All the authors are teaching in the Faculty of Social Sciences at the Bahir Dar University. Mr Gubaye Assaye Alamineh is a lecturer with an M.A. in Social Anthropology, Mr Kumilachew Siferaw Anteneh is Assistant Professor in Social Anthropology, Dr Abebe Dires Dinberu has a Ph.D. in Tourism Management, and Mr Mohammed Seid Ali is Assistant Professor in Political Science and International Relations.
Abstract
Alternative Dispute Resolution (ADR) mechanisms have been the common practice to resolve various conflicts in general and blood feuds in particular in the Amhara national regional state. As such, the central objective of this study is to assess the interface between ADR and the formal criminal justice system when addressing blood feuds. To achieve this, an ethnographic research approach was used. As the finding reveals, shimglinaas the common indigenous resolution mechanism of blood feuds has been widely used. In this reconciliation process, we identified diagnosis, initiation, forgiveness and the oath as essential phases. Concerning the previous interfaces between shimglina and the formal adjudication system, the reconciliation decisions made by shimglina had been accepted and taken for granted by the formal adjudications.
But now this trend has been changed due to interference by formal adjudication on the process and implementation of ADR decision-making.
1. Introduction
Alternative dispute resolution (ADR) mechanisms are in general understood by many as the desired system of solving disputes and arranging social relations. The process of legitimating alternative conventions as law differs from the way the state’s rule of law is legitimised. State law is legitimised via state power and its political authority. Confucius differentiated the two:
If one leads by means of decrees, and makes order by means of penalties, the people become evasive and have no conscience. If one leads through strength of being and makes order by means of customs, the people achieve a conscience. Consequently, when viewed as an anthropologist might, state law can and must be legitimated by custom, but customary law need not and perhaps cannot be legitimated by the state (Beru and Junker 2018:45).
As the quotation indicates, there is a wider and actually more essential acknowledgement of ADR as custom and as the foundation stone of law. In attempting to resolve a conflict, one might consider this wider aspect and ask, ‘what would be the sources of principles, rules, or even a sense of right and wrong that are used in resolving a conflict’ (Beru and Junker 2018: 46). Nowadays, we apprehend custom as the ‘other,’ and as complementary to national law, however, anthropologists of law inform us that all law originates in custom. Therefore, one must emphasise that a society’s custom is a foundation or base for the formal law. In this sense, customary law reflects society’s sense of the rules of organised living and its features are more socially widespread than the law of states. Customary law relies upon conserving established values of a society and are known through social means, rather than through technical legal means (Ibid).
Individuals in a society acknowledge the importance of behaving in accordance with others’ expectations, given that others also behave as he or she expects. It is with this logic that customary law is recognised, and described as the ‘language of interaction’. Customary law requires less force than the formal law to maintain social order since it has been developed at grass root levels through mutual recognition and acceptance (Ayalew 2012:18). In another vein, customary law, not formal law, would endure if the ‘state could not function’, as the state provides the necessary enforcement of the formal laws
Since 1991 ADR mechanisms in the rural part of Ethiopia have been broadly reinvigorated. ADR is a common practice that has been used to resolve disagreements amicably. With no or little adjudicative nature, ADR is a common phenomenon in Ethiopian societies. Shimglina as alternative conflict resolution mechanism is undertaken by a group of elders (shimagile) (Bamlak, 2013). However, in the growing urban areas, the formal laws and institutions are more pertinent and are applied rather than the alternative dispute-resolution mechanisms. As a result, it is unrealistic to resolve serious cases, mainly criminal, matters through customary law in the urban areas (Wourji 2012: 281).
Compared to the formal criminal justice system, ADR mechanisms take less time to deal with an issue. This time-saving aspect is not only valuable in cases of blood feuds, but also in resolving disagreements connected with rural cultivated land. Such disagreements often occur in the highland part of the Amhara region. ADR mechanisms are a wellstructured social arrangement which is essential for conflict resolution, and for enhancement of social interactions. The approaches, courses and codes of practice are profoundly entrenched in the customs and traditions of the people (Haftom, 2011; Bamlak, 2013).
In the Ethiopian context, most of the literature dealing with ADR contains little or no reference to its use in cases of criminal justice. This situation has occurred for two reasons. First, ADR is generally recognised as a technique of making peace between parties without resorting to formal court-based judgment. Second, communities tend to view a case of an aberrant criminal as mainly an issue between the delinquent and the government (Jetu, 2011). The Ethiopian criminal justice system views crime primarily as an offense against the state and a violation of its criminal laws. Hence, it excludes ’the community from participation; and if the community is said to be participating in the process, it is only in the form of providing information about the commission of the crime and appearing as a witness in the criminal proceedings’ (Endale 2013:iii). On the contrary, the indigenous conflict resolution mechanisms of Ethiopia are serving a significant role in resolving conflict and preserving harmony and stability in society, even if they are not acknowledged by formal law. The indigenous conflict resolution mechanisms are led by elders who can participate in settling disputes using different rituals to restore and maintain the previous peaceful relationship (Ibid).
On the other hand, in spite of the fact that ‘indigenous knowledge on customary justice practice is an enormous advantage to implement the ideals of restorative justice in the Ethiopian criminal justice system, restorative justice has not yet taken root in the criminal justice system of Ethiopia’ (Endalew, 2013:iii). The idea of restorative justice is virtually absent in the present Ethiopian criminal justice system. It is also evident that the Ethiopian indigenous conflict resolution mechanisms appear to fit in rather well with the standards and doctrines of restorative justice; nevertheless they are not lawfully acknowledged and structurally addressed. Recently an agreement has been reached which recognises the significance of indigenous conflict resolution mechanisms as a foundation from which to apply restorative justice to the Ethiopian criminal justice system (Gemechu, 2011; Endalew, 2013).
The attributes of dispute resolution institutions are, ‘easy to get; use the native language; and naturally, their dealings are simple and do not necessitate the amenities of a lawyer. Their sanctions emphasise reconciliation, compensation, rehabilitation and restoration (Wourji 2012:273)’. The indigenous conflict resolution mechanisms involve all groups and afford a frank opinion to all: sufferers, criminals, and the community concerned. Their methods assist to avert the intensification of conflicts that summon state involvement. Furthermore, they are commonly less costly, and prompt in resolution. These attributes recommend them as desirable to the formal system, which is strained by ‘delay, prison, and court overcrowding, among others’ (Sullivan, 2012; Wourji, 2012).
When one sufficiently analyses the two systems, it becomes clear that the one’s strong suits are the other’s weaknesses. Consequently, still, the formal system is acclaimed for its conviction, forcible sanctions, looking after of human rights standards, among others. But it is as soundly criticised for being distant to the individual user, expensive, blemished by deferment, etc. Furthermore, it avails to note that the two schemes vary in their methods of finally solving a disagreement. Whereas the indigenous conflict resolution mechanism endeavours principally to settle the disagreeing parties; the formal system considers this as an alternative but not a final resolution on its own. The indigenous system depends on attaining ‘a win-win end and the latter focuses on a zerosum game wherein the winner takes all’ (Wourji, 2012:274). But this does not mean that they are completely different, for they share many common features. Furthermore, ‘the differences are a question of degree rather than substance’ (Wourji, 2012:274; Beru and Junker, 2018). Thus, the use of the two systems as alternatives or in collaboration is essential for overcoming the shortcomings of each approach.
Shimglina, which plainly means elderliness, symbolises dispute solution by elderly persons. It is the utmost entrenched ADR mechanism than the rest in Ethiopia. Amazingly most Ethiopian nationalities have dispute resolution mechanisms which have attributes, such as names, composition and functions, which are similar to shimglina. They relate to shimglina in their own languages and contexts. Shimglina literally means ‘elderly’, but it does not only indicate age; it also implies the wisdom and social status of a person as valued by the community (Fekadu 2009).
Another essential advantage among most of these shimglina as reconciliation mechanisms is their adaptability. The mechanism is able to contribute what in modern terms would be identified as arbitration, conciliation, mediation, compromise etc. This is affirmed by various well-known Ethiopian researchers. In almost all examples of shimglina, the elders can initiate the dispute resolution process. There is inquiry and party (social gathering) demonstration of some sort of interpretation of a morally binding decision, compromise, and there is no payment of fee for the services of the dispute resolution (Ibid).
The existing literature in Ethiopia about ADR in general and shimglina in particular has been used to address conflicts of various kinds. But it does not address the interface between shimglina and the criminal justice system in alleviating blood feuds – which are current and crucial in Amhara National Regional State. The consulted literatures fail to address the knowledge lacuna of the interface between shimglina and criminal justice system in addressing blood feud. To address this gap, the study tries to assess the roles and practices played by shimglina in resolving blood feud; the interface and dynamics between shimglina and formal adjudication; the necessary attributes that the community expects from the shimagile(conciliators) and formal adjudication.
2. Methodology
This study provides an in-depth and contextual understanding of the practices that constitute knowledge about shimglina as an ADR mechanism used in cases of blood feud in the Amhara Region. We adopted an ethnographic approach that is predicated upon attention to the everyday, and produces an intimate knowledge of communities and groups in face to face situations (Yelemtu, 2014; Hanson, 2020). Ethnography is an important source of new knowledge, often referred to by modern anthropologists in their fieldwork. Ethnographic fieldwork enables us to know more about people, providing us with a range of information through a number of informants with different backgrounds and statuses within the communities. This situation, coupled with the extended period of involvement with the informants, gradually built our confidence to discuss cultural issues and relationships surrounding cases of blood feud and other socio-cultural issues (Eriksen, 2001; Gray, 2002). A range of qualitative methods was used, such as participant and nonparticipant observation, focus group discussions (FGDs), semistructured interviews and other relevant tools.
2.1 The study area
The Amhara Regional State is located in north-western Ethiopia. The region has an estimated land area of about 170, 000 square kilometres. The region borders Tigray in the north, Afar in the east, Oromia in the south, Benishangul-Gumiz in the southwest and the Sudan to the west (Aynalem, 2018).
Amhara region is divided into eleven zones, and 140 woredas (districts). There are about 3 429 kebeles or neighbourhoods, the smallest administrative units in Ethiopia. ‘Decision-making power has recently been decentralised to woreda and thus woredas are responsible for all development activities in their areas. The 11 administrative zones are: North Gondar, South Gondar, West Gojjam, East Gojjam, Awie, Wag Hemra, North Wollo, South Wollo, Oromia special Zone, North Shewa and Bahir Dar City Special Zone (Central Statistical Agency, 2007).
The population of the Amhara Region was estimated to be 28 million in mid-2018. The total population estimate for the Amhara Region for mid-2008 was 20 136 000 with a 50–50 numerical split between the sexes. Of these 2 408 000 (12 per cent) were urban residents. The percentage of the urban population is below the national average. A sub-regional analysis for the 105 woredas shows the unevenness of population distribution in the Amhara Region, where ten woredas are the most populous (CSA, 2013).
Amhara culture is in several aspects similar to the Ethiopian culture, which is regarded as heir to the ancient Semitic and Kushitic (African) patterns (Levine, 1965). The Amhara as a whole do not give much attention to aesthetic concerns. ‘They are practical-minded peasants, austere religionists, and spirited warriors’. Their interests and achievements as a nation are mainly in the spheres of the military and government. In relation to outsiders, the Amhara are identified strongly with their religion, language and racial characteristics, though not so fanatically as to preclude their toleration of other groups as part of common nationality. However, the Amhara place great stress on the region of their origin. Deeply sentimental about their home-lands, they regard those people whose families have long dwelt in the same area almost as kinsmen vis-à-vis Amhara from other regions (Levine, 1965).
2.2 Data sources and sampling technique
Both primary and secondary sources of data were used for this research. We conducted sixteen in-depth and key informant interviews. Elders, community leaders, government officials, and families of prisoners who were presumed to have a better understanding of the issue of shimglina and blood feud were interviewed. With the consent of the participants, all interviews were tape recorded. Each interview lasted between one and a half and two hours. Besides, twelve focus group discussions (FGDs) were conducted with eight to twelve participants for each discussion. Participants for discussion were selected purposefully by taking into consideration variables such as social responsibilities, gender, and age. As a secondary source of data we also used the online and print research journals and policy documents closely associated with blood feud.
In the course of applying such qualitative methods, we used nonprobability sampling in which we have focused on targeted sampling in particular. Generally, we employed snowball sampling and purposive sampling techniques to identify the knowledgeable and appropriate informants in the study areas. These strategies provided us with the flexibility to meet people (of all age groups and gender) with a range of experiential knowledge and to explore their views and interests.
2.3 Data collection and analysis
Though there are no clear-cut distinctions of different phases of fieldwork, the steps of getting to know farmers and familiarising ourselves with the different sets of local lifestyles in houses, fields and social events represent the first phase of the fieldwork (Eriksen 2001). Hence, we started to participate in a range of socio-cultural activities and events which helped us to understand how people lead their lives, how they think, speak and act, and how they describe and explain their worldviews and motivations. In the course of our entire ethnographic fieldwork, we had a number of opportunities to participate in activities like cultural festivals, weddings, shimglina processes and other social gatherings. This, in turn, provided us with an opportunity to bridge the gap between community members and ourselves as researchers. This approach helped us to create opportunities for discussion with the members of the community individually and in groups. This, in turn, enabled us to obtain first-hand accounts of the community’s understandings of shimglina and its role in resolving blood feud.
Informed by observations of participants and informal conversations, we developed a list of guiding questions for semi-structured interviews. We carried out such interviews with elders, young farmers, women, government officials and families of prisoners. The interview guide was designed with open-ended questions so that we had space for flexibility to pose further questions based on the conversations. We had some listed questions ready for cases where the guiding questions were already answered during a discussion. The guiding questions were also continuously amended according to themes that emerged from interviews or observations. This allowed us to refine our understanding of the ideologies and beliefs expressed, and to realise the importance and significance of these ideologies and beliefs from the participants’ own perspectives and feelings.
Most of the interviews were undertaken over an extended period of time and in situations where taking notes was not sufficient. With the consent of the informants we used tape recording. The recorded interviews were then transcribed, translated and organised for further analysis (Yelemtu, 2014). Following such qualitative approaches and semi-structured interviews, we conducted FGDs (each group consisting of 8–12 members) with elders, farmers, councils of elders, judges and prisoners. The aim of each FGD was to seek further information and to enable triangulation with the semi-structured interviews. The focus was on the views of discussants about the roles of shimglina in resolving blood feud.
With regard to data analysis, partial analysis of data started even when the process of data collection was under way. During the fieldwork, we summarised our annotated fieldwork diary to describe and record activities. We made a first-hand analysis on a daily basis and systematically analysed the data to identify key themes and issues. In other words, we reorganised, semi-analysed, and summarised the material in order to identify the initial patterns of data (Yelemtu, 2014; Hansen, 2020). We also engaged in transcribing unfinished data, categorising and coding to understand the general form of the entire body of data. We then employed indexing, according to the predefined codes and sub-codes. Audio records were also transcribed, themed and coded to enrich other qualitative data collected through interviews and field notes. The complete set of reorganised and coded field notes, as well as summarised reports were re-read and the necessary sections were highlighted according to the emerging themes. The interpreted and summarised field notes were typed and analysed in the form of a report so that it was manageable for the final write up. During the collection and analysis of the data, we took ethical issues into consideration – before the interviews, during the time spent in the field, during the analysis of the data and while reporting these data. Thus, before the interviews, it was made sure that the informants were well informed on the purpose of the study, and on the publishing of the results. They were guaranteed that the data collected from them would be used under strict confidentiality and they would remain anonymous. However, the names and pictures of some informants and participants were directly used based on their informed consent.
3. The process of reconciliation and its nexus with Formal Criminal Justice
Under this section, the major issues to be addressed are: the parties who are entitled to initiate the conciliation process and their motives, the major phases and procedures of reconciliation, the reciprocal rights and obligations of the feuding parties, the role of the conciliators, the effects of conciliation upon disputing parties, and the nexus of the process with the formal criminal justice system.
3.1 Initiation and post-initiation phases of the conciliation
As it has been understood from the informants at all the study sites, and with regard to the situations under all the regime types, the parties who are entitled to initiate the reconciliation are: the transgressors’ family or relatives, the local elders, and the local government administrators. They initiate the reconciliation with the view of averting the potential vicious cycle of blood feud. Once the process has been initiated, however, the procedures and activities have been found to be slightly different across the study sites, as summarised in the following paragraphs.
In Dega Damot Wereda, the process of reconciliation during the Imperial and Dergue regimes was different from the process under the EPRDF government. During the previous regimes, reconciliation between the feuding parties was accomplished by a conciliator/shimagile, and the reconciliation process was used as an alternative to the formal judicial system. During that time, the initiation of the reconciliation process came from the offender’s family and relatives. In some cases, elders or shimagile were entitled to initiate the reconciliation. When the reconciliation started, both parties were expected to present their case to the conciliators. Then, the conciliators could evaluate the case and they were able to let the offender’s family give a certain amount of blood money (Yedem Kassa[1]) to the victim’s family. Once the two parties were mediated by shimagile, the killer would not be detained by the government since the decision of elders was considered to be final.
In the EPRDF government, shimglina can be initiated either by elders or police officers. Elders may initiate shimglina during the early stages of the conflict to stop blood feud before it brings severe consequences.
If the killer hides in the jungle and becomes a bandit, then the elders will let the killer ‘give his hands’ (surrender) to the police and punished for the crime he committed. Then, the relatives from both feuding parties ‘sit’ for reconciliation. In another vein, shimglina can be initiated by police officers who are responsible for handling such cases. After the killer has been in jail for some time, the police officers ask him whether he is ready to reconcile with the victim’s family or not. If he is willing to reconcile, the offender initiates the reconciliation process via the police officers and administrative officials in the prison. Then, police officers can write a letter to the Wereda’s administrative and security affairs bureau so publishing the killer’s initiation for reconciliation. The first person preferred to represent the prisoner in the reconciliation is his son or daughter. If he does not have a child, his father or mother can represent him. In general, the prisoner can be represented by his/her offspring, parents, spouse, siblings, grandparents, or uncle/aunt accordingly.
Then, the Wereda’s security and administrative affair bureau is required to send a letter to members of Dem Adraki to reconcile the feuding parties. The members of Dem Adraki [2] together with government officials discuss how to resolve the conflict. Then, they meet representatives of each feuding parties separately. If the victim’s families are open to reconciliation, members of the Dem Adraki fix the date and place where the reconciliation is made. At the date of reconciliation, both parties present their case to members of the Dem Adraki. After they hear the case, from each in turn, the Dem Adraki committee declares its decision and the transgressor’s family has the responsibility to pay blood money to the victim’s family. The amount of compensation is usually initiated by the victim’s family, which may be open to negotiation.
After the reconciliation is made, both parties sign an agreement prepared by the Dem Adraki committee. The Committee is expected to report this agreement to the Wereda’s Administrative and Security Affairs Bureau. Then, the Bureau sends this report to the prison administration where the killer is detained. The prison administration, in coordination with concerned judicial institutions, evaluates the report. If they believe that the reconciliation was negotiated or concluded in a proper manner and will not lead to another homicide, they release the prisoner. But sometimes, the victim’s family may not agree to shimglina and the offender’s family may not agree to pay the blood money. In this case, the transgressor remains in prison for the specified period.
Concerning the experience of study sites, once shimglina has been initiated, the process continues through discussion to assess the situation by the committee before both parties agree to meet face to face and discuss their issues. After a thorough and lengthy discussion has been carried out among committee members, that help the conciliators settle the blood feud, both parties (the family of the victim and representatives of the transgressor) meet face to face to discuss reconciliation. They present their cases turn by turn to the conciliators. Finally, after hearing the cases of feuding parties, the conciliators pass their decision and the transgressor’s family is duty-bound to pay blood money (Yedem Kassa). As the focus group discussants and key informant affirmed, the amount of blood money varies from community to community and across time within the community. In some communities, there is a fixed amount of blood money payment even if it also varies across time. In other communities, the blood payment is determined through negotiation between the two belligerent parties with the help of the conciliators. Even if there is slight variation in the process of shimglina, the major phases of shimglina across the study sites can be categorised into four; diagnostics, initiation, forgiveness and oath phases.
3.1.1 Diagnostics phase
In this phase, the shimagile try to ascertain the real causes of killing and the intention of each party. The conciliators explore or evaluate whether the murder was intentional or accidental. There is a long and thorough diagnosis and scrutiny of cases, which include independent discussion with the two belligerent parties. And then, an agreement can be arrived at to ensure reconciliation.
3.1.2 Initiation phase
In this phase, the ceremonial and phenomenal activities are performed by all parties involved (the victim’s family, the transgressor’s family, and conciliators). Accordingly, a fire holding pot is presented and the incense is added to it. Then, the leader of the reconciliation (Sheik Bedru) gives a kind of religious and ceremonial initiation. The initiation could take place by all parties by moving around the pot. In the meantime, a kind of religious and cultural prayer has to be performed by the Sheik.
3.1.3 Forgiveness phase
After the initiation phase is over, the forgiveness phase follows. In this phase, the transgressor’s family and relatives carry a stone on their shoulder and then approach the victim’s family to ask forgiveness. In response to this offer, the victim’s family picks up the stone from their rivals’ family shoulder and throws it away, which indicates their acceptance of forgiveness.
3.1.4 Oath phase
After the forgiveness phase has been completed, the oath phase follows. The forgiveness phase helps to forget what had been done in the past and to create harmony within the two groups/families. And the oath phase and practice are performed to avoid any future dispute or conflict based on the past grievance. To perform an oath, there are steps to be followed. A traditional cloth can be stretched on the ground and then a prepared ‘fendisha’[3]is sprayed on the traditional cloth. Another ingredient called ‘misir’ (lentils) is also mixed into the fendisha. Then, the transgressor’s family picks up the mixed item with their hands. First, they have to put it in their mouth and then feed the victim’s family. In the local language (Amharic) they called it ‘mekoretatem’[4]. This is a kind of oath performed between the two belligerent parties to prevent further escalation or occurrence of feuds. Sheik Bedru and other members of the reconciliation committee affirmed that if someone takes an oath in such a way and breaks it, there has to be a punishment from the supernatural power. Both the Christian and Muslim communities accept this established norm which helps to sustain the reconciliation.
4. The legality and legitimacy of reconciliation
The legality of reconciliation implies a compatibility of ADR mechanisms with the existing formal criminal justice system, whereas the legitimacy of reconciliation connotes the acceptance of the indigenous reconciliation mechanisms by the society. The state of legality and legitimacy of reconciliation as an indigenous blood feud resolution mechanism is discussed in the following paragraphs.
During the imperial government, once the two parties were reconciled by the conciliators, then, ‘…the transgressor freed from detention by the government. As such, the decision of conciliators was considered to be final. However, during the Dergue regime, conciliators were not totally recognised by the government so that it was legally and practically forbidden by the socialist military administration (the Dergue regime). During the current EPRDF government, though the two feuding parties may be reconciled by conciliators, the transgressor cannot avoid criminal liability and he ultimately faces criminal punishment. Therefore, the legality of reconciliation in the study sites varied across regimes.
Concerning the legitimacy of reconciliation, it also varied across regimes. As such, during the imperial period, its legitimacy had been incommensurable. This was basically because of the values, norms and customs of the society and the government had recognised and validated the indigenous mechanisms. During the Dergue regime, though the reconciliation had not been supported by the public policy makings, the indigenous systems had a broad popular legitimacy. Accordingly, it had been impliedly and informally functional. However, in the current EPRDF administration, though the indigenous blood feud resolution mechanism has partial constitutional recognition, the wider younger and educated sections of the society do not accept its legitimacy. This is basically because of the influences of modern education, religious extremism, and formal litigation systems of the government, and the penetration of alien cultural values as a result of globalisation.
Furthermore, procedural irregularities and complexities of the formal criminal justice system and the existing security, including the administrative structures of the study sites, have become existential challenges to the effective and efficient intervention of conciliators to terminate the vicious circle of blood feud. The absence of assistance of any kind and other capacity building training from the government and other concerned bodies have also been additional challenges to the full functioning of indigenous institutions of conciliation. Our finding reveals that lack of financial and administrative support from the government has been curtailing the effective implementation of shimgilina. In this context, Mr X, member of Dem Adraki, reiterated:
Dem Adraki committee contributes a lot to minimise feuds. We work hard to reconcile the feuding parties but nothing is given to us. We did not get any training, per diem [payments], or any kind of incentive from the government. Peace and security of the Woreda is in the hands of elders. Therefore, the government should treat elders in a better way. If not, I am afraid that we are losing this culture and elders will stop serving for free.[5]
Similarly, Mr Y, a member of Dem Adraki elders, also stated:
The only thing I get from the government is one certificate. This certificate is nothing for me. We should get other incentives from the government. The trend should be changed for the future generation of Dem Adraki elders. They should get clothes, per diem [payments] or other rewards. The reconciliation process takes many days (more than two weeks). This has a negative impact on the livelihoods of Dem Adraki elders. Therefore, it is difficult for elders to lead their life unless they get some kind of reward from the government.[6]
In line with this, the head of the security and administrative affairs bureau of the Wereda reveals that “the absence of clear and detailed criminal policy to encourage and assist customary and religious institutions to mitigate blood feud is the major challenge to the effective implementation of indigenous blood feud reconciliation mechanisms. Furthermore, the lack of clearly defined and institutionalised capacity building and financing system from the government and the absence of an enabling working environment (offices, basic office equipment and secretary) to indigenous institutions are the major existing challenges.
The above challenges in turn cause disagreements within the family of the conciliators who are engaged in the reconciliation process. Mr X2, a member of Dem Adraki, affirmed this:
My livelihood depends on agriculture. During the harvesting time, a letter from the Wereda’s Administrative and Security affairs Bureau was sent to me. The letter indicated that I was elected to reconcile a blood feud in Dekul Kana kebele. I spent two weeks to reconcile the feuding parties. When I go back home, the first thing my wife asked me is that ’Where is the money you get for your work?’ I didn’t answer because she knew that I work for free. She was annoyed and said: ’If you do not harvest this time, we will not have anything to eat in the next year.’[7]
The above case clearly shows that lack of support from the government affects the conciliators negatively. The other challenge facing conciliators in the study sites is related to the formal judicial system. The data collected from key informants show that conciliators go through many steps to resolve blood feud. With many ups and downs, they negotiate with the feuding parties. However, the formal judicial system interferes after the elders settle the blood feuds. This discourages conciliators; and some of them decide to stop participating in any kind of reconciliation. Besides, instead of resorting to reconciliation, the police exaggerate the seriousness of minor and accidental disputes and subject people to physical and verbal abuse and even assault. Thus, the police discourage conciliators’ desire to engage in reconciliation of blood feuds. Ayalew (2012) further illustrates that indigenous non-state laws and courts have jurisdiction only with respect to family and personal matters. Criminal jurisdictions are unequivocally denied to customary and religious laws and courts.
In our introduction, there had been some discussion of the advantages and limitations of both the legal judiciary and ADR in Ethiopia. These have also been addressed by previous researchers. The attributes of dispute resolution institutions are as follows: ‘easily available; use the native language; and naturally, their dealings are simple and do not necessitate the amenities of a lawyer. Their sanctions accentuate reconciliation, compensation, rehabilitation and restoration’. The indigenous conflict resolution mechanisms need the involvement of all groups and should afford a frank opinion to all: sufferers, criminals, and people in general. Their methods assist to avert the intensification of conflicts that requires state involvement. Furthermore, they are commonly less costly, and prompt in resolution. These attributes brand them desirable to the formal system, which is stained by ‘delay, prison, and court overcrowding, among others’ (Sullivan, 2012; Wourji, 2012:273).
When one assesses the two systems sufficiently, the assessment indicates that one’s strong suits are the other’s weaknesses. Consequently, the formal system is still acclaimed for its conviction, forcible sanctions, upholding human rights standards, among others. It is criticised for being distant to the individual user, expensive and blemished by deferment. Furthermore, it avails to note that the two schemes vary in their methods to solve a disagreement. Therefore, whereas the indigenous conflict resolution mechanism endeavours principally to settle the disagreeing parties, the formal system considers this as an alternative but not a last resolution in its own. The first one depends on attaining “a win-win end and the latter focuses on a zero-sum game wherein the winner takes all”. But this does not mean that they are completely different for they share many common features as well, as a result of which “the differences are a question of degree rather than substance”. But this does not mean that they are completely contradictory since they have a lot of mutual attributes. Therefore, “the differences are a question of degree rather than substance (Wourji, 2012:274). Thus, the use of the two systems as alternatives or in collaboration is essential to overcome the shortcoming of each approach.
5. Conclusion
The study reveals that shimglina has been used as an alternative to the formal criminal justice system. Its implementation is common in the rural areas where the access and effective utilisation of the criminal justice system becomes very difficult. Even if there is no existing legal framework that establishes the roles and duties of the shimagile, the rural people of Amhara Regional State heavily rely on them to handle blood feud. Shimglina as an ADR mechanism is a viable tool to minimise blood feud. But its implementation is not well organised and varies according to the norms and values of the society as well as the extent to which the communities concerned have access to the formal criminal justice system. The procedural irregularities and complexities of the current criminal justice system and the existing security as well as administrative structure of the study sites have become existential challenges to the effective and efficient intervention of conciliators to terminate the vicious circle of blood feud. Even if shimglina is not lawfully acknowledged and structurally addressed, there is evidence that it appears to fit well with the principles and standards of restorative justice.
Thus, the current government of Ethiopia has to take the initiative to create synergy between shimglina and the formal criminal justice system so as to handle the currently acute social problem of blood feuds. Before creating synergy a further practical scheme has to be investigating how the current judicial system of Ethiopia can create a partnership between the formal criminal justice system and shimglina depending on the strength and weakness of the two systems in addressing blood feuds.
Sources
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Endnotes
[1] Restitution for blood feud.
[2] Shimglina which is coined by the current government.
[3] A kind of cereal commonly consumed in a coffee drinking ceremony.
[4] Mekoretatem literally means shared eating.
[5] Non-attributable comment, Dega Damot Wereda, Dekul Kana Kebele, July 2017.
[6] Non-attributable comment, Dega Damot Wereda, Feres Bet Michael Kebele, July 2017.
[7] Non-attributable comment, Dega Damot Wereda, Dekul Kana Kebele. July 2017.