reintegrating the offender back into the society.
Instead of excluding and
branding the offender as permanently criminal, the customary dispute resolution
mechanisms use words of forgiveness or rituals to ‘decertify the offender as
deviant’ and facilitate his/her reintegration into the communities (Braithwaite
1989:55). In other words, the customary dispute resolution mechanisms of
Ethiopia resonate well with the ‘reintegrative shaming’ aspect of restorative
justice. The involvement and participation of the respected members of the
community – such as the elders and those who care most about the offender and
the victim, their respective close families – play an important role to effectively
communicate ‘shame’ to the offender and help reintegrating him/her into the law
abiding community.
Besides, unlike the one-sided theory of reintegrative shaming which focuses on
the shaming of the offender, the Ethiopian customary dispute resolution
mechanisms are double edged, which involves the shaming of both the offender
and the victim as well as their families. As stated above, vengeance is a
culturally accepted instrument for redressing injury in which the men of the
victim’s side are duty bound to take vengeance against the killer or one of the
killer’s close relatives in order to restore the dignity of the victim’s family.
However, once the conflict is resolved via the customary ways, the families of
the victim will not, most of the time, resort to vengeance because the love and
support of the community to the victim’s families as expressed in the customary
rituals make them get rid of the grudge; as well as of the fear of curse by
community elders and of condemnation and isolation by the community
members as if they were violators of the community values. This is mainly
because failure to comply with the decision is considered as disregarding the
customary values on which it was based or as a shameful act disrespecting the
elders. Hence, the customary dispute resolution mechanisms of Ethiopia are
capable of communicating ‘shame’ not only to the offender but also to the victim
and his/her close relatives – thereby preventing them from taking revenge, and
are consistent with the reintegrative shaming ideals of restorative justice.
Generally, the customary dispute resolution mechanisms of Ethiopia involve
mediation between the conflicting parties and their respective families. It also
involves restitution, reconciliation, and aims at not only settling the conflict
between the parties but also at restoring the previous peaceful relationship
within the community as well as maintaining their future peaceful relationships
by circumventing the culture of revenge. Further, the customary dispute
resolution mechanisms use elders as mediators who are appointed by and known
to the parties and/or communities, which shows the high degree of community
participation in the process. Hence, the customary dispute resolution
mechanisms of Ethiopia are compatible with the values and principles of
restorative justice and may fall either at the fully or mostly, or at the partly
restorative part of the continuum of restorative justice – in spite of the fact that
their functioning is not fully recognised by law, that they are not well organised
programmes, and that they are subjected to some shortcomings, as highlighted
below.
4. Shortcomings of the customary
dispute resolution mechanisms
Though the customary dispute resolution mechanisms are useful tools for
administering justice in Ethiopia as discussed above, they are not without
shortcomings. The limitations are mainly related to the non-compliance with
human rights standards, and particularly to the unequal treatment of women and
men. Most of the time, in most customary dispute resolution mechanisms of
Ethiopia, women are not treated equally. Assefa and Pankhurst (2008:264)
stated that women may not, in some customary dispute resolution mechanisms
like in Beni Shangul Gumuz and Afar regions, have ‘a standing to appear before
elders in the customary dispute resolution processes on their own, and may
require a male relative to represent them’. Similarly, customary dispute
resolution institutions may also pass decisions which are against the interests of
women. In some customary dispute resolution mechanisms, such as in the Afar
and some parts of the Oromia regions, the amount of compensation for female
victims is half of that which may be due for a male victim (Pankhurst and Assefa
2008b:10). Besides, as stated above, a girl may be provided as a wife to a
relative of a deceased in the form of compensation, bride compensation, against
her consent (Besie and Demie 2008:124). Therefore, the limitations associated
with the customary dispute resolution mechanisms should be properly addressed
so as to utilise those mechanisms as an asset and as a tool to implement
restorative justice in the Ethiopian criminal justice system.
5. Conclusions and the way forward