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Grass-roots Justice in Ethiopia

 | 
Alula Pankhurst
, 
Getachew Assefa

Regional Case Studies

Facing the Challenges of Customary Dispute Resolution: Conclusion and Recommendations

Getachew Assefa et Alula Pankhurst

Texte intégral

(Penal Reform International 2001:5; emphasis added)

Conclusion

1The studies in this book have been able to establish conclusively that customary dispute resolution systems are widely distributed and prevalent throughout Ethiopia. Despite their wide coverage, CDR institutions are quintessentially local serving particular groups. Most such institutions are built on cultural rules linked to local belief systems, and are based on localised trust among people who know each other in face-to-face communities. Nonetheless, in certain societies CDR institutions with several levels have developed and there are a number of more inclusive CDR institutions that have formed across-ethnic boundaries, in border areas and in towns.

2This book has shown that CDR institutions co-exist with the formal justice system and are very relevant in the day-to-day lives of the members of communities within all Ethiopian societies. Moreover, despite lack of formal recognition in practice CDR institutions at a local level have strong de facto linkages with the formal justice system.

3In this conclusion we start by reviewing ten major characteristics of CDR. This is followed by a discussion of ten advantages and five limitations of CDR. We then consider the state of relationships between the formal and customary systems which we characterise as ‘coexistence and collaboration without mutual recognition’. In the recommendations we note the lack of constitutional recognition of CDR institutions despite the extensive cooperation in practice. We recognise the potential risks of greater integration between the formal and customary systems, as evidenced from accounts of international experience, and in relations to rights of women, children and minorities. However, we argue for greater partnership to appreciate the value and enhance the role of CDR and reduce the burden on the formal system. We present ten practical suggestions of ways in which greater collaboration may be achieved. We conclude by suggesting that Ethiopia is at a crossroads with the current greater decentralisation to the wereda level offering opportunities for enhancing local level justice through greater recognition and involvement of customary institutions while simultaneously guaranteeing and protecting human rights, notably those of women, children and minorities in compliance with national and international norms.

Major Characteristics of Customary Dispute Resolution

  • 190 For a discussion of characteristics in the African context see Penal Reform International (2000:21- (...)

4The studies discussed in the book have identified the following ten somewhat overlapping characteristics of CDR systems:190 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, and 10) Dynamism and responsiveness to change.

1. Voluntary and consensual proceedings

5CDR generally requires the voluntary participation of both parties in a dispute and an agreement to abide by the outcome. CDR institutions usually do not have the kind of coercive mechanisms at the disposal of formal systems and rely on social pressure and the invocation of potential ostracism or exclusion from the community to deal with non-compliance.

2. Litigants’ involvement in selection of local mediators

6CDR institutions usually deliver justice through the vehicle of participant-selected or community-selected mediators and decision-makers. Arbitrators are from within the community and known to the litigants. Those who are selected usually have experience, knowledge or skills in dispute resolution, and they often have a respected and higher status than the litigants. However, in some cases there are hereditary or self-appointed positions.

3. Locally circumscribed constituency

7CDR institutions generally operate locally, that is, they resolve disputes within particular ethnic groups and often within specifically circumscribed geographic locations, often within a community of people who know each other and live within close proximity. However, in a few cases CDR institutions exist that cut across boundaries and have the capacity to resolve inter-ethnic disputes.

4. Public participation

8CDR institutions are usually held in public and often allow for participation by those attending. Rather than being imposed, the outcome is negotiated and discussion may continue till the decision is agreed upon by all those present. The outcome needs to be consensual and requires public approval to enable decisions to be backed by community sanctions of exclusion if required.

5. Accepted and flexible norms, rules and values

9CDR institutions generally deliver justice in accordance with norms, rules and values that are generally known and accepted by participants. However, the rules and evidence are often flexible and can be adapted to particular cases and circumstances.

6. Group-based responsibility

10CDR institutions often consider that the responsibility for the harm rests, not with the individual but with the broader social grouping, often the family or clan. The kin are involved in ensuring that the offender among their midst complies with the verdict and where compensation is required may be expected to contribute.

7. Negotiation and compromise

11CDR systems generally involve negotiation between the disputing parties to try and resolve the case amicably. This usually involves compromise with both parties accepting some measure of responsibility for the dispute and agreeing to the verdict. Rather than one party being viewed as the winner and the other as loosing both parties stand to benefit from reconciliation.

8. Forgiveness and compensation

12CDR institutions often require the loser or wrongdoer to ask for forgiveness and/or pay compensation, rather than imposing a physical punishment or imprisonment. However, sometimes both parties are considered guilty and 259 expected to make amends. Compensation is often paid by one individual, family or clan to another as a form of restorative penalty that enables to parties to be reconciled.

9. Restoration and maintenance of peaceful coexistence

13CDR institutions aim to restore peace and harmony between the disputing family members, neighbours, clan or local group so that former litigants can continue to live together in frequent interaction. Often the litigants are expected to eat and drink together in ‘rituals of reintegration’ involving animal sacrifices to seal their reconciliation and ensure that social harmony is maintained.

10. Dynamism and responsiveness to change191

  • 191 As Keulder notes: ‘[T]hose who have criticized [CDR systems] as being too traditional to promote de (...)

14CDR institutions are not static but have evolved over generations to their current status, and can respond to changes in views and values. Many have evolved in recent times and changed over the past few decades to become more formalized in response to interactions with the formal systems and regional, national or international pressures. There has been increasing use of writing notably for the final contractual agreements. Some CDR institutions have also been written down or codified as in the Gurage case, and have been self-critical and reforming notably regarding gender power relations and discrimination against women and customs considered harmful such as substance abuse and ostentatious feasting.

Advantages of Customary Dispute Resolution

15The studies in this book have documented very significant advantages of the CDR systems, particularly for the sections of the Ethiopian society far or removed from the formal justice system both in terms of the physical location and financial ability. The following ten are among the noteworthy advantages of the CDR systems identified: 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 and 10) Building community cohesion.

1. Accessibility

16Many CDR systems work at a very local level through community mediators and decision makers. Generally, CDR institutions are within walking distance avoiding the need for litigants to pay for transport. They are conducted in the local language and involve almost exclusively oral proceedings obviating the need for litigants or participants to be literate, or know national or regional languages. However, written recordings in some CDR institutions have been evolving and have become commonplace, particularly where decisions involve commitments on the part of litigants which could need verifying and where there is a possibility that formal institutions could later be involved.

2. Timeliness

17Most CDR systems are able to respond immediately or very quickly to disputes that arise before they become serious thereby usually avoiding escalation into conflict. The procedures are generally simple and most disputes can be resolved fairly easily. However, the CDR experts sometimes use delaying tactics, adjournment or postponement of sessions to allow for litigants to ‘cool off’, reconsider or be reconciled on their own or through kin pressure.

3. Limited cost

18The cost of resolving disputes in CDR systems is generally very low. Litigants tend not to need to pay for transport or to hire lawyers or legal experts. Litigants may be expected to provide food and drink for a reconciliation occasion and/or to provide the elders with a small payment, usually in kind and often consumed directly at reconciliation ceremonies. Compensation payments, depending on the severity of the case, may be nominal but are generally more limited than in the formal system, are usually in kind in the form of livestock, and may be subject to negotiation and/or reduction. CDR systems can thus be considered to be cost-effective.

4. Legitimacy and appropriateness

19CDR systems are culturally relevant and often viewed as the most legitimate source of justice to the participants. The systems reflect widely held beliefs, norms and values of the community. They are generally appropriate to local contexts, particularly in close-knit rural communities where people need to cooperate on a daily basis.

5. Restorative capacity

20Most CDR systems focus upon restoring harmony within the community when a dispute has arisen. They operate to reconcile the parties so that they can live in peace and cooperation and recognize the harm done to the community. Often, this is achieved by requiring that the guilty party asks for forgiveness and/or that the aggrieved receive compensation. In the absence of CDR, systems of feuding or revenge may prevail.

6. Participatory procedures

21Many CDR systems conduct proceedings in public places within the community, often at established fora. The victim, offender and the members of the community participate in most aspects of the proceedings. The decisions taken are therefore publicly known and communicated orally, forming part of the local legal norms, and the whole community, particularly the younger generation, are educated in the rules, procedures and means of solving disputes and preventing conflict through the public proceedings.

7. Predictable processes and outcomes

22Most CDR systems operate on the basis of a known set of rules often based upon local case precedence, with established procedures which are well known by all community members. These rules and precedents are communicated orally among those who are responsible for delivering justice and are easily understood by the community members.

8. Enforceable community-based sanctions

23The decisions of most CDR systems are, in their local context, easily enforced. Customary systems tend to be able to ensure compliance through blessings and the threat of curses. Failure to comply can result in social ostracism and being left alone in good and bad times, in effect forcing the litigants to seek to regain community approval by complying with the decision, or alternatively leave the area.

9. Avoidance of coercive measures

24Generally, CDR systems do not have custodial sentences at their disposal and avoid harsh sentences and physical punishments. Problems are often solved before they become very serious resulting in loss of property or life. By paying compensation tΘ victims, offenders provide support and avoid the economic problems and social dislocation for families resulting from imprisonment.

10. Building community cohesion

25CDR systems keep community values alive and help build common ground between members providing a sense of togetherness and a collective spirit which enhances solidarity and self governance which can also be harnessed for community-led development endeavours.

26To conclude one can go so far as to make the argument that many CDR institutions are more democratic, humane and appropriate to local contexts than formal justice systems in the following five respects.

  1. They often provide fora for a wide range of members of the society to participate in the judicial process;

  2. They tend to rely on consensus allowing litigants to argue without interruption until one side is more persuasive;

  3. They seldom impose severe punishments and seek to obtain pardon, reconciliation and compensation payments. They tend to avoid imprisonment, and physical punishments and in extreme cases opt for banishment;

  4. They are better at restoring peace and enabling litigants to continue to live in close proximity and harmony;

  5. They can fairly easily be modified to take account of cultural changes and reforms such as those relating to gender issues and harmful customary practices.

27We do not wish to suggest that all aspects of every customary CDR institution are acceptable or can be seen as conforming with national and international and universal norms and human rights. Major problems with CDR institutions in this respect are discussed in the next section. However, there are principles and procedures common to many CDR institutions that are rational, reasonable and judicious which modern systems could emulate and with which they are beginning to experiment, notably in Western countries that have lost such traditions, such as community service as an alternative to imprisonment and the mediation movement in North America and Scandinavia (ICRC 2004, Hareide 2006).

Limitations of Customary Dispute Resolution

28The studies in this book have shown that CDR systems have some serious limitations especially when seen from the point of view of the core beliefs of modern formal laws and institutions such as the Ethiopian Constitution and the institutional conventions, instruments and machineries in place under it, and international legal norms and conventions. The following five are the major the limitations identified: 1) inequitability, 2) non-compliance with human rights standards, 3) undermining of individual rights, 4) inability to guarantee procedural fairness, and 5) lack of uniformity.

1. Inequitability

  • 192 See, however, the discussion of the role of women in dispute resolution in the introductory chapter

29Firstly, in gender terms, generally women are excluded from participation in CDR justice systems. They are usually not decision makers, and customary mediators and arbitrators are almost always exclusively male.192 However, as Penal Reform International (2001:2-3) argues women are also grossly under-represented on formal court benches in Africa, and the same is true in Ethiopia. Moreover, customary systems like formal ones have evolved to become more gender conscious. Nonetheless, women often do not have the standing to appear before mediators and decision makers in the customary systems on their own and may require a male relative to represent them. CDR institutions may also pass judgments that are against the interests of women, notably regarding matrimonial litigation, divorce settlement, and violence against women, particularly rape, female-genital mutilation, and domestic violence (Meaza 2007).

30Secondly, CDR institutions may not reflect the specific needs, rights and interests of children and young persons, who are often treated the same as adults. For instance, in some traditional cases of homicides girls may be provided in compensation against their will, and more generally girls may not inherit equally from their parents.

31Thirdly, CDR institutions sometimes exclude the participation of minority groups, such as occupational craftworkers or clans that are considered inferior. There has been very widespread discrimination of such minorities in political, economic, social and cultural terms, and CDR institutions tend to reproduce existing hierarchies and domination (Pankhurst 1999, 2003).

32Finally, the compromising spirit that is a major feature of most customary systems may reflect the existing power structure and reinforce all whole range of inequalities based on gender, age or other status.

2. Non compliance with the human rights standards

  • 193 An example is the offence of elopement in Gambella.

33CDR systems operate on the basis of their own laws and procedures. These may differ significantly from those written and passed by the legislative bodies. Thus individuals may find themselves convicted of a crime that is unknown to law193 or subject to a consequence that is not supported by the formal legal system.

3. Undermining of individual rights

34Because CDR systems are often based upon collective responsibility for wrongs that are defined as those things which harm the community as a whole rather than individuals, they generally do not reflect and fully respect the individual human rights provisions of the Constitution or those enshrined in international instruments. This is most notable in the case of women’s reproductive rights, property inheritance and division during divorce, and violence against women. Children’s rights may also be undermined. Moreover, individuals may be drawn into disputes for which they were not responsible.

4. Inability to guarantee procedural fairness

35An often expressed concern about CDR systems is that they can be perceived as corrupt and biased. Traditional leaders or arbitrators may favour their kin or be open to bribery. In some CDR systems persons are held responsible for behaviour, not on the basis of objectively assessed and reliable evidence, but rather on the basis of their willingness to give the requisite oath, or upon the word of spiritual powers as expressed by spirit mediums.

5. Lack of uniformity

36There are a large number of ethnic groups in Ethiopia and most of them have their own specific CDR institutions. There are significant differences between these systems. Thus the justice received may be dependent upon ethnicity and locality and not solely upon the issues or matters in dispute. This can give rise to different verdicts about the same offence or the same verdicts for different offences resulting in lack of consistency and potentially unfair judgments. Furthermore, as pointed out by several studies in this book, CDR systems may not be able to cope with ‘modern’ contexts and types of disputes in which they are not usually involved.

Coexistence and collaboration without mutual recognition

37It has been noted that, currently, the formal justice system and CDR systems operate simultaneously and in the same place with limited overt support or recognition of each other. The formal system officially ignores the existence of the CDR systems or views them as irrelevant to the legal system and gives them no credence or legitimacy in areas other than those recognized by the Constitution. Conversely the CDR systems operate without regard to the claims of the formal system to jurisdiction or legitimacy. Each system has its own sphere of influence and sometimes client group and operates relatively successfully within it. However, in a number of cases there is significant collaboration between customary and state systems and even some acknowledgement of the former by the latter as noted in the Somali case study in this book.

38In practice the state has tended to rely on the formal justice system with limited attempts to involve customary institutions. In the early EPRDF period there were cases of yeselam komité, ‘peace committees’ that sought to involve local elders and customary leaders for instance in finding culprits responsible for cutting trees from community forests. (Pankhurst 2001a). However, there is the possibility that such collaboration can tarnish the reputation of customary leaders.

39The State has at times organised ‘peace and democracy’ conferences under the former Regional Affairs Bureau of the Prime Minister’s office, to address conflicts between groups such as between the Borana and Garri, between the Afar and Somali, and between different Gambella factions, and sometimes sought to co-opt local elders to participate in such processes (Asknake 2006:942). There have also been a number of initiatives by NGOs to advocate peace meetings and promote reconciliation, some trying to involve women in peace conferences, to counter gender biases for instance in Gambella (Sommer 2005, 2007). However, overall Asnake concludes that: ‘the participation of civil society and the use of traditional institutions in conflict management processes are abysmally low’ (2006:942).

40In practice there are significant informal linkages between the two systems at the local level, particularly in remoter contexts. The formal system often relies on customary institutions to deal with more simple and localised cases often relating to family matters, to review cases and forward those that are complex, serious and involving matters that are considered the jurisdiction of the state system such as land disputes and murder, and to ensure that decisions taken in the courts are executed and that the parties comply with the verdicts (Pankhurst 2006b).

41The coexistence of the two systems has also given disputants a choice of alternative ways of resolving their disputes, such that if a verdict is considered unfair in one system litigants may resort to the alternative. The availability of both systems also provides most people with ready access to at least some dispute resolution institutions. The maintenance of CDR systems may strengthen and legitimize local customs and practice and keep people more involved in community affairs. They may support the development of cultural awareness and pride thereby enriching the cultural heritage and contributing to the development of Ethiopia as a great pluralist nation.

42However, the fact that there is no official link between the formal and the CDR systems has given rise to several problems. One of such problem is the promotion of ‘forum shopping’ and a multiplicity of proceedings with disputants dissatisfied with the formal or CDR process turning to the other to again try to come out as more advantaged or as the winner. Though this creates choices and options it may also result in abuses, particularly if there is no coordination between the two systems. This can also undermine the legitimacy and credibility of both systems. It further adds unnecessary time, expense and complexity to proceedings thereby making the justice system incapable of being principled. Importantly also, due to the absence of any formal link, the assumption of jurisdiction by both systems on a given dispute might lead to insecurity, instability and increase risk of conflict within a community.

Recommendations

43The reality is that CDR systems do exist throughout Ethiopia and are delivering justice to a broad sector of the Ethiopian society side by side with the formal justice system. As noted in the introductory chapter of this book the 1995 Constitution of Ethiopia has formally recognized the operation of customary laws in family and personal matters with respect to consenting disputants. However, as noted, the Constitution did not recognize any formal space for the customary laws and courts regarding other civil and the whole of criminal matters. This question deserves reviewing.

44It should be stressed that attempts to simply or mechanically incorporate traditional and informal justice forms into the formal state system in other African countries in post-colonial contexts have often failed (Penal Reform International 2000:129). This resulted in loss of positive attributes of customary systems, by undermining their legitimacy, reducing their flexibility and ability to adapt to changing circumstances, making them unnecessarily bureaucratic, fixing them through written codification, subjecting them to interference and relegating them to an inferior status.

45There are also serious risks for individual human rights, notably of women, children and minorities that need to be taken into consideration and protected through federal as well as state legislation and legal provisions. The advocacy work of the Ethiopian Women ‘Lawyers’ Association achieved considerable progress in this respect in obtaining the revision of the Family Code in 2000 and the Penal Code which was renamed the Criminal Code in 2004. This removed the discrimination between men and women apparent in the 1960 Civil Code which had differential marriage ages for men and women, designated the husband as the head with the right to chose common residence and manage common property, disallowed divorce until fault was proved, and did not recognize common law marriages. Likewise, the Penal Code of 1957 criminalised abortion, did not recognise or criminalise domestic violence, or female genital mutilation, and provided an inadequate penalty for rape. However, despite this progress at Federal level, three Regions have still to adopt their enacted family laws (Meaza 2007:100-2)

46Maintaining the state and customary systems separate which seems to have become an emerging consensus among academic writers, should not prevent them from borrowing from each other or mean that there is no scope for the systems to work together (Penal Reform International 2000:136). A number of different options pursued by various African countries, their advantages and risks have been discussed by Kohlhagen in his background chapter in this book.

47The following ten ways of enhancing partnership and collaboration are worthy of consideration: 1) rethinking constitutional choices regarding customary laws and courts, 2) developing institutional linkages between the two systems, 3) providing appropriate support to acceptable CDR institutions, 4) developing relationships between actors in the two 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) carrying out further research on CDR institutions and their relationships with the formal justice system, and 9) establishing pilot collaborative projects for potential replication and upscaling, and 10) sharing experiences with other countries on reconciliation of state law and CDR.

1. Re-thinking Constitutional and legal choices regarding customary laws and courts

  • 194 Quoted by Kirubel Tadesse in an article entided ‘Legal pluralism: its promises and pitfalls for Eth (...)

48In view the pervasive existence of CDR systems particularly throughout the rural society of the country, the constitutional limitation of their jurisdiction to only family and personal matters may not serve the cultural needs of the society. Therefore, ways of expanding the jurisdiction of the CDR systems to an acceptable level should be considered, while making sure that individual human rights and those of women, children and minorities are recognized and respected. If this recommendation is acceptable, the approaches to be taken in relation to civil matters and criminal matters should be carefully looked into. Such a decision may be best taken in consultation with the relevant sections and stakeholders within the society at federal, regional and local levels. In a similar argument, based on his law thesis in 2004, Alemayehu Fentaw argues that the Federal Government should: ‘Extend full recognition to the ethnically based customary law systems; particularly redraw the boundaries of formal legal pluralism to accommodate at least the well-established and dominant customary dispute (criminal) settlement mechanisms; stated differently, leave elbowroom for the non-state actors’.194

2. Building institutional linkages between the formal and CDR systems

  • 195 A similar model is that of complementary medicine where the western medicine and traditional medici (...)

49Linkages between state and customary systems can be seen as facilitating cooperation between the two systems and might be best visualized as using each system to complement the other.195 There is a continuum along which linkages can be built from sharing information, through sharing jurisdiction, to sharing responsibility for individual matters. Recommendations can be provided along that continuum. By so doing, the legal system can take advantage of the benefits of the CDR systems that were articulated in the studies, while ensuring that they respect the concern of international and national human rights and those of women, children and minorities.

3. Strengthening and supporting acceptable CDR Justice Systems

50This would mean supporting the development of both the formal and the CDR systems simultaneously with a view to eventually having a fully functioning pluralist legal system that has two or more aspects to it. The support to be given to the CDR systems should be done while attempting to reform the unfair and discriminatory aspects of the former as documented by the studies. The following ten examples are potential ways of supporting the CDR systems and promoting a more fruitful partnership and collaboration with the formal justice system:

    • 196 Several case studies in the book notably that on Gambella by Dereje and on Somali by Mohammed and Z (...)

    Providing financial support to cover basic costs associated with customary procedures and more globally, to provide budget support to selected CDR institutions identified locally that fulfill acceptable criteria (at regional level);196

  1. Recognizing and supporting local meeting places and fora; and where appropriate improving shelter options.

    • 197 This might be done by videotaping processes and establishing local, regional and national libraries (...)

    Recording decisions taken in CDR processes.197 These records can be used to learn how the CDR system operates and to assist in providing relevant background in cases taken thereafter to the formal courts.

  2. Providing fora for the exchange of information about customary practices and profiling successful and difficult matters brought to them for resolution.

  3. Encouraging dissemination of information and publication of the CDR and formal court decisions taken so that they can be known throughout the country, and encouraging them to undertake self-critical reforms.

  4. Providing training and workshops to those involved in CDR institutions on the legal provisions in the country, and the rights of particular sections of the population, notably women, children and minority groups.

  5. Organising workshops for a wide range of stakeholders including government, civil society, business, etc to debate the issues and potentials and options for greater collaboration between the formal and CDR justice systems.

  6. Promoting state and private media discussion of the issues relating to legal pluralism in newspapers, radio, and television.

  7. Assessing public opinion of this issue of justice system reforms in towns and rural areas in the different regions through surveys and polls.

  8. Conducting awareness campaigns about the issues among the younger generation through schools and clubs.

4. Developing relationships between actors in the formal justice and CDR systems

51The success of any program to link the two systems will depend to a great deal on the nature of the relationships that exist on the ground. Should a decision be taken to attempt to build linkages then prosecutors, police and judges in the formal system must work to establish a climate of confidence and mutual trust in which discussions, exchange of information and division of labour with CDR actors can occur.

5. Supervising and monitoring the performance of CDR systems in key areas

52This could be an interim measure if and until jurisdiction in certain areas such as homicide, are clearly given to the formal system and this is accepted by the actors in the customary system. It has been shown that the customary rules in certain areas do not live up to the minimum standards of human rights. The question of rights of women, children and minorities are a major concern. Moreover, implicit in some CDR systems is an acceptance or at least toleration of self-help in engaging in killings in certain cases such as sorcery and revenge, and more generally that the customary systems are sometimes not reliably effective in dealing with homicide cases (Donovan and Getachew 2003). The Ethiopian Government has to therefore monitor the activities of the CDR systems in such fundamental areas of concern. Efforts to address these shortfalls should embrace carefully designed legal and educational methods.

6. Encouraging reform of CDR institutions notably regarding gender, minorities and harmful customs

53Some reform of CDR institutions regarding gender discrimination and harmful customs is already happening spontaneously as the Gurage example shows. This could be enhanced through dialogue with associations such as the Ethiopian Women’s Lawyers Association, and other women, child and minority rights groups. Given the flexibility of CDR institutions changes can be instituted once agreed and advocacy work to influence elders and CDR institutions that have customary legitimacy and popular recognition could be an important avenue for promoting locally accepted, instituted and implemented change, notably regarding gender discrimination, and child and minority rights.

7. Promoting the writing down and codification of CDR institutions

54The writing down of Afar customary law and the codification of the Gurage Kitcha Customary law are good examples of how customary law can be both codified and revised, updated and improved. Similarly support for codification of other customary law could be an important step in cultural self determination, recognition and use of CDR institutions and what is valuable about them, while at the same time providing a forum for discussion, revision, updating and transforming customary law to comply with national and international norms.

8. Assessing CDR institutions in the country through further research

  • 198 Quoted by Kirubel Tadesse in Capital vol. 9, no 465, November 11, 2007 p.28.

55Though this book provides cases studies from each of the Regions of Ethiopia it was based on a small project involving a very limited field period and does not cover the wide range of CDR institutions in the country. There is a great need for further research particularly in the southwest to understand the prevalence, status, workings of CDR institutions and their relationships with the formal justice systems throughout the country. As the proceedings of the workshop on Ethiopia’s justice system reform (MCP 2002:11) noted: ‘Research must be carried out on how to use alternative dispute resolution mechanisms (ADR) for the purposes of settling disputes. There should also be continuous observation to check whether there might be problems in using the mechanisms. The mechanisms that are found to be working should be developed and strengthened.’ Likewise, Alemayehu Fentaw based on this law thesis in 2004 argues that the Federal government should: ‘Launch a state-led statewide field research by legal anthropologists with an eye to studying and analysing all of the customary law systems within its boundaries and conforming them to the minimal standards for adequate protection of human rights of its citizens’198 There should also be action-oriented research with regards to rights of women, children and minorities and ways of encouraging customary to be self-critical and institute reforms, as have already been taking place in some CDR systems.

9. Establishing pilot collaboration projects for potential replication and upscaling

56Prior to implementing any constitutional change or amendment of legal jurisdiction and institutional structure it would be judicious to experiment with small-scale pilot projects of greater partnership and collaboration between the formal and informal justice systems and monitor, assess and evaluate the outcome within a specified timeframe. This could be done in selected conducive localities starting with greater recognition of each other by actors in the two systems, the development of mutual trust and a discussion of the cases with which they are dealing.

57This could involve the following three steps. First, it may be possible to formalise a clearer division of labour, in which the customary systems deal with more simple cases to relieve the burden on the formal system to concentrate on more serious cases. Second, the customary systems may be able to play a greater role in the implementation and follow up of formal court decisions thereby also reducing the tasks of the formal system. Third, to avoid court congestion and prison crowding the customary institutions could be involved in organising and managing reconciliation and community service rehabilitation alternatives to custody to restore peace among litigants, as has been experimented successfully in a number of other countries (ICRC 2004).

10. Sharing experiences with other countries on reconciling state law and CDR

58As Kohlhagen points out in his background chapter in this book there are a range of ways of reconciling state law and local realities. The different experiments in the post-colonial African contexts present specific advantages and risks relating to codification, integration, incorporation, tolerated self-regulation, cooperation, and innovation.

59There can be much to be learnt from sharing experiences with other countries, particularly in Africa, with regard to the potentials and limitations of justice reform designed to give a greater voice to CDR and enhance legal efficacy and pluralism. This could be achieved through workshops, exchange visits, comparative research projects, publications, media debates and civil society discussions. Comparative experiences in protecting and enhancing the rights of women, children and minorities should be part of this endeavour.

The challenge of Decentralisation: Ethiopia at justice cross-roads

60Since most CDR processes take place at the local level, the current trend of greater decentralisation from the Federal level beyond the second level of the regional states to the third wereda level provides a unique opportunity with regard to enhancing justice at the local level. On the one hand the state judicial system could enter a genuine dialogue with customary institutions and create a partnership that could enhance local democratic governance and the efficiency of justice delivery. On the other hand, the greater state involvement to a lower level could be a means to strengthen the formal justice system and implement more uniform legal norms, procedures and guarantees particularly where the state machineries have been weak, and especially with regard to protecting and enhancing individual human rights, notably those of women, children and minorities.

61It can be hoped that this opportunity for constructive change will be seized and exploited judiciously to allow for more recognition and involvement of customary institutions by promoting tolerant, flexible and cooperative relations between the wereda and community levels, as well as guaranteeing individual and minority rights and ensuring understanding of and compliance with national and universal international norms.

Notes

190 For a discussion of characteristics in the African context see Penal Reform International (2000:21-38).

191 As Keulder notes: ‘[T]hose who have criticized [CDR systems] as being too traditional to promote development are often too simplistic in their arguments. They are bound up in the traditional-modern dichotomy in which ‘traditional’ is equated with ‘backward’ and ‘modern’ with ‘advanced’. Development can thus only occur within a ‘modern’ framework. The main problem with this equation is that it is based on a very static view of tradition. It ignores the fact that traditions are often ‘invented’ and hence, very ‘modern’ in content’ (1988:294, cited in Penal Reform International 2000:1).

192 See, however, the discussion of the role of women in dispute resolution in the introductory chapter.

193 An example is the offence of elopement in Gambella.

194 Quoted by Kirubel Tadesse in an article entided ‘Legal pluralism: its promises and pitfalls for Ethiopia’, published in Capital vol. 9, no 465, November 11, 2007 p.28.

195 A similar model is that of complementary medicine where the western medicine and traditional medicine work together to resolve a problem. Perhaps a physician splints a broken bone and applies a cast and herbs are used to manage pain and swelling, while massage and physical therapy keep muscles from atrophying.

196 Several case studies in the book notably that on Gambella by Dereje and on Somali by Mohammed and Zewde suggest that mediators in customary institutions could be remunerated.

197 This might be done by videotaping processes and establishing local, regional and national libraries of those videos. It could involve requesting universities and other independent bodies to further study and document how customary processes operate. It might be carried out by supplying support staff to these processes for the purposes of creating a record of proceedings, procedures, rules, norms and laws.

198 Quoted by Kirubel Tadesse in Capital vol. 9, no 465, November 11, 2007 p.28.

© Centre français des études éthiopiennes, 2008

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