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Grass-roots Justice in Ethiopia

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Alula Pankhurst
, 
Getachew Assefa

Regional Case Studies

8. Customary Dispute Resolution in the SNNPRS: The Case of Sidama

Ayke Asfaw et Mekonnen Feleke

Texte intégral

Profile of the Region

1The Southern Nations, Nationalities and Peoples Regional State (SNNPRS) is the third largest region in Ethiopia covering an area of 110,940 km2 and accounts for some ten percent of the total area of the country. The Region is bordered by Oromia in the North, East and Southeast, Gambella in the Southwest, Kenya in the South and Sudan in the Southwest. The SNNPRS is bisected by the Rift Valley; to the East, are highland plateaus of Sidama, Burji and Amaro, and to the West highland plateaus of Gurage, Kaffa, Dawro and Gamo Gofa. In the central and southwestern parts, plateaus are deeply dissected by the Omo River and its main tributaries.

2The region is inhabited by some fifty cultural groups each with its own more or less distinct language and traditions. The languages spoken in the region are classified into four major language families namely, Semitic (the Gurage and Silte), Cushitic (e.g. Sidama, Kambata, Hadya, etc.) Omotic (e.g. Wolaita, Gamo, Ari, etc.) and Nilotic (e.g. Dassenech). The population of the region was over 10.37 million in the 1994 Census with a projection of 15.74 in 2008. Accordingly, it is the third most populous region and accounts for about 20 percent of the total population of the country. The largest group are the Sidama whose customary dispute resolution institutions are considered in this chapter. They have a population of over 2 million people, representing about 18 percent of the region’s population, and are followed by the Wolaiya and Kambata with estimated populations of 1.6 and 1.1 million people respectively. The SNNPRS is administratively divided into thirteen Zones, eight Special Weredas and 104 Weredas.

Customary Dispute Resolution Institutions in the Region

3SNNPRS is a melting pot of many different ethno-linguistic groups, each with their more or less distinct traditions which also relate to CDR institutions. Given the diversity and complexity it is not within the scope of this chapter to consider more than a few examples, with more detail provided for the Sidama case.

4CDR institutions in the Region can be distinguished broadly into two in terms of the degree of formality: 1) Customary purely informal institutions which are generally unwritten and not codified, and 2) semi-formal institutions set up by proclamation.

Customary informal institutions

5This type can be further sub-divided into four types of institutions, the first two of which are found in many groups: 1) Clan leaders’ councils, 2) Elders councils, 3) Ritual practitioners, and 4) public gatherings.

6In some societies we find both clan leaders’ councils and the neighborhood or village elders councils which function interdependently; the clan leaders councils function as a higher body while elders also participate (and contribute their part) in Clan leaders’ councils. We can mention three examples among the Sidama, the Burji and the Basketo.

7In Sidama the clan leaders are known as Gudumaalee or as Gossate Songo in some areas, and below them there are neighborhood or village level elders’ councils known as Chemessa Songo. This case is discussed further below.

8In Burji there are clan leaders known as Woma and Elders councils with three hierarchicalstructures: first the village elders’ council, which exists at the lowest level and handles dispute cases which arises in their specific locality; second the ‘three men council’, known as Daina, Masha and Jalaba. These men are appointed by the four major clan leaders of Burji to serve as intermediate bodies between Village Level Elders’ councils and the Clan leaders’ council. They are appointed by the clan leaders based on their merit. Third, the Clan leaders’ council is the highest body in the Burji traditional dispute resolution mechanism. According to our informant from the Region’s Police Commission, the three men’s council considers almost all dispute cases which arise within the community except murder cases and inter-ethnic conflict. The Can leaders’ council is basically concerned with homicide cases, appeals from the three men council and interethnic dispute which often arises between the Burji and Gugi Oromo, and they may be aksed to intervene by Guji-Oromo clan leaders.

9In Basketo each of the many sub-clans has its own clan leader, referred to by our informant using the Amharic term balabat. The system is hereditary, and the son will assume the office upon the death of his father. Except for homicide case, any dispute should be submitted to and resolved by their respective clan leader. People are said to fear misfortune if they take a case to the formal justice courts. When a case is brought before the balabat, the accused or defendant will be summoned by a messenger. It is believed that telling lie before or to the balabat will shorten his life span, and as a result, any allegation or defense should be attested by swearing. Therefore, disputes are said to be resolved without the need to produce evidence or calling witnesses. When dispute arises among or between clans, the case is referred to clan leaders.

Ritual Practices

10Two examples of ritual practices involved in dispute resolution activities may be presented, that of spirit mediums of Akako in Sidama, and Mada and Sharinge in Dawro.

11In Sidama around Yirgalem, Akako is considered to be the spirit of the ancestor of the Holo clan, one of the 13 clans of Sidama Society. Akako was known and revered as a Qalicha or spirit medium during his life time. His graveyard is nowadays surrounded by forest and is considered a sacred holy place in Yirgalem, where there are several Qalichas belonging to the Akako family. It is said that any wrongdoer is condemned in the name of Akako. However, if he continues to act badly despite the condemnation, the case will be brought before Akako and a written summons will be sent to the accused/defendant to appear before Akako. The interviewed, who belong to the locality of Akako told us that both parties are supposed to present their argument and respective evidence as is in the formal court. Upon hearing both sides, Akako will pronounce his decision and it will be executed by elders appointed by Akako. If the case cannot be resolved by Akako of certain level, the case may be referred to Akako of higher level in the hierarchy. It is said that persons from certain sects, or the casted clans (faqi) may not be summoned to appear before this institution, as they may profane the holy place.

  • 177 According to Demise Tofu, a member of the Region’s Police who comes from Dawro, who reported that d (...)

12In Dawro in Isira wereda the customary spirit mediums have a powerful role in dispute resolution. Mada and Sharinge are popular Qalichas. No dispute except arson and homicide is said to come to the institutionalized justice system.177 He told us that It is said that any one who wants to take his case to the formal justice organ may be condemned by the name of Qalicha and no one dare to bring his case to formal justice organ, as they would be automatically isolated and outcasted from the community. However, with conversion to Protestant and Orthodox Christianity the power of the Qalichas was said to be declining in the community

Public gatherings

13Two examples of public gatherings may be mentioned. The Gamo dubbusha and the Konso Mora. The term dubbusha in Gamo refers to a public place demarcated as secular or sacred. Tadesse Wolde (1994) indicates that dubbusha are involved in nearly all religious activities, and function as assembly grounds, and may be linked to markets, with meetings take place on market days. At assemblies, disputes are dealt with especially case of theft that may endanger the relation of the dere the local ‘country’ or community of each Gamo group. Cases that were postponed until that particular market day are also discussed and replies of delegated elders sent to government officials are also reported on these occasion. Likewise, in Konso the Mora is a sacred place used as a court and administration. Tadesse Wolde (1994) notes that these places are used for arbitration of disputes that arise from refusal to pay debts, fighting, manslaughter, adultery and other social ills. The elders’ council includes the oldest man of the town and a few more from other generations, and their decision in considered binding.

14Although the informal institutions are by and large unwritten and uncodified in the case of the Gurage Κicha, the customary law has been documented and codified in a booklet.

Semi-formal institutions

15Institutions under this group have both formal and informal features. They seem formal since they are established by proclamation and, also look informal since the so-called ‘judges’ are untrained, have no salary etc. These include the Kebele Social Courts and the Labour Relations Board.

16The Kebele Social courts exist in almost all urban and rural Kebeles and were established by Proclamation no 18/1998. ‘... the objective behind the establishment is to empower these social courts to adjudicate simple & precise cases so as to make people to have access to justice within their localities’ (Mekonnen 2003:5). Judges of social court including the presiding judge are elected by Kebele Shengo or Kebele Council upon presentation of executive committee of the Kebele administration (Art, 9 of the proclamation) This organ has both civil and criminal case jurisdictions emanated from the existing civil and criminal codes of Ethiopia. Most petty offenses of the penal law now fall under the jurisdiction of this court. Thus, the court may punish the offender by imposing fines up to 500 Birr or simple imprisonment up to one month. Social courts are supposed to follow certain procedures in deciding cases. These are borrowed from the existing procedural laws of Ethiopia, but ‘they are simplified one to be understood by social court judges.’ (Mekonnen 2003:12)

17The Labor Relation Board was established in the regional level pursuant to labor proclamation No 42/1993. The Boards is within the Region’s Labor and Social Affairs bureau, and deals only with issues arising in industries between workers and the management.

Sidama Customary Dispute Resolution

18This rest of this chapter is based on the current practice of CDR in Wujigra peasant association and the surrounding Kebeles, in Sidama zone, Awassa Wereda. There are two forms of CDR in the area: The office of Gudumaalee and the neighborhood (village) elders’ councils.

The Gudumaale institution

19Almost in the centre of Wujigra village, to the western edge of the village’s market place, there is a small hilly place known as Gudumaale. The word Gudumaalee literally means justice place. To the inhabitants of the area and the surrounding peasant associations, Gudumaale’ is the highest judicial body where major dispute cases and appeals are heard. The ‘office holders’ are the clan leader, called Moti (a hereditary role) and his male relatives. The Moti i.e. the chief of the clan in his role in the office of Gudumaalee, is known as Gudumaalee Moticha, which means, the chief of the Gudumaalee. The number of office holders is not fixed. Currently they are eight. However, it may decrease for some time upon death or when someone is cancelled or denied recognition because of misbehavior. The number may also increase when an efficient and influential person from the Moth family may be appointed by the Moti to join the office or he may be just recognized by the office and the community as a member of the office as a result of his successful participation during dispute resolution. These days, the office considers cases twice a week, i.e., every Wednesdays and Saturdays, which are market days in Wujigra village. There is no distinction between civil criminal and commercial cases, nor is there a clear cut division in terms of jurisdiction. The Gudumaalee council deals with nearly all matters of disputes which arise within and sometimes outside of the local communities. The typical dispute cases can be grouped into two in terms of how serious they are: minor cases include theft, quarrels between individuals, quarrels between family members (e.g. husband and wife, between brothers), cattle destroying crops and disputes over farm land boundary. Serious cases include homicide and inter-clan clan disputes.

20Minor cases are supposed to be seen first by neighborhoods councils, whereas more serious ones are directly seen by the office of Gudumaalee. If the litigants bring minor cases directly to the Gudumaalee, the council usually returns the case back to the neighborhood or village elders. However, the Gudumaalee council does not just reject or ignore the disputants and let them go to the Village elders. Rather, the Moticha appoints trusted elderly persons from the disputants’ village to handle the case with other elders. Unlike the Gudumaalee, the Village elders’ councils are not stable institutions, i.e. there may be no officially set and known elders for a given village. They are often ad hoc councils formed for a specific dispute case. Of course villages may have at least one experienced and locally acknowledged village leader to whom dispute cases are usually referred. Other elders are may be selected for a given case based on their knowledge about the case, their proximity to the particular hamlet, or may be represented by the disputant parties, etc.

21Succession to the office of clan leader is hereditary. If the clan leader dies, he will be replaced by one of his close and efficient relatives (from his sons, brothers, etc). The selection is made by elders is followed by ritual ceremonies.

Procedures and process

22The plaintiff has the moral obligation to take his case to the Gudumaalee council rather than taking the case to formal courts. Dispute cases usually come to the office of Gudimaalee in the following ways,

  1. When the plaintiff appeals directly to the chief orally.

  2. If the plaintiff takes the case to the formal court, the accused may apply to the chief so as to bring the case to Gudumaalee. This time the chief sends his men to the plaintiff and they influence him to withdraw the case from the formal court and bring it to Gudumaalee.

  3. In the cases of inter-clan dispute or homicides, the council should directly intervene and handle the case.

  4. On some occasions, the formal structures themselves (especially social courts) influence the litigants to return their case to the Gudumaalee.

23If both parties are committed to take their case to the formal structures the Gudumaalee elders do not intervene in the situation.

24Every Wednesdays and Saturdays, the Gudumaalee council comes out to the Gudumaalee (the justice place). At about 10 am, the Moticha and his council members sit on the surface of the ground under one of the trees. Following them, a number of elders who come from different villages to attend hearings sit circling the council members. Any male passer-by can join them, watch and attend the process. All of the attendants sit on the ground. Women are not allowed to come to the Gudumaalee. It is believed to be a sin for a woman to cross the Gudumaalee space even on the ‘non-office’ days.

25If there are cases appointed for the day, the hearing begins taking one case after the other according to the precedence of the presentation of the case to the office. Before the start of the hearing, the Moticha gives his blessing and cursing. He blesses for all good things to happen to his people (the rain to come, crops to ripen, bees to make honey, etc) and curses all evils (diseases, conflict, drought, famine...etc). After the blessing and cursing, to start the hearing, one of the Gudumaalee council members, (usually a younger one or the son of the Moticha if he is an acknowledged member of the council) checks the presence of the litigant parties by calling out their name loudly. If both are present, then again one of the council members invites the plaintiff to forward his grievances first. After the plaintiff finishes his allegation, then the council gives the chance to the defendant to react about the allegations against him.

26If the defendant denies the allegations, then the council orders the plaintiff to produce his evidence (usually witnesses). If the plaintiff has already come with his witnesses, the hearing continues. Before giving their account, the witnesses have to swear in front of the Moticha by touching his forehead with their palm, and again by touching the surface of the Gudumaalee (the ground) only to tell the truth, what they have seen and heard. According to the tradition of Gudumaalee it is unusual to give the chance to the defendant to produce defense witnesses. This is mainly because it is strongly believed by the community that witnesses do not lie after swearing in front of the Moticha. In their belief if someone lies after swearing at the Gudumaalee, it will result in bad consequences for the person, his property, and his entire family.

27Following the hearing of witnesses, the council members begin to forward ideas that could help for decision making. Everyone present at the Gudumaalee session (i.e. elders who come from different villages) enjoys all the right to address his opinion concerning the debate between the litigants; support or oppose the decision proposals forwarded by the council members or to propose new suggestions for decisions. After a long debate among all the participants the final decision will be passed - often after consensus is reached among all the elders present. The final decision will be announced by any of the council member immediately.

28The council members work based on the experience they acquire in their life time on Gudumaalee and similar dispute-solving occasions in their locality. Theoretically the members do not receive money or payment. However, in practice the plaintiff is expected to pay some amount of money (disguised as covering their food and drink expenses).

Use of rules and enforcement

29The Sidama CDR institution works without written rules and regulations. The basic objective of the system is to bring peace and reconciliation between the disputant parties. However, regarding punishment, there are certain commonly known rules especially for higher offences. In this regard, there is a concept called Fitta which stipulates different punishment levels for homicides and sever injury cases. These include

  1. Tudda: When a murder case is labeled as an intentional, deliberate and inhuman murder. If so the defendant is supposed to pay 8-24 cows to the victims’ family.

  2. Kege: When homicide case is decided as unintentional murder. The defendant is supposed to refund all expenses of the victim’s family (medical if any, funeral and the like), and provide 1-4 local blankets and 100 birr or one cow.

  3. Haraffo: When the victim is injured having bleeding or bone breakage. In such a case the defendant is supposed to compensate the victim with butter, honey and a goat or sheep.

  4. Sorra: When the victim is injured without bleeding or bone breakage. In this case the defendant compensates the victim with butter and honey only.

30The most popular enforcement mechanism in the Sidama customary system is known as Serra. It is a social sanction which practically alienates the defendant who refused to accept the decisions passed against him by the council. The social sanctions include:

  • Dissociating him from funeral associations

  • His cattle are not allowed to graze with those of others

  • He is not allowed to take part in work parties (group farming activities)

  • His wife is not allowed to take coal fro fire from her neighbors, etc.

31The Serra decision will be announced to all of the community through public gatherings, at the market place, etc. Any person who is reportedly found not executing the decision (serra), i.e., anyone who is found working and cooperating with a person under serra, will be subject to a more serious Serra. The Serra lasts until the person requests excuse officially to the Gudumaalee Moticha·, and executes the previous decisions passed upon him.

Neighborhoods Elders’ Council

32The role of elders as go-betweens at the interface between the formal and the customary systems is seen as crucial. The elders are not only seen as local authorities who assume the role of conflict mediators, but also promote and support peace and welfare in the community. All the community members attribute to the elders a great respect; recognize their well doing for the living together in the whole society.

33To become an elder representative is not, or at least not only, a matter of age. Of course a very young man cannot become an elder and should be at least 30 years old. However, it is not open for every one. It depends on the local status of one’s family and belonging to noble clans. According to Oweta, a member of the Gudumaalee council, an ordinary man who is an articulate speaker and who has the knowledge of the local history and customary laws will be acknowledged to play the role of an elder in dispute resolution or otherwise.

34The elders deal nearly with all matters which arise within, and sometime outside of the local communities except homicides and inter-clan conflicts which must be referred to the Gudumaalee council of disputes.

35There are 4 ways in which cases are submitted to neighborhood elders’ councils. These are:

  1. When the plaintiff takes the case to the village leader orally.

  2. If the plaintiff takes the case to the formal court (Kebele Social court or Wereda court), the defendant may appeal to elders to influence the plaintiff to bring back the case to them.

  3. When the elders themselves (usually friends or relatives of the offender) may intervene by their own initiatives to take the case to elders.

  4. If the plaintiff directly takes the case to the Gudumaalee council, the Gudumaalee elders may refer the case back to village (neighborhood) elders when the case is something minor or if the case is between relatives.

36The process of hearing cases at elders’ council is rather similar to that of Gudumaalee. However, there may not be traditional blessing and cursing as at the Gudumaalee council. Moreover, the village elders have no regular meeting or office hours. They meet when cases come to them. Unlike the Gudumaalee session, it is not usual for other men to come and attend.

37Some studies that were conducted regarding Sidama customary dispute resolution mechanisms have suggest that there are four hierarchically established elders’ councils each having its own specifically assigned roles. For example Wolde Wenchamo (2000) mentioned the following:

  1. The hamlet council (Mini Songo), is the first council above the household, resolving problems at lower level, which arise in the village or in the family. It prevents marital affairs from being disclosed to the public. The elders involved are known as Chimessa (their number is not fixed). They are elected for their age, good conduct, honesty, and fairness by public vote. Once elected, they work for an unfixed duration which depends on their performance.

  2. The Neighborhood Council, is larger than the hamlet council and considers cases of theft, disputes between two hamlets, disputes over farmland boundary, and cases which come from hamlet councils by appeal; the elders are also known as Chimessa

  3. The Lineage Council (Ayidu Songo) comprises elders who live in a certain locality as descendants of common ancestors. It considers cases like cattle theft, serious criminal cases like adultery, abduction and cases which come by appeal from neighborhoods councils. The elders are elected by vote

  4. The clan leaders’ council (Gossate Songo). This is the highest and the powerful organ. It is appellate and policy making body. The clan leaders are known as Moti, Woma or Garro. Major cases it considers are inter-clan disputes, homicide and other series crime issues. The appointments are hereditary; the leaders decide on policy issues which affect the whole community in their clan.

38However, we did not find such a hierarchically established system in our study area. Below the ‘Gudumaalee’ (which is similar to clan leaders’ council or Gossate Songo mentioned in Wolde’s study) there are neighborhood or village elders everywhere who resolve disputes in their locality. However, these councils are not stable and we found no hierarchy between them. They are often ad hoc councils formed for a specific case. It is only the Gudumaalee that is the acknowledged highest body found above all types of elders’ councils.

Examples of dispute cases

Case 1: unintentional homicide in car accident

39A man from Wujigra area was killed in a car accident while crossing the road some 30 kilometers away, on the main road from Awassa to Yirgalem. The car has had insurance contract with Nile Insurance Company, Awassa branch office. Following the accident, the driver was put in prison. While the case was through the legal process the relatives of the defendant together with the manager of the Nile Insurance Awassa branch went to Wujigra and applied to the Gudumaalee council to handle the case. The Gudumaalee council sat to consider the case on the 17 of March 2004.

40The victim’s family appeared late and the proceedings started at 2:00 pm. There were about 20 elders present including the Gudumaalee council members. Both parties, the families of the victim as well as the relatives of the defendant and the Nile Insurance manager were present. However, the men from the defendant’s side were not allowed to sit together with the victim’s family at the Gudumaalee (since they were yet not reconciled). Thus they sat some 100 meters away from the Gudumaalee. They gave their opinions by a messenger when necessary. The hearing was started after one of the men from the Gudumaalee council introduced the case to all of the participants. He also mentioned the presence of both participants. Then one elderly man (who is from the victim’s village) explained the situation of the accident, i.e. the place, time, the injury which latter caused to his death, etc. He was not taken as a witness. He was not even a witness of the accident. He was just informing the elders of the information he collected from other men who were around at the moment of the accident. Then a man from the council members started talking. He mentioned and recalled how similar cases were dealt with before. He finally concluded saying that the accident was unintentional. The next speaker was a person from the victim’s relatives. He also said: ‘It is true that the driver didn’t kill the man intentionally. The driver had no border dispute with the victim or with the victim’s relatives; he is from somewhere far. It is only an accident’.

41As it is mentioned earlier, according to the Gudumaalee laws, a homicide case is seen in two ways; i.e. whether it is Tyda (intentional murder) or Kege (unintentional murder). The required compensation (penalty) for homicides in general include: 1) to cover expenses of the victim’s families such as medication, burial, etc. 2) Gumma which is blood money, and 3) Reconciliation expenses. If the homicide case is decided as unintentional then it is up to the victim’s families to decide whether to request for Gumma (blood money) or not. If they request and are willing to accept, it will be effective. If not, only the first and third points above will be effective.

42The Moticha summarized the whole discussions, and finally declared that the killing was unintentional. Then one of the ‘Gudumaalee’ elders took two of the victim’s families outside the Gudumaalee and asked them whether they would request for Gumma. They came back and the elder informed participants that they refused to accept Gumma money. This was because there is a strong belief in the community that receiving Gumma money for unintentional murder will bring similar accidents in the family sometime in the future. The next step was to add up the expenses of the victim’s family for medication, transporting the corpse and the burial ceremony. Accordingly, it came to two thousand birr and the relatives of the defendant paid the amount immediately.

43Unusually a written form of the decision of the Gudumaalee was prepared, and all the elders and the victim’s families signed. This was done because the relatives of the accused person were required to provide the document to the court which had already handled the case. Moreover, the Insurance Company refunds their expenses based on the document. The council decided to hold the reconciliation two weeks later.

44According to the Gudumaalee law the reconciliation is to be conducted in a place selected by the victim’s families. The defendant is required to bring one black sheep, four local blankets (Gabi) and 100 birr. The sheep will be slaughtered by the defendant himself, and he will take out the lung immediately (before the sheep is dead). Then he brushes his eyes and the eyes of the victim’s relatives with the lung. Finally, both parties will go to the house of one of the victim’s families (to the victim’s brother or father) and pass the night together. Thereafter, the two families will be taken as families.

Case 2: Failure to repay the debt of a sack of maize

45The claimant requested the village elders help him recover a sack of maize owed to him by a person he loaned it to. During the negotiation, the alleged debtor readily admitted that he owed the claimant the maize but claimed that he had not returned it because it had been a poor year for maize and he lacked enough to feed his children. He conceded that he failed to discuss the matter with his creditor. The latter indicated that the defendant was always promising to pay, even having been urged to do so by his (the defendant’s) father, and stated his belief that the defendant was actually selling maize in the market.

46One elder proposed that the father of the defendant, being an elder, should negotiate a settlement between the two but the father, who was present, wanted the elders to settle the dispute. Others suggested that the claimant wait until the next harvest to require payment. However, the claimant pointed out that after harvest a sack of maize would have only half of its present cash value. Therefore, he requested the debtor to give him two sacks of maize at harvest. Elders, however, thought that the compliant should show magnanimity and accept a single sack of maize at the next harvest. The claimant refused to accept the elders’ decision, and he took the case to their Gudumaalee council, which approved the first decision and the case was finalized accordingly.

Assessment of the Sidama CDR institutions

47Both Gudumaalee and neighborhoods elders’ councils have a number of strong points especially as compared to the formal structure. The advantage of the Gudumaalee over the formal system according to local informants:

  • Both parties follow their cases in their locality without departing from their family. Moreover, it does not block them from their daily routines.

  • The CDR mechanisms also cut down the high costs and lost time from productive work that are connected with the formal process.

  • Above all it avoids lasting enmity between disputants and their family since it ends with compromise and reconciliation.

48In addition to these important points we can add that the system is less corrupt or rather has less room for corruption since decisions are passed by the Council after free and open debate not only between disputants and witnesses, but also by all discussants who are present at the session. Moreover, the egalitarian values prevent domination of the CDR system by a single person or a small group. Prominent men of wealth, with speaking ability, and reputations for bravery are highly esteemed in a traditional council of elders, but they are held as accountable for wrong doings as any ordinary person.

49However, the system is not without limitations. Informants mentioned that these days many local dispute cases are entertained by the formal structure (by the Kebele social courts or Wereda courts) rather than by the Gudumaalee or the Council of elders. This is mainly because of the following reasons:

  • The enforcement mechanism (Serra) or the social sanction is not strong enough since currently existing social organizations (work parties or groups, kinships networks, etc.) are less cohesive than before.

  • The Gudumaalee councils are available at their duty only twice a week.

  • The CDR institutions focus on compromise and reconciling disputes rather than giving a fair and competitive penalty against the wrong doer.

50Despite these shortcomings the major problem seems to be the lack of a legal framework that acknowledges and defines the jurisdictions of the CDR institutions and hence, the absence of official relations and cooperation between them and the formal structure.

51From a legal perspective the CDR institution is strong for the following reasons:

52Firstly, preliminary objection is guaranteed for the defendant/accused. As Wolde’s (2000) study indicates, preliminary objection will be raised if the case is decided before a regular court, or if it has been made subject to compromise, time limitation, etc. Generally, grounds of objection are as stated under the Civil Procedure Code of Ethiopia, under article 244. In this regard the practice conforms to one of the national laws of the country.

53Secondly, the institution has accommodated a simplified form of procedure - as opposed to the formal procedure of the regular court (which is rigorous and time consuming). Thus, it is less costly and less time consuming. Moreover, the amount of punishment or compensation is proportionate to the wrong done in this regard, and it coincides both with Civil Code (Extra contractual Liability) and the Penal Code of Ethiopia.

54Nevertheless, this institution has weaknesses. To begin with, it disregards the rights of women, who are not allowed to appear in front of the ‘Gudumaalee’ with their case. Nor are they allowed to be the members of the council of Gosate Songo to sit at the Gudumaalee. In either case, this practice contravenes the fundamental human rights provisions put in the Constitution. For one thing, it contravenes the right to access to justice as put under article 37 of the Constitution; for another, it is against equality and/or women’s rights under article 35 of the Constitution.

55Another point worth mentioning is that the power of the institution is limited since it has no recognition from the government. As a result, the decision of this council is at the mercy of the disputants; whenever one of the parties disagrees, he may stop the process and/or appeal to the formal court for reversal. As a result, the elders are often reluctant to give decisions. Hence, the absence of effective means of enforcement mechanism is a problem attributable to this institution. As opposed to regular and/or social courts which are relatively fortified with police and militia, the council does not have any body to implement its decision (except its social sanction mechanism – Serra), limiting its effectiveness. Wolde (2000) has also mentioned the absence of uniform punishment. He goes on to say that this disparity of punishment emanates from the absence of uniform rules; as a result, there is a possibility of imposing different punishment for similar offences. He has also mentioned the absence of prison for flagrant offenders. As a result, there is a possibility for the offender to escape the punishment or he may change his residence. Judgment is pronounced orally: there is no written decision. Wolde (2000) argues that the absence of written decision may create an occasion for the appellant to raise a new issue, as there is no mechanism of controlling parties’ behavior.

Recommendations

56The following suggestions are made by way of recommendations:

  1. One of the major problems of the Sidama CDR institutions is the lack of a legal framework that acknowledges its role and, hence the absence of official relations and cooperation with the formal structure. Thus, legalizing the role of CDR institutions and defining their jurisdiction will definitely support both systems. Moreover, there is room to create further links between the two (there has been tacit recognition on both sides).

  2. In integrating the CDR institutions with the formal structure, care should be taken not to alienate (separate) the existing accountability of elders to their community; which could gradually erode their influence and respect for them in the community.

  3. Proper discussion should be made with the community in order to reach consensus in the areas of incompatibilities between the customary laws and the state law, such as gender issues (that women are not allowed even to attend the Gudumaalee, problems associated with the rule of social sanctions to enforce decisions, etc.). Clan leaders and elders seem keen to accept constructive ideas from without if their views are also acknowledged.

  4. Government interventions should be limited and cautious; may be only to the level of acknowledging the role of the CDR institutions and defining their areas of jurisdictions. Other issues, for instance, setting salaries, involvement in elections, etc., may create new tensions on the social ground because of the question of exclusion and inclusion.

  5. The Serra social sanction rule could be replaced by other mechanisms if the CDR institutions obtain support from the formal structure to enforce their decisions.

  6. Legal training should be given to those elders who take part in this institution so as to raise their legal awareness.

  7. The existing cultural potentials (the peaceful coexistence with others, i.e. with the non-Sidama residents of the area) should be cultivated in various ways including training so as to enable CDRs to contribute to the process of unification (at the risk of pronounced regionalism).

  8. Some elements of the formal system could be integrated into the CDR system. These could include registration and documentation of cases and decisions (a registration could be made by seconded personnel from without), to make integration with the formal structure feasible.

List of informants

Name

Status

Age

Arafo Gobaro

Clan leader and the chief of the Gudimeallee

He is above 90 years old

Almaz Bora

A house wife from Bare Kebele

She is about 45

Alemaz Bora

Housewife from Bare Kebele

She is about 45

Bekele Tisse

Member of the Gudimalle Council.

He is about 80

Cherenet Dubale

Non-Sidama (Amharic Speaker). He lived there the whole of his life.

He is a farmer and about 65.

Demissie Tofu

Staff of the Region Police

35 y/rs old

Fikire Zeleke

Awassa Wereda Public. Prosecutor

He is 32 y/rs old

Kelle Arafo

Son of the clan leader, and member of the Gudumaalee council

He is about 45

Lakew Adisu

Policeman

40 years old

Ledamo Gemeda

Lower class farmer

He is about 50

Nure Balecha

Influential person in a nearby Kebele known as Bare

He is a well to do farmer about 50

Oweta Damotu,

Member of the Gudumaalee council and articulate speaker

He is about 50

Sermele Fute

Lower class farmer

about 55

Ture Banke

Housewife

about 50. She lives is Wujigra

Notes

177 According to Demise Tofu, a member of the Region’s Police who comes from Dawro, who reported that during his six months’ service in the wereda no cases were brought to him.

© Centre français des études éthiopiennes, 2008

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