Version classiqueVersion mobile
OpenEdition Books

Grass-roots Justice in Ethiopia

 | 
Alula Pankhurst
, 
Getachew Assefa

Regional Case Studies

10. Customary Dispute Resolution in Addis Ababa, with Reference to Yeka Kifle Ketema

Sebsib Belay

Texte intégral

Profile of the region and area

1Addis Ababa was established in 1886 by Emperor Menelik II and Empress Taitu as the country’s capital. Most of its built up area falls within the altitude range of 2200 m to 2500 m above sea level, the northernmost part of the city is about 3000m. Entoto Hills to the North, Mounts Wechecha and Furi to the West and Southwest and Yerer Mountain in the East and South encircle Addis Ababa. According to the Population and Housing Census of 1994, the population was over two million and was projected to be over three million in 2007. However, given very rapid urban growth in the past decade it is generally believe that the census carried out in 2007 will reveal significantly higher figures. The City Government Administration of Addis Ababa divided Addis Ababa into ten Kifle ketemas or Administrative Divisions and 100 kebeles.

2In the city of Addis Ababa according to the Federal Police Commission types of crimes recorded in included 9572 cases of intentional/non-intentional homicide, 7007 attempted homicide, 8583 cases of robbery, 44213 cases of theft, 119037 cases of assault, 9731 cases of embezzlement, 8046 cases of fraud, 3121 cases of rape, 86132 cases of rule breaking, and 88565 cases of other crimes in 2002-3 (CSA, 2004: 377).

3Yeka Kifle ketema where the research was carried out is situated in the northern part of Addis Ababa. The Kifle ketema has a total area of about 128 km2 and comprised 11 urban kebeles and peasant associations. Based on the results of the National Population and Housing Census of 1994, the total projected population of the Yeka Kifle ketema in 2004 was estimated to be over 260,000 people. There is a slight predominance of females (53.11%) over males (46.89%). There is a substantial variation of population density among 11 kebeles and PAs. The ethnic composition of the Kifle ketema is diverse including Amara, Oromo, Tigraway, Sebatbet Gurage, Sodo Gurage, Silte, Kembata, Wolayta and others. With regard to mother tongue, most residents are Amharic speakers. The majority of the inhabitants are Orthodox Christians, although there are also Muslims, Protestants, Catholics, traditional believers and others (CSA, 1995: 59-61).

Customary Dispute Resolution Cases

4Three cases are presented below. One is a criminal case resulting from a fight between youths who were friends. The two others are civil disputes. One concerns a marital dispute that involves a woman’s appeal for divorce, while other relates to a border dispute between neighbours one of whom encroached on the land of the other.

Case One: Fight between two football supporters and the role of their families and elders

5Two young close friends and neighbours supporting different football teams had a fight after Manchester United defeated Arsenal in the cup final. In the ensuing fight the Manchester supporter was injured and lost two teeth. He appealed to the police for the case to be sent to court. The respective family members of the two youths and a respected elder took the initiative in intervening before the investigating policeman presented the case to one of the first instance courts in the Kifle ketema. When the elders took initiative serve as ‘informal judges’, the injured requested that the dispute be considered by customary means. The elders met with the two litigants and managed to convince them to resolve their dispute through patience, and advice about the paramount importance of peace and order preached by a priest who was the chairman of the elders. The aggressor was made to pay all medical and other expenses, including reparation for physical injuries and psychological disturbances and was made to apologise. In addition, a sheep was bought and presented to the harmed party’s family to be slaughtered as compensation.

Case Two: Marital Dispute; a woman appeals for divorce

  • 183 Some people call such decisions ‘yewiha fird,’ literally ‘justice of water’ meaning unbiased decisi (...)

6The couple had been living together for decade. He had a lucrative position in a government office as a financial officer and she was a student in a high school. However, their respective family members did not like one another. He sent elders as go-betweens in order to request her family for her hand in marriage and to fix the wedding day if her parents were willing. However, her family refused. Therefore, the couple agrees to a pretend abduction and sent a mediator once again for kin-negotiations. He was successful and the couple had a marriage ceremony. However she had two miscarriages and was unable to have children; her husband brought his nephew to live with them; however, relations between the nephew and the wife were not good and he would tell lies about her to his uncle. On one occasion she beat him and he responded saying ‘had you been my mother; you would not have beaten me very severely.’ She tried to raise the matter with her husband but they could not reach a consensus. On one occasion when the boy’s mother came to visit she and the wife dressed up and went to town coming back late afternoon. The husband got upset and put his wife’s clothes in a cupboard, and her beloved mother’s photograph into fire. At this point she left the house, and appealed to elders from both sexes in their social networks for divorce. However, the husband refused her request for divorce. Her neger abbat (‘representative’) appealed to the elders in the living area. Through patience and repeated attempts by peacemakers chaired by respected priest, the couple resolved the dispute and the husband bought a pair of clothes, earrings and rings as reparation for his serious mistakes, based on the peacemakers’ decisions183 and the couple started living ‘peacefully’.

Case Three: Boundary Dispute

7One of the ‘informal judges’ narrated: ‘People who were born, brought up and started farming in rural areas migrated to big cities for various reasons. These individuals are mostly settled away from the centre of the city where they can hold large plots of land for residences and other purposes. In our locality, two rural-based dwellers live in a neighbourhood and hold relatively large plots of land. These landholders possess plots that have only land use bills (receipts obtained for paying urban land use tax) but they are not held legally. The two neighbouring residents quarrelled, on the grounds that one of them trespassed onto 5 meters of his neighbour’s land and fenced his new land holding with bricks. The victim, therefore, sent his father confessor in order to act as a go-between. The trespasser refused to return to his original boundary. The victim once again sent the trespasser’s father confessor in order to convince the intruder to pull down the wall. The trespasser, in would not listen and the victim got upset and strolled around the wall to give a last warning to the trespasser to pull down the wall. One day, the victim came across the trespasser and gave him a warning, accompanied with a menace. After few days, the victim changed his mind and decided to appeal to the kebele social court. At that time, the trespasser sent the victim’s father confessor in his turn to the victim as a go-between so that the dispute could be resolved through shemgiilnna, literally ‘eldering’ meaning through the mediation of elders. The father confessors from either side, together with three other persons from the neighbourhood succeeded in resolving the dispute without any reparation.

Description of the CDR Process

8Some ethnic groups in Ethiopia have specific terms in their respective cultures in order to express different traditional dispute resolution institutions. Even though the city can be envisaged as small Ethiopia, there is no uniform and specific term even to express the same type of civil, criminal, or commercial cases because different types of such cases that may be categorized under one major dispute type. The CDR is generally referred to as shimgilinna literally ‘elderling’ which emphasises the role of the elders in the process.

Jurisdiction

9Regarding jurisdiction one of the elders involved in litigation in his, 60’s stated, ‘Such mechanisms are used to resolve disputes between family members or husband and wife, between neighbouring residents, between dwellers of different kebeles and disputes at a village level. So far I have judged informally about seven cases and served as chairman and as secretary of the dispute resolution institutions at different times of which there was only one criminal case was resolved in CDR.’ In addition, all residents from all walks of life are eligible for services. In fact, he stated confidently, ‘there is no one-who is actually excluded from the CDR service.’ He also argued that there was no specification regarding amounts of money involved. He concluded: ‘We do not ‘judge’ serious civil, and criminal cases which involved a lot of money’.

Parties’ Degree of Freedom

10The participation of all the parties in CDR is relatively a voluntary service. However the parties are not bound to participate and are not bound by the process and outcome. One of disputants or both of them may not want to resolve the dispute through CDR. However, concerned and dedicated elderly residents usually interfere to try to settle the dispute. Firstly, these elders try hard to get affirmative response from the disputants about their willingness to participate. The ‘judges’ give appointment once or twice or three times till the issue becomes smooth and to make the disputants think about it through time. As far as possible, the ‘judges’ calmly reiterate the usefulness of peace, bad sides of crime, bad aspect of enmity, the value of forgiveness in front of God, the repercussions of revenge, wickedness of sin, value of submissiveness and forgiving one who does wrong to some one in front of God, and generally the necessity of peace in social life. In addition, the ‘judges’ emphasise the repercussions of engagement in disputes such as refusal to help and support the reluctant party at the time of happiness and hardship in social life. Litigants may also come under social pressure to agree to take part in CDR.

11Once the elders have obtained the consent of both parties to participate, they go first together to one party and then to other party in order to obtain first-hand information. The guilty party knowing that the issue is under consideration and that the formal system may make him accountable and decide against him and if he regrets his action and does not want to be taken in front of law court; he may request elders for their CDR service.

Link with Traditional Institutions

12The CDR is linked to traditional structures or institutions of the community or society in question. The CDR is mostly related to indigenous institutions such as iddir and mehaber., Though the primary function of these social institutions is not dispute settlement they can serve as means for referring cases to reinforce both disputing parties to agree to participate and to be bound by the CDR process. Moreover, the same institutions can serve as fora for apology, as contexts for creating sympathy to each other, as effective enforcement mechanisms for making the parties comply with the informal judges’ decisions and to present candidates for serving as informal judges.

Structure of the Institution/System

13There is a hierarchy within the CDR institution. Whatever the official rules, beliefs, and values of the institution the Chairman, the Secretary, and two or more persons in the CDR have their own ideas and develop their own informal structure within the larger formal structure of the institutionalised justice system.

Composition and characteristics of the shimagiles

14The elders often include a respected priest who is a member of an Orthodox church in the area together with at least two or at most six other elders. Religious leaders may give benediction to the process and to quote relevant verses in the Bible

15This type of the CDR institution in which disputes are resolved traditionally requires various types of skills or qualifications in order to perform the CDR service capably. One informant stated that there are usually one priest, secretary and member(s) in the CDR process. These members of the CDR institution, as ‘informal judges’ must have the required skills and qualifications to become eligible ‘informal judges’ and deliver the CDR service effectively and efficiently. Regarding who can taken on the role the same informant stated: “Those people in the area who had dispute resolution experiences, are capable of convincing disputants, of bringing peace and let it rule over others, and generally those residents who are up to the standards of the criteria of the community for appointing ‘informal judges’. Therefore, those judges are capable of providing the CDR service.” The appointment process of ‘informal judges’ is situational or contextual, although certain basic skills for handling or resolving disputes are required.

Place and Time of the CDR

16The members of the CDR institution usually meet in a compound of Orthodox Christian Churches or mosque compound or under a large sycamore tree. Sometimes though it may take place in a private house of litigants, their families or neighbours. CDR is initiated when disputes arise and the sessions may take place with gaps partly since getting the parties and mediators together may be difficult given work constraints and to give time for the parties to reconsider and begin to come to terms.

17The CDR meetings often are adjourned and the process takes several sessions with time gaps in between. For instance in the case of the youth who fought over the football the elders met them three times over a period of two months.

Description of the CDR process

Types of Evidence

18Peacemakers in the locality usually try to check all available evidence from different witnesses who have something to say about a case under consideration. Disputants must present detailed evidence including of injuries and if they have witnesses, they have to present them. The peacemakers assess and evaluate the evidence by posing various questions and through probing both disputants and their witnesses. The ‘judges’ then discuss the aspects of the presented evidence among themselves in order to reach at the ‘truth’ and make decision(s) on the dispute under consideration. At times, if the ‘informal judges’ find it useful to refer to precedence to assess the evidence, then they do so. Witnesses are just called by one of ‘judges’ without a written formal letter, and the witness is expected to appear in person in front of the peacemakers.

Traditional Beliefs

19There are blessings both at the outset and at the end of the CDR session. During the blessings, the priest usually asks for God’s favour and protection, leads prayer asking for a good outcome and things that bring happiness before and after the CDR process. The peacemakers in the locality mostly perform this CDR in the light of church-based laws and higge-libbuna, meaning law-conscience.

Decision Making Process

20In some cases if the elders feel that the offender has violated the laws their decisions include a financial penalty — a party who breaks the decision is to pays five hundred birr to the government and two hundred and fifty birr to the disadvantaged party.

21The peacemakers also often require compensation by the ‘offender’; sometimes this may take the form of a sheep as ‘blood reparation’. Sometimes the injured party may be reluctant to receive the compensation on the grounds that it may not be good for their reputation. The elders often aim to broker a compromise by mutual consensus between the disputing parties

Announcement/Record

22In some cases the decisions are given orally; however, the secretary of the CDR team may also keep notes, keep files and case folders and read the decision to the litigants. The disputants are asked by the elders are whether they agree or not. If they reach at consensus on certain aspects of the dispute, then the disputants sign their agreement.

23The decision is usually announced by the Chairman of the CDR institution is written form. The Secretary of the CDR institution in the research area records the decision in an exercise book or other document. The record contains date, names of disputants, the peacemakers, types of dispute, an outline of the case, and decisions and remarks. The paper on which decisions are written is prepared in three copies. The original copy, the second one, and third copy is given to the victim, the wrongdoer, and to the Secretary of the CDR.

Possible Outcomes

24Among the outcomes there may be apology, reparation and the award of damages. In case the elders require an apology the wrongdoer must ask for an apology, and the victim, in turn, must express his willingness to accept the apology. The wrongdoer, for example, may say: ‘As I am the wrong-doer, you make apology to me in the name of the Almighty God.’ Reparation may include coverage of medical expenses, payment of some amount of money as reparation for physical injury or disability, providing a sheep to be slaughtered as a sacrifice for blood-reparation, and some other financial expenses related to the dispute and its consequences taking into account the wrong-doer’s economic status.

Enforcement Procedures

25Sanctions can be applied as a means of enforcement of the decision(s). These can include financial penalty and informal enforcement mechanisms. The disputants may appear in front of iddir members, and the iddir leaders may take the decision that the disputants may be removed from iddir membership if they fail to comply with the decision, and then no community member will participate at times of mourning, as well as happiness. Moreover, if the disputing parties intend to join other iddir or go to another place in the city, the iddir leaders will not give them a release letter from the iddir. If they request the kebele office for the release the elders may write a letter to the office which states that so-and-so are socially labelled as people who are bad to the community, and this may be included in the release paper.

Remuneration

26The forms of remuneration for those involved in the CDR can be in cash and/or in kind. The CDR institutions that are held at some places, for example, in the compounds of the Saint Trinity Church, Saint Giorgis Church, Saint Urael Church, Saint Estiphanos and others involve financial transaction as per diems for those peacemakers involved in the resolution process. Some other peacemakers are critical of this. As one of them put it: ‘Those ‘peacemakers’ who think in their belly and fail to give space for God’s words regarding dispute resolution usually receive a sum of money as per diem in order to ‘judge informally’ the married couples who are litigants in front of them. For such elders, especially those who are pensioners the CDR is a lucrative business.’ At the consensual resolution of a dispute the disputing parties (mostly the wrong-doer) may contribute money in order to invite the elders to have drinks which is said to ‘moisten their throat and to create favourable social environment’ so that the disputants can be reconciled.

Linkages with Formal System

27Informants noted that there are linkages with formal system of justice. This can help to reduce the work burden on the formal system, shorten time elapsed in judging case, prevent the creation of dissatisfaction. Members of the formal justice system or offices and police station offices sometimes recommend and refer some cases or disputes to the CDR institution to be resolved by elders in a neighbourhood. Litigants can therefore work through both systems of resolving disputes.

Evaluation of the CDR

Advantages of the CDR institution

28Positive aspects of the CDR include an emphasis on reaching a consensus and reconciliation with less of a concern for penalising the wrongdoer. The elder peacemakers stressed to following advantages: being able to resolve disputes peacefully, avoiding that the disputing parties develop negative attitudes toward each other in terms of penalty at the court, avoiding deep-rooted resentment/rancour, reducing the work burden on the police stations and first instance courts.

Disadvantages of the CDR institution

29The values held by those involved in CDR reflect those of the society and the dominant groups within them. Gender equality is a major issue. One of the elders admitted that the biblical view of women as inferior to men influenced the judicial process and decision-making process, particularly in marital disputes and the question of distribution of property on divorce. A women in her early 50’s has this to say:

30‘In our locality, women do not participate and have a say in the CDR because this is considered as work of men or it is not usual practice. Since time immemorial, CDR has never given chance to women to participate in the CDR process. If women got the chance to take part they could come up with noble ideas and opinions that could contribute toward resolving disputes successfully and fruitfully.’

31Concerns are sometimes expressed about corruption associated with CDR some parts of the city, especially in certain business-oriented disputes. However, elders interviewed were adamant that this does not happen.

Assessment of the CDR Institution

Conformity to national legislation and international norms

32As traditional beliefs (such as blessings and cursing) are involved in the process of CDR that may intrude into disputants’ right to liberty, and freedom of religion, belief and opinion. Litigants may come under social pressure to accept to participate in CDR. In the process of decision-making, how the decision is made, how consensus is reached, how compromise is reached, and how the third party makes the decision may contravene some privileges granted under the FDRE Constitution Articles 20 and 21, Article 26 on right to privacy, article 27 on freedom of religion, belief and opinion, notably insofar as oaths and swearing are used, Article 35 on the rights of women and article 36 on the rights of children especially in divorce cases.

Integration with the Formal Justice System

33There is already a degree of interaction between the two systems and some complimentary or division of labour. The CDR institution does not deal with very serious cases and often not cases involving large sums of money. Sometimes the courts or police may suggest that disputants take cases to CDR. At other times litigants may agree on CDR to avoid costs of the courts. When a victim has already approached the formal system the wrongdoer, relatives, neighbours or concerned elders may suggest CDR to avoid high punishments or imprisonment

34A greater integration of the CDR with the formal justice system could create opportunities for elders to make use of their social skills and find a fulfilling role in life. However, there may be impediments to greater integration notably since the ‘informal judges,’ are mainly interested in establishing reconciliation between litigants by creating an opportunity for amity rather than ‘justice’

Recommendations

35To enhance the integration of CDR with the formal justice system, the following suggestions are put forward:

  • The already existing positive links between the CDR and the formal justice system should be strengthened, the possibilities stated and those impediments and barriers to integration should be reconsidered in a broader view, together with commitments on the part of concerned officials to work shoulder-to-shoulder for effectiveness of the justice system of the country

  • The integration of the two systems should recognise the value of the CDR for maintaining peace and promoting reconciliation and harmony.

  • The integration of the CDR with formal justice system should enhance practical conditions for teaching-learning process and experience sharing through two-way perspective.

  • The integration should enable records on the case under litigation in one dispute resolution system serving as input for other if the case must be reconsidered or appealed at another level of the justice system in the country.

  • The integration with formal justice system should enable the selection, training and eligible placement of ‘the judges’ for the CDR service so that they work in collaboration with the formal system to resolve disputes.

  • The integration should create additional opportunities for work and good contexts for enhancing the role of the elderly in social life.

List of Informants

Name of Informant

Social Status

Place

Date of Interview

1

Ato Assefa

Ex-diplomat & pensioner

Ferensay Legasion

Jurte 3, 2004

2

Ato Desta

Pensioner

Kotebe

June 5, 2004

3

Ato Degefa

Pensioner

Gurara

June 11, 2004

4

Ato Baye

Pensioner

Luke PA

June 12, 2004

5

Ato Tegenu

Stonemason

Kotebe

June 13, 2004

6

Memre Getnet

Priest

Kotebe

June 15, 2004

7

Ato Gutta

Carpenter and bricklayer

Hanna Mariam

June 7, 2004

8

W/ro Marie

Teacher and housewife

Ferensay Legasion

June 7, 2004

9

Shambel Woubshet

Employee at a local NGO

Hanna Mariam

June 14, 2004

10

W/ro Abeba

Housewife and cleaner at a religious institute

Kotebe

June 14, 2004

Notes

183 Some people call such decisions ‘yewiha fird,’ literally ‘justice of water’ meaning unbiased decisions which reflect justice in essence from elders’ perspectives.

Auteur

© Centre français des études éthiopiennes, 2008

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