Grass-roots Justice in Ethiopia

Grass-roots Justice in Ethiopia

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301 pages

Description

This book presents a timely review of the relations between the formal and customary justice systems in Ethiopia, and offers recommendations for legal reform. The book provides cases studies from all the Region of Ethiopia based on field research on the working of customary dispute resolution (CDR) institutions, their mandates, compositions, procedures and processes. The cases studies also document considerable unofficial linkages with the state judicial system, and consider the advantages as well as the limitations of customary institutions with respect to national and international law. The editor's introduction reviews the history of state law and its relations with customary law, summarises the main findings by region as well as as on inter-ethnic issues, and draws conclusions about social and legal structures, principles of organization, cultural concepts and areas, and judicial processes. The introduction also addresses the questions of inclusion and exclusion on the basis of gerontocratic power, gender, age and marginalised status, and the gradual as well as remarkable recent transformations of CDR institutions. The editor's conclusion reviews the characteristics, advantages and limitations of CDR institutions. A strong case is made for greater recognition of customary systems and better alliance with state justice, while safeguarding individual and minority rights. The editors suggest that the current context of greater decentralization opens up opportunities for pratical collaboration between the systems by promoting legal pluralism and reform, thereby enhancing local level justice delivery. The editors conclude by proposing a range of options for more meaningful partnership for consideration by policy makers, the legal profession and other stakeholders. In memory of Aberra Jembere and Dinsa Lepisa. Cover: Elders at peace ceremony in Arbore, 1993.


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Date de parution 28 juillet 2016
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EAN13 9782821872349
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Cover

Grass-roots Justice in Ethiopia

The Contribution of Customary Dispute Resolution

Alula Pankhurst and Getachew Assefa (dir.)
  • Publisher: Centre français des études éthiopiennes
  • Place of publication: Addis-Abeba
  • Year of publication: 2008
  • Published on OpenEdition Books: 28 juillet 2016
  • Serie: Corne de l'Afrique contemporaine
  • Electronic ISBN: 9782821872349

OpenEdition Books

http://books.openedition.org

Printed version
  • ISBN: 9789994480821
  • Number of pages: 301
 
Electronic reference

PANKHURST, Alula (ed.) ; ASSEFA, Getachew (ed.). Grass-roots Justice in Ethiopia: The Contribution of Customary Dispute Resolution. New edition [online]. Addis-Abeba: Centre français des études éthiopiennes, 2008 (generated 24 August 2016). Available on the Internet: <http://books.openedition.org/cfee/471>. ISBN: 9782821872349.

This text was automatically generated on 24 août 2016.

© Centre français des études éthiopiennes, 2008

Terms of use:
http://www.openedition.org/6540

This book presents a timely review of the relations between the formal and customary justice systems in Ethiopia, and offers recommendations for legal reform. The book provides cases studies from all the Region of Ethiopia based on field research on the working of customary dispute resolution (CDR) institutions, their mandates, compositions, procedures and processes. The cases studies also document considerable unofficial linkages with the state judicial system, and consider the advantages as well as the limitations of customary institutions with respect to national and international law. The editor's introduction reviews the history of state law and its relations with customary law, summarises the main findings by region as well as as on inter-ethnic issues, and draws conclusions about social and legal structures, principles of organization, cultural concepts and areas, and judicial processes. The introduction also addresses the questions of inclusion and exclusion on the basis of gerontocratic power, gender, age and marginalised status, and the gradual as well as remarkable recent transformations of CDR institutions.

The editor's conclusion reviews the characteristics, advantages and limitations of CDR institutions. A strong case is made for greater recognition of customary systems and better alliance with state justice, while safeguarding individual and minority rights. The editors suggest that the current context of greater decentralization opens up opportunities for pratical collaboration between the systems by promoting legal pluralism and reform, thereby enhancing local level justice delivery. The editors conclude by proposing a range of options for more meaningful partnership for consideration by policy makers, the legal profession and other stakeholders.

In memory of Aberra Jembere and Dinsa Lepisa.

Cover: Elders at peace ceremony in Arbore, 1993.

Alula Pankhurst

Alula Pankhurst is an Associate Professor in social anthropology who has taught at Addis Ababa University, and written articles on dispute resolution and peace-making. [Editor's note: Alula Pankhurst is currently the Young Lives Ethiopia Country Director]

Getachew Assefa

Getachew Assefais an Assistant Professor of Law at Addis Ababa University, who has published on human and child rights, constitutional law, and legal education.

Table of contents
  1. The Editors

  2. Preface

  1. Acknowledgements

  2. Acronyms

  3. Glossary

  4. Understanding Customary Dispute Resolution in Ethiopia

    Alula Pankhurst and Getachew Assefa
    1. State and Customary Law in Ethiopia
    2. Customary Dispute Resolution in the Regions of Ethiopia
    3. Conclusion
  5. State Law and Local Law in Sub-Saharan Africa

    Dominik Kohlhagen
    1. State law and ‘living law’ in sub-Saharan Africa
    2. The experience of African common law countries
    3. The situation in African civil law countries
    4. Conclusions
  6. Regional Case Studies

    1. 1. Customary Dispute Resolution in Afar Society

      Getachew Talachew and Shimelis Habtewold
      1. Profile of the Region
      2. Judicial structures and conflict resolution
      3. Procedures of Dispute Resolution
      4. Substantive rules applied and remedies available under the Maro
      5. Execution of the decision
      6. Assessment of Maro
      7. Integrations of Maro with formal justice systems
      8. Conclusion and Recommendations
      9. List of Informants
    2. 2. Customary Dispute Resolution in Amhara Region: The Case of Wofa Legesse in North Shewa

    1. Melaku Abate and Wubishet Shiferaw
      1. Profile of the Region and the selected study area
      2. Dispute resolution in Amhara Region
      3. The case study: Wofa Legesse
      4. Types of Cases
      5. Some Case Examples
      6. Observations of the elder Agafari, Ato Bayu Mengiste
      7. Assessment of the CDR institution
      8. List of Informants
    2. 3. Customary Dispute Resolution in Beni-Shangul Gumuz with Emphasis on Shinasha Society

      Bayisa Besie and Lemessa Demie
      1. Profile of the Region
      2. Customary dispute resolution in the region
      3. CDR mechanisms in Shinasha society
      4. Conclusion
      5. List of Informants
    3. 4. Customary Dispute Resolution Institutions: The Case of the Nuer of the Gambella Region

      Dereje Feyissa
      1. Profile of Gambella Region
      2. General observations of CDR among the Nuer
      3. Ruec-wec
      4. Ring (Diversional right)
      5. Guk (Spiritual Right)
      6. Gurtong
      7. Description and analysis of the institution of Kuaar Muon
      8. Evaluation and comparison with the formal institutions and laws
      9. Limitations of the CDR
      10. Conclusion and recommendations
    4. 5. Customary Dispute Resolution in Harar

      Biruk Haile and Jira Mekonnen
      1. Profile of the Region
      2. Harari Customary Institutions: An Overview
      3. CDR institutions in Argobba
      4. Evaluation of the CDR institutions
      5. Integration of CDR mechanisms in Harar with the Formal Justice System
      6. Recommendations
      7. List of Informants
    5. 6. Customary Dispute Resolution Institutions in Oromia Region: The Case of Jaarsa Biyyaa

    1. Areba Abdella and Berhanu Amenew
      1. Profile of the Region
      2. Institutions of Customary Dispute Settlement in Oromia Region: An Overview
      3. The Jaarsa Biyyaa institution
      4. The Qalluu Institution
      5. The Ateetee Institution
      6. Case Study: The Jaarsa Biyyaa
      7. Evaluation of the Jaasa Biyyaa Institution. Participation and protection of vulnerable groups
      8. List of Informants
    2. 7. Customary Dispute Resolution in the Somali State of Ethiopia: An Overview

      Mohammed Mealin Seid and Zewdie Jotte
      1. Profile of the Region
      2. CDR in the Somali Regional State
      3. Description of CDR System in the Regional State
      4. The Dispute Resolution Process and its Outcomes
      5. Existing Links between the CDR and the Formal System
      6. Advantages and Disadvantages of the CDR System
      7. CDR System and its impact on Human Rights
      8. Conclusion
      9. List of Informants
    3. 8. Customary Dispute Resolution in the SNNPRS: The Case of Sidama

      Ayke Asfaw and Mekonnen Feleke
      1. Profile of the Region
      2. Customary Dispute Resolution Institutions in the Region
      3. Sidama Customary Dispute Resolution
      4. Examples of dispute cases
      5. Assessment of the Sidama CDR institutions
      6. Recommendations
      7. List of informants
    4. 9. Customary DisputeResolution in Tigray Region: Case Studies from Three Districts

      Shimelis Gizaw and Taddese Gessese
      1. Profile of the Region
      2. CDR institutions
      3. Linkages with existing social and cultural institutions
      4. Use of CDR in the Region
      5. The Abbo Gereb Institution of Wajirat
      6. Critical Assessment of the CDR institutions
      7. Conclusions
      8. Recommendations
      9. List of Informants
    1. 10. Customary Dispute Resolution in Addis Ababa, with Reference to Yeka Kifle Ketema

      Sebsib Belay
      1. Profile of the region and area
      2. Customary Dispute Resolution Cases
      3. Description of the CDR Process
      4. Evaluation of the CDR
      5. Assessment of the CDR Institution
      6. Recommendations
      7. List of Informants
    2. 11. Alternative Commercial Dispute Resolution Mechanisms in Addis Ababa: The Case of Merkato

      Mintiwab Zelelew and Mellese Madda
      1. Profile of the Area
      2. Types of Dispute
      3. Setting the CDR system in motion
      4. The Dispute Settlement procedures
      5. Links to the formal and informal justice system
      6. Attractions of the Shimgilinna System
      7. Arbitration
      8. Conclusion
      9. Recommendations
      10. List of Informants
    3. Facing the Challenges of Customary Dispute Resolution: Conclusion and Recommendations

      Getachew Assefa and Alula Pankhurst
      1. Conclusion
      2. Major Characteristics of Customary Dispute Resolution
      3. Advantages of Customary Dispute Resolution
      4. Limitations of Customary Dispute Resolution
      5. Coexistence and collaboration without mutual recognition
      6. Recommendations
      7. The challenge of Decentralisation: Ethiopia at justice cross-roads
  1. References

The Editors

Alula Pankhurst (Associate Professor of Social Anthropology) has taught at Addis Ababa University for 16 years. He completed his BA at the University of Oxford in Oriental Languages (Arabic and Ge’ez), and his MA and PhD in social anthropology at the University of Manchester. He has written articles on dispute resolution and peace-making, resource-based conflict, indigenous institutions and associations, power and agency, poverty and wellbeing, pilgrimages and migration, and HIV/AIDS in Ethiopia. He produced a book based on his PhD thesis on resettlement, and has edited volumes with colleagues on marginalised occupational minorities, migration and displacement, natural resource management and funeral associations, as well as bilingual books with Writers for Ethiopian Children. [Editor’s note: Alula Pankhurst is currently the Young Lives Ethiopia Country Director].

Getachew Assefa (Assistant Professor of Law at Addis Ababa University) received his LL.B. from Addis Ababa University in 1996 (with Distinction) and his LL.M from the University of San Francisco School of Law, USA, in 2001. He has served in several academic positions such as Dean of the Law Faculty of the Ethiopian Civil Service College and Administrative Officer of Addis Ababa University. He has undertaken a number of studies some of which have been published in the areas of human rights law, child rights, constitutional law, judiciary and legal education. He is the co-author (with Professor Dolores A. Donovan) of ‘Homicide in Ethiopia: Human Rights, Federalism and Legal Pluralism’ published in The American journal of Comparative Law, Vol. 51, No.3; 2003.

Preface

Much of the justice that is delivered in Ethiopia is provided at a very local level using Customary Dispute Resolution (CDR) institutions and mechanisms. The studies in this book have shown that CDR systems are vibrant and prevalent throughout the country at a local level and are the dominant justice systems in the peripheral and pastoralist areas. The situation differs somewhat in urban areas where the influence of the formal justice system can be felt most strongly. But even in urban areas such as the capital city Addis Ababa, CDR systems still operate and perform an important function in the community. However, the role they play is often not understood and recognised.

The past and present governments of Ethiopia have undertaken major reforms of the whole justice system in the country, with the goal of modernizing the legal system. The focus has been on improving the functioning of the formal system and its objective can be seen as making the formal system the prevalent and dominant justice system in the country. However, there is a great deal of distance to travel in achieving those goals, and the scope for accommodating CDR institutions and collaboration between the formal and customary systems while protecting individual human rights and those of women, children and minorities deserves further consideration.

It is believed that this study can make a positive contribution to the process of reforming the justice system. By demonstrating the reality that CDR systems carry out valuable and important work in the justice sector in the country, the studies point to the importance of paying attention to and learning from customary systems. Ethiopia has the potential to develop a unique legal system that reflects its distinctive cultural heritage, meets the needs of its people and befits a country that is fully engaged in world affairs. This potential is more likely to be actualised if the country takes steps to ensure that what is best about existing CDR systems is not lost but preserved, maintained and incorporated as integral to Ethiopian justice.

The context of decentralisation from the Federal State to the Regional States and recently to the wereda level provides an unparalleled opportunity for fostering a genuine dialogue between federal, regional, wereda and community justice institutions. This juncture offers a rare potential for bridging the disconnect between the national and the local levels and enhancing mutual cooperation. The formal justice system can recognise customary institutions and benefit from their support in reducing caseloads, whereas the customary systems can be made aware of national and international norms and be assisted to reform and adapt to the contemporary world.

Research design and process

The studies incorporated in this book were sponsored by the Embassy of France at the request of the Ethiopian Ministry of Justice. The research stages were designed and supervised by a team of lawyers and a social anthropologist (the Steering Committee) working under the auspices of the Ministry of Justice and organized by the French Centre of Ethiopian Studies. Close links were established with researchers at Addis Ababa University and the Civil Service College.

The objective of the research was to provide a survey of CDR systems currently operating in Ethiopia, with a view to recommending whether and if so, how CDR systems might be integrated with or linked to formal systems. The goal of the research was to contribute to the current efforts to reform the justice system so that it may improve the services provided to the community.

The Steering Committee developed a structure for conducting the research, recruited the researchers, and provided them with a detailed checklist of questions and formats for oral and written reporting. Teams of two researchers from complementary disciplines, one student from anthropology and the other from law went together to each of the Regional States of Ethiopia. Two teams were formed in Addis Ababa given a particular interest in commercial law in the Mercato area. Due to security problems, Gambella Region was initially excluded. However, Dereje Feyissa, a social anthropologist who had worked in the area on related topics, was able to cover the issues raised and wrote a chapter on the Region which has been included in the book.

The research was carried out between February and March 2004 (except the Gambella study which was carried out in May and June) in two phases of one week to ten days each with a review workshop in between. The first phase sought to provide an overview of the dispute resolution mechanisms/institutions within each region, mapping the types and basic characteristics. Prior to embarking on the first phase, the student researchers were involved in a training workshop in February 2004 during which their assignments and the research methodology were explained and discussed. After the conclusion of the first phase, the researchers were asked to present their findings at a one-day workshop held on March 6, 2004. The purpose of this workshop was to assess the results and assist the researchers in selecting an area of concentration for the second phase of their research. At this point the work of one of the anthropology students working in Addis Ababa was deemed by the steering committee to be inadequate and a substitute researcher was sought and carried out the subsequent work. The second phase focused attention upon a selected dispute resolution institution in a specific locality within each region. For this phase, more detailed research questions and a reporting format were designed and provided to the researchers. At the conclusion of the second phase the researchers presented their findings at a workshop held on April 3, 2004.

The Steering Committee held numerous meetings to review the findings, comment on the conclusions on the basis of their prior experience and expertise and provide insights into areas that were not fully or adequately covered in the research reports. The Steering Committee went through the recommendations to assess their validity and propose relevant options and suggestions drawn from the individual studies and adapted them to reflect the situation in all the regions and in terms of the federal context.

The chapters included in the book are reduced and edited versions of research reports written jointly by the anthropology and law students who co-wrote the individual reports, except for the report on Gambella which was written by an experienced anthropologist. In the case of Addis Ababa, the Mercato study was carried out jointly by the anthropology and law students, whereas the other team of two researchers wrote separate reports. The initial anthropology oral report lacked substance so a new study was carried out by another researcher which has been included. The law student’s report focused on the Social Courts which are established by the state justice system and are therefore more formal than most of the customary institutions considered in this study and was therefore not included in the book. All the reports were considerably reduced for publication, omitting general sections, objectives, methodology etc., and were edited to avoid repetitions and inconsistencies and improve the presentation. The views expressed are those of the authors and do not necessarily reflect those of the steering committee, the editors or the sponsoring organisations.

Choice and definition of terms: ADR, IDR or CDR?

A number of expressions may be considered to characterise the subject matter with which this project is concerned: Alternative Dispute Resolution (ADR), Informal Dispute Resolution (IDR), Customary Dispute Resolution (CDR). Each of these terms highlights particular aspects of institutions under review, and each of these terms offers advantage and disadvantages, which should be taken into consideration.

Alternative Dispute Resolution (ADR)

The project had been using as its working title for the subject matter ‘Alternative Dispute Resolution’ (ADR). This term has become widely recognised internationally on the assumption that in many parts of the world the formal, state-organised legal system is prevalent and predominant, and other forms of dispute resolution offer alternatives. The expression ADR has the merit of suggesting that such forms of justice are different from those established by the state and legal institutions, and that they provide other avenues or options for resolving conflicts.

However, in the Ethiopian context in some regions of the country these forms of dispute resolution are fairly strong in contrast to the state justice system and they have important roles to play which may be thought to go beyond offering ‘alternative’ justice. In fact, in some regions they may be considered the ‘primary’ justice system.

Informal Dispute Resolution (IDR)

One of the most salient features of the kinds of dispute resolution institutions considered in this study is the fact that they tend to be ‘informal’, that is to say that they are generally not formally recognised, tend to operate without written records, tend to vary from place to place and group to group and are often not organised into a clear hierarchical structure. The expression IDR has the merit of highlighting the distinction with the formal, state-organised and legally recognised layered structure and emphasises the flexible and informal nature of the institutions under consideration.

However, in the Ethiopian context, some of these institutions have highly elaborate rules, many have been gradually become more formal, and some collaborate at least informally with the legal or state authorities, and in a few states recieve some recognition or even support. Some CDR institutions are also organized like the formal justice system with three tiers: first instance, appeal and cassation. The term informal also characterises such institutions primarily in negative terms as lacking formality and may not convey the importance that they hold for the people who make use of them.

Customary Dispute Resolution (CDR)