From ubuntu to gacaca: traditional justice could benefit Ethiopia’s transition

With careful analysis and adaptation, traditional approaches to resolving disputes can complement peacebuilding.

Published on 16 October 2023 in ISS Today

By

Tadesse Simie Metekia
Senior Researcher, Rule of law, ISS Addis Ababa​

Ethiopia has a wealth of traditional dispute-resolution mechanisms that help achieve reconciliation, mend fractured relationships and preserve communal harmony. Some are inter-ethnic in nature. Even in urban settings such as Addis Ababa’s Merkato, Ethiopia’s largest market, elders use traditional values and procedures to help resolve commercial disputes.

While there is limited acknowledgement in the constitution of their potential use to resolve family and personal disputes, the criminal justice system has, in practice, disregarded these traditional mechanisms altogether. This stems from the 1950s and ’60s when European experts overseeing the codification of Ethiopian laws purportedly omitted the traditions as incongruent with the modern legal system.

Ethiopia’s current peacebuilding initiatives – the dual dialogue and transitional justice processes – have brought traditional justice into focus. The National Dialogue Commission (NDC) is expected to use traditional knowledge and values in dialogue processes, although it’s yet to explore how to do so effectively, a senior NDC expert who requested anonymity told ISS Today.

Ethiopia’s Green Paper on Transitional Justice Policy Options released in early 2023, echoes the African Union’s policy on the issue in acknowledging the potential of traditional mechanisms. It calls for further investigation into how these approaches could be used.

Running de facto in parallel to the formal justice system, traditional mechanisms are the preferred means of dispute resolution for Ethiopians. A 2021 Hague Institute for Innovation of Law survey reveals that Ethiopia’s formal justice system resolves about 18% of legal disputes every year. By comparison, 43% are channelled through traditional approaches involving local elders, which resolve about three million disputes a year.

Traditional mechanisms are the preferred means of dispute resolution for Ethiopians

A 2023 Harvard Humanitarian Initiative Population Perception survey by Phuong Pham and Patrick Vinck found that 80% of Ethiopians (with slight regional variation) believed traditional mechanisms should be used to address violence. Most of the population thought traditional actors and institutions were more in their interest, and more pertinent for peacebuilding, than the formal justice system.

Percentage who support the use of traditional mechanisms to address violence in Ethiopia, by region Source: Harvard Humanitarian Initiative Population Perception Survey Ethiopia, 2023 (click on the graph for the full size image)

The question then isn’t whether traditional mechanisms should be involved, but how they can be made an integral part of the dialogue and transitional justice processes at national and local levels.

At a national level, traditional mechanisms should be considered from a macro viewpoint – not as isolated and contradicting approaches, but as institutions with shared values and peacebuilding philosophies. This may help identify an overarching principle, akin to South Africa’s ubuntu, an indigenous concept that invokes shared humanity and a reconciliation lens to addressing past grievances.

Extracting a common perspective from Ethiopia’s traditional institutions is presumably not too daunting, given that the difference among the mechanisms is more procedural and ritualistic than philosophical.

Customary local courts would allow formal courts to focus on accountability for the most responsible individuals

Identifying common traditional thinking and presenting it in multiple languages that are less technocratic may help both the dialogue and transitional justice processes. The NDC may use such an ubuntu-like philosophy to explain the importance of participation in discussions between ethnic groups, the country’s federal government and its regions, and government officials and the public.

Ethiopia needs a grassroots concept of peace and justice that transcends communities. This would help in mobilising public support for healing the nation’s wounds, compensating and assisting victims to recover, truth-telling, remembering the past, and forgiving or prosecuting wrongdoers.

At the local level, traditional mechanisms can help the NDC organise or facilitate community or intra-ethnic dialogue sessions. This may include involving elders in leading or facilitating the talks, which would also be relevant for a truth and reconciliation commission if one were to be established.

Regarding criminal accountability, traditional mechanisms could help deliver justice on a larger scale and in places where the formal system struggles. Since Ethiopia aims to reckon with multiple cases and periods of violence, the sheer volume of cases could overwhelm the formal justice system.

A senior official who requested anonymity said it was unlikely that any country’s judicial system could handle the number of cases and issues Ethiopia would face once transitional justice started next year. He said some sort of mechanism, restorative or retributive, should be available countrywide, including at kebeles (the lowest administrative units).

Traditional mechanisms would need to be substantially adapted and capacitated to deal with unique challenges

One approach is to formally recognise traditional mechanisms and reconstitute them as customary courts. This is already happening in the Oromia Regional State to improve access to justice by alleviating the burden on formal courts. The Justice Ministry is encouraging other regions to follow suit. Ethiopia’s transitional justice process could leverage this development and incorporate customary courts into a process similar to gacaca courts – Rwanda’s post-1994 grassroots-level justice by community elders.

Drawing lessons from both the successes and troubles of the gacaca courts, these customary courts could deal with low-level perpetrators locally. This would allow the formal courts, as the Green Paper suggests, to focus on accountability for the most responsible individuals. This dual court system would help avoid overwhelming the regular courts with thousands of cases, which could lead to suboptimal trials, as occurred in Ethiopia’s post-1991 transitional justice process.

However, traditional mechanisms would need to be substantially adapted and capacitated to deal with unique challenges. For instance, they may be unable to adjudicate complex and large-scale crimes that traditional approaches are perceived not to have been designed for.

Since many mechanisms have roots in patriarchal traditions, they’re not gender-inclusive. And some traditional leaders have been accused of political cooptation, leading to a disconnect between elders and youth. These are just some factors that should be remedied for traditional mechanisms to be used more widely.

The onboarding of traditional mechanisms should be done cautiously following a ‘do no harm’ approach. Their effectiveness for dialogue and transitional justice is closely linked to their ability to remain autonomous and true to traditional principles.

Tadesse Simie Metekia, Senior Researcher, Horn of Africa, ENACT, ISS Addis Ababa

Image: © AFP Photo/Marco Longari

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