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