- Category: Alternative Dispute Resolution
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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.
Customary ways of Dispute Settlement
Customary and religious laws are earliest and prominent in Ethiopia to settle disputes. African continent were filled with customary laws before the incursions by foreigners. Particularly in Ethiopia customary laws of different ethnic groups were the major body of law in Ethiopia for centuries. Even after the introduction of written and authoritative laws, like the Fetha Negest in the 15th century, customary laws played a significant role in the administration of justice. The roles of customary laws were not totally taken away even after Ethiopia adopted legislation as a basic source of law in the onset of 20th century. The reason may be that those piece meal enactments were far away from being exhaustive to regulate all matters in terms of subject matter and detail ness, not accessible for the ordinary people and not well customized to the local needs but substantially imported from foreign experience. These factors paved the way for the application of customary laws in most of the citizens’ activities.
The 1950’s and 60’s transformation era primarily aimed at unifying the laws of the nation under the same authoritative legislation and the minimization of application of customary laws. Article 3347(Civil code) envisages this objective the civil code. But this does not mean that the applications of customary laws are totally abolished by these new enactments. Rather they are legalized in a sense that the codes recognized the importance of customary norms of the society in two ways. One, by directly incorporating the prevalent customary norms in the codes, like in the family, succession and property laws. In the other hand sometimes direct reference had been made to those customary laws of the society as long as they are not contrary to the prevalent laws, like formation of marriage, interpretation of contract (Article 1713 of the civil code).
Under the FDRE constitution customary laws and practices have been given due cognizance unless they are not contrary to the legal norms. Reference can be made to articles 9, 34(5), 41(9) and 91 of the same. These show as still now customary norms are sources of law in some subject matters.
Customary laws of Ethiopia which are different in form and substance are deeply rooted in the traditional institutions of each ethnic group. They are not uniformly applied but are mostly peculiar to ethnic groups with some exception. As rightly witness by Dr Aberra Jembere, who extensively studied customary norms of different ethnic groups;
Customary laws of Ethiopia were different in form and substance, and each applied to a given area only. So they did not have uniform application all over the country. They were made and accepted at the community level. Their common characteristics were rooted in the participation and consensus of the community. They derived their legitimacy, therefore, from these factors.
Among the subject matter where the customary laws are still enforce are administration of justice or settlement of disputes. We have ample and unique ways of settling disputes of any nature and degree arisen among themselves and with their interaction to other ethnic groups. Some exist though they are contrary to public policy, like arbitrating criminal matters between the victim and accused.
Common characteristics of customary dispute settlement
It would be important to deal with all kinds of customary ways of dispute settlement inherent in each ethnic group, but for lack of resource and some other reason (I) will confine my self to their common characteristics and describe some in detail.
1. Intermediates (SHEMAGILES) - The third parties who act as an intermediate between the disputants have some common character in their identity, ways of nomination and their role through out of the proceeding. Here for easy understanding of the customary proceeding I will use the term “SHIMAGILE” to refer the third parties though they are known by different names in different localities. When we see their identity, they are the most respected parts of the society as a result of different reasons. Some times they are chiefs of the clan or the community, religious leaders or heads of the religion, or local administrators who have the official capacity. In some other instances they might be the parts of the society who have wealth in that specific locality. The role of priests in most parts of Ethiopia especially in the highland parts and cities can be taken as an example here. What ever that matter could be he is expected to be an old person (mostly men are favored over the women), wise and experienced enough in settling disputes. Those shimagiles might be from the relatives or clan of both the disputant equitable in their number in addition to neutral intermediates or some other times only with neutral once.
The criteria for a party to be a shimagile are not subtle and it is inherent in the nature of these customary ways of dispute settlement. The third parties are expected to persuade the disputants in resigning their initial claims against their contender. To do so the third party should be of a person with wider acceptance in that community, fluent in speech and critical thinker, who can admire any person in his public speech, whose words or ideas can be accepted by parties. Some times relatives of the disputants may be a third party and may be it is to best negotiate about the remedies of the dispute with out substantially affecting the financial status of the disputant. But, in the other instance it is also believed that relatives of the disputant might be the best person to convince their own respective relatives to put down its extra ambitious claims and sometimes disputant who is not willing to submit him self to the authority of shimagiles. The disputant will be reluctant to go away from the concern of his relatives, who might help him financially if he is required to compensate the victim or the creditor.
When we come to the ways of nomination of the shimagiles, it is basically the concern of the community and relatives of the disputants to make sure that the victim is not left with out being dully compensated and left retaining his hostility with the other disputant, who might be subject to an intentional attack by the first victim as a retaliation for his grievance. Thus, the third parties may be nominated by person who are closer to the disputants, i.e. neighbor, relative, closer friend or family member. Some other times the concerned third parties them selves may present them selves as a concerned person to settle the dispute. In other cases, the community it self may had a pre nominated third party who serves as an intermediate in any cases, like clan leaders. Here, the third parties may try to settle the dispute even with out the knowledge of the disputants but only with the consent of the relatives or clans of the disputants. And it is uncommon to see resistance made by the disputants as to the authority of the shimagiles because of the social norms and grave effect of such refusal.
2. The nature of the proceeding – After the nomination of the shimagiles, they will officially start their function of pushing or persuading the disputants to submit their matter for review before them. We might not get formal and standard steps followed by all customary ways of dispute settlement. But mostly they will make a mini investigation as to the nature of the dispute and the personal characteristics of the disputants. Then they will move to one of the disputant by studying a period where he will be home and with no duty. Mostly they favor weekly rest days or holidays and early morning times than the other days and time. Before they move to the house of the disputant they might inform him that they have got some concern to talk with him on that specific day and time, and sometimes even with out making appointment with him.
After they try to persuade him to resign some of his claims depending on the nature of dispute, they will move to the other disputant, probably the wrong doer, to tell him the offer made by the other disputant and to persuade him as well as they did previously with the other disputant. The important thing here can be best described by the Amharic proverb which says “shimagile washto yastarkal”, which literally means ‘the shimagiles will lie to get the parties compromised’. It is to mean that they will hide some facts and offers made by one of the disputant if it is offensive to the other or if it is not substantially important or if it would not help to end up the dispute amicably. They will shuttle in between the disputants until the they make sure that the disputants have agreed on same point, which might require more than one separate meeting with the parties individually.
After they fix the nature of compensation, they will call a joint session of the disputants, his families, relatives, clan members as the case may be if it were as such serious matter which affects them. A feast will be prepared in this specific date and their will be exchange of apologies by the wrong doer and acceptance of the same by the victim. Shaking of hands and kissing is the important part of the proceeding which is a declaration of ending hostility among the disputants once and fore ever. It means that the disputants are returned to their previous status as if the never got in to dispute, i.e. re - creating the past by forgiving the wrong act.
The compensation will be handed to the victim in cash or in kind, like herds of cattle. Often the shimagiles will not be compensated the expense they have incurred during the proceeding nor paid for the service they have delivered. It is considered as a public duty and some times with no option to resign from the status of being shimagile.
3. Subject matter of dispute presented before SHIMAGILES - As customary laws were in force for a long period of time in Ethiopia, we can no see choice being made in the subject matter of the dispute. Customary dispute settlements have a wider scope in settling family, succession and property disputes. Specially, bringing family dispute before court of law will be considered as a shame for the spouses.
Very often dispute which involve a class of peoples or the whole member of a clan or locality, like a dispute over grazing lands and water in the lowland areas, murder, rape and abduction cases, are referred to customary dispute settlement. Even it is believed that the quality of the outcome of such a method in creating peace and harmony cannot be compared with what might happen in the courts of laws.
It is also usual to see serious criminal matters like homicide and offences against property like robbery being referred to the hands of shimagiles. The payment of blood money by the murderer and his relatives to the families of the victim is a common form of remedy for such a case in most parts of Ethiopian localities far away from big cities. And some witnesses the effectiveness of the method in creating sustainable peace and harmony in the relations of the relations of both parties by avoiding retaliation among them selves. An important argument may be raised about the criminal policy of Ethiopia in conciliating criminal matters which can be prosecuted with out the requirement of private complaint. This will be dealt in the other section of this chapter later on.
4. Effect of out come and enforceability – though not often it happens that the disputant may stick to their contentious claims through out the proceeding irrespective of the efforts of the shimagiles and it may end up without success. Thus, like the modern conciliation proceeding there is to possibility, i.e. compromise or non compromise. As the nature of the out come differs, it does the effect to the disputants. If it is a compromise, the disputant who is declared to be the wrong doer will be required to compensate the victim. The compensation may be in kind or in cash. The amount money will be determined by looking the gravity of the wrong act, the extent of the injury sustained by the victim and to some extent the financial capacity of the wrong doer. Some times in case of serious offences the wrong doer might not be capable of paying the compensation from his individual wealth. At this moment his relatives or clan members will contribute towards the payment and relieve him from the debt.
The nature of this compromise is like a contract and parties are bound to perform the obligation they have assumed before the shimagiles. If they fail to perform their obligation they will be called and asked why they fail to do so. A party who insists in his failure will considered as a man of no worth for the community, the shimagiles will consider this an insult directed towards them and the hostility between the disputants will be aggravated.
On the other hand, if the proceeding ends up with no success, the disputant who fails to resign his contention claim will be seriously condemned by the community for failing to obey the words of those wise elder men. This will result him to be isolated from the community in his daily life and in time of emergency to the extent of expelling him from the clan or religious group. The disputants will submit them selves to the words of the shimagiles though they personally believe that they are not dully compensated or not yet forgiven. This is how customary norms maintain solidarity and buy obedience from the members of the community.
As Dr. Aberra Jembere described the customary ways of dispute settlement of different ethnic groups, which are at different stages of social, economic and political development, exhibits the attributes of both homogeneity and heterogeneity. The above discussion is an example to show the homogeneity of different customs. The diversity and similarity is due to the factor that the different cultures have passed through multiple associating and dissociating factors such as;
- The difference in the political experience of these peoples;
- The influence that the ecological and climatic factors have had on them;
- The extent to which the processes of acculturation and assimilation in to other groups have taken place among them.
Constitutionality of ADR
This days adhering to constitutional values is becoming a standard to determine the stage of development of a certain nation. Constitutional values can be seen in to angles. One from the eyes of the subjects – as a means to check whether the elected and ruling parts are working with in the limitation given to it by the people; second in the eyes of the elected officials – as a means of showing their obedience by proofing themselves that they are loyal, committed and work only for the best interests of the subjects with in their limitations. It is for mutual benefit that each and every activity in a constitutionally established state functions with the limitation put by the supreme law of the land.
Constitution regulates most important activities of the state. For example, it recognizes inherent rights of citizens with its respective duties, and also establishes government agencies together with its responsibilities. One of the pillar rights of citizens which are recognized by Ethiopian constitution, as it happens in all the constitutions of other nations of the world, is access to justice. Article 37 of the same reads as follow
“Everyone has the right to bring a justifiable matter to and to obtain a decision or judgment by, a court of law or any other competent body with judicial power”.
This part of the constitution which is subject to broader interpretation has incorporated different elements. At least the following can be said about the included rights in this provision. The first clause speaks about the rights of individuals to bring any of his grievances to the appropriate body. The second phrase qualifies the nature of the matter that can be safely taken to the body, i.e. justifiable matter only. This seems to talk about the real interests of the claimant and the existent of cause of action. Thirdly, we should not think of a mere right of bringing the matter to the authorized body but also to get remedy for his or her grievances. This puts a positive duty to the state to make sure, that after the claim has been accepted by the appropriate organ, justice has been done to the satisfaction of the general public. The provision further determines and limits the bodies that have the authority and competency to settle disputes. In doing so, its only courts which are constitutionally established institutions of the state and other bodies with judicial power which can validly look at the matter and give binding decision which is enforceable before law.
When we talk about the right to bring grievances before the competent authority, it is not a mere right granted for the citizens with negative obligation on behalf of the state. But as most scholars agree it is the duty of the state to make sure that judicial bodies are really accessible to the public. Here accessibility needs to be interpreted broadly. It may mean material accessibility, i.e. the average distance between the one who is with his grievance and judicial offices; the expenses disputants supposed to cover to get justice; the duration of time the matter takes to be settled; getting qualified experts to give reasoned decision which satisfies the general public. These all parameters and its fulfillment are a relative test which differs according to the level of development of the nation. What is denial of justice in a certain developed nation might not be the same for Ethiopian instance. And what we have to see is the economic and human resource of the nation and its development in the passage of time.
At this moment it might be extra ambitious to require the state to establish a court in each and every locality; degree holder and experienced lawyers in each court room; dispose of each cases with in days; make court services free of payment or much less than what we have today etc. Lack of resources might be the primary obstacle to accomplish all those activities prior to all other obligation of the state. This by itself might not be denial of justice if the state tries its level best to get rid of these obstacles by other means.
Alternative dispute settlement can be thought as one remedy to rectify those in cumbersome we have discussed. As we have discussed in the first chapter it is believed to be speedy, less costly, easily accessible for all, affects future relations of the parties positively and possibly a place where persons with experience in the specific subject matter we sought justice might be obtained. Since it is beyond the capacity of the state to satisfy the needs and interests of all the needy citizens, encouraging the establishment of ADR institutions and letting disputants settle their dispute amicably is the extended obligation of the state to best secure access to justice.
In the other case as per this constitutional provision courts are the primary institution empowered to settle disputes, but by no means are the only institution with such power. Though the article fails to specify them, it tells us that there might be other organs with judicial powers other than courts of law as long as it did not take away from court of law. As long as we have not absolutely prohibit citizens from taking their cases to the court of law, as long as we have not prohibit appeal from going to ordinary courts, the government has the right to establish specific courts. This can be witnessed from Article 78(5) of the same. This very article empowered the House of Peoples Representative or as the case may be State Councils might establish or obliged to give recognition to the established customary and religious courts. The existing Shari’ a court is an example of religious courts established in the nation under state recognition.
By the same taken the House of Peoples Representative can establish other institutions with judicial power or give recognition if they have been established by private individuals. Giving due cognizance for arbitration and conciliation proceeding specifically and compromise in general is start but not an end by itself. Moreover, by recognizing instructions which serves as a forum for arbitration and conciliation, like the Addis Chamber and Ethiopian Arbitration and Conciliation Center (EACC), the state is promoting the ideal constitutional access to justice principle.
- Category: Alternative Dispute Resolution
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In our prior discussion in the first chapter, we have seen that ADR is as old as early society. In the old civilization of ancient history the Greek mythology, the laws of Babylonian, i.e. Hammurabi Code (1750 BC), the XII Tables of the Ancient Romans (Table I paragraph 6) and the laws of the Ancient Jewish and the teaching of Apostle Paul ( I Corinthians 6:1-7 ) witnesses the undeniable significant role of ADR in settling disputes of any nature and degree amicably. Those ancient societies were using primitive form of ADR not as an alternative as we used today but as a primary devise to settle disputes.
For instance in the Ancient Far East legal system, i.e. Confucianism, which were used by the peoples of China and Japan , formal complaint before the local chiefs were not prohibited but not advised and encouraged. The societies were tied together by social norms and hence one who brought cases before these chiefs were considered as worthless and who lacks tolerant, and may be segregated from communal life. On the other hand, if one settled his matter amicably by using the informal means he will be uplifted by the community and will be considered as a man of tolerance. The remedy given by the society for such action forced the disputants to look for compromise rather than formal complaint before the local chiefs to get remedy for their grievance of varying nature and degree. This shows us the place of compromise or amicable settlement of dispute plays a significant role in a day to day life of the ancient society and helped them to have smooth relation among them selves.
We the Africans, who believed to be the cradle of man kind, had our long history tied with amicable settlement of dispute. In the Ancient Egyptian history who had more formalized litigation structure as has been written by Mark Andrew “Minor cases were tried by a local council of elders and each town or village had its own local Kenet in charge of legal proceedings. Such case usually involved minor problems, such as default on loans”(Murado P 122). Before the ear(a) of discovery and colonialism, the African continent was ruled by customary practices which had some characteristics in common. Muradu Abdo in his Legal History and Traditions course material best describes this incidence by saying “Conciliation plays a very important part in African law since the community life and group isolation give rise to a need for solidarity. As a result the Africans always seek unanimity through dialogue, since only conciliation can put an end to disputes” (Page 80). This was alternative to the possible complaints that might be lodged before the local or village chiefs. Each practice of the Africans was filled with traditional beliefs based on a common sense of right and wrong I settling disputes.
As part of the long African history, Ethiopia had practiced traditional ADR in her long history. As it is true in most of the ancient society, local chiefs who are known by different names in different localities like clan leader, village heads etc are local governors with extended privileges. They are mostly nominated by the will of the kings or leaders of the country or community as the case may be. Thus, they were seen as representative of the one who nominate them, i.e., the king, and are the right hands of the king to enforce decree, levy and collect taxes, secure peace and stability with in their local jurisdiction. The traditional obligation or privilege in the view of some historians, of the king were unlimited and were extended to issuing laws, enforcing it and adjudicating disputes. The kings used these local chiefs to take care of all these obligations in the remote areas, including the settlement of disputes. Thus, formally, when these local administrators try to resolve conflict, they were acting not in their individual capacity, but rather in their official capacity as a magistrate. They used the customary laws, religious beliefs and their own sense of right and wrong to settle the matter. Even the decisions of such type were appeal able to the next higher administrator or sometimes to the king directly. The king himself hears some firs instance litigation and appeals. Because it was the traditional obligation of the kings to make sure that justice had been done in his empire. In Ethiopian history this was the fact before the formal establishment of courts in the 1940’s and after that in some localities.
The above discussion gives us some light about the administration of justice our early history. But this was not the only means of settling dispute and making justice. The formal adjudicative function of the governors in their different hierarchy contributes only for the settlement of some of the disputes. Most of the disputes were settled by elders, religious leaders, like priests, or clan chiefs elected by the community.
There are two views as to the development of proceedings which are called ADR these days. Some scholars said that ADR is the primitive form of litigation and so is the earliest mode of adjudicative litigation. But most of the scholars do not agree with this opinion and rather, they said, ADR is an independent form of dispute settlement which is different from adjudicative form of litigation and developed independent of it. The proponents of the second view agree with the opinion that says ADR developed much earlier than adjudicative and authoritative form of litigation. But they are saying that this does not mean that the two proceeding developed together. This argument can be raised in same way in the development of Ethiopian legal system. While entertaining cases did our elders acting authoritatively? Does it had adjudicative in nature or compromise? Do the parties had the right to go for appeal from the decision of the elders? The answers for these questions will probably lead us to decide whether ADR developed independently or is part of adjudicative litigation. The fact is in the administration of justice, cases of any nature had unlimited opportunity to go for appeal to doors of the king.
Before the 20th century where there were customary laws prevailing all over the nation, different localities had their own ways of dispute settlement inherent in their identity with out reaching their local governors. These means used the elders or “SHIMAGILE”, which are the most respected and wise part of the society because of their status or age, as an intermediate. The powers of the SHIMAGILE’s were limited on persuading the disputing parties to compromise their matter. These intermediates were wise and persuasive enough to succeed backed by the norms of the community. We will discuss the customary ways of dispute settlement later which is still prominent in some parts of the society making life easier.
As a result of formal establishment of institutions in the second half of the 20th century like courts with state nominated judges and administrators nominated by the state, the roles of customary ways of dispute settlement became absolutely alternative.
At the time when we establish formal administration of justice due cognizance has been given to these alternative means of dispute settlement. The 1950’s and 60’s codes have in its different parts dealt the most widely used ADR types, i.e., Arbitration and Conciliation, as an alternative to court litigation. This is an evident to show that these alternative means grow parallel to formal adjudicative litigation system. The coming section discusses them a lot.