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Where Formal and Informal Justice Meet: Ethiopia's Justice Pluralism

Document Cited in Related
Vincent
Pages202-218
Published date01 June 2013
DOI10.3366/ajicl.2013.0059
Date01 June 2013
AuthorBruce Baker
INTRODUCTION

Ethiopia is a federal republic of 82 million, where the former victorious Tigrean rebels, under the auspices of the political party known as the Ethiopian People's Revolutionary Democratic Front (EPRDF), hold a firm grip on power. In 2010, the EPRDF and affiliated parties won 545 of 547 parliamentary seats, ensuring a fourth consecutive five-year term. In the concurrent elections for regional parliaments, the EPRDF and its affiliates won 1,903 of 1,904 seats.1

K. Tronvoll, ‘The Ethiopian 2010 Federal and Regional Elections: Re-establishing the One-party State’, 110(438) African Affairs (2011): 121–36.

Two years earlier in 2008, the EPRDF and its affiliates had won all but four of 3.4 million local and by-elections, helped by the fact that the opposition parties abstained from the process

The ambitions of an authoritarian government that as part of its ideology of revolutionary democracy desires to maintain its authority at every level2

C. Clapham, ‘Ethiopian Development: The Politics of Emulation’, 44(1) Commonwealth & Comparative Politics (2006): 137–50.

and yet is conscious of its political insecurity,3

In 2005, to most people's surprise, the opposition came close to unseating the ruling party. The response of the EPRDF government was a severe crack-down on the opposition parties and their supporters. J. Abbink, ‘Discomfiture of Democracy? The 2005 Election Crisis in Ethiopia and its Aftermath’, 104(419) African Affairs (2006): 173–99; A. Samatar, ‘The Ethiopian Election of 2005: A Bombshell & Turning Point?’, 32(104/5) Review of African Political Economy (2005): 466–73; L. Smith, Political Violence and Democratic Uncertainty in Ethiopia, United States Institute of Peace (2007).

 inevitably mean that the State's formal justice system is subject to significant political intervention and influence. This is especially so when those arrested are deemed guilty of ‘political crimes’ (that is, are active members of legitimate opposition parties or are members of illegal groups such as the Somali rebel group known as the Ogaden National Liberation Front (ONLF).4

The Human Rights World Report 2010 says: ‘Ordinary citizens who criticize government policies or officials frequently face arrest on trumped-up accusations of belonging to illegal “anti-peace” groups, including armed opposition movements. Officials sometimes bring criminal cases in a manner that appears to selectively target government critics … In December 2008 the security forces re-arrested Birtukan Midekssa, leader of the Unity for Democracy and Justice Party … The government announced that Birtukan would be jailed for life because she had made public remarks that violated the terms of an earlier pardon for alleged acts of treason surrounding the 2005 elections. The authorities stated that there was no need for a trial as the move was a mere legal technicality. In July [2009] the Ethiopian government passed a new anti-terrorism law. The law provides broad powers to the police, and harsh criminal penalties can be applied to political protesters and others who engage in acts of nonviolent political dissent.’ Available at: http://www.hrw.org/sites/default/files/related_material/ethiopia.pdf (accessed 2 February 2012). The President of the Supreme Court in Oromia fled the country in 2006, claiming that the government killed its critics and planned to appoint new loyalist judges throughout the justice system: see http://news.bbc.co.uk/1/hi/6121854.stm (accessed 4 February 2012).

 However, in judicial areas outside the political, the State formal justice system, especially at the regional level and below,5

The 1994 constitution mandated the federal and the regional states to set up their own judicial system which was to be governed by subsequent laws to be issued at federal and regional level. Thus, both the federal and regional states have their own judicial power. Regions have their own independent courts, police, prosecution and prison services which are not accountable to their equivalent federal institutions. Regions also have the power to issue their own constitution and other laws except for those laws whose enactment falls under federal mandate.

 enjoys considerable independence, aided in part by the lack of human resources to ensure extensive oversight. The fact is that within the subdivisions of the nine regional states,6

For details of local government, see S. Yilmaz and V. Venugopal, Local Government Discretion and Accountability in Ethiopia, Georgia State University (2008), available at http://aysps.gsu.edu/isp/files/ispwp0838.pdf (accessed 4 March 2013).

 that is (in descending order) at the Zonal (sub-regional), Woreda (district) and Kebele (local council or community) level, the State formal system is so limited in terms of staffing numbers, staff training, physical resources and often accessibility, that many citizens resort to local justice providers that utilise informal methods of justice.7

At the Ethiopian Human Rights Commission's Human Rights Day 2011 conference (available at http://www.ehrc.org.et/, accessed 28 January 2012), Dr Memberetsehay Tadesse, Director of Ethiopian Legal and Justice Research Institute, presented a research report that claimed that access to justice and legal aid was limited by, among other things, distance from justice bodies, financial problems, lack of legal aid by educated experts, inadequate information and cultural barriers. As an illustration of the challenges, the town of Konso, in SSNPR, with a population of 250,000 is serviced by only 80 police officers (1 police officer to 3,333 people), although the state does have a militia presence approaching 5–7 per 100 household. Regarding court staff, in some areas of Oromia, courts can be closed for several months because of lack of judges.

 These informal methods are typically negotiation, mediation and restitution. They are used by local elders, Sharia court officials, State-initiated Social courts and police-organised community policing committees

Regarding justice, the government of Ethiopia is faced with several conflicting claims. On the one hand, it desires the State, as an expression of its supreme authority, to be the monopoly provider of justice, yet it is confronted with a weakness of resources that prohibits an expensive nationwide formal system of justice. Then there is the tension between establishing a unitary legal system that offers uniform legal rules and the requirements of recognising diversity and flexibility within a large multinational state. And then there is the challenge of reconciling the dominant customary justice that closely reflects local popular demands, with the protection of human rights as expressed in international conventions that the government has agreed to abide by. Confronted with these tensions the government has had to evaluate what it wants and what it can achieve from formal and informal justice and to establish a pragmatic middle way. In practice it has led to the government reassessing its attitude to informal justice as part of a nationwide justice sector review since 2009. It has developed new policies and programmes which aim to enhance community security and justice, not only to crime and violence, but also to community-level conflicts and peace building. Naturally, the new policies and programmes address issues regarding formal justice such as improvements in co-ordination, efficiency and responsiveness in the police, prosecutors and courts under a BPR (business process re-engineering) programme; addressing the need for more effective crime investigation and more responsive and timely access to formal justice; conflict and crime prevention programmes; and a recognition of the particular needs of women and children through child-friendly Woreda courts, women's courts, and steps to better respond to sexual violence. Indeed, the BPR process has penetrated sufficiently deeply at Woreda level across much of Ethiopia that police, prosecutors and courts now regularly consult and pool available resources.8

Department for International Development Ethiopia, Ethiopia Justice Sector Assessment, DFID (2012).

But what perhaps has been most striking about the government's review is its attention to informal justice. In this area new policies have encouraged constructive links and work sharing between formal and informal justice providers and policies to promote multi-provider justice forums at Woreda and Kebele level

The new policies in part build on existing legislation and constitutional provisions. The 1994 Constitution provides legal recognition to pre-existing religious and customary courts, and allows federal and regional legislatures to recognise the decisions of such courts.9

Articles 34(5) and 73(5)

The recognition is subject to all parties to the dispute agreeing to the use of the informal court, and asserting the right of either party to appeal the decision of a formal court.10

Though customary courts are widely used, a law has yet to be issued for their official recognition as envisaged under the Constitution.

 Further, there is a clear demarcation of their scope. Hence, Sharia courts are only allowed to hear religious and family cases involving Muslims. It is on this basis that the new policies and practices have built. At the grassroots level, that is at Woreda and Kebele level, working relationships between formal and informal justice have established a wide variety of linkages according to local circumstances and the personal rapports between local actors. The constitutional recognition of the role of religious and customary courts in one sense makes them formal, and yet as measured by their practices they might be described as informal. A similar blurring of formal–informal distinctions occurs when State-initiated structures, such as Social courts and community policing committees, use informal practices or when police and courts divert to providers that use informal processes. Without...

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