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GRASS-ROOTS JUSTICE IN ETHIOPIA  | Alula Pankhurst,  Getachew Assefa Regional Case Studies

9. Customary Dispute Resolution in READ

Tigray Region: Case Studies from Three

Districts
Shimelis Gizaw and Taddese Gessese
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p. 217-236

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Profile of the Region
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1 Tigray Region is the third most homogeneous of all the regions in Ethiopia,
TABLE OF CONTENTS next to the Afar and Somali national states. The Tigray people are the vast
majority and the Kunama and Irob are the only minorities. Christianity is
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the dominant religion though there are also Muslim Tigrayans in some
districts. The population of Tigray according to 1994 census was 3.6
CITED BY
million. The study has been conducted in three districts of Tigray region
Adigrat (Northern Tigray), Mekele (Central Tigray) and Adi Keyih (Southern
Tigray).
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CDR institutions
2 The people of Tigray Region have been noted for their resistance against
the central governments of the country. During the time of Emperor Haile FREEMIUM
Sellassie, a resistance group known as Keddamayi weyyane was established
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and made efforts to withstand the central government’s control. Many library for acquisition
fights took place between the weyyanes and government forces and there
were even incidences of bombings like those which occurred in Makele and
BUY
Hawzen in the era of Haile Sellassie and the Derg respectively. The political
organizations that lead the fight used to exercise the practices of Baito to
resolve conflicts and settle disputes among the people being governed by ePUB / PDF
them, that is, in the regions which were free from the central government’s
administration. The institution, however, was also responsible for other,
social, economic, and political activities and carried out administrative
activities which included keeping public order. Distribution of farm land,
co-coordinating soil conservation activities, etc. were some of the activities
of the Baito during the Derg (Bruce 1993).

3 The Baito institution was thus functionally operating in a similar way to the
Peasant Associations during the Derg (Asmelash 1995) and the chiqashum
during Emperor Haile Sellasie (Hoben 1973). Since the formal justice system
of the central government was not operational people were obedient to the
Baito administration and justice systems and often expressed their
preference for this system, which they considered effective in that people
had a say in them and there was almost complete control of criminal
actions and theft. The baito institution, however, was not established
exclusively for the responsibilities of dispute resolution and its duties
included other social services.

4 According to the information by Ato Gaim Welde Giorgis, former President

of the Supreme Court of Tigray Region criminal actions like murder are
becoming less and less frequent in the region. The types of criminal actions
and disputes that are most prevalent include theft, disputes over family
property, and between husbands and wives. The role, therefore, that CDR
mechanisms play is becoming more and more important. Settlement of
disputes through the formal system takes longer time and sometimes
locations of such intuitions are far from the residence of a disputant and
costs are associated with the distance.

Linkages with existing social and cultural

institutions
5 Shari’a courts, Iddir, Mahiber and the court of the Orthodox Church are the
institutions which play roles in CDR. The Shari’a court contributes a
considerable part in dispute resolution in the region, notably dealing with
quarrels between husbands and wives. The Orthodox Church court which is
supposed to deal with many kinds of disputes among the faithful has only a
nominal role. Judges and support staff are selected but the court is not
working at least at a level that was observable to the researchers. The link
this court has with CDR in Tigray is through involvement of the priests in
dispute settlement councils of elders individually, not as representatives of
the Orthodox Church court. Iddir is a self-help association of residents of a
neighborhood and as an optional objective of the institution, some elders
of the iddir take the initiative to resolve conflicts that arise among
members. Responsibility of the religious Mahiber conventionally includes
dispute resolution and a considerable role is being played by these
associations in this respect. It is thus possible to say the CDR are primarily
linked with the social (religious) and cultural institutions.

Use of CDR in the Region

6 Civil disputes are the most common type dealt with by CDR in Tigray. The
reason for this is partly due to prohibition by the state from dealing with
other types of disputes and partly because of absence of disputes of
commercial type, for instance which are rare and often handled by
institutions located outside the Region. The only case the researchers have
heard of is a dispute between the Ethiopian Telecommunications
Board/Corporation and Ethiopian Water and Sewerages Authority; laborers
of the Ethiopian Water and Sewerages Authority had caused damage to a
large number of telephone cables in Mekele for which the later authority
was made to pay compensations in money by the wereda court. The Former
President of the Supreme Court of the Region, suggests that it would have
been better if a separate committee of judges had made the decision since
the two organizations are community service givers and charges of
compensation will only affect government but not anyone else. Disputes
relating to crime are basically handled by the formal justice systems in the
region. The CDR mechanisms including the social courts are supposed to
handle disputes other than crime.

7 Instances in which collective disputes are resolved are those involving Raya,
Wajirat and Afar ethnic groups. The conflicts between the Afar and Tigray
people of the South East districts take a collective form and resolution is
made by elders of the Abbo Gereb. Conflicts in these places are sometimes
difficult to settle and formal institutions of justice like the police need the
help of CDR institutions. Conflicts often occur among groups and if the
police attempt to control them, further problems are created as the formal
procedures of the institutionalized justice systems do not allow
reconciliation, mediation and arbitration, which are exclusively practiced by
elders’ councils. In order to establish permanent peace among the
communities of Afar and Tigray, CDR mechanisms are employed in both
individual and group disputes.

8 Another agency that deals with collective disputes is the Region’s Labour 178. According to Ato
Dispute Reconciliation Agency/Institute. This agency deals with labour Zemenfeskidus Belay
Department Head of Labour
disputes between the employer and the Labour Unions. It also deals with
Dispute Affairs in the Office
individual disputes between a labourer and his employer, though this of Lab (...)
agency is not formally supposed to handle these and its role as an agency
to deal with private disputes of this type is not approved by court. It
sometimes tries to settle cases which are private and it does so since some
labourers are not aware that the agency doesn’t have the authority to do so
and since they come to the labour dispute affairs office instead of going to
the court. 178 According to the data the office has, the agency dealt with
526 individual labour disputes in 1995 E.C. but it dealt with only 13
collective disputes.

The Abbo Gereb Institution of

Wajirat 179
Case 1. Protection of Grazing area/land at Addi
K’eyeh
9 According to some research findings, the Gereb is an institution formed for
the resolution of conflicts between the Tigreans and the bordering Afar
ethnic groups. The institution of Gereb has some written rules compiled by
the mutual consent the of elders of both Afar and the Wajirat (Kelemework
2000:9697). According to Kelemework, the gereb consists of a council of
elders from ethnic groups. The present report is particularly about the task
of the Afar-Wajirat Gereb, which deals with conflicts between the Afar and
the Tigreans of Wajirat; there is another version of the Gereb that deals
with conflicts between the Afar of Didba Galjeran and the Tigreans
(Kelemework, 2000). There are types of conflicts which the Gereb does not
deal with. The Afar-Wajirat Gereb is mandated to deal with serious conflicts
only. The other types, the minor conflicts are dealt with by elders of the
respective ethnic groups. The Abbo gereb of the Gereb are elected by their
respective ethnic groups based on their skills of dispute settlement, their
honesty, and the acceptance they have due to this. Each Kebele has its own
grazing area, which may at intervals be protected from catde by selected
members of the community, which obviously means the Abbo Gereb elders.
The number of the persons is 20. Two of the 20 persons act as leaders and
play the role of administrators of the grazing land. In addition to this they
are in charge of punishing those who are caught for letting cattle graze on
the land/grass. In this way they enforce the agreements of the locality. The
two leaders are known as Dagna Abbo Shera. In cases where the 20 people,
who are in charge of protecting the grazing area fail to carry out their
duties properly, they will be made to collect a given amount of money -
ranging from 600-1000 birr, which serves as a guarantee/collateral. The
money collected or deposited for this purpose is locally called Hirud. The
name seems to have been derived from Hirude or slaughtering of an ox
that used to be served in a feast. Negligence to carry out responsibilities
would result in a punishment also termed Hirud. The system used to
deposit Hirud in the hands of Abbo Shera in the past, and currently with the
Kebele administrations.
10 Destruction/grazing of the protected grass is punishable according to the
system serrit. The amount of punishment varies depending on the number
of cattle that went into the grass and on the behavior of the owner. The
amount ranges from 5-50 birr per head of cattle. If the owner is capable
and if he accepts the punishment, he will pay the money right away or he
will be made to present a guarantor. But if he fails to accept the
punishment, he will be taken to the Dagna Abbo Shera, who may force him
to appear on the day of appointment. This guarantee of plaintif lasts for
three consecutive adjournments if he fails to do this he will be made to pay
the punishment. The Abbo Sheras however, meet weekly wherever it is
convenient so as to be available for the people. The meeting could be a
market place, church, etc.

11 The law has no written form and everything referred to is kept in the
memory of the speaker and is presented orally. The term for which the
Dagna Abbo shera remains functional is six months only. Right after
serving this period, the team leaves to give others the chance to come to
office for the same period of time. The Afar community members are also
made to abide the law that is functional in the Wajirat area.

Case 2: From Demer to Abbo Gereb: Murder case

between Afar and Tigray at Isira Amba 180
12 The Sirrit at Wajirat Isira Amba is the system of dispute settlement is 180. Informants Hagos
southeastern Tigray. The method of selecting elders for the appointment Kalayi (63) Hailu Meresa (70)
who are serving as Abbo
involves calling the Demer which is a meeting of the community of Isira
Gereb currently.
Amba i.e. twenty villages. Ten of the villages select ten elders from the
villages past/beyond the river called gera gerewo. The remaining ten
villages also select ten elders from ten villages other than their own i.e.
beyond the river sera/serewo. The total of twenty elders representing the
residents of the twenty villages constitute the body of the traditional justice
system at ‘Wajirat’ Isira Amba’. The type of cases the justice system
handles includes: murder, theft, rape, denial of paternity, denial of debt,
beating, rape, insults, and quarrels between parents and children.

13 Cases were brought to the elders either through the litigants or by the
initiative of the elders themselves when it has something to do with public
affairs. A litigant may present the case requesting the elders to consider it
and complaints are given orally in this way. The litigants are then called to
the elders. The litigants are named Seb-Zenge which means ‘Men with
sticks’ in the local language. The litigants could stay together while
presenting their complaints to the elders. The elders take a list of witnesses
– the neq asies, whose number varies from three to seven. A group of
elders were selected and sent to the residences of witnesses so as not to
allow time for them to create unnecessary contacts before the hearing. The
public gathering of this purpose was. called Demer. It was held until the
Italian aggression and continued until it was prohibited later during Haile
Selassie’s era. The Derg had later stopped the practice totally. The
Qaddamayi Woyyane, which fought for justice and fair admission had the
role of assisting in the development of the Isira Amba system of justice.
Then with the decline of the Qaddamayi Weyyane movement the system
had been weakened and its role of dispute settlement was replaced by the
similar function of the Demer until the early years of the Derg regime. The
Derg used the Demer for purposes of controlling bandits, thieves and
murderers – and handing them over to government institutions like tire
police and administrative bodies in the region.

14 Litigants could represent a relative or anyone in the dispute

settlement/argument when s/he is found to be incapable of
presenting/articulating his/her complaint to the elders properly. Meetings
of the Demer were called by sending messengers to the surroundings, who
would tell residents that the next meeting would be made at the bank of
the river Gera Gerwo. Women did not take part in the dispute settlement
except when requested to be witnesses and when they come as litigants.
Government officials could take part in meetings as members of the
community but they did not act according to their official roles of
appointment. They could collect tax, facilitate social services, etc. They did
not deal with bandits or thieves as these roles were played by the elders.
When a child failed to give services to the parent, his case was presented to
elders and next time when he appeared at the assembly of elders he was
made to carry his parent on his back while presenting his arguments.

15 The former system of dispute settlement, however, has been replaced by

the Abbo Gereb, which is also a council of elders elected from the residents
by government recommendation. Three elders were selected from each
Kebele and those are a total of 30 who are supposed to be in the council.
The team has seen seven of them dealing with a case of murder.

16 The major roles of Abbo Gereb include group conflicts that occur between
the highlander Tigray groups and lowlander Afar people, who sometimes
dispute over grazing land, and drinking water which often becomes scarce
due to drought in the area. Moreover, there are minor individual causes of
conflict like theft and murder the settlement of which is the responsibility
of Abbo Gereb.

17 The nature of conflict often dealt with by elders of Abbo Gereb is 181. On the Tigray side the
elucidated in the case that follows. The researchers have observed the Abbo Gereb members were:
Ato Hagos Kalay, Ato Hailu
occasion of dispute settlement discussion made between members of
Meressa, Ato Tammene W/G
Tigray and Afar elders who came together on March 16th, 2004. 181 The (...)
elders have had two similar meetings and the third was to be held when the
researchers arrived. It was held on the eastern coast of the river Gera
Gerewo at a village called Mamiet, roughly a 1:15 hrs walk from the rural
town of Addi Keyih which is on the main road to Maychew/Addis Ababa.
The elders were divided into two in that occasion. One group of elders was
sitting with the family of the dead person and the second came later and
joined the Afar elders who had traveled a long distance to arrive there. The
murder was carried out some two months before as the Tigray farmer tried
to beat the Afar youngster, who was armed with a gun and told the Tigray
farmer to leave behind the donkey he was driving home. The Tigray
farmer’s refusal to obey resulted in a fight between the two men in the end
of which the Afar fired the gun and shot the Tigray farmer dead. The Afar
Region police caught the murderer and put him in prison.

18 On the date of the arrival of the research team at 12:15 the elders were
supposed to come with the criminal to the meeting. It was, however not
possible for them to bring him on that day and in their explanation to the
family of the dead person, they said that the Afar Region police took him to
the Zonal police prison. They added that the police had promised to hand
the criminal to them after making him sign so that they could be able to
take him to the meeting of elders and the family of the dead person. The
second group of Abbo Gereb elders came to join the family of the dead
person and the first group of Abbo Gereb elders and stood erect with their
shemmas crossed over their chest in sign of politeness to beg for the
family’s mercy. The argument between the standing elders and the dead
man’s family took about an hour and a half and in the end they were told to
sit down. In the discussion to convince the family, the elders asked them to
pardon the killer because the blood that was split was not ‘black’. They said
that they had asked the criminal about it and found out that the murder
was not intentional. A member of the first group of elders also added that
he had taken part in several disputes of similar nature and that what the
previous ones said was true. The family was convinced and showed that
they had accepted the next appointment in about one month. An elder
from the community of the criminal said before this that it is not blood of
an animal that was spilt and that compensation was obligatory.

19 The meeting was adjourned at about 5:30pm. The light shower of rain that
cooled the air in the end was described by some of the elders to symbolize
settlement of the dispute. The private conversation between elders, most of
whom were bilinguals and the looks in their faces clearly indicate the desire
to establish co-operation and live together with harmony. The elders
expressed their appreciation of each others’ effort to settle the dispute.
They said that the dispute should be settled since what had been split was
not the blood of a sheep or bull and that they would continue to make
efforts even when they are sick and tired like one of the Afar elders. (who
was sick while they were trying to settle the dispute). Elders of criminal’s
community advised the others to stick to the previous Wajirat custom and
take what they say and not to listen to what some liars tell them.

20 Asked to explain the aim of their coming together when the government
institutions are capable of resolving conflicts the elders answered that they
were trying to settle the dispute and to establish permanent peace between
the two communities. Asked what they would do if the police refused to
give the criminal to be taken to the next meeting, they answered that they
believe that the police will accept as long as the disputants agree upon the
settlement and sign confirmation of this. They also added that the prisoner
will be given back to the police after appearing in the meeting. But before
this the criminal will be brought to the elders and will be made to put on a
black wool wacco in sign of mourning for the dead person and will be
‘thrown’ into the hands of the family of the dead person and beg for their
mercy. The police according to the elders will be asked to give the prisoner
orally without necessarily writing a letter. An amount of 1000 birr will be
paid in punishment for the crime. The sum will be divided into two and will
be given to the administrative offices of the Weredas at the same time. The
amount of money paid in compensation however varies based on some
factors, including the capacity of the criminal or his family to pay it. It often
varies from 5,000-20,000 birr and sometimes may be more.

21 Most of the Abbo Gereb members who are working in this council served
13 years. They are very much accepted and respected by the communities.
They are not, however, being supported by the government/state in any
way. They don’t even have a place to meet and the researchers had
witnessed this; they had to sit in open fields for a meeting to settle
disputes. Most of them also like the service they give to the community but
they complain of shortage of time to work on their farms and private
matters.

22 The communities prefer the Abbo Gereb to the formal justice system
according to the opinion of most elders and the people. Nevertheless,
persons who are accused of theft prefer the formal justice system because
they will have the chance to be released when the police fail to find
evidence. The Abbo Gereb on the other hand follows the track of a lost
animal and is usually successful in finding/discovering a criminal or crime
while the police usually fails to do so. Therefore the Abbo Gereb is viewed
as more effective than the institutionalized justice system and is often
preferred by the community.

Case 3: The Abbo Gereb in Southern Tigray:

Cattle raiding and murder between the Raya and
Afar
23 In this case responses given by Ato Gebreabgzi, who is working in the
Tigray Regional police and who had served for more than ten years in the
district of Southern Tigray (Raya) are reported. His discussion with
researchers include a case of murder in which eight persons were killed in a
fight caused in a border incident between Raya, and Afar communities. A
large number of cattle was allowed to graze on a borderland over which the
two communities have a claim. A considerable number of cattle were taken
by each side during the fight because the cattle were found grazing on the
land over which the communities used to dispute. After a serious fight and
shooting several individuals died from each side. Soon after the fight the
Region’s police decide to intervene and caught ten individuals, who were
supposed to be the initiators of the conflict from Mechare and Addis
Abdera in Tigray. As the police was charging them of the crime and was
following the case, the elders of the area, most of whom are sheikhs and
Wajirat elders, had recommended that the Abbo-Gereb of both
communities should handle the conflict. They thought that involvement of
governmental institutions like the Ministry of Justice and the police and the
court in particular would aggravate the dispute. The elders had, therefore
decided that Abbo Gereb should carry out the task so that the dispute
would be resolved and peace could be reestablished. The Abbo Gereb
which took the responsibility requested the police to release the prisoners
so that the dispute resolution could be fruitful. After the release of the
suspects the elders of Abbo Gereb decided to return the cattle taken during
the fight to their respective owners. The Tigray Regional State government
also requested the Ministry of Justice to give up the case constructed
against the suspects for the sake of the communities’ peaceful co-
existence and this was done in accordance with the Criminal Code of
Ethiopia.

24 The document of the arbitration was written and signed in the presence of
representatives of the administration of the regions (Tigray and Afar), the
police representatives of the two Regions and the elders of the
communities. The arbitration was closed in a ceremony where four cattle
were killed and served in the feast. Dispute settlement in southern Tigray
include 1) those carried out by Abbo Gereb; 2) those settled by village
elders of the communities and by representatives of the Wereda
administration offices-when the conflict is between two neighboring
communities and 3) those settled by religious leaders (sheikhs and priests).
Elders are selected by the community using the criteria of age, skills in
dispute settlement, blood relation to one or both of the disputants, and
willingness to serve. Types of disputes commonly settled by elders in
Southern Tigray district of Raya included border disputes with Afar,
murder, and theft. The very common causes of conflict in Raya and Afar
communities are grazing land and water for cattle. Disputes between
husband and wife are not common and if they occur elders and priests
could settle them without the involvement of the institutionalized justice
system. One of the common causes of disputes is theft. This is because
livestock notably camels, freely move in deserts with contraband items. The
camels are often taken by the neighboring highland Tigreans and sold
elsewhere. The Afar lowlanders also steal cattle when they have the
opportunity to do so and theft is one of the common causes of conflict in
the district. Rape and murder are also among the causes of dispute in the
region. They are not, however, frequent compared to the other causes of
conflict. Suspicion of men having sexual affairs with wives of other men
could sometimes be observed to be a cause for dispute. Nonetheless, this
is not common.

25 In the Raya of South Tigray camels are sent to Afar to carry contraband
items for payment. The load/pack they carry is often worth hundreds of
thousands of birr. Thus if the camel dies during the travel, the man who
hired it may be pardoned and may not have to compensate for the lost
camel if he comes with the mark on the dead camel’s body as evidence.
This is sometimes condonable when the amount of money of the pack is
estimated to be is much higher. The customs police often captures and
takes smuggled or contraband goods and they are not recoverable. Owners
of camels, who let merchants hire their camels may often be sympathetic
and give up compensations. But sometimes if the merchants fail to present
such evidence as mentioned above, the incident becomes a cause of
dispute. Elders sometimes settle disputes of this nature in Raya and Afar.

26 The role of religious leaders in dispute settlement is considerable in Raya

of South Tigray. The Sheikhs are involved in almost every dispute
settlement and every disputant accepts what they propose. If anyone goes
against or fails to obey the sheikh’s verdict, he will be made to buy a carpet
on which sheikhs bow to Allah! It is generally believed that disobedience
may result in madness, bankruptcy, sickness or any kind or death.

27 The Raya community were said to prefer the traditional dispute resolution
mechanisms to the formal justice system, believing that a court’s decision
would not bring peace. They therefore want the elders and the sheikhs to
be involved and settle disputes for them.

28 The procedure the elders follow to find evidence is often based on an oath
taken by laying a hand on the Koran when it is the sheikh who handles the
case. Abbo Gereb elders make the suspect to walk over a weapon placed on
the ground in sign of an oath. This is supposed to symbolise that if the
suspect is telling a lie, his life would be taken by the weapon, or at least
that his life will be endangered. The footprint on the mud and sand are
often measured and taken as evidence against a suspect by elders if he
fails to admit that he had committed some crime. Although not common,
there are occasions where disputes are discussed and dealt with in the
absence of a disputant or both the disputants including in cases of
disputes between husband and wife, when either of them may not be made
to hear the other’s secret.

29 In Raya when the dispute is over grazing land or over a border, the Wereda
administration would select elders to settle disputes.

30 Failure to accept the decisions of Abbo Gereb would sometimes result in

ostracism. Historically, there were times when the property of the
disobedient was destroyed and his cattle slaughtered. But this is a violation
of his rights and is often not practical. Yet sanctions like reluctance to visit
him when he is sick or when he is in need of some assistance, for a
wedding, funeral, harvesting, ploughing, or building a house are ways of
enforcement of the elders’ decision in Raya. There is no hierarchy in the
body that makes decision, which is a decision by the Abbo Gereb without
any other or higher body of appeal. It will simply be enforced. The
information of the rules that work in the decision of village elders Abbo
Gereb is disseminated in public gatherings (church services, etc.) and the
public has awareness and knows what rules are working. This knowledge is
transmitted orally from generation to generation but not in written form.

Case 4: Reconciliation after divorce

31 The dispute took place between a known merchant and his wife in Mekele.
The case had resulted in a divorce which was approved by the social court
and endorsed by the wereda court. The elders were involved in a
reconciliation effort which was discussed by two of the elders involved in
mediation Ato Hailemariam Gebremedhin, a merchant aged 57 and Priest
Inqa Bahn Messele. Ato Hailemariam had learnt the skill of dispute
settlement in his childhood from what he used to observe. His father, who
was also a skilled village elder used to settle disputes with other elders. Ato
Hailemariam, who was very much interested in dispute settlement
discussions attended several dispute settlements following his father in his
trips for such missions in Hawzen, and now he is a famous dispute settler-
elder in Mekele. He said an elder must have a clear objective of bringing
peace and harmony between disputants and not gaining any benefit except
the resulting respect and acceptance. He added that the confidence and
courage an elder has come out of this and he had no doubt that no one
would have anything against their mission of settling the case between the
husband and the wife.

32 The disputants and some of the elders and the priest have a religious
association called Yetsiwa Mahiber in which they come together once a
month and serve local bread and Tella at each other’s residences. Other
religious services including lessons and prayers are also made on such
occasions. It was now the turn of the disputants to receive guests of the
Mahiber in their house. The elders warned that they would stop coming to
the disputants’ residence for similar occasions and for others unless they
accepted the arrangement for settling the conflict. There was an implication
that refusal to accept the effort the elders made would result in ostracism
and exclusion from the Orthodox church according to Inqu’s statement.
Two of the children have also taken part and they had a considerable role
in convincing their parents to come to agreement. They said inheritance of
their parent’s wealth would be of no value if they failed to inherit good
manners and behavior and told them that the saintly deeds of their parents
is worth many fold the property they would inherit and that they should be
able to acquire that example too. The elders took eight weeks to bring the
disputants to agreement.

33 After having cleared the grudges and suspicious each had with the Other in
the course of time, and after being convinced that the pleasure they would
enjoy is better when they are together, the parents revealed each others
suspicions and agreed to settle the dispute between them after serious
efforts of the elders.

34 The family’s property which is estimated to be about 28 million birr was to

be divided among the disputants. The attorney claimed about 1.4 million
birr; but he was later persuaded to receive 650,000 birr only. The attorney
on the husband’s side was very pleased that the dispute had been settled
and he did not take the money for the legal service – he even took part in
the dispute settlement with the elders, and gave them the advice that the
courts would accept the settlement of the dispute and they were
encouraged by that too.

35 Two years had passed before the divorce was decided by the courts. But
now the marriage had to be re-arranged by the elders. Other groups of
elders had tried their best to handle the dispute several times before that
but had failed to broker an agreement between the disputants. Some of the
elders in the previous council were said not to have had a genuine desire of
settling the dispute or they were attending the meetings simply half-
heartedly The last group of elders went to the courts with a written
document of the agreement between the husband and the wife and
requested the courts to approve it. The court had also accepted the
settlement of the dispute and had also appreciated the saintly work of the
elders in succeeding to bring the family to agreement of that kind.

36 The agreement signed by both the husband and the wife included a
payment of 300,000 if any one of them breaks the terms signed. The elders
had taken the initiative and came together to handle the dispute through
the religious association in which they were members. No one had called
them to meet and settle the dispute. Abba Melake Selam Gebre Kidan was
appointed chairman of the council of elders and a total of six elders were
members on 25 July, 2003. Three of the members were priests and the
remaining three are from the faithful in the association of St. Michael
mahiber. The council of the six elders in which Ato Hailemariam was a
secretary took nearly a week from 21st of July- 29th July, 2003 to write the
draft of the decision made by elders and which was to be signed later by
the husband and wife. This document has three copies. The disputants
appeared together during the first hearing and three sympathetic female
neighbors were also allowed to attend the meeting.

37 The meeting was sometimes called once a week, or even sometimes daily.
The elders noted that the wife had the desire to maintain the marriage. The
elders tried to establish whether the husband had another female partner
after tire divorce, but did not come across any such evidence. The elders’
request to the couple to bring some people, who have blood relations with
them was not accepted. The elders had also tired if the man had a female
partner after the divorce. The divorce lasted a year before the re-
arrangement. The dispute was settled in September 2003.

Case 5: Reconciliation after a car accident 182

38 A person was killed in a car accident at Alitena in Northern Tigray, and the 182. This case was narrated
death was considered to be accidental/unintentional. The elders called the by Ato Seyoum Mahilu, from
the Irob Community of
family, three from each side to the meeting. A relative of the dead person
Northern Tigray who was inv
was selected and take part in the dispute settlement. The elders went to the (...)
family of the dead person about three times before the actual arbitration
was started. Each time they requested the family’s willingness to accept the
dispute settlement effort. During the fourth meeting, the family was
convinced to accept the arbitration of the village elders and the amount of
compensation was fixed to be 15,000 birr. The uncles of the dead person
argued about the compensation but the elders finally convinced them to
accept the amount mentioned above. The family of the killer including one
of the elders had contributed for the compensation. Finally, the dispute was
settled and the agreement signed by both sides and copies of the
document were kept by each side in the dispute and the Arba Shimagile the
leader of the elders’ council

39 In the community of Irob, elders used to be selected and wait to settle

disputes whenever they occur. One or two of the permanent members of
elder’s council would resign if they had a blood relation with a disputant.
This is to ensure that favor could not be done to the relative because of the
relationship. According to the established custom of the community, the
defender is exiled voluntarily to avoid possible revenge by the
relatives/family of the victim. This is done when the defender fails to make
compensations, which usually follow settlement of dispute. The feast given
at the end of the dispute (Kukhta) is supposed to eliminate the feeling of
revenge because of sharing a meal of the meat of the bull slaughtered for
this purpose is supposed to mark the abolition of any intention of revenge.
The elders should, however, make very certain that every relative has
shared the meat of the bull Sola – meat because any one of the relatives
who declines would have tendency of revenge according to Taddese Baraki
and Seyoum Mahlu. A revenge after that would follow by ostracism if heard
to have occurred and is socially sanctioned as taboo. The expense for the
feast is usually covered by the defender and is normally considered as a
certain part of the compensation.

40 According to the customary practice in Irob and other Tigray districts

compensation is not made for crimes of other types. But elders may decide
to make the defendant to give a given number of cattle or goats or sheep in
compensation. The cattle or sheep are kept in the house of the plaintiff for
a few months as the compensation is only nominal. The plaintiff thinks
justice has been done to him even if he does not receive all the
compensation. Thus the plaintiff often returns the animals to the family of
the defender because compensation is not made for damages or disputes
of other type than murder. There is however, another form of payments
made for physical damages. A person who lost blood or some other part of
his body is allowed to receive goat, sheep, butter or honey from the
defendant not in a form of compensation but as a means to recover from
the damage after feeding on what the plaintiff obtains in this way.

41 In addition to resolving disputes of murder, the elders’ council of Irob

makes the families of disputants arrange a marriage between members of
the two families so that peace could be established and disputes could be
eliminated permanently.

42 The Council of elders takes into consideration the capacity of the defender
to pay compensation before it decides the amount to be paid. If the dead
person has very old parents or children who are not yet capable of working
and producing anything, the amount of compensation is made to be higher
than when it is with a victim without such family dependants.
Compensations received by the family of the victim are normally divided
among family members of the parents. Those on the side of the female
parents normally receive somewhat a lesser share. The father’s side takes a
larger share.

43 The burden of paying compensations is not normally left as the concern of

only the criminal; all his relatives take part and share a given proportion of
the payment depending on their capacity. The defendant and his relatives
can ask community members at market places or at churches to give what
they can in order to help their community fellow member to resolve his
financial problem. According to Ato Taddese Barakhi elders’ council of Irob
deals with all types of disputes including rape, murder, and theft and
crimes of other type like insult, etc. According to Ato Tadeleh and Seyoum
Mahilu, unintended crime cases, are not taken to the police or formal
justice systems even when these are murder cases. Other intentional cases
may be taken to court and the disputants are made to resolve/settle the
dispute by the traditional mechanisms afterwards when the criminal is back
after completing his imprisonment. Ato Taddese noted that the formal
justice system also allows according to article 523/526 to observe interests
of the family of the victim. It may allow the period of the imprisonment for
murder to be minimum in this way.

44 Kab Nebsi Nab Gebsi is a saying among the Irob to mean ‘let us save the
soul and take the barley’. The criminal is brought in front of elders and
taken to the family of the victim. He is then given to do what they want to
with him. The criminal is made to wear or wrap himself in a black wool in
sign of mourning for the dead person. He is made to lie down like a log of
wood in submission. The above statement ‘Let us save a soul and take
barley (grains)’ is made by the victim’s family, which means they have
greed to accept compensation to save the criminal’s soul, once they
allowed by elders to do what they wan; through this statement they
therefore show preference for accepting the compensation instead of
killing the criminal.

45 A criminal in a murder case is made to stay away until reconciliation is

made between the families even when the criminal has finished his term of
imprisonment. If he ventures to come into the location of the dead persons’
family without/before reconciliation and before the feast, he will be
considered to have despised and looked down upon them and the feeling
they might have due to this can initiate them to take revenge.

Case 6: Revenge twenty years later for

compensation not paid
46 There is actually a recent case in which four individuals were killed by a
family member of the victim killed twenty years back. The boy who was
very small when his relative was killed became an adult and was armed with
a gun by the kebele administration. The criminal stayed in prison for twenty
years but when he came out he did not accept that he should pay
compensation even though he had been penalized by the formal system.
The boy who was by now a man could not tolerate the feeling made that his
relative’s killer could live in the same village as him without asking elders
and reconciling/settling the conflict after twenty years during which the
criminal stayed in prison for his crime. He did not hesitate to shoot four
people of the criminal’s family to escape the feeling of degrading himself
because of living in the same place with the killer. The village people were
said to have had a part in this since they labelled him as a coward for
staying without taking action on the killer of his relative. The criminal was
not around at that time and the victims, who died together were only
related to him by blood. Three others were wounded in the same shooting.
The prisoner, Teklay Kiros, is now awaiting his execution in Mekele Prison.

Case 7: Boundary dispute with reconciliation

under way
47 Ato Gebru Debesay killed a person that tried to push the boundary of his
farmland. The defendant’s imprisonment was reduced to five years due to
the conditions of the occurrence of the crime. The elders’ Council made Ato
Gebru pay 30,000 birr to the family of the victim after he came out of
prison for fear that the victim’s relatives would take revenge. He has nearly
completed the payment except for three thousand birr he has to add and
elders can now ask the victims’ family to allow him to resettle in his
community. The Kukhta ceremony was to be held shortly after this
interview. He is now moving around the town of Adigrat until the Kukhta
has been celebrated to avoid the danger of revenge.

48 The Irob have a saying to suggested that compensation is not of much use
and is only made only to mark the satisfaction of the party with the
decision. The saying goes as follows: Bikasayi zikhe bereti bimayi tse’bah
zisekhere yelleyi meaning ‘There is no one who became wealthy by
receiving compensation and there is no one who got drunk/intoxicated by
the water of milk’.

Critical Assessment of the CDR

institutions

Strengths
49 It is difficult to establish an effective practical justice system in Tigray,
without involving the existing and potentially useful traditional systems of
dispute settlement. This study has shown that there are certain disputes
which the formal justice system has failed to settle. Traditional systems
could have dealt with such disputes and are effectively carrying out
activities of this type.

50 The customary systems can play an important role in several ways: firstly,
by supporting the formal justice system; secondly in helping the public by
establishing permanent peace after settlement of the conflict.; thirdly for
the litigants in minimizing the amount of time and money usually spent in
the formed Justice Systems, and fourthly for the communities by providing
socially acceptable solutions which the formal systems lack.

Weaknesses
51 The following points may be considered the main weaknesses of customary
dispute resolution: Firstly, the ever increasing amount of money that is
determined for compensation and the resulting burden on the family of the
criminal; secondly, the emerging trend of criminals leaning heavily on the
traditional mechanisms to solve problems for which they would have been
made to pay dearly in the formal justice systems (either through
imprisonment or in kind), and, thirdly, the disappointment of elders that
may result from them not being compensated in any form for the time and
energy they invest in the effort of dispute settlement and the tendency
which may develop to benefit from the process in forms of feasts,
transportation allowances, etc. and the unwillingness to the take part when
the litigants cannot afford to give such services.

52 The Abbo Gereb elders are already complaining that ‘government is not
compensating’ for the service they are giving and due to this the number of
elders who take part in the arbitration councils is becoming less and less
according to some informants.

53 The team observed a weakness of the social courts in that at least one
judge was almost always absent and those who were around gave the
common reason that the absentee could be trying to make his/her living.
Many decisions in social courts are delayed due to this. The services of the
social courts three days a week are therefore often limited to those
activities, which do not need the presence of all the judges.

Conformity with national and International

norms
54 The 1995 Constitution of the Federal Democratic Republic of Ethiopia
ascertains the rights of women to affirmative measures in Article 35-3 as
follows (1995:93). It follows that women have constitutional rights to take
part in social activities like those done by elders of Tigray region. In view of
may of the elders, the research team has interviewed, the absence of
women in the council is simply due to their shyness or lack of skills to
argue and convince others in public meetings and generally lack of
experience in this regard. In most of the situations of the rural community,
it is true that most women do not have any exposure to situations like the
one being discussed here and may therefore, lack the necessary skills of
dispute settlement in the council of village elders. There are variations
among male elders themselves and some are not even capable of
expressing in public what they have in mind. Therefore, there are
individuals among men too who are week and women cannot be viewed
differently in terms of individual talent of this nature. Practices that deprive
women of the rights to participate in social and economic activities
therefore fail to conform with the Constitution. International norms about
women likewise assert women’s rights which CDR institutions fail toe
observe simply due to following what is customary in the tradition.

Integration with the formal justice system

55 This study has shown that there is already significant integration and
collaboration between fact CDR institutions and the formal justice system
as is evidenced in the practice by the Addi K’eyyih Wajirat Abbo-Gereb
‘elders’ council. In the districts of Raya and Wajirat CDR institutions in
coordination with the police, administration and justice systems manage to
settle disputes that are sometimes difficult for the formal justice systems to
settle. This example therefore suggests that integration, is possible for the
CDR institutions of the region with the formal justice system. The
establishment of the ‘Abbo-Gereb’ elders’ council on a permanent basis in
southern Tigray to work in cooperation with the police and administration
of the District shows the existence of a correlation between CDR and formal
justice systems.

56 The CDR mechanisms seem to work on the basis of guaranteeing peace and
harmony among the communities in which they are a part. The formal
justice system on the other hand works on the principle of preventing
crime by guaranteeing peace by pursuing criminals. For the traditional
mechanisms punishing criminals is not the main goal; rather the aim is to
bring the disputant parties into agreement by using non-coercive methods
so that further conflict and intentions for revenge could not arise in the
minds of litigants. Hence, since the systems are working on different
principles (though the goals are protection of the rights, wealth and peace
of the community); procedures they follow may differ and that may result in
competing relations between the systems. Their practices may also lead to
conflicting relations and this could be an impediment to integration.

Conclusions
57 It can be observed from the survey that CDR institutions and mechanisms
are activity functional in Tigray region. The public and the regional state’s
formal justice system has already recognized the significant role played by
the traditional systems and there are even instances where some district
police offices have shown willingness to work in cooperation with village
elders’ councils in some places. Dispute settlement processes, which are
sometimes difficult for the institutionalized justice system may be easily
resolved by elders’ councils in the region. In addition to this the period of
time spent to settle disputes, the lasting peace and harmony between
disputants after that, etc. are major features that helped the traditional
systems to be acceptable by the public. The region’s administration office
also recognized this and has even selected members of an Abbo Gereb
elders’ council to work with the district police in resolving some disputes
including murder cases-specially in border Weredas with Afar region.

58 The social courts, which have been established in the Kebele administration
offices seem to have been weakened due to the bad feeling most judges
are having, (officials gain too much according to some judges).

59 Because of lack of legal procedures that observe the customs, the formal
justice system gives no regard for establishment of harmony and peace
among people and there is therefore little compatibility between traditional
and formal justice systems. There are instances of cases where formal
courts’ decisions have been reversed by traditional dispute settlement
mechanisms.

60 The legal procedures and rules and principles working in the present
formal justice systems of the region seem to have considerable regard for
international norms, which are sometimes difficult to apply. Many
communities lack practices that adhere to international norms notably
regarding women’s rights or children’s rights, and it may be problematic to
strictly apply the rules and legal procedures of this type. The option that
remains for the communities to prevent crime and to keep public order is
through alternative or traditional mechanisms. There is a wide gap between
what the formal justice system does and that what the CDR institutions are
applying in the region despite the efforts made by concerned institutions to
narrow the it. Failure to observe the local customs and practices in the
communities seems to have a significant part in the creation of the gap and
incompatibility between the formal and customary systems of dispute
settlement in the Region.

Recommendations
61 Given the role CDR institutions are playing it is important that the already
existing links with the formal justice systems should be formalised in order
to contribute to each other’s operation in the communities. The Abbo-
Gereb is already filling in the gap in the formal justice system, therefore
institutional support for the elders, who invest energy and time on the
occasions of dispute settlement should be given adequate recognition so
that the significant role they are playing could be maintained. Impediments
such as lack of meeting places, communication problems are so serious
that elders dealing with murder cases are observed holding meetings in the
open air where there is not even the shade of trees and this has greatly
affected the council or it seems so as it can be observed in the complaints
the elders have (in the interviews the team had) and in the actual situation
in which they made a meeting in the presence of the researchers.

62 The example of the role the Shari’a court and the Orthodox Church elders
are playing can be taken as a good mode for dispute settlement mechanism
development in the region; the role played by these institutions is
significant since they have an influential position and recognition by the
public. Except for the prohibition of women by the Shari’a court, preventing
women who have presented their case to the formal court from coming
back to the Shari’a court and the loss of courage that follows, the court is
playing a considerable role specially in allotting allowances for children
denied benefits by fathers due to several reasons.

63 The Orthodox Church court exists only nominally. There are judges and the
Church can provide the employees anything needed. Despite the influential
position the church has, the court is not working or not giving services that
are mentioned in the Qale Awadi the written law of the Ethiopian Orthodox
Church. Therefore, the acceptance the church has and its institutional
organization could be better exploited to fulfil the needs of dispute
settlement in combination with that of the elder’s council in a more
formalized way.

64 The role of the social courts has already been recognized and disputes are
settled by them. Nevertheless, there is a feeling among the social court
judges that they are not paid for the services they are giving. Although the
judges realize that they are giving voluntary services, the recent promotion
of the Kebele administration officials to much higher ranks and the
payment they obtain for a relatively similar services they are giving has
created a serious discomfort in the minds of the social court judges. It is
thus necessary to narrow the gap in benefits obtained by giving voluntary
services in the social courts and that gained by employment in Kebele
administrative offices, which are partly assigned to play political roles of
the leading party in the government.

List of Informants
No
Name Status
.

1 Ato Luel Kahsay LLM-Vice head of Justice Bureau of Tigray.

2 Ato Haftu Gulbetie LLB-Justice Bureau Department of Capacity Building.

3 Ato Abreha Wedaj LLB-Justice Bureau Acting head of prosecutor Dep.

Ato Zeamonuel
4 BA-Tigray police commission commissioner.
Legesse

5 Ato Hile Abreha LLM Vice-President of Tigray Supreme Court.

Ato Zemenfeskidus LLB- Department Head of Labour Dispute Affairs in the office of
6
Belay Labour and Social Affairs.

7 Aba Misgna Weldu Mekelle Lideta Mariam Catholic Church Komis.

Ato Gaim
8 LLB-Attorney at Law, Former president Tigray Supreme court.
W/Giorgies

9 W/ro Aster Tigray women’s Association V/Chairwomen.

Haji Mohamed
10 Shari’a Court Judge at Mekelle Zone.
Nurhusien

90, Elder – A person with a lot of experience of Elders counsel

11 Haleka Hindeya
Shimgilina.

Ato Hilmria 57 Merchant with good skills of arbitration and mediation having
12
Gebremedhin good reputation.

Kesis Enquibahiri
13 Staff of the Orthodox Church office in the region.
Mesele

14 Ato Gessesse Faris, 74, Retired teacher with educational administration experience.

Mergeta Assfaw
15 Tigray Orthodox Church, Head of the Archives section.
G/Mariam

Ato Atakeltie
16 62, Retired working as a judge in kebele social court.
G/Hiwot

SergeantAbebe
17 Retired police official, social court Judge Mekelle.
Ashebir-55

18 Ato Wereta Wekele Retired police official, social court Judge Mekelle.

Sergent Kebede
19 Retired police official, social court Judge Mekelle.
Girmay

20 Araba Abdulla, Graduate student at Addis Ababa University, Dept. of Sociology

Priest and teacher at the traditional school of mak’elie St. Mary’s

21 Aleqa Nahu Sennay-
Church.

NOTES
178. According to Ato Zemenfeskidus Belay Department Head of Labour Dispute
Affairs in the Office of Labour and Social Affairs.

179. Interviews of Council of Elders, informants Ato Hailu Hagezom (38) and Ato
Fitsum (42).

180. Informants Hagos Kalayi (63) Hailu Meresa (70) who are serving as Abbo
Gereb currently.

181. On the Tigray side the Abbo Gereb members were: Ato Hagos Kalay, Ato
Hailu Meressa, Ato Tammene W/Girogis, Ato Wolde Kiros Gebru, Ato Araya
Kahisay, other participants were a village elder Ato Tekle Gedle, and a priest. On
the Afar side Abbo Gereb members were: Ato Mohammed Ghada, Ato Bhasir.
Other participants were Afar village elders: Sinduh Mussa, Sheikh Arab Waliyu,
Ato Ali Herrikh, Ato Mussa Berhe, Ahimed Salah, and an Afar Kebele
Administration chairman Ato Ahmed Ali.

182. This case was narrated by Ato Seyoum Mahilu, from the Irob Community of
Northern Tigray who was involved as a member of a council of elders

AUTHOR(S)

Shimelis Gizaw

Taddese Gessese

© Centre français des études éthiopiennes, 2008

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