Law and Development, and in Ethiopia

Elias N. Stebek and Muradu Abdo (Editors)

JLSRI Publications and Legal Systems Research Institute

Addis Ababa 2013

JLSRI and Development Series No. 1 (2013)

ISBN 978-99944-983-3-8 Publisher: Justice and Legal System Research Institute (JLSRI) P. O. Box 30727 , Addis Ababa, Ethiopia

Copyright ©2013: JLSRI and UNDP All rights reserved except as specified herein. The publisher grants permission for copies of this publication to be made, in whole or in part, by not ‐for-profit organizations and individuals, provided the use is for educational, informational and non-commercial purposes only, and provided that any such copy includes this statement in its entirety and also acknowledges its source. Requests to reproduce this publication or portions hereof for any other purpose should be sent to JLSRI. JLSRI is grateful for UNDP’s financial assistance to the conference and the publication of this book.

The earlier drafts of the ten chapters published in this book were presented as research papers for the conference organized by Justice and Legal System Research Institute in Nov. 15-17, 2012 under the theme: Law and Development: Legal Pluralism, Traditional Justice Systems and the Role of Legal Actors in Ethiopia . The chapters have benefitted from the comments and feedback from the conference and the subsequent revision toward their publication.

Disclaimer: The views stated in the various chapters of the book are those of the authors and not necessarily those of the JLSRI or the editors. ii Law and Development, and Legal Pluralism in Ethiopia

CONTENTS Page Contents ...... iii

Foreword Menberetsehai Tadesse ...... vii Samuel M. Bwalya ...... viii

Introduction (Elias N. Stebek and Muradu Abdo) ...... 1

Part I:

Law in Development: Concepts and Prospects

1. Law and Development Paradigm (Fana Hagos Berhane) ...... 17 1. Introduction ...... 17 2. History and Nature of Law and Development ...... 18 3. The Developmental State ...... 24 4. The Making of the Developmental State in Ethiopia and the Law ...... 28 5. Concluding Remarks ...... 31 Reference List ...... 32

2. Legal Empowerment of the Poor to Access Justice (Costantinos BT Costantinos) ...... 35 1. Introduction ...... 35 2. The Overall Context of the Administrative and Justice System ...... 36 3. The Actors toward Legal Empowerment ...... 37 4. The Orthodoxy behind the ...... 40 5. Reforming the Justice System for the Poor ...... 43 6. Practical Dimensions in the Empowerment of the Poor ...... 50 7. The Rights Based Approach to Development ...... 54 8. Conclusion ...... 55 Reference List ...... 56

Contents iii

3. Natural Resource in Africa: Overview of Economic Returns and Governance (Dassa Bulcha, Chrysantus Ayangafac & Sehen Bekele...... 59 1. Introduction ...... 59 2. Development Cost of Unfair Contracts ...... 61 3. Explaining Unfair Contracts: Review of Current Policy Orientations ....65 4. Government Responsiveness and Fairness of Natural Resource Contracts ...... 66 5. Recommendations ...... 72 Reference List ...... 73

4. The Future of Law and Legal Institutions: Some Reflections on Justice Strategy Making (Sam Muller) ...... 77 1. Introduction: Why Think about the Legal Future ...... 77 2. The Need for Strategic Thinking about the Future of the Law ...... 78 3. Existing Trends in Impact and Uncertainties that Challenge ...... 79 4. Law Scenarios to 2030: Global , Legal Borders, Legal Internet and Legal Tribes ...... 80 5. Concluding Remarks: What does this tell us? ...... 88

5. The Future of Law and Legal Institutions in Ethiopia (Tameru Wondim Agegnehu) ...... 89 1. Introduction ...... 89 2. Overview of Ethiopia’s and the Path to ...... 89 3. The Impact of Globalization in the Ethiopian Legal System ...... 95 4. The Ethiopian Legal Regime in the Context of Global Challenges ...... 98 5. Ethiopian Legal System vis-à-vis the Balance between Societal Needs International Development ….…....……………………………101 6. The Role of Ethiopia’s in Maintaining the Relationship between Legal and Societal Development …...……………………….103 7. The Way Forward for Ethiopia’s Law and Legal Institutions ...... 106 8. Conclusion ...... 109

* * *

iv Law and Development, and Legal Pluralism in Ethiopia

Part II:

Legal Pluralism and Traditional Justice Systems

6. Customary Mechanisms and the Rule of Law: Areas of Convergence, Divergence and Implications

(Assefa Fiseha) ...... 111 1. Introduction ...... 111

2. Essential Features of CDRMs ...... 114

3. Challenges in CDRMs and Limitations ...... 121

4. The Meaning and Evolution of the Rule of Law ...... 124 5. The Rule of Law and the CDRM: Convergence and Divergence ...... 134 5. Concluding Remarks ...... 137 Reference List ...... 139

7. Legal Pluralism in Multicultural Setting: Legal Appraisal of Ethiopia’s Monist System (Aberra Degefa) ...... 141 1. Introduction ...... 141

2. The Meaning, Nature and Importance of Legal Pluralism ...... 143 3. The Need for Legal Pluralism under Ethiopian Criminal Justice System ...... 145

4. Legal Pluralism-Development Nexus ...... 152

5. Conclusion ...... 154

Reference List ...... 156

8. Reflections on Gender Justice and Legal Pluralism in Ethiopia (Rakeb Messele Aberra) ...... 159

1. Introduction ...... 159

2. General Background ...... 160

3. The Ethiopian Context ...... 164 4. Promising Practices ...... 168 5. Recommendations ...... 172

Reference List ...... 174

Contents v

9. Pluralism and the South African Experience: as a Constitutional Right (Yonathan Fesseha ...... 175 1. Introduction ...... 175 2. Customary Law under Colonial Rule ...... 175

3. Customary Law in Post-colonial Africa ...... 177

4. Towards the Constitutional Recognition of Customary Law...... 178

5. Recognition of Traditional Law and Traditional Leadership ...... 188 6. Conclusion ...... 193

Reference List ...... 194

10. Case Study on Seven Customary in Ethiopia: (Yidnekachew Kebede, Isayas Ayele, Maereg Gebregziabher &

Gebremeskel Gebrewahid ) ...... 195 Summary of the Case Study ...... 195

...... 198

1. ...... 198 2. ...... 203 2.1 2.2 2.3 2.4 2.5 2.6 2.7 3. ...... 220

4. ...... 221

5. ...... 222

...... 223

* * *

vi Law and Development, and Legal Pluralism in Ethiopia

Law and Development, and Legal Pluralism in Ethiopia | vii

Foreword A number of research papers were presented to the conference held on November 15-17, 2013 under the theme “ Law and Development: Legal Pluralism, Traditional Justice Systems and the Role of Legal Actors in Ethiopia .” In addition to the research findings and insights into the themes that were presented, various suggestions, comments and concerns emerged in the course of the conference. The most important fact that emerged was that a lot more remains to be done on this subject. Definitive conclusions have not yet been reached on the various themes that were presented and discussed, but important points were raised which need to be pursued by scholars, policy makers, research institutions and law schools. The most important achievement at this stage is that we now realize the need for similar discourse which inter alia can include conferences, further research and other pursuits of inquiry into the pertinent themes and issues that were raised during the conference. We have gained a lot from the conference which was the basis for the ten chapters published in this book. These chapters will indeed be vital contributions to the law and development, and legal pluralism discourse in Ethiopia and beyond. The primary contribution of these chapters will depend not in the answers they offer to the themes they address, but particularly in the insights and lessons they offer toward facilitating rethinking and further research. The beauty of the conference in relation with the spectrum of analyses, findings, views, hypotheses and arguments presented and discussed involves the lessons gained regarding the different ways of looking at the world. No one came to hear the same monotonous views, but to benefit from the different perspectives on law and development, and indeed this has been achieved. The Conference was the beginning and not the end of the discourse; and JLSRI is committed to undertake similar activities in the future. I would like to take this opportunity to thank the authors of the chapters published in this book. I would also like to express my gratitude for UNDP’s financial assistance to the conference and to the publication of this book, and for its very important partnership in development endeavours in Ethiopia. I hope it will be involved in research and administration of justice as well. I also thank HiiL (Hague Institute for the Internationalisation of Law) for joining the Conference on short notice. Menberetsehai Tadesse (PhD), Assistant Professor of Law Director General, JLSRI

viii | Law and Development, and Legal Pluralism in Ethiopia

Foreword The United Nations Development Programme (UNDP) is supporting Ethiopia through various programmatic and policy support initiatives as the country sets out to achieve its bold and transformative agenda to be a middle income, climate resilient country by 2025. Over the past decade, Ethiopia is one of the fastest growing, non-oil based economies. The country also stands out as one of the nations that have met most of the Millennium Development Goals. This phenomenal transformation has seen Ethiopia emerge as a confident and resilient country. Critical to the established success is the shared vision and commitment by government and UNDP to the rule of law and justice – not just as a shared value but also as a means to ensuring rapid, inclusive and equitable development. Set against this backdrop, this book analyses the relationship between law and sustainable development in Ethiopia. Its strategic objective is to generate wider reflections on how the evolving legal context could provide opportunities and the necessary environment for a positive self- reinforcing relationship between the state and society, and Ethiopia’s integration into the global economy in a manner that maximises development benefits for the country. It is anticipated that the book will stimulate policy debate and its emerging recommendations will help shape current and future policy actions on how to use legal reform to consolidate and accelerate the established development gains. The first national ‘Law and Development’ conference – held on 15-17 November 2012 in Addis Ababa, organized by the Justice and Legal Systems Research Institute with the support of UNDP – has allowed all of us to engage in wider reflections and a strong partnership between the Government of Ethiopia, the Justice and Legal Systems Research Institute and the UNDP on strengthening the justice/legal system and deepening democratic governance. The overall orientation of the partnership is to enhance government responsiveness to sustainable development by strengthening institutions, mechanisms and processes that facilitate and promote transparency, accountability, rule of law/justice, wider participation. We would like to encourage readers to think hard about the emerging issues highlighted in this book. We hope the book will trigger a much broader discourse on the role of law and legal reform in securing the Ethiopian renaissance. Samuel M. Bwalya (PhD) Country Director, UNDP

Introduction Elias N. Stebek 1 and Muradu Abdo 2

This book includes ten chapters that are thematically clustered into Parts I and II. It addresses two inter-related themes: Law and Development, and the relationship between Ethiopia’s formal and traditional normative systems in the pursuit of development and social justice. The first part of the book embodies various themes on law and development including some elements of projective discourse while the second part deals with specific themes on legal pluralism and traditional systems with particular attention to the synthesis between the formal legal system and customary laws from the perspectives of various issues including rule of law, criminal justice, gender justice, comparative experience and some case studies. Although the role, function and scope of the law have been changing throughout human history, its role in nation building, market economy and industrialization is apparent particularly since the 17 th Century. The law and development discourse has undergone a spiral path of upbeats and downturns with a spectrum of variation in tone, pitch and volume. The role of law in development captured the center stage in the academic discourse and policy making during the1960s as a tool of ‘social engineering’ for the third world under the assumption that these states could undergo a linear path of ‘modernization’ that was pursued in the Global North. During the centuries of nation building and industrialization in Europe, the law had embryonic phases of development and maturity in its functions as a rational normative system and as the embodiment of the public will and reason. However, the pace in which it was implanted in the Global South was abrupt. The factors that determined the organic phases in which the laws emerged and developed in the Global North included the economic, social, cultural and political objective and subjective realities on the ground. Max Weber’s observation on the role of law in the economy and society recognizes the dialectical reciprocity in its causal link with the division of labour in society, market economy, nation building and industrialization. These social and economic realities not only facilitated the coalescence of

1 (LL.B, LL.M, PhD), Associate Professor, St. Mary’s University, School of Graduate Studies 2 (LL.B, LL.M, PhD candidate), Assistant Professor, Addis Ababa University, School of Law

1

2 | Law and Development, and Legal Pluralism in Ethiopia the rational normative system (including legal institutions) but they also depended on it as their enforceable normative and institutional framework. One of the aspects of this view was partly rejected by Marx for whom law is a superstructure with peripheral roles. This view emanates from Marx’s argument that it is the material mode of human existence that determines legal consciousness rather than the other way round. In spite of such differences, however, human history proves that law and legal institutions are not only the effects but are also among the major tools in social progress. The formal legal system that matured over centuries in the Global North was accompanied by a robust legal profession (in the parliament, , , and the academia). The legal profession was clearly not only the offspring of this jurisprudential development but was at the same time the custodian of the formal legal system. The role of and the legal profession at large in the constitutional development of various countries in Western Europe and North America shows that their laws and legal institutions not only facilitated industrialization and economic development, but were also nurtured and reinforced by economic, social and political progress. A chicken-egg paradox appears when an attempt is made to identify the factor at the wheels in the dynamics of social change, a task that can become a futile mental exercise as long as the reciprocal relationship between law and economic development can be clearly observed. The 1960s were years of optimism when and legal transplantation from western laws were believed to facilitate a kick-start towards modernization and development, which envisaged Africa’s accelerated path through the phases undergone by Europe and North America. As many third world countries rather fell into authoritarian regimes that were mostly predatory and corrupt, the law and development movement was considered as futile until it reemerged with some variation in themes such as ‘rule of law reforms’ and judicial reform. Meanwhile, bitter lessons were leant from countries which experimented the various versions of the dependency theory. This theory criticized the economic hegemony in the relationship between the core and peripheral economies of the global system thereby advocating for policies such as import substitution and self reliance. However, the experiment was unsuccessful mainly because the global economic interdependence is so entrenched that such policies brought about marginalization rather than fair share to the economies that resorted to seclusion from the wave of economic globalization. The pursuits of protectionism and import substitution could not thus be as effective as they had been during the take-off phases of various developed economies including Britain, USA, Germany and Japan.

Introduction | 3

During all these periods of policy shifts, the law clearly sang the tunes composed by alternating economic policies. What is regarded as failed promises on the part of the law thus emanates from the economic policies prescribed and/or embraced in Africa. These economic policies changed periodically based on the notions of and the path to development which (after the failure of the modernization and dependency theories of the 1960s and early 1970s) include institutional approaches to development, human development as the core foundation for development, neo-liberalism with various prescriptions of structural adjustment (including privatization, enhanced deregulation, etc.) that was very influential during the late 1980s and early 1990s, Amartya Sen’s concepts of functionings and capabilities in development, postmodern arguments regarding the need to rethink the ‘ideology’ of development and the issue of relativist alternatives, the notion of the developmental state and others. While the rational legal system in the western economies resulted from the evolutionary development of a normative system commensurate with the unfolding economic, social and political realities, Africa’s experience in the 1960s and 1970s alternated between two trends. The first experiment as stated above involved the pursuit of social engineering toward modernization through legal transplantation (usually rejecting traditional institutions). As this experiment clearly failed to live up to expectations, the other extreme involved a relapse into the other extreme of undermining the role of formal laws in development. Yet, the role of law in development could not be entirely denied even under these extremist conceptions that offered it a marginal role in development. Humanity lives in institutions starting from the family unit, neighbourhoods, workplaces, communities, shared public services, and the society at large. Every individual also lives in the context of his/her pursuit of self interest (subject to varied definition of the self 3) which should be rational so that it can respect the self-interest of others as well. This clearly renders both formal and informal normative systems and institutional frameworks indispensable. The role of law as one of the elements and enablers in the institutional capabilities of a society thus emanates not only from its wider function in economic development (and other pursuits in welfare states) but also in its conventional role in securing society’s peace, security, order, and efficient reliance in expectations and promises. The law-society-economy nexus in post-independence Africa was different from the realities during the take-off periods of the Global North due to various challenges. The first challenge can be attributed to lack of

3 It is to be noted that the ‘self’ does not necessarily exclude the drives of commitment and sympathy.

4 | Law and Development, and Legal Pluralism in Ethiopia adequate objective and subjective foundations that determined the nature and content of Europe’s formal normative system and legal institutions. These foundations in return benefitted from the and enforcement that the laws offered. Europe’s legal regime was thus an element within an integrated system of formal and informal institutions that include value systems and the positive elements of traditional systems. In English legal history for instance, the was a system that could not be easily maneuvered by a narrow circle of ruling elites because it was the law as lived by the society and as interpreted by the courts rather than commands that could be made at the whims of the top . On the other hand, most codifications in continental Europe resulted from and were accompanied by the needs, values and interests of the population at large as articulated by an informed, competent, active and independent legislature which represented popular will. Codified laws were thus mostly the embodiment of existing grundnorms in the customary laws, decisions, academic projections and proactive aspirations. Unlike such embryonic development of the formal legal system in the Global North, imported laws in the African context did not usually benefit from harnessing the positive elements of the traditional normative and value systems. The second challenge relates to the fact that the law and legal institutions in Africa were significantly derailed from the social, economic and political purposes they were initially intended to serve. The experience in various African countries indicates that in the absence of various objective and subjective realities that include a strong middle class, civil societies, a significant level of freedom of expression, political pluralism with the corresponding culture of tolerance, a strong legal profession, etc., the formal legal system can serve as an instrument toward power entrenchment and corruption. However, it is equally important to recognize the positive role that modern laws in Africa have played in nation building, the regulation of unfolding changes, enforcement of economic policies and bringing about major social changes. It is in the context of such bittersweet experience of Africa’s past that any ‘law and development’ discourse in the continent examines the role of formal and traditional normative systems in development. * Part I embodies five chapters. The first chapter sets the stage as an overview to the law and development paradigm. Chapter 2 discusses the theme from the perspective of the grassroots and the empowerment of poor. The third chapter takes the themes further and addresses the resource and contracts perspectives of the issues. Chapter 4 discusses four potential scenarios regarding the future of laws and legal institutions. And finally, Chapter 5

Introduction | 5 highlights the path undergone by Ethiopia in the modernization of the formal legal system, achievements attained, challenges encountered and the way forward. The first chapter highlights the nature and history of the ‘law and development’ movement and gives an overview of the developmental state in the context of development. Fana recalls the initial assumptions of the 1960s which regarded law as an instrument of reform and social engineering thereby considering it as a central tool in the development process with lawyers as the vanguards in this public mission. She discusses the efforts made in the realms of enhancing legal education and the codification of modern laws, and also notes the subsequent setbacks which led to skepticism and the re-emergence of ‘rule of law’ initiatives. She further highlights the view that law initiatives related to development should not be judged from the perspective of short-term or immediate returns because they inherently take a longer time to bear fruit. Fana further deals with the notion of the developmental state which goes beyond the minimal functions of a state. The developmental state involves itself in developmental pursuits through conducive policies to economic actors, by at the same time retaining its autonomy from particularistic economic interests and rent seeking. In this regard, she examines whether it is possible to implement the notion of the developmental state in Africa in the manner it was practised in Asian countries during the 1970s and 1980s whereby some concessions to were made owing to the authoritarian features of the regimes. Fana also inquires whether the current global setting allows trade-offs between the rule of law and development, and she relates the issue with the rewording of the phrase ‘developmental state’ into its current designation as ‘democratic developmental state’. In the second chapter, Costantinos discusses development from the perspective of empowering the poor in which lawyers should focus on their supportive role as agents of social change rather than taking the lead as lawyers entrusted with social engineering. He interrogates the rule of law orthodoxy which, in the African context, has not brought about the promises it had offered. Costantinos makes a distinction between the law as it is on paper and as it is put into practice which needs ‘a rights-based approach’ that empowers the poor for its enforcement. The chapter discusses the legal empowerment programme from the dimensions of “prioritizing the needs and concerns of the disadvantaged’ with due emphasis on “ and using forums the poor can best access in specific situations”. Costantinos interrogates the wider function of the state in managing “society's legal empowerment aspirations and activities” and he discusses

6 | Law and Development, and Legal Pluralism in Ethiopia whether it should be confined to the creation of “enabling conditions for their free play” thereby allowing wider activities of “institutions and groups in civil society” and in effect promoting and managing “the participation of individuals and groups in legal empowerment”. The chapter further states the role of the ’s independence. Costantinos shares Golub’s view that the ‘rule of law orthodoxy’ is state-centered and does not pay due attention to the disadvantaged at the grassroots. He examines whether community and rights-based approaches to development as alternative approaches are more effective. Meanwhile, he states the caveat that the ‘rule of law orthodoxy’ should not be confused with ‘rule of law’ because the former constitutes ‘a set of ideas, activities and strategies geared toward bringing about the rule of law’. The concerns stated in this chapter include various manifestations of top-down and state-centered approaches in the ‘rule of law orthodoxy’ such as “entrenched bureaucratic structures, inefficient use of resources, corruption, patronage, gender bias, general aversion to change and other factors that work against, rather than for, the disadvantaged”. The third chapter raises a theme related with ‘the resource curse’. Mere endowment in natural resources does not bring about development, but rather may worsen rent-seeking and corruption in the absence of the institutional setting that renders optimal utility of the resources possible. The chapter notes that “countries with abundant natural resources, specifically mineral and fossil fuels” do not necessarily have better development opportunities than resource poor countries, and inquires into the factors thereof. The factors examined include “the absence of strong public financial management and institutional mechanisms to ensure transparency and accountability”, the pursuits of “distributive struggle for rents which weakens state institutions and consolidates authoritarianism”, and incentives toward conflicts for resources rather than engagement in value adding economic activities. Even if the chapter deals with oil resources, the theme is relevant to all natural resources which are susceptible to allocation by government entities through concessions and various forms of contracts. Dassa, Chrysantus Ayangafac and Sehen thus examine the role of “policy interventions to improve transparency” that aim at improving resource governance and transparency, including the publication of “resource contracts and reflecting resource rent in the national budget.” The authors further inquire whether this can be adequate and whether the negotiation stage can also involve “corruption and abuse of authority on natural resource governance.” To this end they examine the correlation between “high levels of beneficiation” and “strong legal and political oversight over discretionary negotiations” and the potential development cost of negotiating bad contracts. The chapter further

Introduction | 7 introduces an explanatory framework to encourage future research and briefly discusses “the notion of fair contracts, current policy orientations and government responsiveness.” Chapter 4 foresees four scenarios that may potentially unfold regarding law and legal institutions around the 2030s. The scenarios are stated as directions that facilitate strategic thinking into the future of law and development. Sam Muller, recognizes the contributions of his colleagues 4 at HiiL (Hague Institute for the Internationalisation of Law) with whom “the Law Scenarios to 2030 were developed”. This method of projecting into the future inquires into ‘what ifs’, i.e. “worlds based on certain high impact, high uncertainty factors emerging, in which one can test the robustness of one’s current strategies and adapt if needed”. Muller transposes the experience of scenario formulation in economics and business and uses the method for possible law scenarios into the future. This, according to Muller, is meant to enable lawyers to “have a broad and explicit strategy” thereby letting the law not only follow the realities as it usually does, but rather enable it to take the lead. The four scenarios highlighted are (a) the scenario of a ‘ Global Constitution’ in which “a global constitutional order gradually emerges” in the course of subregional, regional and global integration; (b) the thickening of ‘Legal Borders’ as a reversal to the “expansion of international rules and institutions” which as a result will be dominated by local laws with a more fragmented and weakened global legal regime; (c) a scenario of ‘ Legal Internet ’ in which international rules and institutions expand but with a shifting emphasis “to private governance mechanisms and private legal regimes” or public-private rules and institutions thereby giving primacy to the art of R&O (– Regulate & Organise through standardisation and harmonisation) rather than ; and alternative settlement mechanisms for most disputes; and (d) the ‘Legal Tribes ’ scenario which may result from a reversal in internationalization and growing “private legal and governance regimes” with a dispersed and chaotic “global legal environment” and diminished power of states thereby leading to dependence “on local, private legal and governance regimes”. In Chapter 5, Tameru recalls the setting in which Ethiopia was forced to modernize its laws and discusses whether there was an option to act otherwise. He takes the Battle of Adwa (1896) as a landmark in Ethiopia’s enhanced visibility in the international stage and observes the events thereafter in terms of Ethiopia’s further exposure to modernization. He also examines the impact of globalization since the 1950s and 1960s and the extent to which it necessitated “a modern legal system, consistent with the

4 Stavros Zouridis, Laura Kistemaker, and Morly Firshman

8 | Law and Development, and Legal Pluralism in Ethiopia principles of rule of law, human rights and basic principles of .” Tameru further discusses the global setting which necessitates reform toward the rule of law. He examines these factors in light of the need to pursue the rule of law “as an imperative, for establishing a stable, predictable enviroment conforming to formal rules rather than patronage, with the judiciary acting as a check on arbitary state action.” Tameru notes the tension that prevailed in the 1950s and the 1960s between the modernization of Ethiopian laws and the retention of the status quo (through legal pluralism) and he states the role of the 1995 FDRE Constitution in easing the tension. He further observes the global challenges and inquires into various issues such as the need for an enhanced role of the legal profession, the decentralization of the office of the Federal , the need to “render the judiciary more attractive and appealing to more seasoned and experienced lawyers”, to strengthen the institutional independance and competence of the judiciary, and the need for an “active and informed parliament” that can effectively identify and maintain “the natural relationship between the development of law and development of the society”. With regard to the way forward, Tameru envisages the need to “recognize the role of customary laws and legal pluralism” as long as they are compatible with “international realities, international human rights instruments and various principles enshrined in the FDRE Constitution”. He further underlines the need to address internal conflicts and brooding diversities so that they do not lead “to uncertain futures” and hamper development including foreign investment. * Part II has five chapters (6 to 10) that deal with legal pluralism and the traditional legal system from various perspectives. Chapter 6 inter alia discusses the convergence and divergence between the rule of law, the formal legal system and customary laws. Chapter 7 critically explores the tension between the traditional systems in Ethiopia’s multicultural setting vis-à-vis the monist approach of the formal criminal justice system. While this chapter examines the positive aspects of the traditional normative system, Chapter 8 on the other hand forwards the caveat that needs attention in the realm of gender justice in the course of enforcing customary laws. Chapter 9 deals with the dynamic and static features of traditional systems and their relationship with the formal legal regime in South Africa as a comparative experience with regard to the different perspectives in the application of customary laws and their cohabitation and synthesis with the formal system. And the last chapter is an overview of case studies on seven customary laws in Ethiopia.

Introduction | 9

A legal oriented inquiry into customary law systems may raise one or more of the following issues which essentially revolve around the notion of recognition. First, there is a need to find out whether legal recognition matters in the context of long standing de facto existence of customary laws and their institutions in a given country. Does the value of turning customary laws and institutions which exist as a matter of fact into de jure existence lie in preventing government authorities from removing them whenever they get the opportunity to do so? Second, there is the question of ascertaining whether a particular country`s modern legal system has recognized customary legal systems located in its territory. This typically involves analysis of that country`s constitution, subsidiary laws and state court decisions. This second question also involves a conceptual articulation of the nature of customary law to be recognized. Third comes, trying to understand in what sense recognition is given to customary laws: is it as a matter of legal right? If custom is recognized as a matter of legal entitlement, whose right is it: a right bestowed upon an individual member of a group or a group or both? A related issue is to find out as to what justifies this entitlement to use and promote one`s customary legal system: utility (e.g., to ease the burden of regular courts) or principled reason (e.g., identity based justification)? The fourth possible question in the study of customary laws and institutions is the scope of their recognition. This means determining the extent to which a country has embraced customary laws and institutions thereto: the possible range of recognition being from wholesale recognition to wholesale rejection and gradations in between these two extreme points. An issue intimately tied to this is what sense of culture informs the recognition: a static or bounded notion of culture which seeks little or no intervention in customary law systems of a community or a dynamic view of culture that places limits (e.g., human rights) on customary legal systems including traditional power? On the one hand, there may be certain customary law values, principles and processes which are incompatible with certain principles a modern country has pledged to honour. If that is the case, which methods shall this country deploy to effectively eliminate those customary laws: enforcing of the law or education or dialogue and grassroots social mobilization? On the other hand, where there are customary law values, principles, processes and structures which are in tune with the spirit and letter of the aspirations of a country, how should that country support and promote them: through research or education or legislative support or removal of state laws and practices that undermine them or a combination of these strategies? Fifth, an empirical investigation into the interactions between the customary law systems and the formal justice system is required. For

10 | Law and Development, and Legal Pluralism in Ethiopia instance, how is the formal legal system influencing the course and direction of the customary law systems and vice versa? This is based on the hypothesis that there are certain interfaces between the formal and the informal legal systems as they have co-existed in time and place trying to govern the same subject matters in regard to the same subjects for decades if not for centuries. This assumes a prior understanding of the features of each customary law system as well as the commonalities and differences among themselves and with the state law. Finally, examining customary law systems from a point of view of a should transcend its narrow scope and be linked up with the rule of law and development. Any consensus or dissensus among the authors of the five chapters in Part II of this book (i.e., Chapters 6 to 10) not only informs the reader about the various dimensions of the themes discussed but also inspire further inquiry into the issues of legal pluralism and traditional normative systems that are raised in relation with the FDRE Constitution, rule of law, criminal justice, gender justice, South Africa’s experience and case studies on seven customary laws in Ethiopia. The five contributions in Part II examine these issues. * In Chapter 6, Assefa considers a possible convergence and divergence between the rule of law presupposed in modern state law and customary dispute resolution mechanisms. His analysis of divergence between the two starts with an outline of empirically ascertained key features of customary dispute resolution mechanisms in the Ethiopian context as well as a discussion of the theoretical and historical evolution of the rule of law subscribing himself to the ‘thick’ as opposed to the ‘thin’ conception of the rule of law. He argues that there is a fundamental convergence between customary dispute resolution mechanism and this ‘thick’ conception of the rule of law. He in particular finds a common denominator in an answer to the perennial question: why do people obey the law including customs? He says people obey the law including custom essentially because both the law and custom rest on ‘agreed upon basic values of society and social norms.’ For him, the belief on the part of the people that the law and custom are fundamental is the secret behind their willingness to abide by it. He in fact suggests that customary dispute resolution methods go much further than the rule of law in terms of ‘ensuring social justice and peace.’ As Assefa notes, customary dispute resolution mechanisms are ‘founded on conventions and traditions that are based on the lived experiences of society. These lived experiences of society are largely based on the society’s broad-based agreement on the sense of equal and impartial justice, religion (often manifested in the form of fear of God or higher force), and morality and guided by higher sense of truth.’

Introduction | 11

Assefa recognizes that the law and customary dispute resolution systems diverge in some crucial respects: a deficit in the latter in upholding the principle of equality of the sexes and equal participation; their focus on collective responsibility as opposed to the former`s liberal concept founded on the autonomy of the individual; their fusion of whole set of functions and responsibilities whereas in the rule of law, power needs to be dispersed among several institutions and functionally differentiated. The contribution made in Chapter 6 to the discourse in the area of customary law lies in two points. First, Assefa goes beyond the growing empirical literature on customary dispute resolution mechanisms to read into them the `thick` notion of the rule of law envisaged by modern state law. Second, the more subtle point appears to ask us to rethink the very notion of the rule of law: it is a mistake to assume that the rule of law is exclusively confined to modern state law as there is also the notion of the rule law behind traditional dispute resolution mechanisms, that there is a fundamental common ground between the rule of law behind customary dispute resolution mechanism and the one behind the law, that there is a need to appreciate this and deploy it for the development of the country. Ultimately, his exercise in search for core parallel is to ask us to appreciate and nurture the existing useful and legitimate idea of the rule of law behind Ethiopia`s multiple legal traditions. Chapter 7 focuses on the concept of legal pluralism in the context of Ethiopian criminal justice system. Aberra notes that Ethiopian criminal laws in the past followed rejectionist policy towards customary criminal justice systems and that this seems to be carried over to the present and policy thereby giving little explicit recognition to customary criminal laws. Aberra states that despite lack of explicit state recognition at present and rejections in the past people have been and still are using their customary criminal justice systems. Aberra argues that it is necessary for Ethiopia to explicitly and comprehensively recognize a plural criminal justice system as a matter of utility and of legal right. In terms of utility, he invokes what he assumes to be better physical, financial, social and cultural accessibility and acceptability of the customary criminal justice systems to local people than the state criminal justice. His utility-based argument also rests on the positive effects of using customary criminal justice systems in light of their overall contribution to peace and stability in the country. The right-based argument in this chapter rests on people`s collective constitutional right to ‘use their own legal system’ or the people`s right to access to justice of their own choice. Aberra reads this argument into the text of the Constitution; in other words, he sees a potential for a plural criminal

12 | Law and Development, and Legal Pluralism in Ethiopia justice system in Ethiopia`s post-1991federal system as the spirit and letter of the Constitution can and should be interpreted to that end. As a dimension to this right-based argument, he also links the right to development (which he characterizes as a bottom-up participatory and inclusive project) with the right of various communities in Ethiopia to deploy their respective customary legal systems. Aberra is, however, far from romanticizing custom in the sense of arguing for a wholesale recognition of it since he concedes that there are some limitations in the customary criminal justice systems but he insists that such limitations are surmountable and that their benefits are far greater. In Chapter 8, Rakeb`s relates the traditional and normative regimes with gender justice. She conceives gender justice as an effort to end ‘inequalities between women and men that are produced and reproduced in the family, the community, the market and the state’. She envisages development as a removal of gender injustice that currently exists and as one of the measures toward development. To this end, she argues that an effective program for gender justice must be firmly put in place. This effective program of gender justice includes the existence and full implementation of ‘policy and legislative reforms aimed at removing discrimination against women and promoting gender equality.’ She then moves onto assessing Ethiopia`s path to gender justice. Rakeb documents and lauds some promising developments in Ethiopia and elsewhere in regard to gender justice such as policy reforms, introduction of relevant constitutional provisions, enactment of laws, and ratification of treaties promoting the protection of the rights of women, women representation in key national institutions and establishment of gender-sensitive structures. She however lists down and explains some of the key challenges facing the realization of gender justice. These include the existence of some laws that tend to reflect and reinforce the privilege and interests of men and are against the interests and rights of women; legislative gaps and the incompatibility between some aspects of national and subsidiary laws; lack of awareness on the part of women of their rights; lack of access (i.e., physical, financial and socio-cultural) to institutions; lack of enforcement of decision especially when traditional leadership views court decisions upholding women`s equality as contrary to the canons of custom; discriminatory but culturally embedded powerful customary laws systems in issues that critically matter to women in developing countries such as land and matrimonial property; lack of adequate women representation in public institutions; and (where there is one), lack of capacity to exercise legitimate influence. Rakeb`s underlying message seems that the law and policy reform movement to eliminate gender justice has been underway for decades

Introduction | 13 globally and nationally. She nevertheless thinks that such gender oriented legal revolution constitutes a thin and weak outer layer in a plural legal system where customary laws have a firm grip on the society generally and in the relationship between men and women particularly. Rakeb, therefore, concludes that this era of legal reform remains incomplete if it fails to bring about meaningful cultural and attitudinal changes. Yonatan begins his examination of the current status of customary laws and traditional leadership in South Africa with a succinct overview of the treatment of customary laws by colonial and post-colonial African states. In colonial times, custom was seen as inimical to development and inherently inferior to transplanted law. Both colonial and post colonial governments did not go for the total abolition of customary law; they rather used reconstructed customary law to suit their aims. They attempted to codify custom into their interests as they also remade traditional authorities. Reconstructed customary laws also assumed inferior position in the legal systems of colonial and post colonial government administrations. Putting customary laws in the service of the colonial and post colonial ruling elites did not however have the effect of eliminating pluralist legal systems in Africa although it had adulterated and weakened custom and traditional authority. Chapter 9 deals with post-Apartheid South Africa`s endeavor to come to terms with its pluralist landscape by recognizing customary law and traditional leadership in its constitution. The South African Constitution recognizes customary law as an individual right. In the course of application of this individual entitlement to use one`s custom, there is a fierce debate between two strands of thought about the nature of culture embodied in the South African Constitution. The first approach sees culture as bounded, which does not mutate and must be protected from outside interventions including from national and local governments and thus the followers of this conception of culture would like to see culture as embodied in the Constitution understood and applied in this way. Especially, people in charge of traditional authority in South Africa would like to read this static notion of culture into the Constitution. It was also the rendition given to culture by the Apartheid government. The other perspective sees culture as dynamic as it being the result of social, economic and political changes. This is upheld by the South African Constitutional Court, with its implications for the recognition or otherwise of certain customs in light of certain values and standards enshrined in the Constitution. The second aspect of the recognition of tradition in the South African Constitution is traditional authority. Yonatan puts the stance of South Africa on this as ‘an attempt to recognize the cultural identity of traditional authorities without implying a role for traditional authorities in government.’

14 | Law and Development, and Legal Pluralism in Ethiopia In other words, traditional leadership is involved in cultural and advisory role to local and national governments. However, he tells us that the scope of the power of traditional leadership cannot be fully known until a decision is made on the fate of the draft bill in the pipeline meant to define the nature and scope of traditional authority in today`s South Africa. The last chapter in Part II presents some aspects of seven customary laws and institutions with a short general discussion on customary laws. In this connection, Yidnekachew et al discuss the hegemony of and indicate the increasing worldwide recognition of the importance of customary law systems for development. They also introduce the place given to customary legal systems in various constitutions and subsidiary laws in Ethiopia in the past. Then they discuss the status afforded to customary law institutions under the FDRE Constitution. Their analysis of the pertinent provisions of the Constitution in this regard shows that customary laws and institutions are recognized so long as they are not contrary to fundamental tenets of the Constitution. The right to use customary laws and the institutions thereto compatible with the Constitution by individual members and communities is recognized. The co-authors nevertheless think that such recognition is generic and the required specific laws to translate into reality are missing. In the absence of such laws, it is difficult to determine issues such as the relationship between customary courts and regular courts and how to ensure the observance of the basic principles and values of the Constitution by customary courts. According to Yidnekachew et al , this legislative measure should be preceded by an empirical study on customary law and institutions to understand their nature, values, principles, structures and processes, to identify their aspects that are consistent with the Constitution as well as with other laws of the country; and more broadly to see their contribution to development. It is in this context that the authors present their legal anthropological research on seven traditional systems: the traditional inter- ethnic dispute settlement among the Wajirat and the Afar; basic principles in Afar`s traditional system that govern extra-contractual liability; the agro- ecology driven ‘binding social agreements’ that are embedded in the culture of the Konso people; underlying customary principles of contract and their enforcement mechanism among the Mezenger; inter-clan and intra-clan homicide settlement processes and rituals among the Wolayita and the Sidama; and finally, the principles concerning succession in Shinasha traditional practices. Yidnekachew et al note that (a) customary laws and institutions thereto assign different structures to handle different cases; (b) possess the capacity to legitimately dispose individual and collective disputes of civil and criminal nature; (c) are participatory and more or less inclusive in the course

Introduction | 15 of dispute settlement, (d) are effective in enforcing decisions through social pressure, (e) restore fractured relationships rather than merely declaring one of the parties as a winner and the other a loser; and (f) give precedence to the collective over the individual good. While the latent accent on most of the contributions in Part II that an inclusive development is not feasible without the use of some aspects of customary laws and institutions is persuasive, we call for further empirical and analytical research. First, there is a need to critically investigate if recognition of customary laws and institutions really matter if they persisted in the face of unfavourable policy and legal environment in the past and if they still continue to function in the absence of specific legislative support at present. Second, the question of accessibility of customary laws and institutions is an empirical question that cannot be taken for granted and such question of accessibility should further be investigated raising such specific questions as to whom (i.e., women, the youth and occupational minorities) the customary legal institutions are accessible. Third, existing studies on customary laws appear to take the meaning of customary law for granted because assuming its meaning to be known may conceal the participants in its craft, the possibility of traditional elite capture, and the possible lack of inclusive negotiability. Fourth, researches generally appear to satisfy themselves with utility-driven reasons in defence of customary laws and institution. The obvious implication of justifying the recognition of customary legal systems from a mere dispute settlement lens and hence utility is that their recognition ceases when the formal legal system somehow gets the capacity to easily stretch its tentacles to all corners of the country. Thus, their recognition becomes temporary. The idea hinted here is that there a need to find another principle-based recognition of customary law, for example, identity-based justification. Finally, ethnographic study into the interactions, de facto or de jure , between customary legal institutions and the formal legal system is lacking and needed.

16 | Law and Development, and Legal Pluralism in Ethiopia

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Chapter 1

Law and Development Paradigm

Fana Hagos Berhane ♣

1. Introduction The law and development movement has gone through various phases. At its earlier stage, it “flourished briefly in the 1960s and early 1970s but was declared by two of its leading proponents to have been a failure by the mid- 1970s, largely because its participants had over-estimated the importance of formal law and legal institutions in developing countries”. 1 These earlier years indeed witnessed much enthusiasm both in the academia and among policy makers. 2 What characterizes the law and development movement throughout its history is its close relationship between the economic theories and notions that prevailed at various junctures of the law and development movement and their influence in the perceptions about the role of law in development.3 This chapter highlights some aspects of the continuing dialogue on the role of law in the realization of sustainable socio-economic development. It draws together academic research and recent literature on the field of law and development which suggest some of the issues that we must deal with to contribute to the discourse on the role of the law in a developmental state. Section 2 examines the history, nature and scope of law and development, followed by an overview of the traditional approaches and theoretical perspectives of law and Development. Sections 3 and 4 define the concept of democratic developmental state, briefly address some of the implications of the new developmental state theories and practices for the law along with an

♣ Fana Hagos (LL.B, LL.M, PhD candidate) is lecturer in Law at Mekelle University Department of Law . The author can be reached at . 1 Kevin Davis & Michael J. Trebilcock (1999), What Roles do Legal Institutions Play in Development? , Faculty of Law, University of Toronto, 20 October 1999. International Monetary Fund’s Conference on Second Generation Reforms, November 8–9, 1999, p. 3. 2 Ibid . 3 See David M. Trubek (2008), Developmental States and the Legal Order: Towards a New Political Economy of Development and Law , Paper prepared for presentation at the Conference on Social Science in the Age of Globalization National Institute for Advanced Study on Social Science (Fudan University, Shanghai, December, 2008). 17

18 | Law and Development, and Legal Pluralism in Ethiopia outline of some of the issues that accompany the theory and practice for a developmental state.

2. History and Nature of Law and Development As Baderin observes, the longer and informal narrative of the relationship between law and development “is usually linked back to at least the eighteenth century, to Adam Smith’s discussion of ‘the economic effect of mercantilist legislation’ in his landmark work ‘ An Inquiry into the Nature and Causes of the Wealth of Nations ’ first published in 1776”.4 Baderin also states the reference that is made to Max Weber’s works on law and the economy and particularly to Weber’s work titled ‘’ in which an inquiry is made regarding the “particular features of Western law and the development of capitalism”. 5 Its shorter and formal narrative is however often associated with the initiatives of US academics and development experts in the late 1950s and early 1960s, which led to the so-called Law and Development movement aimed at promoting legal and institutional reforms in developing countries, based on American models, that would facilitate economic development in the developing world. When we talk about Law and Development today, it is often in reference to the latter US initiative and its subsequent evolution. This evolution is now usually classified into three loose overlapping periods described as the ‘three moments’ of Law and Development. The first of the three moments was, loosely, from the 1950s to 1970s, the second, loosely from 1970s to 1990s and the third loosely from 1990s to the current period, described as the period of ‘new developmentalism’. 6 The positive contributions of the law and development movement as manifested in the codification of laws and in the realm of legal education in various developing countries including Ethiopia are indeed commendable. However, the “movement was state-centric and ‘based on development economics theories that emphasized the role of the state as the driver of economic growth”.7 It was from this perspective that certain African states including Ethiopia used law “as an effective instrument of intervention in the

4 Mashood M. Baderin (2011), ‘Law And Development In Africa: Towards A New Approach’, 1 NIALS Journal of Law and Development, p. 11 . 5 Ibid . 6 Ibid , pp. 11,12, citing as an example: Sherman F.C.: “Law and Development Today: The New Developmentalism” (2009) 10 German Law Journal , No.9, pp. 1258- 1273. 7 Ibid , p. 12, citing Sherman F.C.: “Law and Development Today: The New Developmentalism” (2009) 10 German Law Journal , No.9, p.1261.

Chapter 1. Law and Development Paradigm | 19 economy to foster development, resulting in a number of law reform projects”.8 This movement originally shared many of the tenets of modernization theory. Modernization theory incorporates the notion of a stable legal order. With respect to economic development. such a legal system is necessary particularly because it enables the predictable and effective enforcement of ‘background’ rules necessary for capitalist economic growth, especially contract and property rights. In the 1960s, the U.S. Agency for International Development, the Ford Foundation, and other private American donors underwrote an ambitious effort to reform the judicial systems and substantive laws of countries in Asia, Africa, and Latin America. This ‘law and development’ movement engaged professors from Harvard, Yale, Stanford, Wisconsin, and other leading American law schools and within a few years had generated hundreds of reports on the contribution of law reform to economic development. 9 The question of ‘legal development’ attracted significant support from the U.S. government and U.S. foundations from the 1950s onward. 10 Legal scholars joined into the already-ongoing efforts of the social science departments in the field. Messick indicates that “the guiding assumption of the law and development movement was that law is central to the development process” and he also notes a related belief “that law was an instrument that could be used to reform society and that lawyers and could serve as social engineers”.11 These “lawyers and academics adopted Max Weber’s legalism as the appropriate model for developing societies”. 12 As Messick observes “[t[he dominant view of law and development practitioners and theorists alike, although still unproven, was that law reform could lead social change, that law itself was an engine of change”.13

8 Ibid . 9 Richard E. Messick (1999), Judicial Reform and Economic Development: A Survey of the Issues , The World Bank Research Observer, Vol. 14, No. 1 (Feb., 1999), p. 125. 10 Chantal Thomas (2008), ‘Re-Reading Weber in Law and Development: A Critical Intellectual History of “Good Governance” Reform,’ Cornell Law School research paper No. 08-034. Available at . Visited on 1 November 2012. 11 Messick, supra note 9, pp. 125, 126. 12 Ibid , p. 85. 13 Messick, supra note 9, p. 126.

20 | Law and Development, and Legal Pluralism in Ethiopia Legal reform efforts tended to focus on two primary areas. The first was legal education. Training local legal professionals seemed to go to the heart of the matter, since such professionals could then go on to design and operate formal-rational legal systems. 14 The legal-education effort involved academics from elite American law schools working with governmental and private funding sources to design programs for the reform of legal training in developing countries toward the instrumentalist (or realist) sensibility of American-style “legal liberalism.” 15 The gap between the law on the books and the law in action in developing countries was widely appreciated, and one of the solutions advanced was professional education. It was thought that if lawyers and judges were properly educated about the law's role in development, they could be enlisted to close the gap. The idea was to turn members of both professions into legal activists through education. Yet as one sympathetic chronicler of the movement … observed, this idea was supported by nothing more than ‘hopeful speculation’ that education could overcome values instilled by family, class, religion, and other social forces. 16 The second sphere of emphasis of the law and development movement fell upon judicial reform. The American model of legalism “celebrated courts as the core of the legal order”.17 The law and development movement translated modernization theory’s basic approach into the particular language of the ‘liberal legalism’ of the United States legal elite. The liberal legalism paradigm adopted the following general assumptions:18 - It “focused on higher agencies of the legal system” as opposed to “nonstate forms of legal or other social ordering”: - It “manifested a pervasive belief in the ultimate efficacy of legal rules as instruments of social change,” emphasizing the “instrumental relationship between development goals and specific legal rules”;

14 Ibid . 15 D. Trubek & M, Galanter ‘Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development’ (1974) Wisconsin Law. Review. 1062–1101 (“The lawyers were latecomers to the development research game, responding more slowly than social scientists to the demand for theoretical insights into the processes of development.”) 16 , Last accessed 10 October 2012. 17 Thomas, supra note 10, p. 88. 18 Ibid .

Chapter 1. Law and Development Paradigm | 21 - It “assumed that legal professions were, or could be, representative of the public interest”; and - It “took for granted the existence of some natural tendency for legal systems in the Third World to evolve in the direction of [this] ideal model of liberal legalism.” These assumptions led the assistance effort to “focus on reform of formal rules, to work with the established professions, to believe that changes in the education of the professional legal class would ultimately produce desired social change” and above all, to the assumption that “any activity that was designed to change legal institutions of Third World countries to make them more like those of the United States would be an effective and extremely worthy pursuit”.19 Yet after little more than a decade, both key academic participants and a former Ford Foundation official declared the program a failure, and support quickly evaporated. 20 Those participants in the movement who believed that it failed have identified several factors. They contend that the movement lacked any theory of the impact of law on development, and practitioners thus had no way to prioritize reforms or predict the effects of various measures. A second failing, they argue, was too little participation by the lawyers and others in the target country who would either have to carry out the reforms or who would be affected by them. Foreign legal consultants, through a combination of expertise and access to funding, were often able to dictate the content and pace of reform. A third problem was that the movement focused on the formal legal system to the exclusion of customary law and the other informal ways in which many in developing nations order their lives (Trubek & Galanter, 1974). 21 A final cause in the decline of the law and development movement was a loss of confidence by the movement’s intellectual authors. This experiential transformation is memorably recounted in the essay by David Trubek and Marc Galanter entitled, “Scholars in Self- Estrangement.” 22 Widely read among legal scholars interested in development, this article described the misgivings about the law and development movement that induced its proponents within the legal academia to withdraw from efforts toward the implementation of legal reforms in developing countries.

19 Ibid . 20 Trubek, & Galanter, supra note 15, p.1065. 21 , Last accessed 15 September 2012. 22 Ibid .

22 | Law and Development, and Legal Pluralism in Ethiopia Although Chantal Thomas 23 does not use the formulation of the discourse within the framework of “Three Theoretical Shortcuts” (as it is employed herein), she believes that the article by Trubek & Galanter, i.e. “Scholars in Self-Estrangement” bears the same set of conceptual shortcomings in the law and development framework. Theoretical Shortcut #1 “ One-Size-Fits-All ”- Trubek and Galanter explained at length the problems arising from the universalizing assumptions in “liberal legalism’s model of law in society”.24 While ‘liberal legalism’ assumed ‘social and political pluralism,’ Trubek & Galanter found instead “social stratification and class cleavage” in “most of the Third World”.25 Liberal legalism assumed that “rules reflect the interests of the vast majority of citizens and are normally internalized by them,” whereas the authors found instead that “rules are imposed on the many by the few and are frequently honoured much more in the breach than in the observance”.26 Unlike liberal legalism which assumed that “courts are central actors in social control, and that they are relatively autonomous,” Trubek & Galanter argued that “in many nations courts are neither very independent nor very important”. 27 In adopting this universalistic paradigm, liberal legalism employed a “one-size-fits-all” approach and it envisaged the desirability of a single set of reform goals. In addition to being “ethnocentric,” 28 such an approach was also “naïve” 29 in that it ignored important differences across societies that could jeopardize particular reform efforts. Theoretical Shortcut #2: The Determinism of Values. On its face, the model of liberal legalism focused on implementing specific institutional reforms through the courts and legal education. Although it did not explicitly prioritize a shift in values, it certainly envisioned that a general shift towards rationally instrumental thinking and behavior would flow from its reforms. 30 Trubek and Galanter stop short of the charge that the prioritization of instrumental and ultimate values reflective of the liberal legal paradigm as “good” and marginalization of others as “bad” amounted to a that Third World societies were underdeveloped because of “bad values.”

23 Thomas, supra note 10, p.. 91. 24 Trubek, & Galanter, supra note 15, p.1080. 25 Ibid . 26 Ibid . 27 Ibid . 28 Ibid . 29 Ibid . 30 Thomas, supra note 10, p. 93.

Chapter 1. Law and Development Paradigm | 23 Theoretical Shortcut #3: Correlation between modernity and democracy . The “most serious” defect of liberal legalism in the law and development movement, according to Trubek and Galanter, was its failure to recognize that “the formal neutrality of the legal system is not incompatible with the use of law as a tool to further domination by elite groups.” 31 The law and development movement began by believing that its reform efforts would necessarily promote democratic goals. 32 In spite of unfulfilled expectations, “not everyone agrees that the law and development movement was an unmitigated failure”.33 ... [O]ne scholar argues that these critics gave up on it far too quickly (Tamanaha 1995). Its critics decreed it a failure after little more than a decade, yet it takes years for legal reforms to bear fruit. ... [A]ll the unanswered questions that lurked behind the law and development movement –the role of law and the formal legal system in development, the relationship between law and politics, and the relationships among democracy, authoritarianism, and development— still remain. 34 Baderin notes “the complex nature of Law and Development” and he states Dhavan’s observation that as a field of study it seemed to be “concerned with social change”; as a programme it aspired to devise “techniques for inducing and sustaining change; “as a movement it seemed to be seeking to mobilise the peoples of the world to accept ‘modernization’ as a rational, liberal goal”; and “as a funding rubric it brought under its ever expanding umbrella a vast amount of scholarship”.35 Tamanaha has similarly noted that ‘[m]any who write on law and development appear to consider it a “field” with a recognizable set of activities that make up the rule-of–law assistance domain’ but argued that ‘[c]onceiving of law and development as a field … is a conceptual mistake that perpetuates confusion’ because ‘[t]he multitude of countries around the world targeted for law and development projects differ radically from one another’ and that ‘[t]here is no uniquely unifying

31 Trubek, & Galanter, supra note 15, p. 1083. 32 Ibid . 33 , Last accessed 5 September 2012. 34 Ibid . 35 Baderin, supra note 4, p. 13-14, citing R. Dhavan: “Law as Concern: Reflecting on Law and Development” in Y. Vyas, et al. , (Eds.): Law and Development in the Third World , Nairobi: Faculty of Law, University of Nairobi, 1994, p.25-50, at pp.28-29.

24 | Law and Development, and Legal Pluralism in Ethiopia basis upon which to construct a “field” and no way to draw conceptual boundaries to delimit it’. 36

3. The Developmental State The notion of a developmental state has become a catchphrase in recent years. Since the 1980s Economists and political scientists have discussed it at length in response to the emergence of the East Asian economies model pursued after the Second World War to rapidly modernize their economies in one of the greatest industrialization transformations of the modern era. Robert Wade (1990) 37 argues that market ‘guidance’ in East Asia happened essentially by (a) redistributing agricultural land in the early post-war period, (b) controlling the financial system and making private financial capital subordinate to industrial capital, (c) maintaining stability in some of the main economic parameters that affected the viability of long-term investment, especially the exchange rate, the interest rate and general price levels, (d) modulating the impact of foreign competition in the domestic economy and prioritising the use of scarce foreign exchange, (e) promoting exports, (f) promoting technological acquisition from multinational companies and building a national technology system, and (g) assisting particular industries and, in the case of Japan after 1970, introducing industry-specific policies to prevent industrial decline. These states are ‘driven by an urgent need to promote economic growth and to industrialize’ 38 to ‘catch-up’ with the West or industrialized neighbours. This could either be to protect themselves from global or regional threats or to ‘win legitimacy by delivering steady improvement in

36 Baderin, Ibid , p. 14, citing Tamanaha, Tamanaha: “The Primacy of Society and the Failure of Law and Development” (October 2, 2009). Cornell International Law Journal , p. 17. 37 Cited in Wade, R. 1990. Governing the Market: Economic Theory and the Role of Government in East Asian Industrialisation. Princeton University Press, Princeton, New Jersey(As cited in Developmental bank of south Africa (DBSA) Delivering the democratic developmental state in South Africa(Working paper ). Available at Visited on 1November 2012. 38 Developmental bank of south Africa (DBSA) , Delivering the democratic developmental state in South Africa ’ (2009) Working paper series No.9 Available at Visited on 1 November/2012.

Chapter 1. Law and Development Paradigm | 25 the material and social wellbeing of its citizens’.39 The East Asian developmental states were ‘highly selective in their liberalization and export-orientated strategies, often ensuring the development of a competitive sector before opening it up’. 40 But it is not only in East Asia that successful developmental states have brought about rapid industrial modernization. Post-war Europe has also produced a number of successful developmental states. For example, France has a striking resemblance to Japan when it comes to the basic building blocks of developmental states: ‘It is a paradigmatic case of the developmental state as characterized by the preponderance of a certain kind of actor, pursuing a certain kind of ambition, and employing a certain kind of power’. 41 Other examples include Finland and Austria, which, following the devastation of the Second World War, also successfully saw the state consciously mobilize society behind a national political project of national integration and industrialization. 42 Africa’s record in constructing developmental states is poor. But this is not because developmental states cannot take root in Africa. Samuel K. Bonda recalls the experience in many African countries regarding “some sort of big push for development during the early independence years” and notes that “subsequently governance deteriorated due to clientelistc and/or neo-patrimonial social structures strangled the potential of promising economic sectors and undermined attempts at state-led industrialisation”.43 As a result, it has been remarked that the discourse of state and development in Africa is a disjuncture between an analytical tradition that insists on the impossibility of developmental state in Africa and a prescriptive literate that presupposes the possibility of their existence. 44 The literature on the developmental state has a number of variations but remains useful for researchers in distilling some of its basic characteristics. One strand of the literature emphasizes the developmental goals of the state,

39 UNCTAD, Economic development in Africa: Reclaiming policy space. Domestic resource mobilisation and developmental states. (2007), Report by the United Nations Conference on Trade and Development. Available at Visited on 4 November 2012. 40 Ibid , p.61. 41 DBSA, supra note. 38, p.7. 42 Ibid . 43 Samuel Kenha Bonda (2011), Impact of Ethnic Federalism in Building Developmental State of Ethiopia , MA Thesis, (Institute of Social Studies, Hague), p. 22 44 Thandika M. ‘Thinking About the Developmental States in Africa.’ Cambridge Journal of Economics (2001 ) 25(3), pp 289-314.

26 | Law and Development, and Legal Pluralism in Ethiopia what Mkandawire 45 calls the ideological character of the developmental state. Prominent in this regard are Castells 46 and Pronk. 47 To Castells, a state is developmental when it establishes as its principle of legitimacy, its ability to promote and sustain development; understood as the combination of steady and high rates of economic growth and structural change in the productive system, both domestically and in its relationship with the international economy. 48 Pronk follows in Castells’ footsteps by defining a developmental state only in terms of its objectives. In his view, a developmental state is one which is able and willing to create and sustain a policy climate that promotes development by fostering productive investment, exports, growth and human welfare. 49 The second strand of literature on a developmental state can be defined “as one whose ideological underpinnings are developmental and one that seriously attempts to construct and deploy its administrative and political resources to the task of economic development”. In other words, the democratic developmental state is defined by its objectives and its institutional characteristics. The key organisational features of importance are ‘autonomy’ of state institutions, which enables it to define and promote its strategic developmental goals, and its ‘embeddedness”, which is the state forming alliances with key social groups in society that helps it to achieve its developmental goals. 50 In this perspective, autonomy implies the presence of high degrees of coherent state agencies that are able to formulate and implement coherent developmental goals. Put differently, autonomy means the ability of the state to behave as a coherent collective actor that is able to identify and implement developmental goals. 51 Although there is some disagreement in the literature regarding the nature of developmental state there is general consensus about the essential features that characterised these states. The key quality that makes a state a developmental is that it plans the development process rather than reliance

45 Ibid . 46 See generally Castells, Manuel. ‘ Four Asian Tigers with a Dragon Head: A Comparative Analysis of State, Economy and Society in the Asian Pacific Rim. ’ in Applebaum R, Henderson J (eds). State and Development in the Asian Pacific. Newbury Park: Sage Publications, 1992. 47 See also Pronk, J.P (1997) “Changing Relationships between State and Society and their implications for Development Policy”. Public Lecture, Centre for Development Studies, University of Groningen, Netherlands. February 26. 48 Ibid . 49 Ibid . 50 See generally Evans, Peter. Embedded Autonomy: States And Industrial Transformation . New Jersey: Princeton University Press, 1995. 51 Ibid , Evans

Chapter 1. Law and Development Paradigm | 27 on market forces to determine the optimal allocation of resources According to Beeson, unlike “market rational” states, which were concerned with simply establishing the rules of the economic game, the “plan rational” state sought to formulate and pursue “substantive social and economic goals.”52 Thus the developmental state directly and actively influences the direction, pace and goals of development, rather than leaving it to uncoordinated market forces or an ‘invisible hand’ to allocate resources in the economy. 53 Developmental state is a state that puts economic development as the top priority of governmental policy and is able to design effective instruments to promote such a goal. The instruments would include the forging of new formal institutions, the weaving of formal and informal networks of collaboration (i.e. embeddedness) among the citizens at large, economic actors and officials, and the utilization of new opportunities for trade and profitable production. Its core features, as discussed in the following paragraphs also include meritocracy and autonomy in the course of its efforts to avoid the shortcomings in unregulated free market forces and over- regulated state intervention and control in the economy. Other features of the developmental states is the protection of local industries and promotion of import substitution and export led growth through state led investment in infrastructure, industrialization, research and development (especially in technology) and human resource development to increase skills and productivity. Developmental states have ‘active development strategies, in particular industrial policies. 54 A measure of flexibility was built into long-term industrial policy, in order to eliminate what does not work, weaker policies and build on those that work. They ‘set clear policies and goals’ for the economy in terms of export promotion, investment in human capital and credit allocation via state development banks’. 55 From development experiences since the Second World War, it is clear that without quality in the content of policies, no number of good intentions are going to make development work. The developmental state is not overwhelmed by particularistic interest groups. The developmental state establishes its autonomy through the creation of a rationalized (core) characterized by meritocracy and long-term career outlooks. These traits make civil servants more professional and more detached from powerful rent-seeking groups

52 Mark Beeson, ‘Developmental States in East Asia: A Comparison of the Japanese and Chinese Experiences’, Asian Perspective , Vol. 33, No. 2, 2009, pp. 5-39. 53 Ibid . 54 UNCTAD, supra note. 39, p.60. 55 Ibid .

28 | Law and Development, and Legal Pluralism in Ethiopia attempting to influence them. The point being stressed is that state bureaucratic coherence is achieved by, among others, meritocratic recruitment, which in turn engenders coherent networks within the state. This enhances its capability to identify and implement independent goals. Meritocratic recruitment is complemented by predictable career paths and long term rewards for bureaucrats both of which help to generate a sense of corporate coherence. At the core of any developmental state is the state: efficient, well-coordinated and staffed with skilled employees. The state must have the administrative, technical and political capacity and competence to set national goals, make use of the market and implement these policies. It is also important that the bureaucracy is autonomous and has broad public and political legitimacy. 56 ... [T]here seems to be a consensus to view the developmental state as one defined by both its ideological orientation (toward development) and institutional arrangement (administrative and political) deployed to underpin the realization of developmentalist projects. 57 Peter Evans refers to it as a state ... with the capacity to formulate and implement its development goals in an authoritative and binding fashion resulting in improved economic performance. 58

4. The Making of Developmental State in Ethiopia and the Law Even though the notion of a developmental state is not entirely new to the literature, in the context of Ethiopia, the term is increasingly being used only in recent times. 59 The change of regime in the 1991 brought a radical shift in policy orientation that was necessary due to the failure of the previous socialist government to realize economic growth and improve living standards; the need to secure finance and cooperation from donors and international financial institutions; and pressing economic issues in transition from civil war to peace. As shown earlier, most of the successful developmental states faced a threat and a stark choice- either to modernise quickly or to fall under the

56 Ibid . 57 Thandika supra note. 44, cited in UNDP, infra note 58. 58 UNDP Ethiopia (2012), “Democratization in a Developmental State: The Case of Ethiopia ; Issues, Challenges and Prospects”, Development Brief , No. 1, 2012 [citing Peter Evans, Embedded Autonomy: States and Industrial Transformation. Princeton, NJ: Princeton University press, 1995]. 59 See Asnake Kefale ‘Narratives of Developmentalism and Development in Ethiopia : Some preliminary explorations’; Available at Last accessed: 30 June 2012.

Chapter 1. Law and Development Paradigm | 29 economic hegemony of more powerful nations. In Ethiopia’s case, it has enough motivation, as building a developmental state is a necessary condition for it to develop its economy and reduce the high levels of poverty. In recognition of this the Ethiopian government has pledged to adopt democratic developmental state model of growth. The development strategy has been aimed to bring a structural change and transformation of the economy through rapid industrialization and modernization of agriculture. There are interrogations on the challenges that have constrained the African nations in establishing democratic developmental states, and scepticisms on attaining democratic developmental states in the continent. 60 However, one has to note that that no country at present, regardless of its development stage, can be admitted as a valid member of the international community and receive aid and cooperation unless it embraces a democratic form of government. From political point of view as well, Ethiopia needs the legitimacy, the credibility, and the competence that comes with democratic credentials. Most importantly, the inherent and universal values of democracy itself such as freedom, human rights, empowerment, and participation are the cardinal principles of the FDRE Constitution that need to be considered in designing any development model in the country. The role of legal frameworks and tools in building a developmental state and the kind of legal approaches required in this regard remain important. As discussed in the earlier sections of this chapter, the history of the law and development discourse shows that there is an intimate relationship between prevailing economic ideas and the dominant notions regarding the role of law in development. The first notion of law and development pointed out the need to strengthen the state apparatus so that it could perform its developmental roles. The second was the role assigned to law in the neo- liberal market order which basically regards law as a framework for the market and a shield against undesirable state intervention in market activities. However, with the revival of the new developmental state theories, debates have sparked on the implication of constructing new legal theory and practices. 61 Baderin states the observations stated by Ocran regarding the function of the law “as ‘accelerator’ to keep the process moving and as ‘brake’ to save the process from derailment”. 62 In its role as ‘accelerator’ of development, “law must be consciously evoked as a tool for social engineering towards development, with both legislation and enforcement of the law serving as

60 Omano, E (2005). A Democratic Developmental State in Africa? A concept paper, Centre for Policy Studies. 61 Trubeck, D. supra note 3. 62 Ibid.

30 | Law and Development, and Legal Pluralism in Ethiopia crucial instruments in that regard”, while as a ‘brake’, “law must also be consciously evoked as an instrument for stemming pathologies such as corruption and other impediments in the developmental process”. 63 The broadest view holds that law is vital to national growth to the extent that it creates incentives for people to behave in a growth enhancing manner. This, according to Ulen “means, among other things, harnessing individual self-interest to serve the public good, inducing people to ‘do good by doing well’.” 64 Ulen adds “thus, a business organization must have the appropriate incentives to produce and market so as to make a profit but, in doing so, must respect the interests of their customers and employees in not being harmed unreasonably by the products they are purchasing or producing”. 65 As Trubek observes, new theories and practices of development are now emerging that ‘suggest a need for new types of laws and legal processes’ 66 for the 21st century. He then proposes that in order to understand the relationship between the new developmental state and the law, the necessary issues to deal with would include the following: - ‘How to protect property rights without stifling innovation or creative destruction; - How to create transparency in public-private relationships without deterring the free flow of information between state and private actors; - How to manage government support and subsidy for specific industries without creating monopolies or inefficient firms or conflict with global trade rules; - How to tailor regulatory regimes to industry needs and global opportunities while maintaining a commitment to legal equality; - How to ensure that private investment in public services and infrastructure meets national objectives; - How to ensure that corporate governance law encourages both investment and innovation; - How to craft legal institutions that will foster attention to social needs and poverty reduction; - How to ensure that “the haves don’t come out ahead” because complex, flexible, and revisable rules of the game unnecessarily favor large economic actors over others’. 67

63 Ibid . 64 Thomas S. Ulen (2010), The Role of Law in Economic Growth and Development , Prepared for the Bonn Law & Economics Workshop, April 27, 2010, p. 34. 65 Ibid . 66 Trubeck, D. supra note 3, page18. 67 Ibid .

Chapter 1. Law and Development Paradigm | 31 5. Concluding Remarks The law and development movement mainly aimed at promoting legal and institutional reforms in developing countries, based on American models that were expected to facilitate economic development in the developing world. The guiding assumptions of the initiative assumed that (a) law is an instrument that could be used to reform society, (b) lawyers and judges could serve as social engineers, (c) law reform could lead to social change, (d) law is central to the development process, and (e) legal professionals were, or could be, representatives of the public interest. On the basis of these assumptions, the initiative had two major areas of focus: legal education and judicial reform. Little more than a decade, however, it was considered a failure which led to little participation by the lawyers in the target country thereby narrowing down the focus solely to formal laws. The argument raised against this view is that it takes years for legal reforms to bear fruit. The law and development discourse currently considers the law as a component of institutions which facilitates development. Studies also show that high quality democratic law-making institutions impact in significant and positive ways on various dimensions of development beyond simple per capita growth rates or income levels. Another theme which is addressed in this chapter is the notion of the developmental state according to which the state puts economic development as the top priority of governmental policy and is able to design effective instruments to promote this goal. Although there is no single model of the developmental state, it has emerged as an alternative model for development in the context of the Global South. Its basic characteristics include planned development process, non-reliance on market forces to determine the optimal allocation of resources, protection of local industries, export led growth, state led investment in infrastructure and industrialization, human resource development, autonomy from particularistic interest groups (rent-seeking groups), and pragmatism and flexibility in policies. Emerging empirical indicates that well developed laws are important determinants of growth. Some of the areas of laws and institutional issues include property rights and development, , the protection of investors, formal contract law and its enforcement, effective civil court system, efficient tax system and tax administration, criminal law and its enforcement, , and human rights. The economic reform and transformation in China is marked by a conscious recognition from the beginning, and the new and important role that law plays in its conscious and diligent use to help bring about development.

32 | Law and Development, and Legal Pluralism in Ethiopia Various African countries are opting to embrace the concept of the developmental state. The pioneers in this regard, are the developmental states in Asia. The fact that the latter were nearly authoritarians might give the impression that human rights can possibly be sacrificed for development. However, we are no more in the 1970s and 1980s where violations were looked over, and it is unlikely that they would be tolerated in the name of development. There is also a growing consciousness and understanding that development in itself is a human right. So the alternative concept of the democratic developmental state could be the middle ground. However, even this is debatable because we do not yet have a fully successful democratic developmental state. There is thus the need to address issues relating to the competence of the Ethiopian civil service both at the political and academic levels. Indeed, the law has a significant role in development, and we have to diligently and consciously design and implement our laws in a way they would assist in achieving the level of development Ethiopia needs.

Reference List Beeson, Mark (2009), ‘Developmental States In East Asia: A Comparison Of The Japanese And Chinese Experiences’, Asian Perspective , Vol. 33, No. 2, 2009, pp. 5-39. Bonda. Samuel Kenha (2011), Impact of Ethnic Federalism in Building Developmental State of Ethiopia , MA Thesis, (Institute of Social Studies, Hague). Castells, Manuel. ‘ Four Asian Tigers with a Dragon Head: A Comparative Analysis of State, Economy and Society in the Asian Pacific Rim.’ in Applebaum R, Henderson J (eds). State and Development in the Asian Pacific. Newbury Park: Sage Publications, 1992. David Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development’ (1974) Wisconsin Law. Review. 1062– 1101 Davis, Kevin & Trebilcock, Michael J. (1999), What Roles do Legal Institutions Play in Development?, Faculty of Law, University of Toronto, 20 October 1999. International Monetary Fund’s Conference on Second Generation Reforms, November 8–9, 1999. Developmental bank of south Africa (DBSA) , (2009) Delivering the democratic developmental state in South Africa ’ Working paper series No.9 Available at Evans, Peter. Embedded Autonomy: States And Industrial Transformation . New Jersey: Princeton University Press, 1995.

Chapter 1. Law and Development Paradigm | 33 F.C Sherman: “Law and Development Today: The New Developmentalism” (2009) 10 German Law Journal , No.9, pp. 1258- 1273. Mashood A. Baderin, ‘Law And Development In Africa: Towards A New Approach’ NIALS Journal of Law and Development (2011)(Vol.1)(1-48) Messick, Richard E. (1999) Judicial Reform and Economic Development: A Survey of the Issues , The World Bank Research Observer, Vol. 14, No. 1 (Feb., 1999), pp. 117-136 Mkandawire, Thandika. ‘Thinking About the Developmental States in Africa.’ Cambridge Journal of Economics (2001 ) 25(3) Pp 289-314. Omano, E (2005). A Democratic Developmental State in Africa? A concept paper, Centre for Policy Studies. Pronk, J.P (1997) “Changing Relationships between State and Society and their implications for Development Policy”. Public Lecture, Centre for Development Studies, University of Groningen, Netherlands. February 26. Tamanaha, Brian Z. 1995. "The Lessons of Law-and-Development Studies" (1995)89 American Journal of International Law Pp. 470-486. Thandika M. ‘Thinking About the Developmental States in Africa.’ Cambridge Journal of Economics (2001 ) 25(3) Pp 289-314. Thomas, Chantal, "Re-Reading Weber in Law and Development: A Critical Intellectual History of "Good Governance" Reform" (2008). Cornell Law Faculty Publications. Paper 118. Available at . Trubek, D. & Galanter. M. (1974), ‘Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development’ (1974) Wisconsin Law. Review. 1062–1101. Trubek, David M. (2008), Developmental States and the Legal Order: Towards a New Political Economy of Development and Law , Paper prepared for presentation at the Conference on Social Science in the Age of Globalization National Institute for Advanced Study on Social Science (Fudan University, Shanghai, December, 2008) ______, “Toward a Social Theory of Law: An Essay on the Study of Law and Development” (1972) 82 The Yale Law Journal , No.1, pp.1-50. Ulen, Thomas S. (2010), The Role of Law in Economic Growth and Development , Prepared for the Bonn Law & Economics Workshop, April 27, 2010. UNCTAD, Economic development in Africa: Reclaiming policy space. Domestic resource mobilisation and developmental states. (2007)Report by the United Nations Conference on Trade and Development. Available at UNDP Ethiopia (2012), “Democratization in a Developmental State: The Case of Ethiopia ; Issues, Challenges and Prospects”, Development Brief , No. 1, 2012. Wade, R. ‘What strategies are available to developing countries today? The World Trade Organisation and the shrinking of ‘development’ space. Crisis States Programme’ (2003) LSE Working Paper 31 . Available at .

34 | Law and Development, and Legal Pluralism in Ethiopia _____ , ‘What strategies are available to developing countries today? The World Trade Organisation and the shrinking of ‘development’ space. Crisis States Programme’ (2003) LSE Working Paper 31 . Available at . _____ , 1990. Governing the Market: Economic Theory and the Role of Government in East Asian Industrialisation. Princeton University Press, Princeton, New Jersey.

Chapter 2

Legal Empowerment of the Poor to Access Justice

Costantinos BT Costantinos, PhD

1. Introduction Legal empowerment refers to the use of legal regimes to boost the poor’s access to resources through rights-based development. It is grounded in grassroots needs and activities and involves government wherever possible. It also addresses a central reality that rule of law orthodoxy overlooks. In many developing countries, laws benefit the poor only on paper but not in practice unless the poor or their allies push for their enforcement. It is more than an alternative to the dominant paradigm and should be integrated into many mainstream socioeconomic development efforts that generally do not address rule of law orthodoxy or the legal needs of the poor. The upshot for rule of law orthodoxy practitioners is that they need to think less like lawyers and more like agents of social change. Conversely, development practitioners in other fields could benefit from thinking a bit more like lawyers and human rights advocates. The dual changes in perspective open up vistas for law to catalyze development, breaking the programmatic isolation embodied in the rule of law orthodoxy. (UNCLEP, 2005) Building a legal empowerment programme will require a mix of features: prioritising the needs and concerns of the disadvantaged, emphasising civil society and using forums the poor can best access in specific situations. It is to encourage a supportive rather than lead role for lawyers, cooperating with government wherever possible but pressuring it where necessary; using community organising, developing paralegal resources, integrating with mainstream socioeconomic development work and building on community-level operations to enable the poor to inform or influence systemic change in laws, policies and state institutions. The objective is to press for a more sceptical stance and a better balance in rule of law. The institutional competence and preparedness de rigueur for legal empowerment must operationalise reforms necessary to develop transparent legal and institutional arrangements in which the poor have confidence, can access justice and which will generally contribute to a culture of fairness and 35

36 | Law and Development, and Legal Pluralism in Ethiopia . The rule of law is where citizens can participate in a transparent process, dispute resolution mechanisms that support poor people’s access to rights and special considerations to be given to indigenous peoples’ issues and removal of legal barriers that preclude them from accessing the formal legal norms and judicial structures. It is difficult to anticipate legal protection when genocidal marauders go left unchecked. In addition, the cultural, historical and political conditions of troubled regions of Africa are not simply too conducive to the emergence of strong democratic institutions, the context within which the legal empowerment of the poor and access to justice have to be recognised. Many have asserted that it is highly unlikely for a panacea to be provided if the rule of law orthodoxy is pursued. The following sections deal with the overall context of the administrative and justice system, the actors toward legal empowerment, the rule of law orthodoxy, reforming the justice sector for the poor, practical dimensions in the empowerment of the poor and the rights based approach to development.

2. The Overall Context of the Administrative and Justice System Ethiopia’s modern public administration started in 1907, following the initiative of the political leadership to create the first European type of ministries of Justice, Interior, Commerce and Foreign Affairs, Finance, Agriculture and Industry, Public Works, War, Pen and Palace. State administration was strengthened by raising the number of ministries to eleven in the 1940s and to sixteen in the 1950s and 1960s. This was gradually followed by encouraging qualitative and quantitative changes including the modernisation of the appointment of salaried and educated personnel in the civil service. In this respect, although the basis for appointment to higher positions was loyalty to the monarch and family background, the emergence of a merit-based recruitment system in the 1960s had changed the civil service into potentially efficient administrative machinery. However, following the advent of the Dergue regime, in 1974, the country went into a situation that badly affected the civil service. The political turmoil and the measures that the regime took to control and restructure public administration, constrained the capacity of the civil service to implement governmental development policies and programmes and adversely affected the service’s morale and performance, resulting in low productivity. After the present government came to power, in May 1991, the state underwent a number of unprecedented fundamental changes. The Constitution created a federal government structure in which

Chapter 2. Legal Empowerment of the Poor to Access Justice | 37 autonomous regional states enjoy vast powers in various aspects of public administration and shoulder service delivery with the woredas (districts) as the basic unit of a decentralised system of government. The Constitution guarantees respect for human and democratic rights of citizens. The principle of self-determination as enshrined in the Constitution is manifested by a federal state structure devolving power to regions that are constituent members of the federation. The Constitution guarantees full independence of the judiciary with judicial powers both at the federal and regional levels vested in the courts. In addition to federal courts, there are nine regional courts each with a three-tier court structure: supreme, high (zonal) and first instance (woreda). The Federal Government and member states of the federation have respective legislative, executive and judicial organs that perform their functions. There are various institutions involved in the justice system with their respective duties and responsibilities. These are the House of Peoples' Representatives, The House of Federation, The State Councils, The Courts, The Ministry and Regional Bureaux of Justice, Federal and State Police, The Federal and State Penitentiary Administration, Institutions of Legal Education and Research and The Bar Association of Ethiopia. The constitution elaborates the powers and duties of the coordinates (Legislature, judiciary and the executive branches) of the Government. The Council of Ministers is the highest executive organ at the federal level and has tremendous leverage in law enforcement. The Prime Minister is the Chief Executive, Chairman of the Council of Ministers (COM) and Commander in Chief of the armed forces. Other federal agencies referred to as commissions, authorities and offices are accountable to appropriate ministries excepting those directly accountable to the Office of the Prime Minister. Some of the latter have legislative, judicial and law enforcement functions. In regions, the state council (legislature) is the highest governmental organ. State executive organs parallel and analogous to ministries of the Federal Government are referred to as bureau. In regional states, the executive organ is the state cabinet headed by the chief administrator of the state.

3. The Actors toward Legal Empowerment The policy realities and analytical limitations in the current perspectives of access to justice and pluralism generally are marked by several limitations that include narrowing legal empowerment thought and practice to the terms of immediate, not very well considered, political and social action, a naïve realism, as it were. Moreover, these limitations augur on inattention to problems of articulation or production of legal empowerment systems and

38 | Law and Development, and Legal Pluralism in Ethiopia process rather than simply as formal or abstract possibilities and ambiguity as to whether civil society is the agent or object of legal empowerment. Finally, the analytical limitations are also grounded on a nearly exclusive concern in certain institutional perspectives on the rule of law with generic attributes and characteristics of political organizations and consequent neglect of analysis in terms of specific strategies and performances of organizations. In the current drive for democracy and development civil society and institutions within it are foregrounded as the arena, agents and instruments of the movement. Internal and external demands for good governance and legal empowerment and the need to reform the indigenous state into a system of transparent practices have placed a heavy emphasis on social institutions as autonomous actors within legal empowerment projects. It cannot be expected that pressure for regime transformation will come from the state. The most likely and most effective initiative will come from below, in civil society. (Global Coalition for Africa / Africa Leadership Forum, 1993). Society yields the spontaneous interests, demands and institutional mechanisms of legal empowerment transition. From this perspective, the state has only a limited role to play. Its function will not be to manage society's legal empowerment aspirations and activities, but to create the enabling conditions for their free play. Institutions and groups in civil society must be allowed to form and run themselves. When they begin to address longer socio-economic and political issues beyond their limited sectional concerns, or to cooperate with the state on certain matters, they should be able to do so in terms of their specific interests and competence, not as mere instruments or extensions of governments. Because of this view, the state assumes a large role in legal empowerment. It is entrusted with the task of nothing less than cultivating civil society itself through political education and mobilisation and other means. Government is not pushed to the background as society activates itself and leads the struggle for reform. Rather, the former acts on the latter, promotes and manages the participation of individuals and groups in legal empowerment. This envisages two divergent representations of civil society accompanied by somewhat conflicting conceptions of the role of the state in the transition of Greater Horn to democracy. The perception of society as producer of the spontaneous interests, demands and institutional resources of legal empowerment changes to some degree conflicts with the view of civil societies in Greater Horn as weakly developed social and institutional structures in need of cultivation and support by the state. The conception of the state as creator of the enabling environment for the free activities of

Chapter 2. Legal Empowerment of the Poor to Access Justice | 39 individuals and groups diverges from the view of government as political educator, mobiliser and democratiser of civil society. Institutional approaches to the study of legal empowerment reforms in Africa call for analysis of the effectiveness of government and non- government organisations in contributing to the reforms in terms of the generic characteristics of the organisations. The characteristics include autonomy, capacity, complexity, cohesion and a combination of these. Presumably, the more organisations and institutions are endowed with these attributes, the greater their strength and the more likely they are to promote legal empowerment transition. Let us then look at the hypotheses. Pluralism is least likely in highly personalistic, neo-patrimonial regimes where state elites have routinely violated the rule of law with impunity. The prospects for a legal empowerment transition improve to the extent that the state apparatus contains organisations that are autonomous, capacious, complex and cohesive . The prospects for legal empowerment transition are heightened to the extent that the judiciary exhibits independence by arbitrating neutrally in disputes between the executive branch and organised plaintiffs in society. The growth of foreign interventions seems in marked contrast to the limited thought and effort exerted by developers and democratisers to put the interventions in coherent theoretical or strategic perspective. One can ask - What is the overall rationality or significance of the great traffic of international programmes of empowerment and development in Greater Horn, the proliferating activities that seem to show little regard for economy of co-ordination; not to mention new norms of social engineering that seem to haunt the rural landscape indefinitely? How far and in what ways do various international agencies, programmes, mechanisms, forms of knowledge and technical assistance feed on one another in helping set the boundaries of reform? The important issues that these questions suggest are not sufficiently addressed, or even raised, in much of the current discussion of political transitions. Insofar as the activities of external agencies in Greater Horn are not understood and engaged in partly as indigenous societal potentialities developing gradually into actual structures, functions and characteristics of government and societies, their developmental impact may diminish with their proliferation. This can mean little more than a weakly coordinated multiplication of projects which have immediately recognisable or measurable effects in limited areas, but which seem to suspend rather than serve the ultimate goals of legal empowerment.

40 | Law and Development, and Legal Pluralism in Ethiopia 4. The Orthodoxy behind the Rule of Law Golub notes that the international aid field of law and development focuses too much on law, lawyers and state institutions and too little on development, the poor and civil society. As Golub observes: In fact, it is doubtful whether rule of law orthodoxy , the dominant paradigm pursued by many international agencies, should be the central means for integrating law and development . As most prominently practiced by multilateral development banks, this top- down and state-centred approach concentrates on law reform and government institutions to build business-friendly legal systems that presumably spur poverty alleviation. Other development organisations use the rule of law orthodoxy’s state-centred approach to promote such additional goals as good governance and public safety. The problems with the paradigm are not these economic and political goals, per se, but rather its questionable assumptions, unproven impact and insufficient attention to the legal needs of the disadvantaged. (Golub, 2003:3) Golub supports legal empowerment as an alternative and more balanced approach. This envisages “ the use of legal services and related development activities to increase disadvantaged populations’ control over their lives ” (Ibid ). This approach and the alternative paradigm are derived from focus on grassroots needs and activities and that can translate community-level work into impact on national laws and institutions, prioritising civil society support. This is typically the best route to strengthening the legal capacities and power of the poor, while engaging the government wherever possible and does not preclude important roles for its organs. It also addresses a central reality that rule of law orthodoxy overlooks. In many developing countries, laws benefiting the poor exist on paper but not in practice unless the poor or their allies push for the laws’ enforcement. Legal empowerment is more than an alternative to the dominant paradigm; it should be integrated into many mainstream socioeconomic development efforts that generally do not address rule of law or the legal needs of the poor. Though still exceptions, there are increasing instances of this mainstreaming taking place that benefit rights and development. This alternative approach puts community-driven and rights-based development into effect by offering concrete mechanisms, involving but not limited to legal services, which alleviate poverty, advance rights and makes the rule of law more of a reality for them. Legal empowerment differs from rule of law orthodoxy. First, attorneys support the poor as

Chapter 2. Legal Empowerment of the Poor to Access Justice | 41 partners, not dominating them as ‘experts’. Secondly , the poor play a role in setting priorities, rather than officials dictating the agenda. Thirdly , addressing these priorities frequently involves non-judicial strategies that transcend narrow notions of legal systems, justice sectors and institution building; and finally, even more broadly, the use of law is often just part of integrated strategies that include other development activities . (Ibid : 4) Legal empowerment underpins the fact that market economies require a legal order that is fair, efficient, easily accessible and predictable. This line of thought further holds that properly functioning courts and other legal institutions nurture a favourable business climate by protecting investments and by enforcing contracts and property rights. Foreign and domestic enterprises are more likely to establish and expand operations that manufacture goods and provide services under such circumstances, the reasoning goes. Among other benefits, this in turn provides jobs, increases the output of goods and services, yields a ripple effect of additional business for and employment by local enterprises that serve expanding domestic and foreign firms, brings about technology and skills transfer and increases foreign exchange reserves. Despite the drawbacks stated above, one cannot consider the Rule of Law’ orthodoxy as invariably wrong. Nor is legal empowerment a panacea to law and develo pmen t. It is also to be noted that the two paradigms are not mutually exclusive. However, rule of law orthodoxy’s many problematic features make the prevalent devotion to it a remarkable state of affairs. In numerous countries, law-oriented development aid goes mainly to a narrow range of state institutions, whereas the legal priorities of the poor often lie elsewhere. There is thus the need for revisiting the orthodoxy and look towards a paradigm shift in how rule of law integrates law and development. The Rule of Law Orthodoxy embraced by much of the international community should not be confused with the Rule of Law itself. According to the Ethiopian Constitution, the rule of law prevails where the government itself is bound by the law, every person in society is treated equally under the law, the human dignity of each individual is recognised and protected by law and justice is accessible to all. Rule of law orthodoxy , by contrast, is a set of ideas, activities and strategies geared toward bringing about the rule of law, often as a means toward ends such as economic growth, good governance and poverty alleviation. This paradigm comprises a mélange of goals, assumptions, activities and strategies. Many of these vary according to context and they are ill defined or are only implicit. The characterisation offered here, then, seeks to distil some common traits without identifying them with any one institution, project or country.

42 | Law and Development, and Legal Pluralism in Ethiopia The paradigm is not confined to the economic sphere, though that often is most salient in development discourse and among the multilateral financial institutions that today are major sources of funds for programmes. This central stream of rule of law orthodoxy considers the rule of law essential for long-term development because it provides security for foreign and domestic investment, property and contract rights, international trade and other vehicles for advancing economic growth. Although aid agencies confer with civil society in setting priorities and a few are broadening their perspectives on legal systems, it is crucial to ascertain the legal needs of the poor and the multifaceted ways in which dysfunctional legal systems perpetuate poverty. Nevertheless, civil society consultation is far different from supporting civil society to serve the disadvantaged and build their legal capacities. However, they still tend to exclude administrative agency and local government decisions that boil down to matters of law and that the poor often consider crucial matters of justice. As a strategy for presumably alleviating poverty by promoting business and investment, rule of law orthodoxy is substantially linked to globalisation. It seeks to further the national adoption of international legal standards and practices, as well as the integration of national economies into the world economy. The rule of law orthodoxy has an even wider reach, however, as a set of programmes that emphasise top-down, state-centred approaches for pursuing a diversity of goals, beyond building better business environments. It infuses many law programmes supported by donors who seek to advance the rule of law as part of democracy programmes. (Linn Hammergren, 1998; Madeleine Crohn & William E. Davis, eds., 1996). This includes courthouse construction and repair, purchase of furniture, computers, and other equipment and materials, drafting new laws and , training judges, lawyers, and other legal personnel, establishing management and administration systems for , support for judicial and other training/management institutes, building up bar associations and international exchanges for judges, court administrators and lawyers. Golub notes the following (Golub: 8, 9) key features of rule of law: A focus on state institutions, particularly judiciaries, where the institutional focus is largely determined by the legal profession, as represented by a nation’s jurists, top legal officials and attorneys and by foreign consultants and donor personnel. As a result, a tendency to define the legal system’s problems and cures narrowly, in terms of courts, , contracts, law reform and other institutions and processes in which lawyers play central roles. Where citizen engagement occurs, it usually is as a means toward the end of state institutional

Chapter 2. Legal Empowerment of the Poor to Access Justice | 43 development: consulting civil society organisations on how to reform the legal system and funding them as vehicles for advocating reform . (Katarina Pistor and Philip A. Wellons, 1999:12).

5. Reforming the Justice System for the Poor In the Ethiopian context, the justice reform focuses on capacity building for the judiciary, law reform and law enforcement. The state-centred approach concentrates on law reform and governance institutions, (Banuri and Holmberg, 1992) to build business-friendly legal systems that presumably spur poverty alleviation, good governance and public safety. The challenges of “the paradigm are not these economic and political goals, per se , but rather its questionable assumptions, unproven impact and insufficient attention to the legal needs of the disadvantaged”. (Golub, 2003:3). Ethiopia’s major laws are in the course of revision. Yet, government recognises that fragmented and piecemeal approaches in reforming and building the capacity of justice institutions cannot solve problems in relation with the justice system with a view to bringing about effective changes. The system of justice in Ethiopia is generally characterised by delays in the dispensation of justice, problems in institutional capacity in law enforcement and courts and congestion of cases. This creates obstacles in the promotion and protection of human and democratic rights as well as in the administration of justice. These problems exist mainly because of shortage of adequately trained personnel and the lack of essential equipment and facilities at both federal and regional levels. Programmes designed to bring about a fair and efficient system of justice in the interest of the people have not fully lived up to expectations. The most critical problems are the following: (MCB, 2008:5) - Acute shortage of trained professionals and inadequate qualification of existing personnel and lack of essential facilities in institutions of justice and court congestion and delays; - [problems related to] institutions providing legal education to produce competent lawyers in desired numbers; - outdated and inefficient methods and procedures of the justice system in delivering justice and inability of existing laws to fully cope with the constitution and the present state of affairs in the promotion and protection of human and democratic rights. In general, the justice system is unnecessarily costly, complex and unpredictable. Dispositions of criminal cases are protracted in violation of the speedy envisaged under the 1995 FDRE Constitution. In order to ameliorate the situation, the government has been taking measures aimed at bringing about improvements in the administration of justice. These include

44 | Law and Development, and Legal Pluralism in Ethiopia regular trainings, on-the-job and otherwise, of judges, prosecutors and other justice personnel on procedural and substantive laws of Ethiopia. Parallel measures have been undertaken aimed at raising the professional competence of the police and prisons' administration officials. Measures are also being taken to bring about a comprehensive reform and revision of the laws of the country aimed at harmonising existing laws with the Constitution. The following research questions were augured in 2005 and are still relevant today: (UN CLEP, 2006). - What reforms are necessary to develop transparent legal and institutional arrangements in which the poor have confidence, can access justice and which will generally contribute to a culture of fairness, equity and rule of law? How can improved public administration contribute to transparency and accountability and increase public trust in the formal economic system? - How can citizens participate successfully in a transparent reform process? How can their priorities, needs and concerns be heard and incorporated into actions using various tools of participatory governance? - How can dispute resolution mechanisms support poor people’s access to rights in affordable and locally appropriate ways and what special considerations should be given to indigenous peoples’ customary norms, traditions and legal structures? - What barriers (linguistic, geographic) preclude them from accessing the formal or national legal and judicial structures? What conditions (enabling environment) should be addressed to ensure success? The research was based on available literature sources in the subject matter, as well as interviews and other information gathering mechanisms deemed necessary to collect pertinent information or observations from relevant actors (including academics and representatives from civil society and government involved in the sector). Data collection methodologies focused on participatory, affordable, easy to understand and useful techniques. Stakeholders at all levels were consulted for their views, experience and inputs to the assessment process. They fully participated in the identification of lessons learned and formulation of recommendations. Information gathering and analysis was conducted in close co-ordination and consultation with all stakeholders. In order to obtain the information needed to answer the above questions, the following data collection techniques were used.

Chapter 2. Legal Empowerment of the Poor to Access Justice | 45 A series of interview instruments that reflect the range of issues and questions contained in the research were developed and administered. Web- based questionnaires were distributed to over a 350 informants. In addition to the primary data, secondary data were collected from different organisations coming from existing records, implementing partners, regional government bureaux and other organisations associated with effective formulation of legal programmes. Key Informant - interviews were held with certain knowledgeable personalities from various walks of life. Lengthy and detailed discussions were held as to their conceptualisation of the legal empowerment programme objectives, activities, effects, impacts and underlying assumptions.

5.1 Principles for a Paradigm Shift Building a system of legal empowerment programme will require a mix of features (Costantinos, BT., 1999 & Golub S, 2003). These may, inter alia, address the sovereignty of the needs and concerns of the disadvantaged and the emphasis given to civil society as well as community-based groups’ empowerment to build a cohesive and capacious society. Using whatever forums (often not the courts), the poor can best access in specific situations, encouraging a supportive rather than lead role for lawyers. It is about cooperating with government wherever possible, but pressuring it where necessary using community organising or group formation. The final strand of the paradigm shift is developing paralegal resources, integrating with mainstream development work and building on community-level operations to enable the poor to inform or influence systemic change in laws, policies and state institutions. This inevitably gives way to the reality that legal empowerment work must vary from issue to issue and even community to community. Paralegal development and law reform cut across numerous legal empowerment initiatives, but there are many exceptions to this rule and many locally determined ways of undertaking these activities. Legal empowerment programmes should take a long-term perspective: It can take at least a few years to start producing impact and even longer for that impact to broaden and deepen. A long-term approach involves building a public interest bar by supporting law school and CSO programmes that engage law students and young attorneys in legal services and that teach them the skills and perspective of development lawyering. Several questions arise from here. How do institutions and individuals teach and learn from the poor? What has to be done to see the poor as partners rather than (subservient) clients? What is required to analyse problems politically, culturally and from a gender

46 | Law and Development, and Legal Pluralism in Ethiopia perspective, rather than just legally and how lawyers can advance social change. Conversely, exposing young professionals (in various development fields) to human rights and legal empowerment considerations could expand their capacities to integrate law and development in their work. In-country and international exchanges also can open up vistas for disadvantaged populations’ leaders, CSO lawyers, law students, law professors, development practitioners and government officials to learn from pertinent experience elsewhere. Regardless of the exact nature of a legal empowerment, it can be undertaken under at least three rubrics: as aid specifically directed at legal empowerment, in conjunction with rule of law promotion or as part of mainstream development. The programme’s effectiveness will hinge not just on what work is supported, but how it is supported. Civil society organisations that show sufficient progress and potential merit ongoing core funding that enables them to pursue their own agenda in accordance with evolving circumstances and partner populations’ priorities, rather than in response to sometimes rigid donor requirements. Similarly, it is best for funding agencies to take a flexible, foundation-like approach.

5.2 Designing symmetry in rule of law and legal empowerment of the poor The best intentions of some donor and government officials notwithstanding, state institutions often are burdened by counterproductive incentives and constraints that outweigh or outlast efforts to ameliorate them. These include entrenched bureaucratic structures, inefficient use of resources, corruption, patronage, gender bias, general aversion to change and other factors that work against, rather than for, the disadvantaged. In view of the dominant paradigm’s problematic assumptions and record of accomplishment, it is best to raise the bar in deciding where and to what degree to work with state legal institutions. The political will for reform should be not simply acquiescent. It enables decision-making based on fair access to and analysis of relevant information through functional tracks, channels and both electronic and non-electronic media for information exchange. It enhances shared-responsibility among stakeholders, especially of the poor. It uses networking as learning strategies and processes through formal and informal tracks in stakeholder participation. Networking scope must widen to develop Communities of Practice (CoP) nationally and regionally in thematic and crosscutting concerns. These are women’s empowerment, feminisation poverty, education, governance, policy, civic engagement, human development, child rights and development

Chapter 2. Legal Empowerment of the Poor to Access Justice | 47 and knowledge management. CoP are freely allied information and advocacy set of contacts and forums that deliberate on specific issues to develop emerging consensus on what constitutes best practices and forums of exchange of such outcomes that can influence the individual and hence their institutions) on the thematic issues.

5.3 Reaching the Poorest of the Poor a) Advocacy : The legal empowerment project will need to intensify its advocacy efforts on the need for a national policy and legal frameworks that enable citizen’s organisations to operate fully and unconditionally. Access to resources such as land and the related need for a legal framework for establishing rights of access, use, transfer, alienation and compensation for and by women must be recognised. Land-use and land tenure by women have important linkages to food security, the need for which has been well documented. Coordination of such activities and anti-poverty initiatives (via collaboration among the public sector, the private sector and CSO partners) are important. The development of a multi-track communications strategy that enhances the capacity to articulate their perceptions and value systems, vision, mission and objectives is necessary. This enables decision-making based on fair access to and analysis of relevant information through functional tracks, channels and both electronic and non-electronic media for information exchange. It enhances shared-responsibility among stakeholders, especially of the poor. It uses networking as learning strategies and processes through formal and informal tracks in stakeholder participation. b) Learning and Knowledge Management (KM) The research has been able to list findings regarding the institutional competence and preparedness of legal empowerment to operationalise the strategic objectives. In reviewing the KM we observe the lack of programme MIS, which is essential for systematic database, learning, action and feedback that have been identified as a major weakness. Information sharing to grassroots level and the non-exploitation and limited usage of media to the desired level were also identified as limitation of communication efforts of the organisation. Several KM initiatives, though not part of an institution- wide coherent plan and targeted at satisfying the needs of only a specific department/unit. Simply put, knowledge in legal empowerment’s context is the one of most valuable strategic resources.

48 | Law and Development, and Legal Pluralism in Ethiopia c) Vibrant civil society : What do we make of the situations in Ethiopian history in which civil society, legal services and the basic capacities of the poor are torn by war, crushed by repression, stunted by severe poverty itself, or in the early stages of recovering from any of these situations? Admittedly, legal empowerment works best in the presence of a vibrant civil society and appropriate legal regimes. Is it beyond the reach of the poorest of the poor? Legal empowerment (or, for that matter, state legal institutions) should not automatically be included in the initial mix of development efforts. Sometimes basic socioeconomic recovery initiatives should be the priority. Still, despite these constraints, the building blocks of legal empowerment can be put in place. Group formation around basic socioeconomic needs can provide an entry point for mainstreaming subsequent law-oriented work. A long-term strategy of building up a rights-oriented civil society can benefit both development and human rights. Local conditions permitting, the long road toward the poorest of the poor achieving control over their lives can include introducing them to the very notion that they have rights and the ways in which those rights can benefit their daily existence. Training them regarding these matters should take account of their priorities, their levels of education and the nature of the laws most relevant to them. This generally translates into the use of interactive, popular education methodologies rather than law lectures and a focus on domestic laws rather than international human rights treaties (unless of course the domestic laws repress rather than serve the poor). Civil society organisations may play leading roles in these efforts where local conditions bar community-based groups from doing so, with a goal to build those domestic capacities. d) Customary rights and the informal normative system We should be modest about our expectations for generating and sustaining that political will where it is lacking. Even to the extent that long-term cultivation and support of local reformers in state institutions makes sense, this also weighs in favour of long-term funding of civil society forces that act on their own justice agendas, hold those state institutions accountable and help them do their jobs whenever possible. With legal empowerment’s accomplishments and potential in mind, it should be the sole focus of some law-oriented programmes and a core component of most others. This translates into substantial support for legal services and capacity building for the poor, toward the dual ends of both implementing and reforming laws. Where legal empowerment is the sole focus of a law programme, it could be organised around general themes such as gender or agrarian issues, or could more comprehensively support pro-poor legal services. Regardless, a

Chapter 2. Legal Empowerment of the Poor to Access Justice | 49 guiding principle is responsiveness to disadvantaged populations’ legal needs, rather than a top-down focus on a narrow range of legal institutions. This emphasis is also guided by the fact that domestic civil society’s home- grown analyses of problems and solutions are often better informed than those of foreign donors. As a core component of law programmes, legal empowerment can complement work with state institutions. Custom is simply the practices and usages of distinctive communities. Nevertheless, are such customs legally binding? Much of the legislation in Africa has been imported from European legal regimes that have been informed by the customs of the renaissance and enlightenment. Hence, the question is can customs, replacing the imported laws, be legal regimes, even before they are recognised by legislation or . Moreover, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious? In addition, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? The pastoralist and agropastoralist communities of Ethiopia, The Boran Oromos, The Afaar and the Somali Ogadenis have developed complex systems of local governance and legal regime called the Gaada and respectively (Legesse, 1973 & Hassen, 1990). The fact that the carbon copy national legal regimes have never been really established in these principalities reflects the central puzzle in . The iniquitous negligence to found the legal regimes on the customs, local people’s visions, aspirations and values in crafting law has indeed been overlooked. Because legal regimes in Africa are mostly migrated from European colonial powers, reforms necessary to develop transparent legal and institutional arrangements in which the poor have confidence, can access justice and which will generally contribute to a culture of fairness, equity and rule of law. The objective is to develop laws and legal regimes based on the cultures and aspirations of the Ethiopian people that can strengthen the performance of the country's justice system and promote the practical implementation of democratic and human rights as enshrined in the constitution. Hence, it is recommended that the legislature, academia and CSOs undertake a series of researches to see the relevance, depth, coverage and utility of the customary laws in all regions of Ethiopia with a view to integrate them into the mainstream legal regime. Such studies should involve a complex web of skills of legal professionals, anthropologists, sociologists, economist and demographers. They should develop research protocols that

50 | Law and Development, and Legal Pluralism in Ethiopia can address the issues of access to justice, labour rights, property rights and entrepreneurial rights under these customary legal regimes.

6. Practical Dimensions in the Empowerment of the Poor

6.1. Freedom of expression and free flow of information Empowerment of the poor envisages the freedom of expression and free flow of information. Article 29 of the Constitution of the Federal Democratic Republic of Ethiopia guaranties the freedom of thought, opinion and expression and it states that everyone has the right to hold opinions without interference; everyone has the right to freedom of expression without any interference. This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers: orally, in writing or in print, in the form of art, or through any media of his choice. Freedom of the press and other mass media and freedom of artistic creativity is guaranteed. Freedom of the press shall specifically include the following elements: prohibition of any form of censorship and access to information of public interest. In the interest of the free flow of information, ideas and opinions, which are essential to the functioning of a democratic order, the press shall enjoy legal protection to ensure its operational independence and its capacity to entertain diverse opinions. Any media financed by or under the control of the State shall be operated in a manner ensuring its capacity to entertain diversity in the expression of opinion. These rights can be limited only through laws, which are guided by the principle that freedom of expression and information cannot be limited because of the content or effect of the point of view expressed.

6.2. Entrepreneurial legal empowerment of the poor In the research stated above in Section 5 above (and whose data are still valid today), interviews were conducted with key informants from: Federal Micro and Small Enterprises Development Agency (FeMSEDA); Enterprise Ethiopia; and Specialised Financial and Promotional Institution (SFPI). When asked about what were the main impediments that hindered informal sector operators from graduating to the formal sector were the following. A taxation system that is perceived excessive and subjective : The main problem is that the taxation system for MSEs is subjective, as MSEs do not have a proper accounting system. Most of the business owners are forced to close shop when asked for exorbitant taxes. This creates and exacerbates

Chapter 2. Legal Empowerment of the Poor to Access Justice | 51 mistrust between government officials and the private sector and has a negative impact on development and poverty reduction. The availability of plots of land and premises for the informal sector and MSEs in general to produce and market their products is essential. Lack of appropriate premises tends to force entrepreneurs to operate their businesses from home or resort to unsuitable and sometimes unsanitary conditions. In spite of the establishment of FeMSEDA at national level and the ReMSEDAs in some of the regional states, there is lack of co-ordination among the various actors in the provision of BDS in the country. This has tended to result in the fragmentation and sub-optimality of various efforts as well as ad hoc interventions, sometimes encouraging rivalry between projects and institutions. In turn, this may result in the low impact of projects and inefficient use of resources, especially in terms of the sustainability of activities and programmes. Furthermore, in most cases business development services are donor or supply driven in nature; that is, they do not emanate from the perceived needs of the relevant target groups in the BDS market. This is often caused by the type of approach mounted by the service providers, which is supply driven instead of demand driven and exacerbated by the limited capacity of the service providers. Although public officials are trained to extend business development services such as counselling, training, giving credit options to entrepreneurs, this is hardly implemented. Low educational levels are characteristic of entrepreneurs who operate survival level enterprises, especially women. Unless interventions are directed at youth and school-leaving students, the existing, traditional enterprises will not move up or graduate to the upper end of MSEs. Young people, owing to their better education, can be guided, retrained and redirected to become more productive and growth-oriented entrepreneurs. Informal sector operators and microenterprises face serious difficulties in marketing their products or services. The research has revealed that this problem is often caused by the fact that these entrepreneurs produce and try to market their products around the homestead, thereby limiting their market to individual buyers or the immediate neighbourhood. Often, such practices stem from lack of information about market opportunities or access to markets. It is essential that the marketing of products be linked to quality, price and timeliness of delivery of goods and services. Overall mistrust between governments and the informal sector and private sector operators creates a perception that the government is against entrepreneurs. (Ageba & Wolday, 2004) Discussions should thus be held about good governance and encouragement of private sector initiatives by the government by providing adequate information. In order to promote the informal sector and help it

52 | Law and Development, and Legal Pluralism in Ethiopia graduate to the formal one, (ILO, 1976-1977) public officials must fight corruption, avail land, premises and working space, change the arbitrary and subjective tax system, provide adequate financial services and access to markets. In addition, entrepreneurial, managerial and other skills and coordination among business service providers and easy entry and easy exit from the informal sector is needed. (Addis Ababa Chamber of Commerce. 2001). Generally, in order for the informal sector graduate to the formal sector, legal regimes and strategies should have to build confidence, help them in defining their needs, identify interrelationships between various forms of assistance (e.g. credit, training, technology, access to information, etc) and assess their capacity for absorption.

6.3. The need for financial resources, easy entry and easy exit So far, conventional banks have not proved to be a suitable form of finance for MSEs, much less for those that are informal. This is due to a number of reasons. The Commercial Banks in Ethiopia are not keen to extend credit to MSEs because of the small size of individual loans, the high cost of administering many small loans, MSEs cannot put up the collateral requirements of banks and branch networks are generally limited to urban areas. As things currently stand, micro-finance institutions (MFIs) are the only formal institutions that are accessible to microenterprises, also to those in the informal sector. In fact, microenterprises are largely the exclusive concern of MFIs. While micro-finance institutions have been striving to expand their outreach, both in terms of the area and size of clients, their loan product development capacity is limited. A report by the Association of Ethiopian Micro-finance Institutions (AEMFI) in 2002 asserts that the loan products of the MFIs in the country are supply-driven and are offered to all clients in a generic manner, without targeting specific needs. The challenges in finance are further exacerbated by the problems in exit procedures. While it takes 16 days in average to start a business, the exit is not easy. From interviews of key informants, it was learnt that in order for someone formally registered to exit, it can take more than three or four months during which time the entrepreneur cannot venture in another business. This is mainly due to the lack of capacity of the relevant tax authorities to promptly assess the amount of tax due or other relevant information. There is serious lack of human resources and lack of data management system. There is a great need to build the capacity of ministries in service delivery. Otherwise, procedures and bureaucratic red tape becomes so cumbersome that they are discouraging and frustrating.

Chapter 2. Legal Empowerment of the Poor to Access Justice | 53 6.4. Property and labour rights in the legal empowerment of the poor Current concerns of well-being include the need to enhance productive employment and income security, the need to target rural development to limit migration flows to urban areas and to improve living standards for the rural population, and national social security system, which does not even provide adequate protection and coverage to formal sector employees. The employment and income insecurity of informal sector operators can somehow be mitigated through alternative channels or risk management mechanisms, such as savings, credit, social insurance, public works and training. In examining the legal and institutional framework of the labour market, three major issues can be raised: the need to establish linkages between the formal sector and the informal economy, the need to increase the efficiency of existing institutions, the need to improve the regulatory framework. (CSA, 1999, 2004; Tassew; Guta, & Ferede, 2005). Property and labour rights of the poor further include improving labour inspection services to prevent and avoid or detect abuses of workers’ rights. In this regard discussions should be held on how to strengthen the capacity of social partners such as workers’ or employer’s organisations and on how to extend membership to the informal sector. Coverage of risks could also be an incentive for informal sector operators to become formal. Moreover, promoting microfinance institutions (MFIs) through non-restrictive encouragement for their fast proliferation (Demeke, Guta and Ferede, 2003) is necessary. Many more efforts are required in the area of training in order to reach a good balance between labour market flexibility and employment and income security. In particular, training programmes should take into account the needs of informal sector operators by offering courses in literacy and numeracy, as most operators cannot read and write. (Amanda Perry, 2000) It is also to be noted that many unemployed people in Ethiopia are young first job seekers. Apprenticeship contracts can be a very useful way to train young persons and to facilitate their entry into the labour market. Abuses of this type of contract should certainly be avoided and this could be done inter alia by strengthening labour inspection services; at the same time, however, the conclusion of apprenticeship contracts should not be discouraged if hindered by cumbersome procedures. The social partners, for instance, could be better sensitised on the usefulness and proper use of apprenticeship contracts. One of the major areas of empowerment of the poor relates to land tenure. While inequitable land holding systems exacerbate poverty, policies

54 | Law and Development, and Legal Pluralism in Ethiopia that are susceptible to tenure insecurity and fragmentation lower the living standards and wellbeing of smallholder farmers. Respect to land rights of farmers and for the customary rights of communities to land are thus among the conditions for the empowerment of the poor. Custom here refers to certain practices recognised as legitimate by a community or a neighbourhood even though it may not be encompassed within the customary law of any native community. (Pistor and Wellons, 1999)

7. The Rights-Based Approach to Development The rights based approach to development is one of the insights that are currently informing development planning and practice. Here we recite the theory of poverty and conceptions of change that asserts that the livelihood aspect of sustainable livelihoods draws on an analysis of assets, which parallels the analysis of capital. Livelihoods depend on categories of assets: adaptive strategies, claims, access, stores and resources (intangible and tangible assets). Nevertheless, it runs the risk of being treated in the same way that gender and development was treated by many a development practitioner faced with donor requirements to include gender . The result becomes a sprinkling of the required term at appropriate intervals in project documents and a passing reference in reports; and yet it need not be so, for it is in essence a very simple analysis that should not be neutralised or made ambiguous by bureaucratic interpretations.

Rights -based enquiry and situation analysis Rights Strategic Framework – Its core mission to secure enforceable property Legal strategic analysis and labour rights, within an enabling and strategic plans environment that expands legal business opportunity and access to justice…

Evaluation Mainstreaming Institutional Plans Arrangements Managing strategic Information

Sustained Local level Implementation of Decentralised Activities Management

Chapter 2. Legal Empowerment of the Poor to Access Justice | 55 For every human being, to be able to realise their full potential, there are basic needs that require to be met. Economic empowerment, security from violence and violations and participation and identity promote social capital development and participation in community, which again allows for artistic expression and information and transcendence (spirituality). The norms and principles that societies then develop to ensure that these needs are met for everyone and the values that inform these principles are the bedrock of the modern notion of human rights. Development, which is about working with people to facilitate the meeting of these needs, necessarily involves (or should involve) a discussion centred on how these norms (rights) enable the meeting of everyone’s needs, which in turn enables everyone to fulfil their potential. When one’s rights are violated, their very dignity as human beings is violated, regardless of their sex, ethnicity, religion or age. The challenge is to move the discussion from the realm of traditional advocacy (which has a narrow legalistic approach removed from the communities) to a people centred kind of advocacy that focuses on the issues on the ground that only uses the legal provision for persuasive purposes. People know what infringes on their dignity. Working with them to have that redressed is the rights based approach. The value of this approach is in establishing their dignity as human beings, the needs that must be met for them to realise their full potential and that focusing on gender or women’s issues is not an act of charity but part of the development process of any community that considers itself democratic.

8. Conclusion Legal empowerment of the poor indeed requires a mix of features: prioritising the needs and concerns of the disadvantaged, emphasising civil society and using forums the poor can best access in specific situations. It should be integrated into many mainstream socioeconomic development efforts that are not generally addressed in rule of law orthodoxy or the legal needs of the poor. The upshot for rule of law orthodoxy practitioners is that they need to think less like lawyers and more like agents of social change. The dual changes in perspective open up vistas for law to catalyse development, breaking the programmatic isolation embodied in the rule of law orthodoxy. Hence, it is recommended that a combined legal- anthropological study into law making and enabling conditions for a self- governing and vibrant civil society be undertaken in Ethiopia. As African legal regimes are largely received from European laws devoid of local customs and values of societies, there is the need for enhanced attention to the needs and the realities at the grassroots. Since the

56 | Law and Development, and Legal Pluralism in Ethiopia early 1990s, Ethiopia has been experiencing major social, economic, cultural and political changes. Notwithstanding the remarkable successes, formidable challenges prevail as counter-productive incentives, constraints and pitfalls in state institutions adversely affect the justice system in the dispensation of justice and law enforcement. While a growing array of qualitative and quantitative research suggests that legal empowerment has helped advance good governance and development in numerous countries, law-oriented development aid goes mainly to a narrow range of state institutions. However, the legal priorities of the poor often rest elsewhere, and hence, there is a need for a paradigm shift in how to integrate law and development.

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Chapter 2. Legal Empowerment of the Poor to Access Justice | 57 Crohn, Madeleine and Davis, William E. eds. (1996), Lessons Learned: Proceedings of the Second Judicial Reform Roundtable Held in Williamsburg, Virginia, May 19-22, 1996 (Washington, D.C.: National Center for State Courts, USAID, Inter-American Development Bank, November 1996). CSA, Results of the survey on informal sector conducted in Ethiopia; Survey methods and design for collection of data. CSA, Addis Ababa,, 1999) FDRE, 1995, Article 62 Powers and Functions of the House of the Federation, Addis Ababa FDRE, Constitution of the Federal Democratic Republic of Ethiopia , (Proclamation No. 1/1995, Negarit Gazetta, Addis Ababa, 1995) FDRE, Federal Negarit Gazette. 2004. Labour Proclamation No. 377/2003. The FDRE. FDRE, Proclamation 14/1995 - House of Peoples' Representatives Legislative Procedure FDRE, Proclamation No. 187/1999 - A proclamation to make the Electoral Law of Ethiopia FDRE, Proclamation to make all rural lands public property . (FDRE, Adds Ababa. 1975) FDRE, Revised Federal Ethics and Anti-Corruption Commission Establishment proclamation, Proc. No. 433/2005 FDRE, The Constitution of the Federal Democratic Republic of Ethiopia, (Negarit Gazetta, Proclamation No. 1/1995, Addis Ababa, 1995) FDRE. Ministry of Trade and Industry. 1997. Micro and Small Enterprise Development Strategy . November. Federal Civil Servants Disciplinary and Grievance Procedure Council of Ministers Regulations, Council of Ministers Regulations No. 77/2002 Global Coalition for Africa / Africa Leadership Forum (1993), Transition To Democracy In Africa: A Cross National Study. Research Design and Methodology , (Prepared by Michael Bratton and Nicholas van de Walle of Michigan State University). Golub, Steven, (2003), Beyond the Rule of Law Orthodoxy, Carnegie Endowment Working Paper 41 Washington DC Hassen, Mohammed (1990), The Oromo of Ethiopia: A History, 1570-1860, Cambridge:10-16. ILO, Employment Growth and Basic Needs Meeting Basic Needs Strategies For Eradicating Mass Poverty and Unemployment (ILO, Geneva, 1976-1977))., Legesse, Asmerom, (1973), Gada: Three Approaches to the Study of an African Society , New York. Linn Hammergren (1998), Rule of Law: Approaches to Justice Reform and What We Have Learned: A Summary of Four Papers, USAID Centre for Democracy and Governance (Washington, D.C.: USAID, April 1998).

58 | Law and Development, and Legal Pluralism in Ethiopia Ministry of Capacity Building, Public Sector Capacity Building Program, Justice Reform Paper (MCB, Addis Ababa, 2008) Mulat Demeke, Fantu Guta and Tadele Ferede, Growth, Employment, Poverty and Policies in Ethiopia: An Empirical Investigation .” (Discussion paper 12, Recovery and Reconstruction Department, ILO, Geneva, 2003) Perry, Amanda (2000), An Ideal Legal System for Attracting Foreign Direct Investment? Some Theory and Reality , ( American University International Law Review , Vol. 15, No. 6, 1627–57) Pistor, Katarina and Wellons, Philip A. (1999), the Role of Law and Legal Institutions in Asian Economic Development : 1960–1995 (New York: Oxford University Press) Tassew, Woldehanna; Guta, Fantu; Ferede, Tadele (2005), Labour market flexibility and employment an income security in Ethiopia: Economic aspects . (ILO, Addis Ababa) UN CLEP, Concept Note, Background Paper . (UN, New York, 2006) UN Commission on Human Security. (2003) Human Security Now: Protecting and Empowering People (OUP: New York, August, 2003). UNECA, Promotion of the Informal Sector in Africa Phase II: report . (Addis Ababa, UN A, 1998.

Chapter 3

Natural Resource Contracts in Africa 1: Overview of Economic Returns and Governance

Dassa Bulcha, Chrysantus Ayangafac and Sehen Bekele 2

1. Introduction Natural resources management is critical to Africa’s transformation agenda (African Mining Vision, 2010) and sustaining the current growth trajectory by providing a base for employment, industrialization and wider linkages to the economy. For example, government revenues from natural resources (oil and mining) –a combination of tax and non-tax payments, including royalties and profits sharing– averaged 28% of GDP and 77% of total export earnings and 42% of government revenues (World Bank, 2012). They are also pivotal to repositioning the Continent in the global political economy. Various studies, however, suggest that countries with abundant natural resources, specifically mineral and fossil fuels, have lesser development outcome than resource poor countries (Karl, T 1997 and Gary, I and Karl, T 2003). Resource abundance is sometime associated with lower growth rates, greater volatility, corruption, high unemployment, income inequality, human rights abuses and civil wars (Macartan Humphreys, Jeffrey D. Sachs, and Joseph E. Stiglitz , 2007). Yet, natural resource abundance does not ipso facto lead to poor development outcomes and there is evidence that indeed natural resource abundance and prosperity can cohabitate. The reasons for this paradox have been varied. From a legal and governance perspective, it has been pointed out that in the absence of strong public financial management and institutional mechanisms to ensure transparency and accountability, natural resource abundance might lead to poor development outcomes because: malign distributive struggle for rents weakens state institutions and consolidates authoritarianism (Lane & Tornell 1996 Wantchekon & Jensen 2000); entrenches patrimonialism and rent

1 Focus of this paper is on mining and fossil fuels (oil and gas) 2 Dassa Bulcha is a Programme Analyst, Chrysantus Ayangafac is Governance Advisor and Sehen Bekele is the team leader of the Democratic Governance and Capacity Development Unit, UNDP Ethiopia. They are writing in the personal capacity and the expressed opinion does not reflect the official position of UNDP. 59

60 | Law and Development, and Legal Pluralism in Ethiopia seeking (Jensen & Wantchekon, 2004; Wantchekon & Iam, 2002; and Bratton, 1998:51–66; Bratton and Van de Walle 1997) and limit social accountability because of the availability of rent, not taxation, for service delivery (Ross 1999, 2001, 2004; Moore 2004, Smith 2004; Campbell 1993; Shambayati 1994; Chaudry 1989). It has also been pointed out that natural resource abundance might lead to poor development outcome because resource rent provides the incentive to the instigation and sustenance of conflict (Ross, 2004; Bannon & Collier, 2003; Berdal M and Malone, D M, 2000). Analytical approaches to explaining the natural resource curse have been instrumental in shaping policy interventions to improve transparency such as Extractive Industry Transparency Initiatives; Publish What You Pay, Kimberley Process Certification Scheme, Dodd-Frank Act and EU Directive on Transparency which are meant to improve resource governance, especially on transparency. These initiatives have gained attraction and many African countries are increasingly publishing their resource contracts and reflecting resource rent in the national budget (Resource Governance Index, 2013; Open budget Index 2012). The above literature and policy orientation are biased towards transparency on rent appropriation and expenditure. Policy actions are too focused on demand side interventions that encourage greater citizen involvement and participation. However, it is to be noted that availing information in the public domain is not adequate, and the presumption that relevant stakeholders will use it to pressure for change may not hold true under various circumstances. In this regard, there is emerging evidence that corruption and abuse of authority on natural resource governance occur at the negotiation stage, which is often shrouded in secrecy and devoid of robust accountability (Ossemane, 2013). The current approaches to resource curse diagnosis have largely viewed the level of beneficiation as a constant rather than a variable, thus suggesting that how much African states receive as value for resource exploration and exploitation has little or no impact on development outcomes. Yet the reality is that beneficiation varies considerably both within and across natural resource rich states over time and there is an emerging consensus that resource appropriation (taxation) is central to overcoming the current difficult financial and economic situations that some developed countries face. Varying level of beneficiation is not just an empirical fact or accident. It has policy implications and provides insights to state society relations, the quality of governance institutions and the fiscal regimes (public financial management) that may emerge in resource rich states. The conversations on the varying level of beneficiation so far focus on technical and capacity

Chapter 3. Natural Resource Contracts in Africa | 61 issues. Whilst governance has been mentioned, most invariably in composite surveys (RGI 2013), there is limited analytical examination and a nuanced perspective on the causal relationship between governance quality and the level of beneficiation. Drawing insights from new institutional economics, this chapter proposes an analytical framework to examine differentiated levels of beneficiation. The framework hypothesizes that the varying degree of beneficiation over time and space is not the result of ignorance or accident but of deliberate choices by government after careful examination of potential cost and benefits. It proposes four hypotheses suggesting that the association between regime security (tenure of office) and sustainable development could maximize beneficiation. Building on the agency theory, the explanatory framework argues that high levels of beneficiation seem to be positively correlated with strong legal and political oversight over discretionary contract negotiations. Limited restraint or accountability over contract negotiations tempts policy makers to accept unfair and ineffective contracts that provide short-term political solutions to long-term social and economic problems. 3 The next section demonstrates the potential development cost of negotiating bad contracts. Sections 3 and 4 review the existing discourse and introduce an explanatory framework to provoke and guide future research. The sections examine the notion of fair contracts, current policy orientations and government responsiveness. 2. Development Cost of Unfair Contracts Some African countries have negotiated unfair contractual terms (such as rent collation, tax on profit, local content, validity period and environmental standards), which in some instances are contrary to what is stated in their laws. 2.1. Policy consistency and predictability Until 2010, the average royalty payment on gold exports in Sub-Saharan Africa was 3% (UNECA 2012), yet some countries (e.g. Sierra Leone) 4 provided very generous concessions to foreign investors (including royalty

3 For more on political institution and development see Alence, R 2004. ‘Political institutions and developmental governance in sub–Saharan Africa’, Journal of Modern African Studies, 42(2):163–187. 4 For information see Christian Aid “Sierra Leone at the crossroads: Seizing the chance to benefit from mining” available at

62 | Law and Development, and Legal Pluralism in Ethiopia rates as low as 0.5 per cent) on mining exports. In 2011, only one of the five major mining companies operating in the country paid corporation tax. In Zambia, the Konkola Copper Mines (KCM) negotiated a secret tax agreement with government, offering it tax rates outside of the substantial law. 5 Since the beginning of its operations in Zambia, Vedanta through KCM was paying the Zambian government royalty fees of just 0.6 per cent instead of the 5 to 10 per cent industry average in developing countries (Action for Southern Africa; Christian Aid and Scotland's Aid Agency, 2007). This rate of royalty implied that, in 2006/07, the Zambian government has received mineral royalties of only US$6.1 million from KCM, while the company extracted copper ore worth over US$1 billion. The first EITI report in Zambia indicated that, between 2005 and 2009, half a million Zambians employed in the mining sector were carrying a higher tax burden than companies (Action for Southern Africa; Christian Aid and Scotland's Aid Agency, 2007). Unfair contracts might lead to poor enforcement of property rights and consistent renewal. In 2008, the government of the Democratic Republic of Congo (DRC) found none of the 61 contracts it signed over the period 1996 and 2006 to be acceptable. The Commission of Inquiry established to investigate these contracts recommended renegotiation of 39 contracts and cancellation of 22. One of the 15 mining contracts recommended for cancellation involved total exemption from royalties and corporate income tax for the 20-year life of the mine (IPIS 2008). In 2006, Liberia initiated a review of the concession agreements signed in the country between 2003 and 2006. Of a total of 105 contracts reviewed, 36 were recommended for outright cancellation and 14 for renegotiation (Ousman Gajigo, Emelly Mutambatsere & Guirane Ndiaye, 2012)

5 This breaches OECD Guidelines for Multinational Enterprises, which stipulate that 'enterprises should refrain from seeking or accepting exemptions related to taxation, not contemplated in the statutory framework.

Chapter 3. Natural Resource Contracts in Africa | 63 Table 1: Summary of Tax Regime of Some African Countries Maximum Duration of Royalty rate for Corporate Countries Mining Lease (all are Gold income tax renewable) Botswana 25 5% 25% Burkina Faso 20 3% 30% Cameroon 25 2.50% 35% Central African Republic 25 3% 30% DR Congo 30 2.50% 38% Congo Republic 25 5% 38% Gabon 25 4 %- 6 % 35% Ghana 30 5% 33% Guinea 10 5% 35% Ivory Coast 20 3% 35% Liberia 25 3% 35% Mali 30 3% 35% Mauritania na 4% 25% Morocco na 3% 30% Namibia na 3% 35% Niger 20 5.50% 35% Nigeria 25 Not Specified 35% Sierra Leone 25 5% 30% Senegal 5 3% 35% South Africa 30 0.5 %-0.7 % 37% Tanzania 10 Years or Life of Mine 4% 30% Uganda 21 3% 30% Zambia 25 5% 30% African Development Bank 2012. 2.2. Loss of government revenue Whilst commodity prices are at high levels, the rise in government revenues from natural resource extraction is lagging far behind the increase in company profits. In 2011, Zambia’s copper exports generated US$10 billion, while government revenues from copper were only US$240 million – or 2.4 per cent of export value (Action for southern Africa et al , 2007). In the same year, exports of mining products from Guinea reached US$1.4 billion, representing 12 per cent of GDP, but government mining revenues were just US$48 million, or 0.4 per cent of GDP (APP, 2013). Similarly in Tanzania, mining revenues account for less than five per cent of total government revenue, despite gold being Tanzania’s major export (Christian Aid, 2007).

2.3. Geostrategic importance to global economy A 2005 review of trends in mining, produced by PricewaterhouseCoopers (PWC), reported that while company profits soar, government revenues are less stable –in many cases they are even falling as a proportion of total sales (Christian Aid 2007). If this trend is sustained, unfair contracts would

64 | Law and Development, and Legal Pluralism in Ethiopia translate into weak position for some African countries in the wider global development architecture and compound a situation wherein some multinational companies are more important than some resource rich countries. For example, in 2012 Shell annual revenue was US$ 467.2 billion, more than the combined GDP of Nigeria –US$ 244 .0 billion, and Angola – US$ 104.3 billion (World Bank, 2013), despite the fact that they are the 1st and 2 nd largest oil producers in the Africa. Contrary to some African experiences of securing little rents from natural resources, sales revenues from Australia’s extractive sector totalled US$ 360 billion from 2003 to 2008. Of this, the mining sector accounted for US$ 260 billion and the oil and gas sector for nearly US$ 100 billion. Total tax revenues amounted to more than US$ 53 billion from 2003 to 2008 (Stürmer, 2010).

2.4. Failing on the MDGs Measured against the evolving challenges, the development costs of bad contracts are daunting. Unfair and ineffective contracts 6 prevent a country from the full range of potential development benefits and entrenches poverty, corruption, conflicts and environmental degradation. For example, between 2010 and 2012, the Democratic Republic of Congo (DRC) lost at least US$1.36 billion in revenues from the underpricing of mining assets that were sold to multinational companies. The DRC sold some of its assets for about one-sixth of their estimated market value. The loss was nearly double the amount of the combined annual budget for health and education in 2012. For a country in which most of its population lives below the poverty line, each citizen of the DRC lost the equivalent of US$21 from the underpricing of concession assets –7 per cent of average income (Africa Progress Panel- APP, 2013). 7 There are positive signs that African governments are attempting to reverse the negative trend. For example, the government of Ghana announced plans to raise taxes on mining companies from 25 to 35% and introduce a further 10% windfall profits tax to the existing output royalties of 5% (Karweaye, 2013). Similarly, Zambia doubled royalties on copper to 6% in 2011 and Cote D’Ivoire announced plans in September 2012 to

6 These contracts are unfair because they overwhelming favour multinational companies and they are inefficient because they deprive governments of the resources they need to invest in the infrastructure, build linkages with other sectors, and enter higher value-added areas of production. 7 The value of unfair natural resource is more than the flow of aid to Africa. During 2008 to 2010, Africa received $62.2bn through aid and foreign direct investments but lost $38.4bn in trade mispricing.

Chapter 3. Natural Resource Contracts in Africa | 65 introduce a 19% windfall profit tax on their gold miners by 2013 (Reuters, 2012). The new 19% windfall tax is estimated to yield some 40 billion CFA francs ($79.1 million) in additional income to the state annually. South Africa, home to the greatest mineral wealth in the world, estimated to be worth $2.5 trillion, is considering imposing a swinging 50% windfall tax on mining ‘super profits’ and a 50% capital-gains tax on the sale of prospecting rights (Afsarul Quader, 2012). In 2012, Botswana required De Beers to relocate its sorting operations from the United Kingdom to Botswana, thus transferring a US $6.5 billion per annum business and associated jobs to the country (Hlatshwayo, 2012). Africa is not the only one rethinking; some developed countries such as US, Israel and Australia have done so as well (Afsarul Quader, 2012).

3. Explaining Unfair Contracts: A Review of Current Policy Orientations In some policy circles, there is an orientation that the degree of beneficiation from concession contract is a result of government’s capacity to negotiate and associated exploitation and production cost. It has been noted that some developing countries lack robust specialized knowledge, technical expertise, and the necessary resources to navigate complex contract negotiations vis-à- vis multinational corporations. The latter are better resourced and skilled; have direct access to external networks of experts; have more coherent negotiation strategies and goals; and may use information asymmetries and loopholes in the legal or regulatory frameworks to obtain short-term advantages (Vale and Humboldt-Viadrina, 2012). Against this backdrop, policy actions and programme support have focused on enhancing the capacity of government with regards to information on mineral potential, existing infrastructure, stable legal and fiscal framework, which includes a mining code, contractual stability, a guaranteed fiscal regime, profit repatriation and access to foreign exchange, and auditing. 8 Some of these policy actions have been justified by the desire to create friendly environment for foreign direct investment. In Africa alone, 35 countries produced new mining laws during these two decades. In every

8 See the following capacity support programmes; African Legal Support Facility (ALSF), African Center for Economic Transformation (ACET); International Development Law Organization(IDLO); International Senior Lawyers Project (ISLP); Norad - Oil for Development (OfD); Pan African Lawyers Union (PALU); Revenue Watch Institute (RWI); UNDP – Regional Project for Capacity Development for Negotiation and Regulation of Investment Contracts and World Bank – Extractive Industries Technical Advisory Facility (EITAF).

66 | Law and Development, and Legal Pluralism in Ethiopia case, the laws led to fewer restrictions on foreign investors and lower tax and royalty rates for companies (Ousman Gajigo, Emelly Mutambatsere and Guirane Ndiaye, 2012). However, there is emerging evidence which questions whether offering incentives to business is worth the loss of revenue that it implies. A study by McKinsey concluded that incentives are often ineffective, and points out that while FDI brings significant benefits such as employment and technology, incentives, such as tax holidays, subsidized financing or free land, serve only to detract value from those investments that would likely be made in any case (Christian Aid, 2007). There is evidence that some developing countries that do not offer incentives do not suffer a shortage of investment. For example, despite attempts by the government to get more revenue from the sector, multinational mining companies are still keen on Ghana's prospects (Mthembu-Salter, 2013). Norway has imposed a 78 per cent flat tax on oil and gas operators and not one company has opted out (Rowan, C 2013). Botswana is regarded as a prime African mining investment country but does not have a particularly favorable tax regime (Ousman Gajigo, et al 2012). Botswana outperforms Australia with regards to attractiveness of government policies and regulations for the extractive sector, but receives lower development benefits from its natural wealth (Stürmer, 2010). Capacity constraints and investment climate are merely part of a wider context and not the drivers or incentives that animate and shape the negotiation process. A country’s strategy in the upstream, including the level of beneficiation, is not entirely determined by capacity and production cost alone. Too much focus on capacity suggests the lack of agency on the part of government. Government is not a victim. It is an active player in the negotiation process. Thus other factors internal to the country’s politics and other idiosyncratic drivers of state choices, including the characteristics of different political systems should be explored (Nolan and Thurber 2010, 38; and Muttitt 2005).

4. Government Responsiveness and Fairness of Natural Resource Contract Below is an analytical prism to frame a possible explanation of how governance quality affects the level of beneficiation. The critical factor in the causality is how institutions are configured to constrain the executive’s discretion over contract negotiations. Maximizing beneficiation from natural resources depends on a political and institutional environment that aligns regime security with sustainable development outcomes. The closer the alignment, the more likely governments are to endorse a fair and efficient

Chapter 3. Natural Resource Contracts in Africa | 67 contract. Conversely, where the immediate incentives of governments are at variance with long term development objectives, the process of negotiating resource contracts would be vulnerable to low level of beneficiation because of political opportunism due to weak governance institutions.

Figure 1: A causal framework explaining governance quality and beneficiation

regime security governance quality government revenue

- The independent variable is tenure of office. The proxy for this variable is the measure of perceptions of the likelihood that the government will be destabilized, not re-elected or overthrown by unconstitutional or violent means. Tenure of office is a contextual or antecedent condition whose presence activates causality. Without it causation operates more weakly or not at all. - The intervening variable is governance quality: The proxy for governance quality is voice and accountability. The degree to which government is subjected to both horizontal and vertical accountability on contract negotiations. - Dependent variable is the amount of government revenue from natural resources. This explanatory framework is grounded on the premise that natural resources are owned by the people (principal) and government is a trustee or agent which manages the resources for the former’s benefits. Both principal and agent are maximizers because people want more development and government wants regime security. This evokes the issue whether it is imperative to put in place mechanisms and incentives that align the interests of both. Leaders are ready to sacrifice beneficiation to strengthen their grip on power, if they face a trade-off between maximizing beneficiation and consolidating their power, they will opt for the latter. (Johns Luong. P & Weinthal 2001).

68 | Law and Development, and Legal Pluralism in Ethiopia Figure 2: Framework on accountability on the negotiations and award of Contracts

Wider particpation (elections, CSO )

Judiciary Ombudsman/ audit Executive

Parliament

Against the backdrop of limited , parliamentary oversight and weak institutions and inadequate popular consultation or involvement in the contract negotiations process, governments facing imminent threats to their hold on power would accept bad contracts because it affords them the much needed resources to placate the specific groups most pivotal to their survival (Ames 1987; Levi 1988: 32–3). The energy development strategies in petroleum-rich Soviet successor countries suggest that state leaders chose strategies in such a way that they provided them with sufficient resources on the one hand, to sustain the cleavage structure that offered their main base of support and on the other hand, to placate or overpower rival cleavages that posed a challenge to their rule (Jones Luong and Weinthal 2001, 2010).

Figure 3: Probable revenue and development outcomes of the interactions between office tenure and governance quality Governance quality Low accountability High accountability H1 : Very low level of H2: Fairly good level of Uncertainty beneficiation but high level beneficiation but uneven Political (short) of corruption and uneven development outcome across Security development outcomes space and different political constituencies

H3: Fairly good level of H4: High level of Certainty beneficiation; high levels of beneficiation and strong (long) corruption; strong sustainable development patronage/rent seeking and outcomes probable slow improvement in development

Based on the analytical framework, four hypothetical cases can be inferred. The optimal scenario is H4 . Countries with strong democratic institutions

Chapter 3. Natural Resource Contracts in Africa | 69 that ensure alignment between governments’ political incentives and developmental objectives would be expected to produce fairer contracts and sustainable development. 9 Some governments treat the governance of natural resource wealth as a state secret and citizens are informed of decisions taken by governments on a ‘need to know’ basis – and the assumption was that they needed to know very little (APP, 2013). Complex negotiation process between government agencies and foreign investors are held in secrecy. In some instances the executive is the only player in the institutional architecture for resource governance, especially with regards to resource appropriation. In these instances, government is usually represented in the negotiation process by the natural resource national company which reports directly to the executive without any oversight over its activities. Whilst in principle institutions like parliament are supposed to provide oversight over government’s appropriation and spending, in these instances they exercise little oversight over these companies. Limited restraint or accountability on the executive’s discretionary authority to negotiate resource contracts is further compounded by the limited delineation of the role of these national companies in the up and down stream sector. Some of these companies are responsible for regulation, policy development, selling the government’s share of oil output (both in the international market and to national market), and for transferring the resulting revenue (after accounting for expenditures) to the treasury; production, managing government stakes in multinational companies involved in downstream activities and in non—production elated activities and other interest in joint ventures (Cossé, Stéphane 2006 and Chrysantus Ayangafac, 2008). It has been suggested that the primary motive for such institutional configuration might be the need to offer greater autonomy to pursue favored political goals (Guriev et al . 2009). McMahon (1997) argues that the negative impact of resource boom on governance and human security is accompanied by the irreversibility of government expenditure informed by political rationalities rather than public good or good economics. For example, in a bid to placate urban consumers who are politically more threatening than their rural counterparts, resource rents are used to protect manufacturing industries, for import substitution strategies and to expand the

9 For similar thinking on political survival and development outcomes see Bueno de Mesquita, B. and A. Smith (2009): Political Survival and Endogenous Institutional Change, in: Comparative Political Studies 42:2, pp. 167-197.

70 | Law and Development, and Legal Pluralism in Ethiopia civil service, all of which eventually become uncompetitive (Auty 1998; Bates 1981; Chrysantus Ayangafac, 2008).

Figure 4: Correlation between political security, governance quality and level of beneficiation 10 Country Political Governance Government revenue from natural security quality resources

2007 2008 2009 2010 2007 2008 2009 2010 2007 2008 2009 2010 Cameroon 217.1 321.3 1230.6 1119.4 -0.38 -0.59 -0.37 -0.60 -1.03 -1.05 -1.03 -1.05 Chad 1183.2 1908.8 614.8 0.25 0.25 -2.04 -1.63 -1.48 0.13 -1.47 -1.41 -1.36 DRC 404.7 516.1 255.2 875.9 0.30 0.30 -2.03 -1.95 -2.18 0.13 -1.45 -1.43 -1.43 CAR 3.5 12 14.06 19.8 0.32 0.32 -1.83 -2.05 -2.17 0.14 -1.01 -1.03 -1.13 RoC 2443 4608 2294 3195 0.27 0.27 -0.71 -0.19 -0.24 0.14 -1.16 -1.07 -1.03 Source: World Bank Governance Indicators and EITI Reports

The above table and the graphs hereunder suggest that there seems to be a positive correlation between regime security, governance quality and level of government revenue. In the context of political uncertainty or instability, lack of institutional restraints has led to the acceptance of unfair contracts. Against the backdrop of increasing political instability in countries that are heavily dependent on natural resource rent for government revenue such as Chad (80%) (Chrysantus A, 2009 and Denis M T, 2011), Cameroon

10 Estimate of political security and governance quality ranges from approximately - 2.5 (weak) to 2.5 (strong) governance performance).

Chapter 3. Natural Resource Contracts in Africa | 71 (Chrysantus A. 2008); Gabon (Yates D A 1996), Central Africa Republic, Republic of Congo (Pierre E and James R, 2004) the incumbents were able to sustain and entrench their regimes through rents accrued from oil sale.

Political stability/regime Governance quality security 0.5 0.5 0 0 -0.5 -0.5 -1 -1 -1.5 -2 -1.5 -2.5 -2 2007 2008 2009 2010 2007 2008 2009 2010

Cameroon Chad Cameroon Chad DRC CAR DRC CAR RoC RoC

A perusal of the indicator on institutional and legal setting shows that some countries that fared poorly on this indicator registered poor scores on voice and accountability and political stability according to the World Bank governance indictors. In 2011 , Revenue Watch and Transparency International reported that four African state -owned companies: GEPetrol (Equatorial Guinea), Sonangol (Angola), NNPC (Nigeria), Société Nationale des Pétroles du Congo (SNPC, Republic of Congo) performed badly with regards to reporting on anti-corruption practices. Three African companies –

72 | Law and Development, and Legal Pluralism in Ethiopia NNPC, GEPetrol and SNPC – registered the lowest score on institutional disclosure. Angola and Equatorial Guinea, two of the region’s most resource-dependent countries, do not require any reporting on the oil, gas or mining sector (APP, 2013). The 2013 Resource Governance Index shows that while no African country earned an overall satisfactory score, Ghana, Liberia, Zambia and South Africa received above-average marks for mining sector governance. In contrast, South Sudan, Zimbabwe and Equatorial Guinea received failing scores. Tanzania, Sierra Leone, Guinea and Gabon are identified as having weak resource governance system (RGI, 2013). A key component of Norway’s success in managing its petroleum has been the clear separation of powers between parliament (legislative), the Ministry of Petroleum and its Petroleum Directorate (regulatory), and Statoil (operational). The Ministry of Petroleum has overall responsibility for managing petroleum resources in accordance with the mandate established by the Parliament (Ryggvik. 2010). The legislature creates the framework for the oil and gas sector by: passing legislation and other instruments; debating executive branch proposals; and revising and approving major development projects. An independent Auditor General’s Office reports to the legislature. It also conducts regular financial and performance audits of all government accounts and state-owned enterprises and monitors management of state interests in national companies.

5. Recommendations Further research is needed to test the proposed analytical framework and hypothesis. Current knowledge on the legal and governance quality on the fairness of resource contract is scanty. The advantage of the proposed framework is that is affords a prism within which institutional political analysis can be undertaken to programme design on capacity support to natural resource contracts. Transparency is on the rise in Africa. Many countries are now making their resource contracts public and accessible and some of them are pledging compliance to the Extractive Industries Transparency Initiative (EITI ). However, there is far too much emphasis on openness. There should be a concerted shift of focus from simple reporting to broader issues of accountability. Improved accountability requires the development of new laws and capacity support to enhance vertical and horizontal oversight over the executive’s authority to endorse contracts. Natural resource law and policy needs to be clear on separation of: ownership and control, responsibility over policy, regulatory, management and commercialization. Parliament should be empowered legally to scrutinize

Chapter 3. Natural Resource Contracts in Africa | 73 contracts before they are endorsed by the executive. As all government action, contract should be subjected to judicial review. There should be legislation that establishes clear fiscal policies, contractual arrangements and regulatory regimes. Legislation should also establish the legal threshold (maximum and minimum) for beneficiation. Governments ought to seek consent of parliament to negotiate below the threshold. The ombudsman should be empowered to investigate constituent complaints, and audit agencies should be entrusted with the task of determining not only whether funds were spent appropriately, but also whether governments have secured a fair value. Moreover, there is the need to enhance access to information and improve knowledge management on contract issues. Governments should not only publish contracts, they should simplify them and elaborate on the contractual process. Transparency of the negotiation and contractual process is as important as the content of the contract.

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74 | Law and Development, and Legal Pluralism in Ethiopia Bratton, M & Van de Walle, N 1997. Democratic experiments in Africa: regime transitions in comparative perspective . Cambridge: Cambridge University Press. Bueno de Mesquita, B. and A. Smith (2009): Political Survival and Endogenous Institutional Change, in: Comparative Political Studies 42:2, pp. 167-197. Callick, Rowan (2013), China mine interest poses a challenge for some nations http://www.resourceintelligence.net/china-mine-interest-poses-a-challenge-for- some-nations/ Chaudry, K A (1989). The price of wealth: business and state in labor remittance and oil economies. International Organization, 43:101–145. Christian Aid (2007), A rich seam: who benefits from rising commodity prices ? Available at . Accessed on 19/5/13 National Advocacy Coalition On Extractives (NACE), 2009 . “Sierra Leone at the crossroads: Seizing the chance to benefit from mining” , March 2009. available at . Chrysantus Ayangafac (Ed), 2008. Political Economy of Regionalisation. Institute for Security studies Monograph 155. Cossé, Stéphane (2006), Strengthening Transparency in the Oil Sector in Cameroon: Why Does It Matter? IMF Policy Discussion Paper PDP/06/2. De Mesquita, B, Bruce, S, Alaistair R, M and Morrow, J D 2005. The logic of political survival. Cambridge, Mass: MIT Pres. Denis M T (2011), “Weak States and Successful Elites: Extraversion Strategies in Africa” available at . Gary, I and Karl, T (2003), Bottom of the barrel: Africa’s oil boom and the poor. Baltimore: Catholic Relief Services. Guriev, S. et al. (2009): Determinants of Nationalization in the Oil Sector: A Theory and Evidence from Panel Data.”Available at . Accessed 17/4/13. Hlatshwayo, Zanele (2012), “Africa: Time to Improve State Participation in Africa's Extractive Industries” available at . Accessed 19/5/13. Humphreys, Sachs, and Stiglitz (2007), Escaping the Resource Curse (New York: Columbia University Press). Hundie Melka, The extractive industry in Ethiopia and efforts made to join & implement the EITI in Ethiopia. available at .

Chapter 3. Natural Resource Contracts in Africa | 75 International Peace Information Service (IPIS), 2008. Janelle Plummer “Diagnosing Corruption in Ethiopia Perceptions, Realities, and the Way Forward for Key Sectors” World Bank, 2009. Jensen. N & Wantchekon, L (2004), “Resource Wealth and Political Regimes in Africa”, Comparative Political Studies ; pp. 816-841. Jones Luong, P. and Weinthal, E. (2001): Prelude to the Resource Curse: Explaining Oil and Gas Development Strategies in the Soviet Successor States and Beyond, in: Comparative Political Studies 34: 4, pp. 367-399. ______(2006): Rethinking the Resource Curse: Ownership Structure, Institutional Capacity, and Domestic Constraints, in: Annual Reviews of Political Science 9, pp. 241-263. ______(2010), Oil Is Not a Curse. Ownership Structure and Institutions in Soviet Successor States , Cambridge: University Press. Karl, T (1997), The paradox of plenty: oil booms and petro–states. Berkeley, CA: University of California Press. Karweaye, Seltue R. (2013) “Why Liberia Must Renegotiate, Revoke, or Cancel Disadvantageous - The Case of LB Oil BLOCK 12.” FrontPage Africa . April 15,2013. . Accessed 19/5/13. Muttitt, Greg (2005), Production sharing agreements: oil privatisation by another name? Paper presented to the General Union of Oil Employees’ conference on privatisation, Basrah, Iraq, 26 May 2005. . Accessed 14/4/13. Nolan, P. and Thurber, M. (2010), On the State’s Choice of Oil Company: Risk Management and the Frontier of the Petroleum Industry , Working Paper #99, PESD Research, Stanford University. Ossemane, Rogerio (2013), Is the Extractive Industries Transparency Initiative Relevant for Reducing Diversions of Public Revenue? The Mozambican Experience.

76 | Law and Development, and Legal Pluralism in Ethiopia Ousman Gajigo, Emelly Mutambatsere, Guirane Ndiaye (2012), “Gold Mining in Africa: Maximizing Economic Returns for Countries” AFDB working Paper No 147- March 2012. Reuters Cote d'Ivoire windfall tax threatens Randgold expansion – CEO.Available at . Accessed 19/5/13. Revenue Watch Institute (2013), “Revenue Governance Index 2013” available at . Ross, M 2004. ‘How do natural resources influence civil war? Evidence from thirteen cases’. International Organization, Winter, 35–67. Ryggvik, Helge (2010), “The Norwegian Oil Experience: A toolbox for managing resources?” available at . Accessed 19/5/13. Sach, J and Warner, A (1995), Natural resource abundance and economic growth. NBER Working Paper 5398. Cambridge, Mass: National Bureau of Economic Research. Smith, B (2004), ‘Oil wealth and regime survival in the developing world, 1960– 1999’. American Journal of Political Science, 48(2):232–246. Simon Rees, (2013) Mining to be Ethiopian economic backbone as Allana outlines progresshttp://www.miningweekly.com/article/ethiopia-mining-to-be- economic-backbone-as-allana-outlines-progress-2013-03-07. Stürmer, Martin (2010), “Let the Good Times Roll? Raising Tax Revenues from the Extractive Sector in Sub Saharan Africa During the Commodity Price Boom.” German Development Institute Discussion Paper 7/2010. Vale Columbia Center for Sustainable Development and Humboldt-Viadrina School of Governance, (2012), ‘Background Paper’, Second Workshop on Contract Negotiation Support for Developing Host Countries, 18-19 July 2012, Columbia University, New York. . Wantchekon, L and lam, R (2002), Political Dutch disease.Available at .Accessed 16/3/13. World Bank (2012), “Africa’s Pulse: Oct. 2012 vol. 6. World Bank (2010), “World Bank Governance Indicators: available at . Accessed 19/5/13. Yates, Douglas A (1996), The Rentier State in Africa – Oil Rents Dependency and Neocolonialism in the Republic of Gabon . Asmara: Africa World Press.

Chapter 4 The Future of Law and Legal Institutions: Some Reflections on Justice Strategy Making

Sam Muller ♣

1. Introduction: Why Think about the Legal Future? In this fast changing volatile world of today, law can be an important foundation for stability and prosperity. A well functioning legal system creates more predictability and certainty, on the basis of which citizens and their organisations can regulate their lives better. However, one of the key features of life today is that life is more interconnected than ever. Ideas from one place quickly travel to another place. Economic, political and social events in one country can quickly spill over into others. This interconnection also applies to the justice sector. A legal system no longer operates in isolation (if it ever did). Laws in one country can affect those in another. Justice challenges in one country can quickly become challenges in another. Shaping and maintaining a solid and effective justice system that properly serves its clients – citizens and their organisations – is thus both more important and challenging than it once was. This requires adequate planning over a longer period, knowledge of trends, the ability to assess threats and opportunities, and a good capacity to adapt, innovate, and ‘grow with the flow’. Such proactive pursuits envisage an approach to legal system development and management that goes beyond simply debating or commenting on the next law or judgement. If this is true for all nations that aspire to achieve stability and prosperity for their citizens, it gets a special meaning for nations like Ethiopia. In this chapter I will outline one of the instruments that HiiL (Hague Institute for the Internationalisation of Law) has developed as part of an effort to build an art of what we call ‘justice strategy’ making. This strategy

♣ Dr. A.S. Muller is director of HiiL (Hague Institute for the Internationalisation of Law) – innovating justice . The author would like to recognize the contributions of Stavros Zouridis, Laura Kistemaker, and Morly Firshman, with whom the Law Scenarios to 2030 were developed. 77

78 | Law and Development, and Legal Pluralism in Ethiopia envisages a justice sector that knows what is going on, that can on that basis develop good and timely plans, that can innovate when needed, and can implement plans effectively. This sounds like a neat, linear effort, with clear steps that follow each other. Anyone who has ever worked in an area of change management or has undertaken efforts toward societal change understands that such clear linear steps are too simplistic. This chapter is about the first step in justice strategy making: knowing what is going on.

2. The Need for Strategic Thinking about the Future of the Law In a workshop we did with the European Data Protection Supervisor we were shown the power disequilibrium between his office and private holders of data like Google, Microsoft, and Facebook. The mighty EU could not just regulate. The Supervisor had to convince, negotiate, ask, and convince them to regulate with him. On its website, the multinational Unilever features its Sustainable Living Plan: a plan to reduce its environmental footprint and raise its positive societal impact, for itself and all through its supply chain. You can see from its website that Unilever unilaterally proclaims clear standards relating to the environment, labour rights, etc., to which it will hold itself, and it also shows to what extent it is meeting those standards. In the fall of 2012 the biggest newspaper in The Netherlands featured on page 1 a plan by Germany and France to re-establish passport control in the EU. The British Sun of that same day reported on a conference held in Brighton on reforming the European Court of Human Rights: according to the Sun it had failed because it left way too much power with the court. “Should Britain now withdraw from the Council of Europe altogether?”, it asked. In the mineral extraction industry, a group of states, civil society organisations, and international organisations have launched a number of joint initiatives to ensure that mineral resources are not used to fuel wars and other forms of widespread violence. This is the law of the future. We should be devoting much more time to strategic thinking about the law of the future and on innovating the justice sector based on that. But predicting the future is impossible. There are too many examples around us where that failed. What we can do is work on preparedness. I would argue that governments, international organisations, business, and NGO's should institutionalize thinking about future law challenges much more into their work processes. We can then work on more robust strategies and deliberately build more room for justice innovation into our organisations. This can preclude nasty surprises and save costs.

Chapter 4. The Future of Law and Legal institutions | 79 I would also argue that our current internationalized and IT connected world offers much more room for justice innovation than is now used. In short: there is a need and there are opportunities.

3. Existing Trends in Impact and Uncertainties that Challenge Lawyers The Law Scenarios to 2030 that we developed are a starting point. 1 The scenario method, developed in business and the economic field, allows us to immerse ourselves in ‘what ifs’: worlds based on certain high impact, high uncertainty factors emerging, in which one can test the robustness of one’s current strategies and adapt if needed. A number of things are needed for a good scenario exercise. Firstly, a good sense of the existing trends in a particular field is needed. Secondly, one needs to be able to single out the few trends that have the highest impact, depending on whether they unfold in one direction or another. Thirdly, we need to have a strategy that can be tested in the different scenarios that emerge, assuming that a trend develops in one direction or another. These requirements correspond to a number of challenges for lawyers. Looking for trends is quite normal in business and economics, but it is not something that lawyers concern themselves much with. Lawyers rarely have a broad and explicit strategy which goes beyond strategies in relation to a case or a proposed law. The law usually follows, rather than taking the lead. Ethiopia is one of the few examples with a solid background in nation-wide justice strategy making and implementation. It would seem, however, that most of the strategy making understandably takes internal factors into account. By opening up to international trends and uncertainties, a country’s national legal environment can be made more robust and can also more deliberately contribute in shaping the international environment.

1 See .

80 | Law and Development, and Legal Pluralism in Ethiopia 4. Law Scenarios to 2030: Global Constitution, Legal Borders, Legal Internet and Legal Tribes The Law Scenarios to 2030 are based on 14 international workshops, over 8 think pieces by thinkers from many different fields, and on an international conference held in the Peace Palace in November 2011. 2 They are based on two big high impact – high uncertainty trends that our research sees in the global legal environment. Firstly, we see a movement from a predominantly national to a predominantly internationalised legal environment. The uncertainty is: will that continue? Or will the brakes go on internationalisation? Will borders make a come-back? Secondly, we have all seen, in different areas, the emergence of mixed public-private regimes or even predominantly private rule regimes. Here too, we can ask the question: will this continue? Will the private realm slowly take over? Or will we see the comeback of the state? With these two trends – of which we do not know how they will develop – we can build four worlds that we may be faced with, depending on which particular forces are dominant. Again: these worlds are not predictions. All they do is show what movements are caused by the two most high impact – high uncertainty factors we see in the global legal environment of today.

The trends are placed in the table below:

2 See Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker (editors), The Law of the Future and the Future of Law , Vol. I (2011 Torkel Opsahl Academic EPublisher; also downloadable at: ; Vol II (2012, also downloadable at: < http://www.fichl.org/law-of-the-future-series/>. See also Sam Muller and Stavros Zouridis (editors): Law and Justice: A Strategy Perspective (2012 Torkel Opsahl Academic EPublisher (also downloadable at: . More trend research was done on the role of highest courts , on access to justice , and on rule making .

Chapter 4. The Future of Law and Legal institutions | 81

In the following, the four worlds are described that emerge if these two trends develop in different directions and combinations. We start with the first world that called Global Constitution.

4.1. Global Constitution If the expansion of international rules and institutions continues, and most of the heavy lifting is done by states and public actors, we may expect that the global legal environment will slowly develop as the European Union has been developing: into a robust, public legal order of its own that is highly integrated with national legal systems. Under this scenario, a global constitutional order gradually emerges in 2030, slowly but surely covering most major areas – from trade, to , environment, to intellectual property, and health. Only a few areas will be untouched. For example, family law can still be fragmented and connected with local, religious, and sometimes national traditions. Systems of mutual recognition enable coordination between these family law systems. In 2030, this scenario can envisage 30 fewer states than the number of states in 2012, many of which can be reorganised federations, such as the East African Community, which binds together Kenya, Tanzania, Uganda, Burundi, and Rwanda. The scenario involves a distinctive move towards more prescriptive rules, as one can no longer do anything that is not regulated. Instead an actor must check whether what s/he wants to do fits prescribed legal parameters.

82 | Law and Development, and Legal Pluralism in Ethiopia Constitutional and (global) are likely to become hugely important fields. There will also be constant questions on areas of competence and thereby affecting the pace in the navigation of business. This scenario of a global constitution enables to gradually converge towards the rule of law as defined by the UN. The principle of – all governments are bound by law – becomes the broadly accepted principle that underlies the global legal environment. There can be two bodies at the top of the global governance pinnacle: (i) the New York based 20-member UN Security Council (with regional Councils to support it) in the area of peace and security,, and (ii) The 20-member Economic Council, based in Singapore in the economic area (broadly defined). . The latter council also can likely have regional bodies which can meet with the Economic Council once a year in the Grand Council. The narratives written in 2030 under this scenario can read as follows: The global constitutional order is not based on one document or , but rather on a series of and constitution-like documents, in which international, regional, and national regulators, adjudicators, and courts are defined and connected with each other. This multi-layered system is complex, and at times Byzantine. The notion of the state and its sovereignty remains important. But sovereignty has become a multi-layered, dispersed concept. Rule making is also organised in sectors: the IMF and central banks create rules for banking, competition regulators and financial authorities decide on market regulation, and environmental regulators build pollution standards and regulate global trade on carbon dioxide. A number of significant governance innovations are needed for all this. One such innovation – used by the now 90 democratic and developed states of the OECD – are the Inter-Parliamentary Assemblies (IPAs), which select issues that need regulation going beyond the national level and which then determine at what level legislative processes will be needed and how to ensure systemic coherence. International and regional organisations have become the specialists of Mutual Assessment Processes (MAPs). This instrument, developed by the International Monetary Fund during the 2008 – 2015 financial crises, assesses cross-border effects of national legislation and provides advice on how different national or regional legislative initiatives can reinforce each other. There has also been a proliferation of constitutional courts and they too, have developed an important governance innovation: a bi-annual gathering of the presidents of these courts, supported by a web-based information exchange system.

Chapter 4. The Future of Law and Legal institutions | 83 The Sixth (legal) Committee of the UN General Assembly has become the body in which national and regional executives discuss the need for global legislative initiatives. Businesses have therefore had to develop strong lobbies towards the different layers of government. Room for self-regulation is limited. In some areas, the global legal environment determines the broad parameters of what must be regulated, leaving the exact means and methods, including enforcement, to regional or national authorities. In other areas there are stricter controls with more precise instructions as to what must be regulated, and in some cases specifying the things that must be enforced at the global level. In the yearly Competition Assembly, the competition regulators of the EU, North America, South America, Africa, and Asia meet. Through clever information exchange systems they are able to detect misuse of market position by transnational corporations and, based on their common jurisdictional rules, take the necessary action. There are similar bodies, for example, in the areas of finance, consumer protection, and the carbon trade. Most national and regional investigators, prosecutors and regulators have established effective mechanisms through which civil society organisations and other interested parties can report abuses or violation of rules. Technological developments have made it possible for enforcement bodies to share information more easily: criminal records, tax filings, debtor records, and in some instances, even things like employment records. We now turn to the second scenario, which we call Legal Borders.

4.2. Legal Borders If the process of expansion of international rules and institutions reverses, we may instead see a thickening of legal borders, which may then be dominated by law created by national and public authorities. This global legal environment would be more fragmented; the international legal level would be less important and would, at most, include the regional level. In this scenario, narration written in 2030 can read as follows: Legislation at the national level is the primary source of rule making, supplemented by an increase in regional legislation. Regional and sub- regional organisations are now the ultimate defence against what are widely perceived to be out-of-control international institutions. The international level is for politics, not law. New global powers such as China, India, Indonesia, Brazil, Mexico, South Africa, Nigeria, and the Gulf States have fundamentally changed the nature of the debate; there is a lot less talk about ‘universality’ than there once was. With regional legal pluralism, the rule of law has been also regionally pluralised. There is a clear movement towards context-specific regional and

84 | Law and Development, and Legal Pluralism in Ethiopia national interpretations of concepts such as fundamental human rights, separation of church and state, balance of powers, and the principle of legality. Non-democratic states are a force to reckon with: the pressure that existed on them to become more democratic has slowly abated to an almost non-existent level in 2030. Existing international instruments have slowly eroded and lost significance. Regional courts – when present – have developed to keep international rules out in the interest of the region they belong to. The European Union is now ‘fortress Europe’ and has split into a loose federation of a Northern European Union of 15 and a Mediterranean Union of 17 states. It now has its regional counterparts in every part of the world. Some regional blocks have a strong ; others are dominated by politics. The African Union has fragmented in the same way. At the UN’s 80 th anniversary Heads of State meeting, the organisation was renamed the United Regions (UR). Supported by a small secretariat, the UR is the main body on all global issues of peace and security, with regions always in the lead and, little universality. In established democracies, budgets of parliaments have gone up: additional resources that keep international bodies in check. International business, which is much more open to international rules, continuously pushes towards internationalisation, but because of political reasons the law does not follow this path. The space for a business to regulate itself is limited. Through taxation rules, customs regimes, permits and other mechanisms, business has been forced into a national or regional box. The public generally believes that all wealth that is generated must go back to the state or the region. Yet many successful corporations have made their fortunes through legal tourism, taking advantage of the legal differences between states and regions. They are supported by international law firms, which have made huge investments in comparative legal knowledge and have specialised in legal tourism. Enforcement is principally a national affair. The heyday of international courts, prosecutors, and investigators is a distant memory. The maximum model at the international level resembles that of Interpol : a small secretariat, or sometimes only a confidential website – through which national authorities can ask each other questions and coordinate. International legal disputes are resolved through negotiations and mediation; there are no courts. At the national level, courts are the principal adjudicators. The third Scenario is Legal Internet .

Chapter 4. The Future of Law and Legal institutions | 85 4.3. Legal Internet International rules and institutions can also further expand as part of a process of shifting emphasis from law created and enforced by state- connected institutions to private governance mechanisms and private legal regimes. If they do, the global legal environment will be characterised by a growing body of international rules and institutions with an increasingly public-private or even solely private nature. This is the world all general I interviewed liked best. In 2030, rules – in the sense of ‘law’ – are a lot less important than they were in 2010. In the course of the first decade of the millennium the true potential of information technology and relationships supported by social media became visible. By 2030 it is engrained into the global legal environment. This has resulted in new ways of rule making, rule-enforcement, and resolving disputes. Reputation, trust, transparency, mobilisation of voice, and demonstrated effectiveness - have become the mechanisms to secure a social and political order. Formal, public rules and procedures are now considered old-fashioned, too formal, ineffective, and too uniform and inflexible. They have gradually been replaced or marginalised by standards in particular sectors by which all interested parties in that sector abide. Monitoring and even enforcement are dealt with by private regimes. The verb ‘to legislate’ is rarely used. The art is now known as R&O – Regulate & Organise. The pattern is usually the same: close to a problem or a challenge – be it local or international – a need for regulation emerges. Subsequently, actors around that problem work to build a coalition to resolve it. R&O is done through standardisation and harmonisation in production and distribution chains, benchmarks and transparency-enhancing mechanisms such as indexes, as well as transnational organisations of unions and employers who build social arrangements around specific economic sectors. A person who lives under this scenario in 2030 will tell us that democracy or accountability is less a matter of working through parliaments and more a matter of working through interest groups and loosely organised structures that operate between interest groups. Across the globe, government budgets decreased after 2020. In relative terms, parliaments have lost the most ground. National ministries and international organisations have become the intermediaries, mediators and organisers of voice and have lost their functions as implementers and principal holders of power. The 2025 summit of world leaders that gathered in New York to celebrate the 80th birthday of the United Nations was attended by the heads of 228 different states, the leaders of the 150 wealthiest companies, 125 civil society leaders, and the leaders of the most important religious and spiritual

86 | Law and Development, and Legal Pluralism in Ethiopia groups. They adopted the 2045 Good Governance Pact (GGP), which laid down 15 governance standards that the leaders consider fundamental for good governance, wherever it occurs. Clients of justice systems are constantly looking for what works best given their interests, and there are generally many options from which to select. The absence of clear, all-encompassing organising principles (like the principle of legality, the UN definition of the rule of law, or state sovereignty) makes the global legal environment complex, often confusing and in some respects unstable. But those with initiative and a co-creative spirit can shape much of their own legal environment. Most enforcement takes place outside the scope of the state. For example, global pharmaceutical corporations have not only adopted rules of conduct with regard to intellectual property, but they have also built an organisation that monitors counterfeit medicines. They closely cooperate with national law enforcement organisations. Stock exchanges – of which there are many (national, regional, and international; in different sectors, around issues like the environment) – are also an important enforcement tool. Being able to float stocks on most of these exchanges (which are constantly monitored by NGOs), and thus have access to capital, requires compliance with sector standards. While private , arbitration, and mediation by global law firms flourish, public courts only focus on core aspects of criminal and . In the European Union, concerns over access to justice have resulted in the setting up of a permit system: private parties can set up dispute settlement mechanisms but they need to comply with a number of basic requirements relating to access to justice and equality. Civil society organisations and businesses can report non-compliance to the EU Dispute Resolution Agency. The final scenario that emerges from the two high impact – high uncertainty trends has been termed Legal Tribes .

4.4. Legal Tribes There is a theoretical possibility that the process of internationalisation will reverse as private legal and governance regimes grow. The global legal environment will then become dispersed, highly chaotic, and have diminishing importance. Its integration will be regional at most and not particularly law-based. The power of states will diminish and communities will have to depend on local, private legal and governance regimes. This is, in many ways, the scenario that drifts into directions that many would consider hard to imagine and highly undesirable. There is no doubt that this one is bad for business. And yet it should be considered because,

Chapter 4. The Future of Law and Legal institutions | 87 following the logic of the two main forces at the heart of this scenario, we cannot exclude the possibility of developments in this direction. In its most positive variation this scenario of the world consists of a largely unconnected group of communities that principally govern themselves and have very little interest in the global legal environment. In a more negative variation it is an environment with many failed states. Global security is a serious issue and law has been completely abandoned as a way to achieve it. Local security, which is mainly self- organised, is the main basis for ordering. The state and the international global legal environment have withered away, mainly as a result of the security and economic crises of the first two decades of the millennium. International organisations have lost their relevance and have closed due to lack of interest and funds. Legal Tribes has not been too good to multinational companies either. Seen as remnants of failed internationalisation, to survive they had to change. Many of them have broken into national or regional components; very few have real global coverage; it is simply too risky economically, in terms of manageability, and even security. Civil society is very active, in part driven by technological developments relating to social media. But again, it deals with the local and it operates locally. Wealth, effort, labour, profit are all generated at the local level and flow back to the local level. In the course of the 2020s, borders re-emerged, albeit without the state as their main guardian. Next to state borders we also see religious borders that are organised around economic activities, ethnic borders, and political borders. Within these borders self-regulation is the norm. There is no real sense of universal human rights. Such rights only apply to individuals from one’s own community. The main role of the public realm is to deal with the link between the huge varieties of private self- regulatory regimes. But with a greatly reduced tax base, resources are limited. Hence, the main emphasis of the public realm is on security. The question of how to secure the rule of law in national, sub-national and regional self-regulatory regimes remains a concern in some parts of the world, while in others the very idea of rule of law as it had emerged in the 19th and 20th century has been completely abandoned. Nation-states and other public authorities attempt to save what is left of their authority by broadly codifying law in the area of crime, IT infrastructure, health, and, as mentioned earlier, links between private regulatory regimes. But the tax base is very narrow, so funds are limited. In the Northern European Union an association of banks has created and enforced norms with regard to credit facilities. Trade unions and employer organisations agree on Northern European collective employment contracts

88 | Law and Development, and Legal Pluralism in Ethiopia and social funds. And environmental organisations reach consensus with major corporations on the use of specific filters. But there is no universal way of doing things. Social control, groups taking justice into their own hands, and militias maintaining order are predominant in many parts of the world, whereas religious or public authorities take up these tasks in other regions. The absence of a state-like structure that provides uniform enforcement is acutely felt in the lives of many.

5. Concluding Remarks: What does this tell us? The scenarios give us a clearer idea of the different consequences that two key trends in the global legal environment –more or less internationalisation, and shifts between public and private – can have for national legal systems. The scenarios sometimes describe extremes, to make the point. In the Ethiopian context as well, one can proactively inquire into coping up strategies commensurate with the various aspects of the scenarios. In this regard, the issue that needs attention is whether the strategies have taken potential future developments into account namely scenarios such as (i) regulation without a state, (ii) serious global enforcement on taxes, trade, and other transnational economic activity, (iii) industries setting up courts; (iv) no universal human rights, (v) rule of law by non-state actors, and (vi) NGO's as rule enforcers. We have found in our work with governments and other institutions on justice strategy that they often only have very implicit strategies. So, one effect of working with scenarios is often that strategies become much more explicit. The second effect comes from working with the scenarios. If done well, they can tell us how those strategies cope with the forces captured in the scenarios. In this short chapter all I have been able to introduce is the bigger picture toward working with scenarios in the justice area. I have also provided a quick sneak preview of the forces at play in the global legal environment and what they may do. Many more scenarios are possible, based on other trends. They can be local, East African, African, business-based, or focussed on an area like access to justice or a particular industry like mining. The future is here today. It is emerging and the justice sector cannot afford not dealing with it. May Ethiopia lead the way!

Chapter 5

The Future of Law and Legal Institutions in Ethiopia

Tameru Wondm Agegnehu ♣

1. Introduction This chapter briefly explores the future of law and legal institutions in Ethiopia taking retrospective and prospective factors into account. The retrospective features relate to historical factors that led to the adoption of the laws while the prospective features focus on current and future internal and external trends that are likely to influence laws and legal institutions in Ethiopia. Section 2 briefly reviews the legal history of modern Ethiopia with particular attention to the period after the 1940s. Section 3 explores the impact of modernization and globalization on the changes that have occurred in the Ethiopian legal system. Sections 4 and 5 examine whether Ethiopian laws and legal institutions can deal with global problems and challenges, and briefly discuss the capacity of Ethiopian law and legal institutions to respond to the needs of society while accomodating international developments. Section 6 embodies an overview of the role of the legislature in maintaining the relationship between legal and societal development. The last section includes a brief discussion on the future of law and legal institutions in Ethiopia vis-à-vis legal diversities, practical realities and international developments. And finally concluding remarks are forwarded.

2. An Overview of Ethiopia’s Legal History and the Path toward Codification The future of law and legal institutions in Ethiopia is a wide topic and it would be presumptuous of me to aspire to cover it adequately within the scope of this chapter. The theme reminds me of the title which the renowned Polish author (writing in 1895) gave to his famous narative book about the

♣ LLB, Haile Selassie I University (currently Addis Ababa University ) 1972; LLM (University of Manchester, 1981); former Vice President of the Supreme Court; and currently consultant and attorney at law. 89

90 | Law and Development, and Legal Pluralism in Ethiopia time of Nero. The title of the book ‘Quo Vadis !’ in Latin means ‘where are you going?’ or wither goes thou? The phrase has an even deeper history and implication in the Christian tradition regarding St. Peter. Legend had it that as St. Peter was fleeing from the risk of crucifiction in Rome at the hands of the government, he meets a risen Jesus along the road outside the City of Rome. Peter asks Jesus, “ Quo Vadis ?,” to which Jesus replies, ‘ ’Romam vado iterum crucifigi ”, which means I am going to Rome to be crucified again. Peter thereby gains courage to continue his ministry and returns to Rome to eventually be martyred by being crucified upside down. Needless to say, the future of Ethiopian law and legal institutions will not be as bumpy or as dangerous as St. Peter’s ministry was in Rome about two thousand years ago. Nor is there reason to believe that there would be a need to declare ‘ Romam vado iterum crucifigi’ for the future course of the law and legal institutions in Ethiopia. Indeed, those who devote their lives in the service of the law in Ethiopia today would only need the courage and wisdom of the saint with no fear to be crucified in connection with their services. The above notwithstanding, the query quo vadis regarding the law and legal institutions in Ethiopia is timely and important not only to make adjustments but also not to be surprised by the sweeping impact of globalization whose speed and tempo we can hardly control. To begin with, it is clear that the future begins in the past and we can only grasp future trends in light of past developments. To do this we need to revisit the legal history of Ethiopian law and legal institutions at a glance. Ethiopia is an ancient country inhabited by diverse nations and nationalities speaking diverse languages, with diverse cultures and norms that have remained intact in many regions to this day. As a country dating back to antiquity, Ethiopia prides itself as one of the countries where the major religions of the world, judaism, christianity and Islam were introduced peacefully, relatively much before the religions spread out to many parts of the world. 1 The norms derived from the teachings of these religions have heavily impacted the moral content of the customary laws that have evolved among the followers of the religions. This is evident in the northern part of the country which developed its own written script, and where various customary laws have been reduced to writing 2. Koranic teachings have

1 Tameru Wondim Agegnehu, Yonnes Heroui, Labour Monograph, Ethioipa, Interantional Encyclopedia of laws , Kluwer Law In’l, 2004, pp. 20-22. 2 Bililign Mandefro (1969) “Agricultural Communities and the Civil Code” Journal of Ethiopian Law , Vol VI No.1, pp.145 ff .

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 91 impacted the adherents on the basis of the Islamic principle of dinu wa dawla. 3 But these diverse norms were as scattered as the country itself was for a long time. No strong central power evolved either to treat and enforce these diverse norms separately or to unite and apply them within the country. As a result, each region or cultural entity was left relatively to itself in the form of emperio in imperium until Menilik II of Ethiopia came up with a pursuits of modernizing the Ethiopian legal system at the end of the 19th century. 4 Mindful of the paucity of modern laws in Ethiopia, and in response to pressures exerted on him from within, Menilik gave way to the persistent demand and persuasion of the French Ambassador in 1908 and signed a capitulatory Treaty thus formally accepting the plague of consular that have served as harbingers of colonialism in many parts of the world. 5 Further, Menilik formally empowered his judges to apply the Fetha Negest, as a binding law and to apply French law in matters where the defendant is a French citizen or a French subject. 6 The Treaty clearly stated that the arrangements provided therein shall continue to apply jusqu’a ce que l’Empire d’Ethiopie soit en concordance avec les d’Europe 7 (i.e. until Ethiopia is in concordance with the laws of Europe). This clause in the Treaty opened a pandora’s box, enabling all resident diplomatic missions in Ethiopia to take advantage of it through the most favoured nation treatment clause, which was in those days a common feature of most diplomatic agreements 8. The successors of Menilik II were not as lucky as he was either in terms of controlling the tide of events in world politics or in winning the war of

3 “Islam din wa dawla” meaning Islam is religion and state, This principle implies that there is no separation between religion and politics in Islam. Oxford Dictionary of Politics. 4 MahtemeSelassie Wolde-Maskal (1970), Zikre Negar , A.A. pp. 68 ff. 5 Traite’ d’amitie’ et de commerce entre la france et l’ethiopie, 10 janvier 1908. See also Tameru W. Agegnehu: Tewodrose II and the the Regime of Extra- Territoriality under the Anglo-Abyssinian Treaty of 1849, JEL vol. 14 No.1 (March 1989) PP. 91-92. 6 Art. 7 7 Ibid . 8 See for instance, Art.2 of the Ethio-Austro Hungary Treaty of 1905, Art., 3 of the Treaty of 1906 between Ethiopia and Italy, Art., 1 of the treaty of 1908 between Ethiopia and Belgium, Art., 3 of the treaty of 1905 between Ethiopia and Germany, Art. 3 of the Treaty of 1903 between Ethiopia and the USA. These clauses opened the way for the application of a host of foreign laws every time a foreign citizen or subject was a defendant in a case. The law varied with the citizenship of the defendant. See also John Spencer cite at note 11 pp. 347-348

92 | Law and Development, and Legal Pluralism in Ethiopia aggression waged against Ethiopia. Ethiopia’s plea to join the League of Nations, after his death, was accepted after Great Britain agreed to drop its objection to Ethiopian membership and with a ruse support of a scheming Italy. Ethiopia was officially cited as an example of doubtful/half sovereign states along with Siam, Persia and China by various international jurists including Oppenheim in his treatise on international law published in 1905 with subsequent editions.9 As Anghie duly observes: ... [T]he colonial confrontation was not a confrontation between two sovereign states, but between a sovereign European state and a non- European state that, according to the positivist jurisprudence of the time, was lacking in sovereignty. ...The ... non-European world was excluded from international law. One such strategy consisted of asserting that no law existed in certain non- European, barbaric regions. 10 Then followed the Italian saga which led to the Italian invasion of Ethiopia at the end of the summer of 1935, manifestly making Ethiopia’s membership to the League of Nations a farce. On top of all this, the country was too decentralized with powerful local and regional chiefs or centrally appointed governors. Emperor Haile Selassae, seems to have returned in 1942 to Ethiopia with a determination to effectively abolish threats that he inherited from Menilik II and those that have evolved eventually which he found as challenges to his rule. The stern policy measures which he adopted included the following: a) The abolition of consular jurisdiction, i.e. giving an end to the intrusion of the various consular officials in the judicial activity of Ethiopia. The application of foreign laws in the proceedings involving foreigners was a constant problem for the emperor. Despite insistance by some powers for the continuation of the application of the Treaty after the defeat of Italy, the emperor remained determined not to give a new lease of life to an instrument that was an affront to the sovereignty of Ethiopia. He decided to revoke it and to address the concerns of foreign powers by putting in place a modern judicial structure and adopting modern laws. 11

9 L. Oppenheim , International Law . A Treaise, The first edition of Lassa Oppenheim's book was published in 1905 and there were subsequent editions. 10 Antony Anghie (1999), ‘Finding the Peripheries: Sovereignty and Colonialism in the Nineteenth-Century International Law’, Harvard International Law Journal , Volume 40, Number 1, Winter 1999, pp. 3, 26. 11 Judicial Administration Proclamation No. 2/1942 is the result of this exercise. See also the Anglo-Abyssinian treaty of 1942.

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 93 b) Haile Selassie was also aware of the reasons that were advanced to reject Ethiopia’s plea to join the League of Nations. These included, among others, that the country was backward, that it has no modern laws, and that it cannot discharge obligations incumbant on member states. For him the effective ways of solving these shortfalls included, among others: - Tightening centralization, and - Adopting and enacting modern laws that can take the country closer to those that are regarded as modern. 12 c) Haile Selassae heavily relied on his foreign advisors in achieving his ends, so much so that the president of the newly structured High Court, a British citizen, who was Judicial Advisor to the Emperor, was also designated as the Chairman of the Royal Consultative committee for legislations. 13 d) The Emperor was also reliant on his foreign policy advisor, the late John Spencer, an American, who had been advising him at the battle fields of Maichew, and later on from the days of his victorious return to the last days of his rule. It was through Spencer that the drafters of the Constitution of 1955 and those of the Codes were recruited. Dr. Spencer involved American lawyers, himself taking a central role, to draft the 1955 Constitution, and French scholars played key roles in the preparation of the codes on Ethiopia’s substantive laws. His French connection seems to have helped him in identifying and nominating the experts for the job. 14 e) The 1960s witnessed two major competing schools of thought of social theory and law that were competing for global influence. One of these represented by the hegemony scholars, drew on a strong tradition of critical Marxist social theory to show the combination of law to the resilience and pervasiveness of domination within and accross borders. As a periphery state of the free world , this approach to the law was neither appealing nor consistent with the political outlook and realities of Ethiopa. So its rejection was decisive and unequivocal, until it was resuciated back to life a decade and a half later after the demise of the Emperor in 1974. The second was the governance approach which promoted the concerns of the US legal realists and social pragmatists for social engineering that inspired

12 John Spencer (1984), Ethiopia at Bay (Reference Publications, Incorporated); Amharic translation: Mengistu H/M Araya & Mezgebu Mitike, A.A,(1993), p.336. 13 Administration of Justice Proclamation, 1/1 (1942) Proclamation No. 2 Art. 21 14 Spencer (Amharic translation), supra note 12, p. 339.

94 | Law and Development, and Legal Pluralism in Ethiopia the first generation of law and development scholars and practitioners in the 1960s. f) The expert drafters embarked on the drafting of laws that were set to serve as tools of social engineering while at the same time being programatic in content. These ambits, which were based on the governance approach, decisively gave more emphasis to external influence at the expense of internal realities in terms of the sources and content of the laws. 15 Contradiction between internal realities and external influences are evident mainly in certain areas covered by the civil and penal codes. The choice was either to opt for scattered, fluid and oral indegenous norms that are static and mostly local or to replace them by precise, objective and progressive norms that are likely to promote universality and modernity. The master drafter of the Civil Code encapsulates the problem posed by customary rules as follows: Customary rules used without being ‘legally obligatory’ differed from one place to another. No effort was made to group and unify them on a territorial basis. In addition, they were often elusive, since they had not been systematically described. Their scope and effect were ambiguous, and it was often unclear under what condition they would be obligatory. Incorporation of such norms was inconsistant with the progressive and programatic objective of the codification project. Their rejection was, therefore, outright. The above notwithstanding Prof. Rene David concludes that: In its organization, the concept it uses, the style of formulation of its rules, and the method of interpretation and application that it presuposes, the Ethiopian Civil Code, (read all the codes except the procedural ones), is a product of French legal science, but in terms of the content of the rules it contains, it is no more French than Greek, Swiss, Egyptian or Engilish. Necessarily, it is an Ethiopian code from end to end. g) Two bodies were entrusted by the emperor with the duty of implementing this project. The inner group was composed of foreign scholars with no or litle formal connection or knowledge on Ethiopian law. The other dubbed Codification Committee was

15 Rene David (1967), ‘Sources of the Ethiopian Civil Code’ Journal of Ethiopian Law , Volume IV No. 2 (December, 1967), pp.341-349

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 95 composed of twenty eight members out of whom there were sixteen Ethiopians and twelve foreigners. Not more than fourteen members of the Codification Committee had formal legal education and there was no one who was trained on Ethiopian law. There was no compiled Ethiopian law other than few scattered laws that were printed on the newly adopted Negarit Gazette. Nor was there a compilation of custormary laws except for the few perpared under the guidance of the Ministry of Justice for the project. h) The Emperor was presented with four codes on substantive laws and two procedural codes. These codes, which were intended to serve as instruments of social engineering, were also aimed at strengthening national cohesion and centralization at the expense of the periphery. In light of the above, it appears that the emperor was left with literally no choice other than using foreigners to draft modern laws for him and it is not surprising that the products of the experts that adhered to the prevailing governance model of social theory could have hardly been other than the codes that have by and large survived to this day. i) There is the need to take very important landmarks into consideration when we look at the laws that we have today and the laws that we think should be applicable. The questions that should serve as starting points to address these issues are questions such as what were the realities that led to the enactment of the laws that we have today? There is thus the need to refrain from making judgments in retrospect disregarding such factors.

3. The Impact of Globalization on the Ethiopian Legal System Globaliazation is defined as a process of international integration from the interchange of world views, products, ideas and other aspects of culture. Some place the origins of globalization in modernity while others push it much further back in time. Thanks to the ever growing power of information technology which fuels and propels globalization, the world is steadily shrinking into a small village in terms physical and intellectual accessibilty. Owing to the advances made in science and techonology, the human race is increasingly becoming dependant on similar products for its wear and cure. It may be difficult to say when exactly Ethiopia’s exposure to the glare of modernization began. But one can safely say that the impact of modernization gained momentum after the brilliant victory of Ethiopian forces over the invading Italian Army at the battlefields of Adwa in 1896. Among other things, Ethiopia became exposed to the wider international

96 | Law and Development, and Legal Pluralism in Ethiopia community, attracting foreign powers to open permanent diplomatic missions in Ethiopia. 16 These powers began putting demands on the protection of their subjects, and adherance of Ethiopia to the socalled minimum standards in the application of laws. These presures led to many interim measures including the recognition of consular jurisdiction and eventually the modernization of the laws through the agency of foreign experts. With the advent of the era of globalization particularly since the mid 1940’s, the pace in the modernization of Ethiopia’s laws was enhanced. The adoption of the major laws by Ethiopia in the late 1950s and 1960s is thus a simmering effect of the impact of globalization that had started much earlier through pursuits of modernizing Ethiopian laws. In adopting those laws, Ethiopia was responding to the order of the day, which called for a modern legal system, consistent with the principles of rule of law, human rights and basic principles of international law. 17 The drafters pursued the eclectic method in the preparaton of these laws whose model and content were highly influenced by the laws of many countries in Europe and America. The Maritime law, laws on obligations, laws on financial institutions, commercial and company laws, a good part of criminal law, and the laws on procedures, etc., were laws that were adopted from outside lock stock and barrel . Some of these novelties which resulted from the policy of social engineering and programatism include concepts that are on the law books but still awaiting their ripe temporal setting for application. The section on stock exchange in the Commercial Code, a good part of the law on bankruptcy, and the section of civil status and the provisions on family names in the Civil Code are good examples of such novelty. The above notwithstanding, law reform to the rule of law is still a pressing issue raised by donor societies against developing nations. Donors’ priorities in the legal domain have shifted from an early emphasis on legal education and legal reform to the general concept of rule of law. The 1980s for instance, witnessed a period when the World Bank added the rule of law to its portfolio in Africa and started to engage in judicial reform. The Bank, in its 1997 World development Report, recognized that minimal state functions included providing pure public goods , such as law and order and property rights. The rule of law was put as an imperative, for establishing a stable, predictable enviroment conforming to formal rules rather than

16 A flury of such treaties were signed with Italy 1896, Great Britain 1897, the USA 1903, Germany, 1905, Austro-Hungary 1905, Belgium 1906, etc. 17 See for instance the speech made by the Emperor on the occassion of ‘Convening the Codification Commission’ Selected speeches of Emperor Haile Selassie, 1918-1967. (One Drop Books, 2000), pp. 393-394

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 97 patronage, with the judiciary acting as a check on arbitary state action 18 . The impact of globalization is equally evident in the realm of human rights. As Roberstone rightly observed: The poineering discovery that law being a science in its content, an art only in its practice has been how crimes against humanity defined at Nuremburg, can become the key to unlock the closed door of state soveriegnty and holding political leaders responsible for the great evils they visit upon humanity. 19 According to Roberstone, cultural relativism in matters relating to human rights is the death knell of multi-culturalism. He urges that culture should not be allowed to offer escape clause for barbarism. 20 In effect, he advocates for an across-the-board adherance to international conventions of human rights thereby accepting these standards as jus cogens binding on all nations alike. The Constitution of the Federal Democratic Republic of Ethiopia accepts the paramount status of the principles of the UN humanitarian laws in the interpretation of the fundamental rights and freedoms specified in the Constitution. It has also incorporated several rights and freedoms recognized by these instruments as an integral part of the Constitution. 21 The impact of the Universal Declaration of Human Rights of 1948 is gathering momentum. The incorporation of universal standards of human rights in national laws has now become the order of the day. The same applies to matters relating to the rule of law that enhance or promote democratic system of governance. As a result, the world has now reached an epoch where the number of despots and dictators are steadily on the decline. The major complaints currently expressed by critics in Ethiopia in this regard do not relate so much to the absence or shortage of laws guaranteeing rights and freedoms, but on the narrow interpretation and at times, misapplication of these laws. The mounting pressure in this respect may, inter alia , call for a capacity building excercise of law enforcement organs including the police, the prosecutors, and the judiciary, and recheking the consistency of certain proclamations with the constitutional standards.22

18 Thomas Carothers (2006), Promoting the Rule of Law Abroad: In Search of Knowledge , Carnegie Endowment for International Peace (January 1, 2006) p. 277. 19 Geoffrey Roberstone (2000), Crimes against Humanity : The Struggle for Global Justice (The New Press) p.438. 20 Ibid , p. 439 21 Chapter III of the Constitution of FDRE. 22 The Anti-Terrorism Pro. 15th yr., No. 57 Pro. No. 652/2009 is the most cited law in this regard.

98 | Law and Development, and Legal Pluralism in Ethiopia Personal and other customary laws relating to all aspects of civil matters, not formally included in the Civil Code, were simply ignored and disregarded by a sweeping repeal provision of the Civil Code. 23 The push and pull impact of globalization from outside and prularism from within could thus become an area where apparant contradictions are manifested between modernity and the status quo. During the waves of Ethiopia’s codification in the 1950s and 1960s these contradictions were resolved in favour of modernity. However, democratic principles call for the devolution of power for the resolution of this problem. Generally, devolution is effected in the form of sharing economic and political power between the center and the periphery as a means of achieving national unity, self determination, public participation and political stability 24 . The Federal Constitution of 1995 has significantly eased this tension by adopting the Federal state structure which in addition to devolving power to nations and nationalities, gives due recognition to their cultural, political and economic rights. We have witnessed instances where fruitful results have been attained in resolving border, ethnic, and other disputes through a process of participatory democracy and restorative justice system. And it is clear that the country needs more of that, in the resolution of pending disputes, including relations between political parties.

4. The Ethiopian Legal Regime in the Context of Global Challenges Ethiopia is a country with an exposure to modern laws for over half a century. A good number or part of these laws have either been revamped or replaced in light of current developments. The country has as of 1995 opted for a composite state structure adopting a federal system with nine states comprising the federation. 25 The principle of separation of powers is duly enshrined in the Constitution, although the ultimate word in the interpretation of the Constitution resides in a body that is within the House of Federation and outside the mainstream judiciary. The Constitution

23 Art. 3347 of the Civil Code of Ethiopia. 24 Dan Juma (2008), Post-Colonial Nation-Building and Ethnic Diversity in Africa: [ in Ethnicity, Human Rights and Constitutionalism in Africa , Published by the Kenyan section of International Commission of Jurists Nairobi, Kenya], p.40. 25 According to Godfrey M.Musila “(Ethiopia) is perhaps the only one in the world to use ethnicity as the fundamental organizing princple of a federal system of government : [ in Ethnicity, Human Rights and Constitutionalism in Africa , supra note 24 ] p.66

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 99 contains standard provisions on the structure, independence and power of the judiciary. The country is signatory to several multilateral and bilateral treaties with friendly nations and international organizations. In its quest to attract foriegn investors, it has adopted a pro-investment policy supported by a liberal investment law with sufficient investment guarantee and incentives to investors. 26 Ethiopia has shown its readiness to adopt or amend laws to reflect current trends or realities in specific areas. In terms of system, Ethiopia’s laws are the result of a harmonious eclectic selection, from the two major legal systems, civil and common law. The Federal Constitution of 1995 has also given due recognition to customary laws in matters relating to personal laws and also to the social and cultural rights of all Ethiopians. 27 But the above per se are not sufficient to guarantee a system that is based on the rule of law. Generally speaking, the concept of rule of law refers to two different set of things. On the one hand, it stands for the ideal that legal norms should prevail over personal political authority, or as often formulated, a government of laws, not of men. On the other hand, it describes a specific set or entities of functioning legal institutions. 28 The rule of law with reference to the justice sector encompasses the judiciary, minister of justice, lawyers, prosecutors, prisons, human right bodies, the police, non state actors including customary or traditional forums or leaders, and civil societies among others. 29 The concerted efforts of these entities, working together or in close cooperation, is important not only to build state capacity but also to deliver ideal services to citizens for the ‘good life’. Certain impediments need to be removed to promote an enhanced cooperation or effectiveness of the major actors in the justice sector in Ethiopia. These impediments include the apparant marginalization of the legal profession, the decentralization of the office of the Federal Prosecutor, as well as the current system of judicial appointment which allows judges with spread wings to join the judiciary and fly off after garnering enough experience to join the Bar. It is high time that we reverse the current migration of lawyers from the Bench to the Bar, and make the judiciary more attractive and appealing to more seasoned and experienced lawyers. In addition, more actions toward the implementation of principles seem to be

26 Proc. No. 769/2012, 18th yr. Negarit Gazetta No.63 27 See Arts. 34(5) and 41 of the Constitution of FDRE of 1995. 28 Carothers, supra note 18, p. 253. 29 Ibid , p.276.

100 | Law and Development, and Legal Pluralism in Ethiopia expedient in order to strengthen the institutional independance of the judiciary and also to end disguised interventions by the powers that be. 30 There is, therefore, a constant need for capacity building of our legal institutions to make them ready and capable to handle challenges and problems posed by globalization. Above all, the actors should keep themselves abreast of current trends of jurisprudence in light of technological developments so as to acquire the capacity to handle subtle issues within the scope of existing laws. A good example in this regard is a case that was brought up before an Engilish court in 2010. 31 In R.V Sheppard & Whittle (2010), two Englishmen wrote a pamphlet called Tales of the Holohoax containing derogatory remarks about Jews and black people and set up a website which contained the remarks and other racially inflammatory material that was threatening, abusive or insulting towards various racial groups. The server for the website was in California, USA. The material was available to any internet user in the world. The two men were convicted on multiple counts of possessing, publishing and distributing racially inflammatory material under a Public Order Act of 1986 and were senteced to imprisonment. They appealed on the ground that the courts in England did not have jurisdiction to try the case as the material on that internet site was California, USA – the place where the web server which hosted it is located. None of the material on that website was illegal in the USA. It did not constitute a criminal offence in the USA because it was not a criminal act; and was rather protected by the ‘ freedom of speech’ protections guaranteed to all Americans through the First Amendment of the American Constitution. The court upheld the conviction and dismissed their appeal. It examined the requirements that allow a nation’s court to assume jurisdiction over internet publications. The court held that the test for jurisdiction was not based on the place of publication (‘’country of origin’’ test), nor the jurisdictions where it can be downloaded (‘’destination’’test); and it applied the ‘’substantial measure’’ test. On the facts of the case, the court found that a substantial measure of the activities constituting the crime took place in

30 See for instance the written reply dated 9/12/2004 Eth. Cal, given by Kedir Mohamed to disciplanary charge filed against him, a letter written to the court on Sene 12, 2004, by the legal department of IRCA in relation to the same case. See also Assefa Fiseha (Dr.) Some Reflections on the Role of the Judiciary in Ethiopia: Ethiopian Bar Review V.3 No. 2 (2009), pp. 124-137. Incidentally the current policy of recruitment for the public service which is based on ‘politics in command’ must give way to ‘expertise in command’ within the confines of the consociationalist approach of Art. 54(3) of the Constitution. 31 R.V Sheppard & Whittle (2010) FWCA Crim. 65.

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 101 England as the material was written, edited and uploaded from England, and parts of it were targeted specifically at the readership in the UK. This is a typical case that could arise anywhere today, thanks to the internet and communications technology. Judges should not be surprised by such novelties and expect the legislature to enact new laws every time such new cases appear but must use their creative skills to decide them based on the logic and content of the law as it was evidently clear in the above case. Forging closer relationship with courts in the neighbouring countries as well as studying judicial treaties to which Ethiopia is a party such as the COMESA Treaty, will enhance legal and judicial preparedness to deal with global problems and challenges such as this one. This is all the more important in light of Ethiopia’s role in Africa, and the status of Addis Ababa as a hub for AU, where foreign diplomats converge most often for political deliberations. The ensuing political and economic impact is likely to strengthen Ethiopia’s relationship with the rest of Africa, which could pave the way for the harmonization process.

5. The Ethiopian Legal System vis-à-vis the Balance between Societal Needs and International Developments We live today in a world where countries are bound together by a close knit web of interests, with laws and legal systems that share many commonalities. The world is shrinking from within and from without. While the endogenous factors involve national interest and common culture which call for the harmonization of national laws, the exogenous global factors nurture the political and economic relations between states towards economic and/or political integration. Ethiopia is not an island insulated from these steadily growing trends. The Constitution envisages a composite legal system co-existing together within the Federation in a manner that needs a steady response to the needs of the respective societies. Difficulties arising from linguistic diversities may put a limit to the realization of this right especially in states inhabited by several nationalities. As observed by some authors,32 the recent attempt to introduce Roman or non-Ethiopian alphabets for languages with no written script, may lead to undesirable trends associated with the impact of territorializaton of ethnicity. Many authors have observed that legal penetration in Ethiopia leaves much to be desired. And rightly so. Gerahty’s conclusion in 1969 holds true even today. It reads:

32 Emezat H.Mengesha (2008) ‘Federalism & Accomodation of Ethnicity’[ in Ethnicity, Human Rights and Constitutionalism in Africa , supra note 24] p.176.

102 | Law and Development, and Legal Pluralism in Ethiopia “the process of concentration of judicial power in the central government and of standardization of substantive and procedural rules is the main theme of development of the administration of justice in Ethiopia since 1942. This move towards uniformity caused problems especially in the lower courts where more substantive and procedural diversity existed before the process of systematization of the judicial system began”. 33 Such standardization and legal penetration require not only enactment of the laws but also envisage socio-economic conditions that facilitate their implementation and at the same time benefit from the legal regime and legal institutions. One of the challenges in this regard is the concomitant lack of penetration of the private sector outside the relatively big urban centers. In most areas outside the urban centers, the government is the major employer, and a limited number of public service entities, schools, small retail shops, etc. are the only service providers. As one expert observed, private sector growth goes hand in hand with availability of basic infrastructure such as roads, electricity, clean water etc. The expert notes that the private sector in most African countries is not strong enough to make the contribution demanded by the economy. 34 Sadly, that seems to be true in Ethiopia, according to the same expert,35 in spite of the government’s efforts to work with donor ogranizations towards improvements, This may also explain the reason why our young lawyers are having difficulties with regard to employment even though the percentage of lawyers to Ethiopia’s population is among the lowest in Africa. In principle, Ethiopia follows a dual court system comprising the federal courts and the state courts. Both systems have three levels of courts consisting of a Supreme Courts at the apex, High Courts at the middle, and First Instance Courts, or wereda courts in the regional states at the lowest levels. Material jurisdiction is apportioned between each court within the system generally on the basis of the value of the subject matter in dispute and its complexity. 36 This system of dual court structure has, so far, been unique to the United States of America. It is said that it has not taken root in any of the continental countries or elsewhere with federal forms of state structure. By a sweeping constitutional clause, the jurisdition of the federal High Courts and that of the Federal First Instance Courts outside Addis Ababa is delegated to the state courts. 37

33 Thomas Gerahty (1969), ‘People, Practice, Attitudes and Problems in the Lower Courts of Ethiopia’, Journal of Ethiopian Law , VI No.2, p. 453. 34 Shola Ekperigin, GTC, The Reporter , Saturday, September 15, 2012. Page 6 35 Ibid . 36 Federal Courts Pro. No. 25/96 as amended 2nd yr. No.13 37 FDRE Constitution, Art 78(3)

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 103 Just like the American Constitution, Article 78 of the Ethiopian Constitution only mentions the establishment of a Federal Supreme Court in which supreme judicial authority is vested. It then leaves it to the discretion of the House of Peoples’ Representatives to establish such Federal High Courts and First Instance Courts as it deems necessary either ‘nationally or in some parts of the country.’ Such courts are to be established by a two- thirds majority vote of the House and until so established, the judicial powers of the two lower federal courts are delegated to the respective state courts. To date, Federal High Courts and First Instant Courts operate at very few places outside Addis Ababa. For the rest, as stated above, federal high court jurisdiction is vested in the state supreme court, with a right of appeal to the Federal Supereme Court, and federal first instant jurisdiction is vested in the state high courts. 38 These dual judicial systems which supplement each other have so far proved effective in their endeavour to provide judicial service to society and they are made available both at the federal and state levels along with the requisite laws to dispense justice to the society at large. But, as always, there is room for improvement. This is especially true, in keeping pace with globalization where the exposure of the judiciary is limited both at the federal and state levels. It is therefore important that the judiciary open up itself to the legal profession and courts of neighbouring states with a view to sharing experiece and mutual learning.

6. The Role of Ethiopia’s Legislature in Maintaining the Relationship between Legal and Societal Development Traditionally the tasks of the legislature, a.k.a., parliament consist of (a) the legislative function of informed and competent debating and passing laws; (b) the function of government scrutiny which involves examining and challenging the work of the government; (c) enabling the government to raise taxes; and (d) declaration of war and/or state of emergency. Article 55 of the Federal Cosntitution defining the functions of the House of Representatives, by and large, reflects the traditional roles described above. The implementation of laws and policies adopted by parliament falls within the executive and judicial organs of state power, and each actor is expected to discharge its duties independently of the other within the sphere of its authorities. As a result, the direct role of parliament in the implementation of laws and polices is legally curtailed. The effectiveness of these schemes emanate from the principle of separation of powers and it also envisages the level of competence and expertise of the

38 FDRE Constitution, Art. 78(2)

104 | Law and Development, and Legal Pluralism in Ethiopia legislature to control or replace the executive organ. As the saying goes, ‘power corrupts and absolute power corrupts absolutely’. That holds true even to the organ composed of elected representatives of the people if the principles of democracy and the rule of law are to prevail. It is to be noted that recent global developments pose challenges against the traditional seclusion of parliament from the broader realities, and this calls for the active role of the parliament in matters relating to poverty alleviation and the attainment of development strategies such as the Millenium Development Goals (MDGs). This new trend partly stems from the Paris Declaration on Aid Effectiveness signed in 2005 by more than 100 countries and leading development institutions, consisting of a set of principles for reforming the delivery and management of development aid. 39 These principles call for promoting greater national ownership of development strategies and programs, for which parliamentary participation is considered pivotal. As representatives of the people, so the argument goes, parliamentarians can speak on behalf of the poor and other vulnerable groups, ensure that development plans are informed by the real priorities on the ground, adopt requisite legislation, approve budget allocations, and exercise oversight over expenditures. Parliamentary Oversight of State Policies of Foreign Aid was also a subject of a panel discussion during the Inter-Parliamentary Union (IPU) 17th Assembly, held in Geneva in October 2007. The discussion resumed during the 18th Assembly in Cape Town, South Africa, in April 2008. A resolution adopted at the meeting in Cape Town recommended that “an institutional dialogue on condition likely to make aid more effective be initiated among donor country and beneficiary country parliaments, both bilaterally and multilaterally, within the IPU in particular.” A body of experts was commissioned by the IPU to undertake case studies on Zambia and Tanzania as a first phase of project, and this was aimed at galvanizing parliaments in partner countries to play a more active role in designing and evaluating national development policies. To this end, the study has identified programmes/areas where parliaments could play active role without significant change in the framework of the law of those countries and without calling for constitutional amendments. The areas identified by the study group in this regard in those two countries, include the following: 40

39 See for example < http://www.ode.ausaid.gov.au/aid_effectiveness/> and other sources. 40 Ibid .

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 105 a) Donor-government-parliament interactions Donors in the two countries have worked with the governments to formulate comprehesive Joint Assistance Programme to strengthen national ownership and enhance the effectiveness of Official Development Aid (ODA), which in most developing counries constitutes a significant portion of the national budget. The study highlights that continued progress in this area hinges upon improved communication among all the three actors (p.8 Z&T) b) Parliament’s involvement in the donor government dialogue The dialogue must be balanced with the need to distinguish clear roles and responsibilities beteween the executive and legislative branches. c) Mutual trust and accountability To increase donor confidence in national institutions and parliament’s ability to hold the government to account, the government should provide to donors more information in the implementation of plans. Timely access to aid information, for both parliament and the general public, would also improve confidence in donor’s accountability. d) Parliament-government-CSO interactions . Increasing the opportunities for civil society organizations (CSOs) to interact with parliament, and improving parliaments willing to consult with those organizations, are important ways to enhance MP’s ability to represent their constituencies , and to ensure that the national planning and budgeting process reflect the needs of the people.

The study acknowledges that parliaments often lack the independence, knowledge and resources to perform their functions especially in poor countries. This shortcoming in capacity is often stated as a justification to limit the role of parliament in the implementation of development strategies. According to the study, the effective way to tackle this deficit include: - Continuous and constant capacity building of parlamentarians; - Parlamentary exchange with other partner and donor countries; and - Promoting the sharing of best practices and experiences. The above in my view are consistent with the provisions of Article 55 sub article 10 of the Federal Constitution. Accordingly, there is room for the Federal Parliament to play active role in matters relating to development strategies and to conduct parliamentary oversight of state policies of Foreign Aid as resolved by the IPU at its 17th Assembly in Geneva in October, 2007 within the context of of the Paris Declaration of 2005. The major handicap in this respect is lack of capacity of Parliament, that requires constant and

106 | Law and Development, and Legal Pluralism in Ethiopia sustained effort to build it. This effort may also include institutional capacity building in terms of developing websites accessible to all members, upgrading the internet literacy of parliamentarians, and also establishing a research and law review committee staffed by highly trained and skilled professionals. An active and informed parliament will be in a better position to play an effective role in terms of maintaining the natural relationship between the development of law and development of the society. There are, of course, unsettled issues relating to the nexus between development and the rule of law. Even if there is still an ongoing discourse on the role of ‘rule of law’ in development pursuits, marshalling the rule of law and development policies side by side is a relatively better option in a poor country with no adequate resource from within, with heavy reliance on external support such as ODA and with the need for Foreign Direct Investment for its growth and development. 41

7. The Way Forward for Ethiopia’s Law and Legal Institutions As stated above, Ethiopia is a composite federal state, but the legal system is not as chaotic as some critics would have liked it to be. Article 1 of the Federal Constitution specifically states that a democratic federal state structure is established in reflection of which the country is henceforth to be known as ‘The Federal Democratic Republic of Ethiopia’. All sovereign power resides in the nation and nationalities and peoples of Ethiopia and the Constitution is an expression of this sovereignty. 42 It is the supreme law of the land and ‘ any law, customary practice or a decision of an organ of a state or public official which contravenes the Constitution shall be of no effect.’ 43 All citizens, government bodies, political parties and other associations and their officials are bound by the Constitution and have the duty to ensure its observance. The idea of constitutional supremacy is also pushed a step further and an ‘ anti-coup d’etat clause, is added just in case . 44 Human rights and freedoms are declared inviolable and inalienable as ‘emanating from the nature of mankind.’ 45 All human rights and liberties enshrined in the Constitution are to be interpreted in conformity to the

41 Abdul Mohammed: In Memoriam: Meles Zenawi, Fortune , Vol.13 No. 643 P.29, see also the paper which the late PM presented at the University of Columbia, 22 September 2010. 42 Art. 8 43 Art. 9(1) 44 Art. 9(3) 45 Art. 10(1)

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 107 principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and international instruments adopted by Ethiopia. 46 The legislative power resides with the House of Peoples’ Representatives and it is the supreme legislative organ in all matters assigned by the Constitution to federal jurisdiction. Unlike that of the House of Federation, its members are representatives of the people of Ethiopia as a whole. 47 They are elected for a term of five years from candidates in each of the electoral districts by a plurality of the votes cast on the basis of universal suffrage and by direct, fair and free elections. 48 Their number shall not exceed 550, and among these, minority nationalities shall have at least 20 seats. 49 The power to enact laws in the following areas is specifically reserved for the House of Peoples’ Representatives: 50 a) Utiliazation of land and other natural resources of rivers and lakes crossing state bounderies. b) Inter-State commerce and foreign trade. c) Air, rail, water and sea transport, major roads linking states, postale and telecommunication services. d) Enforcement of political rights established by the Constitution and electoral laws and procedures. e) Nationality, immigration, passport, visa, and matters relating to refugees and asylum. f) Uniform standards of measurements and calendar. g) Patents and copyrights. h) The possesion and bearing of arms. Moreover, the Constitution empowers the House of People’s Representatives (HoPR) to enact 51 a labour code, a commercial code and a federal penal legislation. The latter can be supplemented by penal laws enacted by the states ‘on matters that are not specifically covered by the federal penal legislation.’ HoPR may be called upon by the House of The Federation to enact civil laws which the latter deems necessary to establish and sustain one economic

46 Art. 13 47 Art. 54(4) 48 Art. 54(1) 49 Art. 54(3) This policy guaranteeing ethnic representation in government and other public offices is referred to as “consociationalism” Sarah Kinyanjui & Grace Maina: Etnic Conflict in Kenya:..Ethnicity Human Rights cited above. pp 93-96 50 Art. 51 51 Art. 55(3,4,5)

108 | Law and Development, and Legal Pluralism in Ethiopia community .52 Like the federal government, states constituting the federation too have legislative, executive and judicial powers including the power to enact their own constitutions. The State Council is the the highest organ of state authority while state administration constitutes the highest organ of executive state power. States may establish units of government below the state level as they find necessary, but in doing so must accord the lowest unit of government such powers as will enable the people to participate directly in the administration of such units. 53 The states are also empowered to establish and administer a state police force and to maintain public order and peace within the state. The FDRE Constitution also provides that it ‘shall not preclude the of disputes relating to personal and family laws in accordance with religious or customary laws, with the consent of the parties to the dispute.’ 54 The Federal Constitution accords legislative, executive and judicial powers to the State Council. The legislative power of the states includes the enacting of laws on matters falling within their jurisdiction as well as drafting, adopting and amending the state constitution 55 . The Federal Constitution ordains a reciprocal respect by the federal government and State Council of their respective powers. 56 Pursuant to the enabling provisions of the Constitution, all states have now their own constitutions. These are so strkingly similar to each other and to the parent federal constitution both in text and form that one suspects an invisible hand in their writing. 57 They have also similar provisions on state administrative divisions and the organs thereof. It seems clear from the above that the devolution of power under the Federal Constitution is made in such a way as to avoid conflict and duplicty between states and the federal government. The exstensive legislative and executive power reserved by the Constitution to the federal government, as well as the reciprocal duty of the state councils to respect the power of the federal government while limiting their legislative authority to matters falling under their jurisdictions serve as a stop gap of potential conflict resulting from legal diversity. The authority vested in the House of the Federation under Article 55(6) of the Federal Constitution to ‘establish and sustain one economic community’ could serve as a vehicle to bringing about cultural and legal harmonization among the states forming the federation.

52 Art. 55(6) 53 Art. 50 54 Art. 34(5) 55 Art. 50(5) 56 Art. 50(8) 57 Tameru et al cited at supra note 1, p.33

Chapter 5. The Future of Law and Legal Institutions in Ethiopia | 109 Official occassions annually held at the federal level for honouring the Flag, annual obervannce of the nations and nationalities day, among others, where people from all regions meet and join hands to celebrate, are good gestures that pave the way for legal and cultural harmonization in Ethiopia. With regard to the future direction, we need to of course recognize the role of customary laws and legal pluralism subject to the caveat that we should not overstate the role of customary laws in total disregard of international realities, international human rights instruments and various principles enshrined in the FDRE Constitution. Or else, it would mean heading towards an isolationist policy and that may not be good for our development. The world seems to be moving to one direction. We have steadily growing inter-connections, and there is the need to find some form of compromise. It is not going to be easy to find a quick answer for all that, but a balance should be struck. We cannot live in isolation and we live not only as states but within systems of states and there are international interactions going on continuously. When we enact laws these laws will also have implications; and definitely the harmonization process, internal and external, is a reality which we cannot afford to ignore. Internal factors attract or repel international development schemes. Internal conflicts and brooding diversities likely leading to uncertain futures do not auger well for international developments. States with clean housekeeping are thus more attaractive to outsiders. Even then, recipient states do not always get what they want from donors on a silver plate. There are series of horse trading scenarios in which the recipient state usually finds itself in the conceding end. For example, would the US, which often demands that other states introduce democratic regimes, ever agree to EU’s demand that Turkey should abolish the death penalty as a condition for its accession to the EU? Turkey may have no choice other than to concede, but under such circumstances, the US loses or gains nothing by opting for either.

8. Conclusion Law and legal institutions have a firm basis in Ethiopia that are capable of accommodating the impact of globalization from without and pluralism from within. The major legislative power reserved for the House of Peoples’ Representatives, as well as its authority to enact civil laws upon request by the House of the Federation to sustain one Economic Community indicate that the Federal Constitution itself leans towards national harmonization encompassing legal and economic matters. The irresistable tide of globlization is also a force to reckon with to impact the harmonization process both from within and without. Ethiopia’s active role in Africa as

110 | Law and Development, and Legal Pluralism in Ethiopia well as its status as a seat and host nation to the African Union are likely to give impetus to the harmonization process. But laws or institutions alone are not sufficient to either effect or maintain harmonization, much less guarantee the good life. This is because law is not an ultimate end-in-self but instrumental to its normative, institutional, constitutive and other values. The human factor is equally important. Good laws alone are not sufficient to enforce the rule of law either. The rule of law is often subject to external assualt and abuse: As succinctly stated by M. Oakeshott, “[t]he rule of law bakes no bread, … and it cannot protect itself against external assualt, but it remains the most civilized and least burdensome conception of a state yet to be devised. 58 As often said, it is one thing to enact good laws, and qiute another to apply them. The commitment to enact good laws should thus be matched by the commitment to resolutely apply them, and to do that all hurdles, purposeful or disguised, must be resolutely removed. May we wish or hope that is where we are heading.

58 Michael Oakeshott: qouted by Rachel Kleinfeld: Competing definitions of the rule of law, [in Carothers, supra note 18, p. 31].

Chapter 6

Customary Dispute Resolution Mechanisms and the Rule of Law: Areas of Convergence, Divergence and Implications

Assefa Fiseha ♣ 1. Introduction The essential features of customary dispute resolution mechanisms (CDRMs) 1 have been already identified in various literature. This chapter aims at analysing the relations between CDRM and the rule of law and examines the areas of convergence and divergence. The focus is on the central issue of why people obey (or not obey) the law and customs and whether the response to this question has anything to do with the content of the rule of law and CDRMs. The key area of convergence is that the rule of law and CDRMS reflect largely agreed upon basic values of society and social norms. It is this common feature and the belief that the law/CDRMs are fundamentally just that explains society’s willingness to abide by them. Yet this needs a slight modification, as the rule of law is sometimes understood merely as a formal/procedural guarantee devoid of any content. The value loaded conception of CDRMs goes much further than the rule of law in terms of ensuring social justice and peace. The CDRMs and the values that guide them are largely antithesis to ‘positive law’ as articulated by John Austin (1995) 2, Hart (1994) 3 and Raz (1979) 4. The CDRMs have limitations when it comes to rights of women and they are founded on the idea of collective rights and responsibilities while the rule of law is largely a

♣ PhD, Associate Professor of Federalism and Public Law, Ethiopian Civil Service University (formerly College). Email: . 1 See Alula Pankhurst and Getachew Assefa eds. Grass-roots Justice in Ethiopia: The Contribution of Customary Dispute Resolution (Addis Ababa: United Printers, 2008); Gebre Yntiso, Fekade Azeze, Assefa Fiseha eds. Customary Dispute Resolution Mechanisms in Ethiopia (Addis Ababa, Eclipse, 2011). 2 John Austin (1995), The Province of Jurisprudence, (Cambridge: Cambridge University Press). 3 H. L. A. Hart (1994. 2nd edn). The Concept of Law, (Oxford: Clarendon Press, 4 Joseph Raz, The Authority of Law, ( New York: Oxford University Press, 1979).

111

112 | Law and Development, and Legal Pluralism in Ethiopia liberal concept founded on the autonomy of the individual. The study is based on observations drawn from various case studies and secondary sources. To put the discussion in context, perhaps it is vital to highlight the complex relationship between CDRMs, the constitution and the rule of law within the existing constitutional and legal framework in Ethiopia. The Preamble to the 1995 FDRE Constitution commits itself to ‘...building a political community founded on the rule of law ...’ (emphasis supplied). The Constitution guarantees individual as well as group rights and provides various institutional mechanisms of enforcement. Unlike other constitutional systems where such guarantees are stipulated by laws other than the constitution, human rights in Ethiopia are constitutionally guaranteed. Right to equality and specific rights related to women and children are clearly stipulated in the constitution and this puts both theoretical and practical challenges to some of the religious and customary practices within the different communities. It is declared that ‘The constitution is the supreme law of the land. Any law, customary practice ...... which contravenes this constitution shall be of no effect.’ It is true that the constitution opens some space for religious and customary based norms and institutions (Arts 34, 78). Yet the same constitution dictates that such norms and institutions or practices can only be valid in so far as they do not violate norms in the Constitution. Drawing the borderline between the religious and customary norms on one hand and the formal law on the other is a very delicate process left to the implementing institutions. Yet at a formal level one could say that the foundations for the rule of law and an important space for religious and customary values are enshrined in the constitution. The key challenge apart from the difficult task of drawing the thin line between CDRMs and the formal law is our conception of the law in general and the rule of law in particular. Is the rule of law an instrument of power – where emperors or elected institutions impose their own will on the people? Or is it a means for consolidating power as has been the case in Ethiopian history for long? For example, Emperor Haile Selassie wanted the 1931 and 1955 constitutions for legitimizing his power and for consolidating his dynasty, the military junta for building ‘socialism’ and now for a constitutional developmental state. Or does the rule of law apart from establishing public institutions impose some limits on public institutions? Does the rule of law also regulate or shape power? Is not the constitution as already noted a higher norm in the sense that legitimacy of public institutions derive from it and whatever they can do is constrained by it? The way political actors and the public conceive the rule of law has serious implications.

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 113 Before delving into consideration of these issues, it may be pertinent to make some remarks about Ethiopia’s constitutional development. In a span of six decades, Ethiopia has seen more than five ‘constitutions’ 5, each constitution on average serving only for a decade with little or no continuity between them (in the sense of positive constitutional and institutional development) and hence a high degree of constitutional instability, obviously an outcome of the political instability that reigned for the most part of the 20th century. One can state safely that both the 1931 and 1955 constitutions were imposed rather than resulting from due considerations of historical, economic, cultural and social realities of Ethiopia. If constitutions are meant to be laws in which the various aspirations and values of the public in general are expressed, that is, as covenants between the governor and the governed, a democratic expression of the will of the people, then, both constitutions fail to meet these requirements. It should be noted that constitutionalism as a culture, though a much broader notion, is very much linked with this aspect of constitution making. It is not without reason that many constitutions start by declaring ‘we the people…’ Both constitutions provided for supremacy of the Emperor than the law and did not reflect the wishes of the Ethiopian people. Nor did the constitutions intend for limiting the powers of the Emperor as he remained supreme for more than four decades. The making of the 1987 Constitution marked a new phase as there was an effort to engage the public at grass root level but because of the regime’s nature (a military junta) whatever was promised in the constitution was never realized in practice and thus remained merely on paper. The short span (only four years) and the civil war as well overshadowed its importance. Another essential point related to the Ethiopian context is that there is a widely held view that considers constitutions merely as instruments for promoting the political will of the victorious ones/ruling elites of the time and not of the people per se and hence are viewed as instruments of submission, hence the saying “Negus Aykeses Semay Aytares” , which means ‘an Emperor shall not be sued, same as the sky cannot be ploughed ’. They are not results of negotiated outcomes or of a publicly held consensus. We should note that all past constitutions were done away with unconstitutionally and no section of society ever tried to restore them. Thus we have the dilemma of having a constitution but failing to respect/enforce it. These very challenges still haunt Ethiopia today. Thus constitutionalism and the rule of law are yet to take roots in Ethiopia.

5 The list goes like this: the 1931, the Revised Constitution of 1955, the draft constitutional monarch of 1974 (that never came into force), the 1987 PDRE Constitution, the Transitional Period Charter and the FDRE Constitution (1995).

114 | Law and Development, and Legal Pluralism in Ethiopia The chapter is based on observations drawn from various case studies and secondary sources. Section 2 briefly examines the essential features of CDRMs. Section 3 highlights the challenges and limitations in CDRMS followed by Sections 4 and 5 that respectively deal with the meaning and evolution rule of law, and its convergence and divergence with CDRMs.

2. Essential Features of CDRMs 2.1 Conflict transformation and community peace One of the unique features of customary dispute resolution is the fact that it aims not only at settling disputes among parties (adjudication) but also at resolving conflicts and restoring community peace. Unlike the formal justice sector that primarily aims at settling disputes between parties, CDRMs aim at restoring severed relations and hence at ensuring community peace. This feature is crucially relevant today given the recurrence of various kinds of inter-group conflicts in Ethiopia. It is true that governmental institutions at federal and state level are engaged in addressing such disputes. The common limitation that one observes is that such exercises often fail to transform conflict or to bring lasting peace between communities. 6 To be more specific, governmental efforts are limited to calming down the crisis without addressing the root cause and without making sure that the inter-group dispute is transformed from hostility and conflict to positive cooperation and interaction. Formal court judgments create sense of winner- loser mentality among the disputing parties forcing them to exhaust all the appeal structures without ensuring peace and harmony between them and their respective communities. In other words, the difference between formal justice and CDRMs is a choice between confrontation and conciliation. CDRMs focus on settling the particular dispute, reconciling the interests, and more importantly restoring broken relations and putting order in the community. In the context of CDRMs, conflict is viewed not as an individual incident but as disruption of community peace whose integrity needs to be restored (Zartman, 2008:224). A very good manifestation of this is the fact that the reconciliation process engages the perpetrator’s and the victim’s entire family, a core element of which is the perpetrator’s repentance and the victim’s forgiveness.

6 See, for example, Mitiku Duressa, Managing Inter-ethnic Conflict: The Case of Oromo and Gumuz in Anger and Dhidhessa Valley (MA thesis, ECSC, 2009); Zeleke Menebo, The Role of Horizontal Intergovernmental Relations in the Management of Conflicts: The Case Study of Halaba and Arsi Oromo Ethnic Groups (LL.M thesis, ECSC, 2011).

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 115 The formal conflict resolution mechanisms often emphasize the resolution of the material causes of conflicts (resource and power are often the focus) without dealing with the psychological and cultural traumas that often trigger retribution. CDRMs deal with values, beliefs, fears and suspicions, interests and needs, as well as with both material and non- material causes of conflicts. Issues related to status, honors, recognition and respect often play critical role in conflicts and are the focus of CDRMs in the process of healing wounds. Indeed, one of the basic reasons for the current resurgence of the study of CDRMs is related to the fact that the formal conflict resolution mechanisms have proven to be inadequate for some recurring conflicts in many parts of the world including Africa. While earlier on CDRM was considered to be moribund and unsuited for addressing modern conflicts because such conflicts recurred more commonly among states, after the Cold War, conflicts among non-state actors became more frequent. There is also global resurgence in the politics of identity after the end of the Cold War. This led to the view that society’s involvement in conflict resolution is crucial and this gave renaissance to the field of CDRMs (Juma 2005: 490- 95; Chirayath et al, 2006). 7 In the last decade alone, the World Bank has sponsored in many countries, including Ethiopia, major reforms related to the justice sector because of inefficiency and delay in the courts and failure to respond to the demands of globalization, expansion of investment and issues related to human rights, thus giving rise to the reconsideration of alternative ways of dealing with disputes such as the CDRMs.

2.2 Strong link with belief systems and morality Another feature of most CDRMs is their strong link with spirituality, faithfulness and search for truth. The opening of peace processes, the elders’ insistence in finding out the truth and their reliance on oath to find out the truth particularly when there is lack of evidence, the peace rituals (curses and blessings), and the use of sacrificial animals indicate the role of belief systems in CDRM. One of the key attributes for the prominence of the elders, among other things, is the commitment to and/or fear of supernatural powers. The values that govern CDRMs emanate from religious and moral

7 See Modibo Ocran (2006), “The Clash of Legal Cultures: The Treatment of Indigenous Law in Colonial and Post-Colonial Africa”, 39 Akron L. Rev . 465; Laurence Juma (2002), “Reconciling African Customary Law and Human Rights in Kenya: Making A Case for Institutional Reformation and Revitalization of Customary Adjudication Processes”, 14 St. Thomas L. Rev . 459

116 | Law and Development, and Legal Pluralism in Ethiopia principles. For example, in the central highlands (between 15 th century and early 20 th century) there has been a blend of secular and religious matters in the law (the Fetha Negest ) that gave it intrinsically a sacred character.

2.3 CDRMs versus formal law CDRMs derive from the custom (a repeated practice of what people do instead of what people ought to do as in law) of the people as practiced over a long period of time and accepted by the community as governing principle and hence binds the society as a violation of which entails social consequences and even punishment (Ocran 2006; Juma 2002). 8 DRMs are often unwritten; the rules can be traced to the customs and practices of the people which have been handed down to succeeding generations. These rules are based on conceptions of morality and depend for their effectiveness on the approval and consent of the people. It is a manner of resolving disputes with its emphasis on compromise, reconciliation and adjudication. In comparison, the law is enforced by the agents of the state such as courts and the executive body and the state has a monopoly over the use of force. In other words, it is more coercive than customary law. Formal law is proclaimed by the state and is a reflection of the will of the majority in power (in the democratic sense) while customary law is the result of repeated practice as accepted by the community emanating from , custom, morality, religion or as approved and proclaimed by traditional institutions like the Baito (norm setting body in Tigray), Gada (democratic decision making and norm setting body of the Oromos), elders council, etc. Formal law, when proclaimed by the state, is expected to have a general applicability defining rights and duties of every citizen. Customary law, on the other hand, varies spatially and from one locality to the other and the emphasis is on collective responsibility, collective rights and respect for long established institutions. Formal law and customary law, however, do not necessarily operate in complete isolation. One can influence the other. Customary law can serve as a source of law. Formal law and judicial practice also influence customary law. In most African countries colonial law negatively affected customary law and today the human rights discourse is exerting significant impact on customary law in Africa (Ocran 2006). Another essential point is while courts are duty bound by law to dismiss a case or acquit a suspect if there is lack of evidence, in many societies, CDRMs resolve disputes and identify criminals even for cases that cannot be verified through the formal justice system through different techniques including oath.

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 117 2.4 Elders and reconciliation One of the hallmarks of CDRM is that its management is almost always by elders, although the manner in which they are constituted and the roles they play may vary in different societies. In most cultures, based on their reputation, impartiality, familiarity with the community norms, wisdom, and rich experience, elders are elected upon the request of the parties in dispute often on an ad hoc basis (although some may be elected/selected several times to handle various disputes). Their primary function is to reconcile the differences that have arisen between the parties through compromise and reconciliation even though adjudication is not ruled out. In some societies like the Sidama, Afar, Gamo, Shekacho, Issa, and Oromo, there are various types of elders and different hierarchies for resolving various types of conflicts. In the central highlands of Amhara and Tigray, it is a generic name as the elders may investigate family disputes such as dispute between husband and wife, inheritance and related issues and it is consequently called ye bête-zemed gubae (family council). Usually those who were witnesses or guarantors of the marriage are the ones who become the members of the family council as they are believed to be the closest to know family details and keep family secrets. For cases other than family/marital disputes, a certain number of elders called Shimagiles (wise men) are selected to serve as conciliators. The elders that serve the crucial function are primarily known for their readiness and openness for understanding the root cause of the conflict. Particularly crucial in this respect is the importance of listening to both parties. The elders also underscore the importance of discussion as a prerequisite for the reconciliation to be productive. The gathering has to be conducted in a safe environment where none of the parties feels insecure. Otherwise, the elders believe that reconciliation made in an unsafe environment will not work and may even trigger the conflict again. Secondly, the elders are known for their high sense of justice, impartiality, spirituality, and truthfulness. Throughout the reconciliation process, the elders are able to keep the confidence of both parties. It is a tradition in reconciliation that whatever the elders happen to know in their capacity as peace makers is kept secret even in the rare cases where the elders fail to reconcile the parties and the latter decide to submit their case before a formal court. No elder is allowed to testify before a court as a consequence of the confidentiality they ensure to the parties. Thirdly, the elders should have the right mix of patience, tolerance and persistence. If their efforts at the home of the aggrieved did not work, they will fix their next appointment in a respected man’s house or a religious

118 | Law and Development, and Legal Pluralism in Ethiopia institution (believing that changing locations may bring a different outcome). Elders never give up until the case is settled.

2.5 Rooted in values and norms and validated through popular participation Modern Ethiopia is an amalgamation of numerous ethnic groups each with its own functional customary justice system. The informal justice transcended the formation of the nation state and the introduction of the formal justice structure because the CDRMs are rooted in societal values and norms and continue to be cherished through popular participation. The Gada system of the Oromo with its jaarsummaa , gumi, qaalluu, gumaa and the Aba Gada plays a vital role in conflict resolution and decision-making. Similarly, the various ethnic groups have their respective institutions and structures responsible for resolving conflicts. A common element of all these institutions is that they originate from the rich traditions and norms of each society and they remain relevant because of the continued engagement of the community. In the northern and central highlands, for example, justice was undertaken through the institution of wonber (a word that was used before the term “judge” was coined in the early 1930s). Although the higher level of administration of justice was linked to the formal government institutions, the lowest level retained its traditional and local flavour. The number of the wonber was usually three and they had no salary (Fisher, 1971). The wonber must hold the hearing publicly in the village assembly place, churches or any other public place and it is essential to their judgment that they should call upon the advice of a of knowledgeable villagers, over whose opinions they hold a casting vote. 9 This is perhaps the oldest evidence indicating public participation in the administration of justice. Below the woreda -level formal justice, the Ethiopian government established social courts 10 nearly across the country to play to some extent the role already played by the CDRMs. The social courts are considered as manifestations of grassroots democracy, and the individuals who serve these institutions are elected by the people. Traditionally, customary laws adopted

9 According to informants, this tradition existed before the establishment of the Atbia Dagna by Emperor Haile-Selassie. Another institution called Kal Hatse (perhaps the Amharic equivalent is Kelate ), literally the `words of the Emperor`, was responsible for executing the judge’s decision and orders. The modern equivalent to it appears to be the police. 10 While in form social courts are not CDRMs in the classic sense, the law establishing them gives them the mandate of resolving misunderstandings and restoring community peace without necessarily and rigidly following the law.

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 119 by consensus and the performance and effectiveness of these local institutions are evaluated regularly by the local people. Many of these features are still maintained in the new laws of the social courts. Residents of the locality are allowed to give opinion on a case before the judges make final decision. This is a mechanism for ensuring participation of the local people in the administration of justice and a means for ensuring the transparency of the process. Very much linked to this point is that the law applicable to the community is a law made by the people themselves or is adopted by their assembly. Such a process gives the law legitimacy and ensures its smooth implementation. This means that CDRMs in general are guided by the culture, norm and tradition of the society in which they operate. As Aberra Jembere (2003:839) notes, “[c]ustomary law is made by the people and not the state” and derives its legitimacy “from participation and consensus of the community.”

2.6 Mechanisms of enforcement As already mentioned above, the elders while reconciling the disputing parties also give decisions. While decisions given by the formal justice system rely on the police and the executive for their enforcement, the decisions rendered by the elders are often legitimate and parties often discharge voluntarily. The fact that the elders carry heavy moral weight because of years of accumulated wisdom, deep knowledge of community norms, impartiality and integrity, and are often chosen by the parties leaves little room for non-compliance. Yet the collective nature of CDRM as opposed to the individual rights system of the human rights regime has also implications. Social cohesion is ensured through social pressure and morality rather than threat or act of litigation. In other words, the threat of withdrawing kinship services from a recalcitrant along with moral and ethical considerations reinforces the overall system of societal order and social control.

2.7 Proximity, simplicity and easy access Apart from the fact that the formal laws were a bit detached from the society to whom they were meant to apply, another factor that may have hindered the application and relevance of the formal laws is related to the proximity and simplicity of CDRMs. In many of the cases, parties to a dispute are not required to apply their case in written form; nor are they required to pay fees to the elders (a few exceptions of the quasi CDRM institution in Nuer, Gambella). As the CDRM institutions exist in nearly every locality, parties to a dispute are not required to travel long distance to have access to these institutions. This saves the time, resources spent and inconvenience caused to parties in getting access to the regular courts now available only at a

120 | Law and Development, and Legal Pluralism in Ethiopia kebele/woreda level and higher echelons of administration. It is well known that formal courts and the law enforcement institutions are expensive. Flexibility and simplicity are key features of the CDRM institutions. The cases are also handled by elders chosen by the parties who have trust and faith in them and consequently in the process. The fact that the parties are judged by elders of their choice, whom they know very well for their impartiality and familiarity with the norms of the community, also implies that the process is more legitimate. The simplicity and flexibility in the process also enhances speedy resolution of disputes.

2.8 Collective versus individual responsibility: Clash of values? Clash of values seems to be visible at least on issues related to notions of marriage and inheritance between the formal law and human rights regime, on the one hand, and the customary practices of some societies on the other. Western based laws often focus on individual rights and individual responsibility for crimes, prohibit bigamy, ensure equality between men and women (at least formally) while CDRMs are firmly based on collective responsibility, for example, during compensation and responsibility for fault or crimes. If a perpetrator is found at fault by the elders and is required to compensate the victim, the entire family or members of his clan usually contribute to the amount of compensation fixed by the elders. The notion of individual ownership is also at times least understood in some societies. Even today where land is publicly and constitutionally declared to be a state property at federal and state level, the notion of land “ownership” in most pastoral communities (for example, Afar and Somali) is a communal one making the debate (public versus private land ownership) even more complicated. 11 This conception of land ownership at times creates tension with private investors as pastoral communities often have little understanding of private leased landholding. As CDRMs are based on tradition, there is the allegation that they weakly respond to the demands for investment and business.

11 See Mohammud Abdulahi (2007: 85-125).

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 121 3. Challenges in CDRMs and Limitations 3.1 The impact of new developments on CDRM CDRMs are influenced by urbanization and new socio-political realities. As Zartman (2008:7) puts it, “… tradition is likely to have been updated, adjusted and opened to new accretions in order to stay alive through changing times. Traditional does not mean unaltered or archaic.” Several case studies illustrate, CDRMs could, indeed, be affected by new developments. The expansion of new religions (protestant and fundamentalist Islam) in some parts of Oromia seem to have serious impact on CDRMs. Believers of these new religions believe that various CDRMs are archaic and even against faith in general that they should be done away with. As a result, tensions occur between those who want to maintain the institutions and the proponents of the new religion. In Tigray, there is a dilemma on the role of social courts. 12 Currently, the social courts as an institution seem to be at cross roads. In practice, there is a widespread confusion as to whether to maintain them as social courts - institutions for resolving root causes of social ills in every tabia/kebele (hence more in line with the role of the shimagiles) or if they would best serve as the lowest unit within the regular court administration. The practice, contrary to the law, indicates that the young and productive force and women constitute the lion’s share of the judges in the social courts - and this composition has created some problems. First, given the ever increasing cost of life, the judges are more interested in engaging in their day to day activities than in the administration of justice. Although there is a token payment for some judges in the social courts, for the most part it is a free service. Secondly, the young judges usually lack the necessary skills to reconcile that comes from life long experience. They also do not enjoy the level of respect and trust that the shimagiles enjoy in the tabia/kebele . Therefore, the way forward seems to be either to fully give the social courts responsibility back to the shimagiles or officially declare them as the lowest level of the regular court structure and probably dissolve the woreda courts. There is also widespread allegation of corrupt practices and hence the impartiality assumed is not any more there. In short, they do not enjoy the trust and respect from the community in the way they used to during the armed struggle or old times. As the judges work on a voluntary basis and without salary, they work only during holidays, overstretched by other social

12 See for details Assefa Fiseha , Customary Dispute Resolution Mechanisms in Tigray in Gebre Yentiso, Fekade Azeze, Assefa Fiseha eds. Customary Dispute Resolution Mechanisms in Ethiopia (Addis baba, Eclipse Printers, 2011) pp.361- 385.

122 | Law and Development, and Legal Pluralism in Ethiopia commitments. Thus, there is a delay of cases. At the local level, there are also frequent meetings called upon by the local administration. This is often done during the holiday when the judges are supposed to adjudicate cases. Because of all these reasons, there are many cases pending before the social courts. Speedy trial is thus getting compromised. In the older times, a decision made by shimagiles enjoyed the support of the court or was rarely reversed by the court. Now appeals to the woreda and higher level courts are becoming the norm rather than exception.

3.2 Limitations of CDRMs Certainty and uniformity are among the challenges in CDRMs. Although some common features can be drawn from the various CDRMs that exist in Ethiopia, there is generally a great variation as they operate in a relatively small area. CDRMs are often unwritten. As a result, they are not only difficult to ascertain but the effort to have uniform laws is also cumbersome. It is, therefore, not even possible to describe the plethora of different systems that have existed at different times. Another domain of challenges in CDRMs relates to human rights . Ethiopia is one of the few countries in Africa that has not only signed major international treaties on human rights, but has also expressly made such treaties part of its domestic law. 13 Ethiopia even goes further to state in Article 13 of its Constitution that such rights and freedoms shall be interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights, and the international instruments it has adopted. One-third of the Constitution (Chapter Three) also contains a broad range of individual and group rights. Nonetheless, CDRMs in as much as they are acclaimed for their positive contributions in regulating societal behavior, have also some critical limitations that conflict with constitutional norms and the human rights regime.

13 The core international human rights instruments signed by Ethiopia include Convention on the Elimination of All forms of Racial Discrimination (21 Dec 1965, Ethiopia adopted this in 1976); International Covenant on Civil and Political Rights (adopted on 16 Dec 1966, Ethiopia adopted this treaty in 1993); The International Covenant on Economic Social and Cultural Rights (adopted on 16 Dec 1966, Ethiopia adopted this treaty in 1993); The Convention on the Elimination of all Forms of Discrimination Against Women (adopted on 18 Dec 1979, Ethiopia adopted this in 1981); The Convention on the Rights of the Child (adopted on 20 Nov 1989, Ethiopia adopted this treaty in 1991); The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 10 Dec 1984, Ethiopia adopted this treaty in 1994). Article 9 of the Constitution makes such treaties expressly part of Ethiopian Law.

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 123 In the early 1960s CDRMs were criticized as difficult to ascertain because of widespread variation and labelled as “primitive laws” hence implying “inferior laws” compared to the formal law (This was the conception prevalent during the making of the codes in Ethiopia) (David 1962: 188-89). In recent years, the widely held criticism against CDRMs has focused on their inability to adjust to the demands of the international human rights regime, as insensitive to gender equality and related individual rights and freedoms (Oppermann 2006). As many of the case studies illustrate, CDRMs are male dominated in that women are largely excluded from the process. Besides, there are some cultures and practices that still allow harmful and discriminatory practices such as female genital mutilation, polygamy, early marriage, rape, abduction and exchange of women as a means for ending blood feud between groups. CDRMs are also blamed for denying women’s right to asset and related opportunities including land and as result exposing women to exploitation and violence. These practices conflict with Ethiopia’s commitment to human rights as stipulated in its constitution and the treaties. Are human rights and CDRMs then necessarily strange bedfellows? As the example in Tigray (inclusion of a woman judge in social courts), CDRM practices in Oromia (where elders are trained to send rape and abduction cases to the formal courts) and gender based movements hint, it is possible to positively influence CDRMs to meet current demands without necessarily abolishing/undermining them. The South African experience is illustrative in this regard. South Africa’s new constitution provides some space for customary law. 14 The same constitution also requires customary law to comply with constitutional norms and human rights (Bennett 2009). The regular courts are duty bound to ensure that the specific application of customary law in a case does not violate the bill of rights section of the constitution. In other words, the courts are duty bound to monitor the fact that customary law remains consistent with the bill of rights. Ethiopia has since 1995 adopted a federal system that aims to forge unity in diversity. The right to promote and practice one’s culture is affirmed in the Constitution (Article 39). We have noted already that custom is one of the major sources of customary law. On the other hand, the same Constitution declares its supremacy and any law or customary practice that contradicts the Constitution is declared “null and void.” This raises some of the daunting issues mentioned in the South African Constitution. Who is going to judge whether a specific customary law violates the constitution or not? Are such standards too high given the fact that the level of illiteracy is high and that of familiarity with constitutional norms is low? Whoever

14 See Yonatan Feseha’s contribution in this volume for details.

124 | Law and Development, and Legal Pluralism in Ethiopia judges the constitutionality of customary law, is it a requirement to be well versed with the specific customary law and its contents? Otherwise, it will be difficult to judge it in the first place. Yet we know already that customary law, though widely practiced, is in many cases unwritten and varies from one locality to the other making the exercise of judging it more difficult. However, a number of provisions indicate that customary law will continue to exist, though the form in which it will do so remains far from clear.

4. The Meaning and Evolution of the Rule of Law ‘I do not believe that there are many other peoples in the world who respect the law as much as the Ethiopian people do, and not many rules (of government) can boast ... in bringing about such respect for the law.’ 15 (Nathan, 1951: 16) (emphasis by the author). This quotation was stated in 1951 by an advocate and advisor of the then Imperial Government of Ethiopia. Two points are noteworthy: that the Ethiopians as he knew them respected the law perhaps better than the people in the rest of the world and this respect for law was not necessarily of government law. What then was the source of law (apart from the law issued by the government) that the Ethiopians respected so much? Why is such law respected? These issues beg a much broader question of as to why people obey the law (whatever its source may be) and whether it has something to do with the concept of the rule of law. The rule of law is a much contested concept. There is a debate whether it is ‘end based’ or implies ‘institutional reforms’; these issues are often raised in relation to the World Bank’s 16 post 1990 efforts to influence both donor

15 A shorter version of this part of the chapter was included in a book co-edited by this author. [Customary Dispute Resolution Mechanisms in Ethiopia (Addis Ababa: Eclipse Printers 2012)] but the presentation here is more abstract and is linked with the key but challenging issue of whether the rule of law is merely an instrument of power or whether it also shapes the behaviour of public institutions. 16 The World Bank actively promoted the rule of law in many developing countries and as such never had a clear conception of the rule of law. Its understanding of the rule of law varied depending on the leader’s view on the matter. The law and development movement both the old (in the 1960s law was conceived as a tool for development, social reform and lawyers role as social engineers where the state plays active role in the economy. This view failed owing to the weak link between law and development as well as problems of legal transplantation without grasping the local context) and the new (post 1990s following the collapse of communism and the end of Cold War, rule of law was designed as a tool for improving domestic governance: democracy (the third wave, human right (rights revolution)s and good governance based on the Washington Consensus-

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 125 and recipient countries. The debate also relates to whether the rule of law has content and hence ‘thick’ or strong or whether it is without content and hence ‘formal’ or ‘thin’ or ‘weak’. Whether the rule of law guarantees merely ‘procedural’ or ‘substantive’ rights becomes immediately clear once we open standard texts on the matter. Rachel Kleinfeld once said, ‘read any set of articles discussing the rule of law, and the concept emerges looking like the proverbial blind man’s elephant—a trunk to one person, a tail to another’ (2005:5). As will be shortly discussed in this part of this chapter, the concept of the rule of law is of interest to lawyers, political actors, economists 17 , donor organizations such as the World Bank and to countries in various levels of development including those in transition from authoritarian systems. No surprise then that it may mean different things depending on whom we are referring to. Nonetheless there are minimum elements in which all seem to agree and the objective of this section is to highlight the meaning and evolution of the rule of law and then link it with CDRMs in the next section. Unlike the pre-modern (Medieval) state where it formally enjoyed absolute and unbridled authority from its subjects but actually suffered from multiple/centrifugal actors such as the kings, estates, barons, churches, classes or cities issuing various laws, the modern state gave an exclusive monopoly to the state to enact laws (Costa, 2007: 76). In the modern state only a body authorized by law enacts it. But even the medieval state’s authority had some limits on its power. The lack of unity of law, the multiple and largely autonomous actors and the various kinds of privileges they claimed against the state, the requirement

passive state) had also their impact on the World Bank); see Barron, 2005; Trebilcock and Daniels, 2008. 17 Liberal economists often emphasise the importance of freedom of contract, right to property and guarantees for investment; legal and institutional framework necessary for the free market economy and the importance of impartial and autonomous courts for enforcing these rights. See Barron, (2005). Yet the rule of law need not be associated with liberalism. As Tamanaha stated (1995: 476) ‘Operating around the world today are many variations of the rule of law, coexisting with individualist-oriented as well as with communitarian-oriented cultures. It has always consisted more of a bundle of ideals than a specific or necessary set of institutional arrangements. A minimalist account of the rule of law would require only that the government abide by the rules promulgated by the political authority and treat its citizens with basic human dignity, and that there be access to a fair and neutral ... decision maker or judiciary to hear claims or resolve disputes. These basic elements are compatible with many social- cultural arrangements and, notwithstanding the potential conflicts, they have much to offer to developing countries’.

126 | Law and Development, and Legal Pluralism in Ethiopia that such laws should conform to divine authority or limited, albeit weakly, the power’s of the state. 18 In this sense, the rule of law in its weak form (because the King largely remained the source of law and maintainer of order (Dicey 1951: 183) implied some limits on power existed since then (Costa, 2007: 76). As Tamanaha (2004:114) stated, ‘the broadest understanding of the rule of law, ... is that the sovereign, and the state and its officials, are limited by the law.’ 19 Ethiopia’s emperors as well exercised absolute power for centuries but a closer look at their institutions and structures indicate that the state was unable to penetrate deep into the society, and had to share power with the local nobility, the church and autonomous kingdoms in several parts of the country owing to its weak nature. Such was the feature of the state until the second half of the 19 th century. That these autonomous local actors regulated trade, ensured local security and allowed local customs to apply in the day to day affairs of life is well documented. Even in the 20 th century Ethiopia where the Monarch and military junta are believed to have strengthened the structure of the state, the latter going to the extent of establishing smallest unit of government (Kebele), the large section of society in the rural areas and the lowlands continued to live their own way of life obeying the very norms that they knew for ages, not for fear of police arrest or a distantly existing emperor. This is not to mention the fact that topography, geography, size and the very weak infrastructure also had their impact. Thus what appeared to be an absolute state indeed had some limits, albeit weak, on its power. That is how the rule of law in its weak form began both at home and abroad. The rule of law and CDRMs in this weak sense emerged and

18 Thomas Hobbes having seen the horrors of England’s civil war and the anarchy resulting from it did advocate absolute power to be granted to the state so that it can ensure law and order. The subjects as per this perspective had no rights whatsoever against the absolute state, indeed he proposed absolute obedience to it. This is the positivist conception of law and sovereignty (cited in Sellers, 2010: 3). 19 That government is limited by law implied two things: ‘The first sense is that officials must abide by the currently valid positive law. The law may be changed by properly authorized officials, but until it is changed it must be complied with. The second sense is that even when government officials wish to change the law, they are not entirely free to change it in any way they desire. There are restraints on their law-making power. There are certain things they cannot do with or in the name of law. These restraints have been understood in terms of the dictates of natural or , or a timeless customary law, which were the dominant views in the Middle Ages, or in terms of human or civil rights, which is the common phraseology today. The fundamental import of this second sense is that the sovereign’s power over the positive law is itself restricted in legal terms (Tamanaha, 2004:115).

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 127 provided some limits on power. But this weak form of rule of law and CDRM was transformed substantially both in shape and content with time. In its broad sense, the rule of law today is, according Francis Fukuyama ‘a species of positive law but only under a strict set of procedural rules 20 guaranteeing that the laws correspond to a broad social consensus on basic values .’ (Fukuyama, 2010: 34). One can pose serious issues as to whether procedural rules alone reflect the essence of rule of law and that of CDRMs, but for now we can focus on the requirement that laws should reflect ‘broad social consensus on basic values.’ This is so because this feature of the rule of law is also the bedrock of CDRMs thereby showing that there is a great deal of convergence between the two. Surely, there is a debate on the exact origins 21 of the rule of law and whether it is understood the same way across different legal systems and political communities. 22 The phrase ‘rule of law’ was not coined until the 19 th century (the phrase is attributed to Dicey and his book that was published in 1885). Yet the idea that the rulers and the people of different civilizations lived under a law that they themselves did not create (divine authority, religion, natural law being the main source), that such law imposed some restriction on rulers and that such ‘law actually corresponded to the lived social norms and values of the community to which it was

20 The procedural rules are not indicated in Fukuyama’s article but are well known in the discourse on rule of law. Joseph Raz is reputed for articulating well what these procedural rules are (Raz, 1979). 21 Some even trace (Miller, 2010: 11-18) the concept in ancient history of Greek particularly to the works of Plato and Aristotle but that seems farfetched. Athens and the towns around were well known for their direct democracy (though not inclusive even by then) which if not constrained could lead to popular despotism and tyranny. Indeed both thinkers insisted ‘the philosopher king/ruler’ supposed to have a lot of wisdom practical or philosophical need not be restrained by constitutions. The rule of law is largely a post medieval state development (Costa, 2007: 76). 22 The British rule of law with its key features of supremacy of parliament and the tradition of curtailing the executive, the legal determination of individual rights and their protection through the common law judge; the unwritten constitution resulting from conventions; the German Rechtsstaat that placed sovereignty on parliament and the exclusive domain of parliament as a source and guarantor of rights mainly focusing on the formal meaning of the rule of law leading to two major world wars, later to be modified through inclusion of bill of rights in the constitution and the constitutional court as a key institution to enforce the Basic Law; the American version of rule of law based on the supremacy of the constitution, separation of powers, bill of rights and judicial review of legislation and decisions of the executive do indicate that there are normative and institutional differences among different legal systems (Zolo, 2007: 18-19).

128 | Law and Development, and Legal Pluralism in Ethiopia applied’ (Fukuyama, 2010: 36) certainly predates the emergence of the modern state. It is this correspondence between law and social norms, (shared/common values traditions, customary laws in other words) and the people’s belief that law is fundamentally just 23 and their subsequent willingness to abide by it 24 that is at the core of the rule of law (Fukuyama, 2010: 37). CDRMs are not necessarily part of the formal law. They are normative orders emanating from custom (implying that they have been used for long), and norms of society and that they are made by the people by consensus. The fact that CDRMs are widely practised in Ethiopia both in the past and the present is already a well established reality. Thus, if we apply such basic and value loaded conception to customary law, the foundation of rule of law and customary law is largely the same. It is this foundation that the law is ‘normally grounded in the values of the underlying society’ (Fukuyama, 2010:41) that gives authority for the customary or the rule of law. In other words, the driving force for the people’s respect for the rule of law or customary law is not the fear of punishment or the draconian nature of the law but its ability to manifest the lived values of the society. That the law should act as a check on arbitrary executive/monarchy’s power and the content of the law should match society’s cultural values has an old pedigree. There is this claim that the rule of law as a normative and institutional structure within which the legal system has the task of protecting human rights by constraining power (that can be exercised arbitrarily or may be abusive) is a feature of modern state (Zolo, 2007: 7,18- 19). Yet the idea that the law is a manifestation of society’s existing norms that evolved over years and that the monarch’s enactment or the other multiple actors of the medieval period had to respect divine authority or natural law goes far to the pre-modern epoch. True that the phrase ‘rule of law’ was not as such coined, but one of its core elements that the law must reflect the lived experience and values of the people was already well established before the phrase rule of law was coined. Such law emanated from religion, morality and long held traditions and conventions. Certainly such broadly agreed upon social norms have serious impact on the content of the law. This in turn brings back the issue whether the rule of law is ‘thin’ or

23 As illustrated later whether the rule of law implies just law is in itself at the center of the controversy. Raz (1977: 195-196) argues, rule of law does not imply rule of good law but to be sure CDRMs imply just norms approved by the consent of the particular community. 24 Raz (1979: 212) as well stated rule of law itself is a simple one, meaning precisely what it says: “that people should obey the law and be ruled by it.

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 129 ‘thick 25 ,’ ‘procedural/formal’ or ‘substantive’ already hinted by Fukuyama and whether CDRMs differ in this respect. The rule of law as evolved in the 19 th century continental Europe meant merely a ‘positive law’ 26 issued by the state and that meant only a principle of legality; that is, all authority must come from law, and this has little application to its content. The concept of sovereignty has shifted from the Monarch to the notion of ‘consent of the governed’, that is, power derives from the people and not from divine authority. The idea of citizenship with some perhaps natural rights has now taken ground both in France and the United States. Yet the revolutionary discourse (France in 1789 for example) 27 paid little attention to normative and institutional devices to implement those declared freedoms. The legislature in particular had no obstacles on its way in issuing whatever laws it wanted to enact. The rule of law meant simply lawfulness. This is the weak form or formal sense of rule of law. According to this version of the rule of law, all legal systems in which public powers have a legal source and form are legal states. This version corresponds to Austin’s and Hart’s theory of ‘positive law’ and the

25 The law is assumed to contain certain universal values implying that the law must respect rights and moral principles. Raz (1979: 211) criticizes this notion of rule of law: ‘The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. That much is common ground. It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man. A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. This does not mean that it will be better than those Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law’. Rawls (1972: 235) joins this camp and states rule of law has nothing to do with human rights, justice, fairness or equality. As indicated later, thinner conception of rule of law suffers from or is equivalent to ‘rule by law.’ 26 Positive law and legal positivism is strongly linked to the theories of John Austin and H. L. Hart. Accordingly the concept of law is related to the concept of sovereignty. All positive law (enacted by the state) is deduced from a clearly identifiable law giver. Every law is enacted by a sovereign in many cases the parliament and as this body enjoyed sovereignty, no body sets a limit on it, nor can one challenge it for its content (Austin, 1995), (Hart, 1994), also (Raz,1979) . 27 See the Declaration of the Rights of Man issued in 1789 that stated equality, fraternity and liberty.

130 | Law and Development, and Legal Pluralism in Ethiopia German Rechtsstaat 28 of the 19 th century. It emphasizes on the secularization of the law, that is, separation of law and morals and the separation of law and justice. The law need not be just or true (Ferrajoli, 2007:323ff). This point is however contested. As one author noted ‘If the law can be reduced to the simple commands of those in power then the rule of law becomes an instrument of oppression and law becomes a weapon, like a knife, to be wielded for good or ill by whomever holds it in her hands’ (Sellers, 2010: 3). Indeed this was dubbed later ‘rule by law’ and not rule of law (Kleinfeld: 2005: 14; Barak, 2006: 54). Because according to this version of rule of law a dictator or even the racist Apartheid could qualify this test as the law is devoid of its contents. To be sure customary law is antithesis to ‘positive law’ as articulated earlier by John Austin (1995), Hart (1994) and Raz (1979). Renowned thinkers of the positivist legal thinking and based on the peculiar British tradition of the sovereignty of parliament (there is nothing that the British Parliament cannot do except changing the man to a woman and vice versa) insisted on the separation of law as a ‘command of sovereign’ and non law (religion, morality etc). Raz strongly contended reinforcing Hart that there is no conceptual relationship between law and morality. An unjust or immoral law does not cease to be a law and could be part of the rule of law. CDRM is largely founded on the consent and participation of communities in the law that governs them and this very law is strongly associated with morality, religion and tradition of the community. Customary law as such is a conventional law that evolved over years of experience and a reflection of the norms and values of the society and in this sense CDRM is closer to or even goes much beyond the idea of Fuller’s (1964) internal ‘morality of law’ than Hart’s conception of the law in general or rule of law in particular. Fuller stipulated some eight conditions 29 for a legal system to qualify under

28 To be sure this concept has undergone its own transformation. Influenced by Kant’s morality, it initially implied formal rights but between mid 19 th and mid 20 th centuries, it adopted a more positivist conception where the legislature had no limits on its way that led to two devastating world wars. Post WWII, rule of law took, as indicated later in this section, a thicker version of rule of law. Tamanaha (2004: 108-109). 29 Fuller (1964: 96) labelled these requirements as ‘internal morality of law’ and includes that the law must be general and not targeting individuals, it must be clear, consistent, published and stable (that is it should not be changed every month or every year and should remain in force for some predictable time) so that it guides the behaviour of its subjects; the law should be prospective and not retroactive; that the law must be administered by an impartial courts that also assumes that there is fair trial and courts should be accessible to the people and administration’s discretionary power must be curtailed. Some others have

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 131 the regime of rule of law. Yet there is doubt if these eight conditions stipulated are merely procedural guarantees much along what Antonin Scalia (1997) prefers to call due process of law in the ‘procedural sense.’ Leaving this debate aside, that CDRMs are incontestably grounded in society’s deeper sense of justice, morality and norms is much clearer than Fuller’s internal morality of law and its relations with morality. As illustrated later, CDRMs are consistent with the substantive (thick, stronger) version of the rule of law than with the formal (procedural, thin, weaker, softer) one. The rule of law in the United Kingdom (UK), however, was stipulated differently. A. V. Dicey in his famous book ‘An introduction to the study of the law of the constitution’ first published in 1885 devoted a chapter on the rule of law with some implications on the content of the law in sharp contrast to continental Europe. He stated the rule of law to mean individual legal equality irrespective of social status and economic condition. This is what he called legal equality. Secondly, he stipulated the supremacy of law over arbitrary power (rule of law over rule of men), where he rejected personal privilege and the arbitrary or excessive discretionary powers of the executive and emphasized on the sovereignty of law whether it comes from the parliament or the case law (common law) hence the reign of law and judges, the ‘law’s empire’ as it was to be coined later. Arbitrary government cannot be accepted in a system where the rule of law prevails. The UK having had no written constitution, its ingredients came from years of settled conventions that derive from judge made law (common law). This law recognized the rights of English Man’s freedoms and parliament later ratified them, the Magna Carta , the Habeas Curpus and the Bill of Rights being the most prominent ones. The common law courts had the extraordinary capacity to counteract the monarchy’s absolutist demands in favour of the English Man’s freedoms (Zolo, 2007: 7-14). The rule of law framed this way cannot be understood without implying on the content of the law: respecting and enforcing the rights of English man and the law as a product of reason and justice (Dicey, 1951: 140-180). Continental Europe’s conception of the rule of law was merely formalistic in the sense that a supreme parliament had no limits on its way in proclaiming any law that may even restrict rights and freedoms. In this respect, the German version of the rule of law Rechtsstaat simply referred to

included that natural justice must be observed but this is not part of Fuller’s list. (Fuller, 1964: 39, chapter two for details). Fuller himself admits that these are ‘natural law procedures’ further complicating the discourse (Fuller, 1964: 96). More substantive elements to the rule of law are advocated by Barak (2006: 55) where he argues the rule of law must conform to ‘fundamental values of morality, justice and human rights...’

132 | Law and Development, and Legal Pluralism in Ethiopia a state acting in a legal form. The rule of law in this sense did not imply in the state being ultimately protecting individual rights. Indeed, European conception of the state in general was opposed to what one can see in the USA. The state in continental Europe was viewed until early 20 th century positively as a guarantor of rights and welfare of its people. It was symbolized as a source of hope, not fear. Europe trusted the state and put little limits on the legislature in particular (Barak, 2006). Only the executive towards the end of the 19 th century was put under some limitations based on parliamentary law and judicial control. It was a more formal understanding of the rule of law and the absence of normative and institutional structures that restrict the parliament that paved the way for the emergence of Nazi and other fascist regimes and the consequent disasters related to both world wars. The claim that the rule of law as a normative and institutional structure of the modern state in which the legal system is entrusted with the task of protecting human rights by constraining arbitrary political power was not achieved with the exception of the UK. Its emphasis on formality was clear. It only required the state to respect general rules (abstract). The law merely replaced the Monarch’s personal orders. By imposing general forms and procedures, not specific contents, it was believed that legislative provisions can drastically reduce political discretion. In other words, the rule of law only constrained arbitrary executive power and not the legislative power (Zolo, 2007: 22). Due attention was not thus given to putting hurdles, norms and institutional barriers to the power of the state. On the contrary, in the USA, once they gained their independence in 1776, the founder’s view of the state was negative symbolized by fear, not hope. The founders emphasized the risks of tyranny and abuse of power by government. The state and its institutions were considered as threats to the right of the citizen that need to be curtained through horizontal separation of powers and vertical division of power between the center and the then thirteen states. The complex nature of the ‘checks and balances’ is meant to reduce the fear of the citizen and no doubt these complex checks and balances among the various institutions of government gave birth to an early notion of the rule of law and constitutionalism in the United states, compared to Europe. Europeans then shifted in the aftermath of the second world war to broaden the notion of the rule of law not only to manifest broadly agreed societal norms but also to articulate the idea of ‘grundnorm’ (basic standards or fundamental norms) which are very much related to the idea of divine authority or natural law of the medieval era, this time around that higher norm being reflected in the constitution. This in turn is based on two fundamental assumptions. First is ‘political pessimism’, namely that the dangerousness of political power is now beyond doubt. The state is not any

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 133 more fully trusted. The second is ‘normative optimism’ namely the belief that arbitrary power can be constrained by law so as rights can be protected (Zolo, 2007: 21). The constitution now, like a legal fashion begins by saying’ we the people of Italy or Germany etc which is meant to reflect the idea that all sources of authority or public institutions need to derive their existence from the constitution. The constitution is required to reflect the broadly agreed upon social norms/consensus and not merely the wishes of the majority. While drafting constitutions, the general principle is that, it needs to be authored by the whole people and not merely by a majority. The latter has the mandate to enact a law in parliament once it wins a majority in parliament but not the constitution which must reflect the wishes of the majority and the minority. As such the fundamental belief is that the constitution is the reflection of the will of the people. The rule of law as understood following the Second World War in all countries that claim to have a written and rigid constitution implies that there is a substantive limit on political actors and public institutions. The law must in the first place reflect the wishes of the people and more importantly must guarantee rights and freedoms. Significant in this regard is that shifting away from the 19 th century positivist and rule by law conception, the Basic Law in Germany explicitly incorporates a substantive (thicker) version of the rule of law. Article 1 paragraph 2, stipulates the respect for and the protection of the dignity of man, irrespective of state’s recognition in a constitution or . Even more crucial is the fact that the rights chapter of the Basic Law is ‘eternal’ not subject to amendment. The rights conception adopted is supra- moral order even higher than the Basic Law (Tamanaha, 2004: 108-109). It is emphasized strongly that a mere declaration of such rights and norms in the law is not enough. If such law is to enjoy the status of a higher norm because it reflects the wishes of the people then there must be an institution that checks not only the formal validity of laws enacted by the political branches but also controls the substantive validity of such laws with the higher norm. The rule of law was transformed from mere formal legality which did not put limits particularly on the legislature to a substantive legality where it restrained the power vested in political institutions. In other words, the rule of law understood today puts a limit on the power of public institutions and ensures freedom to the citizen. Human rights are enshrined in post WWII constitutions and constitutional courts that enforce the will of the people (the constitution) are established as safeguards against violations by the political branches; and the rigid procedure for amending constitutions was the culmination of the rule of law as understood in the second half of the 20 th century.

134 | Law and Development, and Legal Pluralism in Ethiopia The rule of law understood this way is now largely agreed upon across societies although the manner of getting it realized varies. Such level of understanding indicates that the rule of law is ‘thick,’ not ‘thin’ or is substantive and not formalistic.

5. The Rule of Law and the CDRM: Convergence and Divergence The more formal understanding of the rule of law is incompatible with the CDRM that is founded on conventions and traditions that are based on the lived experiences of society. These lived experiences of society are largely based on the society’s broad-based agreement on the sense of equal and impartial justice, religion (often manifested in the form of fear of God or higher force), and morality and guided by higher sense of truth. This goes much beyond Fuller’s ‘the internal morality of law’ and remains consistent with Barak’s substantive version of rule of law. This conception of CDRM understood largely conforms to the more substantive sense of the rule of law also called constitutional state that emerged after the Second World War. The rule of law in this sense means systems in which public powers are subject and hence limited to or constrained by law not only in their form but also in the content of their decisions. It denotes legal and political systems in which all powers, including legislative power are constrained by substantive principles provided in the constitution such as separation of powers and human rights (Ferrajoli, 2007: 323). In many respects, CDRM as a process of dispute resolution and peacemaking as well as the norms that guide it such as truthfulness, equal treatment of parties, community peace are largely compatible with, if not better, than the rule of law. One core component of the rule of law is the due process of law also called procedural and formal justice. In all litigations, be it civil or criminal, parties are guaranteed to speedy trial by an impartial court of law that makes decisions only after listening to party’s claims and counterclaims as well as evidences. The judge is required to have no stake in the outcome of the case and must treat parties equally. He must also provide equal opportunities to the litigants. It also implies that unless exceptional circumstances dictate, the process must be open and transparent not only to the parties but to anyone interested. CDRM is guided by similar principles and values. In fact, CDRM even requires higher standards of justice by imposing loaded values on the trial process. The elders that are engaged in dispute resolution not only settle the particular dispute between parties but also are actively engaged in restoring severed relations in the community. Peace, not merely dispute resolution is the ultimate goal. The elders, the litigants and at times the community take

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 135 an oath both before and after the conflict resolution to ensure that the process is guided by higher sense of truth and not a mere disposal of the case. The whole process is inspired by religious and moral values that pass from generation to generation. The elders conduct their sessions largely in public places that are open not only to the parties but also to the community. Public hearing and the duty of treating parties equally and impartially are key elements in the process of dispute resolution. The community plays an active role as well in the decision making process. The elders listen to knowledgeable community members before they make their decisions. The elders earn the trust from the community to make such dispute resolution and peacemaking because of their reputation for knowledge and wisdom that they have accumulated it over years, for their impartiality, and familiarity with the community norms. In this respect it is vital to rethink the debate whether the rule of law ensures only formal procedures to the disputing parties such as the right to be heard by an impartial judge or whether it also guided by substantive norms. This debate is particularly acute in the USA where supreme court judges like Antonin Scalia (1997) insist on the fact that due process merely ensures procedural guarantees even arguing to the extent that so long as those procedures are not violated the state can take away not only one’s property but also one’s life. In the UK the idea that the rule of law embodies rights and freedoms is a settled principle ever since Dicey articulated the rule of law being founded both in the reign of law emanating both from parliament and judge made law in 1885. CDRM as illustrated above guarantees both procedural and substantive rights to parties. The fundamental values that guide the process of dispute resolution and peacemaking go far beyond procedural guarantees. Certainly the CDRM had its own limitations when compared to the rule of law. The rule of law ensures equality of all men and women before the law. Regardless of one’s socio-economic status or political position, the rule of law dictates and ensures everyone to be equal. Yet this should be taken with some grain of salt. The American Declaration of Independence (July 4, 1776) upon the end of British rule stated: ‘We hold these truths to be self- evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’ The French Revolution of 1789 in its Declaration of the Rights of Man stated its commitment to ‘equality, fraternity and liberty.’ Yet we know from history that such formal declarations were meant to apply only for the rich white man and the aristocracy. The minority (such as blacks), women, the illiterate and the poor who did not own sizeable amount wealth were excluded from the political process. Women gained their

136 | Law and Development, and Legal Pluralism in Ethiopia equality in the early 20 th century and African Americans earned their equality only in 1954 and thereafter (Dahl, 1998). Despite these historical setbacks, the rule of law today in its ‘thick sense’ cannot be thought of without a regime of human rights. CDRMs in this respect are challenged owing to their widely known limitations for excluding women and children from participating in the process of dispute resolution and peacemaking. Another area of divergence relates to the tendency to link rule of law with western liberalism (Tamanaha, 2004 argues there is no necessary link) based on individual rights and individual responsibility. In its more sophisticated sense, the rule of law points to the more complex relations between power (the state), law and the individual. That is, the law is capable of guiding one’s behaviour and that it controls/regulates power. The state exercises minimal power for maintaining law and order, or it may provide welfare to its citizens in its more interventionist sense. In doing so power can be tempting and may cause terror, or its abuse can harm the individual. The rule of law requires that power needs to be curtailed to the extent that is necessary for maximizing freedom of the individual. It is not that the rule of law is against power as such; but unrestrained power can cause not only harm to the individual but could even destroy rule of law democracy and human rights all at once (Ferrajoli, 2007: 74-75) as is evidenced from world history. This is substantiated by two devastating wars in a short span of time that necessitated the establishment of the UN systems and subsequent international treaties on human rights – hence called the age of rights). Moreover, similar lessons can be drawn from African history because post colonial Africa has suffered much under the hands of so called ‘big men’ that diminished the role of institutions including the rule of law under one party system. The rule of law minimally dictates that power needs to drive from law and needs to be restrained for the sake of the individual’s freedom. Rule of law in general and individual rights in particular focus on the individual’s responsibility. This is, for example, the foundation of modern criminal law that it is the individual who bears the responsibility for crimes he/she committed. The rule of law conception of justice is strongly linked to this idea. CDRM largely focuses on collective peace and settlement of disputes in which the individual case that has to be decided is viewed not in isolation but as part of the process of ensuring community peace and order. Obedience to societal norms and customs is largely based on the belief that such norms are fundamentally just. CDRM’s understanding of the sense of justice is different from the rule of law conception of justice even if we were to subscribe to the idea that rule of law is ‘thick’. CDRMs emphasise collective responsibility. When an individual is found to be guilty of an offence, the compensation that he has to make to the victim is largely the

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 137 product of contributions from his family, clan and the community. Even if the perpetrator was to be found guilty by regular/formal courts and gets released after serving his sentence, it does not mean that justice is done to the victim or his family. If the perpetrator is to be integrated into the community, he must go through the process of peace making based on his repentance and victim’s forgiveness to heal the wound he inflicted. Then rituals follow between the two families meant to restore social harmony. Only then one can say justice is done. In light of these illustrations CDRMs (unlike the rule of law) focus on the collective, not the individual. The rule of law as understood today is broadly against monopoly of power in one institution, party or individual. We thus know many constitutions that provide for separation of powers and vertical division of powers between the center and sub state entities. In CDRMs, the communities, not the state, are the actors. The elders combine and exercise complex powers. They set, establish or amend existing norms in the community. They investigate cases either on their own initiative or as requested by the conflicting parties and finally decide the case and restore community peace. Actors in CDRMs combine a whole set of functions and responsibilities whereas in the rule of law, power needs to be dispersed among several institutions and functionally differentiated.

6. Concluding remarks What comes out clearly is that the law needs to be grounded in society’s sense of justice, norms and lived realities. This understanding is at the core of both the rule of law and CDRMs. It is this deeper understanding of rule of law and CDRM that commands higher level of respect and voluntary obedience to the law and customs of society than the fear of the police or the state. It is also this factor that explains a better and smoother implementation of the law and customs. Another crucial point related to this point is the rule of law as a highly contested notion that gives rise to debates whether it is thick versus thin, substantive versus procedural, weak versus strong etc. The rule of law understood in the weak, thin or procedural sense is not compatible with CDRM. As Barak (2006:54) stated, this conception is ‘an impoverished notion of rule of law’ that is formalistic and devoid of content. The CDRM is rather compatible with the substantive, thick or stronger version of the rule of law. Actors at various levels of government need to take this into account in the process of designing policies and laws. The modern welfare state with its ambitions to intervene more in society’s affairs is often tempted to care less on this fundamental point. The plans and policies it wants to achieve can only be effective if they reflect the wishes, norms of the people and society’s

138 | Law and Development, and Legal Pluralism in Ethiopia sense of justice. Nonetheless, it does not mean that CDRM is free from weaknesses. Previous works have highlighted several of its weaknesses particularly in relation to rights of women that policy makers need to take into account while rectifying the deficiencies in the system. We have started out the chapter by raising important questions related to our conceptions of the rule of law and perhaps it is vital to conclude by pointing out some issues for further work. The emphasis in the introduction of this chapter was on the dilemma of having constitutions and yet failing to abide by them when it comes to constitutional/legal limitations on power, the dilemma often presented as ‘constitutions without constitutionalism’. Is it possible to achieve development, fight corruption and ensure impartial justice/speedy trial without violating the grand norms in the constitution? Have the constitution and rule of law been able to shape the behaviour of public institutions, for example, the executive? The government has introduced serious reforms related to measures that aim at eradicating poverty, fighting corruption, justice sector reforms to ensure speedy trial etc. Some of these reforms were introduced under controversial conditions when it comes to the constitution. For example, whether bail should be denied to all persons suspected of corruption remained a thorny issue when the law on anticorruption was enacted. Whether court reforms need to blend with the justice sector reforms under which the executive predominated the process and hence compromising the judiciary’s autonomy is an issue still unresolved. Whether socio economic rights (expansion in education, health services, infrastructure, etc) need to take precedence over civil and political rights is a critical issue out on the table. As a consequence of the ‘developmental state’, there is obviously an emphasis on the socio economic sector. Can democratization be achieved under this dilemma? The question remains: can we achieve development, speedy trial, and fight corruption without compromising constitutional values and the rule of law in its thick sense? At the end of the day the constitution and rule of law in its ‘thick sense’ must be able to shape the behaviour of public institutions and the leaders. The rule of law is not merely an instrument of power. It also sets some limits to it when the need arises.

Chapter 6. Customary Dispute Resolution Mechanisms and Rule of Law | 139 Reference List Aberra Jembere (2003), ‘Customary Law’ in S. Uhlig ed. Encyclopaedia Aethiopica, 1:839. Wiesbaden: Harrassowitz Verlag. Alula Pankhurst and Getachew Assefa eds. (2008), Grass-roots Justice in Ethiopia: The Contribution of Customary Dispute Resolution (Addis Ababa: United Printers,). Austin, John (1995), The Province of Jurisprudence . Cambridge: Cambridge University Press. Barak, Aharon (2006), The Judge in a Democracy . Princeton: Princeton University Press. Barron, Gordon (2005), The World Bank and Rule of Law Reform , Working Paper Series No. 05-70, Development Studies Institute, London School of Economics and Political Science. Chiba, Masaji (1993), ‘Legal Pluralism in Sri Lankan Society: Toward A general Theory of Non-Western Law.’ 33 J. Legal Pluralism and Unofficial Law. : 197- 212. Chirayath, Leila, Caroline Sage and Michael Woolcock (2005), Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems. Prepared as a background paper for the World Development Report 2006: Equity and Development July. Costa, Pietro, Danilo Zol, Eds. (2007), The Rule of Law: History, Theory and Criticism . Dordrecht: Springer Costa, Pietro, 2007 (2007), The Rule of Law: A Historical Introduction in Costa, Pietro, Danilo Zolo. Eds. The Rule of Law: History, Theory and Criticism. Dordrecht: Springer pp 73-150. Dahl, Robert, (1998), On Democracy . New Haven: Yale University Press. David, René (1962), ‘A Civil Code for Ethiopia: Considerations on the Codification of the in African Countries., 37 TUL.L.REV . pp. 187, 188- 89. Dicey, A. V. (1959), An Introduction to the Study of the Law of the Constitution 10 th edn. New Delhi: Universal Law Publishing. Ferrajoli, Luigi (2007), ‘ The Past and the Future of the Rule of Law’, Costa, Pietro, Danilo Zolo. Eds. 2007. The Rule of Law: History, Theory and Criticism . Dordrecht: Springer PP. 323-350. Fisher, Stanley (1971), “Traditional in Ethiopia,” The American Journal of . 19: 4 : 710-746. Fukuyama, Francis (2010), ‘Transitions to Rule of Law’ Journal of Democracy v. 21 No. 1 pp.33-44. Fuller, Lon (1964), Rev. Ed. The Morality of Law . New Haven: Yale University Press. Gebre Yntiso, Fekade Azeze, Assefa Fiseha eds. Customary Dispute Resolution Mechanisms in Ethiopia (Addis Ababa, Eclipse Printers, 2011). Hart, H. L. A. (1994), 2 nd edn . The Concept of Law . Oxford: Clarendon Press. Juma, Laurence (2002), ‘Reconciling African Customary Law And Human Rights In Kenya: Making A Case For Institutional Reformation And Revitalization of

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Chapter 7

Legal Pluralism in Multicultural Setting:

Legal Appraisal of Ethiopia’s Monist Criminal Justice System

Aberra Degefa ♣

1. Introduction Every people that does not want to lose its identity must link up with its pas t. Ruch & Anyanwu (1984)

Modern human society is characterized by different forms of diversity but the degree of such diversity may vary from society to society. Multicultural societies are characterized by multiplicity of normative systems. Wherever diverse normative systems coexist, there will be certain degree of interaction and overlapping. The coexistence and the consequent interaction and overlapping of multiple normative communities have given rise to what scholars have termed legal pluralism (Griffiths, 1986; Berman, 2009; Merry, 1988). Legal pluralism presupposes the existence of multiple bodies of norms of different origins within the confines of a state which excludes legal centralism by giving space to non-state laws (Tamanaha, 2008). Legal pluralism will be one feature of cultural diversity because what gives rise to pluralism is the existence of multiple sets of customary rules or normative orders embedded in the multicultural society (Merry, 1988). Ethiopia is a multicultural society where there are diverse groups of people with their own diverse customary laws and institutions that co-exist with the formal justice system albeit without formal recognition. In such a situation, one would expect multiple norms corresponding to the pluralist nature of the society. But in fact, particularly in the area of criminal justice, the multicultural setting has not given rise to legal plurality capable of accommodating diverse normative orders. As far as criminal justice is

♣ Assistant Professor of Law; LL.B, AAU (1987); Post- Graduate Diploma, ISS, The Hague (2000); LL.M, AAU (2005); and PhD candidate, AAU; e- mail:[email protected]. 141

142 | Law and Development, and Legal Pluralism in Ethiopia concerned, the formal legal criminal law system in Ethiopia has so far remained unwelcoming to the existing customary justice systems. Officially, the Ethiopian justice system has been characterized by its extreme centralist approach with lack of cultural sensitivity and relevance. The centralist ideology pursued in Ethiopia was based on the belief that “law is and should be the law of the state, uniform for all persons, exclusive of all other laws, and administered by a single set of state institutions” (Griffiths, 1986: 3). As it downplays the importance and potential value of local knowledge, the centralist formal criminal justice system in Ethiopia does not seem to appreciate and welcome the wisdom of solving local problems with local knowledge. As a result of this absence of recognition of customary justice systems and the imposition of alien justice system, the existing customary justice systems have been de-legtimized, undermined and the people disempowered. In this chapter, I give an overview of legal pluralism in multicultural setting with particular focus on criminal justice system of Ethiopia. In view of the fact that both the formal and the customary justice systems actually coexist in Ethiopia, I argue that legal pluralism is an issue that should be taken seriously. In my view, the centralist, exclusivist and retribution-driven criminal justice ideology needs to be re-examined with a view to explore possible ways of making the criminal justice system more pluralistic and restorative. The main intent of the chapter is to show factors necessitating official recognition of customary justice systems along with the formal criminal justice systems which means the official acceptance of legal pluralism in the area of criminal justice. The chapter proposes that, in Ethiopia, the frontiers of formal criminal justice can be redrawn in such a manner as to give space to the customary justice systems to the extent possible. Besides, the chapter contends that legal pluralism is a necessary feature of a federal multicultural society like Ethiopia. Such accommodation will help in alleviating some of the existing inadequacies of the formal criminal justice system. The meaning, nature and importance of legal pluralism are discussed in the second section of the chapter with a view to give conceptual framework. Conditions necessitating legal pluralism and the correlation between a pluralistic and legal pluralism are also examined in this part. The third section looks at the inadequacies of the current Ethiopian criminal justice system and thus the need for legal pluralism in criminal matters. The fourth section examines the relevance of legal pluralism in the context of development.

Chapter 7. Legal Pluralism in Multicultural Setting | 143

2. The Meaning, Nature and Importance of Legal Pluralism The meaning given to the concept of pluralism may vary depending on different disciplines. In philosophy and ethics, value (or moral) pluralism implies the existence of diversity of conflicting values. The concept of social pluralism is also used to refer to a society where different religious, cultural, ethnic or other groups live together. In political science, pluralism is used to indicate the existence of various political associations aiming for political influence (Merry, 1988). According to Twinning (2010), the concept of legal pluralism refers to legal systems, networks or orders co-existing within the same geographical space or jurisdiction. In this sense, the term is descriptive of a situation in which two or more distinct normative systems exist within the same political community. In this sense, legal pluralism also denotes normative concept referring to a system that recognizes other norms emanating from outside state institutions along with state-ordained system of norms. Legal pluralism is a mirror image of a society which is ethnically, religiously, culturally and legally diverse. It implies the existence of value pluralism where diverse and conflicting values co-exist in a given society in the same social field (Griffiths, 2002). Pluralism of values assumes that “there is a plurality of conflicting and incommensurable universal values” (Spector, 2009: p.355). Hence, in a legally pluralist society, there will usually be multiple, intermingled and conflicting norms with competing claim of authority (Tamanaha, 2008). As rightly put by Surya Prakash Sinha (1995): Legal polycentricity accepts the pluralism of moral values. Therefore, it conceives the problem of legal relationships in terms of relations among various normative orders within a legal system and seeks their recognition within that legal system. ... It is interested in discovering modes of allocation of decision making authority that would maximize the coexistence of these normative orders (p: 47, 48). In multi-cultural society, a legal system should not only be reflective of the diversity in the society but it should also protect distinctive and differentiated cultural rights and values. Multiculturalism requires that the law and the legal system be reflective of the diverse values and norms in the society. This will create a legal system responsive to the cultural diversification thus making the system accessible to the members of the society which it is supposed to serve. Justice has to be made accessible to each distinctive cultural group within the normative system pertaining to the culture to which he/she belongs (McNamara, 2006). In a multicultural setting, legal pluralism is often presented as a way of claiming communal identity and a way of recognizing customary practices.

144 | Law and Development, and Legal Pluralism in Ethiopia It is a way of fostering the protection of a group’s collective values and power to control its institutions and determine what happens within its territory. In as much as it gives space to non-state laws, legal pluralism excludes legal centralism (Griffiths, 1986). With increasing globalization and decentralization, compound systems have generally come to be viewed by lawyers and social scientists as examples of legal pluralism. Along with the force of globalization, in multicultural societies, there are internal pressures to maintain cultural identity and exercise local governance. In the context of multi-cultural societies, without some degree of decentralization of state power, it is difficult to have legal pluralism. In other words, the non-state institutions operating at different levels of government need to have the required level of authority/autonomy to enforce their decisions given on the basis of their norms. The question of legal pluralism is linked with questions of power and as such it challenges legal centralist/ uniformist perspectives about state law (Griffiths, 2002). In McAuslan’s view, “the issue of pluralism v. monism … is and always has been an issue of power; … a question of … who has political power, and over whom is that political power exercised?” (2005: 1). Consequently, since pluralism is a method of power sharing, the authority of formal and customary laws is ultimately dependent on power. In view of the power imbalance and the fact that state laws are backed by the coercive institutions of the state, they may get more enforceability than the customary laws. In a situation of legal pluralism, the relationship between the state and non-state justice systems may range along a continuum, which may vary from significant degree of overlapping or coexistence to the total exclusion of the informal justice system. There is a kind of spectrum where at one end, there may possibly be a clear case where the state totally outlaws and suppresses the non-state justice system in which case legal centralism or homogeneity prevails. At the other end of the spectrum may be another extreme case where the state integrates the non-state justice system into the state legal system. Hence, owing to the variation in the nature and the extent to which a certain state accommodates or outlaws non-state justice systems, it may not always be easy to determine exactly the degree of homogeneity and heterogeneity of justice systems (Forsyth, 2009). Where a certain state gives some space to the customary justice systems, the two may possibly coexist with a certain degree of interaction, overlap or conflict. In a situation of legal pluralism, a specific dispute or subject matter may possibly fall under multiple norms that co-exist within a particular country. Under such situations, individuals may possibly make use of more

Chapter 7. Legal Pluralism in Multicultural Setting | 145 than one law to justify their decisions or their behaviors (Tamanaha, 2008). The negative effect of this will be forum-shopping which can be regulated by having legally defined linkage system/interface between the formal and the customary justice systems (Forsyth, 2009; Harper, 2011; Penal Reform International, 2000). To sum up, legal pluralism is descriptive of a situation where multiple normative systems exist within the confine of a given multicultural society. The multiple normative systems include both the formal justice system and the non-state justice systems where there are interactions and overlapping between the multiple systems. This brief overview of the meaning, nature and significance of legal pluralism would enable us to look at the relevance of legal pluralism in Ethiopia.

3. The Need for Legal Pluralism under Ethiopian Criminal Justice System The politico-legal history of Ethiopia has been characterized by the suppression of the diverse customary and religious laws of the country. From the very outset, particularly from 1957 to 1965, as part of its unitarist policy, the Imperial Government of Haile Selassie I introduced a sweeping codification venture as a result of which six legal codes were adopted. The new alien laws were introduced with a view to establish a legally and politically centralist state where one law would be applicable in the whole country thus denying room for any kind of formal legal pluralism (Fisher, 1971). The 1960 Ethiopian Civil Code repealed customary laws for all matters provided for in the Civil Code (Art 3347). By the adoption of the 1957 Penal Code, the Ethiopian State assumed monopoly over all criminal matters. As a result, parties to criminal disputes were deprived of their right to settle their disputes out of court based on their customary laws. Hence, despite the diversity in Ethiopia, the codes are unitarist.. Until recent past, the legal homogenization and centralization which started at the end of the 19th century has continued uninterruptedly as part of the successive Ethiopian regimes perennial policy of ethnic homogenization and state centralization. With the adoption of the 1995 FDRE Constitution (the Constitution), a certain level of pluralist politico-legal order has been introduced in the area of civil law by constitutional recognition of the validity of customary and religious laws particularly in personal and family matters. Given the fact that, all previous Ethiopian rulers have pursued complete assimilationist and unitarist policy in the realm of legal and political arrangements all along, the constitutional recognition of multiculturalism in Ethiopia was a significant departure from the past. It has suggested that the adoption of a multinational

146 | Law and Development, and Legal Pluralism in Ethiopia federal system could give latitude for legal pluralism. In his view, along with “the adoption of the federal form of government in Ethiopia, the system of allowing the play of traditional norms in various parts of the country (the states) could be easily done” (Getachew, 2001, 18-27). But the latitude of legal pluralism allowed by the Constitution has not gone far enough to embrace the criminal justice system. The Constitution has made no departure from the old centralist and unitarist approach (Ethiopian Federal Criminal Code, 2004). The juridical monist view which accepts the identity between law and state seems to remain dominant in the area of criminal law. 1 One may argue that to the extent that the Constitution has given space to the possible adjudication of disputes relating to personal and family laws based on religious or customary laws (Article 34(5)) and to the extent that it has provided for the possible establishment or recognition of religious and customary courts (Article 78(5)), it has accepted legal pluralism. But the Constitution has not expressly provided cases where customary justice systems take part in the settlement of criminal disputes based on their own laws and institutions. Under Article 55(5) of the Constitution, States may enact penal laws on matters that are not specifically covered by federal penal legislation. If states were to give/delegate some of these residual powers to the customary justice systems, the scope of such power will solely depend on what the Federal penal legislation leaves uncovered. One inspiring move indicated in the Ethiopian Federal Criminal Policy (2001 Ethiopian Calendar) is the proposed alternative criminal dispute settlement out of court. As provided in the Policy, criminal ADR can be opted for by the parties with the discretion of the prosecutor and the court. In the alternative criminal dispute resolution, there will be reconciliation between the offender and the victim where the former pays compensation to the latter. Except that it gave full discretion to the prosecutor and the court, as a general framework, this Policy gives space to a limited degree of pluralism in the area of criminal justice system. The New Draft Criminal Procedure Code of Ethiopia (2002 E.C) appears to reflect what has been proposed in the Federal Criminal Policy. The Draft seems to open a possible pathway to legal pluralism in the area of criminal justice. Based on Articles 222-230 of the Draft Criminal Procedure Code, crimes that are referred to as ‘minor’ and ‘medium’ (Articles 2(4)(5)) may be resolved through alternative dispute resolution. Besides, pursuant to Articles 76-78 of the Draft Criminal Procedure Code, crimes punishable

1 Like Article 211(1) of the 1996 Constitution of the Republic of South Africa, the Constitution could have clearly given recognition to customary laws and their institutions so long as they are not inconsistent with the Constitution.

Chapter 7. Legal Pluralism in Multicultural Setting | 147 upon complaint can be settled out of court. But the issues that have not been clearly indicated in the Draft Criminal Procedure Code are: (a) whether these possible bodies to be organized or recognized by the Public Prosecutor are going to be those courts recognized by the Constitution under Arts 34(5) and 78(5), and (b) whether these institutions can use customary laws in settling the criminal disputes to be referred to them. 2 Despite lack of official recognition, the customary justice systems are widely used in the area of criminal justice in most of the rural parts of Ethiopia. The customary justice systems operate informally based on their own customary laws, procedures and institutions at the community level. For this reason, there is divergence between the multicultural and diversified social structure and the centralist legal system. The formal and the customary justice systems coexist in fact but their relationship can be explained as uneasy (Macfarlene, 2007; Tsegaye et al. 2008; Pankhurst & Getachew, 2008). In practice, even in the face of the unwelcoming Ethiopian legal climate for customary justice systems, the various non-state legal orders coexist along with the formal legal system. The customary justice systems appear to have resisted and survived the sweeping and hostile abolition measures taken by the state against them (Pankhurst & Getachew, 2008). In general, although studies have shown that various people in Ethiopia have their own customary laws and institutions, the Ethiopian legal system has not as yet been able to foster actively a society in which cultural pluralism and identity politics could flourish in the legal sphere (Macfarlene, 2007; Pankhurst & Getachew, 2008). According to Fajardo, in a pluralist perspective, “the coexistence of various juridical systems within one geographical space (the State) is allowed” (1998:199). Griffiths also maintains that, “legal pluralism and ‘social pluralism’ are congruent” (1986: 38). Even among legal scholars, except very few (Tsegaye et al, 2008; Gebre, Fekade, Assefa, 2011; Macfarlene, 2007, Pankhurst & Getachew,2008; Jetu Edossa, 2011), as yet there seems to be little research interest concerning the desirability and the means of giving more space to any of the customary justice systems in the area of criminal justice. The legal education system itself appears to reinforce the supremacy of state made law and the inferiority of customary laws. Currently, an introductory customary law course is offered at an undergraduate level in all

2 Given the restricted subject matters envisaged under these provisions of the Constitution, it is possible to argue that Ethiopia has not recognized legal pluralism that extends to the sphere of criminal justice system. Structurally, the Draft Criminal Procedure Code has not indicated whether or not customary justice systems are going to be part of the formal criminal justice system.

148 | Law and Development, and Legal Pluralism in Ethiopia law schools of Ethiopia, which merely intends to make the students familiar with the concepts of custom, the nature of customary law, and the interplay between customary law and state made law (Muradu Abdo & Gebreyesus Abegaz, 2009). This may possibly give the impression that customary laws have been given some space, but the students are trained to practice state made criminal law which allows almost no space for the application of customary laws. This indicates how educational institutions also implicitly reinforce the supremacy of state made law and the inferiority of customary laws. A legal system of a given society can be effective only if it is reflective of the character of the society. The Ethiopian criminal justice system can also be more effective if it becomes responsive to the needs of the pluralistic character of the Ethiopian society. In order to make it more responsive, there has to be a shift of policy away from the current monistic approach towards more pluralistic criminal justice approach. Today, more and more countries and people are looking for a better criminal justice model within their existing traditions and cultures and finding culturally appropriate practices that can be used in criminal justice process (Van Ness, 2005). In view of this global trend 3, one would wonder why in Ethiopia, where there are multiplicities of legal norms, the previous exclusivist and centralist criminal policy is being maintained. As things stand, the Ethiopian formal criminal justice system seems to remain faithful to its old ‘one-size–fits-all’ criminal policy. Due to the unwelcoming Ethiopian monistic legal landscape, the various customary justice systems are facing challenges threatening their continuing existence (Macfarlene, 2007). The de facto functioning customary criminal dispute settlement systems lack official recognition and resource support. Although community members want their cases to be settled in a traditional way, the authorized government officials insist that all criminal cases be brought before regular courts. 4 A baseline survey made in some parts of Oromia has revealed that there have been tensions between the police who

3 The main factor for this global trend is the fact that victims, offenders and the community, who are the main stakeholders lack control over the formal criminal justice process and outcome. The formal criminal justice disregards the material, emotional and social needs of victims. Overall, dissatisfaction with the performance of the formal criminal justice system has led to the demand for the use or revitalizing of customary justice systems. 4 The customary criminal justice system is being threatened because the state has more power, resources and coercive apparatus at its disposal to enforce its decisions. Besides, criminal disputes settled out of court are being retried where offenders are subjected to double jeopardy (Author’s fieldwork in Borana Zone of Oromia National Regional State, Ethiopia, 2012).

Chapter 7. Legal Pluralism in Multicultural Setting | 149 want criminal cases to be brought before regular courts and community members who want their criminal disputes to be settled based on customary justice system with which they are familiar and comfortable (Tsegaye et al , 2008). The customary justice systems have their own laws, procedures and institutions. Structurally, customary justice systems have hierarchy of dispute resolving forums where small disputes are usually adjudicated at the lower levels and others are referred to higher levels depending on their complexity. At lower levels, the small disputes may be adjudicated within the family by respected elders within the extended family. For complex disputes, adjudicators at higher levels might include persons with specific expertise in customary law, traditional leaders, and religious leaders (Harper, 2011). In terms of process and outcome, studies made in Ethiopia have revealed some important characteristics of the various customary justice practices which make them attractive to the people. In their nature, the customary justice systems are characterized by being more accessible, flexible, participatory, and culturally appropriate (Macfarlene, 2007; Pankhurst & Getachew, 2008; Tsegaye et al., 2008). The customary justice systems have a dynamic and flexible operating modality. They apply flexible rules and procedures and the norms are changed from time to time in response to the changing social, economic and political realities. As they make no distinction between civil and criminal offenses, customary justice systems are also characterized by having broad jurisdiction. Under customary justice systems, wrong-doing in general is perceived in terms of its disruption of social harmony. For this reason, adjudicators deal with both types of disputes in the same manner (Macfarlene, 2007; Pankhurst & Getachew, 2008). According to Zehr (1990), a dispute or conflict between members of a community is a problem which affects the community as a whole not only the victim. A crime committed by offender causes harm to both the victim and the community. Harmony will come only when there is a “general satisfaction among the community at large, as well as the disputants, with the procedure and the outcome of the case” (Zehr, 1990: 26). Under the various Ethiopian customary justice systems, a dispute between parties is perceived as a conflict affecting the total relationships between parties and as such it does not isolate dispute from its overall social context. The dispute resolution process is participatory and the decision is consensus-based (Pankhurst & Getachew, 2008). In order to ensure compliance and enforcement of the decision through social pressure, consensus is required. For this reason, offenders, victims, others who have stake in the case and the community participate in the dispute resolution which makes the solution

150 | Law and Development, and Legal Pluralism in Ethiopia acceptable to the parties and the wider community (Penal Reform International, 2000; Ubink & McInerney, 2011; Harper, 2011). In terms of outcomes, customary justice processes generally bring about compromises or win-win rather than zero-sum decisions. For this reason, decisions given based on customary laws are mutually acceptable to all parties. In his/her part, in order to fully be reintegrated into the community, the offender has to apologize for the wrong he/she has committed and compensate the victim upon which, the victim and the community forgive the offender and accept him/her into the community. Under the traditional or customary justice systems, the guiding objective is “to restore peace and social harmony with the community by ensuring that disputants and their respective supporters are reconciled” (Penal Reform International, 2000: p 24). When looked at, in terms of achieving its objectives of controlling crime and satisfying the needs of the stakeholders, the formal criminal justice system of Ethiopia has not been performing well (Oromia Capacity Building Bureau, 2009). As statistics at the Federal level indicates, the rate of crime does not appear to have reduced. In the years 1995-2003, the number of has grown from 140,294 to 247,818. The number of offenders for the same period has grown from 219,965 to 384,007 (Ethiopian Statistical Abstracts, 2003). In my view, this inadequacy in the performance of the formal criminal justice would make the search for a more constructive and effective ways of dealing with crime necessary. The ever increasing rate of crime and the inevitable need to handle all these cases in regular courts that have already been inundated with caseloads seems to require some kind of alternative mechanisms where some of these cases may possibly be diverted to. In view of the unsatisfactory performance of the formal criminal justice system in Ethiopia, we need to look for a better criminal justice system capable of responding to the problems of crime and its consequences. In this venture, the various widely accepted de facto functioning customary dispute settlement systems need to be explored with a view to use them along with the formal criminal justice system. This would necessitate some degree of acceptance of legal pluralism in the area of criminal justice system in line with the pluralistic and federal characteristic of the country. In view of the facts on the ground which show that the customary justice systems are working well, engagement with the systems cannot simply be disregarded. Certainly, one should not overlook those limitations that tend to undermine the potential value of customary justice systems. Weak procedural safeguard, lack of accountability and enforcement capacity, and failure to comply with human rights standards are some of the limitations of

Chapter 7. Legal Pluralism in Multicultural Setting | 151 customary justice systems that are often mentioned. The flexibility of the rules and procedures of customary justice systems may result in unpredictable and arbitrary decisions (Harper, 2011; Wojkowska, 2006). The decisions made by the customary justice systems may sometimes fail to be executed since customary justice systems rely primarily on social pressure for the enforcement of their decisions. The customary justice systems are not well-resourced and the proceedings and decisions are not recorded (Ubink & McInerney, 2011). Despite these limitations, studies reveal that people still prefer customary justice systems (Penal Reform International, 2000; Harper, 2011; Dejene, 2002; Gebre, Fekade, Assefa, 2011; Jetu, 2012; Pankhurst & Getachew; 2008; Tsegaye et al, 2008). The customary justice systems are still “more influential and affect the lives of more Ethiopians than the formal system, which is remote from the lives of many ordinary people” (Macfarlane, 2007, p.488). From the perspective of users, the positive attributes of the systems seems to outweigh these limitations. In terms of making justice accessible to the poor and enabling the people to take part in the justice process, customary justice systems provide a better option. In the outcome of the justice process itself, customary justice systems deliver decisions that are mutually acceptable to all the parties/stakeholders. In my view, the relatively structured and widely used customary justice systems in the country can be taken as part of the overall governance structure at the local level. They can be strengthened and reformed with a view to make them deal effectively with minor criminal disputes and conflicts at community level. The more serious and complex criminal cases should be left to the state. In order to make the best use of both systems, proper and legally defined linkages have to be built between the two. In determining the interface between the formal and customary justice systems, arrangements may be made regarding jurisdictional boundaries, referral of cases and appeal system. If customary justice systems deal with certain criminal cases parallel with the formal criminal justice, significant number of cases in regular courts may possibly be channeled to that alternative justice process which may reduce caseloads in courts, costs and time of the parties to a criminal dispute. Particularly in rural parts of Ethiopia where state justice institutions are weak, this would enable the people to access the available and user- friendly justice system. This would also mean empowering the people by way of giving them wider margin of self-regulation. In short, engaging customary justice systems would enable the people of Ethiopia to meaningfully choose remedies from the range of systems available.

152 | Law and Development, and Legal Pluralism in Ethiopia The dynamic and flexible features of customary justice systems can be taken as useful in curbing their flaws. These features allow the systems to constantly grow and adapt to the social, cultural, economic, and political imperatives of the society in which they operate. As such, the systems are capable of curbing the existing flaws and building on their strengths (Harper, 2011; Penal Reform International, 2000; Ubink & McInerney, 2011). In other words, the weaknesses of the systems can be removed without destroying the systems. One should not throw ‘the baby with the bath water’.

4. Legal Pluralism-Development Nexus This section looks into the relationship between development and legal pluralism with a view to show the merits of embracing pluralism in the area of criminal justice in Ethiopia. Development, according to Amartya Sen, is “a process of expanding the real freedoms that people enjoy” (Sen, 1999:3). In Sen’s view, violation of these real freedoms result “directly from a denial of political and civil liberties by authoritarian regimes and from imposed restrictions on the freedom to participate in the social, political and economic life of the society” (Sen, 1999: 4). Accessible legal frameworks are considered fundamental to all development processes (Sage, Menzies & Woolcock, 2010). The right to development is a fundamental right; it is described as “an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized” (Article 1 (1) of the Declaration on the Right to Development, 1986). The full enjoyment of fundamental freedoms would entail allowing a community to self- regulate in certain legal matters. In that sense, the right to development will be an integral part of a group’s right to self-determination. Hence, in the context of developing multicultural countries, for the realization of the right to development, engagement with customary justice systems becomes imperative (Harper, 2011). Access to justice is one of the fundamental rights. But for the majority of the people living in the rural areas, the formal justice services provided by the state cannot be reached. As the regular courts are very far from rural villages, travel is costly and time consuming. The formal justice institutions, like courts, lawyers, the prosecutor and the police are inaccessible to the poor and the rural people. The time and expense required to pursue a case makes the formal justice in Ethiopia unaffordable to the majority of the rural people. In many developing multicultural countries including Ethiopia, since

Chapter 7. Legal Pluralism in Multicultural Setting | 153 states cannot provide access to justice for all its population, to reach the poor and the marginalized, making use of grass roots customary justice systems will be necessary (Penal Reform International, 2000; Harper, 2011). In Africa and many parts of the world where customary justice systems are functioning well, a dispute is viewed as a threat to human relationships and development since it disrupts and violates the accepted norms and values of a community which sustains and protects social harmony (Dzivenu, 2008:5). As experienced in many multicultural countries, embracing non-state normative orders by way of legal pluralism has made significant influence on the way in which order is maintained, disputes are resolved and development is experienced (Fajardo, 1998). Settlement of disputes through consensual contributes towards peace and economic development. Certainly, in the absence of peace and stability, sustainable development is not possible. By averting violence at community level through consensual means of settling disputes, customary justice systems will help in the building of the rule of law and sustainable development (Sage et al. 2010; Harper, 2011). As they offer cheap, accessible and legitimate services to community members that use the justice system, customary justice systems favor the rural people and the marginalized. It is this accessibility which has made the customary justice system more attractive to the rural poor and the marginalized groups. The payment of compensation between groups is a common means of re-establishing peace, reinforcing the social harmony both within and between groups. For these reasons, disputing parties usually seek to have their cases withdrawn from the court to be dealt with in communities based on customary rules. When their requests for withdrawal are not granted, the disputing parties and others usually refuse to appear in court as complainants and witnesses (Tsegaye et al . 2008). In multicultural societies like Ethiopia, where non-state normative systems are so important, state-centered exclusivist top down approach to justice administration would not be favorable to sustainable development. Sustainable development can come about through bottom up participatory approach where the concerned people voluntarily take part in the development process. The people may not willingly take part in the development process where their customary institutions embodying their values and practices are ignored. In the bottom-up approach, both the people and their non-state institutions can be put to use for development. The bottom up participatory approach will ensure access to justice, increase empowerment of the poor and make both the people and the state partners in development efforts (Sage et al. 2010).

154 | Law and Development, and Legal Pluralism in Ethiopia From the political perspective, this bottom–up approach would also be important. In the context of criminal justice and pluralism, legal systems themselves are inherently political as they involve “legitimate negotiations between different institutions and interests” (Sage et al, 2010:3). In Sen’s view (2000), the effect of giving people political power is to allow them to have the ability to address their problems. In this regard, the bottom-up and participatory approach to development would not only enable the people to take part in the development process based upon their needs and preferences, it would also make the development sustainable by making the best use of the grass roots customary institutions including justice institutions. In its broader sense, development is both economic and democratic. “Economic development that does not enhance respect for human rights and democracy is a hollow victory at best” (Ahmed Aoued, 2003: 21). Ultimately, development is about developing and distributing of rights, resources and responsibilities where “justice systems play a key role in shaping this distribution of power and vice versa” (Sage et al. 2010: 2).

5. Conclusion Human beings in modern society live in a world of diverse, overlapping normative communities referred to as legal pluralism; legal pluralism is a necessary feature of a multicultural society. Legal pluralism is often contrasted with legal centralism where one law is applicable to everyone within the jurisdiction of a state. In Ethiopia, as part of their nation-building project, the past rulers of the country have brought in alien Western laws and transplanted them with a view to create a Nation with one language, culture and one uniform law as a tool of unification. The sweeping legal transplant project has failed to bring about the desired result. With the adoption of the FDRE Constitution, a significant departure was made from the previous unitarist politico-legal approach by establishing a federal state structure by recognizing the multiethnic character of the society. But as briefly looked at in this chapter, despite the fact that Ethiopian society is characterized by multiple cultures and normative orders, it still has highly centralized criminal justice system. The formal criminal justice system has maintained its exclusivist approach where the state claims full control of prosecuting and punishing offenders. The justice system has given no space to the non-State laws and institutions. The justice process excludes victims and the concerned communities. What is more, there seems to be total disregard for the compensation to be paid to victims for harm resulting from the crime committed against them by offenders. The retributive

Chapter 7. Legal Pluralism in Multicultural Setting | 155 approach of the formal criminal justice considers incarceration of offenders as the only option to deter crime and rehabilitate offenders. But after having been locked up behind bars for years, most offenders do not appear to be reformed or rehabilitated. There seems to be difficulty on the part of the offenders to successfully reintegrate into their community. As a multicultural federal system, Ethiopia should thus have opted for a juridically plural legal structure that accommodates or reflects the pluralistic character of State/communities making up the federation. The current centralist/exclusivist criminal justice system is not congruent with the pluralistic nature of the society. In view of the fact that customary justice systems are widely accepted and used in several parts of rural Ethiopia, the importance of customary justice systems cannot easily be dismissed. In the Ethiopian multicultural setting, legal pluralism will be a way of recognizing customary practices. It will also be a means of realizing the people’s collective right to use their own legal system. Most importantly, the application of customary justice systems along with formal justice system would make justice accessible to the people. Access to justice is much more than simple access to formal courts. For the different communities in Ethiopia having their own justice systems, access to justice includes access to justice of their own choice. When the majority of Ethiopian people are actually making use of their own customary justice system effectively and want to continue using it, depriving them of this right would amount to losing development partners. Allowing them to use their own customary justice systems will help them reduce the costs of resolving disputes. For the poorest segment of the population who live in rural Ethiopia, reducing the costs of resolving disputes will enhance the exercise of their basic economic, civil, and political rights which is a pre-condition for sustainable development. Most importantly, in as much as the diverse communities in Ethiopia are the holders of both the right to development and the right to use their customary justice systems, 5 giving official recognition to the existing diverse customary justice systems would make the people fully participatory in any development effort which would contribute to sustainable development.

5 The Constitution has given recognition to the multicultural character of the country (see also Articles 91(1), 41(9)). If this recognition of diversity does not extend to allowing the people to make use of their customary justice systems and preserve their traditional institutions, the people will fail to identify themselves with the Constitution and the system it establishes.

156 | Law and Development, and Legal Pluralism in Ethiopia

Reference List

Books Aoued, A. (2003). The Right to Development as a Basic Human Right. In W. L. Kjonstad, & P. Robson (eds.), Law And Poverty: The Legal System And Poverty Reduction, (pp. 11-30). London: Crop International Studies. Fajardo, R. Y. (1998). The Constitutional Recognition of Indigenous Law In Andean Countries. In; W. Assies; G.van der Haar & A. Hoekema(eds). The Challenge Of Diversity: Indigenous Peoples and Reform of The State in Latin America. 197-222. Amsterdam: Thela Thesis. Forsyth, M. (2009). A Bird That Flies With Two Wings , Canberra: Australian National University. Gebre Yentiso, Fekade Azeze, Assefa Fiseha, (Eds.), (2011). Customary Dispute Resolution Mechanisms in Ethiopia. The Ethiopian Arbitration and Conciliation Center, Addis Ababa. Griffiths, A. (2002). Legal Pluralism. In Banaker, R. &Travers, M (Eds.). An Introduction to law and Society (pp 289-310). Portland: Hart Publishers. Harper, E. (2011).Customary Justice: From Program Design to Impact Evaluation , Rome: International Development Law Organization. Pankhurst, A. & Getachew Assefa (Eds.). (2008). Grass Roots Justice in Ethiopia: The Contribution of Customary Dispute Resolution. Addis Ababa: French Center of Ethiopia Studies. Penal Reform International, (2000). Access To Justice In Sub Saharan Africa. The Role of Traditional And Informal Justice Systems. London: Astron Printers. Retrieved August 28, 2012 from www. penalreform.org. Sage, C., Menzies, N. & Woolcock, M. (2010). Taking the Rules of the Game Seriously: Mainstreaming Justice in Development, Legal Empowerment Working Papers, Paper No. 5. Rome: International Development Law Organization (IDLO). Sen , A. (1999). Development as Freedom. Oxford: Oxford University Press. Sinha, S. P. (1995). Legal Polycentricity . In Hanne Petsersen and Henrik Zahle, Legal Polycentricity: Consequences of Pluralism in Law ( 31). Tsegaye Regassa, Urgessa Genemo and Tena Yigezu ( 2008). Restorative Justice In Oromia Baseline Study. Addis Ababa: Justice for all & Pf-Ethiopia. Ubink, J. McInerney, T. (eds.). (2011). Customary Justice: Perspectives on Legal Empowerment. International Development Law Organization (IDLO): University of Leiden. Wojkowska, E. (2006). Doing Justice: How Informal Justice Systems Can Contribute. UNDP-Oslo Governance Centre. Zehr, H. (1990). Changing Lenses: A New Focus for Crime and Justice. Scottsdale: Herald Press.

Chapter 7. Legal Pluralism in Multicultural Setting | 157 Journal Articles Berman, P. S. (2009). The New Legal Pluralism . The Annual Review of Law and Social Science, 5, 225-242. Dzivenu, S. (2008). The Politics of Inclusion and Exclusion of Traditional Authorities in Africa: Chiefs And Justice Administration in Botswana and Ghana. Political Perspectives , 2(1), 1-30. Fisher, S. (1971). Traditional Criminal Procedure in Ethiopia. The American Journal of Comparative Law , 19 (4), 710-746. Getachew Assefa (2001). Re-Evaluating the Legitimacy of The Codified Laws in Ethiopia. The Law Student Bulletin, Law Faculty, AAU. (2), p. 20. Griffiths, J. (1986). ‘What Is Legal Pluralism? ’ Journal of legal Pluralism and Unofficial Law , 24, 1-55. Jetu Edossa, (2012), M ediating Criminal Matters in Ethiopian Criminal Justice System: The Prospect of Restorative Justice. Oromia Law Journal , 1(1), 99- 143. Macfarlane, J. (2007). Working Towards Restorative Justice In Ethiopia: Integrating Traditional Conflict Resolution System With The Formal Legal System. Cardozo Journal of Conflict Resolution , 8, 487-509. McNamara , L. (2006). Equality before the Law' In Polyethnic Societies: The Construction of Normative Criminal Law Standards , E LAW: Murdoch University Electronic Journal of Law , 11(2), 2004. Merry, S. A. (1988). Legal Pluralism, Law & Society Review , 22(5), 869-896. Spector, H. (2009). Value Pluralism and The Two Concepts Of Rights, RMM Perspectives in Moral Science , 355-371. Tamanaha, B. Z. (2000). A Non-Essentialist Version of Legal Pluralism , Journal of Law and Society 27(2), 296-321 Tamanaha, B. Z. (2008). Understanding Legal Pluralism: Past to present Local to Global. Sydney Law Journal , 30, 375-411 Twining, W. (2010). Normative and Legal Pluralism: A Global Perspective, Duke Journal of Comparative Law & International Law . 20, 473-517.

Laws Constitution of the Republic of South Africa, 1996. Criminal Code of the Federal Democratic Republic of Ethiopia 2004 [Ethiopia], Proclamation No. 414 of 2004, 9 May 200. Federal Democratic Republic of Ethiopia Draft Criminal Procedure Code, 2002 Ethiopian Calendar. Federal Democratic Republic of Ethiopia (FDRE) Constitution, (1995). Proclamation No 1/1995. Federal Negarit Gazeta Year 1, No. 1, 21st August 1995. Addis Ababa.

158 | Law and Development, and Legal Pluralism in Ethiopia The Civil Code of the Empire of Ethiopia, (1960), Proclamation No. 165, Negarit Gazeta , 19 th Year No.2. Addis Ababa: Ethiopia. The New Federal Democratic Republic of Ethiopia Draft Criminal Procedure Code (2002 E.C). Addis Ababa. The Penal Code of the Empire of Ethiopia, Proclamation no. 158 of 1957.Addis Ababa: Ethiopia.

Others Dejene Gemechu, (2002). Some aspects of conflict and conflict resolution among Woliso Oromo of Eastern Macha with particular emphasis on Guma . Master’s thesis. Graduate Studies, Addis Ababa University. Federal Ethiopia National Statistics, (2003). Central Statistical Agency (CSA). Addis Ababa. Federal Democratic Republic Ethiopia Criminal Policy (Amharic), Miazia 13, 2001, Addis Ababa: Ministry of Justice. McAuslan, P (2005) Legal Pluralism As A Policy Option: Is It Desirable, Is It Doable? UNDP-International Land Coalition Workshop: Land Rights for African Development: From Knowledge to Action Nairobi, October 31 – November 3, 2005 (Proceedings: http://www.undp.org/drylands/lt-workshop- 11-05.htm) Muradu Abdo, Gebreyesus Abegaz, (2009). Customary law, Teaching Material . Addis Ababa: Justice and Legal System Research Institute. Oromia Capacity Building Bureau, (2009). Preliminary Study of Non-Formal Justice System In Oromia, Research, Consultancy and Training Institute (RECOT). U. N. Declaration on the Right to Development, General Assembly Resolution 41/128 of 4 December 1986. Van Ness, D. (2005). An Overview of Restorative Justice around the World. Eleventh United Nations Congress on crime prevention and criminal justice. April 2005, Bangkok.

Chapter 8

Reflections on Gender Justice and Legal Pluralism in Ethiopia

♣ Rakeb Messele Aberra

1. Introduction Recent legislative efforts to bring about gender equality and ensure access to justice have brought about increased participation in decision-making, some economic empowerment and protection from violence for women. Gender justice entails ending the inequalities between women and men that are produced and reproduced in the family, the community, the market and the state. 1 The term ‘gender justice’ is understood to encompass a broad menu of policy and legislative reforms aimed at removing discrimination against women and promoting gender equality. 2 Therefore, gender justice does not only refer to the existence of policies and legislation, but also to their effective implementation, which include challenging discriminatory practices emanating from plural legal systems, cultural and traditional attitudes and practices towards women. The purpose of this chapter is to discuss the place of gender in the law and development discourse; how we should engender the law and development discourse in contemporary Ethiopia; and how women’s human rights complement the developmental aspiration of the state. The chapter is written based on personal observations, and desk review of reports and articles. The next section provides a general background to the issue of gendered justice while the third section discusses gendered justice within the

♣ LL.B from the Faculty of Law of Addis Ababa University; and LL.M in Human Rights and Democratization in Africa from University of Pretoria, South Africa. She has worked for many years in the area of women and children’s rights for various government and non-governmental organizations in different countries. Email: [email protected]. 1 UNIFEM Gender Justice: Key to Achieving the Millennium Development Goals (2010) New York, p.3 accessed on 7 November 2012 2 UNDP Gender Equality and Justice Programming: Equitable Access to Justice for Women (2007) p.9 http://www.undp.org.ir/gender/Equitable%20Access%20to%20Justice_EN- EBOOK.pdf> accessed on 7 November 2012 159

160 | Law and Development, and Legal Pluralism in Ethiopia Ethiopian context and how women’s human rights fare in the development process of Ethiopia. The fouth section identifies and discusses promising practices where women’s human rights were successfully implemented within the developmental aspiration of different countries. Finally, recommendations are forwarded regarding the need for the implementation of measures to ensure that women’s human rights are respected and protected within a plural legal system.

2. General Background Laws can create a solid foundation to shape society, hold individuals and institutions accountable and prevent abuse of power. Legislation prohibiting discrimination and harmful traditional practices, criminalizing rape and domestic violence, guaranteeing equal pay for equal work, providing for maternity leave, increasing the age of marriage of girls to 18 years, and guaranteeing equality within the family have contributed to significant progress in women’s daily lives. Various international human rights instruments ratified by states, and in particular, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) have offered major momentum for women’s movement to demand for their rights. However, the remarkable advancement in legal frameworks has not entailed an automatic equality in accessing justice and in benefiting from development goals. Even though effective legal and justice systems can provide a mechanism for women to achieve their rights and benefit from development, there are still laws that tend to reflect and reinforce the privilege and interests of men and are against the interests of women and their rights. Women around the world are still denied equal rights to inherit and own property on a par with men, which could be detrimental to development. Furthermore, the processes and outcomes of justice often offer preference and/or privilege to men. Neutral laws usually remain on paper and such laws not translate into equality and justice on the ground. There are still major gaps in making formal rights operational. Even when governments recognize women’s rights in principle, they fail to fulfil their responsibilities to adopt appropriate and efficient policies to ensure the universal realization of these rights. In countries, such as Ethiopia, even though there are constitutional provisions that guarantee gender equality, some specific laws that are discriminatory and inadequate are still not brought in line with international and constitutional standards of gender equality and women’s rights. Poor enforcement further makes these provisions hollow promises that have very little effect on the standard of living of women. The rules of evidence and

Chapter 8. Reflections on Gender Justice and Legal Pluralism in Ethiopia | 161 procedural laws, which may seem neutral from the outset, may be discriminatory against women as women are unable to provide evidence to the satisfaction of the courts in case, for instance of marital disputes and inheritance. Laws that guarantee equal rights may also have unequal outcomes because they interact with discriminatory and biased cultural practices and attitudes. Despite remarkable gains in women’s legal rights, discrimination against women still persists in various areas of development; and women continue to be deprived of economic resources and access to public services. Even though governments have taken steps to regulate the formal employment sector, most fail to regulate the informal sector, in which the majority of women tend to be engaged in. Furthermore, even in countries where there are laws that recognize the land rights of women, women’s actual control over land is limited because actual control of land involves a complex interplay between different legal systems – state, customary and religious. 3 Addressing sexual and reproductive health and rights is an integral part of efforts to advance gender equality and ensure women’s autonomy. However, limited access to health care services, including those related to family planning, lead many women to health risks and injuries. The criminalization of abortion has been raised in various countries as one of the main factors that push women to unsafe abortion, resulting in the death and injury of many women, and becoming a major obstacle in achieving women’s sexual and reproductive health and rights. Article 2 of CEDAW requires ratifying states to establish legal protection of rights of women on an equal basis with men and to ensure the effective protection of women against any act of discrimination through competent national tribunals and other public institutions. However, capacity gaps, inadequate justice structures and services prevent most women from accessing justice. Most justice systems and institutions fail to address women’s particular needs, leading to secondary victimization of women. Furthermore, legal and judicial services entail costs, by way of attorney fees and travel costs to access courts that women, being the poorest of the poor, cannot afford. Limited access to free legal services, compounded by frequent adjournments and delays, discourage many women to use the justice structures and services. Those who manage to access the institutions of justice will still face discrimination, due to discriminatory attitudes and lack of capacity of

3 UN Women Progress of the World’s Women 2011 – 2012: In Pursuit of Justice (2011) accessible on the internet at p.39 accessed on 7 October 2012

162 | Law and Development, and Legal Pluralism in Ethiopia service providers, including the police and judicial officials. This further affects the confidence and trust that women have on the justice system, resulting in high levels of under-reporting and attrition of cases related to violation of women’s rights. Women’s lack of knowledge of their rights or the justice system, financial dependence on men, fear of reprisal and stigma are some of the social barriers in accessing the justice system. Considerable advances were further witnessed in the 1990s in terms of women’s political representation, notably through quotas. The increasing number of women in political and public institutions is a pivotal factor in achieving progressive legal reform in favour of women. However, the mere increase of the number of women in parliament and public institutions does not necessarily result in gender justice. Gender inequality is an obstacle that hampers the achievement of the Millennium Development Goals. Gender justice requires that mainstream institutions, from justice to social to economic policymaking, be accountable for addressing the injustice and discrimination that keep too many women poor and excluded from the benefits of development. However, efforts toward the achievement of gender equality are not coordinated and integrated. The attainment of gender justice may be challenging in contexts where multiple legal systems co-exit. The formal justice system is, in most countries urban-based, and this makes it physically, socially and economically inaccessible to rural women. Due to the inaccessibility of the formal institutions of justice, majority of women living in rural areas commonly rely on traditional and religious institutions to file complaints and have wrongs redressed. The decisions of these customary and religious institutions are also more binding on community members, especially in matters pertaining to family law, including marital disputes, and inheritance. Some argue that customary justice institutions should be supported to increase access to justice for marginalized people, as they are considered to be more legitimate, relevant and accessible. 4 However, same as the formal legal system, these institutions are mainly led by male elders, and their judgements commonly serve the interests and needs of men with little or no recognition of human rights principles and gender justice. Councils of elders and/or religious and traditional chiefs are male elders, giving the power to decide to men and giving women limited chance of getting a fair hearing. Traditional and religious laws often contain discriminatory provisions against women, especially in matters related to family and property. The Committee on the Convention for the Elimination

4 UNDP (2007) See above at No. 2, p. 14.

Chapter 8. Reflections on Gender Justice and Legal Pluralism in Ethiopia | 163 of All Forms of Discrimination against Women has noted that inequality in the family is the most damaging of all forces in women’s lives, underlying all other aspects of discrimination and disadvantage. 5 The overall objective of these legal systems is often the restoration of peace and social harmony and not individual redress. This motive could be used to disregard women’s rights and discriminate against them for the sake of culture and benefit of community harmony. As such, many customary and religious legal systems do not sanction violence against women, especially within the domestic sphere, as it is considered a private and minor matter and tacitly accepted as a natural feature of gender relations. 6 Women may even be socially ostracized for complaining about the ill-treatment by their spouses, family and community elders. The procedures of these legal systems could also be biased and less likely to consider women as equal adjudicators, complainants, representatives or witnesses. 7 The coexistence of multiple legal systems could by itself create challenges to women to seek justice because the presence of overlapping systems could lead women toward falling through the ‘cracks’. For instance, women who marry across community or religion lines may fall through the ‘cracks’ and lack any redress for wrongs suffered. 8 Reviewing and reforming customary and religious laws is not easy, because while customary laws are believed to have come down through generations of ancestors, religious laws are believed to have divine origin, and thus unchangeable. On the other hand, formal recognition by the state may give them official approval. There may also be resistance to reform these systems in favour of women’s rights. Furthermore, customary and religious legal systems are closely linked with the politics of identity making reform efforts complex and contentious. These laws are in most cases typically unwritten and may differ from one community to another, making the review and reform processes challenging. Nevertheless, the fact that legal pluralism has a long history and still exists in developed and developing countries, and that an overwhelming majority of women use the traditional and religious legal systems for different reasons, is a reality that cannot be denied. It is thus critical to look into customary and religious legal

5 UN CEDAW General Recommendation on Economic Consequences of Marriage and its Dissolution: Concept Note CEDAW/C/2009/II/WP.2/R (2009f) < http://www2.ohchr.org/english/bodies/cedaw/docs/AdvanceVersions/CEDAW_% 20C_2009_II_WP2.pdf> p.1 accessed on 8 November 2012 6 UN Women (2011) See above at No. 3, p.69 7 Ibid , p.70 8 Ibid .

164 | Law and Development, and Legal Pluralism in Ethiopia systems and consider mechanisms to ensure their compliance with international human rights standards.

3. The Ethiopian Context Ethiopia has undertaken various efforts with the ultimate goal of achieving gender justice and development. The FDRE Constitution (the Constitution) has incorporated provisions that uphold gender equality and women’s rights. Article 34 of the Constitution recognizes the equal rights of women while entering into, during marriage and at the time of divorce. Article 35, further guarantees equality in the enjoyment of rights; entitlement to affirmative measures; protection from harmful laws, customs and practices; maternity leave; right to full consultation in the formulation of national development policies, and design and execution of projects; right to property; right to employment; and right of access to family planning education, information and capacity. The Family Law and Criminal Code were also amended to remove a number of discriminatory provisions and to add provisions guaranteeing women’s rights. For instance, the Family Law has increased the age of marriage of girls from 15 to 18 years, and provided protection for the right of property of women who cohabited with a man for a certain number of years without concluding marriage. Meanwhile, the Criminal Code does not embrace the idea that domestic violence is a private affair; it criminalizes domestic violence and prohibits harmful traditional practices. Furthermore, the Labour Proclamation guarantees equal pay for equal work, and provides for maternity leave. Article 37 of the Constitution stipulates that “Any association representing the collective or individual interest of its members”; or “Any group or person who is a member of, or represents a group with similar interests ... has the right to bring a justifiable matter to, and to obtain a decision or judgment by, a court of law or any other competent body with judicial power”. This is a major entry point for women’s groups, legal aid centres and law schools to seek justice for women and achieve broad social change using test cases through strategic litigation. This strategy may also help in raising women’s issues at the public level. Article 35(3) of the Constitution further provides for affirmative measures to remedy the historical legacy of inequality and discrimination suffered by women in Ethiopia. The purpose of such measures is to provide special attention to women so as to enable them to compete and participate on the basis of equality with men in political, social and economic life as well as in public and private institutions. This is a promising measure, which could ensure increased participation of women in the education, justice, health and

Chapter 8. Reflections on Gender Justice and Legal Pluralism in Ethiopia | 165 political sectors. An increased representation of women in the public sphere does not only create conducive environment and greater accountability to achieve gender justice, it also creates role models for the younger generation of women to achieve higher representation and meaningful participation of women in the public sphere. Family courts are established to adjudicate family disputes as one method of establishing gender-sensitive justice structures and as recognition of discriminatory practices against women by family elders’ councils under the old family law. A specialized unit is established in police stations to ensure victim-sensitive reporting, investigation and prosecution of violence against women and children. Victim-friendly courts are also established at the federal level and in most regional towns with special procedures that aim at meeting the special needs of survivors of violence testifying in court proceedings, such as interpretation and counselling services, in-camera hearings, testifying through the use of closed-circuit television (mainly for young victims), etc. However, reformed laws do not by themselves guarantee gender justice and economic empowerment. Despite legislative progress, pervasive discrimination and violation of women’s rights hinder progress in the protection of women’s rights and development. Inadequate laws and loopholes in the legislative framework, poor enforcement of progressive legislation, and vast implementation gaps make these guarantees empty promises with little or no impact on the economic empowerment of women and the unequal power relations between women and men. For instance, despite various gains achieved through the revised family laws, women are not still able to exercise their rights in the private and domestic sphere. Domestic violence is still rampant in Ethiopia, and in practice women do not have equal rights during marriage and divorce. Despite various efforts by women’s groups, Ethiopia does not have domestic violence legislation, making it difficult for women who do not want to press criminal charge against their abusive spouse to prevent future domestic violence. The practice of early marriage is not only prevalent in the rural areas, but it is also condoned as girls continue to be married off before the age of 18, missing out on education and continuing to be exposed to the risks of early pregnancy and HIV. Even though the age of marriage is increased to 18 years, Article 7 of the Revised Family Code allows the Ministry of Justice to reduce the age of marriage by two years. The Family Law of Tigray Region further allows bigamous marriage if it is justified by traditional or customary practice. This is not only discriminatory, but it is also inconsistent with the constitutional provision of gender equality.

166 | Law and Development, and Legal Pluralism in Ethiopia Women continue to be deprived of their human rights in general and of economic resources in particular. Despite various policies on health and education, women continue to be unable to have equal access to public services, particularly those living in rural areas or in the poorest households. The Constitution recognizes women’s equal rights to acquire, administer, control, use and transfer property and land, and equal treatment in the inheritance of property. Article 5(c) of the 2005 Federal Rural Land Administration and Use Proclamation stipulates that where land is jointly held by a husband and wife, the holding certificate shall be prepared in the name of the joint holders. However, women’s actual holding of land and property is limited, and discriminatory traditional and religious practices negatively affect the property and inheritance rights of women, especially in the rural areas. When marital disputes arise, traditional dispute resolution mechanisms commonly prefer to favour men. Polygamous marriages further make it difficult for women to exercise their equal rights to property and land. Furthermore, the law does not allow a widow to benefit from her former spouse’s pension scheme, if she was divorced at the time her husband died, even though the contribution to the pension scheme came out from their common income during marriage. Article 41 of the Constitution has also included socio-economic rights of citizens as policy guidelines for Government’s actions; but women face fundamental challenges in accessing them. These rights have not served as principles for state policy and budget allocation for the progressive realization of gender justice. One of the aims of recognizing socio-economic rights in the Constitution is to ensure that all human beings in general, and women in particular have equal access to ‘ever increasing resources’, opportunities and services needed for an adequate standard of living. However, there is no practice where individual women go to courts or institutions, such as the Institution of the Ombudsman or the Human Rights Commission, or to get a remedy for violation of socio-economic rights. A large number of women also remain in vulnerable employment, trapped in insecure jobs, such as domestic work outside the purview of the Labour Proclamation. Ethiopian women continue to be lured into trafficking by false promises of better employment opportunities with better pay. Despite the prevalence and increasing rate of trafficking in women and children, the Criminal Code does not clearly define trafficking in persons, creating a gap in the overall understanding of the problem and prosecution of the offence. Similarly, regardless of the various provisions in the Criminal Code, women are still denied control over their bodies, and continue to experience various forms of violence, usually by men they know and trust. Despite the

Chapter 8. Reflections on Gender Justice and Legal Pluralism in Ethiopia | 167 prevalence of violence against women, reporting and attrition rates remain high for various reasons, including lack of awareness of available services, lack of confidence that justice will be rendered, fear of reprisal or ridicule, self-blame, etc. Where cases of violence against women are reported, the prosecution and conviction rates remain low, mainly due to lack or inadequacy of evidence, withdrawal of charges and disappearance of suspects. Existing specialized structures such as victim-friendly court and child and women protection unit in police stations are not institutionalized and the services are not standardized and accessible throughout the country. Due to lack of appropriate trained service providers, procedures and standards necessary for effective response, the system is failing women as they are served with poor services and hostile attitudes from the very people they expect protection, exposing them to secondary victimization. Support services are inadequate and interventions do not meet the demand from survivors of violence. Efforts by different stakeholders are not coordinated, are not networked with the services and efforts by all the relevant actors, and there is no mechanism that holds relevant institutions accountable. Even though cost analysis has not been conducted in Ethiopia, there is no doubt that the enormous direct and indirect costs for survivors, families, communities and the public sector will have a negative effect to meet the MDGs commitments. Lack of an effective civil registration system in Ethiopia makes it difficult for women to prove the conclusion of marriage during marital disputes, and division of property. It has also made it challenging to effectively prohibit bigamous marriages and has complicated pension payments to widows. The recently adopted legislation on Ethiopian charities and societies prohibits civil society organizations receiving more than ten percent of their funding from foreign sources from engaging in the advancement of human and democratic rights; the promotion of gender equality; the promotion of the rights of the disabled and children’s rights; and the promotion of conflict resolution or reconciliation; and the promotion of the efficiency of the justice and law enforcement services. This reduces the positive contribution that civil society organizations could make in legal aid services to women, awareness raising, advocacy for legal reforms and capacity building of law enforcement agencies to ensure gender justice. Discriminatory cultural and social attitudes around women are reproduced in the process of law and justice. Court processes and decisions may be in favour of women in cases where women perform their traditional roles, as mothers, wives, etc. However, they tend to reflect and reinforce the

168 | Law and Development, and Legal Pluralism in Ethiopia privilege and interests of men, when women strive to achieve their dreams as professional women, or they live outside their typical roles as mothers and wives. National machineries to oversee and monitor the implementation of constitutional provisions on gender equality remain weak both in terms of human and financial resources. Even though the number of women in the House of Peoples’ Representatives and officials in the public sector institutions is increasing, they fail to take an active role in demanding increased access to justice and improved economic resources for women. Similarly, customary and religious legal systems coexist along with Ethiopia’s formal legal system. Article 34 (5) of the Constitution allows 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. Article 13 (2) of the same further provides that “the fundamental rights and freedoms specified in this Chapter [i.e., Chapter Three of the Constitution] shall be interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and international instruments adopted by Ethiopia”. According to these constitutional provisions, customary and religious laws and the decisions by customary and religious institutions should be in line with international and constitutional human rights standards. However, customary and religious laws and institutions continue to discriminate and oppress women. There is also no mechanism to monitor whether the case was brought to religious or customary courts with the consent of both parties, in the absence of any pressure from family and society. In the absence of such mechanism, the choice of bringing disputes relating to family and personal matters benefits men more than women, the former being more aware of their rights, resources and flexibility to evaluate which option leads to a favourable outcome.

4. Promising Practices Law reform has been the focus of women’s activism to achieve gender equality and access to justice throughout the world. Women are unable to access the legal and justice systems when there are gaps in the laws or existing laws are discriminatory, and the infrastructure of justice is not adequate. Over the past few decades, legal reforms have provided the framework for gender equality ensuring greater economic empowerment and security for women, protecting them from violence and increasing their voices in decision-making. However, achieving gender equality and access to justice requires not only the enactment of laws, but their implementation as well. The laws that

Chapter 8. Reflections on Gender Justice and Legal Pluralism in Ethiopia | 169 are enacted should be put in practice so that they bring about positive impact on the daily lives of women. Programmes that build the capacity of law enforcement institutions have helped in developing effective procedures and organizational cultures of the police, the courts and other service providers. Sensitive, specialized and integrated services were developed to meet the particular needs and address the barriers faced by women to access justice. Achieving formal and substantive equality requires tangible progress in the broader areas of social and economic decision-making processes where meaning of gender relations and biases are generated and later reflected in the law and justice systems. Discriminatory cultural attitudes and biases are produced within families, and reproduced and reflected in the laws, courts and other decision-making institutions. Women themselves have internalized the attributes and roles as part of their identity, and pass on the same to their families and daughters. In the social arena, efforts that depicted women as agents of change who have rights and able to make choices as independent beings were able to successfully challenge gender discrimination and raise awareness about women’s rights. Wider campaigns that actively engage the society as a whole along with political lobbying and strategic litigation could bring about gender equality and justice that lead to positive changes in women’s lives. Violence against women is an unfortunate reality for many women and a multi-faceted problem that does not only violate the human rights of individual women, but is also a key challenge in achieving the MDGs. Recognizing this, countries have started to adopt a strategic framework for the prevention of and response to violence against women using four primary blocks 9, namely: - The adoption and implementation of protective laws and policies; - Capacity building in health, legal/justice, security, education, and social welfare systems to help prevent, detect, monitor, and address violence against women; - Provision of immediate and comprehensive care for survivors that will reduce the likelihood of long-term negative effects related to violence against women, as well as survivors’ vulnerabilities to future incidents of violence against women; and

9 USAID/Eastern and Central Africa and UNICEF/Eastern and Southern Africa Regional Office’s Strategic Framework for the Prevention of and Response to Gender-Based Violence in Eastern, Southern and Central Africa (2006) pp. 12-13 accessed on 8 November 2012

170 | Law and Development, and Legal Pluralism in Ethiopia - Community mobilization aimed at engaging all members and strata of the community in developing and enforcing preventative measures and in recognizing the rights and needs of survivors. Recently, the Ministry of Justice has adopted this approach and established a one-stop centre at Gandhi Memorial Hospital that provides comprehensive and integrated services to survivors of violence against women and children through the cooperation of key stakeholders. Even though, it is too early to evaluate this initiative, an effective strategy to address the issue of violence against women should consider the above four primary blocks and adopt the following three principles: - The human rights-based approach that focuses on the promotion and protection of human rights of potential and actual victims of violence against women; - The survivor-centred approach that prioritizes the rights, needs and wishes of the survivors; - The gender-specific approach that recognizes that gender dynamics, impacts and consequences of violence against women. Even though the mere presence of women in parliaments and public institutions does not necessarily result in gender justice, it is also important to understand the negative impact of under-representation of women in these institutions. Women’s active and meaningful participation in decision- making levels can only be ensured when they are adequately represented in the public sector institutions, including the justice sector and parliament. Although quotas are sometimes seen as a mere form of tokenism, the cumulative effect of an increased number of women in decision-making positions actually has an impact on legislative initiatives for women. Even though, some women’s representatives might not have the commitment or capacity to address the issue of gender justice and rights, women’s groups, and civil society organizations around the world have played a major role in strengthening their capacity and enhance their participation in the policy process. The need to get men on board as allies should also be recognized to bring about change and shift attitudes, as some men might be easily convinced if they see other men engaged in the movement. While formal, and customary and religious justice systems may both have advantages and disadvantages, the co-existence of multiple legal and justice systems may provoke confusion and resistance to recognize women’s claims and any reform in their favour by using arguments supported by one of the other systems. The reality that traditional and religious legal systems may provide more accessible, faster, more efficient and more legitimate solutions for poor and vulnerable people, including women, should also be considered in situations where formal justice systems are weak and

Chapter 8. Reflections on Gender Justice and Legal Pluralism in Ethiopia | 171 overburdened. 10 A number of women’s organizations around the world have used legal empowerment initiatives to enable people, including women, not only to use customary and religious laws to their benefits, but also to shape them to their needs and interests. Through the use of legal aid, capacity building and awareness raising campaigns for both the users and providers of customary and religious legal systems, women may be assisted to effectively and efficiently use these systems to meet their needs. Community paralegals have been trained to assist women to evaluate the advantages of multiple legal systems and access the one with favourable outcome. Others argue that the problems of plural legal systems may be resolved by the effective codification and harmonization of customary and religious laws. Women’s organizations have used states’ responsibility to ensure that all legal systems are in line with international human rights standards to reform customary and religious laws. Documenting and codifying customary and religious laws will by itself establish some level of certainty and provide reference of customary and religious rules, while the process of harmonization will ensure that customary and religious laws are in line with international and constitutional human rights standards, including gender equality. Review of customary and religious laws and institutions have shown that not all of them are disadvantageous to women. Another promising approach is to encourage reform from within. Wide consultation and dialogue with traditional and religious leaders, but also with women and the community at large should be conducted to understand the challenges and gaps in the customary and religious laws and to ensure ownership of the process and effective implementation of these laws. The process of consultation and dialogue should continue during the implementation phase to mitigate conflicts arising in the enforcement of the harmonized customary and traditional laws. Programmes aimed at combating harmful traditional practices have shown that community dialogue works better than a mere confrontation with traditional practices and leaders. Although it might take time, a process of consultation with members of the community, including traditional leaders and women, has proven to create a better understanding of the prevailing cultural norms and values to ensure better reconciliation between traditional practices and gender justice. Rights-based strategies for gender equality and justice could also be advanced through alliances with broader social movements for democracy and change. This could provide opportunities to advance the issue of gender justice into democratic political culture and the social movements led by

10 UN Women (2011) See above at No. 3, p. 67

172 | Law and Development, and Legal Pluralism in Ethiopia men. Furthermore, in advancing gender justice, there is a need to recognize that women are not a homogenous group and may have differing interests. Recognizing women as active members of their communities may allow them to have a voice in the ongoing examination and reformulation of formal, customary and religious laws and practices. Increasing the number and active participation of women in public sector institutions, including the justice sector and parliament, has proven to be a very powerful force for demanding increased access to gender justice.

5. Recommendations - Well-functioning legal and justice systems should be established through laws and justice systems that provide accountability, stop abuse of power and create new norms about what is acceptable in the society. - The rule of law should be made a reality for women through effective implementation of laws and constitutional guarantees. - Customary and religious laws should be reviewed, analyzed, codified and harmonized with international and constitutional human rights standards, including gender equality to ensure that women have equal access to justice and development. The advantages, if any, of customary and religious laws and institutions could be identified and highlighted, as customary and religious mechanisms remain more legitimate, relevant and accessible to women. - National machineries, such as the Ministry of Women, Children and Youth Affairs and gender desks in mainstream ministries that have been established to advance women’s welfare should be strengthened and capacitated, both in terms of human and financial resources. - Courts should be sensitized to allow individual women to claim their rights. Strategic litigation, as an approach that empowers women, presenting them as rights-holders and not as victims, could also be used to achieve broader social change, and to raise issues publicly and cost- effectively. - Public services that are women-friendly and that take into account the barriers that women face on daily basis due to social norms, poverty and lack of awareness should be established. - Women’s control over resources should be guaranteed, including provision of opportunities for decent work and the acquisition of economic assets. - Women’s voice in decision-making should be increased to ensure active and meaningful participation in the private and public spheres.

Chapter 8. Reflections on Gender Justice and Legal Pluralism in Ethiopia | 173 - An integrated and multi-sectoral approach should be adopted to address violence against women and girls by providing comprehensive and integrated services to survivors of violence. - Knowledge on gender and access to justice should be built to generate knowledge about meanings and definitions of gender justice affecting legal practice and advocacy on how to engage communities and dialogue with traditional leaders. - Legal and justice practice should be improved to shift gendered outcomes through legal activism; strategic litigation and working with plural legal systems in ways that benefit women and promote gender justice. The positive contribution of civil society organizations should be recognized and the necessary conducive environment for their active participation should be created.

174 | Law and Development, and Legal Pluralism in Ethiopia

Reference List

Laws FDRE Constitution Federal Negarit Gazeta No.1/1995 Labour Proclamation Federal Negarit Gazeta No. 377/2003 Proclamation to Provide for the Registration and Regulation of Charities and Societies Federal Negarit Gazeta No. 621/2009 The Criminal Code of FDRE, Proclamation Federal Negarit Gazeta No. 414/2004 Federal Family Law Federal Negarit Gazeta No.1/2000

Reports UN CEDAW General Recommendation on Economic Consequences of Marriage and its Dissolution: Concept Note CEDAW/C/2009/II/WP.2/R (2009f) http://www2.ohchr.org/english/bodies/cedaw/docs/AdvanceVersions/CEDAW _%20C_2009_II_WP2.pdf> accessed on 8 November 2012 UN Women Progress of the World’s Women 2011 – 2012: In Pursuit of Justice (2011) accessible on the internet at accessed on 7 November 2012 UNDP Gender Equality and Justice Programming: Equitable Access to Justice for Women (2007) accessed on 7 November 2012 UNIFEM Gender Justice: Key to Achieving the Millennium Development Goals (2010) New York, available on the internet at accessed on 7 November 2012 USAID/Eastern and Central Africa and UNICEF/Eastern and Southern Africa Regional Office’s Strategic Framework for the Prevention of and Response to Gender-Based Violence in Eastern, Southern and Central Africa (2006) accessed on 8 November 2012.

Chapter 9

Legal Pluralism and the South African Experience:

Customary Law as a Constitutional Right

Yonatan Fesseha ♣

1. Introduction This chapter examines legal pluralism from the perspective of the South African experience. It does so by specifically focusing on the role and status of customary law in post-apartheid South Africa. It commences the discussion by briefly tracing the origin of legal pluralism in Africa, particularly focusing on the role that customary law played in colonial Africa. It explains how the exploitation of the indigenous legal institutions by colonial powers to their own benefits has left a tainted image of customary law in post-colonial Africa. Moving to the present, the chapter examines how African states and, South Africa, in particular, have responded to the legal diversity that characterises their societies. It also explores how the South African constitution seeks to manage the tension between the African legal tradition and human rights. Finally, it also touches on the institutional dimension of the debate by discussing the status and role of traditional authorities in South Africa.

2. Customary Law under Colonial Rule The diversity of the populations of most African states cannot be overemphasised. The cultural mosaic that characterises the continent is evident from the fact that, in most African states, there is no single ethnic or cultural group that is numerically dominant. With no ethnic group accounting for the majority of their populations, most African states can be described as a country of minorities. Most of these cultural communities have developed rules, norms and practices that extensively govern every aspect of their life and wellbeing, from birth to death and from marriage to divorce. It is against the background of this factual situation in which

♣ LL.B., (Addis Ababa University), LL.M., (University of Pretoria) and PhD (University of the Western Cape); e-mail: [email protected] 175

176 | Law and Development, and Legal Pluralism in Ethiopia various legal systems are observed that the colonial powers introduced a system in which the formal system is regarded as the dominant legal system. Of course, the colonial powers did not totally disregard customary law. There was a realisation that institutions of traditional leadership could be used to advance the objectives of the colonial powers, namely the subjugation of local communities to colonial authorities. To achieve this objective, Britain brought traditional leaders on board as part of the colonial administration (Bennett, 2010:19). Traditional leaders who co-operated were financially rewarded. Further, legislation was passed to elevate their powers and positions in society. One of the changes brought by the colonial powers was that customary rules were given a written form in the same way as was the case with western codes. The colonial powers were not concerned about how the transformation distorted African customary rules. It is pertinent to note that customary rules, in their written form, were first recognised and put into effect in Natal, the first colony in Southern Africa to do so (Bennett, 2010: 61). In this regard, the colonial administration in Natal established a commission of inquiry to investigate the nature of customary rules and how these could be officially enforced as a component of the colony’s laws. In its findings, the commission of inquiry provided data that formed the basis for complying with a formal code of customary law. The first formal code of customary law came into being in 1878. It covered Zulu customary law and elements of new rules. Due to this development and other works in documenting customary rules, it is often said that the judiciary in South Africa has more access to documents on customary laws than its counterparts on the African continent (Bennett, 2010: 62). The codification of African customary law is often the subject of intense criticism. The criticism centres on how customary laws were translated. The argument is that the institutions which translated the customary laws were instruments and functionaries of the colonial power. Often, they distorted the customary laws in order to promote the objectives of occupation. They elevated themselves to the position of arbiters of the African cultural heritage where they determined the meaning of customary rules and how they were to be interpreted (Bennett, 2010: 63). As Bennett put it, “colonial writers did as much to create the world they were writing about as to describe it” (Bennett, 63, 2010). This particular use of customary law by the colonial powers has undermined relationships between indigenous rulers and their subjects. The colonial policy of indirect rule had the effect of ‘‘weakening the checks and balances that had moderated traditional rule. Once African rulers became functionaries of the new system of government, they had no need to look to

Chapter 9. Legal Pluralism and the South African Experience | 177 their subjects for acceptance or approval: their authority was supported by the full weight of the colonial state” (Benett, 2010: 68). There has always been an assumption that the African legal system is inadequate to deal with the exigencies of modern day Africa. What is, however, more common is the view that the ‘indigenous legal system of African countries were ‘inferior compared to the English common law [western law]’ (Wicomb and Smith, 2011: 425). That underlies the plethora of conferences of British legal scholars in the 1950s and 1960s as the retreating colonial powers made way for African rulers. The aim of the conferences was ‘to discuss the future of customary law in Africa and the need to construct a framework for the development of legal systems in the emerging states’ (Wicomb and Smith, 2011: 424-425). The assumption that the ‘indigenous legal system’ is inadequate was the undercurrent that impelled many of the organisers of these conferences.

3. Customary Law in Post-colonial Africa The immediate legal developments that attended the post-colonial state in Africa are the reflection of this same assumption about customary law. The emerging African states ‘adopted the colonial legal framework wholesale’. What was also apparent was ‘the development framework’s ‘general ambivalence as regards the applicability of indigenous law’ (Wicomb and Smith, 2011: 425). There was general disdain for customary law and its legal systems. It was denigrated as inferior and of a lower status order. Its coverage was not extended to areas where colonial laws were traditionally relied upon in the justice system. Even in cases where customary law was applied, it was applied ‘to the extent that they were not repugnant to Western justice and morality or inconsistent with any written law’. (Ibid) The post-colonial state subordinated customary law to western law. It ‘relegated customary law to a separate and unequal system of law that rarely found its way to the formal ‘Western’ courts. 1 The relegation of customary law to a secondary level and the imposition of ‘inappropriate legislation upon customary communities’ had brought

1 In an attempt to gain some legitimacy and to give a measure of status to the separate systems, customary courts were created. As Bennett relates, the customary courts were ‘intended not only to settle disputes but also to proclaim the reach of government and the values of Western civilization’. “When these legislative frameworks were entrenched in post-independence states, the colonial distortions of customs were also entrenched. As a result, customary governance systems and community rules were overruled by regulating traditional leadership and, in some cases, communal tenure’.

178 | Law and Development, and Legal Pluralism in Ethiopia about two important consequences (Wicomb and Smith, 2011: 426). The first consequence is related to the hierarchical nature of system of state law. As opposed to customary laws, state laws did not place much premium on negotiations, which are a key feature of customary laws. The disharmony was often the justification given for consigning customary law into obscurity. The second consequence arose out of the irreconcilability between the two systems of law. It is to be noted that due to the disharmony, traditional communities opted not to access state institutions for dispensing justice. They rather chose to ignore the system of state law and preferred to adhere to customary law. As a result, customary law “– insofar as it was recognised- [was] relegated to an inferior legal system in terms of the ‘official’ legal framework” and “the imposition of inappropriate statutes upon customary communities forced most of these communities to ignore these statutes as far as possible and continue regulating their lives in terms of their custom” (Wicomb and Smith, 2011: 426). Thus customary law systems continued to regulate the lives of customary communities. Generally speaking, the introduction of the formal system, which has its origin in western law and philosophy, was introduced in a manner that ignored the relevance and legitimacy of customary law. ‘The post-colonial entrenchment of the colonial status quo retained’ the divide that relegated customary to a secondary level, and ‘[l]ittle effort was made to reinstate customary law as an equal to the imposed colonial legal framework’. (Ibid) The official rules did not, however, share the legitimacy enjoyed by customary law. As a result, the official laws inherited from the departing colonial powers were not realised in practice. For the majority in Africa, the formal legal system is not the primary institution that governs their lives. Rather, they rely on customary law and other unofficial ‘normative systems’ in order to govern their affairs. Under such circumstances, it is no surprise that cultural groups, observing distinctive cultural traditions, should demand respect for their particular lifestyles and systems of law.

4. Towards the Constitutional Recognition of Customary Law Cognizant of the existence of deeply rooted ‘whole range of normative orders’ that govern the lives of the overwhelming majority of their populations, African states gradually began to show respect for customary law. They, albeit grudgingly, come to realise that customary law ‘should be taken as seriously as state law’. This was, of course, partly driven by the increasing demands and recognition of indigenous institutions both in international law and constitutional law. The right of individuals to practice their culture received support from a number of international instruments that give recognition to the right to culture and, more broadly, a general right to self-determination. Hence, there emerged an increasing realisation by

Chapter 9. Legal Pluralism and the South African Experience | 179 many African states that the fact of legal and cultural diversity that characterised the continent is a reality that they should respect. This is evident in the fact that many African countries adopted constitutions that declared customary law as ‘equal source of law to be applied by the courts ‘where appropriate’.” 2 The South African Constitution gives recognition to the cultural diversity that characterises South African society. Section 30 deals with the right to language and culture and provides that each individual has the right to use the language and to participate in the cultural life of their choice”. A more extensive protection of similar nature is stipulated under Section 31(a), states that “persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practice their religion and use their language”. Section 31(b) further recognises the right of such persons “to form, join and maintain cultural, religious and linguistic associations and other organs of civil society”. It must, however, be noted that this is not a group right. Article 27 of the ICCPR, for example, makes reference primarily to persons belonging to a cultural, religious and linguistic community and not to the groups themselves. This puts the rights in the realm of individual rights that can be exercised by persons belonging to such minorities and not rights that can be invoked by groups as such. More importantly, for the purpose of this paper, the Constitution imposes an obligation on the courts to apply customary law when it is applicable (section 211(3) of the Constitution). The recognition of customary law in a constitution means that the resort to customary law to regulate affairs or defend a cultural practice has now taken the form of a rights discourse. In the past, the attempt was to ensure that customary law is insulated from legislation and the constitution. In South Africa, for example, during the adoption of the Constitution, traditional leaders attempted ‘to exclude customary law and culture from the

2 However, the application of customary law in the formal courts remains almost exclusively limited to issues of personal law, and rights claimed by individuals’. ‘It is trite that African customary law is a community-based system of law in which rights are generally relational and not held by individuals as atomistic beings, but as members of a group and relational to the other members. To restrict the protection of customary law to individual rights, therefore, denies members of customary communities the ability to assert their tenure rights outside the spheres of their own communities and their internal, customary dispute resolution mechanisms’. (citation)

180 | Law and Development, and Legal Pluralism in Ethiopia operation of the Bill of Right (and thus to exclude the cultural sphere from constitutional rights)’. But now that customary law has been given constitutional recognition, traditional leaders and other defenders of cultural practice have started to present their claim using the language of rights. “[T]he language of rights has often formed the basis of traditional leaders’ (and other) objections to women’s rights and of the invocation of culture by public figures to justify particular norms and practices’ (Albertyn, 2009: 167). Inevitably, the recognition of the right to culture brings in new tensions. The recognition of the application of customary law as a constitutional right introduces a tension between the right to culture and a number of other fundamental rights. This, of course, presents a question of constitutional dilemma, possibly involving constitutional interpretation to address the relationship between cultural identity and diversity, which has now constitutional recognition, and other competing rights, like the right to gender equality, which poses the greatest challenge to the recognition of the right to culture. As Albertyn (2009) correctly points out, at the centre of the constitutional dilemma is a view about the nature of multiculturalism. It is submitted that whether the constitution’s commitment to both cultural diversity and equality can be realised depends on the view that the Constitution and its implementing agents, be the courts or the legislature, maintain about the nature of culture and cultural identity. Broadly speaking, there are two ‘opposing views of culture’. Each view about culture has important implication for the state’s approach towards the application of customary norms and rules. The first approach to culture adopts a ‘bounded, monolithic and privatised view’. This is a view espoused mostly by traditional leaders and ‘those who invoke culture and religion to defend particular practices’. The advocates of this particular approach ‘tend to assert the specificity and uniqueness of culture and tradition in a manner that promotes a hierarchical, bounded and monolithic notion of culture’ (Albertyn, 2009: 173). According to this view, culture is presented “as a closed and separate space that should be free from external influence. The dominant call is for the preservation of tradition, including traditional gender roles, which are often portrayed as necessary for the preservation of the group” (Albertyn, 2009: 174). In constitutional terms, a constitution that adopts such static and autonomous view of culture is regarded as a constitution that represents recognition of equality of not just individuals but the different groups that make up the society. It is regarded as a policy that breaks (often hailed) with African past. A past not only which the colonial powers denigrated and

Chapter 9. Legal Pluralism and the South African Experience | 181 stigmatised African culture but also a past in which the postcolonial state denigrated the culture of the minority in its attempt to build a homogenised nation often along the language and culture of the dominant group. This particular understanding of culture emphasises the need to foster ‘equal concern and respect across cultural differences’. (ibid.). The version of multiculturalism that maintains the static and bounded nature of culture has rich history in South Africa. As Albertyn has put it, “[c]olonial and apartheid government based their policies of racial inequality and subordination on the idea that cultural differences were fixed, impermeable and even ‘god given’.” (Albertyn, 2009:172). Race was not the only fault line that the apartheid government used to divide South African society. It further divided the black African community along ethnic lines. This was realized through the introduction of the homelands which came into effect with the enactment of the Promotion of Bantu Self-Government Act (Act 42 of 1959). The Preamble to the Act read: ‘The Bantu people of the Union of South Africa do not constitute a homogenous people but form separate national units on the basis of language and culture.’ 3 The idea was that each homeland, demarcated along ethnic lines, was to become an independent state and establish itself as a nation-state, with its inhabitants eventually losing their South African citizenship. Ten homelands, based on ethnic lines, were established. The black Africans that lived in homelands other than their own accounted for only 10 per cent of the black African population. According to the national policy, all black African people must be allocated to their ‘own’ ethnic Bantustan, irrespective of the fact that they

3 Only four of them – Transkei (26 October 1976), Bophuthatswana (6 December 1977), Venda (13 September 1979) and Ciskei (4 December 1981) – infamously known as the TBVC states – became nominally independent. These four homelands had, as any other sovereign state, their own state apparatus including armies, passports and border posts. The relation between the homeland governments and the South African government was also conducted through embassies both in Pretoria and the homelands. The remaining six were considered as self-governing homelands: Gazankulu, KaNgwane, KwaNdebele, Kwazulu, Lebowa and Qwaqwa. Each of the homelands was given its own national symbols, flag and emblem. The homeland solution was not sought for black Africans only. There were also attempts to establish a Cape homeland for the Coloured community, which was considered by the apartheid government as ‘a nation in the making’. Although, a Coloured Representative Council, with limited legislative powers, was set up to advance this objective, it failed. With regard to the Indian community, the government first attempted to repatriate them to India. When that failed, the government established the South African Indian Council as a forum that represented the Indian community. The forum was given no effective or legislative power (Steytler, 2005: 314).

182 | Law and Development, and Legal Pluralism in Ethiopia never lived there. The policy was followed by a large-scale population removal and resettlement that forced Africans into the Bantustans. 4 The ethnic basis of the homelands was further strengthened by the juxtaposition of their creation with the empowerment of traditional authorities. 5 The close association of the homelands with traditional authorities had the effect of strengthening the entrenchment of ethnicity in each homeland. Despite the widespread resistance by black African that did not consider themselves as ethnic subjects 6, “[t]he idea that cultures are distinct, coherent, bounded and irretrievably linked to a particular racial or ethnic groups” (Albertyn, 2009: 172) was used to re-organize the South African society. In post-apartheid South Africa, the ‘bounded idea of culture’ is evident in the positions and statements of traditional leaders that have been relentless in calling for the preservation of the status of customary cultures and laws. They have often argued that with the end of apartheid, traditional cultures, norms and laws should be protected and allowed to develop in the same way as western cultures. In the making of South African Constitution, they advocated for the explicit protection of culture and insulation of its

4 Egan and Taylor (2003: 102–3) provide a vivid account of the situation: ‘Fundamental human rights were violated through the policy of forced removals. Regulated by the “scientific” classifications of government ethnologists, millions of African people were uprooted to Bantustan locations. Over a period of 25 years nearly four million people were forced to move, many of them several times over. Forced removals aimed to ensure that certain categories of African people were permanently placed in the Bantustans: women and children, the old and sick, and the unemployed. In reality, Bantustans were a dumping ground for white South Africa … this was a form of “ethnic cleansing” by another name.’ 5 Traditional authority was preferred to formal parties in all the homelands; chiefs played an important role as unicameral that were mainly composed of chiefs or their representatives were established in all the homelands (Leatt, Kniefel and Nurnberger 1986: 127). 6 The weight of evidence on the impact of the homeland policy tends to suggest that most black Africans, the artificially designated ‘citizens’ of the Bantustans, had rejected the homeland policy. Sociological research and public opinion surveys revealed a widespread opposition to the homelands and to the underlying principle of making ethnicity as a basis for political activity. The majority of black Africans did not consider themselves as ‘ethnic subjects’. Most opposed to the homelands were urban Africans (Leatt, Kniefel and Nurnberger 1986: 134). The opposition was strongest amongst anti-apartheid activists. The policy of the national government that attempted to entrench the saliency of ethnic differences amongst black Africans was rejected by all major African movements including the ANC, the Pan-Africanist Congress and the Black Consciousness Movement. For them, it was only a means to continue the policy of apartheid and suppress the emergence of a common resistance front.

Chapter 9. Legal Pluralism and the South African Experience | 183 discriminatory practices from equality guarantees’ (ibid.). In other words, the call for equality between systems of laws is deemed necessary to retain the status of customary cultures against encroachment from the western culture. The opposing school of thought provides quite a different view of culture and cultural identity. The opposing view of cultures regards the latter as ‘a more fluid, contested and porous conception’. For this school of thought, culture is far from being natural phenomena. It does not denote a fixed unchanged characteristic. For proponents of this school, a human hand is behind the formation and maintenance of cultural identity. “[Culture is] the product of processes which are embedded in human actions and choices…rather than biologically given ideas whose meaning is dictated by nature’ (Phandis and Ganguly, 2001: 21). The malleability of cultural identity constitutes the main argument of this position. It stresses that belonging to a cultural group is not a natural phenomenon but a matter of attitudes, perceptions and sentiments that are necessarily ephemeral and variable, changing with the particular situation of the subject. Cultural boundaries shift over time. This is mainly attributed to the fact that cultural identity is considered as the function of actors and choices initiated or stimulated by external pressure. This view suggests that ‘culture is fluid, diverse and subject to change. As anthropologist Hull observes: Cultural identities come from somewhere, have stories. But like everything, which is historical, they undergo constant transformation. Far from being externally fixed in some essentialised past they are subject to continuous play of history, culture and power. Far from being grounded in a sense of ourselves into eternity, identities are the names we give to the different ways we are positioned by, and position ourselves within, the narratives of the past. (Hall [1989] 1996, pp. 212-3) The view that maintains the malleability of cultural identity suggests that the content of culture and cultural identity can be shaped by social, economic and political processes. This again suggests the shifting nature of cultural boundaries and the malleability, within certain limits, of their members’ cultural identity. Holder of a cultural identity may either change the hierarchy it gives to the different cultural markers or may choose to pick and assert as identity distinction a certain identity in a situation where multiple identities co-exist adjacently. The case of Bangladesh illustrates this point. The majority of the populations in the former East Pakistan were Muslims as well as Bengalis. When British India was partitioned in 1947, the people of the present day Bangladesh opted to join Pakistan thus asserting their Muslim identity over

184 | Law and Development, and Legal Pluralism in Ethiopia their Bengali identity. However, as their discontent with Pakistan grew and led to the formation of a liberation movement, they stressed their Bengali identity to justify their political secession from the rest of Pakistan. This indicates that the significance that members of an ethnic group attach to each attribute changes from time to time for various reasons. To the extent that this happens, one will also be able to witness a change in the cohesion and self-awareness of the community as well as the content of an ethnic group. In exceptional cases, this may even entail a shift in the boundary of a cultural group. The view that regards culture and cultural identity as dynamic and fluid, that emphasises the shifting nature of cultural boundaries in response to changing social and economic circumstances rejects the rigidity of customary law. It adopts ‘the notion of customary law and practice as flexible and responsive’ (Albertyn, 2009: 173). This form of ‘approach to culture ... underlies a form of cultural diversity and legal pluralism that is open ended and allows an active and participatory engagement with, and development of, constitutional norms and values’ (Ibid ). The remaining task is then to identify the implication of each view of culture for resolving the tension that characterises the constitution’s commitment to cultural diversity and other rights in the bill of rights. This was at the centre of a case that was brought before the South African courts. The case deals with succession issues in relation to the customs and traditions of the Valoyi community in the Limpopo province. According to said customs and traditions, the appointment and succession to chieftaincy followed the patriarchal system. In other words, the chieftaincy was hereditary and it was passed from father to son in line with the family tree. In this case chief Fofoza Nwamitwa ascended to the throne in 1948 in line with the patriarchical system where the chieftaincy was passed from father to son. The status of his chieftaincy was not subject to contest until he passed on in 1968. As fate would have it, the chief did not have a male heir. The question became whether his daughter could ascend to the throne against customs and traditions of the Valoyi community. Since that was impossible at the time, the late chief’s brother, Richard Nwamitwa was enthroned as chief and remained in that capacity until he passed on in 2001. Upon his passing on, the question became whether the late chief Fofoza Nwamitwa’s daughter would ascend to the throne or Richard’s first son. Family was sought in relation to the dispute over who could ascend to the throne. In this regard, it is pertinent to note that five years before Richard Nwamitwa passed on the Valoyi Royal Family resolved that in the event that Richard Nwamitwa passed on, the chieftaincy would be conferred on Tinyiko Shilubuana the previous chief Fofoza Nwamitwa’s

Chapter 9. Legal Pluralism and the South African Experience | 185 daughter. Upon the passing on of Chief Richard Nwamitwa, the Tribal Council and the Royal Family re-endorsed the resolution to confer chieftaincy on Tinyiko Shilubuana. It was agreed that although customs and traditions of the Valoyi people forbade the passing of chieftaincy from father to daughter, the female child was now equal to the male child in line with the Constitution of South Africa of 1996. The resolution was contested by chief Richard Nwamitwa’s first-born son, Sidwell, who argued that the Tribal Council and Royal Family had no rights in altering customary laws. The High Court agreed with the applicant. It noted that based on the customs and traditions of Valoyi people, Tinyiko Shilubuana could not assume chieftaincy although she was first born. Moreover, there was no precedent or evidence of a female child having ascended to the chieftaincy following the passing on of her father (Mireku, 2010: 517). According to the court: A most important consideration in the Tsonga/shangann and valoyi custom is that a chief of the tribe must be fathered by a chief. This has always been the practice. If a female is appointed as chief and also marries, her children would not have been fathered by a Valoyi chief, would bear a different name and would not be members of the royal family. This would lead to confusion and uncertainty in the sucessorship [sic].

According to the High Court “the role of the Royal Family is limited to recognizing and confirming the chief who qualifies to succeed according to the rules of customary law. The court found that the election of a chief was beyond the mandate of the Royal Family. The community’s decision, the court stated, was ‘probably a bout of constitutional fervour’ (Claassens, 198). The decision of the High Court was endorsed by the Supreme Court of Appeal (SCA), which held that it is the eldest son of the chief that was entitled to succeed his father according to Valoyi customary law’. “Ms Shilubana was not ineligible to be Hosi on account of her gender; she was ineligible because of her lineage. There was therefore no constitutional problem with the Valoyi customary law’ (Claassens, 2011:198). Underlying the decisions of the High Court and the SCA, it seems, is a static view of culture. It seems to be based on an understanding of culture that is protected from public scrutiny; it is based on the understanding of the right to culture that ‘prevent scrutiny of, and/or justify, norms and practices that discriminate against women’ (Albertyn, 2009: 173). It is an approach that denies ‘the standard-setting power of the constitution’ (Ibid). The decision of the High Court and the SCA were rejected by the Constitutional Court. In relation to the customs, courts were reminded by the Constitutional Court to be sensitive about interfering with the efforts and

186 | Law and Development, and Legal Pluralism in Ethiopia process of communities to modify their customary laws to align them to the Constitution, adding that it was in order for the Valoyi Royal Family to develop its customary laws on succession. (Claassens, 2011: 198,). According to the Court: the conclusion of the High Court and the Supreme Court of Appeal that the traditional authorities lacked the power to act as they did were incorrect. They erred in that their focus was too narrow….They gave insufficient consideration to [the] historical and constitutional text of the decision, more particularly the right of traditional authorities to develop their customary law (para 85). The Constitutional Court held that: “customary law is a living law and will in future inevitably be interpreted, applied and, when necessary, amended or developed by the community itself or by the courts” and it stated that “[t]his will be done in view of existing customs and traditions, previous circumstances and practical needs, and of course the demands of the Constitution as the supreme law”. (para 81) The Constitutional Court ‘confirmed Ms. Shilubaba’s appointment as hosi of the Valooyi community’. The Constitutional Court, in its decision on the Shilubna case, states the non-static nature of culture: As has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system. Under pre-democratic colonial and apartheid regimes, this development was frustrated and customary law stagnated. The stagnation should not continue, and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated (para 45). In as much as the Court notes the status of customary law as distinct source of law, it has also insisted that customary law, like all other laws, ‘is adaptive by its very nature. By definition, then, while change annihilates custom as a source of law, change is intrinsic to and can be invigorating of customary law” (para 54). What the court is emphasising here is that “while past practice is an important factor to consider in examining the content of customary law, it cannot be decisive in and of itself’ (Claassens, 2011:199). The decision of the Constitutional Court is significant in many ways. Through this and other landmark judgements, 7 the Constitutional Court has

7 Bhe and Others v Khayelitsha and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004); Gumede (born Shange) v President of the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC) ; 2009 (3) SA 152 (CC) (8 December 2008)

Chapter 9. Legal Pluralism and the South African Experience | 187 provided important parameters regarding the integration of customary law into the rest of South African law. It demonstrated how customary laws may be aligned with the Constitution and other laws operating in South Africa. It showed that customary laws form part of the laws operating in South Africa and that their status derives from the Constitution. Moreover, it demonstrated that the interpretation of customary laws needs to give effect to the bills of rights. Finally, the determination demonstrated that customary laws remain relevant and that their interpretation needs to confirm their status as ‘living laws’ (Claassens, 2011: 202). “Customary law must be interpreted to be ‘living customary law’ and not the codified version built on colonial and apartheid precedents” (Claassens, 2011: 202).The Court has also given guidance on ‘the appropriate approach’ to living customary law: [A] court must consider both the traditions and the present practice of the community. If development happens within the community, the court must strive to recognise and give effect to that development, to the extent consistent with adequately upholding the protection of rights. In addition, the imperative of section 39(2) must be acted on when necessary, and deference should be paid to the development by a customary community of its own laws and customs where this is possible, consistent with the continuing effective operation of the law (para 49). What is the implication of distinguishing between the codified and living customary law and focusing on the latter? Accepting customary laws as living laws is important in closing the debate on the dichotomy between rights and customs in the context of changing times and practices. Moreover, it has enabled us to appreciate local efforts at elevating customary law to the level where it is aligned with the Constitution and other laws operating in South Africa. There is evidence of customary communities seeking to modify their laws as a way of reconciling their values and the values embodied in the Constitution. More importantly, the Constitutional Court’s approach of customary law enables ‘a transformative initiative by traditional authorities’. The court remarked: Customary law must be permitted to develop, and the enquiry must be rooted in the contemporary practice of the community in question. Section 211(2) of the Constitution requires this. The legal status of the customary law norms cannot depend simply on their having been consistently applied in the past, because that is a test which any new developments must necessarily fail. Development implies some departure from past practice. A rule that requires absolute consistency with past practice before a court will recognise the existence of a customary norm would therefore prevent the recognition of new developments as

188 | Law and Development, and Legal Pluralism in Ethiopia customary law. This would result in the courts applying laws which communities themselves no longer follow, and would stifle the recognition of the new rules adopted by the communities in response to the changing face of South African society. The result would be contrary to the Constitution and cannot be accepted. (Para 55)

5. Recognition of Traditional Law and Traditional Leadership The traditional communal way of life continues to define the lives of many South Africans, especially in rural areas. For many, it is linked to their culture and identity. This raises the question of accommodation of traditional leadership within the constitutional system of government. As the following brief discussion reveals, the constitutional position adopted by South Africa represents an attempt to recognize the cultural identity of traditional authorities without implying a role for traditional authorities in government .

5.1 Constitutional recognition of traditional leadership The Constitution recognizes the role of both traditional law and traditional authorities. 8 This is explicitly stated in section 211 which provides for the recognition of the institution, status and role of traditional leadership as defined by customary law. Section 211(2) states that a traditional authority that observes the system of customary law may function subject to any applicable legislation and customs. The recognition of traditional law and traditional leadership is given further expression through the obligation imposed on the courts to apply customary law when it is applicable (section 211(3) of the Constitution). The Constitution also provides the possibility for the adoption of a traditional monarch. Section 143(2) of the Constitution provides that a provincial constitution may provide for ‘the institution, role, authority and status of a traditional monarch, where applicable’. The recognition of traditional leadership is not, however, absolute. The recognition of traditional leadership is subject to the Constitution and legislation. This is also true with regard to the application of customary law. Although the courts are mandated to apply customary law when that law is

8 Under the Interim Constitution, the traditional rulers were allowed to retain the powers and functions they held under customary law and ‘applicable laws’. At the municipal level, they were given an ex officio membership status of the municipal council. The provinces, where there are traditional authorities, were mandated to establish houses of traditional leaders. The national government was also obliged to establish a council of traditional leaders, which is now called the house of traditional leaders. (sections 181–184 of the Interim Constitution; for more discussion, see Bennett and Murray 2007 .

Chapter 9. Legal Pluralism and the South African Experience | 189 applicable, the application is made subject to the Constitution and any legislation that specifically deals with customary law (section 211(3) of the Constitution). The Constitution appears to envisage a role for traditional authorities at a local level. This is indicated in section 212 of the Constitution which allows for the enactment of a national legislation that may provide ‘for a role for traditional leadership as an institution at local level on matters affecting local communities’. Although not couched in a mandatory form, this represents recognition of the traditionally important role that traditional authorities play in local communities.

5.2 The Traditional Leadership and Governance Framework Act The limited role of traditional authorities in local government was further defined with the enactment of the Traditional Leadership and Governance Framework Act in 2003 (Act 41 of 2003). The major objective of the Act is to regulate ‘the place and role of traditional leadership within the new system of democratic governance’ (Preamble Traditional Leadership and Governance Framework Act 41 of 2003). A traditional community 9 must establish a traditional council whose mandate is ‘to administer the affairs of the traditional community, assist the traditional leaders, support municipalities in the identification of the community needs, contribute to development and service delivery and promote indigenous knowledge systems for sustainable development’ (section 4(1)). From the foregoing, it is clear that the Act does not entrust traditional leaders with significant powers. Without denying some of the important roles that the traditional council is entrusted with, Murray (2004: 15) aptly comments that ‘[t]he functions that the Act sets out are generally soft, including, for instance, activities like “facilitating”, “supporting” and “promoting” various things’. The Act also seeks to bring the institution of traditional leadership in line with the imperatives of a state that is based on constitutional democracy. It requires a traditional community to transform and harmonize customary law and customs with the Constitution and the Bill of Rights. Departing from the traditional mode of organization which limits membership to few selective

9 A traditional community is defined by the Act as a community that is subject to a system of traditional leadership in terms of that community’s customs and observes a system of customary law (section 2(1)). The authority to identify a community as such is vested in the premier of the province who has to carry out this power in accordance with provincial legislation and in consultation with the house of traditional leaders in the province, the community concerned and, if applicable, the king or queen under whose authority that community would fall (section 2(2)).

190 | Law and Development, and Legal Pluralism in Ethiopia members of the community, the Act requires the inclusion of elected members and women in the membership of the traditional councils. It requires that a third of the members must be women and 40 per cent of the members must be democratically elected (section 3(2)).

5.3 Houses of traditional leaders The provisions of the Constitution and the Act provide for the establishment of houses of traditional leaders that deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law (section 212(2) of the Constitution). Unlike the Interim Constitution, which mandates the establishment of such houses, the provisions of the Constitution have made the establishment of houses of traditional leaders optional. When the Constitution came into effect, however, all provinces, with the exception of the Western Cape, Gauteng and Northern Cape, had already established houses of traditional leaders as required by the Interim Constitution. Furthermore, the Council of Traditional Leaders, which is composed of three representatives from each provincial house, was established in 1997, and later renamed as the National House of Traditional Leaders in 1998. The power of the National House is generally limited to providing advice to the government or the President, and to making recommendations on questions of traditional leadership, customary law and the customs of communities observing systems of customary law. This does not impose a corresponding duty on the national government to seek the advice of the National House. Even in cases where advice has been sought and given, there is no obligation on those that sought the advice to take it into account. As noted by Bennett and Murray (2007: 26–7), the House ‘plays a strictly advisory role, even in matters concerning traditional leadership and customary law’. The only exception is that a national bill that deals with customary law or customs of traditional communities must be referred to the National House, which is given 30 days to provide its comment, before it is passed by Parliament (section 18(1)).

5.4 Assessment The recognition of traditional leadership represents an important acknowledgement of the culture and tradition that underlie traditional forms of government. It symbolizes the recognition of the culture and identity of those that adhere to the traditional communal African way of life. The place of traditional authorities, as the Constitutional Court noted, does not, however, extend beyond the cultural realm. In fact, the constitutional recognition is described by the Constitutional Court, as ‘recognising a

Chapter 9. Legal Pluralism and the South African Experience | 191 degree of cultural pluralism with legal and cultural, but not necessarily governmental consequences’ (In Re: Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253 (CC) para 195). The constitutional recognition does not thus extend beyond the acknowledgement of cultural pluralism to give traditional leaders a role in government. A closer look at the developments that unfolded after the adoption of the Interim Constitution would show even the limited role that traditional authorities enjoyed in local government has also gradually declined. As indicated earlier, traditional leaders were provided municipal council membership ex officio by the Interim Constitution (section 182 of the 1993 Constitution). They lost this status with the adoption of the 1996 Constitution. Eventually, their role was reduced to an advisory (non-voting) role following the enactment of the Municipal Structures Act, which outlines the structure of local government (section 81 of Local Government: Municipal Structures Act 117 of 1998). The establishment of wall-to-wall municipalities, as pointed out by Murray, has also cast doubt on the exercise of local powers by traditional leaders. She mentions two circumstances that undermined the role of traditional authorities in local government. The first relates to the demarcation process that led to the establishment of wall-to-wall municipalities without regard to traditional bonds. In a demarcation process that she describes as ‘reminiscent of the way in which Africa was carved up in the 19th century’ (Murray 2004, 14), the boundaries of traditional communities were frequently disregarded in creating the new municipalities. The second, and most important reason for the decline of traditional leaders relates to the ‘usurping of traditional chiefly powers by local government’ (Murray 2004, 14). Many of the service delivery responsibilities that traditionally belonged to the local chiefs have become the constitutional responsibilities of local government. Yet functions like resolving disputes, allocating land, convening initiation schools and presiding over national festivals remain under the jurisdiction of traditional leaders (Bennett and Murray, 2007). In sum, the constitutional recognition of traditional leadership is limited to the cultural realm. With the establishment of democratic local government across the country, the traditional authorities have lost some of their governance responsibilities. This, however, should not dent the symbolic significance of the recognition of traditional leaders by the Constitution. As indicated earlier, the Framework Act does not give much power. But it, under section 20, allows the national or provincial government to ‘enact laws providing a role for traditional councils in relation to a wide range of

192 | Law and Development, and Legal Pluralism in Ethiopia issues including (but not limited to) land administration, health, welfare, the administration of justice, safety and security, economic development and the management of natural resources’. Based on this provision, the government has now tabled the Traditional Courts Bill B1-2012, which gives substantive powers to traditional leaders. The bill, which is already before parliament, is deemed controversial. It denies decision-making authority and dispute resolution at family, village or headman levels. Rather decision making and dispute resolution authority is placed only on the courts at the apex of the ‘tribe’. It is pertinent to note that the bill places statutory authority in the hands of a presiding officer of a traditional court, who must be a recognised senior traditional leader or his delegate. Surprisingly, traditional councils are denied any role, function or support although in practice they play the pre- eminent role in existing customary courts.” (Claassens, 2011: 189) There are other provisions of the bill which merit highlighting. In relation to the bill, it is an offense not to appear before a customary court once summoned by the Presiding officer. However, the court’s jurisdictional boundaries have not changed. They are the same as those of the officially recognised traditional council which are based on old tribal authority boundaries. The decisions of the Courts have the same status as those made by the magistrate’s courts. What is also disturbing is the fact that the court may set aside a person’s customary rights to land, and strip a person of community membership. In addition, the presiding officer’s power in respect of customary entitlements does not support the current arrangements where such issues are debated thoroughly at various levels of the traditional authority systems. Traditionally, decisions on depriving a person of customary entitlement is thrashed out thoroughly at clan, village and meeting of the whole community. This is largely attributed to the ‘fact that the bill centralises statutory authority in the hands of the presiding officer, who is a senior traditional leader or his delegate’(Classens, 2011: 190). What is striking about the bill is that it does not provide for a right to opt out of traditional courts. This is despite the strong recommendation by the South African Law Commission that individuals should be given the option to decline to appear before the customary courts. The bill, however, makes any one who lives within the fixed territorial boundaries for traditional courts subject to the jurisdictions of the court. “Fixed territorial boundaries replace consensual affiliation as the basis for determining the boundaries of the court’s jurisdiction” (Claassens, 2011:191). The bill is strongly opposed by women activists who argue that the bill re-entrenches patriarchal relations and ‘removes the incentive for traditional leaders to accommodate countervailing views in the interpretation and development of customary law”. The bill is criticised on the ground that it vests too much authority in traditional leaders thereby undermining the

Chapter 9. Legal Pluralism and the South African Experience | 193 already existing multiple dispute resolution mechanisms in rural communities (Claassens, 2011: 193). This bill is generally supported by those that seem to have a bounded view of culture which insulates it from any external influence.

6. Conclusion Customary law should be applied where it is appropriate, and this gives a choice of the appropriate law based on the transaction involved, parties in dispute, the nature of the case and the courts. One of the clear lessons or implications of the South African experience is that customary law is not necessarily retrogressive. Customary law evolves and has the capacity to progress as is the case in South Africa. With regard to the constitutional means of reconciling the conflicts between cultural rights and other fundamental rights, the standard setting power of the South African constitution is very clear. The customary law should be interpreted to promote the Bill of Rights. In relation to the difference between legal systems and application of customary law, there might be no such difference. However, the South African courts seem to have the advantage because they have a rich source of codified customary laws and precedents decided by courts during the Apartheid regime as well as the colonial period although there might be a need to revisit the values of these precedents. This chapter has examined the way in which South Africa has responded to the legal diversity that characterises it by exploring how its constitution seeks to manage the tension between the African legal tradition and human rights. The chapter has also explained the institutional dimension of the debate by discussing the status and role of traditional authorities in South Africa. This is done hoping that it might inform a similar experiment in contemporary Ethiopia.

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Reference List

Albertyn, C (2009) ‘The stubborn persistence of patriarchy’? Gender equality and cultural diversity in South Africa 2 Constitutional Court Review 165-208. Bennett, TW (1995) Human rights and African customary law Cape Town: Juta & Co. Ltd. Bennett, TW (2010) Legal pluralism and the family in South Africa: Lessons from customary law Reform 25 Emory International Law Review 1028-1059. Claassens, A (2011) Contested power and apartheid tribal boundaries: The implications of ‘living customary law’ for indigenous accountability mechanisms in H. Mostert & T. Bennett (eds.) Pluralism & Development: Studies in Access to Property in Africa Cape Town: Juta, 174-209. Hall, Stuart ([1989] 1996) ‘Cultural Identity and Cinematic Representation’, in Baker, Houston A., Manthia Diawara, and Ruth L. Lindeborg (eds.) Black British Cultural Studies: A Reader , Chicago: The University of Chicago Press, pp. 210-222 Shilubana & Others v Nwamitwa [2008] ZACC 9.Mireku, O (2010) Customary law and the promotion of gender equality 10 African Human Rights Law Journal 515-523. Phandis, U. And Ganquly, R. (2001) Ethnicity and nation building in South East Asia (New Delhi: Sage) Wicomb, W and Smith, H (2011) Customary communities as ‘peoples’ and their customary tenure as ‘culture’: What we can do with the Endoris decision 11 African Human rights Law Journal 422-446.

Chapter 10

Case Study on Seven Customary Laws in Ethiopia

Yidnekachew Kebede, Isayas Ayele, Maereg Gebregziabher & Gebremeskel Gebrewahid

Summary of the Case Study Social pluralism is the basis for legal pluralism and most rural communities in Ethiopia use customary law. The 1995 FDRE Constitution gives due recognition to customary laws. Articles 9, 40, 34(5), 37, 39(2) and 78(5) of the Constitution recognize customary laws and customary institutions of nations, nationalities and peoples in Ethiopia. The following seven customary laws are sample good practices in various traditional systems of rural communities in Ethiopia. a) ‘Gereb’ The ‘Gereb’ is the customary conflict resolution mechanism of the people of Wajirat, living in the southern part of the National Regional State of Tigray. ‘Gereb ’ is a system used by Wajirat people to settle disputes with their neighbors particularly that of the Afar people. These neighboring people have agreements through their elders on security, religious freedom and economic and social issues. The customary institutions help in avoiding religious or ethnic conflicts that may arise between the people of Afar and Wajira t. ‘Gereb’ allows the peaceful settlement of disputes when they arise. Hence, the ‘Gereb’ practice is a good example against the assumption that customary laws encourage tribal or ethnic conflicts. b) Med’a In the traditional justice system of the Afar people called Med’a , the justice institutions and their powers/duties are divided among family, close neighbors, sub-clan group and clan groups. Under the Med’a customary laws, liabilities, inter alia , arise by fault (either by omission or commission), which may be divided into minor and grave liabilities. Under this customary practice, liability may only be waived in certain circumstances, for example, where the offender is mentally ill. This customary justice system also deals with cases where the offender may be held responsible and pay damages commensurate with the act. The other

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196 | Law and Development, and Legal Pluralism in Ethiopia type of tortuous liability under the Med’a system is liability without fault, including damage caused by water wells or animals. The third tortuous responsibility recognized under Afar customary justice system is liability for the act of another including harm caused by minors. The predictability of compensation usually paid in goats is one of the features which are peculiar to Afar customary justice system. c) Mora It is the customary law that deals with cooperation during farming activities among the Konso People. In Konso communities, there are customary benches called Mora in every sub-village. Because the geography of the Konso area is not suitable for agriculture which is very labor intensive, it is not possible for family members to carry out farming activities on their own. The Konso people thus have a customary practice which creates rights and obligations between neighbors in the course of carrying out farming and related activities for one another. These customary agreements are named ‘Fedeta’, ‘Perka and Merpera’ (sharing labors group) and ‘ Kenta ’ (Neighborhood). According to the customary systems of the Konso people, these customary agreements are made orally and they create rights and obligations. Accordingly, the individual farm activities will be carried out jointly with neighbors. Where one fails to undertake the obligation imposed, he/she will be held responsible after the case is brought in front of elders in accordance with the customary law. d) Mezenger Under the Mezenger customary law, contract can only be made between matured individuals who have reached working age. Where one of the contracting parties fails to fulfill his responsibility, his guarantor will fulfill the contractual obligation and hold the contracting party responsible later on. Hence, one aspect of the Mezenger customary system is the practice in which the guarantor may not refuse to pay the creditor where the debtor fails to discharge his obligations. Where the debtor has failed to fulfill his duties without good cause, he will be made to work on the creditor’s farm until he carries out his obligation under the contract. e) Chaqo The three different customary dispute settlement mechanisms used by the Wolayeta people are Chemeta , Chucha Checha and Chaqo , to settle conflicts among themselves. Among these, traditional systems, Chaqo is a customary dispute settlement body organized to entertain and decide conflicts between two different ethnic groups involving uses of natural resources such as grazing land, border crossing, cattle looting, water use over rivers and other conflicts. Chaqo is composed of 12 elders who are

Chapter 10. Case Study on Seven Customary Laws in Ethiopia | 197 selected from two conflicting ethnic groups. Under the Chaqo system, the interests of an individual are represented by the elders from his/her tribe who takes responsibility for the damage caused by the individual and solve their conflicts. f) Gudimale The Sidama people have their own peculiar customary judicial and conflict resolution procedure called ‘ Gudimale ’. Under this customary practice, offender(s) who have committed murder either individually or in group will be sheltered by the leader of the ethnic group, and elders will ask the victim’s family for reconciliation. This type of reconciliation will begin with a truth finding procedure called Kora which involves the society and the interested parties to the conflict. Under this system, it is not only the offender but his entire clan who will be held responsible for the damage done or crime committed. g) Nimo Nimo is a traditional system in succession among the Boro-Shenasha. According to this customary practice, there are two types of succession: testate and intestate, each with their own particular characteristics. The deceased may make the will orally or in a written format . Where the will is made orally, it must have been made in the presence of three elders who are expected to assure three things; (1) he has not lost his mind, (2) can speak and (3) that the will is given with his full consent. Under the Boro-Shenasha customary law, the deceased cannot leave his property/belongings to anyone else if he has children. The only ground that can justify the exclusion of a child from the will is where the child has not supported and cared for the deceased parent while the latter was alive . In case of intestate succession, under the Boro-Shenasha customary law, the children of the deceased will be the heirs and property will be divided equally among them. Under this customary law no one will request for the division of the land or household property while the widow of the deceased parent is alive which shows the special attention given to women in Boro- Shenasha. Moreover, any member of the family who is dissatisfied with the partition of property or who contests the authenticity of the will may bring the issues to the leader of the ethnic group and the case will be settled by the family assembly . The decision given by the family assembly and approved by the leader of the ethnic group will be final and non- appealable.

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1. “18 () ”1 () 2 (legal pluralism) (legal centralism) 3

1 Tobin, B. (2010) ‘The Law Giveth and The Law Taketh Away: The Case for Recognition of Customary Laws in International ABS and Trditional Knowledge Governance’, Policy Matters pp.16 and John Griffiths, (1986) 'What is Legal Pluralism ?' Journal of Legal Pluralism , 4(24) p.10. 2 J. Austin, (1946), Lectures of Jurisprudence the philosophy of the law, 5 th ed, as cited in John Murray, Page 316317. See Also, Austin, John (1995). The Province of Jurisprudence, Cambridge: Cambridge Univeristy Press) pp. 25, 3842 and Hart, H.L.A. (1994), The Concept of Law , 2 nd edition, Oxford: Clarendon Press. pp. 192208. 3 Griffth, supra note 1, pp.45, Sally Engle Merry (1988), Law and Society , Vol 22, No.5 page 8; Pounds (1940), Theory of Social Interests, Patterson, Interpretation of Modern Legal Philosophies, edited by Syre pp. 55; Werner Menski (2006), Comparative law in Global Context, the Legal system of Asia and Africa, Second ed. (Cambridge University Press) p.82; B. Malinowski (1926), Crime and Custom in Savage Society, London, Routledge, p. 25; Baudouin Dupret (2007), ‘Legal Pluralism, Plurality of Laws, and Legal Practices: Theories, Critiques, and Paraxiological Re Specification’, European Journal of Legal Studies , Issue 1, p. 3; And J. Vanderlinden (1979), ‘Return to Legal Pluralism: Twenty Years Later’, Journal of Legal Pluralism and Unofficial Law , pp. 149150.

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4 5 … 6 7 8 9

4 Allot, Antony N. (1984), ‘On Knowlwdge of Customary Laws in Africa’: Brussels: Academie Royale des Sciences d’outreMer, p.128; Ayittey, G. B. N. (1991) Indiginious African Institution. New York: Transnational, pp 4043; Holleman, J. F. (1974) Issues in African Law , The Hague and Paris: Mouton pp. 3; Wilfred Ardito (1997), “The Right to Self Regulation, Legal Pluralism and Human Rights in Peru”, Journal of Legal Pluralism, No. 39, pp.13; Leila Chirayath (2005), Caroline Sage and Michael Woolock, Customary Law and Policy Reform: Policy Reform Engaging with the Plurality of Justice Systems, , p.51; Julie, Macfarlane (2007), Working Towards Restorative Justice in Ethiopia: Integrating Traditonal Conflict Resolution Systems with the Formal Legal System, Cardozo J. of Conflict Resolution, vol.8 pp. 488489; R.C., Ellickson (1991), Order Without Law: How Neighbours Settle Dispute , pp. 142, MensahBrown, A. Kodowo (1976). Introduction to the law in Contemporary Africa . Owerri, New York and London: Conch Magazine. p. 36; Maria Backstrom et al (2007), A Case Study of Indigeneous Traditional Legal Systems and Conflict Resolution in Rattankiri Province, Cambodia (United Nations Development Programme Regional Centre in Bangkok) p.12. 5 RS Suttner (1970), Legal pluralism in South Africa: A Reprisal of policy, Vol 19. No1 (January 1970) Cambridge University Press, p.138 6 Ayittey (1991) supra note 4, p. 18 7 Ayittey, Ibid, p. 15; Ebo, Chukwuemeka (1995). ‘Indiginious Law and Justice: Some Major Concepts and Practices’ In Gordon R. Woodman and A.O. Obilade, eds., ( 1995) African Law And Legal Theory, New York. University Press, p. 39; David, Rene and John E. C. Brierley (1978). Major Legal Systems in the World Today London: Stevens and Sons, pp 508; Allott, Antony (1984) supra note 4, p 137; Richard H. Bell (2002), Understanding African Philosophy: A CrossCultural Approach to Classical and Contemporary Issues p. 90. 8 Katrina Cuskelly (2011), Customs and Constitutions: State Recognition of Customary Law around the World. : IUCN, Asia Regional Office, Bangkok, Thailand, pp 13; see also

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Swiderska, K., Argumedo et al (2009) Protecting Community Rights Over Traditional Knowlwdge: Implication of Customary Laws and Practices. Key Findings and Recommendatons 20052009, (IIED: International Institute for Environment and Development) p. 9; MensahBrown, A. Kodowo (1976). Introduction to Law in Contemporary Africa . Owerri, New York and London: Conch Magazine. p. 36; Donna Lee Van Cott (2000), ‘A Polotical Analysis of Legal Pluralism in Bolivia and Colombia’, Journal of Latin American Studies , Vol.32, No.1, Andean Issue, Cambridge Univeristy Press (Feb.2000) pp. 209210 ... 1980 . 1980 . Michael O, Mastura (1994), ‘Legal Pluralism in The Philippines’, Law and Society Review , Vol. 28, No. 3; Law and Society in South East Asia, Blackwell Publishing on behalf of the Law and Society Associaton, pp. 461462; and David Guillet, (1998), ‘Rethinking Legal Pluralism: Local Law and State Law in The Evolution of Water Property’, Comparative Studies in Society and History , Vol. 40, No. 1, Cambridge Univeristy Press, , pp. 4243. 9 2006 90 World Bank (2006), World Develpoment Report, On Customary Law Policy Reform: Engaging with the Plurality of Justice System, Oxford Univeristy Press, New York http://www.worldbank.org/ pp. 3. Sieraleone (2008), A Country Review of Crime and Criminal Justice, African Human Security Initiative, p.107. The Criminal Justice System in Zambia, Enhancing the Delivery of Security in Africa, African Human Security Initiative, April 2009 p. 133 10 Norman Singer (1970), “Modernization of Law in Ethiopia, a Study in Process and Personal values”, p.79, Harvard International Law Journal vol. 11; Aberra Jembere (1998), Legal History of Ethiopia , 14341974, Some Aspects of Substantive & Procedural Laws, Rotterdam, Erasmus Universitet, Laden: Africal Study Centrum, p.201203. Vanderlinden Jacques (1966), Civil and Common Law Infulences on the Developing Laws of Ethiopia , Buffalo Law Review , vol. 16 p.250; Robert Allen Sedler (19671968), The Development of Legal Systems: The Ethiopian Experience, Iowa Law Review, vol. 53 p.568; Pankhrust, A. and Assefa, G. (eds). 2008, Grass Root Justice in Ethiopia: The Contribution of Customary Dispute Resolution , Addis Abeba: French Center of Ethiopian Studies pp. 9, 14, 19, 23, 27, 29, 37, 4043 and 45. 11 1/1952 .

Chapter 10. Case Study on Seven Customary Laws in Ethiopia | 201

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