Conciliation is one type of ADR, which may be used in the settlement of a variety of dispute. The term conciliation is sometimes used interchangeably with mediation though there is slight difference among these two processes. The Ethiopian law used conciliation rather than mediation and it is the second widely used ADR next to arbitration. The civil code in its special contract part discusses conciliation not in the sense of contract only but also its procedural aspect. Though it fails to define what conciliation means, it provides procedure for appointment of conciliator, the rights and duties of the parties and the conciliator, and its effects.
The specific articles under Section 2 which is entitled as "Conciliation" regulate only few matters of conciliation. This, however, does not mean that these are the only articles about conciliation. The discussion we have made above about compromise is equally applicable to conciliations if the proceeding ends up with success (compromise) (3321).
Even if the Ethiopian law failed to define what the term conciliation means, it can be defined as an informal process in which a neutral third party, conciliator, tries to bring the disputants to agreement, lowering tension, improving communications, interpreting issues and exploring potential solutions so that they can discuss their dispute and come to a negotiated settlement. Thus, conciliation can be viewed as a process towards compromise by the help of the intermediates, conciliators. This is to recall the discussion so far made in the second chapter of this material about conciliation.
Concerning the commencement of conciliation proceeding and how it comes in to existence, the Ethiopian legal system is not totally silent. According to the civil procedure code provisions it come in to existence by the initiation of one of the parties or by the initiation of the court if the case is before it. We are not far from the truth if we take this part of the code and make it to have effect in all cases though the dispute is not brought before the court of law.
The other important issue which is not well addressed by the Ethiopian law is about the kinds of subject matters which could be safely resolved by conciliation. Conciliation can be opted in relation to disputes arising out of a legal relationship, whether contractual or not, provided that the parties have chosen to refer their dispute to conciliation. Conciliation might be the most favourable means of dispute settlement over arbitration and litigation in some cases like where a higher amount of flexibility is required, secrecy is top priority, the dispute is of less serious in nature, the parties' future relation should not be prejudiced ( e.g. disputes in family and employment relation) etc. But this does not mean that all disputes are allowed to be referred to conciliation. Our law is not clear enough to distinguish these subject matters of dispute.
Conciliators are persons who act as an intermediate during the conciliation proceeding between the disputants in their effort to resolve the dispute by compromise. It the proceeding is out of court, in fact it is in most of the cases, the power, right and duties of conciliators are regulated by Arts 3318 - 3324 of the civil code.
It is the inherent right of the disputant or parties to determine the identity and number of conciliator whom they believe that he or she can protect their interest by bringing them together and negotiating a settlement between them. This inherent right extends in discharging the conciliator from his office as well. However, the conciliator may be appointed by an institution or third party where the disputants wish so to happen (3318(1) and (2)). To be a conciliator is not a public duty to be imposed against the interest of the person nominated to such status. Thus, a person appointed as a conciliator shall be free either to accept or refuse his appointment (3318(3)). As to the qualification of the person to be appointed as a conciliator, the Ethiopian law is silent and what matters here is only the interest of the parties. Thus, the conciliator can be any laymen, lawyers or other professionals. But it is advisable for the parties to select a person who is having experience and knowledge concerning the matter at hand and feels responsible in discharging his duty.
Concerning the number of conciliator, Ethiopian law is silent too. There is no limitation as to the number of conciliator; it can be one, two, three, four, etc. The parties may determine the number of conciliators as they want. The experiences of others show us that the number of conciliators can be odd or even since there is no decision to be made by him (them). However, it is advisable to have limited number of conciliators according to the complexity of the case.
Conciliators are only facilitators and make no decisions on the merit of the case and can not impose his view of what a fair settlement would be. The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of dispute. The conciliator is to be guided by the principle of objectivity, fairness and justice, The followings are some of his specific duties;
- He shall give the parties an opportunity of fully stating their views before expressing his findings (3320 (1) and (2)),
- He shall draw up the terms of compromise if the parties come to a negotiated understanding or a memorandum of non-conciliation if the parties failed to reach a negotiated settlement of the dispute. And also he has to communicate such documents to the parties (3320(3)),
- He is required to keep confidential all matters relating to the conciliation proceeding. This obligation also extends to the negotiated settlement or agreement, except where its disclosure is necessary for the purpose of implementation and enforcement,
- Principle of impartiality; He should be neutral, honest and diligent and stand only to protect the interest of both parties to the dispute. In discharging his duty he has to be guided by the principle of objectivity, fairness and justice.
- He shall try to complete the whole proceeding of conciliation within six months (3321(1)),
- Help the parties to enforce the conciliation, e.g. discharge stump duty as per the stamp duty proclamation, he may sign up on the negotiated settlement agreement, but this is not mandatory.
The corresponding right of the conciliator will be to get due respect and recognition from the disputants. In addition, he "shall be refunded of any reasonable expense he has incurred in the discharge of his duties". This is some sort of compensation for the money he has spent during the proceeding while facilitating the compromise. But for the time he devoted and service he delivered, there won't be any payment or remuneration unless the parties expressly agreed (3323).
When we see the rights and duties of the parties, substantially it will be determined by the agreement of the parties and commitments they will exchange during the on set of the proceeding. In addition, there are some mandatory duties dealt by the code. Some of these duties are the following;
- They shall provide the conciliator with all the information necessary for the performance of his duties,
- They shall refrain from any act that would make the conciliator’s task more difficult or impossible,
- They shall refund any reasonable expenses incurred by the conciliator while discharging his duties, and, if agreed, the remuneration due to him,
- During the proceeding, they shall refrain themselves from taking their cases before the courts of law or administrative tribunals unless the conciliator draw up memorandum of non-conciliation. This is in order to avoid multiplicity of proceedings on the same dispute. But the parties are free to other thing to preserve their right when necessary.
It is hardly possible to set standard procedures to be followed during the conciliation proceeding. But we can say some by looking the practice and international experience. The conciliator up on his appointment may request each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. He may send a copy of such statement to the other party. By giving consideration to rights and obligations of the parties as per their agreement, trade usages, circumstances surrounding the dispute, including any previous business practice between them, the conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate. The conciliator may invite the parties to meet him for discussion, communication with them orally or in writing, communicate with the parties together or with each of them separately.
Normally the place of meeting is arranged by the parties. However, if they are failed to do so, the conciliator may decide the place of meeting. The parties must in good faith cooperate with the conciliator. They must supply the needed written materials, provide evidence and attend meetings when they called by the conciliator.
When a settlement is reached the parties may draw it in written form and sign up on it. The settlement agreement may be authenticated by conciliator and such a settlement agreement shall be final and binding on the parties.
Effects of Conciliation
After you get in to the proceeding, there are two possible outcomes; compromise or non conciliation. If it end up with success and the parties sign up on the compromise that will be the end of the case and the one we have discussed above about the effect of compromise (e.g. res judicata) will apply. This means if the parties have expressly undertaken in writing to confirm the terms of compromise drawn by the conciliator, they shall be bounded by it. In addition, after a compromise is reached through conciliation and settled the dispute, then it may be taken as preliminary objection before the court if one of the parties takes the case before the court after the dispute had been conciliated. The one who wants the enforcement of the compromise will get it enforced as he wishes after paying the stamp duty as per the Stamp Duty Proclamation No 110/1998.
The other possibility is that the parties or one of them may adhere to his original extra ambitious claim and fail to drop his proposal. The law gives the conciliator a maximum of six months to come up with some result unless the parties provide a different period (3321(1)). Before the expiry of this time the parties can not institute a case before court of law on the same cause of action. But even before the expiry of the time if the conciliator feels that it is worse less to proceed further, he shall draw the memorandum of non - conciliation. This entitles both of the parties to institute court case on the same subject matter. The parties are also free to institute a case before the conciliator draws the memorandum of non-conciliation or compromise if the stipulated period of time expires.
Compromise in General
The fact that we do not have a consolidated legal document to regulate ADR matters does not mean that we do not have any laws to regulate the matter. Thus, we have got lots of provisions and principles regulating the issues related with ADR. These principles, however, are scattered through out of different substantive as well as procedural enactments. In this sub section we will try to look at those legal provisions which govern compromise without specific reference to any of the types of ADR. In doing so the civil code and civil procedure code provisions will be assessed.
Gilbert’s Law Dictionary defines the term compromise as “An agreement to settle differences by making mutual concessions; it can be made in or out of court.”
Not far different from the above documents our civil code under Article 3307 defines compromise as "A compromise is a contract whereby the parties, through mutual concessions, terminate an existing dispute or prevent a dispute arising in the future".
These different definition shows as that we have common practice and more or less similar attitude towards the concept compromise. Before rushing in to the next sub section it will be important to answer the following questions about the definition of compromise and its relation with other kinds of ADR like conciliation and arbitration.
Nature and effect of Compromise
We have got articles in the civil code and civil procedure code dealing with compromise and in the next part we will see them in detail. When we see the part of the civil code where compromise and arbitral submission are discussed, it is under Book V - Special Contract. It is not expected for this part of the code to deal compromise as well as other like the kinds of ADR. This part of the book is meant to incorporate only the contract aspect of those concepts though some times it goes beyond its scope. Even from the contract part of these concepts only special and peculiar elements which have not been dealt in the Contract in General part of the civil code. That may be one of the reasons for non exhaustiveness of the law regulation the matter.
Article 3308 seems to speak about "Form of Contract" as the title indicates but it, in fact, speaks about what matters can be dealt by compromise. Thus, it seems it is speaking about the object of compromise. Any ways, parties, based on the subject matter at their hand and their pre existing relation, can conclude a compromise contract to create legal rights and obligations; to modify the existing rights and obligations; and possibly to extinguish or terminate the already existing relation among themselves. As to the renunciation (which means voluntary abandonment of his right) made by one party, it will be interpreted restrictively and so that such renunciation extinguishes the right which has been mentioned in the compromise in his relation with the contracting party. But if he acquires the same right from other person, he will not be bound by the renunciation he did.
The other effect of compromise is that the parties will bind only to the extent they have agreed and also it will not have an effect to other parties alien to the contract, i.e. principle of Privity of Contract (Art. 3311). Further, compromise is more than a contract in a sense that "it will have the force of res judicata with out appeal". But it may be contested on the ground of fundamental mistake if any of the following conditions are fulfilled;
- The instrument for the performance of which it is made is void, or one or both of the parties was due to the existence of a document which is shown to be false, and (in both of the above cases) where the parties have no doubt as to the possible voidability or falsification of the documents at the time of contracting (Art 3313), or
- The dispute they regulated has been already settled by a judgment having the force of res judicata of which both of the parties are unaware and no appeal has been started against this judgment (3314), or
- A document unknown to any of the parties at the time of the contract have subsequently been discovered and if this document were willfully withheld by one of the parties and if the contract is of a general settlement on all matters they have in common (3315).
Article 3316 seems the other version of Arts 1714 - 1716 which determines that the object of a contract should be lawful, moral, possible and defined though the former speaks only about legality and morality.
Compromise before a Court of law
The above are not the only provision regulation compromise but we got some more provisions in the civil procedure code from article 274 onwards though they are far from being exhaustive. We have seen that most subject matters of disputes can be safely settled by compromise up on the parties' willingness. This analysis applies even after a case has been instituted before a court of law on the same subject matter (274). This part of the civil procedure code provision gives the parties the right to terminate all or part of the claim (including accessory matters like cost, damage and execution 276) for which a substantive litigation has been instituted and proceed with compromise.
After a case has been instituted before a court of law compromise can be made in two different ways; one during the hearing before the court of law and the other is out of court. In both ways the content of agreement is advised to be drafted in line with the Art 276(1).
Compromise in a pending case can be initiated by either of the disputant by their on motion or possibly by the court in the attempt of reconciling the disputants. In any of these cases, however, the willingness and consent of the disputants is mandatory and the court, in no way, can force them to do so. If they agreed to reconcile the matter, they can do it at the hearing before the court of law. This agreement will be made in written form and signed by both of the parties. The court after being satisfied that the contract is not contrary to law and public moral will entered the compromise in the case file and make a decision or judgment accordingly. And this will end up the litigation between the parties (277).
The other alternative is the parties can make the compromise out of the court room. Is such come to happen, the court shall be informed of such a matter and the plaintiff may apply to the court for permission to withdraw from the suit (277(3)). The permission granted by the court will enable the plaintiff to institute a fresh suit in respect of the same subject matter of the suit in case if they failed to agree and end up the dispute in compromise (278(2)).
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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.