Table des matières
Alula Pankhurst et Getachew Assefa
Understanding Customary Dispute Resolution in Ethiopia- State and Customary Law in Ethiopia
- 1) The imperial sacred tradition in the pre-modern era
- 2) Modern secular nation-building laws under Emperor Haile Sellassie and the Derg
- 3) The post-modern ethnic federalist period under the EPRDF
- Customary Dispute Resolution in the Regions of Ethiopia
- Afar Region
- Judicial structures and institutions for conflict resolution
- CDR Procedures
- Inter-ethnic conflict resolution
- Amhara Region
- Types of CDR institutions in Amhara Region
- The shimagillé (elders)
- Judicial procedure
- Religious institutions and leaders
- Institutions for finding guilty persons and thieves
- Associations: socio-religious, funerary, migrant, and credit
- Beni-Shangul Gumuz Region
- Types of dispute resolution institutions
- Elders’ meetings
- Religious leaders
- Clan appointed mediators
- Layered institutions
- Bride compensation
- Reconciliation through ritual oath
- Inter-ethnic institutions
- Judicial procedure
- Gambella Region
- CDR among the Nuer
- Ruech wec (local courts)
- Ring Diversional rights
- Guk (Spiritual rights)
- CDR among the Anywaa
- CDR among the Majangir
- Harari Region
- Judicial procedure
- Oromia Region
- CDR institutions
- Gadaa age-graded assemblies
- Judicial Process
- Jarsa Biyya (elders’ assemblies)
- Judicial procedure
- Qallu (spirit-medium-based mediation)
- Judicial procedure
- Allo Arsi
- Inter-ethnic dispute resolution
- Somali Region
- CDR institutions
- Judicial procedures
- Southern Nations and Nationalities Peoples’ Region
- CDR institutions
- Gurage
- Judicial procedure
- Kambata
- Sidama
- Gedeo
- Wolayta
- Gamo
- The south-west
- Tigray Region
- Judicial procedure
- Interethnic conflict resolution
- Conclusion
- Social and legal structures
- Principles of organisation in CDR institutions
- Territory
- Kinship
- Spiritual authority
- Cursing
- Spear-blunting
- Swearing oaths
- Spirit-based dispute resolution
- Territory, kinship and spiritual authority
- Key concepts and culture areas
- Sir’at
- Sera/Seeraa
- Aadaa
- Gome
- Irq- araara (forgiveness and reconciliation)
- Restorative rituals
- Ostracism - social exclusion
- Judicial processes in Customary Dispute Resolution
- Initiation and institutions
- Judicial process and procedure
- Decision-making and settlement
- Types of dispute
- Homicide
- Terminologies and differences
- Meritorious, blood-wealth, bride-compensation and ghost marriage complexes
- The meritorious complex
- The blood wealth complex
- The bride-compensation complex
- The ghost marriage institution
- Inclusion and exclusion: Gerontocratic power, gender, age and marginalised status
- Gender, age and minority status
- Women and gender
- Children’s involvement and rights
- Minority occupational groups’ involvement and rights
- Transformations of CDR institutions
- The use of writing and money
- Religious influences
- State influences
- Modernising customary dispute resolution
- The potential for a way forward
Dominik Kohlhagen
State Law and Local Law in Sub-Saharan AfricaRegional Case Studies
Getachew Talachew et Shimelis Habtewold
1. Customary Dispute Resolution in Afar Society- Profile of the Region
- Judicial structures and conflict resolution
- The Maro Institution
- Composition and Jurisdiction of Maro
- Procedures of Dispute Resolution
- Procedures of Resolution of Intra-clan disputes
- Procedures applied to resolve inter-clan disputes
- Substantive rules applied and remedies available under the Maro
- Execution of the decision
- Assessment of Maro
- The strength of the Maro
- Weakness of the Maro
- Conformity of the Maro with national and international norms
- Integrations of Maro with formal justice systems
- Case 1
- Case 2
- Conclusion and Recommendations
- List of Informants
Melaku Abate et Wubishet Shiferaw
2. Customary Dispute Resolution in Amhara Region: The Case of Wofa Legesse in North Shewa- Profile of the Region and the selected study area
- Dispute resolution in Amhara Region
- Type of disputes
- How disputes are brought for resolution
- The providers and participants of CDR services
- The CDR mechanisms, processes, characteristics and rules
- The remedies
- The appeal mechanism
- The making and enforcement of decisions
- The case study: Wofa Legesse
- Arrival in Seget
- The Gubae Council
- Obtaining Justice
- Types of Cases
- Some Case Examples
- Ato Befikadu
- W/ro Mashila Sime
- Ato Getu
- W/ro Aberash
- Observations of the elder Agafari, Ato Bayu Mengiste
- Assessment of the CDR institution
- Strengths of the wofa institution
- Weaknesses of the wofa institution
- Links to the formal justice system
- Potential for Integration with the Formal Justice System
- List of Informants
Bayisa Besie et Lemessa Demie
3. Customary Dispute Resolution in Beni-Shangul Gumuz with Emphasis on Shinasha Society- Profile of the Region
- Customary dispute resolution in the region
- Mao and Komo
- Berta
- Gumuz
- CDR mechanisms in Shinasha society
- General background
- Traditional Dispute resolution institutions in Shinasha
- Types of Disputes and Mechanisms for Their Resolution
- Property and money claims
- Disputes arising from inheritance
- Marriage Disputes
- Homicide and Incest
- Evaluation of CDR in Shinasha society. Absence of a right to appeal
- Lack of supportive and strengthening measures from the government
- Weak methods of investigation
- Conclusion
- List of Informants
Dereje Feyissa
4. Customary Dispute Resolution Institutions: The Case of the Nuer of the Gambella Region- Profile of Gambella Region
- General observations of CDR among the Nuer
- Cuong - The normative order
- The segmentary opposition as a dispute resolution mechanism
- Ad hoc community leaders
- Ruec-wec
- Gaat tutni
- Kaar (Lam)
- Bok
- Ring (Diversional right)
- Wut ghok (Jang Win Duar Chany)
- Kuaar muon (the ‘Leopard Chief)
- Wiw
- Guk (Spiritual Right)
- Guk Kuoth (prophets)
- Kiir (spirit possessed mediums)
- Ji Wall (magicians)
- Gurtong
- Description and analysis of the institution of Kuaar Muon
- The Kuaar Muon and the procedure of settling a homicide dispute
- Kuaar Muon and Settlement of Minor Disputes
- Evaluation and comparison with the formal institutions and laws
- Linkages with the formal institutions: The institutions of Bok and the Sefer Shum
- Conformity with the Legal Norms
- Overall Advantages and Disadvantages
- Limitations of the CDR
- The functionality of violence in the reproduction of the political system
- The basis of law is force (self-help)
- The customary law also involves elements of asymmetry
- Scarcity of legal experts (mediators) such as the Kuaar Muon’s
- Conclusion and recommendations
Biruk Haile et Jira Mekonnen
5. Customary Dispute Resolution in Harar- Profile of the Region
- Harari Customary Institutions: An Overview
- The Afocha Institution
- Mechanims for Disputes Settlement under the Afocha
- The procedure of settlement of Disputes
- CDR institutions in Argobba
- Settlement of Disputes
- The Institution of Damina
- Evaluation of the CDR institutions
- The Afocha institution
- The Damina institution
- Integration of CDR mechanisms in Harar with the Formal Justice System
- Recommendations
- List of Informants
Areba Abdella et Berhanu Amenew
6. Customary Dispute Resolution Institutions in Oromia Region: The Case of Jaarsa Biyyaa- Profile of the Region
- Institutions of Customary Dispute Settlement in Oromia Region: An Overview
- The Jaarsa Biyyaa institution
- The Qalluu Institution
- The Ateetee Institution
- Case Study: The Jaarsa Biyyaa
- Jurisdiction of Jaarsa Biyyaa tribunals
- Substantive rules applied by the Jaarsa Biyyaa Institution
- The Case Processing before the Jaarsa Biyyaa
- The Gumaa Case proceedings. Meaning
- Classification of Gumaa
- Gumaa Adii
- Gumaa Barruu
- Gumaa Guuratii
- Enforcement of the Decisions of the Jaarsa Biyyaa
- Evaluation of the Jaasa Biyyaa Institution. Participation and protection of vulnerable groups
- Linkages with the formal institutions
- Conformity with the official legal norms
- List of Informants
Mohammed Mealin Seid et Zewdie Jotte
7. Customary Dispute Resolution in the Somali State of Ethiopia: An Overview- Profile of the Region
- CDR in the Somali Regional State
- Description of CDR System in the Regional State
- The Dispute Resolution Process and its Outcomes
- The Xeerdarood
- The Odayaal
- The Dispute Settlement Process of the Odayaal
- Mechanisms of Enforcing the Decisions of the Odayaal
- The Future of the Odayaal as a Dispute Resolution Mechanism
- Accountability of the Odayaal
- Classification of cases before the Odayaal
- Existing Links between the CDR and the Formal System
- Advantages and Disadvantages of the CDR System
- CDR System and its impact on Human Rights
- Conclusion
- List of Informants
Ayke Asfaw et Mekonnen Feleke
8. Customary Dispute Resolution in the SNNPRS: The Case of Sidama- Profile of the Region
- Customary Dispute Resolution Institutions in the Region
- Customary informal institutions
- Ritual Practices
- Public gatherings
- Semi-formal institutions
- Sidama Customary Dispute Resolution
- The Gudumaale institution
- Procedures and process
- Use of rules and enforcement
- Neighborhoods Elders’ Council
- Examples of dispute cases
- Case 1: unintentional homicide in car accident
- Case 2: Failure to repay the debt of a sack of maize
- Assessment of the Sidama CDR institutions
- Recommendations
- List of informants
Shimelis Gizaw et Taddese Gessese
9. Customary Dispute Resolution in Tigray Region: Case Studies from Three Districts- Profile of the Region
- CDR institutions
- Linkages with existing social and cultural institutions
- Use of CDR in the Region
- The Abbo Gereb Institution of Wajirat
- Case 1. Protection of Grazing area/land at Addi K’eyeh
- Case 2: From Demer to Abbo Gereb: Murder case between Afar and Tigray at Isira Amba
- Case 3: The Abbo Gereb in Southern Tigray: Cattle raiding and murder between the Raya and Afar
- Case 4: Reconciliation after divorce
- Case 5: Reconciliation after a car accident
- Case 6: Revenge twenty years later for compensation not paid
- Case 7: Boundary dispute with reconciliation under way
- Critical Assessment of the CDR institutions
- Strengths
- Weaknesses
- Conformity with national and International norms
- Integration with the formal justice system
- Conclusions
- Recommendations
- List of Informants
Sebsib Belay
10. Customary Dispute Resolution in Addis Ababa, with Reference to Yeka Kifle Ketema- Profile of the region and area
- Customary Dispute Resolution Cases
- Case One: Fight between two football supporters and the role of their families and elders
- Case Two: Marital Dispute; a woman appeals for divorce
- Case Three: Boundary Dispute
- Description of the CDR Process
- Jurisdiction
- Parties’ Degree of Freedom
- Link with Traditional Institutions
- Structure of the Institution/System
- Composition and characteristics of the shimagiles
- Place and Time of the CDR
- Description of the CDR process
- Types of Evidence
- Traditional Beliefs
- Decision Making Process
- Announcement/Record
- Possible Outcomes
- Enforcement Procedures
- Remuneration
- Linkages with Formal System
- Evaluation of the CDR
- Advantages of the CDR institution
- Disadvantages of the CDR institution
- Assessment of the CDR Institution
- Conformity to national legislation and international norms
- Integration with the Formal Justice System
- Recommendations
- List of Informants
Mintiwab Zelelew et Mellese Madda
11. Alternative Commercial Dispute Resolution Mechanisms in Addis Ababa: The Case of Merkato- Profile of the Area
- Types of Dispute
- Setting the CDR system in motion
- The Dispute Settlement procedures
- Links to the formal and informal justice system
- Attractions of the Shimgilinna System
- Arbitration
- Providers of Arbitration Services
- Conformity with the Formal Justice System
- Conclusion
- Recommendations
- List of Informants
Getachew Assefa et Alula Pankhurst
Facing the Challenges of Customary Dispute Resolution: Conclusion and Recommendations- Conclusion
- Major Characteristics of Customary Dispute Resolution
- 1. Voluntary and consensual proceedings
- 2. Litigants’ involvement in selection of local mediators
- 3. Locally circumscribed constituency
- 4. Public participation
- 5. Accepted and flexible norms, rules and values
- 6. Group-based responsibility
- 7. Negotiation and compromise
- 8. Forgiveness and compensation
- 9. Restoration and maintenance of peaceful coexistence
- 10. Dynamism and responsiveness to change
- Advantages of Customary Dispute Resolution
- 1. Accessibility
- 2. Timeliness
- 3. Limited cost
- 4. Legitimacy and appropriateness
- 5. Restorative capacity
- 6. Participatory procedures
- 7. Predictable processes and outcomes
- 8. Enforceable community-based sanctions
- 9. Avoidance of coercive measures
- 10. Building community cohesion
- Limitations of Customary Dispute Resolution
- 1. Inequitability
- 2. Non compliance with the human rights standards
- 3. Undermining of individual rights
- 4. Inability to guarantee procedural fairness
- 5. Lack of uniformity
- Coexistence and collaboration without mutual recognition
- Recommendations
- 1. Re-thinking Constitutional and legal choices regarding customary laws and courts
- 2. Building institutional linkages between the formal and CDR systems
- 3. Strengthening and supporting acceptable CDR Justice Systems
- 4. Developing relationships between actors in the formal justice and CDR systems
- 5. Supervising and monitoring the performance of CDR systems in key areas
- 6. Encouraging reform of CDR institutions notably regarding gender, minorities and harmful customs
- 7. Promoting the writing down and codification of CDR institutions
- 8. Assessing CDR institutions in the country through further research
- 9. Establishing pilot collaboration projects for potential replication and upscaling
- 10. Sharing experiences with other countries on reconciling state law and CDR
- The challenge of Decentralisation: Ethiopia at justice cross-roads