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Grass-roots Justice in Ethiopia

 | 
Alula Pankhurst
, 
Getachew Assefa

Regional Case Studies

1. Customary Dispute Resolution in Afar Society

Getachew Talachew et Shimelis Habtewold

Texte intégral

Profile of the Region

  • 89 We are grateful for corrections and additional information provided by François Piguet, based in pa (...)
  • 90 The official figures used by DPPC in 2002, derived from population census, are the following: total (...)

1Afar Regional States located in the Northeast of Ethiopia, is structured into 5 zones and 29 wereda and 339 kebele. Afar land, comprising about 100,860 sq. km, stretches from the Middle Awash Valley in the south to the coastal depression of the Red Sea in the North89. The Afar also live in the northern part of Djibouti and in the costal region in Eritrea south of the Bori peninsula. Located in a triangle of low land covering the Awash valley and the Danakil depression, the Afar land has been divided by the Djibouti and the Eritrean border. The boundaries of Afar are in the north with Eritrea and Tigray, in the south with Oromia, in the east Djibouti and Somali Region, and in the west Amhara. The Afar people number over one million;90 they are predominantly nomadic and the majority is still practicing ‘transhumant pastoralism’ for subsistence. In the Awsa territory in the lower Awash Valley the Afar have long been settled and more recently around irrigated agriculture schemes along the middle Awash.

2Despite their relatively small numbers in Ethiopia, they are of some importance because of their location between the highlands and the Red Sea. The Afar are fragmented among clans, and still smaller divisions and are characterized by a distinction between noble and commoner groups. The Afar are mainly referred as Danakil, Adal, Udali (Ood Ali), and Talitale, but invariably speak of themselves as Afar. Only outsiders and non-Afar use the alternative names. Danakil is their Arabic name derived from a tribe name, Adal is an Amharic name, Udali a Somali term and Talitale a derogatory name given by neighbouring villagers (I. Lewis, 1955:155).

3The Afar are Eastern Cushitic speakers of the Horn of Africa like the Saho, Somali and Oromo. These people are closely related and are believed once to have made up of a single speech community in the southern Ethiopia and Kenya (H. Lewis, 1966:39). They are believed to have occupied their present territory as a result of a continuous north and eastward movements of the Cushitic speakers from southern Ethiopia and Northern Kenya. The Afar and the Saho were the forerunners of the movements, followed by the Somali sometimes later. The Oromo began their expansion during 16th century.

  • 91 An Afar belongs first and foremost to an extended family (bura) composed of three to four generatio (...)

4Afar society is segmentary organised according to extended families, lineages, and clans91 that determine an individual’s social relationships. Individuals are members of their fathers’ groups in a patrilineal system of filiation with a preferred cross-cousins marriage (absuma) and priority marriage with the father’s sister daughter. Such traditional marriage has the advantage of creating strong linkages between two clans over two generations. Each level of articulation in the social structure (extended family, lineage, clan) establishes divisions, conflict and competition, and also rights and obligations; it is the centre of solidarity and rivalry that go beyond individual animosities. The values prevalent in this type of society can be summarised in two fundamental principals: honour and egalitarianism. Honour involves the defence of one’s name against an outsider and women’s virginity before marriage therefore assumes a fundamental importance.

5Above the clan structure and their confederations Afar society has developed a hierarchical political structure known as sultanates related to a precise territory. In Ethiopia, the sultanate of Awsa whose centre was located in Assaita was created in the seventeenth century, when the Moodayto confederation known as Assaimara imposed itself upon the theocratic power of the imams, who has fled to Awsa after the fall of Harar. The sultan (Amoyta) remained in power until 1974 and came back briefly to power after the end of the Derg up to 1994. Even without an effective political role, the Amoyta still has a strong influence within the Afar society. Traditionally, the Amoyta used to preside over an effective juridical machine, supported by the sanction of his army (I. Lewis 1955:166). For Awsa and its peripheries, he had a vital role in conflict resolution.

Judicial structures and conflict resolution

6Customary dispute resolution in Afar involves elders and clans leaders to solve minor disputes in the context of Afar traditional law (mada’a). The law is called afare when it concerns disputes within the Afar and adanle for those with outsiders. Islamic laws (Shari’a), is secondary to traditional law. Muslim judges (Kadi) are consulted only for civil affairs like marriage and divorce.

7Afar tribal law, the mada’a, varies from tribe to tribe and has complex rules. It is transmitted orally, and certain lineages are highly reputed for their knowledge of the mada'a. Prior cases set precedent and are integrated into the mada’a. In the event of major litigation or of a previously unheard-of-case or when the various clan leaders have been unable to impose their judgement on the litigants, an appeal is made to the mada’a abba (the father of the law), most of the time a kedo abba chosen and backed by the elders for his knowledge of the mada’a. When appeal is made to him in a unheard-of-case, he gathers an assembly, the malla, which functions as a legal body to pronounce a brand-new judgement, which in turn will be incorporated into the mada’a.

8When the mada’a abba is not the kedo abba, and if a dispute is not settled, an assembly presided over by the kedo abba is called, which includes the disputants. A decision made at the court level would not have much chance of being enforced in tribal territory without the consent of the kedo abba, unless force were used, something which risks confrontation.

9Conflict resolution brings into play legal institutions and makes use of a body of orally transmitted jurisprudence. There is a separation between the judiciary (mada’a abba and malla), the legislative (kedo abba, mablo and maquar’a) and the executive (fima and fima abba). Consultation allows agreement to prevail and to avoid conflict that would result in division and violence.

The Maro Institution

10This discussion focuses on the use of Maro Institution to deal with criminal cases, in Zone 2, Dallol wereda.

Composition and Jurisdiction of Maro

  • 92 Jamaluddin A. Redo, The Afar Customary Law, (1973: 6).
  • 93 Mohammed Abdallah, Dallol wereda administrator and makaban.

11Maro is literally the session held to resolve conflict under a tree when dispute arises. A makaban (judge), the elders, the disputants, witnesses and observers sit in a circle from which the term maro derives.92 The makaban is a clan leader (at the confederation level) who knows the customs. Depending on the gravity of the case the number of Makaban may vary from one to ten. Besides the Makaban may select elders who have a good reputation within the community to assist him. Although many of those elected as elders are aged people, a young person who has good integrity and wins respect of his people may be elected to give such service. Women are excluded from giving such service as makaban and elders93 The makaban and elders are not required to have formal training. They give this service to their community without any remuneration. They get food and drink from the community if the disputes they entertain takes more than a day.

  • 94 Hussein Nur, Head of Dallol wereda capacity building office and makaban

12The Afar use the traditional dispute resolution mechanism to settle conflict that arises within the family, between neighbours, within a clan and between clans. The traditional institution of maro has jurisdiction over every dispute, with the exception of disputes relating to marriage, divorce and inheritance that are left to the Shari’a court mainly in urban area. The Afar use this institution to resolve criminal case that ranges from insult to homicide and every civil case without taking into account the amount of money the case involves.94

  • 95 Mohammed Tahiro, Vice-President of the Afar Regional State.
  • 96 Ali Hussein, Head of Civil and Criminal Affairs Department in the Justice Bureau of the Afar Region (...)

13The regular civil and criminal courts adjudicate cases arising between settlers coming from other parts of Ethiopia and working in the state and cases that involve those settlers and the Afar people95 About 90-95% of the Afar people use traditional system to resolve cases that arises between them.96

  • 97 Mohammed Tahiro, Vice-President of the Afar Regional State.

14The Afar use the traditional system to resolve their disputes because it is accessible, cheap, provides justice within a relatively short period of time. This system resolves minor cases like insults within a single day when the accused admits the charge. Although some complicated cases relating to homicide that result in conflict between clans sometimes takes up to ten years, the average dispute within a clan usually does not take more than six months to resolve. The makaban continues to serve as a judge indefinitely as long as he does not commit acts that erode the people’s confidence in him. He is expected to be impartial, to have good knowledge of customary law and precedence of traditional / customary decisions throughout his service.97

  • 98 Keloita Adoye, Makabam, Representative of the Modaitu and Dubti wereda adviser

15There are sub-clan chiefs called kedo aba who hear minor cases that arise within the sub-clan. About 15-20 sub-clans exist under each major clan. Except disputes like theft of camels and homicide, which come directly to the Makaban, all disputes that arise within the sub-clan and between the sub-clans are resolved by the kedo abba of the sub-clans. A disputant dissatisfied by the decision of the kedo abba can appeal to the Makaban. The decision of the makaban is final in cases arising within a specific clan.98

16Cases relating to disputes between different clans are brought to makaban of neutral clans, who resolve the issue with the help of elders selected from different clans. Disputes between different clans usually arise from conflict over grazing land and homicide. A clan dissatisfied with the decision of the makaban on such issues may appeal to the Sultan, who, after hearing the makaban and elders who participated in the decision and the aggrieved party, may maintain, modify or reverse the decision of the makaban. The decision of the Sultan is final and no appeal is available against it in the customary dispute resolution system.

  • 99 See Assefa Tewodros (1995).
  • 100 Halito Mohammed, Afar Regional State Police Commissioner

17In addition to the above kind of disputes arising between individuals of the same clan and conflicts between different Afar clans, occasionally conflict occurr with different ethnic groups bordering Afar land. These include Tigrean,99 Amhara, Oromo and Issa and are often over grazing land or homicide. This kind of conflict is usually resolved by establishing a committee of arbitrators composed of elders and government officials from both sides. This kind of committee was formed to resolve a recent dispute between the Afar and Amhara arising from murder of an Amhara boy by an Afar and the revenge murder of Afar women by an Amhara man.100

Procedures of Dispute Resolution

  • 101 Due to time constraints and the nature of maro we were unable to witness actual cases in practice.

18From the interviews with makabans and elders and documentary sources101 we learned the salient features of Afar law. This system has unwritten rules of procedure and does not make a distinction between the procedure applicable to civil cases and criminal cases. Procedures present slight difference depending on parties involved. Dispute may arise between members of a specific clan, between different clans and with members of other ethnic groups.

Procedures of Resolution of Intra-clan disputes

  • 102 Keloita Adoye, Makaban, Representative of Modaitu Clan and Advisor of Dubti Wereda

19Disputes that occur between members of a clan usually arise from minor conflicts such as insults, quarrels that may result in bodily injury. Conflict over grazing land and homicide rarely occurr between members of the same clan Any member of a clan who comes across conflict between two or more individuals has the moral obligation to try to reconcile the disputant. If they do not accept the proposal of reconciliation or the committed crime is grave, the injured party or any one who witnessed the occurrence of the dispute can bring the case to the kedo aba of the sub-clans or makaban of a clan depending on the gravity of the case.102

20The makaban to whom the disputant brings their case, selects elders who help him in deciding the case and fix the place and date of hearing the dispute in the maro. After the elders, disputants, witnesses, if any, and observers are gathered under a tree the makaban start the proceeding by requesting the disputant to bring a Habi, who guarantees the good behaviour and acceptance of the decision by the makaban.. The Habi may be a member of a family or sub-clan chiefs of the disputants.

  • 103 Mohammed Maisema, Makaban, Advisor of Zone 1 Council and Representative of the Afki’k-Ma’ad.

21After the disputants nominate their habisi the makaban gives the first chance to the plaintiff to explain his case. The plaintiff may personally explain his case or select a representative usually a chief of his clan to speak in his name. In Dubti area, zone 1, children below the age of 15, or persons who are considered not able to explain their case are not allowed to give testimony in front of the Maro, and must be represented by an elder from their clan or by her husband in a case of married woman.103 Unless he admits the allegation the defendant or his representative is given the chance to explain their version of the case after the plaintiff complete his presentation.

  • 104 Houmed Mohammed, Makaban and representative of Amharo-Sera kedo.

22After hearing both parties, the makaban may give the second chance for both parties to rebut, if possible, what their opponents say. If there are witnesses named by the plaintiff the makaban ask them to explain what they know about the dispute. If the witness is not present in the maro, the makaban orally order his appearance and adjourn the case for other time. The plaintiff or any one that hears such order informs the same to the witness. The witnesses appear in the maro by respecting the order of the makaban. The people of Afar take as their religious obligation to give testimony on what they witnessed and never hesitate to accomplish this duty.104

  • 105 Ibid.

23The defendant has the right to cross-examine the testimony of the plaintiff’s witness. If the defendant has witnesses, he has the right to present them. The plaintiff has the right to cross-examine the testimony of defendant’s witnesses. When there is no one who witnessed the disputed issue brought before the makaban and if the defendant denies the allegation, the makaban ask the defendant to take an oath. The defendant, usually makes an oath by putting his hand on the Koran. Before the defendant make an oath the makaban adjourns the case for another day to give a chance to family members and clan chiefs to convince the defendant to admit the allegation, if he did commit the offence. They may go to the extent of promising to make a contribution for the compensation paid to the injured party if the defendant is convicted by admitting the alleged fact. If the defendant insists that he is not guilty he takes an oath and is set free from the allegation.105

  • 106 Redo A. Jamaluddin, The Afar Customary Law, (1973: 7).

24If the defendant admits the allegation or after the oral evidence presented by the plaintiff or both parties are heard the makaban gives the chance to any volunteer who attended the proceeding summarize what was said.106 After summarizing the proceedings and the testimony of witnesses, they may give their opinion about the allegation. After all the above procedures, the Makabans and the elders discuss among themselves and agree on a decision, taking into consideration the manner in which the offence was committed, notably whether it was intentional, unintentional or negligent. Finally, the makabans pronounce the decision orally in public and the maro is declared closed by the blessing made by an elder.

25All the proceedings in maro are made in public without regard to the nature of the dispute and age of parties. This practice is one of the features that differentiates maro from procedures applicable in a formal court that, only in exceptional cases may prohibit a public hearing and conduct sessions in camera to protect private lives and public morality.

Procedures applied to resolve inter-clan disputes

26When conflict occurs between members of different clans the makaban of one of the disputant clans bring this case to the makaban of a neutral clan before the conflict can cause serious damage. Especially in the case of inter-clan homicide the makaban of the offender’s clan promptly brings the case to the makaban of the neutral clan to resolve the issue amicably before the clan of the deceased can seek revenge. Otherwise members of a deceased’s clan are duty bound to kill any member of the offender’s clan, including an innocent person in vengeance. A prominent personality whose death would hurt the clan of the offender is usually selected as a prey for vengeance.

27The makaban of the neutral clan, to whom the dispute is referred, announces to both parties the date of the hearing and orders both parties not to take measures that can harm the amicable resolution of the case. Both parties and members of the injured clan are expected to refrain from taking vengeance respecting the word of the Makaban. Depending on the gravity of the case the makaban may ask the help of other makabans of different (neutral) clans and select elders from different clans to resolve the dispute brought to him. Makabans of disputant clans represent their clans and explain their version of the disputed issue to the makabans of the neutral clan. After this point the dispute goes through procedures employed to resolve intra-clan disputes.

Substantive rules applied and remedies available under the Maro

  • 107 Redo A. Jamaluddin, The Afar Customary Law, 12/9/1973, page 1.

28The customary mada’a passes from generation to generation orally. The makaban and elders who are elected to resolve disputes are expected to know the mada’a and how they are applied. The late Fitwarari Yasin Mohammad made efforts put in written form what he collected from the memories of the Afar elders to preserve the mada’a for future generations.107 The unofficial collection of some principles of Afar mada’a enumerate as criminal act offences committed by Gaba, Arraaba and Sammo. It classified criminal acts in five types namely: 1) Crime on life; 2) Crime on body; 3) Crime on property, 4) Crime related to adultery and 5) Crime of insult. Besides, it contains vengeance and compensation as mode of remedies/penalties for offences committed. Disputes are resolved without reference to written rules and relying on their memories of previous decisions (precedences) and knowledge of Afar mada’a.

29Remedies available under the mada’a are vengeance and different amounts of compensation depending on the nature of the dispute. Vengeance is ordered in rare cases when a person who commits a murder disappears and the case is heard in his absence. In this exceptional situation the makaban may take a decision that allows members of clans of the deceased to take revenge but only against the murderer. Although there is no clear rule that allows capital punishment under the mada’a this kind of decision implicitly allows members of the deceased clan to kill the murderer.

30The clans of the offender usually accept such a decision to avoid vengeance on its other members. Although the unofficial collection of the mada’a uses goat kids as standard measures of compensation, which may be convertible to money or other livestock, elders stated that the standard used to measure the amount of compensation is cattle in most Afar areas. The maximum amount of compensation is 100 camels for intentional murder of a man. If this murdered person is a woman 50 camels are awarded as compensation. The least compensation is a cow for the offence of insult in Dubti area. The compensation given in cattle or camels is convertible to money in many areas.

  • 108 Ali Mirah, Amoyta of Awsa.

31The amount of compensation payable in case of bodily injury is fixed after examining parts of bodies of the injured. In cases where a scar is left on the body of the injured its length and depth is measured by using fingers to decide the amount of compensation. Mada’a has fixed penalties with a graduation for any kind of bleeding: the loss of one finger costs 10 silver coins, a thumb is considered as four fingers which costs 40 silver coins and a hand costs 500 silver coins. Cash payment has been introduced under the Italian occupation with a cow equivalent to 12 silver thalers.108

32The customary rules and procedures applied in resolution of the dispute are the same in all Afar land though the amount of compensation differs slightly from place to place. After fixing the amount of compensation the makaban may reduce such amount up to 10 percent to give a chance of reconciliation between the disputants. The injured party may collect only part of the compensation to re-establish good relations with the offender or his clan. This practice is widely accepted and indicates that the amount of compensation pronounced at the judgment is nominal and reducible to a lower amount for the sake of reconciliation.

Execution of the decision

33Unlike modern justice systems traditional dispute resolution usually lacks the machinery to enforce judgments unless the disputant voluntarily accepts the penalty imposed. In Afar society the family of the offender or his clan members, who guarantee the performance of the decision of the makaban persuade the offender to pay the compensation. In many cases clan members of the offender contribute money or cattle for payment of compensation if the offence committed was grave and a large amount of cattle is payable in compensation.

34The clan may ostracize a member if he refuses to respect the decision of the makaban. In the case of decisions regarding disputes between different clans the execution of the decision is guaranteed by fear of further killings between clans and the complete acceptance of its ruling by all parties concerned. This indicates that under this system social sanction is at the centre of decision enforcement mechanism and ostracization is very common.

35The Fima constitutes a social institution capable of providing sanctions to ensure peaceful outcomes together with the above maro, without referring to legal governmental authorities. The power of decision of its leader, the fima abba can thwart that of the clan elders. The fima is responsible to implement a judgement and to assure penalties payment (Piguet, 2001:36). The solidarity of the Fima towards its members is exercised both at the time of the physical failings and following events causing significant expenditures (for marriage and burial), similar to the role of customary credit associations (ikub). The Fima can also intervene when the herd of a member is decimated by drought; it answers needs of protection of the individuals against disasters and shocks and thereby plays a role of social welfare. The Fima has some regional variants. In Tadjourah (Djibouti), the system is based on age classes, in the Awsa, the basis is related to land ownership, and other varieties are related tribal membership within geographical localisation. The Fima thus provides protection and defence; it also plays a role of mutual help and constitutes a strong social institution.

Assessment of Maro

The strength of the Maro

36The Maro, like many other indigenous dispute resolution mechanisms, is cheap, easily accessible and non-bureaucratic. Besides, it allows the disputants to actively participate and resolve their conflicts based on customary rules of their own people, which make its decisions acceptable. The Maro also has an important role in bringing the disputant clans to reconciliation. Its emphasizes reconciliation, rather than punishment of an offender, so that is preferred to the formal justice system in Afar regional state.

Weakness of the Maro

37Although the maro has many advantages in conflict prevention and management, it has some weaknesses that need to be addressed to improve its performance. First, the makaban give decisions orally based on precedence and customary rules passed to them from their forefathers orally by word of mouth. This allows for flexibility but may result in variation and lack of standardised fair decision making over time and space. Second, the only remedies available under this customary system are compensation given in terms of livestock or money which are mostly paid by the contribution of families or clans of the offender to the injured party or clan. This may leave the offender unpunished and a potential threat to the community. Third, some of the rules and procedures applicable may violate fundamental rights of citizens/accused persons, including the right of equal protection of the law, as noted below.

Conformity of the Maro with national and international norms

  • 109 Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No 1/1995, Article 25.

38The right of Equality is one of the fundamental principles incorporated under the FDRE Constitution. This principle declares equality of all human beings before the law and guarantees equal protection of the law without distinction of race, nation, nationality, colour, sex, language, religion, politics, property, birth or social origin.109 This principle is also incorporated under Article 26 of International Convention on Civil and Political Rights (ICCPR). The Afar Mada’a that provides compensation of 50 camels for intentional killing of a woman and 100 camels for the same crime committed on a man and the application of this rule by Makaban violates the principle of equal protection and Article 35 of FDRE constitution that provides equality between women and men in the enjoyment of rights and obtaining protection of the law.

  • 110 Ibid, Art. 15.

39The FDRE Constitution also ensures the right to life. This right is limited only to protect the right of others, that is, a person may be deprived of his life only ‘as a punishment for a serious criminal offence determined by law’.110 The Universal Declaration of Human Rights Article 3 and ICCPR article 6 (1) and (2) incorporate this right. The occasional decision of the Afar Maro to take revenge on persons who are suspected of committing murder and disappear from the traditional justice system contradict this basic constitutional right.

  • 111 Criminal procedure code of Ethiopia, Proclamation No 185 / 1965, Art. 176 (1).

40The practice of Maro to conduct public hearings in resolving disputes conforms with article 20 (1) of the FDRE constitution and article 14 (2) of ICCPR which in principle, give every one charged with an offence the right to a public hearing in ordinary courts. These provisions, exceptionally allow the conduct of hearing in camera for the purpose of protection of private lives of parties and public morals. Charges instituted against young offenders is an example of cases that are heard in camera.111 This exceptional situation is unknown in the Afar Maro.

  • 112 Ibid., Art. 19 (5) and Art. 20 (3).

41Every arrested person has the right to remain silent and be warned promptly that the statement he may make may be used in evidence against him. The accused has the right to be presumed innocent until proved guilty by the court and not to be forced to make any confessions or admissions of any evidence that may be brought against him during the trial.112 Article 14 (2) and (3) (g) of ICCPR and Article 11 of UDHR contain these rights. Under the Afar customary system, when there is no evidence of proof of commission of the alleged offence, the accused is forced to take an oath to prove his innocence from the alleged offence. This practice conflicts with the fundamental rights of citizens/accused to be presumed innocent until proved guilty by a court, the right to keep silent and not to be forced to make a confession.

  • 113 Penal Code of Ethiopia, Proclamation No 158/1957, Art. 53 (1) and Art 54.

42Under the penal code of Ethiopia the penalty imposed on young offenders are different from those imposed upon adult offender. The penalty imposed focuses on the educational/reformation/value to the young offender.113 The Afar customary system does not take into account these rights of the young offenders and make them subject to the same penalty (compensation) as adult offenders.

43Thus, although the Afar customary system has some practices, like the conduct of public hearings, the right of the defendant to cross examine the testimony brought against him etc, that conform to national and international human rights norms, it has some practice that go against such norms.

Integrations of Maro with formal justice systems

  • 114 Supra note 6.

44At present the Afar Regional Government uses the customary dispute resolution mechanisms mainly to resolve disputes resulting from homicide that arise between different clans. The Regional Government allocates budgets to facilitate the work of the elders.114 The following two cases indicate the recognition of the decisions given by the Makaban by the formal justice systems of the state.

Case 1

45Osman Yaed was suspected of killing Handu Abdella in Zone 2, at the compound of Afdera wereda Lake Salt production project, on September 22/2000. Three-prosecution witnesses confirmed the commission of the offence by the suspect and the suspect admitted the offence was committed by himself in the confession he made under Article 35 of criminal procedure code of Ethiopia.

  • 115 Criminal Investigation file No 17/94; Art. 42 (1) (c) of Criminal Procedure code provides that no p (...)

46The State’s police after making the proper investigation referred the case to the State’s prosecution office, which prepared a charge believing that there was sufficient evidence to justify the conviction of the suspect. In the meantime, elders resolved this case amicably by using customary institutions and wrote a letter to the State’s council. In the letter the elders requested the release of the suspect, Usman Yaed. The State’s Council accepted the peaceful resolution of the case by elders and wrote a letter to the State’s Justice Bureau (Prosecution Office) not to institute the charge on the suspect. The Justice Bureau of the State on January 20, 2002 decided not to institute a charge on the suspect accepting the request of the State’s Council. The Justice Bureau cited Article 42 (1) of the criminal procedure code as the basis of its decision. The Justice Bureau justified its action by stating that the amicable resolution of such case by the elders was preferable to avoid conflict between the clans of the deceased and the clans of the suspect.115

Case 2

  • 116 Supreme Court, criminal file No 02/94.

47Afar Regional State’s Zone 4 Prosecution Office accused Mohammed Aliyu of the offence of homicide. The High Court of Zone 4 discharged Mohammed Aliyu in its decision rendered on May 20/2002 by stating that the action of the accused was in self defence. The Prosecution Office made an appeal to the State’s Supreme Court. After hearing the arguments presented by both parties, the Supreme Court decided on January 5/2004 that the accused was guilty but ordered the release of the offender Mohammed Aliyu, by citing the letter written to the court that indicated the disposition of the case by reconciliation made by elders in accordance with the tradition of the Afar people.116

48These two cases indicate the wide jurisdiction of customary dispute resolution mechanisms and their acceptance / recognition in practice by the formal justice institutions of the State, although such recognition has no clear legal basis.

49The FDRE constitution envisages the possibility of adjudication of personal and family issues by customary or religious law when the disputants agree to submit their case to such adjudications. The House of People’s Representatives and State Councils are empowered to establish or give official recognition to religious and customary courts under article 78 (5) of the same law. These constitutional provisions limit the jurisdiction of the religious and customary court to personal and family issue. Therefore, these constitutional provisions to not allow for recognition of customary dispute resolution mechanisms, like the Mara, that has unlimited criminal jurisdiction. The wide power exercised by the Afar customary dispute resolution mechanism and the constitutional provisions that allow recognition of customary court only for adjudication of personal and family issues may therefore pose impediments to the integration of the two systems in the Afar Regional State.

Conclusion and Recommendations

50Although the customary system has some weaknesses relating to the violation of human rights, the Afar people prefer its services because it is cheap, accessible, provides the people the chance to participate in the process and emphasises reconciling the feuding parties, rather than punishing the offender. Especially when the dispute involves conflict between clans the State government usually requests the help of this customary institutions to resolve cases instead of using the formal justice system.

51Although the customary system makes a considerable contribution to keeping law and order in the State it has not obtained legal recognition under national law. To bridge this gap between the practice and the law the House of Peoples’ Representatives and Afar State Council should official recognize this customary dispute settlement mechanism, and should consider the implications of limiting its jurisdiction to personal and family issue according to article 34 (5) of FDRE Constitution.

52It would be important to raise the awareness of the Afar people, especially those who serve as Makaban and elders, about the need for relating the jurisdiction of the customary dispute resolution mechanisms to national norms and the importance of enforcement of criminal law by the formal justice system for the protection of the fundamental rights of the people enshrined under the Constitution and International Human Rights instruments ratified by Ethiopia. However, before the government gives recognition of the maro and decides on the limits to its jurisdiction, it must strengthen the efficiency of the formal justice system to handle criminal cases that arise between individuals and clans.

List of Informants

Name

Social Status

Place

Date of Interview

Mohammed Tahiro

Vice-President of Afar Regional State

Samara

24/2/2004

Ali Hussein

Head of Criminal and Civil Affairs Bureau, Afar Justice Bureau

Samara

23/2/2004

Haleto Mohammed

Afar Regional State Police Commissioner

Samara

23/2/2004

Kedir Hussein

President of Afar Supreme Court

Samara

24/2/2004

Asha Mohammed

Head of Women’s Affairs Bureau

Samara

24/2/2004

Sheik Mohammed Awel

President of Shari’a Court

Samara

24/2/2004

Sheik Indirs Musa

Vice President of Shari’a Court

Samara

24/2/2004

Keloita Adoye

Makaban, Representative of Moadayitu Clan, Advisor of Dubti Wereda Council

Dubti

9/3/2004

Mohammed Maisama

Makaban, Representative of Afkiemaad Clan, Advisor of Zone 1 Council

Dubti

9/3/2004

Oumed Mohammed

Makaban, Representative of Amharosara Clan, Advisor of Dubti Wereda Council

Dubti

9/3/2004

Mohammed Abdella

Makaban, Dalol Wereda Administrator

Samara

23/2/2004

Hussein Nur

Makaban, Head of Dalol Wereda Capacity Building Office

Samara

23/2/2004

Notes

89 We are grateful for corrections and additional information provided by François Piguet, based in part on the report by Karim Rahem (2002) and an interview with Amoyta Ali Mirah on November 16, 2004.

90 The official figures used by DPPC in 2002, derived from population census, are the following: total Region 1,176,148 (zone 1: 326,146; zone 2: 234,645; zone 3:129,464; zone 4:142,352; zone 5: 343,541). According to the 1996 population and housing senses of Ethiopia, the total number of Afar living in Ethiopia is approximately 1,098,184 (C.S.A. 1996).

91 An Afar belongs first and foremost to an extended family (bura) composed of three to four generations under the authority of an elder; a lineage (dalla) includes a grouping of bura descending from a common ancestor seven generation back. Several dalla of the same patrilineal descent from agulub (knee) or sub-clan and several gulub form a kedo or clan. Each level of social segments are ruled by designated leaders (bura abba, dalla abba, gulub abba and kedo abba) who play a great role to solve internal conflicts and to maintain group cohesion.

92 Jamaluddin A. Redo, The Afar Customary Law, (1973: 6).

93 Mohammed Abdallah, Dallol wereda administrator and makaban.

94 Hussein Nur, Head of Dallol wereda capacity building office and makaban

95 Mohammed Tahiro, Vice-President of the Afar Regional State.

96 Ali Hussein, Head of Civil and Criminal Affairs Department in the Justice Bureau of the Afar Regional State.

97 Mohammed Tahiro, Vice-President of the Afar Regional State.

98 Keloita Adoye, Makabam, Representative of the Modaitu and Dubti wereda adviser

99 See Assefa Tewodros (1995).

100 Halito Mohammed, Afar Regional State Police Commissioner

101 Due to time constraints and the nature of maro we were unable to witness actual cases in practice.

102 Keloita Adoye, Makaban, Representative of Modaitu Clan and Advisor of Dubti Wereda

103 Mohammed Maisema, Makaban, Advisor of Zone 1 Council and Representative of the Afki’k-Ma’ad.

104 Houmed Mohammed, Makaban and representative of Amharo-Sera kedo.

105 Ibid.

106 Redo A. Jamaluddin, The Afar Customary Law, (1973: 7).

107 Redo A. Jamaluddin, The Afar Customary Law, 12/9/1973, page 1.

108 Ali Mirah, Amoyta of Awsa.

109 Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No 1/1995, Article 25.

110 Ibid, Art. 15.

111 Criminal procedure code of Ethiopia, Proclamation No 185 / 1965, Art. 176 (1).

112 Ibid., Art. 19 (5) and Art. 20 (3).

113 Penal Code of Ethiopia, Proclamation No 158/1957, Art. 53 (1) and Art 54.

114 Supra note 6.

115 Criminal Investigation file No 17/94; Art. 42 (1) (c) of Criminal Procedure code provides that no proceedings shall instituted where: The prosecution is barred by limitation or the offence is made the subject of a pardon or amnesty’.

116 Supreme Court, criminal file No 02/94.

© Centre français des études éthiopiennes, 2008

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