2. Justice needs survey data and informal justice

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

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.