(Taken From Muradu Abdoand Gebreyesus Abegaz Customary Law Teaching Material (JLSRI)
State and Customary Law in Ethiopia: The relationship between State and Customary law can be divided into three phases: (1) The imperial imported 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.
The first phase during the imperial period from the 15th century till the early 20th century can be characterized within the realm of the Empire by the imperial reliance on reference to indigenized translated texts based on 'imported' biblical and Roman-Byzantine traditions with a strongly sacred flavor. 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.
The second phase began with Emperor Haile Sellassie's modernising 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, signalled 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 Customary law was repealed by the Civil Code which included only token references to limited areas where customary rules could be applied.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.
The 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.
We 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
Ethiopia 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).
Ethiopia 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 (1988). 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.
Later 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 16th 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).
The 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.
Much 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
Ethiopia 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 2002:62). The 1955 'revised' Constitution was influenced 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).
From 1957-1965, Ethiopia gave itself six modern legal codes in a massive codification project that aimed at ‘modernizing’ the legal system. These laws have a predominantly western flavour, and seem to bear little relation to the traditional patterns of life which 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).
It 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 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.
The 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 1963). 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), contracts, property law (about the principle of usucaption, right of way, and rural servitude), and torts (in fixing the amount of fair compensation) (Aberra 2003:840, Scholler 2003:750).
However, 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.
The 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. 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.
The 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 modeled 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 instill 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
After 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).
The 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:
This Constitution shall not preclude the adjudication of disputes relating to the 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.
Pursuant to Sub-Article 5 of Article 34the 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.
These 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).
However, 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 can be adjudicated according 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'.
There 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).
Regarding 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.
With 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. 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, for 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.
In 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. However, we believe there is a strong case for acknowledging the value of certain customary institutions, 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.
In 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.