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

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.

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] 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