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Grass-roots Justice in Ethiopia

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Alula Pankhurst
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Getachew Assefa

Regional Case Studies

9. Customary Dispute Resolution in Tigray Region: Case Studies from Three Districts

Shimelis Gizaw et Taddese Gessese

Texte intégral

Profile of the Region

1Tigray Region is the third most homogeneous of all the regions in Ethiopia, next to the Afar and Somali national states. The Tigray people are the vast majority and the Kunama and Irob are the only minorities. Christianity is the dominant religion though there are also Muslim Tigrayans in some districts. The population of Tigray according to 1994 census was 3.6 million. The study has been conducted in three districts of Tigray region Adigrat (Northern Tigray), Mekele (Central Tigray) and Adi Keyih (Southern Tigray).

CDR institutions

2The people of Tigray Region have been noted for their resistance against the central governments of the country. During the time of Emperor Haile Sellassie, a resistance group known as Keddamayi weyyane was established and made efforts to withstand the central government’s control. Many fights took place between the weyyanes and government forces and there were even incidences of bombings like those which occurred in Makele and Hawzen in the era of Haile Sellassie and the Derg respectively. The political organizations that lead the fight used to exercise the practices of Baito to resolve conflicts and settle disputes among the people being governed by them, that is, in the regions which were free from the central government’s administration. The institution, however, was also responsible for other, social, economic, and political activities and carried out administrative activities which included keeping public order. Distribution of farm land, co-coordinating soil conservation activities, etc. were some of the activities of the Baito during the Derg (Bruce 1993).

3The Baito institution was thus functionally operating in a similar way to the Peasant Associations during the Derg (Asmelash 1995) and the chiqashum during Emperor Haile Sellasie (Hoben 1973). Since the formal justice system of the central government was not operational people were obedient to the Baito administration and justice systems and often expressed their preference for this system, which they considered effective in that people had a say in them and there was almost complete control of criminal actions and theft. The baito institution, however, was not established exclusively for the responsibilities of dispute resolution and its duties included other social services.

4According to the information by Ato Gaim Welde Giorgis, former President of the Supreme Court of Tigray Region criminal actions like murder are becoming less and less frequent in the region. The types of criminal actions and disputes that are most prevalent include theft, disputes over family property, and between husbands and wives. The role, therefore, that CDR mechanisms play is becoming more and more important. Settlement of disputes through the formal system takes longer time and sometimes locations of such intuitions are far from the residence of a disputant and costs are associated with the distance.

Linkages with existing social and cultural institutions

5Shari’a courts, Iddir, Mahiber and the court of the Orthodox Church are the institutions which play roles in CDR. The Shari’a court contributes a considerable part in dispute resolution in the region, notably dealing with quarrels between husbands and wives. The Orthodox Church court which is supposed to deal with many kinds of disputes among the faithful has only a nominal role. Judges and support staff are selected but the court is not working at least at a level that was observable to the researchers. The link this court has with CDR in Tigray is through involvement of the priests in dispute settlement councils of elders individually, not as representatives of the Orthodox Church court. Iddir is a self-help association of residents of a neighborhood and as an optional objective of the institution, some elders of the iddir take the initiative to resolve conflicts that arise among members. Responsibility of the religious Mahiber conventionally includes dispute resolution and a considerable role is being played by these associations in this respect. It is thus possible to say the CDR are primarily linked with the social (religious) and cultural institutions.

Use of CDR in the Region

6Civil disputes are the most common type dealt with by CDR in Tigray. The reason for this is partly due to prohibition by the state from dealing with other types of disputes and partly because of absence of disputes of commercial type, for instance which are rare and often handled by institutions located outside the Region. The only case the researchers have heard of is a dispute between the Ethiopian Telecommunications Board/Corporation and Ethiopian Water and Sewerages Authority; laborers of the Ethiopian Water and Sewerages Authority had caused damage to a large number of telephone cables in Mekele for which the later authority was made to pay compensations in money by the wereda court. The Former President of the Supreme Court of the Region, suggests that it would have been better if a separate committee of judges had made the decision since the two organizations are community service givers and charges of compensation will only affect government but not anyone else. Disputes relating to crime are basically handled by the formal justice systems in the region. The CDR mechanisms including the social courts are supposed to handle disputes other than crime.

7Instances in which collective disputes are resolved are those involving Raya, Wajirat and Afar ethnic groups. The conflicts between the Afar and Tigray people of the South East districts take a collective form and resolution is made by elders of the Abbo Gereb. Conflicts in these places are sometimes difficult to settle and formal institutions of justice like the police need the help of CDR institutions. Conflicts often occur among groups and if the police attempt to control them, further problems are created as the formal procedures of the institutionalized justice systems do not allow reconciliation, mediation and arbitration, which are exclusively practiced by elders’ councils. In order to establish permanent peace among the communities of Afar and Tigray, CDR mechanisms are employed in both individual and group disputes.

  • 178 According to Ato Zemenfeskidus Belay Department Head of Labour Dispute Affairs in the Office of Lab (...)

8Another agency that deals with collective disputes is the Region’s Labour Dispute Reconciliation Agency/Institute. This agency deals with labour disputes between the employer and the Labour Unions. It also deals with individual disputes between a labourer and his employer, though this agency is not formally supposed to handle these and its role as an agency to deal with private disputes of this type is not approved by court. It sometimes tries to settle cases which are private and it does so since some labourers are not aware that the agency doesn’t have the authority to do so and since they come to the labour dispute affairs office instead of going to the court.178 According to the data the office has, the agency dealt with 526 individual labour disputes in 1995 E.C. but it dealt with only 13 collective disputes.

The Abbo Gereb Institution of Wajirat179

Case 1. Protection of Grazing area/land at Addi K’eyeh

9According to some research findings, the Gereb is an institution formed for the resolution of conflicts between the Tigreans and the bordering Afar ethnic groups. The institution of Gereb has some written rules compiled by the mutual consent the of elders of both Afar and the Wajirat (Kelemework 2000:9697). According to Kelemework, the gereb consists of a council of elders from ethnic groups. The present report is particularly about the task of the Afar-Wajirat Gereb, which deals with conflicts between the Afar and the Tigreans of Wajirat; there is another version of the Gereb that deals with conflicts between the Afar of Didba Galjeran and the Tigreans (Kelemework, 2000). There are types of conflicts which the Gereb does not deal with. The Afar-Wajirat Gereb is mandated to deal with serious conflicts only. The other types, the minor conflicts are dealt with by elders of the respective ethnic groups. The Abbo gereb of the Gereb are elected by their respective ethnic groups based on their skills of dispute settlement, their honesty, and the acceptance they have due to this. Each Kebele has its own grazing area, which may at intervals be protected from catde by selected members of the community, which obviously means the Abbo Gereb elders. The number of the persons is 20. Two of the 20 persons act as leaders and play the role of administrators of the grazing land. In addition to this they are in charge of punishing those who are caught for letting cattle graze on the land/grass. In this way they enforce the agreements of the locality. The two leaders are known as Dagna Abbo Shera. In cases where the 20 people, who are in charge of protecting the grazing area fail to carry out their duties properly, they will be made to collect a given amount of money - ranging from 600-1000 birr, which serves as a guarantee/collateral. The money collected or deposited for this purpose is locally called Hirud. The name seems to have been derived from Hirude or slaughtering of an ox that used to be served in a feast. Negligence to carry out responsibilities would result in a punishment also termed Hirud. The system used to deposit Hirud in the hands of Abbo Shera in the past, and currently with the Kebele administrations.

10Destruction/grazing of the protected grass is punishable according to the system serrit. The amount of punishment varies depending on the number of cattle that went into the grass and on the behavior of the owner. The amount ranges from 5-50 birr per head of cattle. If the owner is capable and if he accepts the punishment, he will pay the money right away or he will be made to present a guarantor. But if he fails to accept the punishment, he will be taken to the Dagna Abbo Shera, who may force him to appear on the day of appointment. This guarantee of plaintif lasts for three consecutive adjournments if he fails to do this he will be made to pay the punishment. The Abbo Sheras however, meet weekly wherever it is convenient so as to be available for the people. The meeting could be a market place, church, etc.

11The law has no written form and everything referred to is kept in the memory of the speaker and is presented orally. The term for which the Dagna Abbo shera remains functional is six months only. Right after serving this period, the team leaves to give others the chance to come to office for the same period of time. The Afar community members are also made to abide the law that is functional in the Wajirat area.

Case 2: From Demer to Abbo Gereb: Murder case between Afar and Tigray at Isira Amba180

  • 180 Informants Hagos Kalayi (63) Hailu Meresa (70) who are serving as Abbo Gereb currently.

12The Sirrit at Wajirat Isira Amba is the system of dispute settlement is southeastern Tigray. The method of selecting elders for the appointment involves calling the Demer which is a meeting of the community of Isira Amba i.e. twenty villages. Ten of the villages select ten elders from the villages past/beyond the river called gera gerewo. The remaining ten villages also select ten elders from ten villages other than their own i.e. beyond the river sera/serewo. The total of twenty elders representing the residents of the twenty villages constitute the body of the traditional justice system at ‘Wajirat’ Isira Amba’. The type of cases the justice system handles includes: murder, theft, rape, denial of paternity, denial of debt, beating, rape, insults, and quarrels between parents and children.

13Cases were brought to the elders either through the litigants or by the initiative of the elders themselves when it has something to do with public affairs. A litigant may present the case requesting the elders to consider it and complaints are given orally in this way. The litigants are then called to the elders. The litigants are named Seb-Zenge which means ‘Men with sticks’ in the local language. The litigants could stay together while presenting their complaints to the elders. The elders take a list of witnesses – the neq asies, whose number varies from three to seven. A group of elders were selected and sent to the residences of witnesses so as not to allow time for them to create unnecessary contacts before the hearing. The public gathering of this purpose was. called Demer. It was held until the Italian aggression and continued until it was prohibited later during Haile Selassie’s era. The Derg had later stopped the practice totally. The Qaddamayi Woyyane, which fought for justice and fair admission had the role of assisting in the development of the Isira Amba system of justice. Then with the decline of the Qaddamayi Weyyane movement the system had been weakened and its role of dispute settlement was replaced by the similar function of the Demer until the early years of the Derg regime. The Derg used the Demer for purposes of controlling bandits, thieves and murderers – and handing them over to government institutions like tire police and administrative bodies in the region.

14Litigants could represent a relative or anyone in the dispute settlement/argument when s/he is found to be incapable of presenting/articulating his/her complaint to the elders properly. Meetings of the Demer were called by sending messengers to the surroundings, who would tell residents that the next meeting would be made at the bank of the river Gera Gerwo. Women did not take part in the dispute settlement except when requested to be witnesses and when they come as litigants. Government officials could take part in meetings as members of the community but they did not act according to their official roles of appointment. They could collect tax, facilitate social services, etc. They did not deal with bandits or thieves as these roles were played by the elders. When a child failed to give services to the parent, his case was presented to elders and next time when he appeared at the assembly of elders he was made to carry his parent on his back while presenting his arguments.

15The former system of dispute settlement, however, has been replaced by the Abbo Gereb, which is also a council of elders elected from the residents by government recommendation. Three elders were selected from each Kebele and those are a total of 30 who are supposed to be in the council. The team has seen seven of them dealing with a case of murder.

16The major roles of Abbo Gereb include group conflicts that occur between the highlander Tigray groups and lowlander Afar people, who sometimes dispute over grazing land, and drinking water which often becomes scarce due to drought in the area. Moreover, there are minor individual causes of conflict like theft and murder the settlement of which is the responsibility of Abbo Gereb.

  • 181 On the Tigray side the Abbo Gereb members were: Ato Hagos Kalay, Ato Hailu Meressa, Ato Tammene W/G (...)

17The nature of conflict often dealt with by elders of Abbo Gereb is elucidated in the case that follows. The researchers have observed the occasion of dispute settlement discussion made between members of Tigray and Afar elders who came together on March 16th, 2004.181 The elders have had two similar meetings and the third was to be held when the researchers arrived. It was held on the eastern coast of the river Gera Gerewo at a village called Mamiet, roughly a 1:15 hrs walk from the rural town of Addi Keyih which is on the main road to Maychew/Addis Ababa. The elders were divided into two in that occasion. One group of elders was sitting with the family of the dead person and the second came later and joined the Afar elders who had traveled a long distance to arrive there. The murder was carried out some two months before as the Tigray farmer tried to beat the Afar youngster, who was armed with a gun and told the Tigray farmer to leave behind the donkey he was driving home. The Tigray farmer’s refusal to obey resulted in a fight between the two men in the end of which the Afar fired the gun and shot the Tigray farmer dead. The Afar Region police caught the murderer and put him in prison.

18On the date of the arrival of the research team at 12:15 the elders were supposed to come with the criminal to the meeting. It was, however not possible for them to bring him on that day and in their explanation to the family of the dead person, they said that the Afar Region police took him to the Zonal police prison. They added that the police had promised to hand the criminal to them after making him sign so that they could be able to take him to the meeting of elders and the family of the dead person. The second group of Abbo Gereb elders came to join the family of the dead person and the first group of Abbo Gereb elders and stood erect with their shemmas crossed over their chest in sign of politeness to beg for the family’s mercy. The argument between the standing elders and the dead man’s family took about an hour and a half and in the end they were told to sit down. In the discussion to convince the family, the elders asked them to pardon the killer because the blood that was split was not ‘black’. They said that they had asked the criminal about it and found out that the murder was not intentional. A member of the first group of elders also added that he had taken part in several disputes of similar nature and that what the previous ones said was true. The family was convinced and showed that they had accepted the next appointment in about one month. An elder from the community of the criminal said before this that it is not blood of an animal that was spilt and that compensation was obligatory.

19The meeting was adjourned at about 5:30pm. The light shower of rain that cooled the air in the end was described by some of the elders to symbolize settlement of the dispute. The private conversation between elders, most of whom were bilinguals and the looks in their faces clearly indicate the desire to establish co-operation and live together with harmony. The elders expressed their appreciation of each others’ effort to settle the dispute. They said that the dispute should be settled since what had been split was not the blood of a sheep or bull and that they would continue to make efforts even when they are sick and tired like one of the Afar elders. (who was sick while they were trying to settle the dispute). Elders of criminal’s community advised the others to stick to the previous Wajirat custom and take what they say and not to listen to what some liars tell them.

20Asked to explain the aim of their coming together when the government institutions are capable of resolving conflicts the elders answered that they were trying to settle the dispute and to establish permanent peace between the two communities. Asked what they would do if the police refused to give the criminal to be taken to the next meeting, they answered that they believe that the police will accept as long as the disputants agree upon the settlement and sign confirmation of this. They also added that the prisoner will be given back to the police after appearing in the meeting. But before this the criminal will be brought to the elders and will be made to put on a black wool wacco in sign of mourning for the dead person and will be ‘thrown’ into the hands of the family of the dead person and beg for their mercy. The police according to the elders will be asked to give the prisoner orally without necessarily writing a letter. An amount of 1000 birr will be paid in punishment for the crime. The sum will be divided into two and will be given to the administrative offices of the Weredas at the same time. The amount of money paid in compensation however varies based on some factors, including the capacity of the criminal or his family to pay it. It often varies from 5,000-20,000 birr and sometimes may be more.

21Most of the Abbo Gereb members who are working in this council served 13 years. They are very much accepted and respected by the communities. They are not, however, being supported by the government/state in any way. They don’t even have a place to meet and the researchers had witnessed this; they had to sit in open fields for a meeting to settle disputes. Most of them also like the service they give to the community but they complain of shortage of time to work on their farms and private matters.

22The communities prefer the Abbo Gereb to the formal justice system according to the opinion of most elders and the people. Nevertheless, persons who are accused of theft prefer the formal justice system because they will have the chance to be released when the police fail to find evidence. The Abbo Gereb on the other hand follows the track of a lost animal and is usually successful in finding/discovering a criminal or crime while the police usually fails to do so. Therefore the Abbo Gereb is viewed as more effective than the institutionalized justice system and is often preferred by the community.

Case 3: The Abbo Gereb in Southern Tigray: Cattle raiding and murder between the Raya and Afar

23In this case responses given by Ato Gebreabgzi, who is working in the Tigray Regional police and who had served for more than ten years in the district of Southern Tigray (Raya) are reported. His discussion with researchers include a case of murder in which eight persons were killed in a fight caused in a border incident between Raya, and Afar communities. A large number of cattle was allowed to graze on a borderland over which the two communities have a claim. A considerable number of cattle were taken by each side during the fight because the cattle were found grazing on the land over which the communities used to dispute. After a serious fight and shooting several individuals died from each side. Soon after the fight the Region’s police decide to intervene and caught ten individuals, who were supposed to be the initiators of the conflict from Mechare and Addis Abdera in Tigray. As the police was charging them of the crime and was following the case, the elders of the area, most of whom are sheikhs and Wajirat elders, had recommended that the Abbo-Gereb of both communities should handle the conflict. They thought that involvement of governmental institutions like the Ministry of Justice and the police and the court in particular would aggravate the dispute. The elders had, therefore decided that Abbo Gereb should carry out the task so that the dispute would be resolved and peace could be reestablished. The Abbo Gereb which took the responsibility requested the police to release the prisoners so that the dispute resolution could be fruitful. After the release of the suspects the elders of Abbo Gereb decided to return the cattle taken during the fight to their respective owners. The Tigray Regional State government also requested the Ministry of Justice to give up the case constructed against the suspects for the sake of the communities’ peaceful co-existence and this was done in accordance with the Criminal Code of Ethiopia.

24The document of the arbitration was written and signed in the presence of representatives of the administration of the regions (Tigray and Afar), the police representatives of the two Regions and the elders of the communities. The arbitration was closed in a ceremony where four cattle were killed and served in the feast. Dispute settlement in southern Tigray include 1) those carried out by Abbo Gereb; 2) those settled by village elders of the communities and by representatives of the Wereda administration offices-when the conflict is between two neighboring communities and 3) those settled by religious leaders (sheikhs and priests). Elders are selected by the community using the criteria of age, skills in dispute settlement, blood relation to one or both of the disputants, and willingness to serve. Types of disputes commonly settled by elders in Southern Tigray district of Raya included border disputes with Afar, murder, and theft. The very common causes of conflict in Raya and Afar communities are grazing land and water for cattle. Disputes between husband and wife are not common and if they occur elders and priests could settle them without the involvement of the institutionalized justice system. One of the common causes of disputes is theft. This is because livestock notably camels, freely move in deserts with contraband items. The camels are often taken by the neighboring highland Tigreans and sold elsewhere. The Afar lowlanders also steal cattle when they have the opportunity to do so and theft is one of the common causes of conflict in the district. Rape and murder are also among the causes of dispute in the region. They are not, however, frequent compared to the other causes of conflict. Suspicion of men having sexual affairs with wives of other men could sometimes be observed to be a cause for dispute. Nonetheless, this is not common.

25In the Raya of South Tigray camels are sent to Afar to carry contraband items for payment. The load/pack they carry is often worth hundreds of thousands of birr. Thus if the camel dies during the travel, the man who hired it may be pardoned and may not have to compensate for the lost camel if he comes with the mark on the dead camel’s body as evidence. This is sometimes condonable when the amount of money of the pack is estimated to be is much higher. The customs police often captures and takes smuggled or contraband goods and they are not recoverable. Owners of camels, who let merchants hire their camels may often be sympathetic and give up compensations. But sometimes if the merchants fail to present such evidence as mentioned above, the incident becomes a cause of dispute. Elders sometimes settle disputes of this nature in Raya and Afar.

26The role of religious leaders in dispute settlement is considerable in Raya of South Tigray. The Sheikhs are involved in almost every dispute settlement and every disputant accepts what they propose. If anyone goes against or fails to obey the sheikh’s verdict, he will be made to buy a carpet on which sheikhs bow to Allah! It is generally believed that disobedience may result in madness, bankruptcy, sickness or any kind or death.

27The Raya community were said to prefer the traditional dispute resolution mechanisms to the formal justice system, believing that a court’s decision would not bring peace. They therefore want the elders and the sheikhs to be involved and settle disputes for them.

28The procedure the elders follow to find evidence is often based on an oath taken by laying a hand on the Koran when it is the sheikh who handles the case. Abbo Gereb elders make the suspect to walk over a weapon placed on the ground in sign of an oath. This is supposed to symbolise that if the suspect is telling a lie, his life would be taken by the weapon, or at least that his life will be endangered. The footprint on the mud and sand are often measured and taken as evidence against a suspect by elders if he fails to admit that he had committed some crime. Although not common, there are occasions where disputes are discussed and dealt with in the absence of a disputant or both the disputants including in cases of disputes between husband and wife, when either of them may not be made to hear the other’s secret.

29In Raya when the dispute is over grazing land or over a border, the Wereda administration would select elders to settle disputes.

30Failure to accept the decisions of Abbo Gereb would sometimes result in ostracism. Historically, there were times when the property of the disobedient was destroyed and his cattle slaughtered. But this is a violation of his rights and is often not practical. Yet sanctions like reluctance to visit him when he is sick or when he is in need of some assistance, for a wedding, funeral, harvesting, ploughing, or building a house are ways of enforcement of the elders’ decision in Raya. There is no hierarchy in the body that makes decision, which is a decision by the Abbo Gereb without any other or higher body of appeal. It will simply be enforced. The information of the rules that work in the decision of village elders Abbo Gereb is disseminated in public gatherings (church services, etc.) and the public has awareness and knows what rules are working. This knowledge is transmitted orally from generation to generation but not in written form.

Case 4: Reconciliation after divorce

31The dispute took place between a known merchant and his wife in Mekele. The case had resulted in a divorce which was approved by the social court and endorsed by the wereda court. The elders were involved in a reconciliation effort which was discussed by two of the elders involved in mediation Ato Hailemariam Gebremedhin, a merchant aged 57 and Priest Inqa Bahn Messele. Ato Hailemariam had learnt the skill of dispute settlement in his childhood from what he used to observe. His father, who was also a skilled village elder used to settle disputes with other elders. Ato Hailemariam, who was very much interested in dispute settlement discussions attended several dispute settlements following his father in his trips for such missions in Hawzen, and now he is a famous dispute settler-elder in Mekele. He said an elder must have a clear objective of bringing peace and harmony between disputants and not gaining any benefit except the resulting respect and acceptance. He added that the confidence and courage an elder has come out of this and he had no doubt that no one would have anything against their mission of settling the case between the husband and the wife.

32The disputants and some of the elders and the priest have a religious association called Yetsiwa Mahiber in which they come together once a month and serve local bread and Tella at each other’s residences. Other religious services including lessons and prayers are also made on such occasions. It was now the turn of the disputants to receive guests of the Mahiber in their house. The elders warned that they would stop coming to the disputants’ residence for similar occasions and for others unless they accepted the arrangement for settling the conflict. There was an implication that refusal to accept the effort the elders made would result in ostracism and exclusion from the Orthodox church according to Inqu’s statement. Two of the children have also taken part and they had a considerable role in convincing their parents to come to agreement. They said inheritance of their parent’s wealth would be of no value if they failed to inherit good manners and behavior and told them that the saintly deeds of their parents is worth many fold the property they would inherit and that they should be able to acquire that example too. The elders took eight weeks to bring the disputants to agreement.

33After having cleared the grudges and suspicious each had with the Other in the course of time, and after being convinced that the pleasure they would enjoy is better when they are together, the parents revealed each others suspicions and agreed to settle the dispute between them after serious efforts of the elders.

34The family’s property which is estimated to be about 28 million birr was to be divided among the disputants. The attorney claimed about 1.4 million birr; but he was later persuaded to receive 650,000 birr only. The attorney on the husband’s side was very pleased that the dispute had been settled and he did not take the money for the legal service – he even took part in the dispute settlement with the elders, and gave them the advice that the courts would accept the settlement of the dispute and they were encouraged by that too.

35Two years had passed before the divorce was decided by the courts. But now the marriage had to be re-arranged by the elders. Other groups of elders had tried their best to handle the dispute several times before that but had failed to broker an agreement between the disputants. Some of the elders in the previous council were said not to have had a genuine desire of settling the dispute or they were attending the meetings simply half-heartedly The last group of elders went to the courts with a written document of the agreement between the husband and the wife and requested the courts to approve it. The court had also accepted the settlement of the dispute and had also appreciated the saintly work of the elders in succeeding to bring the family to agreement of that kind.

36The agreement signed by both the husband and the wife included a payment of 300,000 if any one of them breaks the terms signed. The elders had taken the initiative and came together to handle the dispute through the religious association in which they were members. No one had called them to meet and settle the dispute. Abba Melake Selam Gebre Kidan was appointed chairman of the council of elders and a total of six elders were members on 25 July, 2003. Three of the members were priests and the remaining three are from the faithful in the association of St. Michael mahiber. The council of the six elders in which Ato Hailemariam was a secretary took nearly a week from 21st of July- 29th July, 2003 to write the draft of the decision made by elders and which was to be signed later by the husband and wife. This document has three copies. The disputants appeared together during the first hearing and three sympathetic female neighbors were also allowed to attend the meeting.

37The meeting was sometimes called once a week, or even sometimes daily. The elders noted that the wife had the desire to maintain the marriage. The elders tried to establish whether the husband had another female partner after tire divorce, but did not come across any such evidence. The elders’ request to the couple to bring some people, who have blood relations with them was not accepted. The elders had also tired if the man had a female partner after the divorce. The divorce lasted a year before the re-arrangement. The dispute was settled in September 2003.

Case 5: Reconciliation after a car accident182

  • 182 This case was narrated by Ato Seyoum Mahilu, from the Irob Community of Northern Tigray who was inv (...)

38A person was killed in a car accident at Alitena in Northern Tigray, and the death was considered to be accidental/unintentional. The elders called the family, three from each side to the meeting. A relative of the dead person was selected and take part in the dispute settlement. The elders went to the family of the dead person about three times before the actual arbitration was started. Each time they requested the family’s willingness to accept the dispute settlement effort. During the fourth meeting, the family was convinced to accept the arbitration of the village elders and the amount of compensation was fixed to be 15,000 birr. The uncles of the dead person argued about the compensation but the elders finally convinced them to accept the amount mentioned above. The family of the killer including one of the elders had contributed for the compensation. Finally, the dispute was settled and the agreement signed by both sides and copies of the document were kept by each side in the dispute and the Arba Shimagile the leader of the elders’ council

39In the community of Irob, elders used to be selected and wait to settle disputes whenever they occur. One or two of the permanent members of elder’s council would resign if they had a blood relation with a disputant. This is to ensure that favor could not be done to the relative because of the relationship. According to the established custom of the community, the defender is exiled voluntarily to avoid possible revenge by the relatives/family of the victim. This is done when the defender fails to make compensations, which usually follow settlement of dispute. The feast given at the end of the dispute (Kukhta) is supposed to eliminate the feeling of revenge because of sharing a meal of the meat of the bull slaughtered for this purpose is supposed to mark the abolition of any intention of revenge. The elders should, however, make very certain that every relative has shared the meat of the bull Sola – meat because any one of the relatives who declines would have tendency of revenge according to Taddese Baraki and Seyoum Mahlu. A revenge after that would follow by ostracism if heard to have occurred and is socially sanctioned as taboo. The expense for the feast is usually covered by the defender and is normally considered as a certain part of the compensation.

40According to the customary practice in Irob and other Tigray districts compensation is not made for crimes of other types. But elders may decide to make the defendant to give a given number of cattle or goats or sheep in compensation. The cattle or sheep are kept in the house of the plaintiff for a few months as the compensation is only nominal. The plaintiff thinks justice has been done to him even if he does not receive all the compensation. Thus the plaintiff often returns the animals to the family of the defender because compensation is not made for damages or disputes of other type than murder. There is however, another form of payments made for physical damages. A person who lost blood or some other part of his body is allowed to receive goat, sheep, butter or honey from the defendant not in a form of compensation but as a means to recover from the damage after feeding on what the plaintiff obtains in this way.

41In addition to resolving disputes of murder, the elders’ council of Irob makes the families of disputants arrange a marriage between members of the two families so that peace could be established and disputes could be eliminated permanently.

42The Council of elders takes into consideration the capacity of the defender to pay compensation before it decides the amount to be paid. If the dead person has very old parents or children who are not yet capable of working and producing anything, the amount of compensation is made to be higher than when it is with a victim without such family dependants. Compensations received by the family of the victim are normally divided among family members of the parents. Those on the side of the female parents normally receive somewhat a lesser share. The father’s side takes a larger share.

43The burden of paying compensations is not normally left as the concern of only the criminal; all his relatives take part and share a given proportion of the payment depending on their capacity. The defendant and his relatives can ask community members at market places or at churches to give what they can in order to help their community fellow member to resolve his financial problem. According to Ato Taddese Barakhi elders’ council of Irob deals with all types of disputes including rape, murder, and theft and crimes of other type like insult, etc. According to Ato Tadeleh and Seyoum Mahilu, unintended crime cases, are not taken to the police or formal justice systems even when these are murder cases. Other intentional cases may be taken to court and the disputants are made to resolve/settle the dispute by the traditional mechanisms afterwards when the criminal is back after completing his imprisonment. Ato Taddese noted that the formal justice system also allows according to article 523/526 to observe interests of the family of the victim. It may allow the period of the imprisonment for murder to be minimum in this way.

44Kab Nebsi Nab Gebsi is a saying among the Irob to mean ‘let us save the soul and take the barley’. The criminal is brought in front of elders and taken to the family of the victim. He is then given to do what they want to with him. The criminal is made to wear or wrap himself in a black wool in sign of mourning for the dead person. He is made to lie down like a log of wood in submission. The above statement ‘Let us save a soul and take barley (grains)’ is made by the victim’s family, which means they have greed to accept compensation to save the criminal’s soul, once they allowed by elders to do what they wan; through this statement they therefore show preference for accepting the compensation instead of killing the criminal.

45A criminal in a murder case is made to stay away until reconciliation is made between the families even when the criminal has finished his term of imprisonment. If he ventures to come into the location of the dead persons’ family without/before reconciliation and before the feast, he will be considered to have despised and looked down upon them and the feeling they might have due to this can initiate them to take revenge.

Case 6: Revenge twenty years later for compensation not paid

46There is actually a recent case in which four individuals were killed by a family member of the victim killed twenty years back. The boy who was very small when his relative was killed became an adult and was armed with a gun by the kebele administration. The criminal stayed in prison for twenty years but when he came out he did not accept that he should pay compensation even though he had been penalized by the formal system. The boy who was by now a man could not tolerate the feeling made that his relative’s killer could live in the same village as him without asking elders and reconciling/settling the conflict after twenty years during which the criminal stayed in prison for his crime. He did not hesitate to shoot four people of the criminal’s family to escape the feeling of degrading himself because of living in the same place with the killer. The village people were said to have had a part in this since they labelled him as a coward for staying without taking action on the killer of his relative. The criminal was not around at that time and the victims, who died together were only related to him by blood. Three others were wounded in the same shooting. The prisoner, Teklay Kiros, is now awaiting his execution in Mekele Prison.

Case 7: Boundary dispute with reconciliation under way

47Ato Gebru Debesay killed a person that tried to push the boundary of his farmland. The defendant’s imprisonment was reduced to five years due to the conditions of the occurrence of the crime. The elders’ Council made Ato Gebru pay 30,000 birr to the family of the victim after he came out of prison for fear that the victim’s relatives would take revenge. He has nearly completed the payment except for three thousand birr he has to add and elders can now ask the victims’ family to allow him to resettle in his community. The Kukhta ceremony was to be held shortly after this interview. He is now moving around the town of Adigrat until the Kukhta has been celebrated to avoid the danger of revenge.

48The Irob have a saying to suggested that compensation is not of much use and is only made only to mark the satisfaction of the party with the decision. The saying goes as follows: Bikasayi zikhe bereti bimayi tse’bah zisekhere yelleyi meaning ‘There is no one who became wealthy by receiving compensation and there is no one who got drunk/intoxicated by the water of milk’.

Critical Assessment of the CDR institutions

Strengths

49It is difficult to establish an effective practical justice system in Tigray, without involving the existing and potentially useful traditional systems of dispute settlement. This study has shown that there are certain disputes which the formal justice system has failed to settle. Traditional systems could have dealt with such disputes and are effectively carrying out activities of this type.

50The customary systems can play an important role in several ways: firstly, by supporting the formal justice system; secondly in helping the public by establishing permanent peace after settlement of the conflict.; thirdly for the litigants in minimizing the amount of time and money usually spent in the formed Justice Systems, and fourthly for the communities by providing socially acceptable solutions which the formal systems lack.

Weaknesses

51The following points may be considered the main weaknesses of customary dispute resolution: Firstly, the ever increasing amount of money that is determined for compensation and the resulting burden on the family of the criminal; secondly, the emerging trend of criminals leaning heavily on the traditional mechanisms to solve problems for which they would have been made to pay dearly in the formal justice systems (either through imprisonment or in kind), and, thirdly, the disappointment of elders that may result from them not being compensated in any form for the time and energy they invest in the effort of dispute settlement and the tendency which may develop to benefit from the process in forms of feasts, transportation allowances, etc. and the unwillingness to the take part when the litigants cannot afford to give such services.

52The Abbo Gereb elders are already complaining that ‘government is not compensating’ for the service they are giving and due to this the number of elders who take part in the arbitration councils is becoming less and less according to some informants.

53The team observed a weakness of the social courts in that at least one judge was almost always absent and those who were around gave the common reason that the absentee could be trying to make his/her living. Many decisions in social courts are delayed due to this. The services of the social courts three days a week are therefore often limited to those activities, which do not need the presence of all the judges.

Conformity with national and International norms

54The 1995 Constitution of the Federal Democratic Republic of Ethiopia ascertains the rights of women to affirmative measures in Article 35-3 as follows (1995:93). It follows that women have constitutional rights to take part in social activities like those done by elders of Tigray region. In view of may of the elders, the research team has interviewed, the absence of women in the council is simply due to their shyness or lack of skills to argue and convince others in public meetings and generally lack of experience in this regard. In most of the situations of the rural community, it is true that most women do not have any exposure to situations like the one being discussed here and may therefore, lack the necessary skills of dispute settlement in the council of village elders. There are variations among male elders themselves and some are not even capable of expressing in public what they have in mind. Therefore, there are individuals among men too who are week and women cannot be viewed differently in terms of individual talent of this nature. Practices that deprive women of the rights to participate in social and economic activities therefore fail to conform with the Constitution. International norms about women likewise assert women’s rights which CDR institutions fail toe observe simply due to following what is customary in the tradition.

Integration with the formal justice system

55This study has shown that there is already significant integration and collaboration between fact CDR institutions and the formal justice system as is evidenced in the practice by the Addi K’eyyih Wajirat Abbo-Gereb ‘elders’ council. In the districts of Raya and Wajirat CDR institutions in coordination with the police, administration and justice systems manage to settle disputes that are sometimes difficult for the formal justice systems to settle. This example therefore suggests that integration, is possible for the CDR institutions of the region with the formal justice system. The establishment of the ‘Abbo-Gereb’ elders’ council on a permanent basis in southern Tigray to work in cooperation with the police and administration of the District shows the existence of a correlation between CDR and formal justice systems.

56The CDR mechanisms seem to work on the basis of guaranteeing peace and harmony among the communities in which they are a part. The formal justice system on the other hand works on the principle of preventing crime by guaranteeing peace by pursuing criminals. For the traditional mechanisms punishing criminals is not the main goal; rather the aim is to bring the disputant parties into agreement by using non-coercive methods so that further conflict and intentions for revenge could not arise in the minds of litigants. Hence, since the systems are working on different principles (though the goals are protection of the rights, wealth and peace of the community); procedures they follow may differ and that may result in competing relations between the systems. Their practices may also lead to conflicting relations and this could be an impediment to integration.

Conclusions

57It can be observed from the survey that CDR institutions and mechanisms are activity functional in Tigray region. The public and the regional state’s formal justice system has already recognized the significant role played by the traditional systems and there are even instances where some district police offices have shown willingness to work in cooperation with village elders’ councils in some places. Dispute settlement processes, which are sometimes difficult for the institutionalized justice system may be easily resolved by elders’ councils in the region. In addition to this the period of time spent to settle disputes, the lasting peace and harmony between disputants after that, etc. are major features that helped the traditional systems to be acceptable by the public. The region’s administration office also recognized this and has even selected members of an Abbo Gereb elders’ council to work with the district police in resolving some disputes including murder cases-specially in border Weredas with Afar region.

58The social courts, which have been established in the Kebele administration offices seem to have been weakened due to the bad feeling most judges are having, (officials gain too much according to some judges).

59Because of lack of legal procedures that observe the customs, the formal justice system gives no regard for establishment of harmony and peace among people and there is therefore little compatibility between traditional and formal justice systems. There are instances of cases where formal courts’ decisions have been reversed by traditional dispute settlement mechanisms.

60The legal procedures and rules and principles working in the present formal justice systems of the region seem to have considerable regard for international norms, which are sometimes difficult to apply. Many communities lack practices that adhere to international norms notably regarding women’s rights or children’s rights, and it may be problematic to strictly apply the rules and legal procedures of this type. The option that remains for the communities to prevent crime and to keep public order is through alternative or traditional mechanisms. There is a wide gap between what the formal justice system does and that what the CDR institutions are applying in the region despite the efforts made by concerned institutions to narrow the it. Failure to observe the local customs and practices in the communities seems to have a significant part in the creation of the gap and incompatibility between the formal and customary systems of dispute settlement in the Region.

Recommendations

61Given the role CDR institutions are playing it is important that the already existing links with the formal justice systems should be formalised in order to contribute to each other’s operation in the communities. The Abbo-Gereb is already filling in the gap in the formal justice system, therefore institutional support for the elders, who invest energy and time on the occasions of dispute settlement should be given adequate recognition so that the significant role they are playing could be maintained. Impediments such as lack of meeting places, communication problems are so serious that elders dealing with murder cases are observed holding meetings in the open air where there is not even the shade of trees and this has greatly affected the council or it seems so as it can be observed in the complaints the elders have (in the interviews the team had) and in the actual situation in which they made a meeting in the presence of the researchers.

62The example of the role the Shari’a court and the Orthodox Church elders are playing can be taken as a good mode for dispute settlement mechanism development in the region; the role played by these institutions is significant since they have an influential position and recognition by the public. Except for the prohibition of women by the Shari’a court, preventing women who have presented their case to the formal court from coming back to the Shari’a court and the loss of courage that follows, the court is playing a considerable role specially in allotting allowances for children denied benefits by fathers due to several reasons.

63The Orthodox Church court exists only nominally. There are judges and the Church can provide the employees anything needed. Despite the influential position the church has, the court is not working or not giving services that are mentioned in the Qale Awadi the written law of the Ethiopian Orthodox Church. Therefore, the acceptance the church has and its institutional organization could be better exploited to fulfil the needs of dispute settlement in combination with that of the elder’s council in a more formalized way.

64The role of the social courts has already been recognized and disputes are settled by them. Nevertheless, there is a feeling among the social court judges that they are not paid for the services they are giving. Although the judges realize that they are giving voluntary services, the recent promotion of the Kebele administration officials to much higher ranks and the payment they obtain for a relatively similar services they are giving has created a serious discomfort in the minds of the social court judges. It is thus necessary to narrow the gap in benefits obtained by giving voluntary services in the social courts and that gained by employment in Kebele administrative offices, which are partly assigned to play political roles of the leading party in the government.

List of Informants

No.

Name

Status

1

Ato Luel Kahsay

LLM-Vice head of Justice Bureau of Tigray.

2

Ato Haftu Gulbetie

LLB-Justice Bureau Department of Capacity Building.

3

Ato Abreha Wedaj

LLB-Justice Bureau Acting head of prosecutor Dep.

4

Ato Zeamonuel Legesse

BA-Tigray police commission commissioner.

5

Ato Hile Abreha LLM

Vice-President of Tigray Supreme Court.

6

Ato Zemenfeskidus Belay

LLB- Department Head of Labour Dispute Affairs in the office of Labour and Social Affairs.

7

Aba Misgna Weldu

Mekelle Lideta Mariam Catholic Church Komis.

8

Ato Gaim W/Giorgies

LLB-Attorney at Law, Former president Tigray Supreme court.

9

W/ro Aster

Tigray women’s Association V/Chairwomen.

10

Haji Mohamed Nurhusien

Shari’a Court Judge at Mekelle Zone.

11

Haleka Hindeya

90, Elder – A person with a lot of experience of Elders counsel Shimgilina.

12

Ato Hilmria Gebremedhin

57 Merchant with good skills of arbitration and mediation having good reputation.

13

Kesis Enquibahiri Mesele

Staff of the Orthodox Church office in the region.

14

Ato Gessesse Faris,

74, Retired teacher with educational administration experience.

15

Mergeta Assfaw G/Mariam

Tigray Orthodox Church, Head of the Archives section.

16

Ato Atakeltie G/Hiwot

62, Retired working as a judge in kebele social court.

17

SergeantAbebe Ashebir-55

Retired police official, social court Judge Mekelle.

18

Ato Wereta Wekele

Retired police official, social court Judge Mekelle.

19

Sergent Kebede Girmay

Retired police official, social court Judge Mekelle.

20

Araba Abdulla,

Graduate student at Addis Ababa University, Dept. of Sociology

21

Aleqa Nahu Sennay-

Priest and teacher at the traditional school of mak’elie St. Mary’s Church.

Notes

178 According to Ato Zemenfeskidus Belay Department Head of Labour Dispute Affairs in the Office of Labour and Social Affairs.

179 Interviews of Council of Elders, informants Ato Hailu Hagezom (38) and Ato Fitsum (42).

180 Informants Hagos Kalayi (63) Hailu Meresa (70) who are serving as Abbo Gereb currently.

181 On the Tigray side the Abbo Gereb members were: Ato Hagos Kalay, Ato Hailu Meressa, Ato Tammene W/Girogis, Ato Wolde Kiros Gebru, Ato Araya Kahisay, other participants were a village elder Ato Tekle Gedle, and a priest. On the Afar side Abbo Gereb members were: Ato Mohammed Ghada, Ato Bhasir. Other participants were Afar village elders: Sinduh Mussa, Sheikh Arab Waliyu, Ato Ali Herrikh, Ato Mussa Berhe, Ahimed Salah, and an Afar Kebele Administration chairman Ato Ahmed Ali.

182 This case was narrated by Ato Seyoum Mahilu, from the Irob Community of Northern Tigray who was involved as a member of a council of elders

© Centre français des études éthiopiennes, 2008

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