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[PANEL] 0703 LEGAL PLURALISM IN ETHIOPIA. THE INTERPLAY OF INTERNATIONAL, NATIONAL AND CUSTOMARY LAW
Organizers:
Susanne EPPLE, Frobenius Institute/Frankfurt University, Germany
GETACHEW Assefa, Addis Ababa University, Ethiopia
Paper presenters:
ALEMNEH Agajie; GIRMA Hundessa; MELESE Teshome; KIFLE Worku; TEFERA Assefa; HAILE Muluken Akalu;
YOHANNES Yitbarek Ejigu; TEREFE Mitiku; JEMILA Adam; KAIREDIN Tezera; Jakob ZOLLMANN;
MELAKU Abera; Zuzanna AUGUSTYNIAK; Tom LAVERS; Susanne EPPLE; SAMUEL Negash; ABERRA Degefa;
GETACHEW Assefa; DESALEGN Amsalu; ZELALEM T. Sirna; MOTI Mosissa
This panel aims to explore the interplay and interface between official and unofficial law in Ethiopia. It focuses on the 'negotiation of law' at the grassroots level, especially in contexts where a recently increased enforcement of the state law and international human rights norms meet with the continued application of customary legal forums.
In Ethiopia, the official state law, mostly transplanted from Western legal systems since the late 1950s and continuously thereafter, has been competing with and confronting local value and norm systems. Until the early 1990s, the official legal system denied any de jure recognition to customary laws, but de facto has tolerated and co-existed with them to a large extent. The 1995 Constitution introduced a clean break from the past by giving recognition to customary (and religious) laws and courts in disputes relating to personal and family laws, while keeping criminal cases under the jurisdictional monopoly of the state. Nonetheless, in practice, customary laws have continued to function in all areas of dispute, especially in contexts where the state apparatus is weak or non-existent.
Thus, official state law as well as international human rights norms applicable to Ethiopia, co-exist with numerous customary laws and normative orders in all parts of the country until today. Their relationship could be characterized both as competitive and cooperative, and has locally given rise to a ‘negotiation’ of laws, values and dispute settlement mechanisms among the populace.
Papers presented in this panel could address some of the following questions: what are the developing policy directions in regards to customary law in the country? How are the differences in legal systems and values locally negotiated? How do different sections of local communities react to or use the various legal forums offered to them? To what extent is a certain degree of flexibility tolerated or even legitimated in the application of state law?
Scholars from various related backgrounds (such as law, social anthropology, sociology, political science, history) are welcome and invited to participate.
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PROTECTION OF LOCAL MINORITY RIGHTS UNDER REGIONAL STATES: A STUDY ON AWI NATIONALITY ADMINISTRATIVE ZONE, AMHARA NATIONAL REGIONAL STATE, ETHIOPIA [Abstract ID: 0703-25]
Federalism is increasingly promoted and utilized in countries with multi-ethnic population composition as a means to guarantee minority rights and safeguard the harmony and integrity of the state. In this regard, one of the innovative changes in post-1991 Ethiopia was the foundation of the transitional charter which brought the Transitional Government of Ethiopia underlining Self Determination and self Government as core principles to restructure Ethiopia under federalism in order to address the questions of Nation, Nationalities, and Peoples of Ethiopia. The existence of Awi Nationality as one distinctive ethnic group/minority with its own culture and language has made it necessary for the existence of Awi- Nationality Administrative Zone as self- governing entity with three organs of government- elected nationality council (legislative), administrative council (executive) and judiciary at zonal level in the form of local government. This study explores the protection and the implementation of the minority rights of Awi nationality/ethnic group with respect to self-determination, self-administration/self-rule, representation and its practice of language rights through the use of exploratory research. It uses qualitative research methodology by combining case study as designed to get reliable and pertinent information from the participants of the study about their practices of exercising political power, how they rule by themselves, challenges they encountered when exercising their rights, some of the opportunities that helped them in protecting their rights as a minority. Besides, it was suitable to describe the existing situation about how minority-based political power exercise is implemented, what factors affect the minority to exercise their constitutional rights and which factors are helpful for the practice of their rights and solving their economic, social and political issues. The data were analyzed in terms of critical interpretation and thematic categorization. Accordingly, the result of the study shows that though there are good changes or there is also a good beginning in this regard, however, the implementation of such constitutional rights was going on at low pace than expected due to lack of good governance [because of lack of rule of law and legitimacy], lack of implementation of constitutional rights, low commitment of administrators, financial dependence of zone administration from the regional government, regional interference on zonal affairs and less decentralized power/ authority of legal nature, and lack of awareness/education in exercising the minority rights by the people. Lastly, it is recommended to enhance institutions that foster the decentralisation of power to local government in order to fully implement those constitutional rights at the grass root level.
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A CONTESTED CUSTOM AND RENEGOTIATIONS OVER LAND-GIFT AND INHERITENCE IN THE COURSE OF LAND FORMALIZATION PROCESS IN ETHIOPIA: THE CASE OF DANNO DISTRICT [Abstract ID: 0703-20]
Custom-based land access (e.g. gift-giving and inheritance) is contested of land-titling in the Danno district, Ethiopia. Based on ethnographic research, this paper analyzes the effects of state-driven land formalisation programs on custom-based land access and their consequences for the social organisation of the Oromo society at the local level. According to customary norms of the Oromo, access relations with respect to land is embedded in the social structure of the society and is mediated by such social relations as marriage and descent. The field data in Danno district shows that custom-based land gift-giving (e.g. argaa) and inheritance (dhaala) are widely recognised forms of gaining access to farmland. Disregarding the complexities and social relations involved in custom-based regime of access, since over the last decade, the ruling Ethiopian government has introduced land-titling programs in order to consolidate the state’s law-based control of land access. Despite this legal centred move, gift-giving and inheritance of land through customary norms continue to operate, but often in contradictions with state structure-based arrangements. This contradiction not only destabilises the prevailing regime of access, but it has also implications for the social relations of the society through triggering land based conflict (e.g. family dispute), while opening a new pace for renegotiation between normative orders. Drawing on a legal pluralist approach, this paper illustrates the effect of the land formalisation program on custom-based land gift and inheritance, which has an implication for the social system of the Oromo society in the Danno district.
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A CRITICAL ASSESSMENT OF THE MICRO AND MACRO-LEVEL RESPONSES TO THE KARRAYU-ARGOBBA CONFLICT IN THE AWASH VALLEY, ETHIOPIA [Abstract ID: 0703-27]
This study delved itself to assess the micro and macro-level responses to resolve the Karrayu-Argobba conflict in the Awash Valley, Ethiopia. The analysis was made based on primary and secondary data sources. The study was conducted in three districts, Minjar-Shenkora, Berhet and Fentale. The study has found out that the Karrayu and Argobba people have both amicable and conflict relations. Their conflict is conceived in the wombs of multifarious factors (structural and proximate). In order to redress the conflicts both indigenous and state-centered approaches have been used. Formerly the two groups used their CCRMs to effectively address their intermittent conflicts. But currently it is certainly losing its historic potency and thus, ultimately became inadequate for managing their contemporary conflicts. This is largely due to the changes in the underlying causes of the conflicts from being on cultural-values to resource-based and now over boundary issue; the commercialization and politicization of cattle raiding and rustling; and escalation in the intensity of the conflict. The state machinery also played a preponderant adverse role on the stated institutions. During the Dergue regime the role of “Jarsotta Ararra” (institution of the elders) was appropriated and given to the state representatives. Currently the government peace making platform integrates elders from the two groups but it brought the unintended result of alienating them from the masses.
With reference to the macro-level responses in pre-federal Ethiopia, their conflict is conceived solely as resource-based. Hence, the measures taken were directed towards alleviating the scarcity of resources via the settling displaced pastoralists and to compensate the Karrayu for the land they lost due to the establishment of the Awash National Park. As such the Arole plain was decreed to be rendered for them though it proved immaterial. The Imperial regime also constructed a pond-Harro Ledi Robba on the Arole plain. During the Dergue, these groups encountered “unwise conflict suppression approach” and a critical alienation of their indigenous peace making approaches. In the post-1991 period, ethnic federalism is presented as a panacea to salvage the malaises of conflicts in the country. Notwithstanding this, the Karrayu-Argobba conflict continued unabated. The government created the so-called “The Joint Peace Committee (JPC) to manage the conflict. However, so far the track record of the JPC is not as impressive as it is initially envisioned. This is mainly due to lack of commitment and transparency; the fact that members of the JPC found to be empathetic to their own groups; lack of both the capacity and willingness to enforce decisions. Moreover, the local security forces lack the necessary resources to suppress violent conflict right at the time of its commencement. Finally the issue of boundary limitation proved beyond the legal mandate of the JPC.
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A PENCIL WITHOUT SHARPENER; LOCAL GOVERNMENT LEADERSHIP VERSUS GROWTH AND TRANSFORMATION PLAN IMPLEMENTATION [Abstract ID: 0703-26]
This study investigates the potential of local government leadership for successful implementation of the Growth and Transformation Plan of Ethiopia with particular reference to agricultural transformation and infrastructural development sectors. Explanatory research was applied based on data and evidence collected from four districts and one town administration of Gedeo Zone, Southern Nations Nationalities and Peoples Regional State. The study has used a mixed research approach: correlation coefficient and multiple linear regression model of analysis (quantitative), key informant interviews, focus group discussions, and observations (qualitative) data. The study has found that agricultural transformation and local infrastructural development has a positive association with local government leadership. The study confirmed agricultural renovation and infrastructural development of local government is effected by aspiration, envisioning intellect, and skills and commitment of local government leadership. As this study has demonstrated, regardless of the study area has endowed with internationally branded and renown coffee production/growing and enriched with natural agroforestry resources it is known by “Green Poverty” due to lack of committed local government leadership. In similar vein, because of poor infrastructural development farmers are not benefited to access market for their coffee production. Empirical evidence in this study shows that development plans and policies, specifically agriculture and infrastructure development policies, are abortive at grassroots level and miscarried to benefit the local community because of local government leadership constriction. Finally, the study recommends that governments should pay considerable attention for skill acquisition of local government leadership, create a clear policy monitoring and evaluation platform of implementation, and support local governments to develop local projects with their particular contexts for local socioeconomic advantages.
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A WESTERNIZING AFRICAN STATE AND THE LAWS OF ITS HETEROGENEOUS SOCIETY: TOWARDS THE RAISON D'ÊTRE OF THE ETHIOPIAN LEGAL PLURALISM PIVOTING TRADITION OVER MODERNITY [Abstract ID: 0703-12]
There was no defiant African state that responded to the dangers and opportunities from modern Europe burdened with socio-economic, cultural and religious fragmentation which has to nurtured and transformed at the same time. Since the first half of the 20th century, Ethiopia was on its course introducing western legal frameworks to cope with the needs of capitalist penetration and state centralisation. This happened at a time when the age old monarchy was unwilling to relinquish its legal and political prerogatives and unable to superimpose a given legal system on its society dotted with varying ethno-religious and economic groups whose everyday life was at best managed by customary and religious laws. Serving the needs and wants of the urban and rural people while accommodating the interests of the secular and ecclesiastical establishment required reconciling western legal values with indigenous sense of justice. From this, the plurality of the Ethiopian legal system that was permeated by the religio-secular laws of the Fetha Negest, customary laws of diverse ethnic groups, Islamic law and modern legal jurisprudence ensued. This legal plurality was extant in substantive and procedural aspects of justice administration where the cohabitation of tradition and modernity was characterised by overlay, accommodation, assimilation, separation and domination.Hence, this paper argues against the conventional wisdom that the modernization of Ethiopia’s legal system was a mere transplantation of the European legal system at the expense of indigenous legal systems. Based on the study of archives, legal documents, court cases and published researches reveal that the ideal and practised aspects of rule of law. This paper argues that both at the level of legal philosophy (surmised from lived practice) and structural setup, the precepts of indigenous legal systems prevailed over and above the standing of the western legal system. While this was the defining mark of legal pluralism during the reign of Emperor Haile Selassie I, it has continued in various guises until the present. The paper concludes, from historical point of view, that the Ethiopian legal pluralism is attuned to legal realism rather than the western tenants of legal idealism. It is further argued that a legal pluralism which leans itself to legal realism was/is necessitated by Ethiopia’s position vis-à-vis the demands of internal and international conditions as well as its need to balance tradition and modernity.
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CLASHING VALUES, ARMED CONFLICT IN HAMAR WOREDA: THE 2014/15 CONFLICT AND ITS AFTERMATH [Abstract ID: 0703-17]
In Hamar Woreda, Southern Ethiopia that was until recently rather detached from the center, a growing tension between the local authorities and the community escalated into a serious armed conflict in 2014/15. The underlying causes included the enforcement of female education, the conservation schemes in the nearby Mago National Park as well as large-scale agricultural investment in the wider area. All these are having an impact on the local way of agro-pastoral life of the Hamar people.This paper looks at conflicts between the Hamar people and the local government within the general context of the constitutional recognition of cultures and traditions that are consistent with fundamental rights, human dignity, and democratic norms and ideals. Focusing on the causes of the conflicts, the reasons for their escalation in 2014/15, as well as efforts made by both sides to resolve it, the paper explores the value positions, perspectives and strategies of local government agents and the Hamar people. More specifically, the paper examines 1) the contested meanings of cultural values of the Hamar, 2) the maneuvers of the local government in using and rejecting customary institutions in their efforts to settle the conflict, and 3) the local people’s approaches to resolving the problem and defending their interests. The data is based on mostly qualitative research collected during extensive fieldwork in Hamar Woreda in 2016 and 2017.
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CONTEMPORARY PRACTICES OF CUSTOMARY CONFLICT RESOLUTION MECHANISM: THE ROLES OF BOKKUU (CULTURAL) CENTERS AMONG MACHAA OROMO [Abstract ID: 0703-24]
In contemporary times, customary conflict resolution mechanisms are playing crucial role in keeping the balance of peace among different competing groups in the society. These mechanisms are many in number and vary from place to place. Among the many, the present study focused on the role of Bokkuu; Oromo cultural centers in conflict resolution. Currently, this system is playing a significant role in solving conflicts and bringing harmony among the community. The study is conducted in western Shawa, Ambo district, Ethiopia. In specific, the data for this research is collected from three Bokkuu centers: namely Bokkuu Cittuu, Bokkuu Bakkee and Bokkuu Xulee by spotlighting on their practice of peace making and conflict resolution.The officials are capable to handle and solve any kind of disputes.The data of this study is collected through different qualitative data collection methods, such as interview, focused group discussions (FGDs) and observation. Abbaa Bokkuu (Bokkuu leaders) of all centres are considered as key informants and are interviewed. Client of Bokkuu centres, Sam’aloo (central council members) and local elders are also included in FGD. In this study, types of conflicts resolved at the centers, accusing steps, trail procedures and types of punishments are identified. And also, their contemporary practices are addressed including changes and continuities. In addition, the relationship between formal court and the customary centres in the area are also evaluated.According to the findings, a Bokkuu centre is one of preferred system in dispute settlement because of justified reasons which are mentioned in this work. Structurally, the centres have five higher officials including Abbaa Bokkuu (the leader of the centres).
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DYNAMICS OF PLURAL LEGAL CONSTELLATION:CUSTOMARY,RELIGIOUS AND STATE JUSTICE SYSTEMS AMONG THE SILTIE PEOPLE,SOUTHERN ETHIOPIA [Abstract ID: 0703-05]
The Siltie legal landscape consists of three parallel legal systems, namely the religious, the customary and the state legal systems. The religious legal system comprises Sharia courts, courts of local Mashayik/Waliyes, and the recently developed Salafi Social Committee is favoured mostly by young educated Muslims. The state legal system consists of the state imposed modes of dispute resolution as well as some public institutions and associated rules, while the customary legal system comprises the norms, and values of the respective local communities. This paper explores the responsibilities of the three legal systems, and shows how actors from different courts interact and compete for local power positions among the Siltie people in southern Ethiopia. All the three legal systems are characterised by intra-system plurality. In the religious realm, Sheiks and young Salafi Imams who are not part of the Sharia courts, for instance, enjoy wider legitimacy than Qadis, who have been installed by the state. This is so due to the respect they earn as men of integrity and with deep knowledge of Islam. They often do not agree with the Qadis because the latter are usually aligned with political power, which indicates the existence of an intra-faith conflict between the Sufi based dispute settlers, young Salafis and the Qadis over legitimacy.The state legal system includes not only courts but also a number of tribunals including the ‘Good Governance and Appeal Office’ that informally looks at dispute cases. The customary legal system includes the clan, the local legal experts (raga) and the elders’ courts (Baliqes).The findings of this study show that the interactions of the three courts are both cooperative and contesting.It could be shown that dispute settlers from the three courts borrow norms and legal concepts from each other to pass verdicts in their respective courts which points to the emergence of a hybridized legal practice in the area.
Many State and Sharia court judges favour the customary courts due to their effective functioning and handling of legal cases and their great acceptance in the area. As the customary courts handle large number of civil cases this helps the state courts reduce their case loads, promotes Siltie culture and helps resolve cases in constructive and restorative ways. Elders, on the other hand seek the assistance of State court judges when they handle domestic violence.On the other hand, elders and religious figures (Sheiks and Imams) use their mediation services not only to settle conflicts, but also to accumulate local power. Finally, the inefficiency of the state and Sharia courts worsened due to an acute shortage of staff (30 state judges and seven Qadis for a million people) seems to render the courts irrelevant in the eyes of many local people, who often question their legitimacy and jurisdiction. This is evidenced by the seemingly higher number of people who prefer taking their cases to the local religious and customary modes of dispute settlement rather than to the Sharia and State courts.
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ETHIOPIAN INTERNATIONAL LEGAL HISTORIES - BEYOND THE AFRO-EUROPEAN DICHOTOMY [Abstract ID: 0703-15]
The ‘African part’ of the history of international law is all too often limited to the (critical engagement with) ‘the acquisition of Africa’ since 1880 and questions of ‘state succession’ and international borders following independence starting in the 1950s. In this historical narrative the dominance of colonialism is evident. It seems that ‘Africa’ as a narrative concept in international legal history remains tied to abstract contrasts such as ‘foreign domination’ vs. ‘independence’; or ‘exploitation’ vs. ‘development’. However, if writing in the 21st century about ‘international law in Africa’ and its histories remains shaped by this perspective, historians may lose sight of issues, questions, or ideas formed in historical Africa that do not fit into this preconceived dichotomic matrix. Ethiopia's entanglement with and participation in the history of international law is an important case in point. By giving European colonialism its fair share in these histories we can go beyond the dichotomies and ask for arenas of international law on the African continent and in Ethiopia in particular that lay outside the orbit of European domination. Thereby we can explore blind spots in the historiography of international law that nevertheless had decisive impact on the historic development of wide regions within and beyond the continent: the Red Sea area and the Ethio-Arab relations may be a good starting point, followed by Ethio-Ottoman intercourse over several centuries or the Ottoman ‘exploration’ and ‘domination’ of the Sudan belt well into the 20th century. Finally, the Ethio-European legal relations since the advent of the 'Srcamble for Africa' are in dire need of reevaluation in light of new archival findings and recent historiographic turns in international law. By focussing on these Ethiopian international legal histories my contributions hopes to go beyond the historiographic confines of an 'Afro-European dichotomy'.
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FORUM SHOPPING BETWEEN CUSTOMARY AND FORMAL LAWS AMONG THE TULAMA OROMO OF ETHIOPIA [Abstract ID: 0703-18]
In Ethiopia, people have a choice between different institutions for dispute settlement. This gives rise to opportunities for forum shopping, in that disputants can select among these institutions in deciding where to argue their case. Taking the Tulama Oromo as a case in point, this paper examines preference of local people for dispute settlement between customary and formal laws and reasons for their preference of one law over the other. The findings have shown that the majority of people living in the study area preferred customary law to the formal one. This forum shopping behavior is associated with positive features of the customary law that include cost-effectiveness, time-effectiveness, geographical proximity, simplicity in law and procedure, participatory in nature, reconciliation of the disputing parties, restoration of the social harmony in the community, sustainability of the decision, absence of corruption and suitable time of dispute settlement. On the other hand, those who chose to take their dispute cases to the formal law associated their preference for its adequate enforcement capacity, accountability, clear appellate structure, recording of decision in written form, punishing the wrong doer, gender equality in service delivery and fair outcome in decision.
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INSTITUTION OF MARRIAGE BASED ON ETHIOPIAN LEGAL CODES [Abstract ID: 0703-21]
The first written code of laws that was supposed to be obeyed by all Ethiopians – Fetha Nahgast – was far from being perfect when it came to the regulations concerning marriage. Originally compiled in Egypt, the code did not fully reflect the life and customs of the Ethiopians. Moreover, the code only dealt with Christian marriages, overlooking other types of matrimonial union. Therefore its provisions were applied only in the higher courts of Ethiopian cities. In the provinces customary law was still applied. Despite Ethiopia’s geographical and ethnical expansion in XIX and XX centuries, legislation concerning the institution of marriage had not changed much until the general law codification in 1960’s. The aim of legislators, under the auspices of Haile Sillase, was to create a code of civil law that would serve the needs of all Ethiopian subjects. The task was a difficult one since the needs and cultural background of different ethnic groups were often contradictive.
The aim of the presentation is to show how the legislators of the 1960’s Civil Code of Ethiopia improved provisions concerning the institution of marriage in comparison with laws found in Fetha Nagast.
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RESPONDING TO LAND-BASED CONFLICT IN ETHIOPIA: THE LAND RIGHTS OF ETHNIC MINORITIES UNDER FEDERALISM [Abstract ID: 0703-22]
There is a common perception that Ethiopia is unusual in Africa in having a relatively uniform system of state land ownership. While highly influential, state ownership is not the only body of law with implications for land administration in Ethiopia. This paper demonstrates that the institutionalization of ethnic federalism and the persistence of neo-customary tenure result in considerable ambiguity in land administration, particularly regarding the land rights of non-indigenous ethnic minorities. The analysis highlights tensions between these three sets of institutions and associated ideas, and their implications for minority land rights. This ambiguity is explored through the analysis of a case study of land-based conflict in Oromiya based on fieldwork conducted in 2009/10. This case study demonstrates the continuing relevance of these three ideas in land debates in Ethiopia, the use of these ideas by protagonists as means of justifying land claims and the ambiguous state response to the conflict, which appears to go well beyond the provisions of the land policy. As such, while there are certainly particular characteristics of the Ethiopian case, many of the key issues regarding ethnicity and land mirror debates taking place across the continent.
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THE APPROPRIATION OF STATE LAW IN THE PERIPHERIES CUSTOMIZED UNDERSTANDING AND USAGE OF STATE LAW AMONG THE BASHADA OF SOUTHERN ETHIOPIA [Abstract ID: 0703-10]
In the last 1-2 decades, the state has intruded the previously rather isolated south of Ethiopia in various ways, including large-scale investment and development projects, improved infrastructure, educational projects, and also a stricter enforcement of the national law. In order to understand the dynamics on the ground, which include conflicts but also cooperation between government and local population, it is important not only to understand the local culture with its customary ways of resolving disputes, but also the local understanding of what has been introduced from the outside. There have been many efforts made by the Ethiopian government and some NGOs to teach and raise awareness about the national law among the Bashada, an agropastoralist group the majority of which have not undergone formal education. However, the understanding of state law by the local population is naturally influenced by their own values and practices, and as they cannot reject it, its acceptance and application is to some extent reinterpreted and customized to the local needs and logics.
This paper looks at the efforts made by the Bashada people to appropriate the increasingly enforced national law and related legal procedures into existing local structures by analyzing how different sections of the community interpret, reject or selectively make use of the legal forum offered.
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THE DYNAMICS AND INTERPLAY OF TRADITIONAL AND MODERN CONFLICT RESOLUTION MECHANISMS AMONG THE ETHIOPIAN SOMALIS [Abstract ID: 0703-23]
Conflicts in the Ogaden have always been a familiar phenomenon, causing huge loss of life as well as destruction of property. The major source of conflict has been rivalry over resources, i.e. land (for pasture and farming), water and livestock. As the human and livestock population increased, and owing to ecological degradation, conflicts not only became frequent, but also bloodier. Somali society has a traditional system of conflict mediation that functions effectively to this day, with certain modifications to accommodate changing circumstances. It is based on customary law (heer or hera), a set of rules and obligations developed to maintain peaceful relations between clans. Many Somalis believed in the “inherent fairness” of Somali customary laws (heer) that their elders enacted and interpreted. Controlling and ending violence were among the classic tasks of a nation-state seeking to impose a monopoly over the use of legitimate force. Following the incorporation of the Ogaden into the Ethiopian State by the turn of the 20th century, efforts were exerted to impose modern laws, with the intention of gradually replacing the traditional laws. Ethiopian state administrations unsuccessfully tried to popularize modern state law among the Ogaden Somali citizens. Somali elders and chiefs, such as gerada, demina, sultan etc., who often presided over the process of customary laws, were recognized as balabats and received government handouts. With the intention of neutralizing the emerging Somali nationalism and secessionism, Ethiopian Somalis were also appointed as wereda and awraja governors. But the people largely preferred the customary law, forcing successive governments to give it priority. This paper sets out to investigate the nature and transformation of traditional customary laws among the Ethiopian Somalis as well as the role of elders and chiefs. It also analyzes the attempt and ultimate failure of the nation-state to totally supplant the traditional institutions with a modern legal code. By way of recommendation, the paper concludes that traditional institutions should be given priority in conflict resolutions before state intervention.
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THE IMPACTS OF RIVALRY BETWEEN BORANA AND OROMO CUSTOMARY LAW AND THE ETHIOPIAN STATE LAW IN CRIMINAL MATTERS: LOOKING FOR A VIABLE ALTERNATIVE [Abstract ID: 0703-19]
The article aims at examining the nature of the relationship between the Borana indigenous justice system and the formal criminal justice system with a view to show the undesirable effects resulting from the rivalry between the two. Among the Borana Oromo of Ethiopia, the indigenous justice system is still operating along with the formal justice system. In the area of criminal law, as the two justice systems are equally capable of asserting their authorities, the Borana are deprived of their right to opt for the justice system of their own choice. The Borana have laws and procedures based on the Gada system administered by their indigenous institutions. Clan elders (hayyu) play a key role by making sure that customary laws are respected by all clan members. In criminal cases, regardless of whether sanctions have been already imposed on individual offenders locally (usually through the payment of Gumaa), the formal court imposes its own sanction. This means that the co-existence of the two systems has subjected the people to the jurisdictions and possible sanctions of both the systems: in case of a crime, both, formal and customary legal systems apply their own laws on the offender for the same offence. The victims of a crime may likewise be impacted differently under the two systems. The negative impact of this “double-judgement” has on an offender both in terms of process and outcome will be demonstrated by discussing concrete cases that were observed and documented during fieldwork among the Borana. As to how the systems can avoid the negative impacts of the rivalry and operate in harmony, the article recommends possible options.
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THE INTERPLAY BETWEEN NATIONAL AND INTERNATIONAL HUMAN RIGHTS STANDARDS AND THE RIGHT TO CULTURAL SELF DETERMINATION OF LOCAL COMMUNITIES IN ETHIOPIA [Abstract ID: 0703-16]
In addition to explicitly recognizing customary (and religious) personal and family laws and courts, the 1995 Constitution of Ethiopia specifically grants every ethno-linguistic community “the right to express, to develop and to promote its culture” (article 39(2). These statements of rights are undergirded by the constitutional principle which states that “[a]ll sovereign power resides in the Nations, Nationalities and Peoples of Ethiopia” (article 8).In the same vein, the Constitution recognizes a plethora of individual rights and freedoms ranging from the rights to life, the security of person and liberty; prohibition against inhuman treatment; the right to equality; rights of women; to rights of children.It is widely known that some cultural norms of the various ethno-linguistic communities are at variance with standards of human rights protection maintained in international human rights law and the Bill of Rights of the Ethiopian Constitution. In view of the Constitution’s clear commitment to fully respect both individual and people’s fundamental rights and freedoms, a question, thus, arises as to how conflicts between these binary set of rights could be settled in real life. By drawing on theoretical and jurisprudence resources of relevant treaty bodies and by employing constitution-theoretic approaches of construction of constitutional rights, this paper will make suggestions on how the tension between the two sets of rights could be harmoniously settled.
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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.
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UNDERSTANDING LEGAL PLURALISM IN ETHIOPIA. AN EXAMPLE OF THE SERA CRIMINAL JUSTICE SYSTEM OF THE HALABA PEOPLE [Abstract ID: 0703-07]
The main objective of this article is to discern the Sera customary system of the Halaba people vis-à-vis the state judicial system and its repercussion on individual human rights. This paper is based on fieldwork among the Halaba people of south Ethiopia. For the purpose of this paper primary data were collected through interviews with traditional judges (the garads), local people and legal practitioners at Halaba high court on the relevance of Sera and its repercussions. In addition, selected criminal cases from the High court were analyzed. This paper finds that, in dealing with legal pluralism in here jurisdiction, Ethiopia opted neutral strategy and as a result it effectively address neither the collective rights nor it could safeguard the individual rights of the members of Halaba community. Thus, it is indicated that even though plurality of justice has its own paramount importance, it is not always free of drawbacks. Therefore, this article calls for a paradigm shift from the side of the state from the state of neutrality to accommodative system where the individual rights of citizens are not jeopardized in the name of cultural rights. Finally, the paper concludes that although the cultural right of ethnic groups has to be respected, it should not overwrite the individual rights of a member of the ethnic group.