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Customary ways 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.