5. How is the performance of informal justice perceived by stakeholders in the formal justice sector?
Photo by Lesly Derksen on Unsplash
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.
- “When we look at its successes, the system grants win for both parties. Here there is no loser and winner. I believe that it should be strengthened since it always ends with the agreement.”
- “Its strengths are that it is easy for the community to save money and is good for their future social relationships.”
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.
- “Traditional systems have the great advantage of reducing court burden.”
- “To begin with the informal justice system, though reconciliation can avoid revenge, from the moral and human rights perspectives, those who should be punished will escape from punishment.”
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.
- “The two systems are different. They have different implementation as well as enforcing mechanisms. So without trying to harmonize each other it is possible to practice both.“
- “ These two systems are not working in conformity. It is unable to create a traditional system that supports the formal system.”
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.
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