ODA BULTUM UNIVERSITY

SCHOOL OF LAW

COURSE TITLE: LEGAL CLINICS

COURSE CODE:

GROUP ASSIGNMENT

NAME ID NO
1. BIRUKTAWIT MATHIWOS………………………………........…….……………0181
2. DAGNE HUSENA…………………………………………………….………….....1308

3. DEJENE ADMASU……………………………………………………….…………1676

4. GAMADA ARGAMA…………………………………………………..……………2023
5. HENOK MALKATO……………………………………………………..…………...2126

6. HIWOT DESTA…………………………..…………………………….……………0051

7. IBSA YUSUF………………………………….…………………….………………1449

8. ISRAEL ASSEFA…………………………………………………….……………..2159
DECEMBER 2024

CHIRO, ETHIOPIA

I
1. Introduction

Restorative justice is a theory of justice that focuses on repairing the harm caused by criminal
behavior. It involves bringing together the offender, the victim, and the community to address
the harm, understand the impact, and work towards restitution and reconciliation. Restorative
justice is an approach that offers offenders, victims and the community an alternative pathway to
justice. It promotes the safe participation of victims in resolving the situation and offers people
who accept responsibility for the harm caused by their actions and opportunity to make
themselves accountable to those they have harmed. It is based on the recognition that criminal
behavior not only violates the law, but also harms victims and the community. Its objective is to
explore the application and effectiveness of restorative justice practices at both the international
level and within the context of Ethiopia. This includes examining how restorative justice
principles can be integrated into the legal systems of different countries, the challenges and
opportunities for implementation, and the impact on victims, offenders, and communities.
Restorative justice offers a more holistic approach to addressing crime by prioritizing healing
and restoring relationships over punishment. It can help reduce recidivism, empower victims,
and promote a sense of accountability and responsibility. At an international level, restorative
justice can contribute to peace building, reconciliation, and conflict resolution. Aspects of the
restorative justice approach are found in many traditional cultures and the practice of restorative
justice in criminal matters has benefited from the incorporation of indigenous wisdom. The
participatory nature of restorative justice, along with its frequent similarities to customary law,
suggests that it may provide a vehicle to support the use of indigenous justice systems and hence
facilitate indigenous self-determination.

1
1.2. Historical Background

1.2.1. Historical Background at International Level

Restorative justice has roots in indigenous and traditional justice systems that prioritize
community harmony, reconciliation, and healing. Practices such as peacemaking circles,
mediation, and victim-offender dialogue have been used for centuries in various cultures around
the world as alternative methods of resolving conflicts and addressing harm. 1 In the 20th century,
restorative justice gained recognition as a formal response to crime with the establishment of
programs like victim-offender mediation and conferencing in countries such as New Zealand and
Canada. The United Nations and other international organizations have also promoted restorative
justice as a means of advancing human rights, promoting peace, and reducing the negative
impact of criminal justice systems on communities.

1.2.2. Historical Background in Ethiopia

In Ethiopia, traditional dispute resolution mechanisms have long been a part of the culture, with
practices such as "Gadaa" in the Oromo community and "Woreda" in the Amhara region. The
formal integration of restorative justice principles into the legal system in Ethiopia is a more
recent development, with initiatives such as community-based justice forums and the use of
mediation to address conflicts at the local level. There is ongoing work to expand and enhance
restorative justice practices in Ethiopia to better serve the needs of victims, offenders, and
communities.

1.3. Objectives of Restorative Justice

(a) Supporting victims, giving them a voice, listening to their story, encouraging them to express
their needs and wishes, providing them with answers, enabling them to participate in the
resolution process and offering them assistance.

(b) Repairing the relationships damaged by the crime, in part, by arriving at a consensus on how
best to respond to it.

(c) Reaffirming community values and denouncing criminal behavior.

1
Braithwaite, John. “Restorative Justice and Restorative Regulations.” Oxford University Press, 2002.

2
(d) Encouraging responsibility taking by all concerned parties, particularly by offenders3

(e) Identifying restorative, forward-looking outcomes.

1.4. Benefits of Restorative Justice

• Restorative justice has a positive effect in reducing the frequency and the severity of
reoffending.

• A restorative justice approach is particularly apt to promote desistance from crime and reduce
reoffending when it is part of a broader rehabilitation framework.

• Restorative justice programs can be particularly effective when they target higher risk and more
serious offenders

• Successful resolutions and restorative outcomes in victim-offender mediation and conferencing

are possible for both property-related and violent offences, adult and youth offenders, and for
offenders and victims who are related as well as those who are strangers to one another.

1.6. International Standards and Norms on Restorative Justice

In 2002, the United Nations Economic and Social Council adopted the Basic Principles to offer
guidance to Member States in developing and implementing restorative justice programs. As the
first United Nations instrument dedicated to restorative justice in criminal matters, the Basic
Principles were developed not as a mandatory or prescriptive document, but to inform and
encourage Member States to adopt and standardize restorative justice measures in the context of
established national practices and their legal, social, cultural and economic contexts. 2 The Basic
Principles offer important guidance on the use and implementation of restorative justice, as well
as fundamental safeguards to ensure its appropriate use, for legislators, policymakers,
community organizations and criminal justice officials involved in the development of
restorative justice responses to crime.

1.6.1. Legislative Framework

2
Miers, D. (2001), an International Review of Restorative Justice, London: Home Office, 85.

3
Paragraph 12 of the Basic Principles contains a reminder that legislative action may also be
necessary, depending on the legal context, in order to set some standards and provide some
mandatory legal safeguards for parties in a restorative justice process. 3 Restorative justice
programs generally operate within the context of, or alongside, the larger criminal justice system.
As such, these programs must negotiate a substantive role in, or as an alternative to, the formal
justice system or otherwise risk being marginalized and underused. In the absence of a statutory
foundation, a restorative justice program may be difficult to insert into the daily routine of the
criminal justice system. Legislation may provide the impetus for more frequent use of the
restorative justice process. It may also ensure greater predictability and certainty in the use of the
restorative process as it establishes all of the legal safeguards necessary for its broader use.
Countries that use restorative justice on a large scale, such as New Zealand, Northern Ireland,
Belgium, Finland and Norway, have all implemented robust legislation mandating courts and
prosecutors to refer cases for restorative justice. However, legislation alone is not enough to
improve initiation, promote accessibility and ensure broad and effective implementation. 4

1.7. Restorative Justice v. Alternative Dispute Resolution

The concepts of alternative dispute resolution and restorative justice tend to be used
interchangeably. Because the methods used in these two types of processes are often very similar
(dialogue, mediation, conciliation), some important distinctions between them are sometimes
lost. Both types of process may favor collaborative and consensus-based procedures over
adjudicative and adversarial forms. However, crime is more than a dispute between parties and
there is a public safety interest in making sure not only that the situation is resolved, but also that
future occurrences are prevented. Restorative justice is about much more than just resolving a
conflict or dispute. As emphasized in the Basic Principles, restorative justice is “an evolving
response to crime that respects the dignity and equality of each person, builds understanding, and
promotes social harmony through the healing of victims, offenders, and communities”. It is
guided by a number of key core values and brings together those affected by an incident of
wrongdoing to name the wrong that has been done, to describe the needs it has created, to
3
Basic Principle on Restorative Justice Programs Legal framework, Paragraph 12.
4
Laxminarayan, M. (2014), Accessibility and Initiation of Restorative Justice, Leuven: European Forum for
Restorative Justice, 154.

4
identify the obligations that now exist, and to resolve together how best to repair the harm and
prevent its recurrence.5

1.8. RELATION TO INDIGENOUS AND CUSTOMARY JUSTICE FORUMS

Aspects of the restorative justice approach are found in many traditional cultures and the practice
of restorative justice in criminal matters has benefited from the incorporation of indigenous
wisdom. The participatory nature of restorative justice, along with its frequent similarities to
customary law, suggests that it may provide a vehicle to support the use of indigenous justice
systems and hence facilitate indigenous self-determination. 6 Community based informal systems
(or as they are sometimes called “non-state justice systems”) can take many forms and produce
different outcomes in terms of access to justice as well as equity and fairness. The primary aim
of customary law is usually conciliation and dispute resolution, as well as reconciliation between
the wronged and the wrongdoer and maintaining social responsibility.7

1.9. International Perspectives on Restorative Justice

A. United Nations and Restorative Justice

The United Nations (UN) has played a significant role in promoting restorative justice as a key
component of conflict resolution, peace building, and human rights protection. The UN has
recognized the potential of restorative justice to address the root causes of conflicts, promote
reconciliation, and foster sustainable peace in societies worldwide. United Nations Office on
Drugs and Crime (UNODC) has been at the forefront of advocating for restorative justice
approaches in criminal justice systems globally. UNODC emphasizes the importance of victim-
offender mediation, community-based justice programs, and other restorative practices to
achieve justice, accountability, and the reintegration of offenders into society. The UNODC has
developed guidelines and tools to support the implementation of restorative justice principles in
different countries.8 United Nations Children's Fund (UNICEF) has also highlighted the
importance of restorative justice in addressing the needs of children in conflict with the law.
UNICEF advocates for child-friendly justice systems that prioritize the best interests of the child,
5
Preamble, ECOSOC resolution 2002/12.
6
Human Rights Council, Expert Mechanism on the Rights of Indigenous Peoples, 2014.
7
Ibid, 2013, Para, 28.
8
United Nations Office on Drugs and Crime, Hand Book on Restorative Justice Programs, 2006.

5
rehabilitation over punishment, and the active participation of children in the restorative justice
process. UNICEF supports initiatives that aim to prevent the criminalization of children and
promote their reintegration into society through restorative approaches. The United Nations
Development Program (UNDP) has integrated restorative justice principles into its conflict
prevention and peace building efforts in various countries. UNDP works with governments, civil
society organizations, and communities to build the capacity for restorative justice practices,
such as dialogue facilitation, conflict resolution, and community reconciliation processes. UNDP
emphasizes the importance of inclusive and participatory approaches to address the underlying
causes of conflicts and promote sustainable peace.9

B. International Organizations Promoting Restorative Justice

Several international organizations are actively promoting restorative justice as an alternative

approach to traditional punitive justice systems. These organizations work collaboratively with
governments, civil society, and communities to raise awareness, build capacity, and advocate for
the adoption of restorative practices in various settings. The International Institute for
Restorative Practices (IIRP) is a leading organization dedicated to promoting restorative
principles and practices in education, criminal justice, social services, workplaces, and
communities worldwide. The IIRP offers training programs, research, and resources to support
the implementation of restorative justice approaches that focus on accountability, healing, and
community building. The IIRP emphasizes the importance of relationships, empathy, and
dialogue in resolving conflicts and repairing harm. The European Forum for Restorative Justice
(EFRJ) is a network of researchers, practitioners, policymakers, and advocates committed to
advancing restorative justice in Europe and beyond. The EFRJ promotes the exchange of
knowledge and best practices, fosters collaboration among stakeholders, and engages in policy
dialogue to mainstream restorative justice principles in the criminal justice system, schools, and
other institutions. The EFRJ organizes conferences, workshops, and publications to raise
awareness and promote innovative approaches to conflict resolution and social inclusion. The
Center for Justice and Reconciliation (CJR) is an organization that works globally to promote
restorative justice as a transformative approach to addressing violence, conflict, and human
rights violations. The CJR collaborates with local partners to implement restorative practices in

9
Zehr, Howard. “Changing Lenses: A New Focus for Crime and Justice.” Herald Press, 1990.

6
post-conflict settings, prisons, schools, and communities affected by trauma and social unrest.
The CJR advocates for a holistic and victim-centered approach to justice that prioritizes the
needs and well-being of individuals and communities impacted by violence. These international
organizations play a crucial role in advancing the field of restorative justice, building a global
network of experts and practitioners, and advocating for policy reforms that prioritize healing,
reconciliation, and social cohesion. Their efforts contribute to a more just, compassionate, and
sustainable approach to conflict resolution and peace building in diverse cultural and institutional
contexts.

7
 2. Restorative Justice in Ethiopia

Restorative justice is an approach to justice that focuses on repairing the harm caused by
criminal behavior rather than simply punishing the offender. In Ethiopia, restorative justice has
gained traction as a means to address the needs of both victims and offenders, promote
reconciliation, and reduce the strain on the criminal justice system. This paper will explore the
legal framework for restorative justice in Ethiopia, its implementation, as well as the challenges
and opportunities it faces.

2.1. Restorative Justice in Oromia Region

In Oromo community there are several customary conflict resolution mechanisms. They are such
Gadaa system or Gadaa council, jarsummaa, Qaalluu system or decision of spiritual leaders,
gumaa system, siinqee institution are few of them. Gadaa system is one of the interesting ways of
conflict resolution institution and well respected among the Oromo community in Ethiopia. 10 The
Oromo have rich indigenous conflict resolution mechanism that evolved out of their culture and
norm. The most famous institution of governance and dispute settlement of the Oromo people is
the Gada system. That was a check and balance mechanism built into the Gadaa system by which
siinqee was institutionalized and women formed parallel organizations of their own which
actively excluded men. The most important principle of siinqee, is building sisterhood and
allying to fight against oppression.11 The Gada system encompasses different mechanisms of
women within its system and it plays a significant role among the Arsii Oromo in defending
women from any offence, in empowering and giving them an opportunity to make a glowing
contribution in preventing, halting and resolving conflicts. 12 Siinqee (Straight stick and decorated
with cartridge) helps as a symbol of marital status, meaning only married women possess and
carry siinqee. It conveys the message of protection and respect. The sacred quality conferred on
to the siinqee entails that in Arsii Oromo culture no can refuse to fulfill the demand of women
carrying siinqee. Thus, the reason why siinqee has a power to prevent, halts, and resolve
conflicts lies in its wayyuu (being or thing respected and even feared because of its sacred

10
Women and Indigenious Conflict Resolution Institutions in Oromia: Experience From Siinqee of the
Wayyu Shanan Arsi Oromo by Jemila Adem.
11
Ibid.
12
Tolasa Mamuye, Gebre Yntiso, et al. (2011), Customary dispute resolution mechanisms in
Ethiopia -. Addis Ababa: The Ethiopian Arbitration and Conciliation Center, 279.

8
nature) attribute.13 The assumption is that Conflicts may exist every time and everywhere in the
daily lives of the society, meaning Conflict is an inherent and ubiquitous element of human
society, from the couple to the largest human group. There is no human group or society in
which life moves along in harmony at all times. Individuals do not always do what society
expects them to do, and they frequently behave in ways that disrupt the social order. Every
society is aware of the repercussions of unresolved conflicts. Consequently, that is why Oromo
develops different conflict resolutions like Siinqee under Gada system to bring about conflict
resolution.14

The term Siinqee’ is an Afan Oromo word that symbolizes the thin stick females hold after
marriage. It was a sign of fertility, productivity and prosperity. It had a social and religious
power in Gada system. In the Gada system there was an institution of governance through which
women ensure their rights to ward off the coercion and dominance of their husbands. Mothers
used to give Siinqee to their daughters during marriage so that they could ensure their rights by
using it.

The Siinqee in the conflict resolution culture of the Oromo society has an implication. Whenever
a woman had a complaint on the way her husband treated her, she would inform the case to the
womenfolk in her neighborhood. Soon all women in the neighborhood gather and hold Siinqee. 15
Then crying sing ritual songs demanding for the penalization of her husband and for the
compensation to her damage. The action created tension and pressure on local elders and
representative of the clan to seek ways of peaceful settlement. The women would never return
home before the peaceful resolution of the conflict and without compensation. If sentenced
guilty, the husband had to slaughter a bull for his wife and ask her and her friends for
forgiveness. Moreover, the husband had to swear not to mistreat and abuse her in his entire life.
Whenever her husband attempted to beat her or inflict damage on her, retreating into the room a
wife would pick her Siinqee by way of defending herself.

13
Ibid.
14
Supra (n 10).
15
https://advocacy4oromia.org/resource/the-power-of-siinqee-inprotecting-
womans-rights-and-brokering-peace-in-tulama-oromo
Last accessed on December 10, 2024.

9
Customary Dispute Resolution among the Oromo, the case of Qaalluu Institution Gemechu
discusses various institutions of dispute resolution among the Waliso Oromoo, focusing on the
jaarsummaa system, ilaaf-ilaamee, and blood price payment. He also shows that the major
Qaalluu centers in Eastern Macha have courts to settle disputes and maintain social order in line
with the guiding principles of Oromoo culture. It is common to see a large number of people
attend the Qaalluu centers to have their cases heard. The Qaalluu courts are believed to be in
sacred places, under the supervision of the spirits that are possessed by the Qaalluu. However,
since Gemechu‟s focus was on the gumaa (gumaa is briefly discussed in the subsequent part),
the discussion of the Qaalluu institution is marginal in his work. He focused on the role of gadaa
leaders in gumaa practice, and little has been said as far as the link between Qaalluu and gumaa
is concerned. Aredo and Ame (2005) have also reported on several dispute resolution practices
and methods, including the Qaalluu among the Oromoo. Despite this, the role of Qaalluu in
blood price payment was not discussed. One of the early writers, Lepisa (1975), presents the
Oromoo legal system and the values that guided it. Lewis (1984) shows Oromoo indigenous
procedures for dispute resolution among the Macha. Knutsson (1967) discusses the role of the
Qaalluu institution in dispute resolution among the Eastern Macha. Tolera (1997) discusses the
role of Qaalluu ofa-sarba in dispute resolution among the Machaa-Oromoo of Ginda Beret.
Abaye (1995) also studied the Qaalluu as a dispute-settling institution among the Machaa-
Tuullamaa Oromoo. Morton (1973) wrote on spirit-sanctioned adjudication in Shewa
Oromoo.Etefa (2002) gives a good account of michuu, harma-hodhaa, luba-baasa, and
moggaasaa ways of maintaining peace and reconciliation among the Oromoo and their
neighboring Shinasha, Gumuz, and Berta in Western Ethiopia. The elders settle disputes among
neighboring groups and individuals and apply the laws dealing with the distribution of resources,
criminal fines and punishment, protection of property, theft, etc.

2.1.1. Restorative Justice in West Hararge Zone

Customary courts in the West Hararge Zone are pivotal in maintaining social order and
administering justice through traditional conflict resolution mechanisms. 16 These courts are
deeply embedded in the cultural practices of the region and are led by respected community
16
Hizkel Hailu, the Ethiopian Herald Saturday 9 March 2024.

10
elders, who act as mediators and judges. Their widespread presence across the 512 Kebeles
ensures that justice is accessible to all community members, providing a localized and culturally
relevant avenue for resolving disputes. Customary courts emphasize cultural reconciliation,
seeking to restore harmony and repair relationships rather than imposing punitive measures. The
process is inclusive, involving community members in decision-making and fostering a sense of
ownership and accountability. In addition to the elders' efforts, volunteerism and peacekeeping
groups like Busa Gonofa and Gachena Sirna play a crucial role. These groups support the courts
by promoting mutual assistance, preventing conflicts, and maintaining order during proceedings.
Their work helps ensure that resolutions are respected and implemented, contributing to the
overall peace and stability of the community. By integrating these traditional practices with
modern principles of justice, customary courts in the West Hararge Zone serve as a model for
effective conflict resolution and cultural preservation.17

2.1.2. Establishment and Legal Foundation of Customary Courts in West Hararge Zone

The establishment and legal foundation of customary courts in the West Hararge Zone are
grounded in both federal and regional legal frameworks that recognize and promote traditional
conflict resolution mechanisms.18 These courts play a vital role in providing accessible, culturally
relevant, and efficient justice to community members. By integrating customary laws with
formal legal principles, Ethiopia aims to create a cohesive and inclusive judicial system that
respects cultural diversity and promotes social harmony.

Customary courts in the West Hararge Zone are established based on a combination of federal
and regional legal frameworks that recognize and integrate traditional conflict resolution
mechanisms into the formal justice system. These courts play a vital role in administering justice,
especially in rural and culturally diverse communities. Here's a detailed discussion on their
establishment and legal foundation:

i. Federal Legal Framework

1. The Constitution of the Federal Democratic Republic of Ethiopia (FDRE).

17
Ibid.
18
Ibid.

11
The Constitution of Ethiopia, adopted in 1995, provides the primary legal basis for the
establishment and recognition of customary courts. Key provisions include:

 Article 34(5): Recognizes the right of individuals to be governed by their customary laws
concerning family and personal matters if they so choose. This provision underscores the
importance of cultural and traditional practices in the Ethiopian legal system. 19

 Article 78(5): Allows for the establishment of special or religious courts, which can
include customary courts, provided they do not violate constitutional rights. This article
paves the way for integrating traditional conflict resolution mechanisms into the broader
judicial system.20

ii. Regional Legal Framework

1. The Oromia Regional State Constitution

The regional constitution of Oromia complements the federal constitution by further recognizing
and formalizing the role of customary laws and courts. It emphasizes the protection and
promotion of cultural heritage and traditional practices within the region.21

2. Proclamation No. 240/2021

In 2021, the Oromia Regional State enacted Proclamation No. 240/2021, which provides a
detailed legal framework for the establishment, administration, and functioning of customary
courts.22 Key aspects of the proclamation include:

The proclamation formally acknowledges the existence and importance of customary courts in
administering justice at the community level. Customary courts are given jurisdiction over
specific types of cases, particularly those related to family matters, property disputes, and minor
criminal offenses, provided they do not contravene constitutional rights. The proclamation
outlines the structure of customary courts, including the selection of community elders as judges,
procedural rules, and the integration of customary laws with formal legal principles.

19
The FDRE Constitution Article, 34(5).
20
Ibid. Art. 78(5).
21
Oromia National Regional State Constitution.
22
Oromia Region Customary Courts, Proclamation No. 240/2021.

12
2.1.3. Integration with Formal Legal System

Customary courts are designed to complement the formal judicial system by providing
accessible, culturally relevant, and efficient mechanisms for resolving disputes. 23 They operate in
parallel with formal courts, often handling cases that are more appropriately resolved within the
cultural context of the community. The integration of customary courts ensures that justice is
administered in a manner that respects and upholds the cultural values and traditions of the
community. This approach fosters greater acceptance and adherence to judicial decisions, as they
are seen as legitimate and fair by the community members.

2.1.4. Jurisdiction of Customary Courts

Customary courts in the West Hararge Zone have specific jurisdictional boundaries that govern
the types of cases they can handle and the scope of their authority. These courts play a
complementary role to the formal judicial system, providing culturally relevant and accessible
justice to community members.24 Here’s an overview of their jurisdiction:
i. Types of Cases
Customary courts primarily handle cases that are best resolved within the cultural and traditional
context of the community. These include:
1. Family Disputes:
Marriage and Divorce: Customary courts oversee matters related to marriage arrangements,
dowries, and divorce proceedings. Their decisions are guided by customary laws and cultural
practices.
Child Custody and Guardianship: They adjudicate disputes concerning the custody and
guardianship of children, ensuring that decisions are in the best interests of the child and adhere
to cultural norms.25
2. Property Conflicts:

23
Dereje Feyisa, Customary Dispute Resolution Mechanism in Ethiopia, (2020).
24
Ibid.
25
Interview with, Abbaa Gadaa Jamal Yaasiin, December 10, 2024.

13
Land Disputes: Customary courts resolve conflicts over land ownership, boundaries, and
inheritance. These courts rely on traditional land tenure systems and community agreements to
make their rulings.
Inheritance Issues: Disputes related to inheritance and succession are also within the jurisdiction
of customary courts, where they apply customary rules of inheritance.26
3. Minor Criminal Offenses:
Petty Crimes: Customary courts handle minor criminal offenses such as theft, assault, and
vandalism. Their focus is on restorative justice, aiming to repair harm and reconcile parties rather
than impose severe punishments.27
4. Civil Matters:
Contractual Disputes: They adjudicate disputes arising from local agreements and contracts,
ensuring that community members adhere to their commitments and obligations.

ii. Jurisdictional Limits

While customary courts have broad authority within their community, there are specific limits to
their jurisdiction:
1. Serious Criminal Cases:
Customary courts do not handle serious criminal cases such as murder, rape, or large-scale fraud.
These cases fall under the jurisdiction of formal state courts, which have the authority to impose
significant legal penalties.
2. Constitutional Rights:
Customary courts must operate within the framework of constitutional rights and protections.
They cannot make decisions that violate the fundamental rights guaranteed by the national
constitution, such as equality before the law and non-discrimination.28
3. Appeals and Oversight:
Decisions made by customary courts can be appealed to higher customary courts or formal state
courts. This appellate oversight ensures that justice is administered fairly and that customary
court decisions comply with broader legal standards.29

26
Ibid.
27
Interview with, Mr. Ashanafi Nigatu, West Hararge Zone Attorney General Officer, December 10, 2024.
28
The Constitution of the Federal Democratic Republic of Ethiopia, 1995.
29
Oromia Region Customary Courts, Proclamation No. 240/2021.

14
2.1.5. Community Elders in Customary Courts

a. Role of Community Elders

In the customary courts of West Hararge Zone, community elders play a pivotal role in
administering justice.30 Community elders are chosen based on their wisdom, experience, and
respect within the community. They are trusted figures who uphold cultural values and
traditions. Elders act as mediators and arbitrators in disputes. They listen to both parties, gather
information, and facilitate discussions to reach an amicable resolution. Their goal is to restore
harmony and peace rather than impose punitive measures.

Elders possess a deep understanding of customary laws and cultural practices. They use this
knowledge to interpret and apply traditional principles to resolve conflicts effectively. The
involvement of community elders ensures that justice is inclusive and culturally sensitive. Elders
strive to be fair and impartial, considering the social dynamics and relationships within the
community.

By resolving disputes locally and amicably, elders help maintain social cohesion and prevent
conflicts from escalating. Their decisions are often respected and adhered to, reducing the
likelihood of further disputes. The emphasis on reconciliation and healing is a core aspect of the
elders’ role. They encourage offenders to make amends and promote forgiveness and restoration
of relationships between the parties involved.31

Generally, Community elders are integral to the functioning of customary courts in West Hararge
Zone. Their leadership, wisdom, and deep understanding of cultural practices enable them to
resolve conflicts effectively, promoting peace and social cohesion within the community.

2.1.6. Accessibility of Customary Courts in Each of the 512 Kebeles

Customary courts in the West Hararge Zone are designed to be highly accessible to community
members. This accessibility is a crucial factor in their effectiveness and relevance. Here's how it
is achieved:

30
Hizkel Hailu, the Ethiopian Herald Saturday 9 March 2024.
31
Ibid.

15
 i. Widespread Presence

Customary courts are established in each of the 512 Kebeles (local administrative units) in the
West Hararge Zone. This widespread presence ensures that every community member has local
access to justice without the need to travel long distances.32

These courts are typically located within the community, often in places that are easily reachable
for all residents, such as community centers or local meeting places.

ii. Inclusivity

Customary courts operate in the local languages and within the cultural context of the
community, making them more approachable and understandable for residents. This inclusivity
helps bridge the gap between formal legal systems and the community's traditional practices.

The involvement of community members in the judicial process promotes a sense of ownership
and trust in the system. People are more likely to engage with a court system that they feel is
representative of their own values and norms.33

iii. Informal and Flexible Procedures

Unlike formal courts, customary courts often have more flexible and informal procedures. This
flexibility makes it easier for individuals to present their cases without the need for legal
representation or navigating complex legal protocols. Customary courts aim to resolve disputes
quickly, reducing the backlog of cases and providing timely justice. This prompt resolution is
particularly important in maintaining social harmony and preventing conflicts from escalating. 34

iv. Community Elders' Involvement

The use of respected community elders as mediators and judges ensures that decisions are made
fairly and are respected by the community. Their deep understanding of local customs and
traditions enhances the legitimacy of the court's rulings. The emphasis on reconciliation and

32
Interview with, Marge, West Hararge Zone High court, Documentation officer, December 10, 2024.
33
Ibid.
34
Interview with, Abbaa Gadaa Mohamed Kasim, December 10, 2024.

16
restorative justice helps maintain community relationships and fosters a culture of mutual respect
and understanding.

The accessibility of customary courts in each of the 512 Kebeles in the West Hararge Zone
ensures that justice is within reach for all community members. By being culturally relevant,
inclusive, and user-friendly, these courts play a vital role in maintaining social order and
providing effective conflict resolution.

2.1.7. Cultural Reconciliation in Customary Courts

Cultural reconciliation is a key feature of customary courts. It involves resolving conflicts in a

way that respects and integrates the cultural norms and values of the community. 35 This approach
ensures that justice is not only served but also perceived as legitimate and fair by all parties
involved. Customary courts operate within the framework of local traditions and customs. This
respect for cultural norms helps to maintain social cohesion and harmony within the
community.36

The process often involves a wide range of community members, including elders, family
members, and other stakeholders. This inclusivity ensures that decisions are holistic and consider
the perspectives and needs of all affected parties. Cultural reconciliation focuses on repairing
relationships and restoring peace rather than merely punishing offenders. This restorative
approach helps to heal the community and rebuild trust. Community members actively
participate in the resolution process, which fosters a sense of ownership and accountability. This
participation ensures that the outcomes are more widely accepted and respected.

35
Hizkel Hailu, the Ethiopian Herald Saturday 9 March 2024.
36
Interview with, MR. Jeylan Abadir, Chiro Town resident, December 12, 2024.

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2.1.8. Challenges and Considerations

a. Legal Ambiguity

One of the challenges faced by customary courts is the potential for legal ambiguity, particularly
in cases where customary laws may conflict with constitutional or statutory laws. Continuous
efforts are needed to harmonize these systems and ensure that customary courts operate within
the legal framework.

b. Resource Constraints

Customary courts often operate with limited resources, affecting their capacity to deliver justice
effectively. Support from the regional government, NGOs, and international organizations is
crucial to enhancing their functionality and sustainability.

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References

1. Basic Principle on Restorative Justice Programs Legal framework, Paragraph 12.

2. Braithwaite, John. "Restorative Justice & Responsive Regulation." Oxford University

Press, 2002.

3. Economic Social and Cultural Resolution, 2002/12, Preamble.

4. Ethiopia -. Addis Ababa: The Ethiopian Arbitration and Conciliation Center.

5. Gadaa Journal/ Barruulee Gadaa, Vol. 6, No.1, 21-37, January 2023

6. Hizkel Hailu, the Ethiopian Herald Saturday 9 March 2024.

7. https://advocacy4oromia.org/resource/the-power-of-siinqee-inprotecting-womans-rights-
and brokering-peace-in-tulama-oromo. Last accessed on December 10, 2024.

8. Human Rights Council, Expert Mechanism on the Rights of Indigenous Peoples, 2014.

9. Laxminarayan, M. (2014), Accessibility and Initiation of Restorative Justice, Leuven:

European Forum for Restorative Justice.

10. Oromia Region Customary Courts, Proclamation No. 240/2021.

11. Oromia National Regional State Constitution.
12. The Federal Democratic Republic of Ethiopian Constitution, 1995.

13. Tolasa Mamuye, Gebre Yntiso, et al. (2011), customary dispute resolution mechanisms
in Ethiopia -. Addis Ababa: The Ethiopian Arbitration and Conciliation Center.
14. UNODC (United Nations Office on Drugs and Crime). "Handbook on Restorative Justice
Programmes." 2006.

15. Women and Indigenious Conflict Resolution Institutions in Oromia: Experience from
Siinqee of the Wayyu Shanan Arsi Oromo by Jemila Adem.

16. Zehr, Howard. "Changing Lenses: A New Focus for Crime and Justice." Herald Press,
1990.

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