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THE USE AND ABUSE OF CONSENT IN CUSTOMARY DISPUTE RESOLUTION MECHANISMS (CDRMS) THROUGH SHIMGILINNA [Abstract ID: 0703-04]
Article 34 (5) of the Ethiopian Constitution states that “disputes relating to personal and family laws” can be resolved “in accordance with religious or customary laws” if the disputing parties consent. Based on a qualitative research among the Amhara of Ankober, this paper shows how the principle of “consent”, which has nowhere been elaborated in other subsidiary laws is used and abused in the local context and thereby profoundly affects the culture of customary dispute resolution. Parties to a dispute should give “consent”, in the first place, to get their cases heard in the shimgilinna (council of elders). However, it could be observed that in many cases plaintiffs and defendants cancel their consent at any stage and at any time during litigation when either of them believes the formal court is more likely to provide them a more favourable judgement. Some litigants also purposely enter into shimgilinna to “spy” a competence of an adversary would a case be taken to court, or to tactically make the adversary expose evidences which would be later used in the court proceedings. Similarly, when either of the parties believes the court would give them an unfavourable judgement, they would invoke their willingness to end a case in shimgilinna. In this way, a case can be taken back and forth to court and shimgilinna several times. Elders of the community, who closely observe the customary court being “maneuvered”, complain about “cultural contamination” arguing that in earlier times, it was possible to rely on a person’s word in the sense that when parties agree to resolve their disputes through shimgilinna, they stayed loyal regardless of the result. They also argue that the authority of the shimagilles (elders) is being eroded by the modern law, as it is impossible to impose any sanction on those who dishonestly maneuver the institution.The paper will analyze how “consent” is used and abused by the parties in various cases of dispute, and show, the impact such maneuvers have on the society’s dispute resolution culture and the formal justice system.