Customary dispute settlement of some specific ethnic groups
Different writers have tried to describe the diversified customary practices of different ethnic groups. Ato Tesfaye Abate in “Introduction to Law and Ethiopian Legal System” course material has discussed in detail the Afar customary law including the devises employed there to settle different kinds of disputes among themselves and with their neighbors. Dr. Aberra Jemberre in his book entitled “Legal History of Ethiopian – 1434 – 1974”, which has been used as a text book for the course Legal History for years in law schools, has made a land mark discussion in revealing the customary laws of ten ethnic groups of Ethiopia. I have selected randomly the administration of justice part of the customary laws of two ethnic groups among those ten.
The customary law that was applied among the Amhara was not written. It was transmitted from generation to generation by words of the mouth. Amhara customary law was dominated in some parts of Ethiopia. Some of its norms have been embodied in the codified laws of \Ethiopia, for example the principle of usucaption, the institution of family arbitration, equal sharing of property in inheritance by female descendants, etc.
The most prominent traditional institutions are Abat, yegobez aleqa, chiqa shum and yezemed dagna.
- i. Abat: People’s nominee
Right from the village level called qero (village or guagne (locality) up to wereda and awradja level, local administration and judicial functions were both discharged by the institution that was known as abat which was created in certain circumstances.
Whenever justice was found to be lacking or the government apparatus failed to operate and as a result, crime and insecurity prevailed in a region, the institution of abat came in to the picture. Persons known for their intelligence and, most of the time, elderly persons who were respected and feared in the community, were elected to this office at a general meeting of the community. Depending on the area and population, a community might elect as many as seven abats who would collectively be responsible for making laws, dispensing justice, and executing it. They were, in general, entrusted with the maintenance of law and order. This institution was established to decide criminal as well as civil cases on the basis of customary law.
Once these persons were elected, a general meeting of the members of the community was called to approve the rules of the institution of the abat. The message calling a general meeting was communicated by lighting fires on mountains or hill tops at sun set so that everybody might see them. Whoever saw the sign would like wise light a torch and so would every member of the community. In this way every one in the community would be informed of the meeting that would take place on the morning at a market place, in a church yard or at any other specifically designated for such purpose.
The elected persons would then read out to the general assembly the rules prepared by them. The meeting would approve the rules and adjourn after making a statement that runs: “Let your cattle be kept by my cattle”. This statement had two meanings among the Amhara. First it means that the cattle would be safe with out a headsman as long as there was unity among the members of the community. Second, it serves as warning to those persons who used to take the cattle of others. In this sense, it was understood to mean: “If you dare to take my cattle, I will do the same to yours”. In addition, directives containing the following orders were issued;
- Remain on your own holding;
- Avoid any trouble;
- Watch out for strangers. Do not let them go in and out on their own will. Bring them and those who violate the law before the public authorities;
- Beware and keep yours ears open, ask for information from persons who go to the market and from any passer- by; and
- Help any person in distress and help persons to find their way.
Any one who infringes on the law would first be advised by his relatives and neighbors. If he did not heed the advice, a reprimand by the assembly of the locality followed. If he still persisted in his misbehavior, he would be made to appear before the abat and qould be given a warning. Finally, if he still continued to misbehave, he would, within the limit of his capacity, be ordered to prepare food and tella (local beer) so that the members of the community would feast on it. If he committed the same wrong for the third time, everybody would conspire against him. If he still failed to abide by the customary law, eroge (ostracism) would be decided.
In this way, law and order used to be maintained from village up to Awradja (province) level. (The norm being that everyone conduct his or her daily activity in peace: a merchant his own trade, a farmer his farming, a priest his religious duty, etc.). This system of self administration usually proved more effective than one performed by corrupt or negligent administrators appointed and sent by the central government.
- Yegobez Aleqa: “Chief of the strong” or Military Leader
The institution of Yegobez Aleqa was created by the members of the community wherever there was a cause to revolt because the burden imposed by governors had become unbearable. The Yegobez Aleqa was empowered to lead all able-bodied men in the community. The group under Yegobez Aleqa maintained peace and order; re-institute property to those who were dispossessed and forced outlaws to submit to the people’s power.
- Chiqa Shum: Village Chief
Chiqa Shum was another well-established administrative institution the Amhara community. Besides administering the locality, the Chiqa Shum was also empowered to adjudicate cases involving divorce, battering, trespass and other minor cases. He was responsible for communicating the government orders and collecting taxes. One of his main responsibilities was to act as state functionary below the wereda dug (dug was a name for the village chief) the melkegna (mean a local chief above the Chiqa Shum) or the abegaz ( a governor of a locality) or gult-gezji ( a hereditary local chief). The office of the Chiqa Shum was an hereditary title in Wello, while it was a privilege which rotated in turn every year among all rest holders in the Gojjam and Gonder region, and in Northern Showa.
- Yezemed Dagna: Family Arbitrator
Another important institution in Amhara community was Yezemed Dagna (family arbitrator). They were elected for every dispute that arose with in a community. The entire functions of the family arbitrators were to bring the opposing parties to an amicable solution. Such attempt helped to settle cases without going to regular courts whose decision might inflict further damage on an already precarious relationship. In all minor disputes, family arbitrators helped to bring the parties to an agreement on their own before seeking the assistance of the abat or governor officials.
In general, the institution that served as courts of first instance were, according to Amhara community law, the family arbitrators, village elders (the qero judges in Wello) or the Chiqa Shums. To justify this, it was said that, “Even a swarm of bees would not leave their hive and go to a new one before they settle down on a nearby tree or fence”. So a person aggrieved should attempt to settle his case by referring it to the village elders or the chiqa shum before taking it to the regular court or the administrator. Although taking a case directly to the officials of the government was never prohibited, it was always the practice to try to have a case resolved by the traditional institutions first. Even after a case was instituted in a court, the elders secured permission from the court to attempt to settle the matter first among them selves. This was always accepted by the court with appreciation.
The Somali in Ethiopia (in the Ogaden region) are a herding people, keep cattle, camel, and small livestocks. They are also traders operating through out the eastern Ethiopia and beyond.
The political and social structure of traditional Somali society was based on lineage and clan. Although clans do not represent permanent and homogenious unit, the social organization of Somali is in many respects shaped by clan identification and clan social networks. Clans can be seen as related to a higher-level unit, usually called (by outsiders) clan-family. There is a large diversity and number of clans and sub-clans.
Somali society is petrilineal. Most Somai social relation are based on kinship lonks: on ideas of consanguinity: tracing or recognition of genealogical or blood relationships, although affinal links traced though the family of the wife or the mother are also vital. Although the clan is not a homogenous unit settled in one area, it represents a level of political power. Lineage relationships derived from clan identity and identification, also in a political sense. This was because there were and are instances where the corporate function of the clan, as an overarching group identity based on kinship feelings, transcends relations of individuals and groups that fall under it.
The clan is, therefore, a political frame work, and this inclusive level of politics has a certain reflection in the patters on settlement. When one refers to a pattern of settlement, one does not mean that clan members live in a definite circumscribed territory. They live in groups along a definite area of movement. Since these peoples are pastoralists, the reference to the area of movement pertains to the area in which the nomads roam about in search of pasture and water. Nonetheless, the unity of the clan (as a frame work for social identification) dose not in the main emanate from an ecological factor, i.e. territorial unity based on common exploitation of pasture, waterholes, etc, but usually from the same descent.
- Ugaz: Paramount Leader
Each clan has prestigious and authoritative leader. The leader is known in various regions either as the ugaz, garad or bogar. The reference to the clan leader does not mean that the Somali had a single administrative machinery. Nor does it imply that each clan has its own ugaz. Some clans have ugaz or a person who has the same function and status, while others do not have anything of this sort. In such case the leader of the clan represents his clan in dealing with other clans, more often in the settlement of disputes.
- Lineage Leader
The next political level below the clan is the lineage. Lineage refers to ro a relation which is traced by all its members and every person knows to which lineage he or she belongs. The lineage leader administers the affairs of his lineage and represents them in administrative organs.
- Dia-paying Group Leader
The group below the lineage is characterized by Lewis as a mag- or dia-paying group. The dia-paying group comprises of persons falling within at most, the fourth or the fifth generation. As a result, it can be held liable for paying compensation such as blood-money, and it can also require others to discharge their obligation to it, as a legal entity. Although it does not have a formal leader, it enforces law and order through its elders. Hence, the bond of blood relation that is characterized as dia-paying groups may be looked upon as the territorial and political unit.
In terms of the descent principle, there is no great difference between a clan and a “tribe” in the Somali social structure. The clan signifies a kinship unit, a political unit, a unit of war and blood feud relation and a unit of marriage. As a result, it plays a major role in the wide range of social and political function.
In Somali society, legal procedure follows the pattern of the political structure. The fact that the clan is the highest political unit has already been stated. The significant of such a statement is that it also expresses the judicial relationship. Although Islamic law nowadays determines a great deal of the marriage laws among the Somali people, a good part of the clans’ relationship is governed by customary laws. Although the qadis are established as the competent tribunal to adjudicate cases on the basis of Islamic law, the clan leaders still maintain some residual judiciary powers.
The customary law that was known as merk was initiated by a Council of Elders (ordeal) and it was submitted to the assembly of people for approval.
- Assembly of the People
The assembly of the people was the highest law making organ. Regarding the crime of homicide, the basic principle of the customary law of the Somali people is that: “Life is redressed by life”. The primary duty to track down the slayer fell on the brothers of the slain. The revenge is primarily directed against the person who committed the crime and secondly on any close relative of the murderer. If the crime is committed among the warring lineages, the issue ceases to be a family problem and assumes a higher stage, i.e. an inter-clan feud.
Concerning family disputes, the legal proceeding is initiated by individuals. Clan disputes, on the other hand are taken on a clan level. In most cases it is the dia paying group that bears the responsibility. The compensation is known as aefessa among Somali.
After committing homicide, the slayer usually runs away to some other locality or hides himself in the abode of a tribal leader, sheik or the sultan. He then pays for arbitrators to intervene. In most cases his request will be accepted. In fact, there are instances where clan leader simply hand over the cattle of the slayer to the relatives of the victim. If the relatives of the deceased decline to receive blood money, they would hand over the slayer to them on whom vengeance would be taken in the same manner as the slayer had done when committing the crime. However, this does not usually happen.
The obligation of the can members to pay compensation depends on the closeness or remoteness of the relationship among lineage members. For the purpose of compensation, a lineage may be divided in to first, second and third circles. Relatives of the slayer who fall in the first circle have the obligation to contribute one-third of the total compensation; relatives in the second and third circle would be obliged to cover the remaining amounts of compensation. Once compensation is decided to be paid in one of the two ways, relatives of the first circle are obliged to undertake the actual handing over of the amount due to the relatives of the slain.
Every naroleh, i.e. male relatives in the first circle – whether he is young or old should contribute an equal amount. Relatives in the second circle may contribute according to their economic status (kabara). The amount payable as compensation in case of a woman is less than the amount due for a man.
The manner of payment of compensation for bodily injury is, more or less, the same as that of homicide. The compensation for moral injury is known as haewul. Damage sustained as a result of contractual relations and that which is sustained out of extra-contractual relations (tort) is usually paid as haewul (moral damage). Some of the faults which entail the payment of compensation are to beat one’s wife or child with a stick or whip, to have sexual intercourse by force to commit adultery. The last two are regarded as fault and they cause moral injury to the relatives of the woman.
A breach of contract of betrothal is regarded as moral damage to the honour of the family members of the other party. Insult such as those implying slavery, low caste and the like, also entail the payment of compensation. According to some writers, such injuries can be compensated by the payment of a horse, for horses are believed to honour the wronged person.
These two ethnic groups dispute settlement mechanism are only few examples of the Ethiopian practice. It is possible, here, to check the existence of the common characteristics of dispute settlement.