of God) and would be accepted by the victims as a bad fate.

44Upon the completion of this process of asking the necessary questions, the Abbaa Bokkuu or chief elders of the neighboring clan pass the following order to the relatives and families of the victim. The family or the clan of the victim are required to abide by orders given to them by the elders, including the following:

maqaa waqqaatin isin qabadhe

I call on you by the name of the sky God.

Maqaa lafaatin isin qabadhe

I call on you by the name of earth.

Gadoof duuluu bin qabdan

You should not wage war for revenge.

Nlaam anbaa reebuu bin qabdan

You should not intimidate them

Nama ajjeesuu bin qabdan

You should not kill any one of them

Ana Raayyaa anbaa Argatte

You have got me (neutral body)

Gumaa natu siif baasa na eegdbu.

We would process the Gumaa (blood money)

45This process cools down the aggrieved party and make them submit to the community solutions. After this pacifying announcement, all the attendants of the funeral ceremony go to the homestead of the deceased family. Here, the relatives and clan of the victim legally appeal to the elders, usually to the rayya anbaa (a eutral group of elders). They preset their case emphasizing that they are ready for self-help action if the case is not dealt with very soon by the elders.

46A person who intentionally kills another person would be required by the customary law to surrender himself to the home of Abba Bokkuu or elder of the clan or to the chief elder of another neighboring clan. Once the murderer has put himself under detention theoretically he has to be imprisoned in a goda (cave) or mana ona (abandoned old house). He is given or allowed to eat doobbi (a thorny leaf), or daarafi daakuu (dust and flour). He would be given this ‘food’ in a broken pot. He is not allowed to talk to anybody except to wata until the final discussion would begin.

47The family and the close relatives of the murderer are also required to evacuate their normal residence area and move to the neighboring clan for protection. The question of evacuation may not arise if the two clans are located at distant places. Evacuation is also not needed if the members of the slayer clan are numerous and strong to defend themselves effectively from the anticipated attack of the ‘enemy’. However, there seems to be a cultural justification, regardless of the strength of the clan, that the clan and relatives of the murderer are expected to evacuate the area of their residence to calm down the tension.

48Once a slayer gives himself up, then the Gumaa proceedings will be set in motion. The Gumaa proceedings would also be initiated by the accusation lodged by the relatives or the clan of the deceased. Following the accusation by the victim’s family or clan, it is usually required that the family or clan of the slayer would send a delegation composed of members of a third (neutral) clan to show their readiness for peace. This would be the case even when the alleged slayer denies the commission of the act.

49In the homicide case, members of the Jaarsa Biyyaa have to be constituted from a neutral clan. A Jaarsa Biyyaa council consisting of five elderly men is selected to undertake the Gumaa proceedings. These people are called Shanacha (literally ‘the five’). It is possible for both the clan of victim and slayer to oppose any of the elders on the Jaarsa Biyyaa Council should they have any doubts that the member in question might not be fair and impartial in their cases.

50Once the Jaarsa Biyyaa Council is duly constituted, the place and time of meeting and deliberation would be fixed by the Council in consultation with the parties in dispute. Usually, the place of meeting for hearing would be close to an area where the deceased had his place of abode. All the expenses for the elders, mainly food and drink, would be covered by the victim’s family.

51The Abbaa Harkaa (the guilty individual) who committed the homicide is not allowed to come to the place of the tribunal. He is kept under the custody of the waata. But, the representatives from his clan and some relatives of the dead person are designated to attend the meeting and argue over each case.

52The actual proceedings of the hearing of the Gumaa share similarities with other dispute settlement proceedings before Jaarsa Biyyaa institutions. If the accused person confesses the commission of the crime or if the Abba Harka (the culprit) has already surrendered himself, the process of arbitration would not be complicated. However, if the accused, his family or clan is persistant in refusal, they would be questioned and examined by the qoraas and other elders. Traditionally, it is more acceptable to confess rather than to take oath.

53When the defendant fails to come to peaceful terms through confession the defendant, members of his family and clan would be ordered to perform a Kakuu. All the requirements of the Kakuu explained earlier also apply to the one administered in relation to the Gumaa proceedings. If all the persons on the side of the Abba Harka take an oath, the criminal will be released and declared to be free. If, however, they choose to confess instead of undergoing the oath, the ritual ceremony of Gumaa ficuuu (cleaning Gumaa) is performed. The ritual performance is usually undertaken on the side of a river in the area of the deceased person. The wataa, and two women who respectively are the members of the victim’s family or clan and the defendant’s clan by birth are active in the performance of this ritual. The wataa throws the criminal into the river and picks him out alive. His hair would be shaved with Chabbii (obsidian). The two women sprinkle water in front of the plaintiff and defendant as a sign of peace.

54Then all the attendants of the ceremony move to the deceased family’s home. The two women continue sprinkling the water left and right all the way from the river to the home. On their arrival a female sheep is slaughtered and its small intestine stretched apart in a circular manner. Two disputants are made to pass through this intestine to signify the passage from hostility to peace.

55The clan of the murderer also slaughters an old cow. If the plaintiff and the murderer are from the same family, they would be ordered to shake hands through the tiruu (liver) which symbolises that they are not enemies but relatives who shared common flesh and blood. Then both parties sit down on: the floor and sob for the deceased to express their common sorrow. An activity known as harkaan gachiisaa (having food and drink from the same dish) would also be performed. Harkaan gachiisaa requires that the plaintiff and the defendant eat using a single spoon turn by turn and also drink milk or daadhi (honey mead) from the same container.

56Finally, the eldest man in the reconciliation team would declare the following to be materialized by both parties.

Ani Gumaa sif Baase

I have accomplished your Gumaa.

Ati gadoo hin qabdu

there would be no revenge between you

Ati gaddaadoo bin qasbdu

There would be no hostility

Karaa diimaa irraatti walhaquu bin qabdu

you should not attack one another on a read road

Karra gurracha irrattiwal tuquu hin qabdu

You should not attack one another on a black road.

Gumaaa siif baasee

I have accomplished your Gumaa

Si jidduu fixe

the Gumaa is concluded.

Dhagayi

Hear it

Sikko oliin galigadiin gali

Oh sikko! Take the news up and down the country,

Mando oliin gali gadiin gali

Oh mando! Take the news up and down the country

Maadha araarsee Gumaa siif baase

I have reconciled among mothers and paid the Gumaa.

Abbaa Araarsee Gumaa siif baase

I have reconciled among fathers and paid the Gumaa.

Obbolessa araarsee Gumaa siif basse

I have reconciled among brothers and paid the guma

Eessuma Araarsee Gumaa siif basse

I have reconciled among uncles (mothers brothers) and paid the Gumaa.

Soddaa soddatii areaarsee Gumaa siif baase

I have reconciled among fathers-in law and mothers-in-law and paid the Gumaa.

Gosa araarsee Gumaa siif baasee

I have reconciled among clans and paid the Gumaa.

Meedhicha muree si judduu dabre.

I have cut the medhicha (fatty strip of intestine) and thrown it away.

Ati warra magayaati

Here after you would be peaceful people

Intala walii fuuudhi

Marry girls of one another

Fundhaa gurgurri kee tokko

Your wedding would be one and the same (you help one another in marriages)

Du’aajiruun kee takkatii

Your deaths and lives would be one and the sane (live together)

Dubbi rayyan anbaa fixe tanatti yoo deebite

If you turn back to the state of enmity against what is solved by neutral elders,

Ati rakkicha

You would be criminals,

Ati hamaa

You would be considered arrogant

Arsii bin qabdu

The Arsi would never stand by you (never help you)

Gosa bin qabdu

Your gosa would never be beside you.

Sodda soddaatii bin qabdu

You would never get father and mother-in-laws (you would never get wives).

Malka bin qabdu

You would never get the river (the support of neighboring clans)

Lagaa tulluu bin qabdu

You would never get rivers and mountains.

uumee uumama bin qabdu

You would quarrel with the creator and the creatures.

57It is possible that the elders would arrange marriage ceremonies between the two parties, if they are not relatives and this would be become the end of Gumaa procedures.

Enforcement of the Decisions of the Jaarsa Biyyaa

58Decisions of the Jaarsa Biyyaa institution are generally enforceable. The community members have accepted this arrangement and submit to its jurisdictions voluntarily. But, when members of the community sometime refuse to implement the decisions of the institution, such enforcement mechanisms as social sanctions that include ostracization and banishment of the convicted offender would be employed. The binding force of the decisions are also aided by the prestige accorded and general recognition and acceptance made by the society as a whole to the institution and to its members.

Evaluation of the Jaasa Biyyaa Institution. Participation and protection of vulnerable groups

59The first problem that would be identified with the Jaarsa Biyyaa is its ‘undemocratic-ness’ in terms of gender representation. Women do not serve, on the Jaarsa Biyyaa Council. Even to present any claim or complaint to the Jaarsa Biyyaa tribunal, a woman has to be represented by a closest male relative (husband, father or brother). This is simply because women are considered as unfit, unknowledgeable, and so on, to stand before the public to defend or present cases. This in fact is based on the traditional values and beliefs which accentuate male superiority, and the Jaarsa Biyyaa institution cannot be an exception.

Linkages with the formal institutions

60The FDRE Constitution, under Articles 34(5) and 78(5), recognizes the application of customary and religions laws in civil and personal matters provided that the parties to the dispute agree to the jurisdiction of the customary or religious court and law in question. But establishment and hence jurisdiction of Jaarsa Biyyaa tribunal as a customary dispute resolution institution is not regulated by any independent federal or regional law in the absence of a legislation to detail out the jurisdiction as well as other matters in relation to customary law and courts, it would be difficult to authoritatively speak about their place in the official state institutions of the country, be it at federal or regional level.

61On the other hand, we have seen that de facto, the Jaarsa Biyyaa institution exists in full swing and handles considerable numbers of cases of criminal, civil and commercial nature. According to wereda court judges and wereda police in Bale Zone, a larger number of cases are settled by Jaarsa Biyyaa tribunals than by regular courts. It is therefore believed that a detailed regulatory legal regime would be necessary to institutionalize the Jaarsa Biyyaa institution and to work out its relations with the formal institutions of administration of justice.

Conformity with the official legal norms

62The Jaarsa Biyyaa institution’s modus operandi could be found wanting in at least two areas when compared with the formal legal system. First when we look at the way the institution is established, the members of the institution are not elected in the formal sense. The parties and public at large were not at full liberty to evaluate and change them whenever the need arises.

63Second, another area of serious concern is the rules – both substantive and procedural – used by the Jaarsa Biyyaa. In the first place, the rules do not exist in written form but in the memory of the individuals. Thus, there is a high probability of variation, a possibility of arbitrariness and the danger of abuse. In addition, some of the substantive rules and procedures are against basic legal norms. They violate basic principles of law, such as the right to equality before the law because the customary rules are gender-biased and hence discriminatory, they violate basic rules of due process of law, fair hearing, fair trial, presumption of innocence, benefit of doubt and right against self incrimination. Officialization and formalization of the Jaarsa Biyyaa would require that these deficiencies are remedied.

List of Informants

S.No.

Name

Social status

Place of interview

Date of Interview

1

Galgaluu Danboba

Abba Bokkuu (retired)

Bale, Adaba

9-1/3/2004

2

Gaasim Galaluu

Hayyyu

Bale Ababa

9-11/3/2004

3

Kadiir dheekkoo

Hayyuu

Bale boobe

12/3/2004

4

Robee Mama

Hayyuu

Bale Dodola

13/3/2004

5

Amaan Waaqayyoo

Peasant

Bale Dodola

13/3/2004

6

Gariibee Waabee

Peasant wife

Bale Dodola

14/3/2004

7

Gatiyyaa Biftu

Peasant wife

Bale dodola

14/4/2004

8

Dhugoo Xiiqqari

Peasant

Bale Adabba

15/3/2004

9

Sheik Jamal Bariso

Merchant

Adama

18/2/2004

10

Gaari Waquma

Hayyu

Bishoftu

19/2/2004

11

Subi Intale

Peasant

Dukam

20/2/2004

12

Hajji Alo Hamada

Member of parliament

Addis Ababa

21/2/2004

13

Waqjira Qabata

Merchant

Addis Ababa

21/2/2004

14

Ato Tamam Ahimed

Bale Zone high court president

Robe

15/6/96

15

Oumar Gamada

Bale zone justice Bureau public prosecutor

Robe

15/6/96

16

L/Shambel Moges

Bale Zone police department criminal investigation Head

Goaba

16/5/96

17

Tilahun Mamo

Bale zone Administration expert

Goba

16/5/96

18

Ato Ori Usman

Sinnaa Dinsho district Justice dept head

Robe

16/5/96

19

Ato Marsah Zewue

Elder

Robe

17/6/96

20

Ato Abdi Mamo

Elder

Robe

17/6/96

21

At Kadit Dheko

Elder

Dondola

18/6/96

22

Ato wargu Gabisa

Judge

Oromia supreme court (A.A)

12/6/96

23

Ato Dawano Kadir

D/head

Oromia justice

12/6/96

24

L/Tashome Feyera

D/commissioner and head for criminal investigation division

Oromia police commission (Adama)

24/6/96

25

Ato Alamayo Hile

S/expert

Oromia culture and Tourism Bureau

24/6/96

26

Ato Daniel Dheresa

S/expert

Tourism Bureau

24/6/96

Notes

168 Interview with the Oromia State police officer

© Centre français des études éthiopiennes, 2008

Conditions d’utilisation : http://www.openedition.org/6540

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