Category: Ethiopia Deep Dive Study

1. Objectives and brief look at the literature on informal justice in Ethiopia

3. How big is the ‘justice market’ for village elders?

4. How is the performance of traditional justice perceived by the users of justice?

5. How is the performance of informal justice perceived by stakeholders in the formal justice sector?

6. In conclusion: How can informal justice in Ethiopia give rise to game-changing community justice services?

November 30, 2021February 15, 2023

In conclusion

6. In conclusion: How can informal justice in Ethiopia give rise to game-changing community justice services?

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Informal Justice in Ethiopia / 6. In conclusion: How can informal justice in Ethiopia give rise to game-changing community justice services?

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Evidence from the existing literature, the Justice Needs and Satisfaction study in Ethiopia 2020, and interviews with key stakeholders clearly indicate that informal justice and particularly village elders are an integral part of justice delivery in the country. Half of the legal problems that people encounter in their daily lives are routed to informal justice mechanisms. Village elders have a particularly large role at the bottom of the justice needs pyramid.

Informal justice has a massive market in Ethiopia. Our estimation based on evidence from the 2020 JNS survey is that every year village elders resolve at least 3 million issues. Other forums of informal justice add their share to this already significant volume. This is a considerable opportunity for justice in Ethiopia.

Not only is informal justice used often but people generally perceive it as accessible and effective. Ethiopians are more satisfied with the quality of the justice journeys provided by village elders compared to the processes of other providers. Informal justice and in particular village elders rely a lot on reconciliation to reach agreements between the parties. A strong focus on restoring relationships is a central tenet of informal justice. Other advantages are accessibility, speed, embeddedness in local culture, and values. People trust informal justice mechanisms.

Beyond the many positive aspects, there are notable concerns about the compliance of informal justice with international human rights standards. In certain cases, informal justice can infringe on the basic human rights of vulnerable groups with little or no redress mechanisms. Informal justice can also reinforce communal values which do not support equality, non-discrimination and due process.

Our task in this concluding chapter is not to weigh the pros and cons of informal justice in Ethiopia. It makes little sense to think that informal justice can be simply replaced by formal institutions. Can the millions of problems processed by informal justice be transferred to the courts or other state institutions? Unlikely. People would be unable to surmount the inherent barriers that lie ahead of the formal institutions and procedures. Moreover, such a massive amount of disputes (at least 3 million disputes every year!) would overburden any formal justice system in the world.

The key question in this chapter is: what is needed to scale up the successes of informal justice while avoiding its pitfalls. Ultimately, this is a discussion that the Ethiopian formal and informal justice leaders and stakeholders must initiate and steer. Hereby, we are sharing our experience with similar processes.

Informal justice can become a stepping stone for the next generation of accessible, effective and scalable access to justice services in Ethiopia. First, comprehensive and reliable data infrastructure is needed to monitor the demand and supply of justice at the bottom of the pyramid. Second, informal justice in Ethiopia has a huge potential to show “what works”. Such knowledge can be replicated and enhanced so people receive better resolutions and outcomes to their justice needs. Third, practices from informal justice can inspire justice innovators and investors. Impactful solutions can also be developed, funded, and delivered publicly. Fourth, informal justice can trigger gamechaning community justice services only if there is an enabling environment for that.

Reliable data infrastructure: people-centred justice data can be gathered at various levels. Surveys have huge potential to measure justice needs as people encounter such needs in their daily lives. Innovations in technology and research methods constantly open new opportunities to study justice from people’s perspectives. Administrative data from justice and non-justice sector institutions can be gathered, collated and analysed to monitor the demand and supply for justice. Internet of Things, social media platforms and text analytics are emerging sources of justice data.

A sound data infrastructure is needed to gather the potential that justice data can yield to People-centered justice in Ethiopia. Such an infrastructure requires data but also political will, capacity and most importantly — processes that mainstream data into policies, programmes and services that work for the people.

Use of evidence-based practices: evidence-based justice delivery is an intrinsic element of People-centered justice. In the case of informal justice, this means that rigorous research can uncover practices that deliver good justice outcomes. Knowing what works in delivering justice is a powerful tool for empowering justice workers to do their work better and more effectively. Methods exist to identify, analyse, and systematise such practices rigorously.^[1]

Game-changing innovations: informal justice practices have significant potential to give rise to innovative justice solutions that resolve many problems and impact positively the lives of millions of people. At HiiL we call such solutions — game-changing services. game-changing services ‘are justice service delivery models that are sustainable, scalable and are those that can bring solutions to people for their most pressing justice needs.’ ^[2] A gamechanger must: (1) be able to deliver effective treatments consistently; (2) be financially sustainable; and (3) be scalable as a service (or combination of services) to 80, 90 or even 100 percent of the population experiencing the problem. ^[3]

Based on HiiL’s research and insights, seven categories of gamechaning services have been identified. ^[4] Community justice services is one of these categories. “Community justice services are those where the local community is involved in the definition or the delivery of the service available to all members of the community. The services are provided by community authorities, trusted members of the community, or public officials elected or endorsed by the community.” ^[5]

Game-changing community justice services can be developed in different ways. Smart startups can come up with working solutions based on sustainable business models. For this to happen an ecosystem of justice innovation, innovation support, and an enabling environment is needed (see below for more on the enabling environment).

Another approach to generate gamechaning justice services is to organize a process of ideation, prototyping, commercialization, and implementation of game-changing services based on informal justice. We have experience with organising such processes in Justice Innovation Labs where a dedicated group starts from a concrete justice problem and works towards a solution that can resolve considerable amount of legal problems in a fair, accessible, affordable and quick manner.

Enabling environment: informal justice can fully show its potential only if there is an enabling policy, administrative, financial and technological environment. Creating such an environment is not easy. It requires political leadership dedicated to the vision that justice works when it works for the people. We call this — People-centered justice. An enabling environment ensures that game-changing justice services evolve and are not suffocated by constraints, lack of financing or guild interests.

Creating an enabling environment for game-changing justice services is about political leadership. HiiL’s approach to steering such leadership is based on dialogue and enlightened commitment. The ultimate purposes of such dialogue sessions are to create shared acceptance for People-centered justice and a positive orientation towards justice transformation.

Enabling environment is also about ensuring that the regulations are open towards new ways for increasing access to justice. Monopolies and other restrictions of the market for good resolutions need not impede justice innovations. Models of public and private funding should not discriminate against new and promising approaches.

The way ahead: building on informal justice towards game-changing Community justice services.

We are not going to prescribe steps or provide examples of Community justice services from elsewhere. ^[6] Ethiopia has a great informal justice legacy which can be turned into more and better access to justice. After listening to many users and experts about the scope, performance, strengths and weaknesses of informal justice we are confident that the way forward is based on the 4 steps elaborated above:

There is considerable room for improving access to justice in Ethiopia. Just as everywhere across the world, the demand for justice is significant and the justice gap is growing. Informal justice in Ethiopia has a big promise for making justice more People-centered. If its positive elements are enhanced and the concerns are addressed, informal justice can become a powerful platform for People-centered justice. What is needed is focused and committed work on more and better data, the establishment of evidence-based working, and the development of game-changing Community justice services. Last but not least, an enabling environment is a must in order to ensure that the potential of informal justice pans out into more and better access to justice for the people of Ethiopia.

View References

^[1] See See https://www.hiil.org/wp-content/uploads/2018/07/Guideline-Approach-version-1.4.pdf

^[2] See https://dashboard.hiil.org/the-gamechangers

^[3] See https://dashboard.hiil.org/trend-report-2021-delivering-justice/

^[4] Ibid.

^[5] See https://dashboard.hiil.org/community-justice-services/

^[6] See ibid for such examples of community justice services.

Table of Contents

1. Objectives and brief look at the literature on informal justice in Ethiopia

3. How big is the ‘justice market’ for village elders?

4. How is the performance of traditional justice perceived by the users of justice?

5. How is the performance of informal justice perceived by stakeholders in the formal justice sector?

November 30, 2021February 15, 2023

How is the performance of informal justice perceived by stakeholders in the formal justice sector?

5. How is the performance of informal justice perceived by stakeholders in the formal justice sector?

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Informal Justice in Ethiopia / 5. How is the performance of informal justice perceived by stakeholders in the formal justice sector?

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As part of the JNS survey project, between March and June 2020, legal researchers from the Federal Justice and Legal System Research and Training Institute conducted 38 in-depth interviews with justice leaders from the Ethiopian justice sector. The interviews were conducted with the House of People’s Representatives, experts from the Federal Attorney General’s Office, the Federal Supreme Court, the Federal High Court, the Federal First Instance Court, the Federal Police Commission and other police departments, the Federal Prison Administration Commission, the Federal Ombudsman, the Human Rights Commission, the Ethiopian Women Lawyers’ Association, and others. Informal justice was one of the topics discussed. Below is a brief synopsis of what we heard during the interviews. We present the trends in these interviews but warn that these quotes are opinions expressed by particular experts and are not necessarily the way that all experts or laypeople see informal justice in Ethiopia. The reader should note that the respondents were asked more generally about informal justice and the views below are not necessarily calibrated to village elders.

The two sections below summarize the positive and the negative views of the interviewed justice stakeholders.

Positive aspects of informal justice

First, informal justice mechanisms seek reconciliation through consensus, restoring the relationship between the parties and communal harmony. This is pursued at the local level at a minimum cost and in reasonable time and formalism. Decisions achieved through reconciliation are generally complied with, without costly and stressful mechanisms because the parties and the people around them trust the institutions. The enforcement mechanisms are informal but powerful – shame, ridicule and ultimately expulsion from the community are the greatest risks. An intrinsic part of the soft power of informal justice is the shared belief that it has been practised for a long time and is deeply rooted in society. It corresponds to local culture and preferences.

“The traditional justice system is accessible, it is based on the society’s culture, living style and it depends on social punishment so it does not require much cost, it is easy to establish”
“One of the main advantages of the traditional system is giving win-win solution. It does not destroy the subsequent relationship of parties.”
“This method has strong acceptance because it depends on belief and language of the society and it does not require much cost and both parties win the case.”

A particular strength of informal justice is the tendency of informal justice providers to look for mutual consent and solutions which are win-win for all parties. The processes are participatory with a focus on relationships. In theory, this combination guarantees compliance. There were many opinions that informal justice is effective, meaning that the outcomes resolve people’s problems. It is also believed to prevent problems. Most often the mechanism of revenge avoidance is mentioned as a prevention mechanism.

Accessibility, speed, ease are distinctive features with which informal justice is associated. People are generally aware of the rules and mechanisms applied by informal justice providers.

Several interviewees acknowledged that informal justice supports formal law and formal institutions. Without this first layer, the many issues would not find a way towards any justice mechanism and will plague people and communities. In that way, informal justice assists formal institutions with bottom-up ‘filtering’ of many disputes, conflicts and grievances. As we will see below the line is blurry and there are also tensions between formal and informal justice over jurisdiction.

Negative aspects of informal justice

Concerns about the encroachment on basic human rights through discrimination and unequal treatment of women, children and minorities are a common theme in the reflections of the interviewed stakeholders. Almost all decision-makers in the field of informal justice are men. There is a palpable worry that the personal composition permeates rules and practices which do not comply with the modern understandings of human rights. Child marriage, domestic abuse, non-prosecution of sexual crime, impunity through compensation for other serious crimes are some of the examples given by the interviewed stakeholders as an illustration of how informal justice in Ethiopia struggles to uphold rigorous standards.

“However, I don’t accept mediation (Shimgilina) because it harms children and women. It makes our country become anti-female. In our country, there is a practice of marrying a child of 8 years old. This is not a useful custom. It is a harmful culture. So, recognizing such tradition affects the rights of women and children. Instead of Shimgilina, it is better to modernize like arbitration.”
“As a result, especially in the marriage case, I don’t think that mediation is appropriate means to render justice.”
“sometimes it violates equality, it does not follow internationally accepted human rights regulations and it does not have an appeal right for the aggrieved party.”

Accountability and correctability are two related concerns about informal justice. There are no uniform substantive or procedural rules to guide the practice. Informal justice is largely oral and it is hard to verify its processes and outcomes objectively. Rarely there are redress mechanisms to guarantee fairness.

Informal justice in Ethiopia is not integrated into the formal justice system and some respondents are concerned about the cleavages between the two systems.

A notable example of the concern outlined above is the friction between the formal and informal justice systems in criminal justice and particularly in the area of more serious crime. Several of the interviewees were worried that informal justice mechanisms are used to adjudicate serious violent crime and this creates the potential for unfairness and impunity.

“In civil matters, especially in family matters, they can be said to be good: but if they are not dealt with in criminal cases, there is a chance that they will be thwarted to prevent serious crimes from reaching justice.”
“Issues that need to be addressed at the community level should be limited to civil and simple criminal cases. Serious criminal acts, such as murder and rape, must be dealt with by the formal system.”

The outcomes of informal justice are not binding at least from the perspective of state law and formal justice. This creates uncertainty but also is another possible source of impunity.

Table of Contents

1. Objectives and brief look at the literature on informal justice in Ethiopia

3. How big is the ‘justice market’ for village elders?

4. How is the performance of traditional justice perceived by the users of justice?

6. In conclusion: How can informal justice in Ethiopia give rise to game-changing community justice services?

November 30, 2021February 15, 2023

How is the performance of traditional justice perceived by the users of justice?

4. How is the performance of traditional justice perceived by the users of justice?

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Informal Justice in Ethiopia / 4. How is the performance of traditional justice perceived by the users of justice?

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Resolutions

Ethiopians seek resolution of their problems from various people and formal or informal institutions. On average they involve 1.7 such sources in the resolution of their problems. We did ask “Which of these sources was most useful in the resolution of the problem”. Below we compare the resolution rates of village elders compared to other providers.

Compared to other providers the justice village elders resolved considerably more disputes.^[1] 64% of the problems referred to village elders are considered by the respondents to be completely resolved. All other providers combined completely resolved 39% of the disputes referred to them. There are significant differences in the proportion of unresolved disputes. Only 6% of the disputes referred to village elders are considered to be unresolved and the respondent does not see a resolution in sight. 18% of the issues brought to other providers are unresolved. Similarly, there is a gap in the issues which are in process of resolution. 26% of the disputes brought to village elders are ongoing whereas the proportion for the other providers is 39%. Apparently, the village elders are considerably more effective in resolving the issues that people bring to them.

This finding has significant implications and needs to be explored further. One possible explanation of the better performance of the village elders is that, because they are reachable and accessible, they deal with relatively less complicated issues. To test this assumption we compare the mean impact score ^[2]. The comparison indeed indicates that when village elders are perceived as the most useful mechanisms, the impact score is lower, meaning that the problem is less serious ^[3]. The mean impact score of problems dealt with by village elders is .49 and the mean impact score of the combined other mechanisms is .54.

We also checked the data to see if the different types of problems have an impact on the resolution rates of the village elders. Controlling for impact score and for the type of the problem there is strong evidence that village elders produce better results even when the impact of the problem has been held constant ^[4]. What this means is that village elders are indeed more successful in resolving legal issues and that the more impactful legal issues are less likely to be resolved.

In terms of categories of legal problems, the data shows that in certain categories the village elders are significantly more likely to deliver better resolutions ^[5]. In land issues, domestic violence, disputes between neighbours and family problems the village elders deliver significantly more resolutions.

Quality of processes

The survey asked every respondent who took active steps to resolve the legal issue about the perceived fairness of the dispute resolution process. We remind here that all sorts of processes are included into this overview — adjudicative and reconciliatory, structured and unstructured, bilateral and multilateral.^[6] Processes in which village elders participate and were considered as the most useful provider are seen as considerably more procedurally fair compared to all other processes. In each and every dimension there is a sizeable and statistically significant gap between village elders and other mechanisms. The gap is always in the advantage of the village elders. In other words — Ethiopians are considerably more satisfied with the processes organised by village elders. In such processes people think they have more voice, their voices are better heard, the village elders receive better marks on their neutrality. Not surprisingly, when we ask – Would you trust this source in the future, village elders gather more trust.

Quality of outcomes

Similarly to the dimensions of the processes for resolving legal issues, Ethiopians perceive the outcomes of the village elders as better than when compared to the other providers of justice. From a distributive point of view, the outcomes of village elders are rated as more fairly distributed (3.52 v. 3.34) ^[7]. The division of the outcome is perceived as more in line with the needs of the respondent when village elders were the most helpful provider (3.45 v. 3.27) ^[8]. Also the outcome considers better the interests of the other party/ies in the dispute (3.46 v. 3.25). ^[9]

In general, processes conducted by village elders have more restorative power. On the question: “To what extent did the outcome restore the damages caused by the problem?”, village elders receive a higher score — 3.23 compared to 3.04 for other providers. ^[10]

The questionnaire also checks the ability of the outcome to restore specific negative consequences reported by the respondents. For instance, if the respondent reported a negative impact of the legal issue on their health, we ask to what extent the outcome of the dispute resolution process restores this damage. The results are not statistically significant – most likely because of low frequency values at that point of the analysis.

One type of negative consequence as a result of the legal problem is particularly interesting – violence against the respondent. In this dimension village elders again outperform other dispute resolution mechanisms (3.23 v. 2.93).^[11]

Costs of informal justice

The monetary, time, stress and emotional costs of the procedures in which village elders are perceived as the most useful provider are also better perceived compared to all other providers. For time and money, however, the contrast is not large.There is a larger and more interesting difference in the dimension of stress and negative emotions.

According to the respondents, village elders resolve legal problems with less stress for the participants (2.83 v. 2.69) ^[12]. Despite the better score of village elders, stress and negative emotions are the worst dimensions that Ethiopians encounter on their justice journeys. Even though village elders have slightly better results, this finding needs attention and further research.

View References

^[1] X2=102.90, p<.000

^[2] See report referenced in footnote 1 for about impact score. The impact score ranges from 0 (no impact) to 1 (extreme impact).

^[3] F=22.93, p<.000

^[4] Ordered logistics regression likelihood ratio chi-square = 229, p<.000. Beta coefficient of village elders – -.90, p<.000, beta coefficient of impact score – 1.4, p<.000

^[5] As reference category we use crime.

^[6] Excluded are processes where only negotiation took place and a few processes in which there was a negotiation and an involvement of a third party.

^[7] F=7.09, p=.008

^[8] F=6.13, p=.013

^[9] F=9.01, p=.003

^[10] F=7.50, p=.006

^[11] F=4.94, p=.028

^[12] F=5.72, p=.017; higher score means less stress and less negative emotions.

Table of Contents

1. Objectives and brief look at the literature on informal justice in Ethiopia

3. How big is the ‘justice market’ for village elders?

5. How is the performance of informal justice perceived by stakeholders in the formal justice sector?

6. In conclusion: How can informal justice in Ethiopia give rise to game-changing community justice services?

November 29, 2021February 15, 2023

How big is the ‘justice market’ for village elders?

3. How big is the ‘justice market’ for village elders?

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Informal Justice in Ethiopia / 3. How big is the ‘justice market’ for village elders?

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How big is the ‘justice market’ for village elders?

How big is the “justice market” for village elders in Ethiopia? In order to answer this question we use a series of generalizations based on the fact that the sample in the JNS survey was randomly selected and represents the broader population of people living in Ethiopia. It should be noted that the generalization or the application of knowledge from smaller groups towards larger groups has its limits. The numbers reported below need to be considered carefully.

First, based on the adult population of Ethiopia and the estimated proportion of the individuals who encounter one or more problems, we estimate how many legal problems occur every 4 years. We calculate this at the level of the categories of legal problems. This model predicts that every 4 years one can expect around 8.5 million land disputes, 5.8 million crimes, 3.3 million disputes between neighbours etc. Next, we consider the knowledge that 20% of the problems are “lumped” – people do nothing about such problems. At the next step, we estimate the proportion of legal problems that have been referred for resolution to village elders. At this step, we estimate how many legal problems have been directed to village elders every 4 years. In the end, we transform the numbers towards a period of one year ^[1].

The table below shows the results of the estimation at the level of the categories of legal problems. Our assessment is that every year there are around 3 million legal issues resolved at the level of village elders. Most likely this is a conservative estimation and the actual number is higher. Nevertheless, the sheer volume of the market for the justice services of the village elders is massive.

Category of legal problem	Estimated number (rounded) of problems dealt with by village elders every year
Land	1,235,000
Crime	440,000
Family	390,000
Neighbours	350,000
Domestic violence	260,000
Money	140,000
Problems with police	50,000
Accidents	42,000
Employment	31,000
Corruption	12,000
Housing	12,000
Other problems	4,000
Consumer problems	0
Social welfare	0
Obtaining IDs	0
Total	2,966,000

The village elders have a larger social function than reconciliation and adjudication of problems. They advise, decide and steer certain aspects of communal life. In that sense, the resolution of 3 million problems every year is only part of their activities and the value that they deliver to the communities and society.

What do village elders do to resolve justice problems?

Ways of resolution

Deciding or informal adjudication is the most frequently used mode of resolving problems in Ethiopia. It should be warned not to interpret deciding as pure adjudication comparable with what courts and tribunals do to solve disputes. Below we see strong hints that deciding can also take the form of reconciliation of the parties. This corresponds with one of the key findings in the literature review that village elders resolve disputes mostly through reconciling the parties in an attempt to ensure community harmony and avoid vengeance.

Village elders use deciding at almost the same rate as other providers of dispute resolution – in about 2/3rd of the disputes. There is a notable difference in using agreement between the parties as a mode to resolve the issue. Village elders more often resolve disputes through reaching an agreement. Significantly less often the issue resolves itself when village elders are involved. Most likely, this is explained by the lower proportion of unresolved or ongoing disputes dealt with by village elders.

Interventions

Which are the interventions that local elders employ to resolve problems? We asked people whether each of the providers of dispute resolution did any of the following activities:

Provided advice
Mediated actively
Decided the matter
Referred to other neutral
Represented me
Did not do anything
Other

On average, village elders used 1.47 interventions per case which is close to the mean of 1.5 for all providers. To simplify the visualization we compare local elders to the other 5 most frequently used providers of dispute resolution.

The difference in the interventions of the village elders from the other frequently used providers is evident from the chart below. More than half of the interventions of the local elders are about active mediation. We can also frame it as reconciliation. None of the other providers comes even close to such a high rate of using active mediation. What is also apparent is that village elders very rarely refer the party to other means of dispute resolution. Nor do they remain passive in the process of dispute resolution — only 4% of their engagements are perceived as “do nothing”. Clearly, the village elders actively engage in disputes, try to reconcile the parties, sometimes decide the matter or provide advice but very rarely leave the dispute unattended.

Table of Contents

1. Objectives and brief look at the literature on informal justice in Ethiopia

4. How is the performance of traditional justice perceived by the users of justice?

5. How is the performance of informal justice perceived by stakeholders in the formal justice sector?

6. In conclusion: How can informal justice in Ethiopia give rise to game-changing community justice services?

November 24, 2021February 15, 2023

Justice needs survey data and informal justice

2. Justice needs survey data and informal justice

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Informal Justice in Ethiopia / 2. Justice needs survey data and informal justice

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In 2019 and 2020 HiiL partnered with the Office of the Federal Attorney General and the Federal Justice and Legal System Research and Training Institute to study access to justice in Ethiopia. The method used was survey research in which 5 400 randomly selected individuals from all over Ethiopia were interviewed. The questions asked about life events in the last 4 years which potentially might have been resolved with the mechanisms of the formal or informal law. After registering the legal problems we followed in great detail the most serious of the respondents’ legal problems. This provided a lot of insights about the paths that people travel to solve their problems. The survey also probed the respondents to evaluate various dimensions of their justice journeys – process and outcome fairness, impact on life, costs etc.

In the sample of the survey there are 2154 individuals who reported one or more legal problems in the past 4 years ^[1]. We asked each of these individuals about the legal problems that they encountered. The determination of which problem was most serious was left to the subjective evaluation of the respondents. The overall guidance was to think about the issue which had the most impact on their lives. The analysis below is based on these most serious problems. Land disputes (34%), crimes (20%), disputes between neighbours (11%), family issues (11%), domestic violence (6%), and debt (4%) are the first 6 most prevalent categories of legal problems. Collectively they account for 86% of all categories of legal problems. Twenty percent of the people with problems said that they did not do anything to resolve their problems.

To estimate the ‘market of informal justice’ we look at the dispute resolution mechanisms used by the people who took some action to solve their problem. On average, Ethiopians say that they used 1.7 sources of help. Local elders are the most frequently used dispute resolution mechanism. Forty-three percent of the Ethiopians with legal problems who took active steps to resolve the problem engaged local elders. If we add other sources of help at the community level such as religious courts and religious authorities, the cumulative percentage raises to 46%. It is not unreasonable that part of the engagement of local public authorities can be better qualified as variations of informal justice. Following that argument, we are reasonably certain that around half of the legal problems in Ethiopia are resolved through some form of informal justice. At the community level, the village elders are the most frequently used source of informal justice.

Gender

There is no statistically significant difference between the use of village elders by men and women.

Age

There is a significant difference between the different age groups, however ^[2]. 35% of the youngest group (18-24) in the sample brought their problem to village elders. For comparison 42% of 25-39 yeas old and 45% of the 40-64 years old used and 44% of the people over 65 used village elders to resolve the legal issue.

Urban-rural

Village elders are twice more often used in rural areas. 51% of the rural residents used village elders versus 26% in urban areas. ^[3]

Education

There is a very strong link between the use of village elders and education. The trend is that the lower the education, the higher the proportion of people using this dispute resolution mechanism. 47% of people with no formal education involved village elders in the resolution of the problem. 44% of the Ethiopians with primary or secondary education used village elders. Among Ethiopians with vocational or university-level education the respective proportions are 21% and 16%.^[4]

Perceived income level

The use of village elders is much more frequent among people who perceive themselves and their families as impoverished ^[5]. 46% of the Ethiopians who say that they “do not have enough money for basic necessities” engaged village elders for the resolution of their most serious legal problem. Similarly, 43% of those who believe that they can only “buy what is necessary” use village elders. The more affluent respondents are less likely to engage village elders albeit the percentage per se is not low. 34% of those who think that they can buy “almost whatever we want” engaged village elders.

Types of problems in which village elders are engaged

Village elders are involved differently in the various types of problems. The categories of problems in which they are most often engaged are:

Land disputes - 55% of all respondents who had a problem and took action to resolve it
Family issues - 54% of all respondents
Domestic violence - 47% of all respondents
Accidents - 45% of all respondents
Disputes between neighbours - 40% of all respondents

The least likely problems where village elders would be involved are:

Disputes over social welfare - 0%
Consumer problems - 0%
Issuance of ID documents - 0%
Corruption - 10%
Housing disputes - 10%
Employment problems - 12%

In practice, all studies on informal justice find a much broader use of informal justice and particularly of village elders in the resolution of disputes. According to the literature, the most common types of problems dealt with by elders are homicide, physical injury, insult, adultery, trespass, divorce, partition of property, succession, theft, and cattle riding ^[9]. The types of sanctions imposed by the elders are reparation of damage through compensation, reconciliation between the disputing parties and their families or clans, curses, banishment.

The most distinctive features of the dispute resolution processes of village elders are the emphasis on community values, repairing damaged social relationships, reaching consensus and restoration of community harmony and consensus. Rules and procedures are mostly oral. The final results are non-binding as seen by state law. However, the literature reports that the parties often comply voluntarily with the decisions of the village elders. Despite the lack of formal authority and state-backed enforcement mechanisms, the decisions of village elders are effective because of the risk of ex-communication, ridicule, shame or curse for the party (or its family) who is not adhering to the ruling.

Diverse dispute resolution processes are used by village elders. “Litigation at its lowest stages was a voluntary and spontaneous form of arbitration. Parties in civil and even minor criminal disputes would call a passer-by to decide the issue between them under a tree. These informal roadside courts might last for hours, to the deep interest of the spectators… Judges thus conscripted were expected to accept their duties…as a civic obligation. They were generally offered a small fee for their services” ^[10]. Most likely both conciliation and arbitration are used in informal proceedings.

There are many other informal institutions that resolve interpersonal, family, community or inter-ethnic disputes in Ethiopia. Religious leaders, tribal and clan leaders, parish headmen or chiefs, called chika shum (“appointed over the soul”) are some of the examples. In traditional criminal proceedings, a very significant traditional institution is affersata, or government-sponsored inquiry into crime. Affersata is used to discover the identity of a perpetrator through summoning all neighbours. Other procedures for investigating crime are Lebashai (“Thief-seeker” ^[11]) and Kuragna ^[12]. Allegedly all these procedures of criminal justice have vanished and are no more used in Ethiopia.

View References

^[1] See https://www.hiil.org/wp-content/uploads/2019/09/JNS_Ethiopa_2020-1.pdf

^[2] X2=9.28, p=.026

^[3] X2=111.73, p<.000

^[4] X2=53.41, p<.000

^[5]X2=21.44, p<.000

Table of Contents

1. Objectives and brief look at the literature on informal justice in Ethiopia

3. How big is the ‘justice market’ for village elders?

4. How is the performance of traditional justice perceived by the users of justice?

5. How is the performance of informal justice perceived by stakeholders in the formal justice sector?

6. In conclusion: How can informal justice in Ethiopia give rise to game-changing community justice services?

November 24, 2021February 15, 2023

Objectives and brief look

1. Objectives and brief look at the literature on informal justice in Ethiopia

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Informal Justice in Ethiopia / 1. Objectives and literature

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Objectives of this paper

In 2019-2020 HiiL in partnership with the Office of the Federal Attorney General and the Federal Justice and Legal System Research and Training Institute conducted and presented the first nation-wide survey of the justice needs of the people of Ethiopia ^[1].

The overall objective of HiiL’s project in Ethiopia is to make concrete advancement towards People-centered justice. Briefly, People-centered justice is justice that works for the people — it resolves their justice needs and empowers individuals and communities to move on with their lives. After the research part, the next step of our project is to initiate a process of justice transformation. This process is owned by the Ethiopian justice stakeholders. By project design, a group of stakeholders gathers to discuss practical and achievable goals for making justice truly People-centered.

This paper informs the stakeholders’ dialogue about one promising dimension for transformation — informal justice. The JNS data clearly showed that informal justice has massive potential for justice delivery in Ethiopia. With the right support, an enabling environment and by reinforcing links to formal processes, informal justice can unleash its massive potential. At HiiL, we call such opportunities — gamechangers ^[2].

One of the seven categories of gamechangers that we identified globally are community justice services. Based on the insights of the Justice Needs and Satisfaction in Ethiopia we envisaged that informal justice has considerable potential for strengthening People-centered justice in Ethiopia. Specifically, this paper analyses the available data and addresses the questions below with the goal to contribute to the process of assessing and formulating strategies towards game-changing community justice services:

How big is the ‘market’ for informal justice in Ethiopia?
What do village elders do to resolve legal problems?
How do the users of justice perceive the justice processes and outcomes of village elders?
How do stakeholders perceive the pros and cons of informal justice and namely of village elders?
What are the perspectives of Ethiopian informal justice to inspire and nurture game-changing access to justice services?

A brief look at the literature on informal justice in Ethiopia

In this chapter, we summarize the limited literature on informal justice in Ethiopia. Informal justice in Ethiopia is a very broad term. Related and often interchangeably used notions are traditional justice, community justice, customary justice etc. In this paper, we refer to informal justice as the loose system of rules and procedures which is different from the state-administered formal justice system. Informal justice has several distinct aspects. First, it refers to the resolution of disputes with the involvement of a neutral third party. Second, this third party is not part of the formal justice system. As such the neutral third parties cannot rely on state power to resolve problems and ensure compliance but on authority, community values and pressure, social harmony and similar mechanisms. Third, the third party applies customary, mostly oral substantive and procedural rules. Even on the background of the diversity of informal justice, informal justice in Ethiopia is particularly diverse. Ethiopia is a large federal and multi-ethnic country with over eighty ethnic groups speaking different languages and professing different religions. Customary laws differ by ethnic groups, clans, tribes and even lower communal levels. There is no single customary law or procedure across the country ^[3]. Informal justice is practised mostly in rural areas because the formal legal and justice systems have less of a reach in such areas. Cultural preferences also play a role in the inclination towards informal justice mechanisms. Nevertheless, informal justice institutions and practices are not completely absent from Ethiopian towns and cities.

“Customary dispute resolution is paradoxically both general and specific in Ethiopia. On the one hand, it is widespread and found spatially almost ubiquitously throughout the country and has worked historically in the absence of the state justice system as well as where it exists in the past and the present. On the other hand, it is localised and the constituency and jurisdiction of CDR institutions are generally limited to particular localities within ethnic groups” ⁴.

One of the mechanisms of informal justice in Ethiopia is particularly visible and used by the people. Forums of local elders who resolve disputes through reconciliation of the disputing parties are present in many regions and settings ^[5][6]. Elders are well known and respected members of the community such as religious leaders, wise men and other leaders ^[7]. Albeit an exception, respected women can also act as elders. There are many different names for elders. In Amharic elders are known as shemagalye or shimagillé ^[8]. Shimagille can mean peace-maker, reconciler and/or mediator. The related process of dispute resolution mediation is often called shimigilinna. In other languages, elders are known differently as: Jaarsaa Biyyaa, Ragac, Al-Sheba etc.

There is no strict definition of the jurisdiction of the village elders. In the Constitution of the Federal Democratic Republic of Ethiopia, customary and religious institutions are given jurisdiction over personal and family matters if the parties give their consent to adjudicate the grievance through such institutions.

Art 34(5): This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious or customary laws with the consent of the parties to the dispute.
Art 78(5): Pursuant to Sub-Article 5 of Article 34 the House of Peoples’ Representatives and State Councils can establish or give official recognition to religious and customary courts. Religious and customary courts that had state recognition and functioned prior to the adoption of the Constitution shall be organized on the basis of recognition accorded to them by this Constitution.

View References

^[1] See https://www.hiil.org/wp-content/uploads/2019/09/JNS_Ethiopa_2020-1.pdf

^[2] See https://dashboard.hiil.org/the-gamechangers

^[3] Enyew, E. (2019). Ethiopian Customary Dispute Resolution Mechanisms: Forms of Restorative Justice?, p. 136

^[4] Pankhurst, A., & Assefa., G. (2008). Understanding Customary Dispute Resolution in Ethiopia. In Grass-roots Justice in Ethiopia: The Contribution of Customary Dispute Resolution (pp. 1–76). Addis Ababa: Centre français des études éthiopiennes.

^[5] Enyew, E. (2019). Ethiopian Customary Dispute Resolution Mechanisms: Forms of Restorative Justice?, p. 125

^[6] Wada, T. (2012). Coexistence between the Formal and Informal Justice Systems in Ethiopia: Challenges and Prospects. African Journal of Legal Studies, 5, 269–293. https://doi.org/10.1163/17087384-12342012, p. 278

^[7] Enyew, E. (2019). Ethiopian Customary Dispute Resolution Mechanisms: Forms of Restorative Justice?, p. 141

^[8] Pankhurst, A., & Assefa., G. (2008). Understanding Customary Dispute Resolution in Ethiopia. In Grass-roots Justice in Ethiopia: The Contribution of Customary Dispute Resolution (pp. 1–76). Addis Ababa: Centre français des études éthiopiennes.

^[9] Wada, T. (2012). Coexistence between the Formal and Informal Justice Systems in Ethiopia: Challenges and Prospects. African Journal of Legal Studies, 5, 269–293. https://doi.org/10.1163/17087384-12342012, p. 278

^[10] World Development Report 2021: Data for Better Lives. (2021). In World Development Report. https://doi.org/doi:10.1596/978-1-4648-1600-0, p. 729

^[11] World Development Report 2021: Data for Better Lives. (2021). In World Development Report. https://doi.org/doi:10.1596/978-1-4648-1600-0, p. 72

^[12] Wada, T. (2012). Coexistence between the Formal and Informal Justice Systems in Ethiopia: Challenges and Prospects. African Journal of Legal Studies, 5, 269–293. https://doi.org/10.1163/17087384-12342012. p. 282

Table of Contents

3. How big is the ‘justice market’ for village elders?

4. How is the performance of traditional justice perceived by the users of justice?

5. How is the performance of informal justice perceived by stakeholders in the formal justice sector?

6. In conclusion: How can informal justice in Ethiopia give rise to game-changing community justice services?