Introduction

In his article on customary law in the Encyclopaedia Aethiopica the late legal historian
Aberra Jembere noted that customary law is ‘made by the people and not the state’ and
derives its legitimacy ‘from participation and consensus of the community and its
recognition of the same by the government’ (Aberra 2003:839). Customary dispute
resolution is paradoxically both general and specific in Ethiopia. On the one hand it is
widespread and found spatially almost ubiquitously throughout the country and has
worked historically in the absence of the state justice system as well as where it exists in
the past and in the present. On the other hand it is localised and the constituency and
jurisdiction of CDR institutions are generally limited to particular localities within ethnic
groups. CDR institutions often function at the community level, based on trust among
people who generally know each other personally in face-to-face contexts where
resolution of conflict is crucial for day-to-day coexistence.

2This introductory chapter starts by reviewing state and customary law in Ethiopia. The
second part provides an overview of customary dispute resolution in the different regions
of Ethiopia, outlining the sources, the CDR institutions and judicial procedures by region
and lastly considers interethnic systems. In the final part we seek to draw some
conclusions about the relationship between social and legal structures, principles of
organisation in CDR institutions, key concepts and culture areas, judicial processes in CDR,
types of disputes with a focus on homicide, inclusion and exclusion relating to
gerontocratic power, gender, age and marginalised status, and transformations of CDR
institutions.

State and Customary Law in Ethiopia

3The relationship between State and Customary law can be divided into three phases: (1)
The imperial sacred tradition in the pre-modern era, (2) the modern secular imported
nation-building period under Emperor Haile Sellassie and the Derg, and (3) the post-
modern ethnic federalist period under the EPRDF.

4The first phase during the imperial period from the 15th century till the early 20th century
can be characterised within the realm of the Empire by the imperial reliance on reference to
indigenised translated texts based on ‘imported’ biblical and Roman-Byzantine traditions
with a strongly sacred flavour. There was only nominal and limited reference to the
importance or precedence of local customary law in imperial edicts and much of the
country remained beyond the confines of the monarchies, administered in practice in legal
terms through customary law.
5The second phase began with Emperor Haile Sellassie’s modernizing drive from the early
1930s, pursued more vigorously after the Italian occupation especially in the mid-1950s
and 1960s with the development of legal codes. Here again much of the legislative drive
and influence, signaled most clearly in the assigning of the drafting work to foreign
experts, was external to the Ethiopian context. Customary law was repealed by the Civil
Code which included only token references to limited areas where customary rules could be
applied. The second modernist nation-building phase ended with a socialist twist under
the Derg, which continued the centralist project with very minor concessions to religious
and ethnic interests as expressed in the 1987 Constitution.

6The third post-modern ethnic federalist phase began with the defeat of the Derg in 1991
and is most clearly expressed in the 1995 Constitution which represented a radical break
from the centralist unitary past and was exceptional in the extent to which ethnicity was
proposed as the organising principle. Logically this premise implied a greater recognition
of customary values. In fact customary and religious laws and courts were provided at least
some constitutional space in family and personal law. However, the translation of
constitutional provisions into practice to date has not provided clear legal recognition of
customary institutions and the lack of constitutional mention of their potential role in
criminal and other legal areas restricts their mandate de facto despite their clear and
vigorous involvement in all legal domains, and the strong informal reliance of the formal
judicial system on them as testified in the chapters in this book.

7We conclude by arguing that the role of customary dispute resolution needs revisiting and
suggest that the recognition of the mandate of credible customary institutions and their
relationships and interactions with the formal judicial structure should be reconsidered to
enhance local level justice delivery, while ensuring the protection of human rights, notably
those of women, children and minorities.

1) The imperial sacred tradition in the pre-

modern era
8Ethiopia is believed to have existed as a polity, shrinking and/or expanding in shape and
power, for more than two thousand years. Its long history of existence was for the most
part dominated by a history of traditional mode of administration and social relationships.
Modern bureaucracy started to emerge in Ethiopia during the early 20th century under
Emperor Menelik II (r. 1889-1913). This coincides with the time in which the present
Ethiopia was also consolidated under the same ruler through expansion and conquest
(Bahru 1991).

9Ethiopia had its first written Constitution in 1931 under Emperor Haile Sellassie I (r. 1930-
1974). Before this Constitution, customary law and some legal instruments governed the
socio-political life of the people. The first attempts at using written codified law date back
 to the 14th and 15th centuries. Ser’ate Mengist, the ‘Law of the Monarchy’ was a short
collection containing altogether twenty-one articles of law, which appears to record a
continuous legislative activity which started in the 14th century, with King Amde Tsion (r.
1314-1344) and culminated in the 17th with King Fasiledes (r. 1632-1667). This Law mostly
deals with religious affairs, but also contains texts on civil and penal matters, scattered
among attacks against heresies of the time (Vanderlinden/1966). The first codified law of
Ethiopia was Fewuse Menfessawi (‘the Spiritual Remedy’), according to Aberra (1988a).
Emperor Za’ra Ya’eqob (r. 1434-1468) caused the compilation of this law, which had 24
articles through the Ethiopian church scholars from the principles of the Old Testament of
the Bible.

 2 Notable early laws were the 1930 Criminal Code which formally replaced the Fitha Negest in the
crim (...)

10Later during the same Emperor’s rule, a more elaborate law that had both secular and
religious rules was ‘imported’ from abroad and made to replace Fewuse Menfessawi. This
law was the Fitha Negest (‘Justice of the Kings’). The Fitha Negest was introduced into
Ethiopia from the Coptic Church of Alexandria and was translated from Arabic into Ge’ez. It
comprised two parts, the first based on biblical texts, and the second mainly on Roman-
Byzantine laws (Paulos 2005:534). /The Fitha Negest was used as a law in both criminal
and civil matters from the 16th century under the kings / and was mentioned in chronicles
of at least eight emperors from Sersa Dingil who reigned in the late 16 th century until Haile
Sellassie (Girma 2005:274-9). The first Penal Code of 1930 stated that it was a ‘revision’ of
the Fitha Negest updated to meet the needs of present times and the revision in 1957 and
the Civil Code of 1960 also refer to it creating an impression of continued legitimacy
(Paulos 2005:535).2

11The Fitha Negest and other written legal instruments were used in areas under the
monarchical administration and therefore covered limited areas of the country among
Christians, and people living in other areas had their cases adjudicated and disputes
settled through customary institutions (Krzeczunowicz/1965). This tendency as shall be
argued below, has continued to the present time, particularly in the borderlands.

12Much of the pre-modern legal tradition used by the monarchs was thus foreign in
inspiration. However, Aberra noted (2003:839) that the emperors on assuming power,
‘stated in the preamble of their first decree that the custom of each and every locality
should be respected and that cases were to be adjudicated according to the customary law
of the locality’. He also suggests that at times customary laws, if found useful, could
receive the status of law and be accepted as atse sir’at, ‘the law of the emperors’, which he
translates as ‘presidential jurisprudence’ used as precedent for future cases.
 2) Modern secular nation-building laws
under Emperor Haile Sellassie and the Derg
13Ethiopia embarked on a politically motivated modernization of its laws with the coming
to power of Emperor Haile Selassie I, and the drafting of the first Constitution of 1931 and
more emphatically as of 1955 when the Constitution was revised. The 1931 Constitution
was drafted by Bejirond Tekle Hawaryat Tekle Mariam, and was influenced by the Japanese
Meiji Constitution of 1889, (which in turn was influenced by German Constitutions) and the
drafter was said to have been provided by the Emperor ‘English’, German, Italian and
Japanese constitutions (Bahru 2002b:62). The 1955 ‘revised’ Constitution was influence by
Anglo-American constitutional traditions, the Westminster Model and the 1948 United
Nations Declaration of Human rights, but also further consolidated imperial powers
including as head of the chilot, the imperial court (Scholler 2003:788).

 3 The codes were the Penal Code (1957), Civil Code (1960), Commercial Code (1960), Maritime Code
(196 (...)

14From 1957-1965, Ethiopia gave itself six modern legal codes in a massive codification
project that aimed at ‘modernizing’ the legal system.3 These laws have a predominantly
western flavour, and seem to bear little relation to the traditional patterns of life prevailing
in the country (Fisher 1971). The chief drafter of the Civil Code of 1960, René David,
borrowed from continental civil codes notably the French, Swiss, Italian and Greek, though
he also consulted Egyptian, Lebanese, and German codes, and for some provisions
Portuguese, Turkish, Iranian and Soviet codes. Though some attempt was made to
incorporate certain principles of customary law into the enacted modern codes, they aimed
at being comprehensive and governing all the legal relations in the country without leaving
any space for the widely-practiced customary mode of dispute settlement. This state policy
was clear notably in the Civil Code, which in its repeals provision, states in article 3347:

Unless otherwise expressly provided, all rules whether written or customary previously in force
concerning matters provided for in this code shall be replaced by this code and are hereby
repealed. (Emphasis added).

15It is striking that the repeal by the Civil Code did not aim only at those customary rules
that were inconsistent with the provisions of the Code, but rather at all 4 customary rules
concerning matters provided for in the Code, whether they are consistent with the Civil
Code or not. Nor did the Code allow some grace period until the Code could be
disseminated – both physically and in content – but rather its immediate enforcement was
sanctioned, superseding the customary laws extant in the various groups of the Ethiopian
society.
16The drafters of the Code in fact made an attempt to include some elements of the
customary rules into the Civil Code. Some have claimed that the ‘general’ custom of the
land (its ‘common law’) in areas of civil matters has been more or less included in the
Ethiopian Civil Code (Krzeczunowicz 1966). There are in fact certain examples of inclusion
of the pre-existing customs of the Ethiopian peoples in, for example, family matters
(concerning betrothal, moral prejudice, kinds of marriage, and intestate
inheritance),4 contracts,5 property law (about the principle of usucaption, right of way, and
rural servitude),6 and torts (in fixing the amount of fair compensation)7 (Aberra 2003:840,
Scholler 2003:750).

17However, these cannot be taken as a fair and realistic treatment of the customary law in
the country. In the first place, the examples of incorporation cited above could not possibly
represent the customary laws of all the ethno-national groups of the country. Secondly, the
so called incorporation of the general custom was made in rather limited areas and do not
match the body of customary laws with a veritable mass of rules in all areas of the civil and
criminal law. Thirdly, the modern legal system of Ethiopia did not give any place for the
customary institutions that exist in various sections of the society. All courts of judicature,
therefore, were restricted to be the ones that would be established by the State to apply
the State formulated and codified laws.

18The political motives and justifications for this usurping of customary law was primarily
the belief that providing a uniform and modern legal regime would be necessary for the
socio-economic development of the country, and a precondition for effective nation-
building. However, half a century after the enactment of the modern codes and the
establishment of a modern judicial system, neither was the much sought legal uniformity
achieved nor were the modern codes able to successfully supplant customary laws and
institutions of dispute settlement. Fifty years after the enactment of the Penal Code and the
Civil Code which aimed at providing a comprehensive body of law in the criminal and civil
matters, respectively, customary laws and institutions are still active and vibrant, as the
case studies presented in this book amply testify. This may indicate that the approaches
taken by the modernizers of the Ethiopian law might have been wrong, or at least require
rethinking and revision.

19The Derg period introduced a socialist orientation reflected in the 1987 Constitution of
the People’s Democratic Republic of Ethiopia (PDRE), drafted by the Institute for the Study
of Ethiopian Nationalities in 1986. It was modelled along the lines of Marxist-Leninist
constitutions, notably those of the Soviet Union, Romania, and Albania (Scholler 2003:789).
Although there was recognition that the Ethiopian state has ‘from the beginning been a
multi-national state’, the constitution is centralist and the PDRE is viewed as a unitary
state, which ‘shall ensure the equality of nationalities, combat chauvinism and narrow
nationalism and advance the unity of the Working People of all nationalities’ (Article 2),
with only token concessions to the idea of autonomy (Clapham 1988:92-5). Despite the
Derg’s attempt to instil secular values, the only significant change from the draft to the
final text which was debated prior to approval by referendum was a minor concession to
religious interests in the removal of the monogamy clause (Clapham 1988: 95, Pankhurst
1994).

3) The post-modern ethnic federalist period

under the EPRDF
20After the defeat of the Derg by the EPRDF in 1991 the new approach based on ethnic
federalism was both radical and pioneering (Turton 2006:1). The principle of self-
determination for federated regional units was a departure from the formerly highly
centralised and unitary state which went further than any African state and took ethnicity
as its fundamental organising principle to a greater extent than ‘almost any state
worldwide’ (Clapham 2002:27).

21The 1995 Constitution of the Federal Democratic Republic of Ethiopia approved through
a referendum reflects these changes in direction which have a direct bearing on customary
dispute resolution and its relation to the formal justice system. The Constitution, itself a
product of the shift in paradigms of approaches to the complex nature of the Ethiopian
society and its problems, has allowed a greater space for customary and religious laws and
courts extant in the country. The 1995 Constitution embodied a clear recognition of the
jurisdiction of customary and religious laws and courts in family and personal matters
among the disputants that consent to such a jurisdiction:

22Article 34(5):

This Constitution shall not preclude the adjudication of disputes relating to personal and family
laws in accordance with religious or customary laws, with the consent of the parties to the
dispute. Particulars shall be determined by law.

23Art. 78(5):

Pursuant to Sub-Article 5 of Article 34 the House of Peoples’ Representatives and State Councils
can establish or give official recognition to religious and customary courts. Religious and
customary courts that had state recognition and functioned prior to the adoption of the
Constitution shall be organized on the basis of recognition accorded to them by this
Constitution.

24These articles therefore imply that at least in those areas mentioned, the CDR systems
can exist separately from, and parallel with the state-sponsored legal-judicial system. In
effect family law and the law of succession are therefore now potentially within the
competence of the members states (Article 55) (Scholler 2003:751).
25However, there is the danger that customary institutions that reflect societal structures
and represent dominant interests may pass judgements that are against the interests of
women, children and minorities. Although the Constitution’s article 34(4) specifies that
disputes relating to personal and family matters can be adjudicated according to religious
or customary laws ‘with the consent of the parties to the dispute’, as Meaza points out
(2007:108): ‘there are various social and economic factors that push women litigants to
submit to customary and religious courts. In the rare event that women assert their right to
submit their case to secular courts may find religious courts not allowing them to exercise
these rights’.

26There are also serious risks for individual human rights, notably of women, children and
minorities that need to be taken into consideration and protected through federal as well
as state legislation and legal provisions. The advocacy work and campaign of the Ethiopian
Women’s Lawyers Association achieved tremendous progress in this respect in obtaining
the proclamation of the Revised Family Code in 2000 (FDRE 2000) and the Penal Code
which was renamed the Criminal Code in 2004. This removed the discrimination between
men and women evident in the 1960 Civil Code which had differential marriage ages for
men and women, designated the husband as the household head with the right to chose
common residence and manage common property, disallowed divorce until fault was
proved, and did not recognize common law marriages. Likewise the Penal Code of 1957
criminalised abortion, did not recognise or criminalise domestic violence, or female genital
mutilation, and provided an inadequate penalty for rape. However, four Regions, notably
Afar and Somali, have still to adopt their family laws (Meaza 2007:100-2).

27Regarding other civil matters than family and personal, the Constitution does not
specifically prohibit the operation of CDR systems. Although this could potentially provide
the space for the involvement of CDR systems in other legal domains, the fact that CDR is
mentioned in the contexts of family and personal law without reference to other legal areas
creates a pervasive impression that CDR jurisdiction is or should be restricted to family and
personal law. Under the system of division of the legislative competence among federal
and state governments in Ethiopia, civil matters (other than those specifically mentioned as
federal under Art. 55 of the Constitution) fall under state jurisdiction. One could therefore
imagine the possibility of States recognizing certain jurisdiction for the CDR systems when
they enact laws on those civil matters.

28With regard to criminal matters, however, the old, de jure state of affairs still continues
under the new constitutional regime: the uniformity of criminal law and jurisdiction. CDR
systems are not allowed any formal space of operation in the criminal law areas in spite of
the fact that they are heavily involved in criminal matters. Indeed the case material from
this book amply demonstrates that de facto CDR institutions are involved in criminal cases
in many of the States, particularly, though not exclusively, in the border regions. Moreover,
the formal justice system often relies on CDR institutions to solve less serious cases, to
bring criminals to courts, to ensure that verdicts are upheld and to achieve reconciliation
after cases are concluded. Therefore, the customary institutions and legal processes would
need to gain legal recognition of their role in the criminal area to collaborate effectively
with the state judicial system.

29In general the whole question of the mandate of customary dispute resolution
institutions and their relations and interactions with the formal justice system deserves
careful reconsideration to allow for greater recognition while ensuring that human rights
abuses are avoided and the rights of women, children and minorities are respected. We are
not as such proposing that all customary dispute resolution institutions are worthy of legal
recognition, nor are we arguing that customary institutions do not have weaknesses -
indeed many of these have been highlighted in the chapters of this book, and are taken up
in our conclusion. However, we believe there is a strong case for acknowledging the value
of certain customary institutions, and the rights of people to make use of them in legally
recognised ways. CDR systems can contribute through partnership and collaboration with
the formal system to providing culturally acceptable and meaningful justice.

30In short, we believe that the Constitutional space for CDR is still limited and even the
space that has been accorded has not been followed through with practical provisions and
the creation of an enabling environment for a fruitful cooperation, alliance and partnership
in the legal sphere between state and civil institutions. We return to this topic and the
questions raised by the potential integration of CDR with the formal justice system in our
conclusion.