AFRICA

DIALOGUE
Monograph Series No. 2/2012

INTEGRATING TRADITIONAL AND

MODERN CONFLICT RESOLUTION:
EXPERIENCES FROM SELECTED CASES IN
EASTERN AND THE HORN OF AFRICA

Conflict resolution under the Ekika system of the Baganda in Uganda

Local conflict resolution in Rwanda: The case of abunzi mediators

Traditional authority and modern hegemony:

Peacemaking in the Afar region of Ethiopia

From war to peace and reconciliation

in Darfur, Sudan: Prospects for the Judiyya

Customary mediation in resource scarcities and

conflicts in Sudan: Making a case for the Judiyya
Integrating Traditional and
Modern Conflict Resolution:
Experiences from selected
cases in Eastern and the
Horn of Africa

Africa Dialogue Monograph Series No. 2/2012

Edited by Martha Mutisi and Kwesi Sansculotte-Greenidge

ACCORD
The Africa Dialogue Monograph Series is published by the African Centre for the Constructive
Resolution of Disputes (ACCORD). ACCORD is a civil society institution working throughout
Africa to bring creative African solutions to the challenges posted by conflict on the continent.
ACCORD’s primary aim is to influence political developments by bringing conflict resolution,
dialogue and institutional development to the forefront as an alternative to armed violence and
protracted conflict.

Acknowledgements
ACCORD expresses its appreciation to the Department of Peace and Conflict Research (DPCR)
at Uppsala University, Sweden, for the collaborative partnership which gave birth to the
programme, “From Wars of the Weak to Strong Peace”. The research on traditional institutions
of governance and conflict resolution falls under this partnership. Funding for the production
of this publication, including fieldwork for the development of the chapters in the monograph,
was made possible by the Swedish International Development Cooperation Agency (Sida).

Disclaimer
Views expressed in this publication are not necessarily those of ACCORD. While every attempt
has been made to ensure that the information published here is accurate, no responsibility is
accepted for any loss or damage that may arise out of the reliance of any person upon any of the
information this series contains.

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Contents

List of Acronyms 5

Introduction
Martha Mutisi 9

Conflict resolution under the Ekika system of the Baganda in Uganda

Ashad Sentongo and Andrea Bartoli 13

Local conflict resolution in Rwanda: The case of abunzi mediators

Martha Mutisi 41

Traditional authority and modern hegemony: Peacemaking in the

Afar region of Ethiopia
Kwesi Sansculotte-Greenidge and Demessie Fantaye 75

From war to peace and reconciliation in Darfur, Sudan: Prospects for

the Judiyya
Abdullahi Osman El-Tom 99

Customary mediation in resource scarcities and conflicts in Sudan:

Making a case for the Judiyya
Salomé Bronkhorst 121

Conclusion
Martha Mutisi 147

Notes on Contributors 151

List of Acronyms
ACCORD African Centre for the Constructive Resolution
of Disputes
ADR Alternative Dispute Resolution
AI Amnesty International
AJC Access to Justice Centre
ALF Afar Liberation Front
ANDP Afar National Democratic Party
ANLM Afar National Liberation Movement
ANRS Afar National Regional State
APDO Afar Peoples Democratic Organisation
AU African Union
AUPD AU High-Level Panel on Darfur
CE Common Era
CPA Comprehensive Peace Agreement
CR Conflict Resolution
CRC Citizen Report Cards (Rwanda)
DDR Disarmament, Demobilisation and Reintegration
DRC Democratic Republic of Congo
DP Democratic Party (Uganda)
DPA Darfur Peace Agreement
ENTRO Eastern Nile Technical Regional Office
EPLF Eritrean People’s Liberation Front
EPRDF Ethiopian People’s Revolutionary Democratic Front
ESCR Endogenous System of Conflict Resolution
FDRE Federal Democratic Republic of Ethiopia
GACGC German Advisory Council on Global Change
GEF Global Environmental Facility
GoS Government of Sudan
GPPAC Global Partnership for the Prevention of Armed Conflict
HRW Human Rights Watch
ICC International Criminal Court

5
ICTR International Criminal Tribunal of Rwanda
INGO(s) International non-governmental organisation(s)
IPCC Intergovernmental Panel on Climate Change
JEM Justice and Equality Movement (Darfur)
KY Kabaka Yekka (Uganda)
LJM Liberation and Justice Movement
MAJ Access to Justice Office
MINALOC Ministry of Local Government (Rwanda)
MINIJUST Ministry of Justice (Rwanda)
MRND Revolutionary Movement for Development (Rwanda)
NA Native administration
NBI Nile Basin Initiative
NCP National Congress Party (Sudan)
NGO(s) Non-governmental organisation(s)
NJS National Justice System
NMOG I Neutral Military Observer Group I (Rwanda)
NRM National Resistance Movement (Uganda)
NRM/A National Resistance Movement/Army
NURC National Unity and Reconciliation Commission
(Rwanda)
OAU Organisation of African Unity
PARMEHUTU Party for the Emancipation of the Hutus (Rwanda)
PDRE People’s Democratic Republic of Ethiopia
RGAC Rwanda Governance Advisory Council
RPF Rwandan Patriotic Front
RPCM Reconciliation and Peaceful Coexistence Mechanism
S-CAR School for Conflict Analysis and Resolution
SECS Sudan Environmental Conservation Society
SPLM Sudanese People’s Liberation Movement
SRF Sudanese Revolutionary Front
TCR Traditional conflict resolution
TPLF Tigray Peoples Liberation Front
TNRS Tigray National Regional State
UN United Nations

6
UNAMID United Nations and African Union Mission in Darfur
UNAMIR United Nations Assistance Mission to Rwanda
UNDP United Nations Development Programme
UNEP United Nations Environment Programme
UNHCR United Nations High Commission for Refugees
UNMIS United Nations Mission in Sudan
UNOMUR United Nations Observer Mission in Uganda-Rwanda
UNSC United Nations Security Council
UPC Uganda People’s Congress
USAID United States Agency for International Aid
UK United Kingdom
WPE Workers Party of Ethiopia

7
8
Introduction

Martha Mutisi

Contemporary Africa is faced with the reality of numerous evolving states that
have to grapple with the inevitability of conflict. On their own, the fledgling
institutions in these states cannot cope with the huge demands unleashed by
everyday conflict. It is within this context that the complementarity between
traditional institutions and the modern state becomes not only observable but
also imperative.

The continuing role and influence of traditional leadership in modern Africa

is hard to miss. Nonetheless, the relationship between the state and traditional
institutions should not be taken for granted for it is a contested terrain fraught
with complexities. While traditional institutions are rooted in the culture and
history of African societies, the modern state exerts a large amount of influence
on these institutions. In some cases the traditional institutions are politicised
and have become instruments of propagating state ideology. In other cases,
especially where they express dissent with the state, these traditional institutions
have often been undermined or usurped by the state.

However, the uniqueness of traditional institutions, by virtue of their

endogeneity and use of local actors, cumulatively enables them to either resist or
even sometimes subvert the state. These traditional institutions, also known as
endogenous conflict resolution systems continue to demonstrate their relevance
in post-conflict states. This is especially true in the context of weak states that
are overwhelmed with ongoing state-building processes. There is no clear-cut
formula regarding the interactions between the state and traditional institutions.
A relationship definitely exists between the two and understanding this could
be central in the promotion of sustainable peace in post-conflict Africa. A
key objective of this monograph is to examine the influence and impact of
traditional systems on modern structures of governance and conflict resolution.

9
Martha Mutisi

It is natural for scholars, practitioners and policy makers to ponder the relevance
of this endeavour. The analysis of traditional methods of conflict resolution is
not a new phenomenon. However, the extant literature on these institutions and
processes is inward-looking, presenting them as if they existed in a political and
structural vacuum. The present monograph seeks to transcend this approach. It
focuses on the hybrid nature of the relationships between state structures and
traditional institutions of governance, justice and conflict resolution. Its focus
is on analysing the intricate patterns of interactions between state and local
institutions of conflict resolution. Particular attention is given to the relevance
of this interface in post-colonial states in the post-conflict phase.

ACCORD is proud to be publishing these case studies during this second decade
of the millennium where the role of traditional institutions continues to be
highlighted. Comprising five chapters all focused on Eastern and the Horn of
Africa, the contributions follow a case study approach to highlight the modern-
traditional connection. These case studies are: Afar in Ethiopia, Darfur, Rwanda,
the Baganda community in Uganda and Sudan. Cumulatively, the monograph
confirms that traditional institutions can play varied roles in preventing and
resolving conflicts. The case studies vary in length, methodological approaches
and schools of thought, reflecting the styles of the various authors. Despite their
diversity, some common themes, perspectives and observations can be discerned.

Chapter 1 throws the spotlight on conflict resolution among the Baganda in

Uganda by analysing practices under the Ekika System. It highlights the discord
precipitated by the state’s struggle to become more viable and democratic, and
the resilience of traditional institutions of governance together with the latter’s
role as outposts of the state. The chapter employs an evolutionary approach
by examining how Baganda practices have shifted in ritualism and character
over time. The authors attribute some of these changes to ‘the introduction and
institutionalisation of western-type legal systems and judicial processes’.

Chapter 2 analyses a uniquely Rwandan approach to local justice known as

abunzi mediation. It employs a peacebuilding paradigm infused with the
developmental lens to explain the re-engineering of the abunzi mediation by
the Rwandan government in 2006. The author discusses the synergy between

10
 Introduction

the abunzi and the modern, formal court system and how the state, through its
Ministry of Justice and Ministry of Local Government, supports the operations
of the abunzi. The chapter makes the case that although abunzi mediation
existed in the pre-colonial era in traditional form, i.e. ‘those who reconcile’, the
Government of Rwanda deliberately re-instituted abunzi mediation through
statutory instruments. This gave the institution a double edged effect. The
chapter discusses the complexities that are associated with combining a cultural
and ritualised conflict resolution process with elements of state-mandated
mediation. While paying attention to the benefits of the abunzi in localising
justice, the author is wary of too much state oversight in local level processes.

Chapter 3 discusses the case of Afar in Ethiopia. It presents a gamut of actors

in traditional conflict resolution and their complementary roles. The chapter
argues that traditional institutions in the Afar region, especially elders, play
a critical role in resolving conflicts between clans and sub-clans. The authors
underline the cultural fusions between the state and local traditional structures
by discussing how the Ethiopian state administration relies upon the peace
committees composed of elders from the Afar to monitor conflict and promote
peacebuilding. The chapter further discusses the inherent contradictions and
paradoxes that define the interactions between the state at the national, and
the Afar traditional leaders at the local level. These challenges include the issue
of overlap between the formal state apparatus and traditional institutions,
especially when the same individuals play dual role and occupy different offices.

Chapter 4 focuses on Darfur. It pays attention to the role of the traditional

legal system known as the judiyya in addressing lower level offences that
were committed during the war in Darfur. The judiyya is a grassroots system
of arbitration that focuses on reconciliation and the restoration of social
relationships in the community. The chapter argues that its use in Darfur would
enable populations to find justice instead of relying solely on international
tribunals for addressing war crimes. It emphasises the responsiveness of
the judiyya to the context in Darfur, positing that this system is restorative,
conciliatory and community-based thereby positioning it towards building
the larger peace agenda in Sudan. The author also underlines the relevance of
the judiyya, especially its emphasis on restitution and compensation for loss

11
Martha Mutisi

or damage incurred during or as a result of conflict. Drawing on the use of the

traditional Gacaca system of justice, the author concludes by making suggestions
that may improve delivery of peace and justice by the judiyya in post-war trials
in Darfur.

Chapter 5 also explores the role of indigenous processes but from an

environmental management dimension. Basing the analysis on the climate
change adaptation framework and resource scarcity thesis, the chapter
investigates the role of traditional mechanisms of conflict transformation in
dealing with farmer-pastoralist disputes. Focusing on the judiyya, a citizen-
based form of third-party mediation, the chapter examines how this uniquely
traditional process can be employed to address environmental issues and
resource-related conflicts. The analysis draws attention to the intricate nature of
judiyya as the concept and practise can be applied to conflict transformation at
various levels, including by community leaders, elders and government officials,
depending on the nature of the dispute. For this reason, the author proposes
the need to consider using judiyya to resolve larger-scale and tribal conflicts in
Sudan. Lastly, the chapter considers the challenges of this form of customary
mediation and how these conundrums can be addressed.

From Afar to Darfur, Rwanda, Sudan and ultimately to Uganda, traditional

institutions of conflict resolution have demonstrated their resilience and utility
in twenty-first century post-colonial and post-conflict Africa. Despite some
identifiable gaps, these institutions are likely to remain a key defining feature of
the face of conflict resolution in Africa. The chapters which follow will enable
readers to join in the debate over the nexus between traditional and modern
structures of governance and conflict resolution. Readers will also emerge with
questions and perhaps ideas for further research on how to close these gaps.

12
Conflict resolution under the Ekika
system of the Baganda in Uganda

Ashad Sentongo and Andrea Bartoli

Introduction
Conflicts everywhere unleash complex dynamics emerging from the interaction
of multiple actors. In Africa, conflicts have been a part of the state formation
process as polities incorporated in a plurality of groups (especially ethnic and
religious ones) express themselves at the national level. Yet the effectiveness of
the political participation of these groups as well as the capacity of the state
to authentically relate and respond to needs at the communal level varies
enormously. Uganda offers a prime example of how state-centric approaches
for resolving tensions might be insufficient. There is palpable tension between
cultural institutions and the state, ethnicity1 and citizenship, customary
constructs and civil traditions. This tension might be good. It might create
conditions for collaboration and complementarity. It can enrich the collective
discourse and open up new possibilities for enduring peace at both the state and
the communal levels. However, it can also develop into enduring rivalries and
destructive hostilities. With state and traditional actors competing for space and
influence in ways that elude collaboration, conflicts are provoked while dealing
with social, political and resource issues. Underlying this competition are
cultural values and traditional practices by different ethnic groups that endure
as ‘webs of significance’ (Geertz, 1973:5). Members used these to analyse and
resolve conflicts even before the modern state.

1 Ethnicity is what Africans call tribe (Volkan, 1997). An ethnic group is ‘a collectivity of
people who share the same primordial characteristics such as common ancestry, language
and culture’. Ethnicity represents ‘those behaviours and feelings about oneself and others
that supposedly emanate from membership of an ethnic group’ (Assefa, 1995).

13
Ashad Sentongo and Andrea Bartoli

In Uganda, the continuing struggle for the state to become more viable and
democratic has also transformed or replaced a number of traditional methods
of conflict mitigation and resolution. This is evident among the Baganda ethnic
group, which is the focus of this chapter primarily because it has been seen
as a ‘prototype ethnic group’ (Fearon, 2003).2 In Uganda the Baganda are the
largest of over 45 ethnic groups, making up 18% of 30 million people in the
country, and strategically located in the central region of the country. They were
a privileged group under the colonial government in areas of appointment to
positions of leadership, education and economic development. The Baganda
people as a group continue to be influential in affairs of state to the extent that
conflicts which occur in their region also affect the rest of the country.

Systems evolve over time to constitute users and managers. They contain
maintenance and security mechanisms to ensure continuity. This paper
analyses the Baganda kinship system – Ekika (singular for kinship group) – as
an endogenous system of conflict resolution (ESCR). Managers of the system
are called Bataka (clan or kinship group leaders and custodians of ancestral
land) and the users are called Bazzukulu (clan members considered their ‘grand
children’). Under the system, Mukago (blood pact), Kisaakaate (enclosure),
Kutawulula (disentangle) and Kwanjula (introduction) are some of the
traditional practices through which conflicts are mitigated and resolved. Fearon
and Laitin (1996) state that mechanisms that are inclusive and transparent are
necessary to moderate cross-group and in-group problems of opportunism
to avoid the costs of violence and capture the benefits of peace. In Buganda,
such practices function as public processes to resolve conflicts and promote
peace among members and between them and other ethnic groups. These are
implemented through well-organised and supervised social-political structures.
Some of them endure and continue to influence social-political relations in
Buganda. Others have evolved to adapt to dictates of the modern state, but with

2 One whose membership is reckoned primarily by descent by both members and

non-members, who view such membership as normatively and psychologically important
to them, with shared cultural features e.g. a common language, held to be valuable by a
large majority of members of the group. It has a defined territory, with a shared history
based on facts that make the group ‘stand out alone’.

14
 Conflict resolution under the Ekika system of the Baganda in Uganda

great limitations, while others again have been overtaken by social and political
developments in the country.

Fisher (2009:329) states that ‘conflict resolution works to increase cooperative

aspects, while recognizing that competitive elements in conflict situations
require a firm and yet conciliatory combination of strategies.’ Among the
Baganda, Ekika (kinship group) is the focal point from which the social
organisation of the group and subsequently political structures of the kingdom
emerged. The system utilises a number of strategies and structures to respond
to social and political conflicts separately. But these complement one another
to keep members united and in peace, enabling them to promote and protect
the interests of the kingdom. Differences in political affiliations or opposition
to decisions taken by the monarchy do not undermine the way members of the
group perceive and conduct themselves as a collective, especially when threats
occur. The Baganda kinship system therefore provides useful insights into the
indigenous mechanisms of conflict mitigation and resolution, the maintenance
of peace and social harmony, and the challenges to such mechanisms in a
modern state.

Social conflicts under the Baganda kinship system

The Baganda are members of the Ganda tribe. Ganda means ‘bundle’, Muganda
is the singular and Baganda is the plural (Ray, 1991:71), which refers to all
members of the group bundled together by a common ancestry and language.
‘Bu’ is a prefix signifying the Baganda state that members claim has existed for
400 years (Englebert, 2002). The group’s name is drawn from the analogy that
one stick breaks more easily than a bundle of sticks, and the more the bundles
hold together, the more difficult it becomes to break them. Hence methods
that deal with conflicts among the Baganda put great emphasis on keeping
the ‘bundles’ together. Most methods emphasise prevention, while others seek
to ensure total reconciliation whenever they are applied to resolve manifest
conflicts. Each kinship group is a ‘bundle’, made up of related individuals and
families who trace their lineage to a common ancestry. Legend holds that the
founder of Buganda was called Kintu, his family was the first kinship group,

15
Ashad Sentongo and Andrea Bartoli

and he was the first King3 of Buganda. This and other myths are often invoked
in the region to ‘produce mass attitudes, mobilization and in-group policing’
(Kaufman, 2006:52) necessary to achieve peace and forgiveness between
members, maintain unity of the group, or mobilise members to address any
threats to the monarchy.

The myth about the origin of the Baganda serves to preserve a common culture
and ancestry and provides the rationale behind the methods used to mitigate
and resolve conflicts in Buganda. Currently 52 kinship groups make up Buganda,
and members refer to themselves as Baana ba Kintu (descendants of Kintu)
(Englebert, 2002). Each kinship group is associated and named after a Muziro
(totem) in the form of an animal, insect, plant, bird, or fish. No single kinship
group or family can dominate the whole Baganda ethnic group, as would be the
case if, for instance, the name of an individual was used to describe the whole
group. In such a case the family would claim to be more superior to all other
families on the group. For this reason all individuals and families have equal
membership within the kinship group. Fallers (1964:445-6) further observed
that the Baganda ‘were acutely conscious of their uniqueness and mutual kinship,
and their institutions and culture were to a marked degree organized around
the nation as a whole and its well-being.’ Totems also remain strong symbols of
intra-clan equality and Baganda identity. Thus different kinship groups and the
monarchy mobilise members to congregate each year to celebrate their ancestry,
culture, and brotherhood, thereby reinforcing their unity.

A kinship group leader is called Mutaka (singular for Bataka) where Ttaka
means land. Therefore, a kinship group exists only if it can be identified with
Obutaka (ancestral land) and the Omutaka is the custodian of that land where
ancestors are believed to have originated and were buried. Baganda religion
developed from this view, where Lubaale (a spirit of past Bataka considered
to have excelled in war, family, or agriculture) is ‘worshipped and for whom
a shrine would be erected’ (Green, 2010:12). Depending on which areas a late
Mutaka excelled in serving his group, all Baganda recognise such excellence

3 King and Kabaka are used interchangeably in this chapter depending on the context, to
refer to a King in Buganda.

16
 Conflict resolution under the Ekika system of the Baganda in Uganda

and visit the shrine to worship and ask his spirit for blessings regardless of
membership of the group. Therefore religion among the Baganda is not divisive,
and rests on the belief that past Bataka from different kinship groups excelled
in different aspects of life. Together their spiritual guidance is needed to enable
members fulfil all functions necessary for ‘bundles’ to keep together and defend
the kingdom.

A kinship group represents an extended family whose structure is organised

hierarchically, through a patriarchal lineage. The following order is from the
bottom to the top:
(i) Nnyumba (home of birth headed by father, including his immediate family)
(ii) Luggya (homestead headed by paternal grandfather including his
immediate family)
(iii) Mutuba (bigger group of related homesteads)
(iv) Lunyiriri (paternal lineage)
(v) Ssiga (a family grouping of paternal lineages)
(vi) Kasolya (peak of the kinship group headed by the Omutaka).

At the highest level, all the kinship groups are represented in the Olukiiko
Lw’Abataka (Bataka General Assembly). Conflicts involving marriage,
inheritance, adultery, fornication, theft, burglary, false accusations, and other
grievances involving social inequality are handled through these social structures.

In spite of the large and extended membership, in-group policing is a salient

feature of this structure and serves to prevent conflicts, strengthen the lineage,
and to preserve culture, integrity and good morals. The success or disgrace of one
member applies to the whole kinship group. Family and kinship group members
are obliged to participate in celebrating success and enforcing the judgement or
punishment issued by elders. This is regardless of one’s status in the community.
Individuals are encouraged to own property, pursue success at all levels and
have respectful careers because it contributes to the shared status of the kinship
group. For that matter, disgraced individuals can be ostracised at the least, but
members can also disavow their kinship groups and ask to be assimilated into
other kinship groups, especially if the Kabaka was unhappy with the group’s

17
Ashad Sentongo and Andrea Bartoli

leaders. To prevent or resolve conflicts and other similar situations, the Baganda
have developed a number of methods. The most notable are those which follow.

Kwanjula

The practice of Kwanjula (introduction) among the Baganda includes a full

recitation of the structure of one’s kinship group. This involves mentioning the
names of the group’s leaders at each level as indicated above. This functions
to demonstrate ancestral origin and lineage especially during an installation to
a position of traditional authority and the acceptance of non-family members
into Baganda families. For example, on marriage, partners introduce their
family members to in-laws during a special ceremony also called Kwanjula.
Representatives of each partner recite their immediate and distant kinship group
lineages (Kulanya), to clarify the person’s totem, kinship group and ancestral
origin. In doing so, the practice creates a special relationship between group
leaders and subjects, partners and their in-laws, and also their extended families.
The practice signifies the creation of a bond that holds families from different
kinship groups together, and is ‘regarded as one of the key determinants of social
cohesion’ (Dykstra, 2006:4).

Coser (1956:36-48) argues that social systems provide safety valves that prevent
conflict or its disruptive effects where hostility and a predisposition to engage in
conflict can be managed without change in relationships within groups. Among
the Baganda, marriage within one’s own kinship group is a taboo and Kwanjula
functions as a safety-valve to (i) determine that partners do not disgrace their
families by marrying within their respective kinship groups, and (ii) promote
culture and belongingness of kinship groups together as a bundle. In this way
the practice is a promise and commitment to non-aggression and peaceful
coexistence by families and kinship groups, bonded through marriage between
their members. Violence and other forms of conflict between kinship groups
remain rare in public and are almost unheard of since this signifies violation
of such a bond and therefore a disgrace to members. Unifying relationships are
created during the process to symbolise a willingness by partners to subordinate
individual interests to those of the family and the group. This holds regardless
of status or religion in ways that strengthen the togetherness of the ‘bundles’.

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 Conflict resolution under the Ekika system of the Baganda in Uganda

The impact of Kwanjula became more evident in post-conflict experiences

within families in Buganda. As a result of civil wars that characterised changes
in political regimes in Uganda after independence, a number of families lost
family heads or were left without direct help, and orphaned children were
forced to live with their extended families. Land also became increasingly scarce
as the traditional source of family income in Buganda because many people
from other regions moved into the central, more developed and secure region.
During these times, connections and contacts with extended families often
established through Kwanjula ceremonies frequently produced living and work
arrangements that helped support the welfare of affected members. Resources
like land or capital to start a business were shared, the most common being
financial support for medical treatment of the extended family members, and
the schooling of orphaned children. Therefore the bond that Kwanjula produces
expands opportunities for members to mitigate kinship conflicts, and creates
a support network that serves as a safety valve for members experiencing the
effects of violence. Even when partners divorce, family members continue to
benefit from this bond and treat each other with the same respect.

Traditionally, to be a Muganda is to belong to any one of the 52 kinship groups

by birth. However this strict qualification for membership in a kinship group
was later reformed to include assimilation, mostly as a result of post-conflict
experiences in Buganda. A number of non-Baganda migrated and settled in
Buganda to access business opportunities, health, education and other social
services, or to work in government departments in Kampala City. Assimilation
helped to mitigate conflicts that would come from resistance by non-Baganda
to the strict cultural norms of the Baganda that guide family relationships
or land ownership in the region. Many non-Baganda and foreigners born in
Uganda became full members of Baganda kinship groups, ‘after they learned the
language, practiced the culture and acquired Baganda names’ (Sathyamurthy,
1986:77).

Dykstra (2006:3) states that ‘family relationships are among the few relationships
capable of being sustained across spatial and social divides.’ Among the Baganda,
family includes members from multiple kinship groups and tribes who marry
or decided to adopt Baganda culture and language. A husband and wife from

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Ashad Sentongo and Andrea Bartoli

two different kinship groups or tribes consider their immediate and distant
relatives as one family, often formalised during Kwanjula. For example, former
President Milton Obote of the Acholi tribe in Northern Uganda was formally
introduced and accepted into the family of his wife Miria Kalule Obote of the
Ngeye kinship group.4 Although Obote later ordered the military to attack the
Buganda Kingdom Palace in 1966, Miria Obote remained married to Obote and
maintains she was not consulted and condemns the attack.

A number of non-African people were also assimilated into Baganda families

and kinship groups. For example, many people of Indian ancestry who were
born in Buganda decided to take on Baganda culture and identity and enjoy
the full rights and privileges accorded to all Baganda. Ugandan-born people
with Indian ancestry who returned to Uganda in the 1990s after Idi Amin
expelled them in 1972, declared their allegiance to the monarchy and many of
them practiced Baganda culture and speak the Luganda language. When the
National Resistance Movement (NRM) government allowed them to return to
Uganda after it came to power in 1986, a number of them repossessed their
land and other properties that were confiscated by Idi Amin. Among them
is O’wekitiibwa (Honorable) Tylor Rajan, who is currently a minister in the
Buganda kingdom government. Professor Mahmood Mamdani (cited in this
paper) also declares himself as a Muganda (Sunday Vision, 2011a). Similarly in
the modern state, traditional introduction ceremonies by partners are accepted
as a form of customary marriage, and non-Baganda who become assimilated are
recognised and protected by the monarchy and laws of the country.

Kisaakaate

Kisaakaate (enclosure) is a village place enclosed in a perimeter wall that was

traditionally managed by the Omutaka and/or Omutongole (village chief
appointed by the King). Each village was required to have a Kisaakaate as a

4 Reported by Sheik Abdu Obed Kamulegeya, a long-time associate and friend of President
Milton Obote in an interview with one of the authors on 6 August 2011. Sheik Kamulegeya
also stated that he was the driver of a Mini car that took Milton Obote to Kawempe to meet
Miria’s parents on the day of the introduction.

20
 Conflict resolution under the Ekika system of the Baganda in Uganda

physical or symbolic place to promote peaceful coexistence, among other

services, through which Baganda maintained their unity and made peace with
non-Baganda. Participants included both adults and children from different
kinship groups and learned about Baganda culture and history. They received
training in leadership and acquired skills necessary to serve their families, groups
and the kingdom. Chiefs also conducted mock trials to learn and become more
effective as judges.5

The practice provided a system of merit where all members of kinship groups
had access to services provided in the Kisaakaate. Abilities demonstrated during
training determined the role a participant would play in society upon completion.
It served to mitigate conflicts over exclusion from access to opportunities for
the personal development of individual members, whose success or failure was
shared by all members of the group. Any participant who demonstrated excellent
abilities in the handling of public affairs was recommended by the Omutongole
or Omutaka to the Kabaka for appointment to a position of responsibility. The
prospect of recognition and appointment to serve the Kabaka based on one’s
ability regardless of kinship group, religion or status was a strong incentive
that ‘promoted moderation and cooperation’ (Horowitz, 1985:598) among
participants. These were considered strong and necessary qualities for leaders to
have and to be able to keep the ‘bundles’ together.

As a method of resolving conflicts, the practice was prominent during the pre-
colonial and colonial periods as the Buganda Kingdom’s armies fought other
kingdoms and captured land to expand its territories. Non-Baganda from
areas that were captured e.g. from the Bunyoro Kingdom, attended Kisaakaate
sessions to orient them into Buganda culture and to learn the Luganda language.
The practice therefore served to mitigate conflicts that would arise from cultural
differences, preserve and promote Baganda culture and norms, prepare group

5 Sheik Abdu Kamulegeya reported in an interview with one of the authors on 6 August 2011
that his father Sheik Obed Lutale attended Kisaakaate with other elders at Prince Badru
Kakungulu’s home. He was appointed by the colonial government as the first Muslim
Judge at Mengo Court, and was part of the team that negotiated the alliance between KY
and UPC during the 1962 elections.

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Ashad Sentongo and Andrea Bartoli

members for various roles in society, as well as peacefully integrate non-Baganda

into local communities in the region.

It is not a condition in Buganda to be rich, prominent or a member of the royal

family to be appointed a leader. Many Bakopi (commoners) were appointed
by the Kabaka as Bakungu (chiefs) based on their skills and abilities. For
example Stanslus Mugwanya who was appointed by King Chwa and became
a prominent chief and then later a judge, was a commoner (Chwa, 2008). He
was recommended to attend Kisaakaate by his brother Pio Mbelenge. King
Kimera, the third King of Buganda, also went through Kisaakaate under his
uncle Katumba. Kimera later appointed Katumba as a special chief with a title
of ‘Mugema’, which means ‘to prevent’. Kimera had prevented the death of King
Kimera when his own father left him in the bush to die. To date, the head of
the Nkima kinship group is called Mugema, and the role of the Nkima kinship
group in the Buganda Kingdom Palace is to dress a new king with a bark cloth
during installation in remembrance of this act.

After the overthrow of Idi Amin in 1979, Milton Obote, who became president
for the second time in 1980, attempted to revive a modified version of the
Kisaakaate system to fit the structure of the state. Obote had abolished kingdoms
in 1966 but realised that Kisaakaate was an institution that contributed greatly
to the strength of the Kingdom and the unity of the Baganda. The invention of
the Mayumba Kkumi (ten houses) system resembled the Kisaakaate system.
Here, instead of a Kisaakaate for a whole parish, each ten homesteads elected a
committee to manage their affairs. In Buganda, the new system was resisted and
later collapsed nationwide, largely because Obote was still hated in Buganda for
ordering the 1966 attack on the Kabaka’s palace at Mengo. The Mayumba Kkumi
system was thus viewed as an extended assault on the Baganda. An inquiry into
why the system failed also noted that it ‘mainly played a security function…
and solicitous behaviour of officials at the local level involved entrenchment
of the patronage system in support of the ruling party’ (Bazaara, 2003) which
was unpopular.

The Kisaakaate has been revived by Kabaka Ronald Mutebi II. In January
2008, he donated land to construct a permanent facility to serve as an informal

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place for children’s use (New Vision, 2008). Since then, a number of Baganda
have established symbolic places including special programmes on Internet
radios (AbabaKa.com, 2011), to conduct Kisaakaate programmes. The aim is
to teach, especially Baganda communities in the diaspora and their children,
about their culture and history, and to discuss ways to solve social, political and
economic problems affecting Buganda. In June 2011, the Nabagereka (Queen)
of Buganda launched an ‘International Kisaakaate’ at Vienna College in Uganda
(In2EastAfrica, 2011), under the theme ‘Culture nurtures good leadership’ to
educate Baganda children in international schools in Uganda about culture
and leadership. This revival is a recognition of the social and political roles
Kisaakaate played before the modern state, in building social relationships and
leadership capacities to mitigate and resolve conflicts, which helped to keep
the ‘bundles’ in peace and united against threats. This challenge is evident in
the current hostilities between the monarchy and central government, as both
parties struggle to arrive at constructive solutions to grievances articulated by
the monarchy against the state.

Mukago

The Mukago (blood pact) is a traditional practice where individuals from

different families or kinship groups create a family bond between them
irrespective of their religion or status. The practice symbolises a binding lifetime
assurance of mutual support, commitment to non-aggression and openness, all
based on love and trust between parties. To enter into a Mukago parties break
a coffee cherry. Each one takes a bean and puts some of their blood on it from
a small cut on their navels. Next, each party eats the bean with the blood of
the other person on it to seal the pact. This pact is considered ‘semi-divine and
unbreakable’ (Kasozi et. al., 1994) and it is not recorded in written form since
trust is deemed most important. Once concluded, all future generations of
descendants inherit the Mukago. Children of individuals or families that made
Mukago subsequently remain obliged to fulfil all associated responsibilities.
The practice of Mukago acquired a political function between political parties
and the monarchy during independence and post-independence struggles in

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Ashad Sentongo and Andrea Bartoli

Uganda. Buganda has always considered itself a state within a state, and groups
seeking to control state power at national level often treat the Baganda as an
entity whose collective support is critical to achieve electoral victory or stability
in the country. The Kabaka, the Bataka and other leaders within the monarchy
negotiated with successive political groups and governments to mobilise
co-operation and support of the Baganda in exchange for meeting Buganda’s
interests. Since independence in 1962, Buganda’s interests have included, among
others, a federal status as was granted by the British in 1900, as well as the return
of all the land that the monarchy claims was confiscated by the colonial state and
continues to be occupied by the central government. Negotiations have often
produced alliances between the monarchy and different political groups. These
are described as Mikago (plural of Mukago), where Buganda seeks to promote
and protect its own interests in the modern state.

The Kabaka Yekka (King Only - KY) party supported mostly by the Bataka, was
formed in 1961 to protect Buganda’s interests as the country moved towards
independence. KY entered into Mukago with the Uganda People’s Congress
(UPC) party and defeated the Democratic Party (DP) during the 1962 elections.
The Kabaka of Buganda, Mutesa II, was elected by parliament as a titular head
of state, and the leader of UPC, Milton Obote, became the Prime Minister. KY
continued to campaign for Buganda’s interests in the new independent state
and sought to neutralise the split among Baganda elites between Protestant
and Catholic blocs. To hold true to the principles of trust and commitment as
central tenets of Mukago, the agreement between KY and UPC was not written.
Korostelina (2007:149) has argued that conflicts of interest typically arise
between two or more groups that share or have intentions to share a resources
or power. Similarly, the Mukago collapsed when the UPC-led government failed
to honour the 1900 agreement between Buganda and the British. Instead, UPC
ordered a referendum on the return of three countries (Buyaga, Buwekula and
Bugangaizi), which the Buganda Kingdom captured from the Bunyoro Kingdom
before independence. Buwekula opted to remain part of Buganda, while Buyaga
and Bugangaizi chose to return to Bunyoro. For the Baganda, the trust and
binding commitment to non-aggression between Buganda and UPC had been
broken. The monarchy demanded that the seat of government be moved from

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the Buganda region. This sparked the 1966 violent overthrow of the first elected
government in a military coup orchestrated by Milton Obote. He declared
himself president, suspended the 1966 constitution and abolished kingdoms.

In 1985 the current Kabaka of Buganda, while still living in exile in Britain,
entered Mukago with President Yoweri Museveni, leader of the National
Resistance Movement/Army (NRM/A) (Daily Monitor, 2011). He mobilised
Baganda’s support and participation in the 1980-6 civil war, in exchange for
the restoration of the kingdom and the return of properties the monarchy
claimed were occupied by the central government. In fulfilment of their role
as custodians of Buganda, the Bataka wrote to the president requesting that he
keep the promise he made during the civil war (Kasfir, 2000). The kingdoms
were restored through an Act of Parliament (1993) (Government of Uganda,
1993) after which Prince Ronald Muwenda Mutebi II was crowned the
Kabaka of Buganda on 31 July 1993 (Sunday Vision, 2011b). However, for the
second time the Mukago collapsed after the government refused to honour a
federal status for Buganda and return all properties to the Buganda Kingdom.
Broken trust and lack of commitment from the NRM government underlie
the recent communal riots and hostilities between the monarchy and the
central government.

In January 2011, while addressing his subjects in Mpigi District the Kabaka
warned the central government to ‘stop persecution of the Baganda’ (New
Vision, 2010). A mysterious fire that destroyed a mausoleum (Walusimbi, 2010)
with four royal tombs of deceased Buganda kings on 16 March 2010 preceded
the Kabaka’s statement. A number of Baganda alleged that the president ordered
the fire, and five people were killed and others injured as mourners blocked the
president’s convoy to access the site of the tombs. This happened at a time when
the government had closed the Buganda Kingdom’s radio station (Politics of
Growth and Governance Worldwide 2009). It alleged that the station was partly
responsible for inciting the September 2009 riots in the region, and the April
2007 riots in Kampala city against the government’s sale of Mabira Forest land
located in Buganda region (Tenywa et al., 2007).

On efforts towards Omukago gwa East Africa (East African Community), the
Bataka of Buganda opposed the political and economic union of East African

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Ashad Sentongo and Andrea Bartoli

states. The monarchy has argued that the proposed arrangements between
Uganda and member states are silent on the position of the Buganda Kingdom
within the community. This opposition to transform East African States into a
single federation dates back to 1929 and 1953 when similar suggestions were
made by the colonial government. Both Kings Chwa and King Muteesa II
refused to allow Buganda to join the rest of East Africa. As a consequence, both
were forced into exile by colonial governments as punishment.

Kutawulula

Kutawulula (disentanglement) is a practice conducted in a Kitawuluzi (physical

or symbolic space) where issues causing conflict are analysed and parties to a
dispute reconciled. The practice draws meaning from two people involved in a
fight. It is a custom in Buganda that anyone near to two people who are fighting
must not only intervene to separate them and stop the physical violence, but must
also go further and ask questions and engage the adversaries in a conversation
to find a solution. Kitawuluzi is very specific in dealing with conflicts and
discussing the dispute to find a solution at the level where it occurs.

Individuals, families or groups of people involved in a dispute approach the chief,

or are invited to the Kitawuluzi for a single or a series of sessions to discuss the
issues affecting them and their relationships. Acceptance to participate indicates
a willingness by the parties to stay in the process for as long as it takes, and to
talk to each other until a solution is found. From this perspective, the process
resembles Sustained Dialogue explained by Saunders (1995:65), as ‘a process of
change’ where ‘people regularly keep coming back to the table to talk and listen
to each other deeply enough about their perceptions, the conflict, and to explore
complexities in their relationship’. In both processes, resolution of the conflict
lies largely in the operational flexibility of the process to allow for enough time,
space, listening and communication between the parties to transform their
relationship and perceptions.

In Buganda, each Muluka (parish) in all eighteen Masaza (plural for counties)
of the Buganda Kingdom had a Kitawuluzi, presided over by Owomuluka

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(country chief). Some writers refer to it as ‘the chiefs’ court’ (De Coninck and
Drani, 2009:14). In the context of the kinship group system, Kisekwa is the
highest court of the Bataka and handles kinship group disputes only. Katikiro
(Prime Minister of the Buganda government) is the highest political office
of the kingdom that handles political affairs and conflicts. This distinction is
critical in maintaining and protecting the ‘bundles’ together, although political
views and affiliations of their members may differ. Kingship in Buganda draws
its authority from kinship groups, and conflicts involving kinship groups and
their leaders are handled exclusively and in private under Kisekwa. This is unlike
everyday conflicts that are traditionally handled through Kitawuluzi as the first
court at local level.

Kutawulula occurs when each party gets a chance to make a case about the
dispute and is listened to by all parties without interruption. Witnesses are
allowed to intervene, but only to add to the analysis, clarify issues or suggest
solutions, and not to make judgements. The Omutongole regulates this
interaction as a transparent public process where parties not only declare their
grievances and suggest options for resolution, but also declare forgiveness to one
another and commitment to a resolution when it is reached. The gathering has
also been referred to as a peacemaking circle (allafrica.com, 2006) that employs
alternative justice mechanisms to resolve conflicts in local communities. The
Batongole (plural for Omutongole) respond to and address conflicts in each
village through this process. A number of physical structures known to have
served as Kitawuluzi still exist as a traditional symbol of local peace. In the
Makindye Division in the Kampala District one of the local council divisions
is called the ‘Kitawuluzi Zone’, named after a court house that once served as a
Kitawuluzi. In the Kisenyi I parish in the Kampala district, local council leaders
collected funds for ‘construction of a new parish office, which is traditionally
known as ekitawuluzi…to serve as a hall or meeting point by residents and their
leaders’ (Kato, 2008).

The practice is similar to Ekyoto (fire place) among the Ankore ethnic group
in the western region of Uganda. Village elders select a neutral venue, usually
a home that they all respect, and light a fire in the compound to symbolise a
problem affecting the community that must be addressed. Parties to the dispute

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Ashad Sentongo and Andrea Bartoli

are invited and together with the elders sit around the fire to discuss the dispute.
It usually starts in the evening and may go on through the night until a solution
is found. In both cases, the resolve by leaders to find a solution, readiness of the
parties to talk, and commitment by all to stay in the process for as long as it takes
to find a solution makes it difficult for parties to revert to the same conflict once
a solution is reached.

Under the modern state this practice has been overtaken by the introduction
and institutionalisation of western-type legal systems and judicial processes.
Suffice to note however that, as part of the concessions to gain a federal status in
1900, the Buganda Kingdom allowed the colonial government to use most of its
Bitawuluzi (plural for kitawuluzi) structures as local courts and administrative
centres. Since independence, the same structures in the Buganda region have
been used by the state as local government offices. To date, some have been
handed over to the monarchy, although it continues to demand the return of the
remaining structures and that the state should pay rent for the time the facilities
were used without their consent.

The kinship group system and political conflicts

The social structure of the Baganda kinship group system produced political
structures of the kingdom. This highlights the fact that in Buganda it is culture
that keeps the ‘bundles’ together, and the above methods function to ensure
that Baganda culture remains intact. This is so despite differences in political
choices of group members in a modern state. Increase in conflicts especially over
land seems to have forced this approach to maintaining unity of the Baganda
as kinship groups expanded and their members increased in number (Kimala,
1995:32). Some 400 years ago, the Bataka from the original five kinship groups,
namely the Nyonyi, Ffumbe, Njaza, Lugave and Ngonge, opted to preserve
the common language, culture and ancestry of their ancestors. They agreed to
appoint a Saabataka (Supreme custodian of land) as their Kabaka, to adjudicate
over disputes and protect both the people and their land (Wrigley, 1996). Legend
has it that at Magonga in Busujju country on Nnono Hill, the Bataka ‘…defined
a form of governance for Buganda Kingdom, and the relationship between the

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kinship groups and the King was formally agreed upon. The agreement was not
written down, but it constituted an understanding between kinship groups that
has been followed ever since. In essence, it set down Buganda's Constitution’
(Buganda Kingdom, 2012). This marked the beginning of Bataka’s Lukiiko
(Council of Kinship Group Leaders), which remains the supreme legislative and
advisory body to the Saabataka of Buganda.

Saabataka’s responsibilities included the appointment of leaders, the levying

of taxes, judgement of cases, the declaration of war, and the control and
distribution of land (Cathrine, 2006). This continued until colonialists
introduced the Second Lukiiko composed of appointed officers who assumed
many of these responsibilities as ministers, heads of departments and elected
county chiefs in the Buganda Government. However, even with the emergence
of this very influential political structure led by a Katikkiro (Prime Minister),
known as Kabaka w’ebweru (the King outside the palace), the social structure
led by Bataka remains the supreme source of authority. However, two important
points must be noted. First, based on the original Bataka meeting as explained
above the Kabaka draws his authority from their asse and does not always make
the final decision especially on matters that affect culture in Buganda. Second,
for this reason the social structure of kinship groups supervises the political
structure of the monarchy, each with clear but complementary social and
political functions that influence how conflicts are managed to ensure that all
‘bundles’ remain together.

There are two traditional methods which stand out in dealing with political
conflicts in Buganda. The first is the rotation of the centralised authority of
kingship across kinship groups. Rotation mitigates conflicts over access to
power because no single kinship group can dominate kingship in Buganda.
Each kinship group has a chance to have a king from amongst its members.
Buganda is a patrilineal society where one takes on the father’s kinship group
and totem and is named accordingly at birth. However, only a king is allowed
to take on the mothers’ totem and kinship group. Because of this condition, he
can only marry from other families and groups since it is taboo for one to marry
within his own kinship group. So each time a succeeding king marries into a
different kinship group, the heir to the throne will come from that group. In

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Ashad Sentongo and Andrea Bartoli

that way kingship rotates depending on how different kings choose their wives.
This tradition has persisted for centuries until the present time. Therefore, ‘royal
family’ in Buganda refers to many people from different kinship groups with
blood ties to kingship, but all cannot claim any right to ascend to the throne
because kings of Buganda change depending on their mothers’ kinship groups.
For example, King Edward Mutesa II was of the Nte (Cow) kinship group and
married into the Nkima (Monkey) kinship group. His son, the current king, is
from the Nkima kinship group as was his mother. He married into the Musu
(Edible rat) kinship group, which automatically indicates that the next King will
be from the Musu kinship group. Kiwanuka (1993) observed that ‘the absence
of a royal kinship group, a permanent aristocracy and the equality of kinship
groups facilitated the building up of a system whereby a young man of humble
birth could enter the civil service at court and sometimes rise to a position of
considerable importance.’ This method has functioned to effectively maintain
a number of cultural and political processes within the centrally organised
monarchy and ensure the continuity of the kingship system. Between 1966-1993,
when kingdoms remained banned and Buganda was without a king, Abataka
tapped into the symbolic role of kingship to mobilise their members, especially
the youth, to preserve culture and history and thus keep the ‘bundles’ united.

The rotation of kingship in Buganda resembles the alternation of kingship

among the Dagomba ethnic group in Northern Ghana. Two brothers, Andani
and Abudu, from different mothers agreed to alternate power between their
families after the death of their father, Chief Yakubu Nantoo I in 1849. Andani
the eldest ruled first, then Abudu followed, and this was extended to their
descendants. As in Buganda, such informal rules managed to generate consensus
and underscored interdependence among members, thus mitigating conflict
that could have emerged over access to the throne. However, the 1884 Berlin
conference divided the Dagbon Kingdom. The east was designated as German
Togoland and the west as the British Gold Coast (Ghana). Yendi, the seat of the
royal chief called Ya-na, was located in Togo, yet half of the subjects were located
in the Gold Coast. Trouble started when Chief Naa Alhassan of the Abudu
family died in 1917. The next king was supposed to be from the Gold Coast,
but colonial laws barred him from crossing into Togoland to rule. Although

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the boundaries were later removed and the two regions reunited, the system
had already been disrupted, causing intra-ethnic wars and hostilities that have
continued until present time. The latest round of violence occurred on 17 March
2002, when King Ya-naa Yakubu Andani II and more than 40 others were killed
in renewed violence, allegedly by members of the Adubu family. In this case an
endogenous method functioned to preserve peace among the Dagomba until
efforts to establish a modern state interrupted the system.

The second traditional Bugandan method for dealing with political conflict
involved the decentralisation of authority through the distribution of roles and
responsibilities between kinship groups. Chiefs appointed to lower political
structures of the monarchy provide sufficient space for all members to participate
in decision-making. Easton (1990:34) has argued that the ‘functioning of
a state can only be derived from its relationship not to a class but the whole
society.’ After the Bataka reached a consensus to appoint King Kintu as the first
Sabataka, subsequent kings distributed responsibilities to kinship groups for
the kingdom to remain united and strong. In this way kinship group identities
were reinforced with role identities (Korostelina, 2007:21) as political and
organisational responsibilities to the kingdom. These have remained the same
ever since. There is no seniority between kinship groups to access positions of
power, local resources or to serve the king. Traditionally, each of the 52 kinship
groups has clear but complementary political and organisational roles which
underscore the interdependence between them. Failure by one group to fulfil its
role means the monarchy will not function effectively.

Under the Kisaakaate, kinship groups and family members were mentored
and acquired skills to fulfil these roles. For this reason there are no reported
disputes between kinship groups over positions and roles within the monarchy.
For example, the Omusu (Cane rat) kinship group is in charge of health and
sanitation, and the Emamba (Lungfish) kinship group is in charge of the Navy
as part of the king’s army. The roles of the Njaza (Reedbuck) kinship group
include hunting, transport, construction and customs officers on landing sites
around Lake Victoria. The Mpologoma (Lion) kinship group is also responsible
for construction, and entertaining the king by playing a special drum called
Mujaguzo. The Nte kinship group is responsible for the king’s iron works. Other

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kinship groups were assigned to be in charge of agriculture, farming, security,

and education.

Bates (1983:48) asserts that ‘ethnic groups are coalitions formed to extract
benefits from others or to defend possessions, and violence occurs when these
are threatened.’ To this end, the Baganda kinship group system also functions
to ensure that at all times there is sufficient unity and participation to promote
Buganda’s interests and defend the kingdom against threats. To achieve this
kinship groups employ the methods explained above to ensure that intra-group
conflicts are prevented or resolved, with the aim to achieve total reconciliation
between parties as a necessary condition to ensure that all ‘bundles’ remain
united against external enemies.

The political structure of the monarchy also functions to achieve this aim. From
top to bottom, the Abataka vest their political authority in the Kabaka. He then
appoints (i) the Katikkiro, Cabinet Ministers, and Chiefs at (ii) Ssaza (County),
(iii) Gombolola (Sub-county), (iv) Muluka (Parish), and (v) Kyalo (Village)
levels. All appointed officials act on behalf of the king and are subject to his
authority. From this level of organisation, Hastings (1997:156) observes that:

If there existed one nation-state in Nineteenth-Century Black Africa,

Buganda would have a good claim to be it. It had grown over centuries; it
had a strong sense of its own history, centralized government, an effective
territorial division in counties (Ssaza), and possessed, in its kinship
group organization, a horizontality of social consciousness to balance the
verticality of royal and bureaucratic rule.

Appointments to positions of leadership at all these levels depend largely on

the ability to resolve disputes and keep the ‘bundles’ together, in addition to
preserving the culture and the courage to defend the kingdom. As third parties
to any dispute, each leader also strives to resolve conflicts at the level they occur
to avoid any escalation that may require higher authorities becoming involved.
A stalemate produces disgrace to the chief and is discredited if his seniors or the
king became involved, especially in a local issue. Therefore, chiefs make sure to
keep good relationships and maintain the trust of the people they serve. This

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is not only as a sign of respect to the appointed authority but also for their
judgments in disputes.

Separation between social and political conflicts is more structured and evident
at the top than at the local level within the monarchy. Politically, failed cases
are handled at the Kyaalo, Muluka, Gombolola, Ssaza and through the highest
political office of the Katikkiro. Under the kinship group system, the king may
be the last person to speak on a number of issues, but is not always final. The
Batakas’ court, from which the king draws his authority as Sabataka, can reverse
a decision taken by the king or his prime minister. For example, it is reported6
that Buganda’s Prime Minister Mulwanyamuli Semogerere and his cabinet
accepted a proposal by the central government to establish a regional tier system
of government, instead of the 1900 federal system demanded by the monarchy.
However, the Batakas’ Lukiiko called upon their Bazukulu to reject the Bill
and the Kabaka communicated the decision to the President.7 The contentious
issues included appointment of the prime minister, control of land in Buganda
and powers of the office of the president to take over regional governments.

Challenges to the Baganda kinship group system in a modern state

Through more than 49 years of building a nation-state in Uganda, the kinship
system has struggled to remain relevant and to have its tenets practiced by
members to keep the ‘bundles’ together. However, more formal and well-
resourced structures and systems of the modern state have replaced or tended to
overshadow most traditional practices the Baganda use to mitigate and resolve
conflicts among members and between the group and the state. This is most
evident in the realm of political conflicts. It is much less in the realm of social
conflict where practices like Kwanjula figure strongly in preserving the culture
and identity of the Baganda.

6 Mr Kisaka Robinson, Buganda Kingdom Government - Department of Education, also in

the Department of Tourism, during an interview with one of the authors on 12 August 2011.
7 Kabaka Mutebi’s letter dated December 29, 2007 in response to President Museveni’s letter
on land Ref. PO/8 of 18 December 2007.

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Three aspects in the political history of Uganda help explain the diminishing
role of the kinship group system in dealing with political conflicts. First, all
political regimes have changed by military means, and the influence of the military
remains a major character of the modern state and governance in Uganda. The
military and dominant ethnic groups in government tend to emphasise state-
based processes to resolve conflicts without integrating traditional methods. For
example, Idi Amin appointed over 700 soldiers, mostly from northern Uganda,
as local governors in the public service to administer projects and programmes
around the country including at the village level. Such state officials paid little
attention to endogenous methods of resolving conflicts and ensured that systems
of government always prevailed to achieve state interests. The monarchy also
claims that each government sought to frustrate its entitlements and undermine
the status of Buganda. There has been little room for the monarchy and the state
to interact on policy and other aspects of governance where such methods could
be integrated more formally in structures of the modern state.

Second, each political regime acquired an ethnic character, where the ethnic
identity of a group had political consequences including differential treatment
(Gurr, 1968). Uganda has experienced three civil wars and four military
coup d’états. In all cases, elites of ethnic groups that claimed their members
were excluded from state power and access to national resources mobilised to
fight government. This is based on ‘the belief that having people from one’s
region in positions of power facilitates access to resources’ (Posen, 2005:2). In
Uganda, this situation is partly a consequence of ‘deadly ethnic distinctions’
(Volkan, 1997:14) that ‘were enforced by divide-and-rule policies of the colonial
government’ (Mamdani, 1996:18). Attempts by Buganda to make alliances with
such groups, like the Mukago between KY and UPC, have not yielded much
success in addressing Buganda’s interests and priorities. These, the monarchy
believes, will preserve the status, culture and identity of Buganda better in a
modern state.

Third, militarisation and ethnicity were reinforced by a ‘fusion of power’

(Mamdani, 1996:31), whereby during each regime all state powers centred
on the president, who also had ‘tribal loyalties that produced nepotism and
discrimination’ (Oloka-Onyango, 1997:22). In the case of Buganda, out of

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eight presidents since independence, three were from Buganda but all of them
combined ruled for less than three out of 49 years. Yet, they were all removed by
the military. Failure by Buganda to hold on to state power has made it difficult
for such traditional methods to be integrated into systems and structures of the
modern state. The monarchy claims that governments led by non-Bagandans
continue to marginalise Buganda by refusing to meet its demands. According
to Horowitz (1985), it is such putative ascription that accounts for the special
difficulties ethnic conflict poses for democratic politics, and makes compromise
so difficult in divided societies.

These factors suggest that the influence of the kinship group system to deal
with political conflicts diminished with the rise of a militarised but ethnically
divided modern state. The system was unable to deal with the demands of such
a state, thus its influence was reduced to preserving the culture and identity
of the Baganda. However, even with such a reduced role in the political affairs
of Buganda, the system still poses formidable challenges to the stability of the
state. Whenever threats against the culture, identity or interests of Buganda have
emerged in the region, elites from the monarchy or political groups exploited
the system to mobilise Baganda resistance especially to government actions.

The Mukago involving President Museveni is often referred to and narrated

by Baganda elites whenever hostilities between the monarchy and central
government escalate. It is viewed as a violation of a ‘symbolic and rational
traditional practice’ (LeBaron, 2003) by the Kabaka. Mamdani (1996), while
analysing Uganda’s political history, attributed the impasse in democratisation
to a persistent contest between civil and customary systems and elements of the
society, where this provides a good example. He argues that ‘de-ethnocisation’
of civil society and de-tribalisation of native communities would be the starting
point to break the impasse. From experiences in the Buganda region, however, it
remains unclear how de-tribalisation can be achieved without dismantling the
kinship group system.

Efforts towards democratisation, state stability and viability in Uganda, as with

many states in Africa, remain inattentive to traditional practices of dealing with
local conflicts and how they can contribute to improved governance. On the
other hand, traditional practices remain the lens through which a number of

35
Ashad Sentongo and Andrea Bartoli

local communities conceptualise and understand how local conflicts could

be resolved. The Baganda continue to argue that the best way to de-escalate
hostilities between the central government and the monarchy is for President
Museveni to honour the Mukago he made with the Kabaka in 1980-86 (The
Independent, 2010). Many elites also continue to exploit such claims to create
‘ethnic differentiation and mobilize members to gain political power’ (Rothchild,
1997:6). Yet they suppress these very traditional methods of dealing with conflict
when they succeed in assuming power.

Conclusion
States are in constant flux. Political representation and justice require a discursive
capacity that only an authentic conversation between traditional groups and the
modern structures can truly satisfy. Indeed, state and traditional systems can
work together cooperatively, complementing one another. However, this would
require a fundamental re-orientation towards mutual respect and understanding,
away from hostility and neglect. To pave the way to this re-orientation it might be
advisable to consider focusing on synergy, on what each system could contribute
to the constructive evolution of the other. Traditions and states are never
static. They change over time. Engaging respectfully they can strengthen one
another through legitimacy, effectiveness, and capacity to support all citizens in
resolving their conflicts. A successful example in this area could also contribute
tremendously to the evolution of political structures worldwide. Local traditions
must be able to interact with and contribute to the state formation process. A
shared focus on conflict resolution strategies and patterns might provide a very
fertile and promising ground for this to take place.

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40
Local conflict resolution in Rwanda:
The case of abunzi mediators

Martha Mutisi

Introduction
When it comes to endogenous mechanisms of conflict resolution in Rwanda, the
gacaca courts dominate extant literature and policy analyses. However, gacaca
courts concluded their hearing of genocide cases in 2010 and what is left now is
the finalisation of the reports of the gacaca process.1 As Rwanda continues with
its post-conflict reconstruction and quest for sustainable peace, the country has
to grapple with the reality that conflict is an inevitable and permanent feature
of social reality. Carrying the agenda of local ownership of conflict resolution,
the Rwandan government passed Organic Law No. 31/2006 which recognises the
role of abunzi 2 or local mediators in conflict resolution of disputes and crimes.3
The abunzi deal with civil and penal cases that occur in present-day Rwanda,
hence genocide cases are outside their jurisdiction. Like gacaca, the abunzi is
inspired by Rwandan traditional dispute resolution systems which encourage
local capacity in the resolution of conflicts.

1 Gacaca courts officially ended their genocide trials in 2010. However, in selected
communities, some gacaca hearings continue especially when new evidence and new
witnesses are identified. The government is developing mechanisms to handle outstanding
genocide cases and to adjudicate alleged miscarriages of justice by gacaca jurisdictions.
2 Literally translated abunzi means ‘those who reconcile’. The abunzi are local mediators
in Rwanda who are mandated by the state to use mediation as an approach to resolve
disputes with the aim to find a mutually acceptable solution to both parties to the conflict.
3 For details see Republic of Rwanda (2006) Organic Law No.31/2006 on the organisation,
competence and function of the Committee of Mediators.

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Martha Mutisi

Historically in Rwanda the community and particularly the family have played
a central role in resolving conflicts, hence institutions such as the inama
y’umuryango 4 and nyumba kumi.5 However, there is a great deal of state
involvement and control in the operation of abunzi as evidenced by the laws and
government committees that oversee abunzi operations. In a way, abunzi can
be seen as a hybrid between state-sponsored justice and traditional methods of
conflict resolution. The popularisation of the abunzi system by the Government
of Rwanda in the post-2000 era was based on the objective to decentralise justice,
making it affordable and accessible. This chapter analyses how the abunzi
mediators are part of the Rwandan local governance and conflict resolution
system. It further conceives of this institution as a restorative mechanism that
helps Rwandese people to address their conflicts without resorting to litigation
and other retributive approaches. The chapter also demonstrates a synergy
between the abunzi and the modern formal court system given that abunzi
have helped reduce the backlog of cases. Despite these benefits from the abunzi
system, this chapter is wary of excessive state oversight in the abunzi processes.
There is always the possibility of abunzi becoming just another state-mandated
mediation where local Rwandans participate not out of will or choice, but
out of need. The ultimate result could be a dramaturgical representation of
reconciliation and community building while deep seated reservations, divisions
and frustrations remain latent.

4 Inama y’umuryango is a term in the Kinyarwanda language which literally translates as

‘family meetings’ or ‘family gatherings’.
5 Nyumba kumi literally means ‘ten households’. In the political administrative realm,
nyumba kumi is another arm of governance which refers to non-salaried community
leaders who were mandated to represent a group of ten households. These individuals
were trusted and respected by their fellow community members. If the family cannot
resolve a dispute, in most cases the next step would be to consult nyumba kumi. Nyumba
kumi leaders have the mandate to impose fines on disputants who are found guilty of the
charges against them.

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 Local conflict resolution in Rwanda: The case of abunzi mediators

Rwanda: A contextual background

Located in East Africa, Rwanda has a population of some 10 million people and
comprises of three ethnic groups: the Hutu (84%), the Tutsi (15%) and the Twa
(1%) (Sheehan, 2009:2; CIA World Factbook, 2012). Formerly part of the Belgian
trusteeship territory of Ruanda-Urundi, Rwanda gained its independence
in July 1962. In terms of administration and governance, Rwanda follows
the decentralisation model of development which allows local governance
structures to implement development, conflict resolution and justice processes.
The country is divided into villages or umudugudu,6 cells, sectors, districts and
provinces. There are approximately 2 150 cells across the country which exist
within 416 sectors, 30 districts and five provinces (USAID, 2012).

Rwanda gained independence from the Belgians in 1962. Post-independence

Rwanda was governed by the Hutu majority and Gregoire Kayibanda, Rwanda’s
first democratically elected leader who replaced the Tutsi monarchy. Kayibanda
founded the Party for the Emancipation of Hutus (Parmehutu), which carried
an emancipatory agenda for the Hutus. During his reign from 1962-1975,
President Kayibanda introduced quotas for Tutsis, limiting their numbers in
education, employment and other opportunities. Subsequently, the Kayibanda
regime was characterised by the emergence of the Hutu hegemony, a situation
which reflected a reversal of roles. Previously, the Tutsi minority had long been
considered the aristocracy of Rwanda during the period of Belgian colonial rule.
However, Kayibanda’s tenure was interrupted when in 1975, General Juvenal
Habyarimana, who was then serving as an Chief of Staff in the national army,
seized power from Kayibanda and the Parmehutu party, ultimately placing
Kayibanda under house arrest (Peter and Kibalama, 2006). To relinquish
branding as a military rule, in 1975, Habiyarimana formed the Revolutionary
Movement for Development (MRND), and immediately decreed that it would
be the only legal political party in Rwanda. Rwanda essentially became a de
facto one-party state under Habiyarimana, who ruled from 1974-1993. Initially,
President Habiyarimana restrained himself and catered for both Hutus and

6 Umudugudu is the village level institution of governance and conflict resolution

in Rwanda.

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Martha Mutisi

Tutsis. However, eventually Habiyarimana’s regime began to mirror the same

policies adopted by President Kayibanda, as evidenced by the continuance
with quota systems which limited educational and employment opportunities
for Tutsis.

Growing dissent from the Tutsis who were disadvantaged by the Habiyarimana
regime led to burgeoning emigration of Tutsis into neighbouring Uganda. The
Tutsi refugees formed the bulk of the Rwanda Patriotic Front (RPF), which in
1990 invaded Rwanda from Uganda, thus beginning a three year long civil war
between RPF and the Government of Rwanda’s armed forces. Following the civil
war a number of ceasefire agreements were reached including the Arusha Accord
which was signed on 22 July 1992 (United Nations, 1999). The Arusha Accord
provided for the presence in Rwanda of a 50-member Neutral Military Observer
Group I (NMOG I) which was supported by the Organisation of African Unity
(OAU). In June 1993, the United Nations (UN) began its active involvement
in Rwanda. Based on a request from Rwanda and the UN, it deployed the
United Nations Observer Mission in Uganda-Rwanda (UNOMUR) along the
Rwanda-Uganda border to prevent the military use of the area by the RPF
(United Nations, 1999).

The Arusha Accord called for a democratically elected government, establishment

of an inclusive transitional government as well as for the repatriation of
refugees and the integration of the armed forces of the RPF and the Rwanda
government. The Arusha Accord lasted for a brief period until the assassination
of the Hutu leader, President Habyarimana, in a plane crash on 6 April 1994.
The assassination of President Habyarimana is often described as a trigger or
catalyst to the 1994 genocide. Immediately after the plane was shot down Hutu
extremists began an extraordinary orgy of killings of Tutsi and moderate Hutus,
including Prime Minister Uwilingimana (Peter and Kibalama, 2006).

The Rwanda genocide was sadly accompanied by a lack of significant and

concerted international reaction, especially from the UN. Although there was
already a United Nations presence in Rwanda prior to the massacres, namely the
United Nations Assistance Mission to Rwanda (UNAMIR), the UN evidently
could not stop the massacres. UNAMIR was established in October 1993 to

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 Local conflict resolution in Rwanda: The case of abunzi mediators

assist the parties implement the Arusha agreement, monitor its implementation
and support the transitional government (United Nations, 1999). However, the
massacres continued despite the UN presence largely because most of the UN
troops had been withdrawn from Rwanda following the shooting of ten Belgian
peacekeepers in April 1994 (Sheenan, 2009:4). Using Security Council Resolution
912 of 21 April 1994, the United Nations reduced UNAMIR’s strength from 2
548 to 270 personnel (United Nations, 1999). According to the "Report of an
independent inquiry into the acts of the United Nations during the genocide in
Rwanda" (United Nations, 1999), the UN had increased UNAMIR's strength to
up to 5 500 troops through a resolution passed on 17 May 1994, but it took six
months for the UN to get these troops from member states.

The same report also mentions that as a result the UN had to rely on a very weak
UNAMIR force and a multi-national humanitarian operation and concludes
that, ‘[t]he overriding failure in the response of the United Nations before and
during the genocide in Rwanda can be summarized as a lack of resources and
a lack of will to take on the commitment which would have been necessary to
prevent or to stop the genocide’ (United Nations, 1999:1). This view is similarly
expressed in a report by the African Union’s International Panel of Eminent
Personalities to Investigate the 1994 Genocide in Rwanda and Surrounding
Events, which is entitled ‘Rwanda: The Preventable Genocide’ (African Union,
2003). Subsequently the UN has often been blamed for the genocide which
resulted in the death of the almost 800 000 Rwandans. The genocide ended in
July 1994 with the RPF taking over, creating a government of national unity
and subsequently declaring commitment to the 1993 Arusha Agreement. The
genocide left many scars on Rwandan society, including displacement as many
Rwandans were forced to live as refugees in neighbouring countries and outside
the African continent (Forges, 1999).

Post-conflict reconstruction and peacebuilding in Rwanda

In the 18 years since the genocide in 1994, Rwanda can be considered as having
embarked on a largely grandiose post-conflict reconstruction and healing
process. In 2003, a new constitution was adopted, while development plans were

45
Martha Mutisi

further laid out. The efforts have paid off as Rwanda’s economy is said to be
growing7 and the rule of law has been restored while efforts towards healing
and reconciliation are ongoing. Rwanda is a much highlighted case study of
post-conflict reconstruction in the scholarly, policy and practice community
(Dunne, 2006; Clark and Kaufman, 2009). Efforts towards rebuilding peace in
Rwanda have been geared to addressing the deep-seated origins of the conflict,
reconciling communities and building trust among Rwandans. The gacaca
courts were set up to pave way for accountability by trying approximately
1.5 million cases of genocide (Article of the Organic Law, 2010). The gacaca
courts tried cases of crimes of genocide and crimes against humanity which were
committed from October 1990 to 31 December 1994. With the conclusion of the
gacaca court hearings in 2010, and the positive review of this mechanism, the
Rwandan government has had to institutionalise traditional methods of conflict
resolution in its legal system. The rationale provided by the government in
institutionalising traditional methods of conflict resolution was that this would
ensure that communities remain empowered to address their problems before
resorting to the formal court system. This has been made possible through the
promotion of various endogenous systems including the abunzi, which is a
mechanism for mediation.

Anatomy of the abunzi

Literally translated, abunzi means ‘those who reconcile’. In Rwanda, the
abunzi are not necessarily either the first or the last institution to attempt to
resolve disputes between parties. In some cases, parties go to the abunzi when
resolution at the family level through the inama y’umuryango or at the village
level, namely the umudugudu, has failed to adequately resolve the dispute.
However, of the institutions that resolve disputes locally, the abunzi is the only
one whose formal statutory mandate is dispute resolution through mediation.

7 However, according to the Human Development Report (2011), Rwanda still ranks lowly
on the Human Development Index compared to other countries (166 out of 187 countries)
with 76% of the population living below the poverty line. For details, see United Nations
Development Programme. (2011) Human Development Report 2011: Sustainability and
Equity: A Better Future for All. New York: United Nations Development Programme.

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 Local conflict resolution in Rwanda: The case of abunzi mediators

Mandated by Article 159 of the Constitution, and the Organic Law No. 31/2006
and further by Organic Law No. 02/2010/OL on the Jurisdiction, Functioning
and Competence of Abunzi Mediation Committees, the abunzi is defined as
‘an organ meant for providing a framework of obligatory mediation prior to
submission of a case before the first degree courts’. In essence, the provisions
of the Organic Law are such that the formal courts act as an appellate court
and will not consider a dispute unless the abunzi has first considered and ruled
on the dispute, especially if the disputed property value is below 3 million
Rwandese francs.

The abunzi mediators exist mainly at cell level although the mediation appellate
is found at sector level. Article 2 of the Organic Law (2010) spells out two types
of abunzi Mediation Committees, namely the Mediation Committee whose
jurisdiction is at the cell level and the abunzi Appeal Mediation Committee
whose jurisdiction is the sector level. Formally situated under the Ministry
of Justice (MINIJUST) with the Ministry of Local Government (MINALOC)
providing administrative oversight, the abunzi comprises 12 volunteers (plus
three substitutes), all of whom must be residents of the cell. The Organic Laws
(2006, 2008 and 2010) spell out that abunzi mediation committee members
must not hold any other government administrative position in the community
at the time they serve as mediators. The abunzi committee is headed by a
‘bureau’ comprising a president, vice-president and secretary. The president and
vice-president are elected by the abunzi committees and the secretary of the
abunzi is also the secretary of the cell.
In addition, the Rwandan constitution underscores that any institution of
governance, including the abunzi must comprise at least 30% women. Abunzi
mediation committee members, like their counterparts the inyangamugayo 8 in
the gacaca courts, are expected to be persons of integrity who are acknowledged
for their mediation skills. This expectation emerges from the laws governing
abunzi operations, but it was also revealed during interviews with abunzi
mediators and community members. The cell council elects the abunzi whose
members serve a two-year term which is renewable. The system of re-election

8 Inyangamugayo is the Kinyarwanda word for gacaca court judges.

47
Martha Mutisi

is designed to give all qualifying members of the community an opportunity

to serve on the abunzi as well as prevent complacence, bias and corruption.
When it comes to the process of conducting the actual mediation, three abunzi
mediators hear and resolve the dispute. At the beginning of the first session each
party is requested to choose one mediator from the twelve available at the cell
level. The third mediator is mutually chosen by the two selected abunzi and thus
the panel is established.

Before assuming their responsibilities, each abunzi mediator must take an oath
of office in front of the local population and the cell coordinator. This includes
swearing to ‘observe the constitution and other laws’ and to ‘consciously fulfil
my duties of representing the Rwandan people without any discrimination
whatsoever,’ and ‘promote respect for the freedoms and fundamental rights of
the human being and safeguard the interests of the Rwandan people’. In the
oath, the mediator acknowledges that for failure to honour the oath ‘may I face
the rigors of the law’ (Organic Law 02/20/2010/0l).9

The 2010 Organic Law mandates that the abunzi makes decisions consistent
with the law and also underscores the need for abunzi mediators to settle
disputes using conciliation and mediation as the mandated approaches. Chapter
4 of Organic Law (2010), Article 21, states that:
To settle the conflict submitted to them, Mediators shall seek first to
conciliate the two parties. In case of non-conciliation, they take decision
consciousness in all honesty and in accordance with the laws and place’s
customs, provided it is not contrary to the written law. In criminal matters,
Mediators shall not pronounce penalties provided by penal law.

9 Those being sworn in promise to ‘diligently fulfil the responsibilities entrusted to me;
remain loyal to the Republic of Rwanda, observe the Constitution and the other laws; work
for the consolidation of national unity; conscientiously fulfil my duties of representing the
Rwandan people without any discrimination whatsoever; never use the powers conferred
on me for personal ends; promote respect for the freedoms and fundamental rights of
the human being and safeguard the interests of the Rwandan people’ The oath taken
by abunzi mediators when they are being sworn in is the same oath that is taken by the
President, members of parliament and other public officials. This oath can be found in the
Constitution of Rwanda, Chapter 1, Article 61, Sections1-7.

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 Local conflict resolution in Rwanda: The case of abunzi mediators

In its Strategy and Budgeting Framework (January 2009- June 2012), the
Republic of Rwanda: Justice, Reconciliation, Law & Order Sector defends the
focus on mediation, asserting that it has the potential to resolve conflicts and
improve relationships, which the more formal court system is less suited to do.
Although abunzi mediation committees are local just like the gacaca courts, the
abunzi function according to codified laws and established procedures although
their decisions often remain inspired by custom. They encourage disputing
parties to reach a mutually satisfying agreement but if necessary they will issue
a binding decision.

According to the Rwanda Governance Advisory Council (RGAC), more than

30 000 abunzi mediators operate in Rwanda at the cell level. This statistic is
confirmed by the Ministry of Justice whose website10 mentions that Rwanda has
a total of 32 400 Abunzi Committee members across 2 150 cells, and within 30
districts. The abunzi have broad jurisdiction which ranges from civil disputes
to criminal cases. They mediate over civil disputes related to land and other
immovable assets whose value does not exceed three million Rwandan francs.
The abunzi also settle cases involving movable property and assets such as cattle,
whose value does not exceed one million Rwandan francs. Other cases they are
mandated to deal with include civil cases involving breach of contract where
the value of the matter at issue does not exceed one million Rwanda francs.
In addition, abunzi mediate in family cases, including paternity, matrimonial
inheritance and succession issues when the matter at issue does not exceed three
million Rwandan francs. Article 8 of the Organic Law (2010), which deals with
competence in civil cases, states that abunzi mediation committees can deal
with business and labour cases, including breaches of commercial and labour
contracts as well as insurance and commercial contractual obligations where the
maximum amount is 100 000 Rwandan francs.

Article 9 of the Organic Law (2010), which addresses competence of abunzi

mediation committees, indicated that the abunzi mediators also have jurisdiction
over some criminal cases, as long as the matter at issue is less than three million
Rwandan francs. Such cases include some land-related matters such as boundary

10 See http://www.minijust.gov.rw/moj/mediationcommittees.aspx

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Martha Mutisi

disputes, cases of damage to crops and theft, larceny and extortion committed
between members of the same family and killing or wounding without intent.

However, in terms of geographical jurisdiction, the abunzi can only mediate

disputes that involve persons from their sector. Currently, the Organic Law
(2010) prevents cross-sector mediation. Sessions of the abunzi mediation are
conducted onsite; in the area the dispute took place and where the affected
reside. Additionally, abunzi mediation sessions are conducted in public, which
means that other community members are free to participate. While community
participation is encouraged, the compulsory attendance of sessions is reserved
for disputants and witnesses, while community members are not compelled to
take part.

A theoretical perspective for comprehending the abunzi

peacebuilding theory
The abunzi mediators in Rwanda can best be understood in the context of
ongoing peacebuilding initiatives. Peacebuilding theory becomes a useful lens
with which to analyse the abunzi mandate and its contribution towards conflict
resolution. Peacebuilding theory can be traced back to the early 1990s when
the then United Nations Secretary-General, Boutros Boutros-Ghali, popularised
the concept of peacebuilding. Boutros-Ghali (1992) outlined the concept of
peacebuilding in his renowned publication, 'Agenda for Peace'. Lederach (2000)
conceives of peacebuilding as a transformative process which seeks to eliminate
violence by transforming relationships and supporting conditions for peace.
Overall, peacebuilding is therefore a comprehensive, multifaceted and intricate
task which requires working along political, economic, structural, cultural and
psychosocial processes to promote a culture of peace and remove conditions
that support violence.

Various authors conceptualise peacebuilding differently. Cousens and Kumar

(2001) perceive peacebuilding as a process in which political processes are
imperative and critical. Employing a neo-liberal peacebuilding agenda,
Cousens (2001) proposes the idea ‘opening up political space’ as one of the
major imperatives of peacebuilding. Greener (2011) contends that activities

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 Local conflict resolution in Rwanda: The case of abunzi mediators

of peacebuilding would be meaningless if the broader political context is not

considered. Similarly, Reychler (2006) emphasises that sustainable peacebuilding
is characterised by the capacity to transform conflicts constructively. This can be
done by different actors at various levels. Similarly, Barnes (2006) emphasises that
peacebuilding processes and initiatives must be embedded in local communities.
In the same vein, Lederach (1997) underscores that peacebuilding should have
space for diverse actors, from the state to civil society and ultimately to local
community members who are faced daily with the impact of conflict. Lederach
advocates grassroots peacebuilding instead of state-centric peacebuilding, hence
his conception of the peacebuilding pyramid model which categorises actors in
peacebuilding into top, middle and grassroots ranks.

Figure 1: Lederach’s Peacebuilding Pyramid

Types of Actors Approaches to
Building Peace

Level 1: Top Leadership

Military/political/religious Focus on high-level negotiations
leaders with high visibility Emphasizes cease-fire
Led by highly visible,
single mediator

Level 2: Middle-Range Leadership

Affected Population

Leaders respected in sectors Problem-solving workshops

Ethnic/religious leaders Training in conflict resolution
Academics/intellectuals Peace commissions
Humanitarian leaders (NGOs) Insider-partial teams

Level 3: Grassroots Leadership

Local Leaders Local peace commissions
Leaders of indigenous NGOs Grassroots training
Community developers Prejudice reduction
Local health officials Psychological work
Refugee camp leaders in postwar trauma

Derived fromDerived from John

John Paul Paul Lederach,
Lederach, BuildingBuilding
Peace:Peace: Sustainable
Sustainable Reconciliation inin
Reconciliation
Divided Societies Washington, D.C.: United States Institute of Peace Press, 1997, 39.
Divided Societies Washington, D.C.: United States Institute of Peace Press, 1997, 39.

51
Martha Mutisi

At the top level there are government institutions, political elites and the military
leaders who are not only powerful but also have the mandate to engage in
peacebuilding from their constituencies. The middle-level actors include non-
governmental organisations, other civil society actors and local leaders who are
capable of influencing both top leaders and grassroots actors. At the bottom
level of the pyramid are grassroots actors and members of local communities
who not only experience the day-to-day impact of conflict but are also best
positioned to resolve that conflict because they are aware of their environment
and the needs of the community. Lederach emphasises that it is usually the
grassroots actors who are effective in peacebuilding because of their intimate
interaction with conflict and disputing parties. Using this line of thinking,
one could conceive of the abunzi as grassroots actors in peacebuilding as they
actively play prominent roles in resolving conflicts at the local level. The attempt
by the Rwandese government to include grassroots actors in the transitional
justice equation reflects a leaning towards this peacebuilding pyramid espoused
by Lederach.

Restoration and reconciliation perspective

The government of Rwanda has been promoting local institutions of conflict
transformation as part of a broader agenda for reconciliation. Post-1994
institutions of justice such as gacaca and abunzi are a response to the 1994
genocide as the government solidifies its concerted strategies to restore peace
and promote reconciliation. Reconciliation has emerged as a strong narrative
for Rwandans from the government to civil society and ultimately to grassroots
communities. Given the country’s shattered past in the wake of the genocide
it comes as no surprise that any attempts towards state-building, institution
building and reconstruction is juxtaposed with the reconciliation agenda. The
government of Rwanda acknowledges the social, psychological and emotional
toll of the genocide on Rwandan society, including the destruction of social
bonds, hence the stated objectives of ‘bridging the rifts within society and
healing the wounds of those afflicted by genocide’ (Ndangiza, 2007:1).

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 Local conflict resolution in Rwanda: The case of abunzi mediators

In the case of Rwanda, decentralised legal forums and state mandate dispute
resolution rituals are considered as ‘sites for social healing’ due to their repetitive,
symbolic and stylized nature (Doughty, 2011). Comaroff and Comaroff (1999)
argue that such localised legal forums have the capacity to foster creative tension
and transformative practice thereby allowing for Rwanda to reshape its future
towards a more stable peace. For example, the gacaca and abunzi processes have
been conducted over a long period of time in communities, even prior to the
colonial era. As a result of their long-evolving nature, traditional methods of
conflict resolution in Rwanda have ended up shaping communicative practice
and influencing social interactions resulting in mending of broken relations,
establishment of new bonds, bridging of social divisions, and ultimately
restoring the decimated social fabric. This is made possible because through
abunzi mediation, for example, it is the community members who lead
such processes, determine the approach, negotiate outcomes, and ultimately
determine responses. As a result, such processes eventually pave the way
for reconciliation.

Against such a background, the Government of Rwanda established not

only the gacaca and abunzi as vehicles for restoration of relations but also
created other state institutions such as the National Unity and Reconciliation
Commission (NURC) in 1999 which was mandated to fully operationalise the
notion of reconciliation. Since its inception the NURC has organised meetings,
consultations, training programmes and studies on the themes of unity and
reconciliation in various communities. The creation of the NURC and its
subsequent widespread outreach processes in Rwanda are a clear demonstration
of the eminence attached to the theme of reconciliation by the Government
of Rwanda. The government also tries to prevent any repetition of the 1994
genocide, hence the slogan ‘never again’. In 2007, a national commission to fight
against genocide was established through Law No.09/2009, and article 179 of
the constitution commits to fight against what the government labelled the
‘genocide ideology’. In addition, schools in Rwanda have been instructed to
teach a curriculum that is in line with the narrative of unity and reconciliation.
It emphasises the notion of abanyarwanda, which essentially means that
Rwandans are one people who have a shared past as opposed to being Hutu,

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Martha Mutisi

Tutsi or Twa. The abanyarwanda concept facilitates a sense of an ‘imagined

community’ (Anderson, 1983) or a sense of ‘imagined belonging’ (Appandurai,
1989) and ‘imagined worlds’ (Appandurai, 1989). Essentially, abanyarwanda
aims to replace ethnicity and other potentially ‘divisive’ sub-state loyalties with
an undifferentiating concept of ‘Rwandan-ness’ (Purdeková, 2008).

Despite its stated objective of unifying Rwandans, the concept of abanyarwanda

has been given different labels by various scholars. Critics (Reyntjens, 2004;
Zorbas, 2004) have labelled abanyarwanda as an ‘abolitionist attempt that
attempts to delete identity’, abanyarwanda is also categorised as a form of
‘de-ethnicisation’ in the new nation-building project in Rwanda. Some observers
(Reyntjens, 2004; Zorbas, 2004; Purdeková 2008, Lemarchand, 2009; Thomson
and Nagry, 2009) have expressed numerous reservations about the concept and
practice of abanyarwanda. The present author adds that by hesitating to discuss
ethnicity Rwandan society is ultimately avoiding important candid dialogues
on ethnic differences, inequality and privileges. Despite these concerns, the
concept of abanyarwanda is still heavily advocated by the RPF government. The
narrative of reconciliation has become a daily narrative for Rwandan people. It
is exhibited everywhere including in sports, the arts and entertainment.

The decentralisation thesis

Decentralisation refers to the transfer of public authority, resources, and
personnel from the national level to sub-national jurisdictions (Ndengwa,
2002). Decentralisation is often discussed alongside devolution, which is the
transfer of political power from central government to local authorities and
communities (Kauzya, 2007). Decentralisation as a concept and practice is
informed by dependency theory as well as the centre-periphery thesis which
both argue that too much power in the centre is detrimental to the development
of the periphery. However, the nature and strategies of decentralisation are
often guided by the history and socio-political needs of a particular country.
In Rwanda, the decentralisation project was informed by the need to ‘provide
a structural arrangement for the government and people of Rwanda to fight
poverty at close-range and to enhance their reconciliation via empowerment

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 Local conflict resolution in Rwanda: The case of abunzi mediators

of local populations’ (Government of Rwanda 2000). Through the National

Decentralisation Policy, the government of Rwanda has engaged in efforts
that seek to bring development and devolution of responsibilities to local
communities by enabling their participation in critical processes. Various
policy documents developed by the Government of Rwanda epitomise the
decentralisation thesis, and these documents include the Decentralisation
Policy, Decentralisation Implementation Strategy of 2000, the Community
Development Policy of 2001 and the Decentralised Government Reform Policy
of 2005.

The abunzi can be labelled as ‘grassroots justice,' as they are part of the Rwandan
government’s repertoire of initiatives designed to make justice available to
citizens at every level. In 2003, the Constitution of Rwanda adopted a broader
nationwide project of decentralisation, hence the setting up of the MINALOC.
The objective of decentralisation was to allow citizens to ‘participate in the
planning and management of their development process’ (Ministry of Local
Government 2008). Decentralisation is a central theme in Rwanda’s broader
development goals and it is embraced by several government departments
including the Ministry of Local Government, the Ministry of Finance and the
Ministry of Justice (MINIJUST). Rwanda’s Vision 2020 strategic plan is entitled
‘Community Driven Development’ in pursuit of the decentralisation theme.
Furthermore, the government of Rwanda advances the decentralisation of
justice thesis based on the assumption that this will enhance good governance
in Rwanda through the emphasis on local autonomy, collective action, and
bottom-up decision making. In the quest for decentralisation and dispersion of
the government’s administrative functions to the local level, the government of
Rwanda created five provinces (North, East, West, South and Kigali Province).
These are further divided into 30 administrative districts which are sub-divided
into 416 sectors, which are further sub-divided into 2 150 cells (Peter and
Kibalama, 2006). These structures are meant to enhance service delivery as well
as to facilitate the involvement of communities in development and decision
making and are envisaged to ultimately improve governance.

The abunzi is not the only local institution that has been mandated by the
Rwandan government to decentralise justice and other public goods. Rather,

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Martha Mutisi

the abunzi system exists amidst a myriad of other decentralisation initiatives

of governance, community development and justice including the gacaca,
umudugudu (villages), ingandos (solidarity camps) as well as other fairly
modern systems of justice. Ingandos were set up by the Rwandan government
to teach participants the concept of ‘oneness’ and ultimately promote a sense
of community building. The government’s major initiative to decentralise
the justice system and to provide advice and support at the community level
involves the establishment of an Access to Justice Office (MAJ) in every district
throughout the country. MAJ is an institution that offers legal aid to the public
and raises awareness about the law. Although the local institution of abunzi can
be explained by the decentralisation thesis, it is inevitable to recognise that the
Rwandan government still wields significant power. While the government of
Rwanda has decentralised administrative and governance structures at the local
level, the reality is that the government has not fully devolved political power to
the local level, as activities of the abunzi are very much controlled by MINIJUST.
Critics posit that the decentralisation of the law is simply a means used by the
Rwandan government to extend its authoritarian control to grassroots locales,
hence the concept of ‘lawfare’ (Chakravarty, 2009; Thomson and Nagy, 2010).
Through decentralised structures the government is able to be vigilant to
everyday activities, looking for signs of dissent. Indeed, the government in Kigali
remains powerful and uses its local intelligence sources to retain control of the
processes, activities, mindsets and interactions of the ordinary citizenry.

Restoration of security and the rule of law

Abunzi can be analysed using the lens of the law. There is a growing focus on
the promotion of the rule of law in post-conflict societies as a prerequisite
for sustainable reconstruction and peacebuilding. This focus is based on the
assumption of an intricate nexus between conflict and the absence of the rule
of law. As examples from South Sudan, Sierra Leone and Liberia demonstrate,
many countries emerging from conflict focus on legal reform as an approach to
restoring order and promoting security. Reforming the legal system is perceived
as a strategy of addressing the litany of post-conflict challenges which include

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 Local conflict resolution in Rwanda: The case of abunzi mediators

burgeoning levels of crime and upsurge of cases of sexual violence, among

others. Increasingly, global institutions and development partners such as the
United Nations and the World Bank now underscore the need for the prevalence
of the rule of law for sustainable peace.

It is this view that could have facilitated Rwanda’s concerted efforts at legal
reform and the rule of law. The genocide in Rwanda left a message relating to
the importance of security and the rule of law in a country. The creation of the
gacaca, abunzi and other institutions of justice in post-genocide Rwanda can also
be interpreted as indications from the government that the law is an enabler and
promoter of security. The enhancement and institutionalisation of traditional
forms of justice is also an attempt by the Rwandan government to ensure that
disputes are settled at the local level thereby preventing their escalation into
national level conflicts. In an analysis of the DRC, Autesserre (2010) posits that
settlement of disputes at a local level ultimately supports the larger national
peace agenda. The perception of law as a form of social control dates back to the
period when scholars such as Foucault (1992) wrote about law as an instrument
to regulate citizens. Following the end of genocide, the Rwanda government
embraced many justice reform initiatives. The belief was that an accountable,
transparent and effective justice system would restore order and enhance
security in the country. Institutions such as gacaca and abunzi were used by the
Rwandan government to ‘go deep into the areas where crimes are committed’
(Karamera, 2008). The law has been effectively applied in Rwanda to shape
citizens’ behaviour in several realms including economic life, social interactions
as well as in the maintenance of the country’s infrastructure. Residents of Kigali
and other cities in Rwanda rigorously follow laws on the environment and
keeping the city clean hence the indelible measure of cleanliness in Rwanda.11
The law has been used in Rwanda to regularise public life and association. It is
a common feature to see the police and military wielding guns and standing in
the street as an overt reminder to the public of the perils of breaking the law.

11 Since new laws were established in Rwanda banning the use of plastic bags, preventing
ad-hoc vendors from the streets and removing street beggars, Kigali has been the pride
of African cities in terms of its orderliness and cleanliness. Indeed, the author’s trip to
Rwanda attests to the cleanliness of Kigali.

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Martha Mutisi

For example, the Rwanda Bar Association was created in 1997 with 30 members
initially, and now its membership runs into thousands (Kimenyi, 2010). Similarly,
an Institute for Legal Policy and Development was established in 2008. Since law
is central to Rwandese life, legal aid clinics have sprouted in the country with the
intention to assist citizens to understand the law and navigate through the legal
system. In essence, the post-genocide Rwandan government identified the law
as central for the reconstruction of the country. It is seen as enabling Rwandans
to deal with the past as well as shaping their mindsets and relationships towards
one another. From the author’s observations, the government envisages that
law will transform the genocide ideology into a situation where Rwandans will
interact with each other as one nation group instead of as members of disparate
ethnic groups.

Insight into abunzi justice: Opportunities for sustainable conflict

resolution and justice
Delivery of responsive justice

In the post-genocide era, the Government of Rwanda has sought to strengthen

unity and reconciliation among the citizenry by reforming the justice system and
institutionalising local institutions of conflict resolution such as gacaca courts
and abunzi. The abunzi are part of the institutional architecture being created to
ensure prompt, accessible, affordable and universal access to quality justice. The
abunzi system is in accordance with one of the goals of the MINIJUST, which
is to promote transparency, accountability, mediation, unity and reinforcing
reconciliation mechanisms as well as the maintenance of law and order. The
abunzi are lay mediators who live in the community where they work and
hence are proximate with the impact of the conflict. They are accessible to
the people and understand the conflict dynamics better. The abunzi are well
perceived by the Rwandan population. According to the 2010 Citizen Report
Cards (CRC) survey conducted by the RGAC, the abunzi mediation committees
are the most appreciated dispute resolution instruments in comparison with
other mechanisms. Citizens felt that the abunzi process allows for easy access
to justice. The survey by RGAC reveals that 81.6% of the respondents were

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 Local conflict resolution in Rwanda: The case of abunzi mediators

satisfied with the service delivery of the mediation committees in resolving their
disputes, compared to the 63.4% satisfaction rate with formal courts and 18.4%
satisfaction rate with the Access Justice Bureaus.

The abunzi is also a context-responsive institution which addresses the justice

needs of many Rwandan people. Land disputes are the most common cases that
are brought before the abunzi, which clearly reflects how important land is to
Rwandan people. Close to 90% of Rwandans depend on agriculture for their
livelihoods (USAID, 2008). Land disputes break out when different types of
land rights clash in relation to the land. In addition, land disputes in Rwanda
are compounded by the political changes that occurred after the 1994 genocide,
especially in the light of past Tutsi refugees coming back to Rwanda following
the RPF victory. Conflicts between returnees and old inhabitants of land are
common. The conflicts can be have an ethnic dimension since returnees are
usually Tutsis while old inhabitants are usually Hutus. However, the government
has instituted a policy that obligates land sharing with returnees, although this
does not necessarily prevent outbreaks of conflict over land. The Government
of Rwanda instituted the umudugudu policy on land, which essentially means
‘clustered settlement’. Umudugudu is a resettlement programme which has been
implemented since 1996 by the government to consolidate land and ultimately
address land conflicts (Government of Rwanda, 2010).

In addition, Mamdani (2001) posits that certain verdicts of gacaca courts

somewhat affected the distribution of land. The author observes that some of
the people who committed crimes against property during the genocide were
ordered by gacaca courts to pay reparations to victims of genocide and they
often did this by selling off pieces of their land. A report by the United States
Agency for International Development (2008) observed that the sale of land
frequently triggered conflicts among family members with claims to that land.
The same report notes however that, the overwhelming majority of cases of
land disputes that are presented to the abunzi involve women’s claims to land
(USAID, 2008). These are often complicated by intricate issues such as poverty,
patriarchy, polygamy, inheritance, divorce and unofficial marriages. In addition,
the introduction of new laws protecting women’s right to land seem to have
increased the number of land conflicts among families. As spelt out under the

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section on the competence of the abunzi, these mediators can also hear cases
of sexual violence. While crimes such as sexual violence and rape are supposed
to be reported to the police, mediators have been allowed to play a role in this
sensitive matter. The Organic Law of 2010 allows the abunzi to investigate such
cases when the victims are afraid to report their attackers. Nonetheless, the
abunzi are mandated to report the matter to the relevant authorities.

Local ownership and consensus building

The abunzi, like the gacaca courts, is designed to enable the restoration of
relationships and ultimately facilitate a sense of community. The abunzi
institution uses mediation as an approach to resolving conflict. Both the process
and outcome of the abunzi mediation are expected to reflect conciliation and
restoration rather than retribution. The Organic Law (2010) prevents abunzi
mediators from handing down punitive sentences. As a result of the emphasis
on non-adversarial techniques, this approach has been credited with promoting
reconciliation among disputants. Reports on the RCN Justice & Démocratie
website conclude that the majority of cases heard by the abunzi are resolved
through a compromise arrangement although the majority of disputants in
abunzi cases rarely go further into reconciliation.
In addition, the Organic Law (2010) requires that abunzi mediators conduct
information gathering before they hear the case in the actual mediation process.
Interviews with abunzi mediators revealed that the process of information
gathering is quite extensive as it involves investigations and consultations with
fellow community members about the dispute at hand. Based on the author’s
observations, since abunzi mediators can only resolve disputes within their
community the processes of information gathering and investigation are
made easier.

Reduction of costs

Like the gacaca courts, abunzi mediations have contributed to reducing the
congestion of the formal courts as most civil suits and crimes that fall under 3

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million Rwandan francs are resolved at the local level. First, some disputes are
too trivial for the formal courts’ attention, hence the abunzi are mandated to
deal with such disputes. Statistical reports which were accessed in July 2011 from
the Ministry of Justice website indicate that before the abunzi system, 80% of
civil cases pending before courts involved less than 1 million Rwandan francs.
However, following the establishment of the abunzi in 2006, approximately
70% of all civil cases now fall under the competence of the abunzi. This reality
has ultimately freed the formal courts to focus on bigger and more demanding
cases. The MINIJUST also conducted a survey in 2005 to ascertain abunzi
effectiveness. The results concluded that 73% of cases tried by abunzi were not
later referred to the formal court system. This could be reflective of the high
levels of satisfaction with the abunzi system or the lack of desire to appeal
because the Organic Law on the abunzi provides for appeals of outcomes of
the abunzi mediation. When a case that was once before the abunzi is brought
to the formal court as an appeal, the abunzi mediators are allowed to submit
their investigations, discussions and decision which would be used by the formal
appellate courts as official documents for the case.

Second, the litigation approach is often associated with protracted court battles.
These not only polarise relations between disputants also clog up the formal
court system due to their enduring nature. A 2008 USAID report on land and
conflict revealed that the abunzi mediators have played a prominent role in
resolving land disputes thereby relieving the over-burdened court system. An
AllAfrica.com report quotes a representative from the Ministry of Justice, Mary
Saba, on the advantages of using the abunzi approach to justice: ‘The mediation
committee is a strong pillar of conflict resolution which will deal with social
conflicts regarding land, gender violence and abuse of child rights in rural
communities’(AllAfrica.com, 24 January 2011).

In addition, the local mediation approach by the abunzi encourages positive-sum

thinking and ultimately the peaceful resolution of disputes. The quest for a
win-win solution often means that the cases are resolved in a shorter period
as there is limited room for the conflict to become intractable. Even in cases
where the mediator decisions are appealed by disputants, the formal courts
mostly follow the recommendations of the abunzi since they are considered

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Martha Mutisi

to be credible. Ultimately, reliance on local mediation reduces costs associated

with the formal justice system. Even though the abunzi mediation is framed
as beneficial and less costly, Nader (2008) cautions that alternative forms of
dispute resolution are actually marginalising to the poor, especially if they
are mandatory. The author argues that Alternative Dispute Resolution (ADR)
makes it difficult for poor rural people to access the formal courts as some
cases are deemed too unimportant to feature in the litigation system. However,
considering the pressure on the country’s modern courts it is perhaps not far-
fetched to conclude that the institution of abunzi mediation, although not
perfect, at least allows people to access justice timeously. If the modern courts
were operating alone without the assistance of these decentralised legal forums
it is highly likely that many Rwandans would have been completely marginalised
and disenfranchised from the formal justice system.

Abunzi: Challenges to justice

Limited mediation skills and legal knowledge

Although the abunzi is mandated by the Organic Law (2006), which was
amended in 2008 and 2010, there is procedural dissonance which is caused by
a lack of knowledge about the law and dispute resolution methods by abunzi
members. Knowledge of the substantive law, aptitude for mediation, skills in
evaluating evidence and respect of procedures are important attributes of any
mediator. However, many abunzi mediators are elected to their positions not
on the basis of these attributes but mainly because they are ‘persons of integrity’
and are willing to offer their services to the state and their community. Analysis
of the Organic Law governing the operation of the abunzi reveals that the legal
instruments do not go further to outline the modalities of mediation. In fact,
the current author concludes that personal integrity of the abunzi is emphasised
as a key attribute more than the knowledge of mediation. In reality, however,
the abunzi mediators need to be knowledgeable in other laws apart from the
Organic Law for effective dispute resolution. Such laws relevant to the abunzi
tasks include the land law, family law and inheritance law since these are the
most emergent cases for the abunzi. Nonetheless, observations during the

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author’s fieldwork revealed that, with few exceptions, these abunzi mediation
committees and individuals have limited access to copies of applicable laws. The
few that are available for some abunzi are untranslated technical documents
written in ‘legalese’ instead of the accessible, summarised and simplified versions.

Since most abunzi mediators lack the knowledge of applicable laws, the danger is
that the result of their mediation may be deemed unsatisfactory and illegitimate
in the eyes of disputants. The limited mediation skills significantly reduce the
effectiveness of their efforts. This has resulted in numerous cases of appeal that
have affected areas such as the Nyarugenge sector. While appeals can signify
the fairness of the process, too many such appeals can also be attributed to the
incompetence of the mediators as perceived by parties to the dispute. According
to a study conducted by RCN Justice & Démocratie (2010), 55% of the abunzi
decisions which were annulled by the primary courts were due to errors in
assessing facts, while 26% related to procedural errors and 19% were due to the
misapplication of substantive laws. In an effort to counter the challenge of a lack
of awareness of the law, the Rwandan government has initiated some kind of
capacity building programme for abunzi. The government, through its relevant
ministries, MINIJUST and MINALOC, organises various forms of training and
information exchanges for the abunzi. Online and fieldwork in Rwanda revealed
that, non-governmental organisations such as the RCN Justice & Démocratie
and Access to Justice Centre (AJC) offer mediation skills training as well as
training on substantive law to the abunzi. Organisations outside Rwanda such
as the University of Pepperdine's Straus Institute for Dispute Resolution and
Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics have been
training religious leaders in laws on domestic violence and inheritance.

Inadequate institutional support

The abunzi institution also suffers from the lack of adequate and effective
institutional support. Although some organisations offer the abunzi support
in terms of training and skills development, this support is often scarce and
inadequate. Training in mediation and substantive support is often voluntarily
conducted by organisations such as RCN Justice & Démocratie, AJC and NURC.

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Martha Mutisi

However, the ratio of attorney-abunzi mediator at AJC is 1:1 000 which is hardly
adequate or effective. Support from government is equally limited. A USAID
study of 2008 assessed the local resolution of land disputes in the Kabushinge and
Nyamugali cells and concluded that the abunzi do not receive support on basic
necessities such as cellular phone airtime and even transportation costs. The
same issue was revealed during the interviews with abunzi mediators conducted
by the author in Gacuriro in July 2011, wherein the mediators verified that they
use their own personal funds to travel to meetings and hearings. Unlike their
counterparts in the gacaca courts, the inyangamugayo, who received support
with costs such as transportation, stationery, cellular phone airtime and school
fees for their children, the abunzi mediator is essentially a volunteer. However,
there have been calls for the government to pay health insurance for the abunzi
members in the same manner these benefits were accorded to gacaca court
judges. Information on the Ministry of Justice website which was accessed in
March 2012 indicates that although the Ministry acknowledges that abunzi are
volunteers, there is need to incentivise their operations. The website mentions
that MINIJUST now pays for abunzi families’ health insurance which is worth
5 000 Rwandan francs (US$5) per year. Additionally, the website also reports
that MINIJUST also supplies one bicycle per cell to help abunzi access all parts
of their jurisdiction.

Legalised and state-mandated mediation

Although the abunzi existed in pre-colonial Rwanda, the abunzi institution in

its current form is a somewhat adulterated version in the sense that it is top-
down mediation. In pre-colonial Rwanda, abunzi were ordinary community
members who would be called upon to resolve the disputes among fellow
community members. They were given this role on the basis of their possession
of integrity. Abunzi, like its counterpart the gacaca, is what Hobsbawn and
Ranger (1983) would describe as a ‘reinvention of tradition for particular uses
in the present’. Thomson and Nagy (2010) posit that the general assumption
about community-led conflict resolution processes is that citizens are willing
participants when the reality is that such processes are controlled by the

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 Local conflict resolution in Rwanda: The case of abunzi mediators

government. In Rwanda for example, citizens might be compelled to participate

in abunzi due to their social situation and powerlessness as well as the lack of
credible alternatives for justice. Since the current form of abunzi mediation is
mandated by law, there is debate as to whether this institution is yet another form
of legalised mediation rather than a community-centred justice mechanism.
Doughty (2011) almost dismisses such processes, arguing that legal rituals and
decentralised legal forums have a tendency of creating politicised healing.

However, it must be noted that Rwanda is not the only country employing
legalised mediation processes. This practice is also common in other countries
including the United States of America. Legalised mediation is often classified
as a form of ADR. However, state-mandated mediation distorts the entire
manner in which proper mediation is supposed to be experienced by actors.
The Government of Rwanda has made it explicit in its laws on the abunzi that it
expects a mediation process from abunzi members. In other words, the culture
of mediation is communicated by the law. Crimes and disputes of a particular
nature are by law required to go to the abunzi for a hearing before the primary
courts can deliberate on the issue. The Government of Rwanda’s preoccupation
with the creation of decentralised legal forums where people can access justice
has resulted in the abunzi mediation filling a void in the justice arena. However,
the mandatory nature of such institutions makes the resultant reconciliation
questionable. Citizens are obligated to use the abunzi mediation approach while
they are reminded of the punishment that will follow from the formal courts
should the mediation efforts fail. The author observed that the abunzi system is
an apt demonstration of the tangled relationship between law, power and justice
and how these cumulatively impact on the lives of ordinary Rwandans brought
into contact with the state.

The abunzi mediation is promoted by the government as an avenue for

promoting community restoration and unity. However, Reyntjens (2004)
cautions that politicised notions of community healing and unity often have
dangers of negating dissent and promoting a culture of fear. Lemarchand (2009)
posits that the culture of fear emanates from subtle sanctions on what can and
cannot be said publicly. Reyntjens (2004) observes closure of public social space
thus diminishing civic liberties in contemporary Rwanda. In this environment

65
Martha Mutisi

it is difficult for Rwandans to express an opinion that differs with government

policy and logic because it could be interpreted as fuelling division (Reyntjens,
2004). Doughty (2011) further asserts that the government narrative on unity
does not invite contestation.

Given the foregoing, the abunzi are an illustrative demonstration of the dual
impact of state-initiated systems of restorative justice. Participants in the abunzi
mediation process are often explicitly told about the danger of non-compliance
with the abunzi process and outcomes, including payment of fines as well as
incarceration. When the state is involved in issuing incentives and disincentives
with regard to a person’s participation in local legal forums, the process in
essence becomes coercive. People end up participating in the mediation process
not because they are convinced it works or because they subscribe to its tenets.
Rather, they do so because they are obliged to. In addition, people participate
in the mediation process because of the entire narrative of the abunzi being
cultural and locally owned. The combination of state-backed threats and cultural
romanticism makes the abunzi an institution that is replete with compulsion,
hence the term ‘voluntary-yet-mandatory control’ (Doughty, 2011). Because of
these overt and covert threats in the abunzi mediation process, there is a danger
of people sacrificing their individual rights in order to uphold community rights
and collective interests. Gahamanyi (2003) is sceptical of cultural practices that
are often touted as being beneficial to the community. Instead he cautions
that these can be disempowering to individuals. In essence, people end up
participating in the abunzi process to be seen to be participating in community
activities and they accept the outcomes for the good of the community. Although
the threat of punishment by the abunzi system is less overt than in the gacaca
courts, the imposition of mediation undermines elements of choice, freedom
and individual will to decide on a course of action to take. In addition, the fact
that some people do not take cases which would have been dealt with by the
abunzi to the primary court might not reflect satisfaction with the mediation
outcome. Rather, this might be due to fatigue or lack of funds to confront
the clogged formal court system. It would be interesting to analyse the long-
term impact of the abunzi system on social relations and on ownership of
the outcomes of the abunzi process. On the one hand, the abunzi mediation

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 Local conflict resolution in Rwanda: The case of abunzi mediators

can be perceived as a system that guarantees access to justice which does not
necessarily have to be purely mediation. On the other hand, the same system can
be interpreted as a highly politicised institution of state-mandated local justice
which curtails citizens’ right to choose their vehicles of justice.

Elements of retribution

The abunzi system demonstrates a level of ambivalence when it comes to

pursuance of the restorative and retributive approaches to justice. This is
because the abunzi is a traditional system of conflict resolution which was
simply transplanted into the formal legal system and is still expected to exhibit
a conciliatory approach. However, the attempt to merge the adversarial and
conciliatory processes has not always been easy for the abunzi. Although the
Organic Law states that the abunzi are supposed to use restorative approaches
instead of a retributive approach, the reality is such that this institution can
also exhibit adversarial tendencies. In some instances of observing the abunzi
institution, there seem to be problems in distinguishing between the mediation
and adjudication processes both in comprehension and in action. Some members
of the Rwandan community refer to the abunzi as arbitrators. For example, an
RCN Justice & Démocratie report of 2007 referred to the abunzi as ‘arbitrators’
and the same case was found in many other online reports. Furthermore, in
instances where a disputant refuses to compromise and conciliate, the abunzi
switch to an adversarial approach. Where disputants are refusing to follow
positive-sum procedures, the law empowers the abunzi mediators to request the
police to arrest a person pending an investigation. In some complex cases abunzi
mediators end up applying the adversarial process. For example, in instances
where disputing parties cannot be reconciled the abunzi will adopt a decision
applying the laws of the state. This is a typical combination of sanctions and
incentives in conflict resolution. Although the use of ‘carrot and stick’ strategies
is common in adversarial approaches, in Rwanda this has been used by abunzi
to deter delays in handling cases.

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Martha Mutisi

Social legal forums and sustainable peace

Abunzi, like gacaca, is an elaborate process by communities trying to own the

justice and conflict resolution space. While the symbolism in these processes
is evident, what cannot be ascertained is how far they have gone in facilitating
social cohesion, group unity, reconciliation and healing. It is even more difficult
to ascertain these issues by directly asking Rwandans at the grassroots level and
in civil society because of the limited social and political space in post-genocide
Rwanda. The level of political freedom in Rwanda is quite low. The country has
been consistently ranked as ‘not free’ by the think tank, Freedom House every
year since its annual survey was launched in 2002 (Freedom House, 2011).

Given this reality, Zorbas (2010) asserts that certain ‘silences’ are being imposed
on the Rwandan population when it comes to the reconciliation and unity
project. Such ‘silences’, Zorbas argues, are evidenced by the lack of debate on
Rwanda’s conflicted ‘histories’ especially on accountability for past massacres.
The government has extensive control on what is said within Rwanda. Zorbas
(2010) adds that the fear of being labelled a ‘divisionist’ may prevent people
from sharing their real thoughts about their experiences of cohesion and inter-
ethnic interaction. However, what can be directly observed is how people
religiously participate in these forums as called for by the government. This is
akin to a situation labelled ‘dramaturgical representation’ by sociologist Erving
Goffman (1959) in his seminal work, 'The presentation of self in everyday life'.
It is arguable that their participation is out of fear of the repercussions of non-
participation. The image of ordinary Rwandans participating in abunzi and
gacaca processes may portray too much tranquillity. This begs the question
of how authentic such unison and harmony is. These concerns have led some
scholars to label the current situation in Rwanda as ‘pretending peace’ (Buckley-
Zistel, 2006). Buckley-Zistel’s conclusion is that there is still ethnic antagonism
among Hutus and Tutsis, but that the government does not allow its expression
because any such exhibition of differences would be labelled ‘genocide ideology’.

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 Local conflict resolution in Rwanda: The case of abunzi mediators

Abunzi and international legal standards

Although the abunzi mediation is guided by the law and the selection of
mediators by disputants is transparent and the process is regarded largely as
fair and as important in filling the justice gap, concerns remain. These relate
especially to its compliance with international norms and standards. However,
even if there is dissatisfaction with the process, outsiders like human rights
defenders and civil society organisations have not been afforded an opportunity
to critique the process mostly because of reluctance to criticise state processes.
Additionally, the cultural narrative and mysticism surrounding processes
such as abunzi and gacaca compels people to utilise this institution because
people are culturally responsive beings. Although abunzi is a state-backed legal
initiative the nomenclature of traditional, cultural, local and Rwandese often
accompanies descriptions of this process, hence their protection from lashing by
observers. The culturalisation of local dispute resolution processes can be seen
as a strategic move by the Rwandan government to protect the process from
being criticised for not meeting international legal and human rights standards
such as the right to have legal representation. However, this is not to dismiss the
notion of unique ‘Rwandan-ness’ in these processes because there is nowhere
else in the world that the abunzi exists in its nature, form and dynamic.

Conclusion
The evidence from the field research and document analysis supports the
conclusion that the abunzi have filled a void left by the formal court system by
ensuring that local people have access to prompt and universal justice. Like their
counterparts, the gacaca courts, abunzi mediation committees have brought
justice to the grassroots level and enabled community members to participate
in the dispensation of justice both symbolically and practically. Although
abunzi mediation functions and jurisdiction are spelt out by law, the institution,
process and rituals associated with abunzi are uniquely Rwandan and existed
long before colonialism. Additionally, abunzi processes embrace the notion of
restorative justice as they emphasise mediation and conciliation as methods of
resolving the dispute in question. This makes abunzi mediation a huge departure

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Martha Mutisi

from competitive and punitive approaches common in formal courts. However,

despite their restorative dimension, abunzi processes are not free from fault.
Abunzi mediation committees can resort to punitive tactics in their operation.
For example, the failure of disputants to cooperate with the abunzi mediators
can be followed by adversarial processes and applications of the punitive laws of
the land. In its current form, the abunzi mediation process in Rwanda risks being
one of those state-mandated programmes, addressing disputes at the superficial
‘make-believe’ level without effectively restoring broken relationships and trust.
The mixture of the pseudo-adversarial approach and the conciliatory approach,
coupled with the combination of culture and western justice are some of the
inherent contradictions within the abunzi. These contradictions not only affect
how abunzi mediation is perceived by parties and observers, but also impacts on
the outcomes of such approaches to dispute resolution.

Without painting a pessimistic picture of the contemporary traditional justice

forums in Rwanda, it is important to acknowledge the potential of the abunzi
system if it is delivered well. Despite being a state-backed mediation process,
the abunzi system has become embedded in Rwandan daily life and character.
This approach to mediation and local justice has the capacity to promote
social rebuilding, bonding and negotiation of communities in contemporary
Rwanda – a nation that is focusing on addressing the trauma of the 1994
genocide. Ultimately, the synergy between the abunzi mediation committees
and the formal system beckons the possibilities that lie ahead when traditional
institutions of conflict resolution are institutionalised and acknowledged by
law, yet de-politicised and left to operate independently. Given the foregoing,
Rwanda could well be cited as a sui generis case study reflecting the hybridisation
of state and traditional approaches to conflict resolution, in the context of a
post-conflict society.

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Traditional authority and modern
hegemony: Peacemaking in the Afar
region of Ethiopia

Kwesi Sansculotte-Greenidge and Demessie Fantaye 1

Introduction
The Afar Regional State in Ethiopia is currently undergoing a slow, but
nonetheless radical transformation. Although it remains a somewhat peripheral
region of the Ethiopian state, the Afar and their leadership are being incorporated
into the Ethiopian state. This incorporation has brought about changes not only
for the Afar but also in the Ethiopian state structures as they brush up against
Afar institutions. As power structures are remoulded and reinterpreted to fit
within the political geography of the Afar Regional State, a ‘creolisation’ of power
has occurred. That is, state power has been localised and altered to fit the local
power paradigm.

Under the Ethiopian Constitution of 1991 and the Constitution of the

Afar National Regional State (ANRS), the role, functions and legal status of
traditional institutions are vague to say the least. The Ethiopian Constitution
recognises traditional law but only under Article 34, Sub Article 5 where it allows
citizens to resort to religious or customary laws in cases of personal and marital
disputes. The constitution of the ANRS in Article 33, Sub Article 5, using almost
identical language, allows individuals to resort to religious or customary law.
Under Article 63, the ANRS constitution also allows for the establishment of

1 The authors would like to thank Mohammed Adem, Director of the Conflict Causation
and Resolution Study Unit at the Regional Peace and Security Bureau of the Afar Region,
without whose assistance, patience and knowledge of Afar customary law and traditional
authority this work would not have been possible.

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Kwesi Sansculotte-Greenidge and Demessie Fantaye

councils of elders to be associated with each tier of the regional administration.

Additionally, the ANRS constitution under Article 65 formally recognises
religious and customary courts which were in existence and functioning prior
to the formal issuance of the constitution. While the vague legal standing of
these institutions might give rise to the impression that their existence and legal
basis is precarious, this is not actually borne out by the realities at the local level.
Thus, traditional conflict resolution mechanisms in Ethiopia enjoy a vitality and
relevance that makes them indispensable in some regions.

Post-conflict Ethiopia: A background

Ethiopia as a unitary state has had a long and at times tumultuous history. The
state has oscillated between periods of firm central control from the capital
Addis Ababa to periods of extremely weak central authority and a high degree
of internal autonomy. In 1974, Ethiopia’s students and military rose up and
overthrew Haile Selassie, the last in a long line of Emperors. The lack of political
parties and independent institutions (and/or of political elites) meant that the
anti-monarchy revolution was usurped by the only functioning institution in
the Empire, namely the military. The military junta known as the Derg2 which
overthrew the Emperor was an exclusionary regime that allowed almost no
competition politically. Thus, the old patronage networks were destroyed and
in a weak state with little administrative capacity. This meant that the military’s
only option was to control the state by repression. Repression alone, however,
was not enough to stop all opposition. As a result large-scale military action was
taken against regionally based insurgents in Eritrea, Tigray, Ogaden, Sidamo,
Bale and Wello provinces, who were seeking either autonomy or independence.
As it became more apparent that the military was unable to fulfil many of its
promises, the masses became less and less tolerant of its repressive rule.

In 1991, the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a

coalition of various ethnically-based rebel groups headed by the Tigray Peoples
Liberation Front (TPLF), entered Addis Ababa. Like many quasi-Marxist

2 Amharic for ‘Council’.

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 Traditional authority and modern hegemony: Peacemaking in the Afar region of Ethiopia

movements of the time, the TPLF sought to remould the nation it had inherited.
A key part of this transformation was dealing with the so-called ethnic question
(Ottaway, 1999:66). More specifically, the issue was how to construct a multi-
ethnic state that ensured the rights of all ethno-linguistic groups and reduced
the influence of the Amhara – the traditionally dominant group.

In keeping with its socialist slant, the TPLF’s solution to the ethnic question
borrowed heavily from Lenin’s approach to ‘the problem of the nationalities’
(Krenidler, 1977). Thus, like the Soviet Union, each Ethiopian nationality was
allowed to reaffirm its right of self-determination to the point of secession. Soon
after taking power a conference was held which resulted in the division of the
country into nine ethnic regions and two autonomous cities with substantial
administrative and fiscal powers. Four of these new regions were multi-ethnic
and five had only one main ethnicity, while Addis Ababa and Dire Dawa both
formed multi-ethnic chartered cities.3

Today the Federal Democratic state of Ethiopia operates under a four tiered
system of government: at the top is the federal government, under which
lies the regional government, the zonal administration and lastly the woreda
administrations. Thus the state is divided into some nine regions, and now
has three chartered cities (with the addition of Awassa in 2002), 66 zones, and
550 woredas.4

3 The Amhara, Afar, Oromiya, Somali and Tigray regions are home to not only the titular
groups but also to small regionally concentrated minorities like the Agau in Amhara,
the Saho and Kunama in Tigray, and the Argobba in Afar. The regions of Beni Shangul-
Gumuz, SNNPR, Gambella, Harar are multi-ethnic states with no dominant group.
4 Interview with TNRS Government Official Mekkele: 5 August 2002.

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Kwesi Sansculotte-Greenidge and Demessie Fantaye

Administrative boundaries of Ethiopia

Tigray

Afar
Benishangul- Amhara
Gumuz

Addis Harari
Ababa
Gambella
Oromia Somali

SNNPR

Source: ACCORD, adapted from <http://abagond.files.wordpress.com/2009/05/

regional_map_fdre.gif?w=500&h=386> [Accessed 1 October 2011].

All tiers of the post-1991 government have essentially the same structure,
namely a legislative body, a court and an executive. The federal legislative branch
consists of two bodies: the House of the Federation and the House of Peoples’
Representatives. Members of the latter are directly elected while the members of
the former are either nominated by the governing bodies of the various regions
or directly elected by the inhabitants of the different regional states. The federal
executive consists of a ceremonial President and a Prime Minister who is the head
of the Council of Ministers. It is this council that carries out the main functions
of the central government such as defence, fiscal policy, and foreign relations.
Along with the above tasks it is the Council of Ministers that formulates national
policy to be implemented by lower levels of government. The Federal Supreme

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 Traditional authority and modern hegemony: Peacemaking in the Afar region of Ethiopia

Court has the highest judicial power on all federal matters and acts as a final
appeal court for regional cases.

Each regional state has a Regional Council which is elected through universal
suffrage. This council creates region-specific legislation and approves the
regional budget and development strategy. Members of the Regional Council
appoint the Executive Committee which oversees the day-to-day administration
of the region. The Regional Council also appoints a President to fulfil the
executive functions, as well as appointing the bureau heads, the regional
equivalents of ministers. Although the number and the responsibilities of
bureaus may vary from region to region, all regions generally have bureaus of
agriculture, education, finance and planning, health and roads. All regions also
have their own civil service organs but these are aligned with the federal civil
service. This is essentially the structure of the Ethiopian state, of which the Afar
National Regional State is a constituent part. However, in the Afar region as in
other peripheral areas of the state, central government structures compete with,
co-opt and are co-opted by older less formal structures.

The Afar
Chifra

The ANRS region is one of the ethnic units of the Federal Democratic Republic
of Ethiopia. The ANRS is located in the north eastern corner of Ethiopia, sharing
international boundaries with Djibouti and Eritrea and regional boundaries with
Tigray, Amhara, Oromiya and the Somali regional states. The ANRS comprises
five zones and thirty woredas and a number of kebeles. According to the 2007
census, the population of the region is estimated to be 1 390 273 in total (FDRE
CSA, 2010:7).The woreda of Chifra is found in Zone 1, the most populous zone
of the ANRS. Chifra itself has a population of 91 080 which makes it the most
populous of the ANRS (FDRE CSA, 2010:7). Chifra is divided into 18 rural
kebeles and one urban kebele.

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Kwesi Sansculotte-Greenidge and Demessie Fantaye

Zones and woredas of the Afar National Regional State

Source: ACCORD, adapted from <http://idp-uk.org/Resources/Maps/Administrative%20

Regions/Afar-Region2.gif> [Accessed 1 October 2011].

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 Traditional authority and modern hegemony: Peacemaking in the Afar region of Ethiopia

The Afar, who refer to themselves as Cafara Umata (the Afar nation), are a
Cushitic-speaking people closely related to the Saho/Irob, and more distantly
to the Somali and Oromo. The vast majority are pastoralists, keeping herds of
sheep, goats and camels. The imposition of colonial borders has left the Afar
people fragmented between the states of Ethiopia, Eritrea and Djibouti.

Areas inhabited by the Afar

E R I T R E A
Red Sea

Tigray
Afar Y E M E N

Afar Obock Gu lf of Aden

Afar
DJI BO UTI
Amhara Arta
Dikhil

E T H I O P I A

Dire Dawa S O M A L I A

Addis Ababa

Somali
Source: ACCORD, adapted from <http://llmap.org/languages/aar.png>
[Accessed 1 September 2011].

Today the Afar have four surviving indigenous polities that compete with post-
colonial states for the allegiance of the Afar people. These are:

• The Tajurah Sultanate centred in Djibouti

• The Rahayto Sultanate along the border of Ethiopia and Djibouti
S O M A L I A

K E N Y A Indian
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Kwesi Sansculotte-Greenidge and Demessie Fantaye

• The Aussa Sultanate centred at Assaita

• The Grifo Sultanate centred at Bilu along the border of Ethiopia and Eritrea

Like the Somali and Oromo, the basic unit of the Afar is the clan. The largest
clans in Chifra woreda are the Arapta and Doda. Afar trace the ancestry of clans
and sub-clans to individual ancestors. The ancestor of the Arapta is held to
be Arapta Ibrahim Bini Moday, who is also the ancestor of the Arapta, Kara,
Harbesa, Geharto clans and sub-clans. The Doda are descendants of Hussein
Gura, who is also the patriarch of the Hamed Sera, Ilades, Harbesa Sera, Gesera
Sera clans and sub-clans (Gamaluddin and Hashim, 2007:651-652). The Arapta
form a plurality in Chifra and as a result dominate the woreda, both politically
and administratively. Both clans are largely found towards the southern and
south eastern region of the ANRS.

The seat of the woreda administration and the capital of the woreda is Chifra
town, with a population of 91 320 people according to the 2007 CSA figures
(FDRE, 1994:8). In common with most towns in the ANRS, the majority of
Chifra’s inhabitants are not Afar, but rather Muslim Amhara.5 These urban
dwellers mainly come from the neighbouring woredas of the Amhara Regional
State, namely Habru, Werebabo and Bati.6 Additionally, Chifra is also home to a
smaller number of Tigrayans. Relations between the Afar and the other groups
are cordial and friendly, with the few business enterprises in the town (a few
restaurants and rooms for rent) run either by the Amhara and/or Tigrayans.
There are several cases of intermarriage between the Afar and the Muslim
Amhara inhabitants of the town.

The Afar and Ethiopia

The imperial era
During the imperial era, the lowland Afar region, while enjoying close proximity
and intensive socio-economic and political interactions with the neighbouring

5 Most Amhara are however Christians.

6 The former lie across the border in the South Wello Zone of the Amhara Region, while the
latter is located in the Oromiyya special Zone of the same region.

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Ethiopian state and communities, was never an integral component of the

Ethiopian entity. Afar Sultanates, clan and sub-clan chiefs at different points in
time intermittently engaged in conflict with or acknowledged the suzerainty of
the Abyssinian Emperors.7 However, the trade routes through the Afar region
grew in importance as the centre of gravity of the Ethiopian state shifted south
from Axum in Tigray to Addis Ababa in the Shewa region.

Ethiopia's imperial provinces

Source: ACCORD, adapted from <http://www.geographicguide.net/africa/images/

ethiopia-map.gif> [Accessed 10 September 2011].

7 A useful source on the history of the Afar from an Afar perspective is the Amharic text,
‘Ye Afar/Danakil tarik mereja arki minch/almanhal l’ authored by Gamaluddin Ibrahim
Khalil A-Shami and Hashim Gamaluddin Ibrahim Al-Shami (2007). It also contains the
most comprehensive breakdown of the clan and sub-clan lineage system of the Afar in a
written text.

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Kwesi Sansculotte-Greenidge and Demessie Fantaye

The Afar region was home to a succession of states that proved to be more
than competent competitors with the Ethiopian Empire. These included the
Sultanate of Ifat based in Zeila from the late 13th to the early 15th century, Adal
(early 15th to mid-16th century) and finally the Sultanate of Aussa founded in
the late 16th century after a split in the ruling elite of the Adal Sultanate based
in Harar (Trimingham, 1952:260-265). The final decades of the 19th century CE
saw the Afar region becoming a key area of competition between the Turko-
Egyptian and European colonial powers on the one hand, and a reinvigorated
Ethiopian Empire on the other. During this period, the Afar-inhabited Danakil
section of the Eritrean coast came under Italian rule, while the Gulf of Tadjoura
came under French control. Emperor Yohannes IV of Ethiopia also began
enforcing tribute payments and acknowledgement of Ethiopia suzerainty from
Afar lineages and sultanates bordering the Ethiopian provinces of Tigray and
Wello (Gamaluddin and Hashim, 2007:416-419).

It should be stated that Ethiopian control of the Afar regions was weak at
the best of times and nonexistent at others. During much of the imperial era
Ethiopian rule consisted mainly of intermittent raids by the Emperor or feudal
lords from the highland provinces to exact tribute or more specifically to loot
Afar communities. This state of affairs continued until the Italian invasion of
Ethiopia in 1935. The aftermath of liberation from Italian occupation in 1941
led to a transformation in the relations between the Afar and the Ethiopian state.
Upon his return from exile, the Emperor set about centralising the Ethiopian
state. In 1944, there was an armed expedition by the imperial government that
brought down the previous Sultan, Muhammad Yago of Aussa, who had proved
obdurate in acknowledging the authority of the central government and had
openly sided with the Italian regime. Thus Ali-Mirah Hanfere, from another
faction of the Aydahiso ruling lineage, was elevated to the position of Sultan
(Trimingham, 1952:170-173).

This coup was by far the most profound intervention that the Ethiopian state
attempted in the region. By and large, central control and authority over the Afar
people remained loose and the imperial regime had to resign itself to governing
the area through intermediaries. Thus Ali-Mirah, who was recognised as the
overarching imperial appointee over the Afar clans and sub-clans especially in

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 Traditional authority and modern hegemony: Peacemaking in the Afar region of Ethiopia

the south, became subordinate to the Sultan. Another important development

was the federation of Ethiopia and Eritrea in 1952. This along with the later
Ethiopian-Eritrean union in 1962 meant that the vast majority of Afar were
now under Ethiopian rule. They were divided between the provinces of Eritrea,
Tigray, Wello, Shewa and Hararghe.

In the 1960s, Somali irredentism coupled with the escalation of the war in Eritrea
made control and stability in the Afar region strategically more critical for Addis
Ababa. The growing economic importance of cotton plantations in the Afar-
inhabited Awash valley, and expanding investment by the Ethiopian government
and foreign capital in these plantations, further underlined the importance of
the Afar region in economic terms. It was during this period that the imperial
regime institutionalised the practice of conferring titles and stipends on clan
and sub-clan chiefs in the Afar region.

The Afar region during the civil war period, 1975-1991

The pre-eminence of southern clans, with a long history of contact with the
Ethiopian state in the structures of the Sultanate, meant that unlike other
peripheral groups like the Somali and the Oromo, the Afar were one of the last
groups to openly challenge the Ethiopian state (Gamaledin, 1993:45). Large areas
of the Awash Basin were expropriated for cotton plantations by the Ethiopian
state, but the Sultan and his family benefited from some of these schemes as
pseudo-landlords, thus criticism was muted (Ali, 1998:110).

The 1974 Wello famine and the subsequent army-led coup had an immense
impact on the Afar people and region. The 1974 revolution led to the rise to
power of the Derg. In the aftermath of the revolution, the decree nationalising
all rural lands directly affected the economic and commercial interests of the
Sultan and led to resistance. The nationalisation of communal lands proved to
be decisive and the Afar Liberation Front (ALF) was formed by Sultan Ali-Mirah
in 1976. The ALF initiated a low intensity guerrilla war in the region which posed
a threat to traffic along the Addis Ababa-Djibouti railway line and road traffic
leading to Djibouti, but had a limited political impact beyond this.

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An alternative vehicle for the mobilisation of opposition was established just

before the collapse of the imperial regime, when a group of educated leftist Afar
studying overseas set up the Afar National Liberation Movement (ANLM). The
ANLM had close links to the Eritrean rebels of the Eritrean People’s Liberation
Front (EPLF), who were fighting for the independence of Eritrea. In spite of
these early links, the ANLM later formed an alliance with the Derg, based on
promises of autonomy to a region that would incorporate all the Afar people.
The alliance between the ANLM and the Derg led to the formation of an Afar
militia termed the Ugugumo, which functioned as an important auxiliary of the
Derg in its war with the EPLF in Eritrea and the TPLF in Tigray. By 1980, these
two had emerged as the strongest and most viable opposition to the junta.

It was the escalation of the war into the southern Raya, Azebo and Wajerat areas
of southern Tigray that led to the initial contacts between the EPRDF and the
Afar (Young, 1997:147-149). The TPLF formed a tactical alliance with the ALF
and even mounted joint military operations with the ALF against the armed
forces of the Derg (Young, 1997:150). The strategic decision by the TPLF not to
launch offensive attacks against the Ugugumo, even when the militia continued
to harass and attack TPLF controlled areas and units, went a long way to forging
bonds between the Afar and the TPLF. These measures allowed the TPLF to
generate a level of support and tolerance from the Afar in Tigray.

Due to the multiple conflicts it was engaged in throughout the country, the
Derg was unable to substantially transform the relationship between the central
state and the Afar. The first real attempt to alter this relationship took place
in 1987 with the formal proclamation of the formation of the PDRE (People’s
Democratic Republic of Ethiopia) and the promulgation of a new constitution.
It led to changes in the structure of power in the country with the Derg
transforming into the Workers Party of Ethiopia (WPE).

With hindsight, the 1987 constitution was a long overdue response to the
nationalities question and promises of self-determination that had been a central
demand of the regionalist and ethno-nationalist movements in the aftermath of
the 1974 revolution. The PDRE constitution created an administrative structure
of 29 regions with five enjoying the status of autonomous regions. Specifically,

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the constitution created an Afar autonomous region carved out of Afar areas in
Eritrea, Tigray and Wello.

Administrative and autonomous regions of the PDRE

Ethiopia 1987
SAUDI International Boundary
ARABIA Former Region

S U D A N Autonomous Region
Administrative Region
Red Sea
Administrative Region
within an Autonomous
Eritrea Region

ERITREA N. YEMEN
S. YEMEN
North
Tigrai
Gonder Tigrai Asseb

Gonder North
South Wello Gulf of Aden
West Gonder
Gojjam
Wello DJIBOUTI
Metekel South
Gojjam East Wello
Gojjam
Dire
North Dawa
Assosa Shewa
West
Wellega Addis Ababa Harerge
Shewa Harerge East
Illubabor Arsi Harerge
Jimma Arsi
Kaffa
Kaffa Bale Goba
Sidamo
Gamu Bale Ogaden
Goffa
Sidamo
Borana

SOMALIA
UGANDA
KENYA Indian Ocean

Source: ACCORD, adapted from 1987 PDRE Map

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Kwesi Sansculotte-Greenidge and Demessie Fantaye

In spite of cartographic changes the regime was reluctant to devolve substantial

powers to these regions. More concretely, due to the military situation on the
ground at the time, the changes were never truly implemented by the embattled
regime and less than three years later, in May 1991, the junta was overthrown by
the combined efforts of the EPLF and the TPLF dominated EPRDF.

The Afar region in the post-conflict era

In the aftermath of the overthrow of the Derg, the Afar people and region were
to undergo a fundamental transformation in terms of their relationship with the
Ethiopian state. The fall of the Derg ushered in the arrival of the EPLF and the
de facto independence of Eritrea, which effectively meant the separation of the
Afar in Eritrea from their Afar kin in Ethiopia. This process was formalised with
the independence of Eritrea in 1993.

The overthrow of the Derg also saw the return from exile of Sultan Ali-Mirah
and the ALF. Shortly afterwards there was the establishment of a federal system
based on ethno-linguistic criteria, which included the emergence of an Afar
regional state (Akmel, 2006:76-77). On 8 December 1991, Sultan Ali-Mirah’s
son, Habib Ali-Mirah, was elected as President of the region by the Regional
Council. The 1995 constitution formally established a federal republic based
on nine regional states and two federal territories and institutionalised the
administrative and political structure of the state. The constitution provided
a broad range of executive, legislative and judicial powers to the regional states
(FDRE Constitution, Article 52).

However, the relations between the ALF and the ruling party at the centre were
far from smooth and tensions led to the emergence of a rift between the ALF
and the TPLF-dominated EPRDF. Allegations of corruption and inefficiency
on the part of the ALF-dominated regional government, along with the pre-
eminent position given to the southern Afar and their region, in terms of
regional positions and development spending, only served to heighten tensions.
Thus, it was not surprising that soon after the overthrow of the Derg the EPRDF
set about creating a surrogate Afar movement, the Afar Peoples Democratic

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 Traditional authority and modern hegemony: Peacemaking in the Afar region of Ethiopia

Organisation (APDO). Many Afar at the time saw the APDO as a TPLF creation
since the party gained its support from Afar clans which were part of the historic
province of Tigray. However, the APDO went on to gain control over the region
in the 1995 elections which saw the ALF fragment due to disputes between the
Sultan and his sons. The situation was also further complicated by the low level
insurgency which was still being waged by the Ugugumo. Overtime, however, the
central government was successful in stabilising conditions in the ANRS. The low
level insurgency waged by the Ugugumo dissipated and the party competition
between different sections of the Afar elite became a thing of the past with
the establishment of the Afar National Democratic Party (ANDP) which has
controlled the region since 2000.

In this context, it is important to point out that the federal system, and the
devolution of power that it entailed, created a space which allowed traditional
institutions and the traditional system of conflict resolution to be reinvigorated
in the ANRS. Over time, both the federal government and the regional
administration of the ANRS acknowledged the contributions of the traditional
institutions and their role in conflict resolution and management in the region.

Traditional authority in the Afar region

The Mekabon and Isi

Mediators (Isi) are Afar elders (Mekabon) who play a critical and indispensable
role in resolving conflicts between clans and sub-clans. They are often from
neutral clans and are called upon to mediate and reconcile antagonistic clans.
Clan and sub-clan elders of Zone 2 (elders of the Dahimela, Sekha and other
clans) play a key role as mediators.

Har Abba

The literal meaning of the term Har Abba is ‘father of the tree’. The lowest level
in the Afar system of political authority is the Har Abba, a position which exists
at both clan and sub-clan levels. The Har Abba initiates the formal process of

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traditional conflict resolution by making the opening or first speech during the
actual proceedings.

Dar Abba

Dar Abba literally means ‘father of the dar ’; dar means abode. Although
a traditional Afar position, the Dar Abba now acts as the administrator of a
woreda. Throughout the ANRS, scores of Dar Abba have been appointed to the
position of woreda administrators, in what appears to be a blurring of the line
between traditional and administrative authority.

Keddo Abba

Perhaps the most important functionary in the Afar traditional system of

governance is the position of Keddo Abba or ‘father of the clan’ (Savard,
1970:226-239). Afar use the term to refer to the chiefs of clans and sub-clans,
since unlike the Somali, the Afar do not distinguish between the two. The Keddo
Abba is the official representative of a clan/sub-clan in interactions with other
clans/sub-clans and also in formal or informal interactions with state structures.
Additionally, the Keddo Abba also plays a critical role in conflict management,
resolution and reconciliation. In terms of the traditional system of conflict
resolution, the word of the Keddo Abba is final and binding.

In addition to these hierarchical positions the Afar system of governance

incorporates other positions at the level of the clan and sub-clan. These offices
play a further key role in the process of conflict management, resolution
and reconciliation.

Fi’ema Abba

The Fi’ema Abba is the head of the Fi’ema and the term can be translated as ‘first
among equals’. The Fi’ema, which roughly translates as ‘equals’, is a quasi-age-set
among Afar men. The Fi’ema Abba is a key position in the traditional system of
governance. The membership of these associations may be confined to a single

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clan or cut across clan boundaries. Within a clan or sub-clan the Fi’ema Abba is
the first point of reference when interpersonal conflicts arise. The Fi’ema Abba
can decree and/or carry out punishments decreed by the elders of the clan or
sub-clan. The post of Fi’ema Abba is not a permanent or an inherited one and
must be relinquished when the post holder reaches middle age or is replaced due
to the inability to fulfil his duties.

Ma’ada

The term Ma’ada, or rules, is used by the Afar for their traditional system of
customary law. While the corpus of written literature on Ma’ada only contains
one work (Jamaluddin, 1973) the Afar as a community, and the Isi in particular,
act as a repository of customary knowledge. The authors were fortunately able
to interview several Afar elders and mediators.

The Ma’ada identifies five different types of crimes (Jamaluddin, 1973:2-4):

• Eido (killings)
• Aymissiya (injury)
• Rado (theft, destruction of property)
• Samo (adultery)
• Dafu (insults, affronts)
The notions of collective responsibility and intentionality are perhaps the
defining features of the Ma’ada and have a direct bearing on the workings of
the traditional system of conflict resolution. In the Ma’ada system it is the clan
that is held responsible for the deeds of its members. Additionally, severity of
the crime and also the compensation payments vary depending on whether the
crime/affront committed was intentional or accidental. Diat and Nefsimiklah
are the Afar terms for compensation payment for homicide and Dekha the term
for the compensation payments for all other types of injuries/crimes.

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Kwesi Sansculotte-Greenidge and Demessie Fantaye

Mable

The process of dispute resolution between different parties is referred to as

Mable by the Afar. In cases of intra-clan disputes or conflicts (disputes between
members of the same sub-clan) the dispute resolution system functions in a more
immediate and relatively less formal manner. Relatives, neighbours and friends
of the disputing parties may all try to mediate and reconcile the disputants.
These individuals may have prior experience in these matters or may even get
involved out of personal interest. Decisions and judgements in these types of
disputes are also based on the Ma’ada. Intra-clan disputes that involve issues
such as homicide and the theft or killing of camels, however, would invariably
involve a more formal and elaborate procedure involving sub-clan or clan elders.
It may even necessitate the involvement of Isi.

Since under the Ma’ada the notion of responsibility is not conceptualised at the
level of the individual but at the level of the collective unit, the likelihood of the
conflicts becoming violent is greater. As a result, dispute resolution is handled
with greater care. Disputes that involve deaths, serious bodily injury, kidnapping,
rape and the killing or theft of camels are extremely sensitive. Cases of inter-clan
disputes invariably involve clan or sub-clan elders and also Isi. A panel of elders
is formed (Mekabon) which will convene a reconciliation meeting known in
Afar as Maro. Both sides will be given a hearing and after extensive discussion a
ruling will be passed.

Dispute resolution in the case of a homicide where the victim and perpetrator
come from different clans is far more formal and sombre, necessitating the
involvement of the Isi. It is also quite common for the administrative tiers of the
state to ask elders to initiate a reconciliation process before a conflict situation
becomes unmanageable. One of the immediate objectives of the Isi involved
in a case of inter-clan killing is the containment of the tension and preventing
escalation through revenge killings. Therefore, one of the first steps that the
elders take is the seclusion of the clan or sub-clan to which the killer belongs.
The sub-clan undergoing seclusion will be supplied with guards led by a Fi’ema
Abba from a neutral clan. This seclusion is termed Megello. Only the young
men and middle-aged men undergo seclusion as women and children are not

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legitimate targets in vendettas. The elders will also require both parties to take
oaths (Burbah) to refrain from violence or seeking vengeance for a period of
forty days (Morotem) (Kelemework, 2006:50-51).

A key part of the Mable process is the Kusa’a, which can be translated as either
investigation or research. Both sides in the dispute are asked to present their
cases and they are given a hearing. The elders strive to ascertain the causes of
the dispute, the chronology of events leading up to the killing and identifying
who was at fault. This period may extend from a week to a month or even
longer. During this period, the elders are put up at the expense of the culprit’s
clan/sub-clan.

Eventually the elders arrive at a decision regarding guilt and intentionality. The
system of compensation payments is initiated in several stages:
• The first stage of compensation payment is the Bolkesegahara which is
an admission of guilt on the part of the culprits and also consent to pay.
Payment in the form of a number of cattle (from one to twelve) is part of
this stage.
• The second stage payment is the Waydaalkedima and amounts to twelve
cows. Six of these are divided between the elders involved in the case and
six to the victim’s clan/sub-clan.
• With the initial two payments, the men of the culprit’s clan/sub-clan can
emerge from Megello/seclusion and are no longer at risk of revenge killings.
This does not apply to the men of the culprit’s immediate family who
remain in seclusion.
• The final stage of the reconciliation process is often held in the evening.
In some cases a special dwelling (Bilu Hara) is constructed for this stage.
During this stage the family/sub-clan of the culprit is led in to exchange
ritual greetings and request forgiveness from the victim’s family/sub-clan
that is present. The victim’s family/sub-clan takes part in the process and
after the ritual greetings and extension of formal forgiveness both sides
will eat together and spend the night in the same spot. The details of the
final compensation payment are also worked out here. Often the practice
is to deduct from the payment, taking into account the expenses that the
culprit’s clan/sub-clan have incurred so far in terms of putting up the elders
and the feasting on the final day.

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Kwesi Sansculotte-Greenidge and Demessie Fantaye

It is important to point out that in this process, the state apparatus in the form
of the woreda and kebele administrations play a central role. They are often the
first to request the involvement of the elders and in a few cases even provide
transport to enable the arrival of the elders. The state apparatus using the police
force will often try to ensure that fighting/revenge killings do not occur or if
they do, try to end or contain it. The police will often be used also to guard the
culprit’s clan/sub-clan during the seclusion period.

Inter-ethnic disputes and conflicts

The Afar continue to be engaged in conflicts with neighbouring ethnic
communities such as the Issa Somali, Kereyu Oromo, Amhara and Tigrayans.
The former two are pastoralists like the Afar while the latter are cultivators.
These conflicts have their origins in competition over water sources, pastures,
cultivable land and in some cases also political competition and administrative
boundaries. However, conflict between ethnic communities is not the norm.
In large parts of the Afar region mechanisms have evolved to manage inter-
ethnic tension and conflicts. One such institution is the bond in the form of
a ‘friendship bond’ or ‘blood brotherhood’ between some Afar lowlanders and
their Tigrayan counterparts from the highlands. The bond is referred to in Afar
as Qahanoyta or Fikur in Tigrinya. It puts certain obligations on the partner
as the two are tied in times of peace and conflict. In effect, two bonded men
become brothers in every sense of the word.

In terms of formal conflict mitigation structures, the ANRS administration

relies heavily on peace committees composed of elders from the Afar and those
from the woredas that border the Afar region. The remit of these committees is
limited to conflicts with communities in neighbouring regional states. The joint
peace committees are an interesting fusion of the traditional and modern. Thus,
while the members of the joint peace committee are picked by the state (on the
recommendation of the concerned woreda administration), the members are
invariably elders or clan chiefs. The methodology they utilise also draws more
from the traditional sphere in terms of relying on compensation payments and
reconciliation and bypassing the formal justice system. Joint peace committees

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 Traditional authority and modern hegemony: Peacemaking in the Afar region of Ethiopia

have also been created in urban areas in the ANRS to deal with conflicts and
disputes arising between Afar and inhabitants from other ethnic groups.

In spite of the dualism and in some cases the merging of the two systems, the
legal basis for traditional institutions both under the Ethiopian and ANRS
constitutions is weak. There is an overlap between the formal state apparatus and
traditional institutions in the ANRS. A number of clan and sub-clan elders have
also been elected into the Regional Council of the ANRS (the legislative body of
the regional state) and the proportion of elders elected into the woreda councils
is even higher. In Chifra, woreda from positions in the kebele tier all the way to
the woreda level administration, chiefs of clans and sub-clans hold government
positions. It is also the woreda administration that appoints members of the
woreda peace committee.
Although according to Article 63 of the ANRS constitution, the regional
administration establishes councils of elders at different tiers of the
administration, so far the councils of elders have yet to become operational.
At present, different tiers of the regional administration have individual elders
associated with them in advisory positions. These advisors are appointed by
the regional administration. Currently, the woreda tier is assigned one elder, at
the zonal level two to three elders and finally at the regional level many more
elders have been appointed as advisors. The President of the ANRS also has as
an advisor an elder of the Gidinto clan.

Conclusion
Clan and sub-clan elders in Chifra do not regard the state apparatus as a
competitor or source of threat but in a more prosaic sense rather as a potential
and actual source of support and as an ally. For instance, elders in Chifra woreda
want to see formal budgetary support, transport and provision of office space
from the state. What is even more striking is that these elders also want the state
to use the means at its disposal to enforce speedier compensation payments.

Under the current federal system in the ANRS a process of coopting and
co-operation between traditional institutions and the formal state apparatus is

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Kwesi Sansculotte-Greenidge and Demessie Fantaye

well under way. This is a process bearing results where traditional institutions
and mechanisms of conflict resolution play an invaluable role in conflict
management, resolution and reconciliation at multiple levels. At the same time,
traditional figures have been co-opted into or may even have captured the
formal state apparatus to the extent where the distinction between the two has
become blurred.

Due to this blurring, according to Akmel (2010:18-24) the Afar and their leaders
have been able to localise the state structures and impose their will on them.
The central government itself has had to acquiesce and accommodate itself
to this state of affairs. However, as this study in Chifra shows, the relationship
between the two is more nuanced and complex than is often suggested. A basic
commonality of purpose and interests exists between the formal state apparatus
and traditional institutions in the ANRS, which they seek to achieve by working
in tandem, and the relationship is constantly being negotiated. Elements of the
traditional leadership have penetrated the regional administration but there are
limits and constraints which restrict their room for manoeuvre.

Larger developments in the ANRS, it would seem, will weaken traditional

institutions. The expansion of modern education in the ANRS, the growth in
the numbers of educated people and their entry into the state apparatus will
provide greater competition for the traditional leadership. The process of
urbanisation and its attendant implications is likely to also weaken the hold of
traditional institutions in the long run. An interesting recent development that
maybe symptomatic of future trends is the recent law passed by the Regional
Council of the ANRS, which nationalises all clan lands (Wudineh, 2011). While
all land in Ethiopia is state controlled, land ownership in the Afar area tended
to be an anomaly, with land in the hands of the various clans. The new law thus
synchronises land ownership and administration in the ANRS with the rest of
the country. The ANRS regional administration justifies this step as necessitated
by the developmental needs of the region. A policy document of the regional
administration (ANRS 2009a:19) identifies land policy and usage patterns
in the ANRS as one of the biggest obstacles to investment in the region. The
law contains contradictory provisions. Thus for instance the draft law, whilst

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 Traditional authority and modern hegemony: Peacemaking in the Afar region of Ethiopia

nationalising all clan lands, also stipulates that land registration will be carried
out and that clans and sub-clans will receive titles to their lands.8

The law and the process of its implementation will have effects on the traditional
leadership of Afar society. It may accelerate differentiation within the pastoralist
society and at the same time weaken the authority and power of the traditional
leadership. It may also create resentment and possibly lead to attempts to forcibly
resist efforts by the state to allocate land to private investors in the future. What
is clear is that the relationship between traditional institutions and the formal
state apparatus in the ANRS is still evolving and will continue to be the site of
negotiation and manoeuvre.

References
Akmel, M.U. (2010) The vitality of local institutions of conflict resolution among the Afar:
The case of Samu Robi Gala’lo Woreda. MA Thesis, School of Graduate Studies, Institute of
Ethiopian Studies.
Ali S. (1998) Afar ethnicity in Ethiopian politics. In: Mohamed Salih, M.A. and Markakis, J.
eds. Ethnicity and the state in Eastern Africa. Uppsala, Afrikainstitutet. pp. 108-111.
ANRS. (1995) The revised constitution of the Afar national regional state. Samara.
ANRS. (2009a) Awareness raising manual to encourage investment and benefit pastoralists in
the Afar Region. Samara. (Amharic document).
ANRS. (2009b) ANRS rural lands administration and usage draft law. Samara.
(Amharic document).
FDRE. (1995) Constitution of the federal democratic republic of Ethiopia. Addis Ababa.
FDRE. (2010) Central Statistical Agency. The 2007 population and housing census of
Ethiopia. Results for Afar Region. Addis Ababa.
Gamaluddin Ibrahim Khalil A-Shami and Hashim Gamaluddin Ibrahim A-Shami. (2007)
Ye Afar/Danakil tarik mereja arki minch/almanhal. Addis Ababa, Tirat Publishers.

Hill, M. (2011) Huge potential for Ethiopian potash says Allana CEO. Mining Weekly
[Internet] 10 June. Available from: <http://www.miningweekly.com/article/huge-potential-
for-ethiopian-potash-says-allana-ceo-2011-06-10> [Accessed 4 August 2011].

Jamaluddin A.R. (1973) The Afar customary law. Law miscellanea 3. Addis Ababa.

8 Section 2, Article 5, Sub-Article 5 of the draft law (ARNS 2009b).

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Kelemework, T. (2006) Indigenous institutions of conflict resolution among the Ab’ala

Afar of north-eastern Ethiopia. MA Thesis, Social Anthropology Dissertation Series, No.11.
Department of Sociology and Social Anthropology, Addis Ababa University.

Krenidler, I. (1977) A neglected source of Lenin’s nationality policy. Slavic Review 36(1).
pp. 86-100.

Gamaledin, M. (1993) The decline of Afar pastoralism. In: Markakis, John ed. Conflict and
the decline of pastoralism in the Horn of Africa.London, Macmillan Press, pp. 45–62.
News Point. (2011) High grade potash zone discovered by Allana Potash Corp in Ethiopia.
[Internet] Available from: <http://www.newspoint.co.za/story/411/56-high-grade-potash-
zone-discovered-allana-potash-corp-ethiopia> [Accessed 4 August 2011].

Ottaway, M. (2000) Africa’s new leaders. Washington D.C., Carnegie Endowment.

Savard, C.G. (1970) The People of Ethiopia Vol. II. Haile Sellasie I University, Faculty of Arts,
Department of Sociology and Anthropology.

Trimingham, J. (1952) Islam in Ethiopia Oxford: Geoffrey Cumberlege.

Woodward, P. (1996) The Horn of Africa: State politics and international relations. London,
Tauris Academic Press.

Wudineh, Z. (2011) Afar region accepts constitutional provision after 16 years. Reporter
Newspaper, 19 June. [Internet] Available from: <http://www.ethiopianreporter.com/
news/293-news/2414----16---.html> [Accessed 5 August 2011].

Young, J. (2006) Peasant revolution Ethiopia: The Tigray People’s Liberation Front, 1975-
1991. New York, Cambridge University Press.

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From war to peace and reconciliation
in Darfur, Sudan: Prospects for
the Judiyya

Abdullahi Osman El-Tom

Introduction
The causes of the current Darfur problem can be justifiably reduced to one
word: ‘injustice’. Since the independence of Sudan in 1956, the region of Darfur
has been under the oppressive hegemony of a ruling elite primarily drawn from
the northern region of Sudan. Over the years, Darfur people protested their
economic, cultural, ethnic and political marginalisation to no avail. In 2003,
some Darfur people took up arms against the Khartoum government (El-Tom,
2009, 2011; Hassan and Ray, 2009).

It is now 10 years since the onset of Darfur atrocities. One does not have to
subscribe to clichés of conflict maturity or war fatigue to realise that the Darfur
crisis is approaching its end. The internal and external dynamics of recent
months have ushered in an air of optimism that the crisis will soon be overcome.
On the internal front, numerous processes have progressed to overshadow past
obstacles. The divisions and proliferations of Darfur movements that followed
the Abuja Darfur Peace Agreement (DPA, 2005) have finally led to the formation
of two or three main groups. The Justice and Equality Movement (JEM) seems
to have emerged as a clear winner capable of dictating future peace processes.
The newly formed Liberation and Justice Movement (LJM) has also come to
occupy a prominent role, at least at the political level. The spread of war to the
Nuba Mountains and Blue Nile Province and the subsequent formation of the
Sudanese Revolutionary Front (SRF) in February 2012 have added another

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dimension to the conflict, increasing the likelihood of the collapse of the

Khartoum government.

The separation of Sudan into two independent countries has further isolated
President Al Bashir, thus paving the way for compromises on the way to a
peaceful resolution of the Darfur conflict. The newly independent Republic of
South Sudan has already signalled its readiness to play an active role in bringing
the conflict to an end. But the new country did not emerge without economic
implications. It now includes 80% of Sudan’s oil reserves, thus robbing Khartoum
of necessary funds for running the war. Khartoum simply has not enough cash
to sustain its war in Darfur as can be readily deduced from the near collapse of
the Sudanese pound.

The International Criminal Court’s (ICC) indictment of Al Bashir on 4 March

2009 and again in July 2009 has certainly shaken the delicate Darfur peace
process but has equally sent shockwaves across African and Arab leaderships. The
indictment signalled a historic new era that challenges the impunity of sitting
dictators against international prosecutions. Much more pertinent here is the
impact of the indictment within the ranks of the ruling National Congress Party
(NCP) of Sudan. While the indictment gave the hardliners cause to rally around
the beleaguered president, dissent has emerged among moderate party members
concerned about the future prospects of their party. As an ICC spokesperson
indicated on 4 May 2009, some members of the government of Sudan intimated
their desire to hand over Al Bashir to the ICC (Alwafd, 2009).

Dealing with Darfur war crimes

Whether peace in Darfur is imminent or not remains open to debate. What
is certain is that the sustainability of peace in Darfur and the guarantee of
harmonious post-conflict coexistence require careful handling of Darfur war
crimes. Despite ample international attention being paid to atrocities committed
in Darfur, there is little consensus regarding the number of fatalities, the
incidence of rape, the extent of villages burnt and property destroyed or looted.
Rough estimates give figures of 200 000 to 500 000 killed, 2.5 million displaced,

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 From war to peace and reconciliation in Darfur, Sudan: Prospects for the Judiyya

5 000 villages destroyed and 10 000 women raped (Suleiman, 2011; El-Tom,
2007). However, and by whatever measures, the atrocities committed involve
numbers that far exceed the capacity of formal legal systems to handle. In this
regard, we have a great deal to learn from other similar conflicts in the Sudan
as well as in other African countries. Thus we have the war of South Sudan, the
Rwandan experience, the South African experience and many others.

In approaching Darfur war crimes, Sudan must learn from mistakes committed
at the Naivasha negotiations that led to the Comprehensive Peace Agreement
(CPA), which paved the way for independence of the South. In Naivasha, the
negotiators adopted the dictum of ‘forgive and march on’ and opted for a blanket
amnesty for all north-south civil war criminals. Eminent Sudanese lawyer Magdi
Algazouli maintains that the ‘failure to probe into atrocities committed in the
GoS-SPLM war encouraged a repeat of the same crimes in Darfur and a blanket
amnesty in the Darfur war is simply untenable’ (Algazouli, 2009). While it was
difficult to account for every atrocity committed during the Sudanese north-
south conflict, failing to raise the issue of justice has come with a considerable
price. As Amnesty International aptly put it, ‘peace depends not only on absence
of war but also on the existence of both justice and truth, with both justice and
truth depending on one another’ (Amnesty International, 2002b). The ICC has
already issued arrest warrants for seven individuals: President Al Bashir, Minister
Abdel Rahim Husain, Governor Ahmed Haroun, Janjaweed leader Kushayb and
three rebel leaders, one of whom was later cleared by ICC judges. This number is
small compared to the unofficial list of 55 culprits whom Human Rights Watch
wants investigated (HRW, 2005). The government itself has followed suit and
claims it has commuted death sentences on 36 soldiers charged with committing
atrocities and armed robberies in Darfur. Thus the process of accountability
has already started and it is difficult and perhaps undesirable to reverse. Given
the scale of crimes committed in Darfur, the ICC and Sudan’s National Justice
System (NJS) will not have the capacity to deal with all cases within a time frame
that is fair and just for victims and culprits alike. It is here that Darfur must
learn from the Rwandan experience. Needless to say, the current NJS is not fit to
deliver justice. This embarrassing fact is also highlighted by the AU High-Level
Panel on Darfur (AUPD), headed by Thabo Mbeki, the former President of

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South Africa. The High-Level Panel Report recommends use of Hybrid Courts,
a revamped NJS with the participation of foreign judges (AUPD, 2009).

In attempting to make use of the Rwandan experience in Darfur, one must pay
close attention to similarities and commonalities between the two cases. To
begin with, there is clear difference of scale whereby the Rwandan case dwarfs
the level of crimes committed in Darfur. While the Rwandan case presents a
clear case of genocide, the legal definition of Darfur atrocities as genocide is
fraught with controversies and will remain so until the final ruling of the ICC.
Suffice to say that Al Bashir is charged on 11 counts including genocide in the
ICC rulings of 4 March and 20 July 2010.

The Rwandan case involved a massacre of close to one million victims out of
a population of 10 million (Hansen, 2005:1). In Darfur, confusion still reigns
regarding the number of casualties, with fatalities falling anywhere between
200 000 and 500 000 out of a population of 7.5 million (Suleiman, 2011). The
government of Sudan reduces this estimate even further to no more than 10 000.
Needless to say, few outside government circles take this last estimate with any
degree of seriousness.1

In the Rwandan case, killing and other atrocities were predominantly executed
by community members known to their victims. In sharp contrast, Darfur war
crimes are predominantly perpetuated by the official army aided by militia allies
locally known as Janjaweed. While many of the Janjaweed are local and hence
known to their victims, some are imported from outside Sudan and cannot be
easily identified by survivors. Army soldiers implicated in Darfur war crimes are
much more difficult to identify as they are imported from outside the region.
The government of Sudan has also used intensive aerial bombardment carried
out by pilots who cannot be easily identified.

At a different level, both the Rwandan case and its Darfur counterpart have
been driven by the motive of effecting a population reshuffle, involving varying
degrees of ethnic cleansing. The Hutu génocidaires of Rwanda, alluding to their
so-called Hutu Ten Commandments, declared their Tutsi fellow citizens as

1 For the Rwandan genocide see: Gourevitch, 1998; Dallaire, 2004; Prunier, 1995.

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inyenzi, meaning ‘cockroaches’, ‘which could only be cured by extermination’.

Darfur gangsters declared their victims as slaves, mercenaries and agents of
Christian crusaders. Dehumanisation of would-be victims has been central to
genocides, ethnic cleansing and massacres across the world. In Brazil, street
children destined for killing are referred to as vermin. In other countries from
Asia to Europe and Latin America, those who are destined for annihilation are
referred to variously as infidels, enemies of the nation, nits, garbage, beasts,
vagabonds, or subhumans (Jones, 2006:334). These terms are used in an effort
to reduce the assailants’ guilt, galvanise support, ‘humanise’ and ‘glamorise’
killings of people and deprive victims of any chance for sympathy and
humane treatment.

We must therefore readily admit that dealing with Darfur war crimes presents a
daunting problem that requires an unconventional response at the post-conflict
phase of crisis. The Rwandan case provides a template that can be followed in
Darfur in the near future. Like Rwanda, and if the wise option of prosecution
is to be pursued, Darfur culprits will far exceed the capacity of Sudan’s NJS and
the ICC put together. The UN Security Council’s trials formed for Rwanda
came to be known as the International Criminal Tribunal of Rwanda (ICTR).
In the case of Rwanda, and with nearly one million killed, it was estimated that
the country had 125 000 suspected killers, forming 6% of its population. That
number computes at eight to nine victims per killer. Other crimes like rape,
looting, injuries and the burning of property also entered into the equation.
Thus, when the genocide ended, Rwanda had 130 000 prisoners awaiting trial
for alleged serious crimes only, but the options were limited.

The ICTR concerned itself with what has come to be referred to as Category
One criminals, namely those who were allegedly implicated at the organisational
level of the genocide. Altogether, 400 suspected génocidaires were identified.
Many of them fled and remained in western countries with little or no chance
of repatriation. The dubiously slow pace of ICTR trials provided another
problem. By 2012, the ICTR listed 69 cases completed with 10 acquittals (ICTR,
2012). Different sources credit the ICTR with a mere 33 cases after 14 years
of investigation, ending in 2008. However, the restricted mandate of the ICC
relegates the institution to a limited role in the overall post-conflict justice

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system (Lawson, 2005; Gusongoirye, 2008). According to some critics, the ICTR
was plagued with corruption, nepotism, mismanagement and malfunctioning
(Power, 2003:495; Shawn, 2006).

As for the Rwandan national legal system, it is certainly more efficient in

comparison to the ICTR but equally hopeless in the face of the genocide.
From 1996 to 2006, the national courts were able to handle a mere 10 000
trials. With that rate, the national courts would require over 100 years to
prosecute all prisoners (Gusongoirye, 2008; Kasaija, 2009). Rwanda has been
most unfortunate with regard to near decimation of its legal system during
the genocide. It experienced a loss of over 80% of its legal officials and many
legal facilities were damaged during the genocide. For example, only 244 judges
survived the genocide from a total number of 750 (Hansen, 2005:2). Darfur fares
much better in this regard. There is no summary execution of judges in Darfur
and the region can, if necessary, draw on legal officials from outside Darfur. But
the Rwandan case was different. The country simply had no choice but search in
its traditional system for a solution. Gacaca seemed to be a logical path for the
country to follow.

Gacaca, meaning ‘sitting on grass’ or also ‘lawn-justice’ is a quintessential

traditional Rwandese institution for conflict resolution. By its very nature,
a Gacaca court can be formed in any community to mediate and impose
penalties on wrongdoers. Gacaca depends on moral force to implement its
rulings. However, these are heavily backed by the threat of the much harsher
national legal system. This often remains open for the plaintiff in cases where the
Gacaca rulings are rejected. Recognising the vastness of the number of prisoners
awaiting trial following the 1994 genocide, the Government of Rwanda adapted
the Gacaca, with some modification, to serve as an alternative legal system.
Gacaca was to deal with the milder but more numerous crimes committed
during the genocide. Four categories of crimes were identified, with Gacaca
restricted to categories 2-4:

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Table 1: Genocide Crime Categories

Category One Planning, organisation, instigation, supervision
of genocide
Category Two Physical attacks resulting in death

Category Three Physical attacks not resulting in death

Category Four Looting, theft, property damage

Source: Adapted from Musoni (2009).

Gacaca is constituted of four hierarchical levels. Starting from the lowest,

Gacaca has cell, sector, district and provincial tribunals. Cell tribunals deal with
property offences, sector tribunals with injuries, and district tribunals with
killing but not its organisation. Provincial tribunals are reserved to act as final
appeal courts for Gacaca cases.

The power of Gacaca resides in its capacity for speedy constitution. This is
demonstrated by the appointment of 266 000 Gacaca judges in 2001, the same
year the Gacaca Act was issued (Amnesty International, 2002a). By the time
Gacaca heard its last case in July 2010, it had examined over 1.5 million cases.
Some estimated 5 000 remaining prisoners who were too old or sick to stand
trial and were implicated in minor offences were pardoned (Musoni, 2009;
Vesperini, 2010).

Despite its limitations, some of which are outlined later in this article, the
achievements of Gacaca courts have been impressive. A pertinent question
here is how can Darfur replicate its success while at the same time avoid its
limitations?2 Like Rwanda, Darfur has traditional systems of conflict settlement
which can be activated in its post-conflict work. In the following paragraphs,
I will draw on the experience of the Berti, my own ethnic group, and use it
as a convenient model for Darfur. The reader must allow for minor variations
among other ethnic groups (for the Berti see Holy, 1974, 1991; El-Tom, 2008).

2 For a critique of Gacaca see Amnesty International, 2002a, 2002b; Haile, 2008.

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Darfur’s legal system of traditional administration

Across the Sudan, local administration operates a sophisticated judicial system
premised on traditional wisdom but equally informed by a modern state’s legal
ethos. Courts of local administration are structured around their administrative
role. The village sheikh constitutes the lowest level of local administration
presiding over 10 to 40 households. The village sheikh has no physical court but
is mandated to settle minor disputes. In addition, the village sheikh combines
assisting traditional courts run by his superiors in the local administration and
government legal courts.

Above the village sheikh is the Omda (Mayor) who presides over up to 100
sheikhs. Depending on the size of the territory under his administration,
the Omda may or may not have a physical court. Like the village sheikh, the
Omda settles minor disputes among sheikhs as well as individuals. The
absence of a court also means the absence of a mandate to impose prison
sentences. Minor fines and compensation may be imposed during arbitration
although implementation of the ruling depends on the disposition of the
conflicting parties.

Above the Omda is the Shartay who presides over three to six Omdas. The
Shartay has a court and mandate to impose jail sentences to be served in
government prisons. He receives a salary from the government and maintains
court records for future examination by the government if required. Above the
Shartay is the Nazir or king in some areas. Both the Nazir and king run courts
that are endorsed and supervised by the government.

Despite its history and experience, the traditional administration is unlikely to

be suitable for post-crisis trials in Darfur. To begin with, this system is ethnically
based and always headed by a chief of the dominant ethnic group in the area.
Although the court might include juries drawn from ethnic minorities in the
area, the position of the chief belongs to the dominant ethnic group. This makes
adapting such a court to run trials of Darfur war criminals a risky affair. Moreover,
many of these chiefs have also been politicised and above all implicated in one
way or another in the Darfur dispute. Removing them in favour of other judges
might create a dilemma regarding other functions for which they have been

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appointed in the first place. For these reasons, it would be unwise to solicit their
involvement in post-crisis trials.

Collective compensation (Diya)

Diya is a traditional system of collective compensation employed across
Sudan and other African countries such as Somalia and Chad. In Darfur, it is
restricted with some flexibility to unintentional homicide, injuries and damage
to property. In order to seek the assistance of the kinship group to pay Diya,
the compensation required must be too large for a single household to muster.
In effect, this is a collective responsibility for individual offences. Nonetheless,
and like many other traditional systems of conflict resolution, Diya constitutes
a process for collective action and periodic consolidation of group solidarity.

A network of permanent officers is elected to administer Diya. They

form hierarchical lines of personnel chosen on a hereditary basis with the
sole role of operating the Diya. Ethnic groups are divided into lineages
(Khashim biout) and sub-lineages (Warrayat) with a person in charge of the
collection of contributions for each division or sub-division.

The Berti, whose system is described below, is a good example. It is a system

common in Darfur but not without some variations. At the apex of the structure
of Diya sits the Farsha who covers a large territory for the group. Below the
Farsha is the Duwana who is responsible for the mobilisation and collection
of contributions of several lineages. Up to 50 lineages could come under a
Duwana consisting of more than 10 000 households. Each lineage is under
a Dimlig who is appointed for the same purpose. The Farsha, Duwana and
Dimlig have deputies spread across all areas where they have relatives, including
in the capital Khartoum. Diya representatives may seek assistance from the local
administration to execute their work as the latter recognises and fully supports
the Diya system as a legitimate course of conflict settlement.

Payment of Diya is worked out by dividing the amount of imposed compensation

by the number of contributing households. Due to the spread of population, the
collection of money is an arduous and inefficient task requiring several years to

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complete. Payments are relatively small due to the large number of contributors.
For example, homicide triggers a levy of as a low as LS100 (Sudanese Pound),
approximately 0.30 Euro per household, with only married people eligible for
contribution. Payment of Diya is seen as an honourable deed, symbolic of
belonging to the group. Few are prepared to endure the shame of not meeting
the obligation.

Although the Diya is theoretically restricted to unintentional offences, it is often

extended to cater for crimes of collective aims that are deliberately committed.
Crimes committed to advance the cause of a group constitute a breach of
national legal codes but there are always ways around these. In ethnic disputes
where intentional killings are committed, the government itself ignores national
justice codes and resorts to Diya to settle conflicts. The sophisticated outreach
of the Diya institution coupled with sanctioned flexibility makes it a perfect
candidate for use in the post-Darfur conflict.

Traditional councils of mediation (The Judiyya)

When thinking of Gacaca, nothing comes to mind in Darfur other than its
traditional mediation council, locally referred to as the Judiyya. It is a grassroots
system of arbitration that focuses on reconciliation and resurrection of social
relationships in the community. Unlike other judicial systems such as government
and Shartay courts, the Judiyya is distinguished by the impermanency of its
membership, informality and accessibility to all in the community.

The Judiyya session can be initiated by a plaintiff, a defendant or their concerned

neighbours and relatives. The meeting is open to all including passing guests
and is not restricted to any defined number of mediators. In general, a Judiyya
session attracts a minimum of five jurors who join and depart at will to carry out
other activities. The disputants have the right to veto participation of potential
mediators but only prior to commencement of the Judiyya.

The Judiyya has no overt power to enforce its ruling. Its power over disputants is
moral. A disputant who defies the ruling of the Judiyya is castigated as a Kassar
Khawatir (consensus breaker) who is anti-social, uncooperative and a threat

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 From war to peace and reconciliation in Darfur, Sudan: Prospects for the Judiyya

to community harmony. The opposite of that is Jabbar Khawatir (consensus

builder), reflecting civility and ideal citizenship in the community. In a social
environment where survival requires cooperation, the label of ‘consensus
breaker’ is hard to sustain. Furthermore, the ruling of the Judiyya is often
endorsed by the much harsher Shartay court should the case go further. What
is important here is the consensual nature of Judiyya ruling. In effect, it is a
community attempt to combine individual interests with community ideals.

The Judiyya is free and no penalties are imposed other than compensation for
loss or damage incurred in the conflict. An oath on the Koran may be employed
to prevent further offences between the disputants.

The Judiyya versus the Shartay court

As mentioned above, the Shartay runs a court that is endorsed by the state.
The Shartay court deals with intermediary conflicts and is subordinate to
government courts. The Judiyya then occupies the lower level of jurisprudence
and is confined to lower level crimes that may not require intervention by the
Shartay court. In contrast to the Judiyya, the Shartay court mimics its superior
government courts. It is informed by a modern ethos, literate and with permanent
members. It is also punitive and dependent on external tools like bailiffs, police
and prisons to enforce its verdicts. Its sessions are formally planned and held
in modern buildings in the form of mud rooms as distinct from grass cottages.

The Judiyya contrasts sharply with this. It is grassroots-based, spontaneous,

with an open jury and focussed on reconciliation. Its meetings are convened in
any suitable place, like the shade of a tree, and it relies on the goodwill of the
parties involved to enforce its rulings (see Tables 2 and 3).

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Table 2: The Judiyya and the Shartay Court

Judiyya Shartay Court
Tree Mud room
Oral/traditional-based Literate/modern-based
Spontaneous Formally arranged
Open jury Restricted jury
Restitutive Punitive
Moral enforcement External enforcement
Ruling consensual Ruling imposed by judges

Table 3: Traditional System of Conflict Resolution

Election/
Domain Mandate/Powers
Appointment

Neighbourhood Restitution and

Judiyya Spontaneous
conflicts reconciliation

Single village
Small fines, communal
Sheikh or residential Locally elected
work, tax
quarter

Several sheikhs,
Omda Small fines, tax Elected/appointed
up to 100

Up to two years jail

Shartay Several Omdas sentence; extension of Elected/appointed
official legal system, tax

An area or Collection of
Farsha sub-tribe; compensation Elected
Duwanas fund only

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 From war to peace and reconciliation in Darfur, Sudan: Prospects for the Judiyya

From Gacaca of Rwanda to the Judiyya of Darfur

Like pre-genocide Gacaca, the Judiyya is a quintessential institution and a
repository of a traditional system evolved for tackling day-to-day conflicts
during peaceful times. As in post-genocide Rwanda, the Darfur crisis introduced
fresh nuances and new realities that transcend the traditional competence of the
Judiyya. Hence, there is a need for some modification to Judiyya with the aim
of its transformation into an institution capable of contributing to justice and
reconciliation in post-war Darfur. Fortunately Gacaca provides an impeccable
template whereby a basically similar institution has been called upon to play a
role analogous to what is demanded of the Judiyya. In revising the Judiyya to
suit the new context of post-war Darfur, caution is necessary to avoid the pitfalls
of the Gacaca. The new Judiyya will undoubtedly be a hybrid, defying purists
of traditional customs and disappointing those who aspire to an unadulterated
modern judicial system.

Navigating through the complexities of the number of perpetrators of Darfur

atrocities represents a major challenge. Even if we are able to gauge a reasonable
margin of error, the number of those implicated in the atrocities will still be
affected by local considerations peculiar to Darfur. By June 2009, Gacaca had
already delivered over 1.5 million cases (Musoni, 2009). Roughly speaking,
and assuming that many of Darfur offenders cannot be identified, the Judiyya
will still probably have to deal with a fourth to fifth of that number (200 000
to 375 000). This number is further reduced by removing those involved in
homicide/fatal injuries, as will be proposed later. The challenge is formidable but
not insurmountable.

In the Gacaca case, 266 000 judges were appointed to sit in 10 000 courts. While
this number may seem vast, the courts had to deal with a colossal amount
of work with an adverse effect on performance, enthusiasm and availability
for economic activities. The Judiyya must avoid this pitfall. If the number of
Gacaca courts is used as a template, Darfur will require 2 000 to 2 500 courts.
The problem of excessive work experienced in Gacaca can be eliminated by
doubling the number of Judiyya courts to 4 000 to 5 000. This will also speed up

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the work, fast-track the reduction of the number of detainees and lead to a more
efficient reconciliation and reconstruction of communities.

The poor training of judges that accompanied the work of the Gacaca courts
must not be repeated in Darfur. As reported, Gacaca judges received an
average of 36 hours of training each (Haile, 2008:20; Hansen, 2005:2; Amnesty
International, 2002b:6). Moreover, judges sitting on Gacaca Appeal Tribunals
did not receive better or longer training than other trainees. This deficiency
must be overcome in Darfur. The quality of training must not be sacrificed
for expediency.

Amnesty International was justified in raising the issue of the failure of

Gacaca to adhere to the principle of a fair trial in its proceedings (Amnesty
International, 2002a). Like many traditional legal systems, Gacaca lacked what is
akin to the modern principle of ‘presumption of innocence’. This principle must
be enshrined into the revamped Judiyya if it is to deliver justice that is worthy
of pursuit.

The Judiyya also lacks a space for lawyers, a pitfall experienced in Gacaca. While
it may not be feasible to include lawyers in the Judiyya, this shortcoming can
be addressed by boosting the role of counter witnesses. Defendants should
be allowed to commission relatives who are more articulate and with a better
command of the intricacies of local jurisprudence to represent them in courts. It
is perhaps unrealistic and albeit unnecessary to replicate Rwanda’s employment
of ‘judicial defenders’ in trials. Judicial defenders are pseudo-lawyers with six
months of training. Nonetheless, some form of training for ‘traditional judicial
defenders’ with the aim of improving their sense of justice should be considered
(Amnesty International, 2002b).

Many experts including Hansen (2005), Haile (2008) and Emmanuel (2007)
have raised concerns about the low, if not totally defective, standard of evidence
employed in Gacaca. The result was that many defendants were convicted on
the basis of hearsay and circumstantial proof. Care must be given to this issue
in the training of Judiyya judges. Judiyya appeal tribunals in particular must
be empowered and perhaps augmented with modern judges to attenuate this
tendency in the Judiyya. Alternatively, a supreme appeal tribunal can be created

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 From war to peace and reconciliation in Darfur, Sudan: Prospects for the Judiyya

within a reorganised national justice system to act as a final stop for contested
Judiyya verdicts. Variations in standards of the law of evidence are not peculiar
to traditional legal systems. As the trials of O. J. Simpson have shown, modern
courts are also inconsistent in their application of the law of evidence. Simpson
was pronounced ‘not guilty’ in a criminal court but later convicted in a civil
court. Simpson’s case is said to have inspired relatives of the 29 victims of the
Omagh bombing in Northern Ireland by the Real IRA in 1998. Having failed to
secure a conviction in a criminal court in 2001, the plaintiffs renewed their case
under a civil court, leading to a successful conclusion on 8 June 2009. Four of the
five defendants were found responsible for the Omagh atrocities. The civil court
prosecution highlights the marked differences where ‘in a civil case, the burden
of proof is on the balance of probabilities rather than the higher burden of a
criminal case of beyond reasonable doubt’ (Coulter and Keenan, 2009; Coulter
2009a, 2009b).

Improving the justice potential of the Judiyya presupposes some degree of

modernisation, bringing the institution closer to international justice system. In
so doing, efforts must be made to avoid converting the Judiyya into a retributive
system akin to modern courts. The value of the Judiyya lies in its drive for
restitution and reconciliation. Pushing the Judiyya too much into the realm of
modern courts with their emphasis on punishment would be imprudent and
counterproductive (Shema, 2009). The challenge is how to improve the justice
delivery of Judiyya while maintaining at least some of its traditional ethos.

Despite the scale of atrocities in Darfur, it is anticipated that the Judiyya will face
less work as compared to Gacaca. Hence, overseers of the Judiyya can afford to
limit its deliberations to relatively minor offences. All crimes leading to fatalities
can be removed from Judiyya jurisdiction and be transferred to the NJS. Cases
of rape should also be taken out of the Judiyya. The gravity of war rape is
demonstrated by its historic classification as a war crime in the ICTR. As such,
the Judiyya will then be mandated to deal with damage to property including
theft and looting, non-fatal injuries, and the terrorising and intimidation
of civilians.

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Abdullahi Osman El-Tom

There is no doubt that the Darfur crisis represents a conflict between the
centre and the periphery. Nonetheless, the crisis manifested itself in the region
pitting one broad coalition of groups against another. This division is bound
to resonate in the constitution of the Judiyya tribunals. More often than not,
an administrative territory which constitutes a base for a Judiyya court may
coincide with a single dominant ethnic group. Judiyya courts must be prevented
from acting as mechanisms for forwarding the narrow interests of a dominant
ethnic group to the detriment of others. Hence, modalities guaranteeing a fair
ethnic mix of Judiyya courts must be envisaged prior to the constitution of these
courts. This will increase fairness and pre-empt the possibility of the Judiyya
falling into what Hansen (2005:4) refers to as ‘victor’s justice’.

Blatant interference by the post-genocide Rwandan government is widely

reported. The government intervened in the mandate of Gacaca, its deliberation
process, in the availability and release of detainees to be tried and intimidation
of its judges (Hansen, 2005; Amnesty International, 2002b:6-7). This scenario
is likely to be attempted by the post-war government in Darfur. Insulation of
the Judiyya from negative government interference must be ensured and clearly
embedded in Judiyya rules.

As alluded to before, the Judiyya has evolved to deal with conflicts of peacetime.
The war in Darfur creates a new context that presents the Judiyya with new
challenges. One of those is the challenge of having to deal with unconventional
clients including minors, rape victims and sufferers of post-war trauma. Judiyya
judges must be trained to isolate these cases and accommodate them in their
deliberations. But the mere sensitivity of judges to these cases alone is not
sufficient. A mechanism whereby the Judiyya can make use of trained personnel
in the areas of post-war trauma, rape problems and minors must be provided.

Like many traditional settings in Africa, the Judiyya has always been a male
battlefield. Women feature in it as victims, defendants and witnesses but rarely
as judges. This patriarchal aspect of the Judiyya must be remedied. The war in
Darfur did not spare women and there is no reason why they should not make
a prominent presence in its justice process. Gacaca provides a good template in
that the participation of women was as high as 30%.

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 From war to peace and reconciliation in Darfur, Sudan: Prospects for the Judiyya

Concluding remarks
The use of the Judiyya in post-war Darfur is dictated by necessity. The Judiyya
constitutes the best avenue for generating ownership of justice, achieving
reconciliation and avoiding the undesirable dilemma of keeping detainees, many
of whom are innocent, in jail for prolonged periods. Supporters of the South
African rival ‘Truth and Reconciliation’ model may be content with the fact that
the main principles of that model are already enshrined in the Judiyya. These
include the establishment of truth, bringing contenders to face-to-face dialogues,
the airing of grievances, forgiveness, the moral punishment of wrongdoers and
above all social rehabilitation (Emmanuel, 2007; Graybill, 2004).

No matter how the Judiyya is improved, it will not match the fairness of ‘best
practice’ in modern courts. It is perhaps neither logical nor desirable to adopt
different processes and expect the same result. Limitations of the Judiyya
can, however, be compensated for by what the Judiyya delivers for peace and
reconciliation. I hasten to add here that we have little choice in this regard.
Replication of the modern justice system under the mantle of the Judiyya serves
no purpose. Among the other problems that it may create is that it transforms
the Judiyya into another punitive system with little or no contribution to
community restitution. Moreover, one should not assume that alternative justice
systems, in the form of either the national justice system or the international
justice system, are perfect. Both of these systems have demonstrated their
limitations across the globe. However, this is not a ground for deciding not to
use them (Jones, 2006).

This chapter glosses over several theoretical issues in the study of conflict
and peacebuilding. Chief amongst these is the legitimacy of armed conflicts
instigated by both the state and rebel groups. International conventions abhor
armed conflicts but do not criminalise them as long as they stay clear of non-
combatants, observe the rules of engagement and refrain from the use of
excessive force. At a theoretical level in anthropology and related disciplines,
armed conflicts are not seen as inherently negative or positive. In the structural-
functionalist approach, armed conflicts can be interpreted as negative only if
they do not reinforce the status quo. In the Marxist perspective, physical violence

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is seen as positive if it leads to progressive change. To this, one may cite Fanon
and others who take armed violence aimed at decolonisation as necessarily
positive (Sluka, 1992:30).

The armed conflict which is the subject of this article is aimed at changing the
status quo and not at upholding it. As the rebels claim, raising arms is by far not
their preferred choice and has come only after prolonged failures of peaceful
means of addressing their grievances. Tragically, as Sluka puts it, ‘the rich and
the powerful are almost never persuaded to change through reasoned argument
or moral persuasion’ (Sluka, 1992:31). Surprisingly, Al Bashir himself declared
publicly that he would ‘only negotiate with those with a gun in hand, for that
was how he took over power in Khartoum’ (El-Tom, 2009:99; Suleiman, 2011).

There can be no doubt that the current armed conflicts in Darfur resulted in
a colossal loss of life. However, armed conflicts, including Darfur’s, come as a
desperate attempt to put an end to structural violence. In Darfur as well as in
other marginalised regions of Sudan, structural violence perpetrated by the
Khartoum government since independence has been responsible for millions of
deaths. People there continue to die due to poverty, disease, famine and neglect
(Nordstrom and Martin, 2006:8). It is no wonder that Cramer emphasises this
point by employing the phrase ‘Civil war is not a stupid thing’ as the title of his
book. He rightly calls for taking wars as central to the process of modernisation
and away from viewing them as indicative of ‘development in reverse’
(Cramer, 2006).

While successful civil wars may deliver a reprieve from structural violence, peace
and the peacebuilding process may come at a high cost to their major stakeholders.
In the currently interconnected world, civil wars often call for international
sponsored peace initiatives, the details of which are developed from afar, away
from conflict zones and behind closed doors (MacGinty, 2010:350). This is what
is also referred to as ‘liberal peace’, a process that remains firmly in the hands of
the European-North American axis. It aims at articulation of conflict zones in
the sphere of the western liberal world. Invariably, such liberal peace erodes the
agency of major stakeholders and weakens their self-determination. Richmond
refers to this process as ‘dispossession in which agency is taken away from those
who receive peace’ (Richmond, 2010:4). Over the past few years, Darfur rebel

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 From war to peace and reconciliation in Darfur, Sudan: Prospects for the Judiyya

groups have already signed dozens of international charters in the course of

negotiations, training and consultation with diverse United Nations, INGO and
civic society institutions. Issues that the rebels signalled their commitment to
include liberal democracy, human rights, prisoners of war, proscribing child
soldiers, the equality of women, freedom of speech, and property rights. While
many of these issues conform to the ideals of the rebel groups, the charters
nonetheless privilege the Eurocentric self and endorse the otherisation of the
rest of the world.

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120
Customary mediation in resource
scarcities and conflicts in Sudan:
Making a case for the Judiyya

Salomé Bronkhorst

Introduction
Many rural-based Africans, especially those dependent on natural resources
for their livelihoods, are experiencing two related and mutually reinforcing
challenges that contribute to conflicts.1

First, the challenge of climate change adaptation2 or how to address the predicted
effects of climate change (IPCC, 2007). It is expected that the effects of climate
change (such as changes in rainfall and temperatures, floods and droughts, and
rises in sea levels) may act as triggers of latent conflicts, or contribute to new
conflicts (Burke et al., 2009; Hendrix and Glaser, 2007; Hendrix and Salehyan,
2012). Rarely will climate change be the direct singular cause of conflicts
(German Advisory Council on Global Change, 2007; Gleditsch, 2011) but it is
likely to amplify existing political, economic and social fault lines, which could
lead to conflicts.

1 This chapter focuses on social conflicts, which are separate from armed conflicts. ‘The
former is the broader category, which includes various forms of contentious behaviour.
Social conflict includes peaceful protests, rioting, strikes, mutinies, and communal
violence. Armed conflict is a subset of social conflict, requiring organized, armed violence
against the government or between governments, in the case of international war’
(Hendrix and Salehyan, 2012: 39). This chapter will largely focus on communal conflict.
2 Adaptation is defined as an adjustment in natural or human systems in response to actual
or expected climatic stimuli or their effects, which moderates harm or exploits beneficial
opportunities (IPCC, 2001).

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Salomé Bronkhorst

The second challenge is how African natural resources and resource scarcities
are managed (Leach et al., 2007; IPCC, 2007) in order to prevent conflicts.
Environmental or climate change lead to resource scarcity which in turn has a
series of social consequences that contribute to or cause conflicts (Baechler, 1999;
Peluso and Watts, 2001:18). Social consequences can be ‘social breakdown and
violence’ through the effects on food production, the further impoverishment
of the already poor and effects on migration (Raleigh and Urdal, 2007:691).
Elites can capture scarce resources for themselves and ‘undermine a state’s
moral authority and capacity to govern. These long-term, tectonic stresses can
slowly tear apart a poor society’s social fabric, causing chronic popular unrest
and violence by boosting grievances and changing the balance of power among
contending social groups and the state’ (Homer-Dixon, 1998:207).

With these challenges in mind, this chapter focuses on a form of traditional

conflict resolution (TCR) in Sudan, namely judiyya3 or customary mediation.
The objective is to examine the use of judiyya in managing natural resources,
resource scarcities and conflicts between and within pastoral4 and farmer groups
in Sudan, and to examine challenges facing this form of customary mediation.
This chapter documents the practice in more detail, as literature in English on
judiyya is limited and dispersed.5 This chapter contributes to the emerging
literature on conflict-sensitive climate change adaptation – i.e. judiyya may
be one way for pastoral and farmer communities in Sudan to manage natural
resources, resource scarcities and conflicts that arise as a result of the present and
future impacts of climate change.

3 The English spelling of the term varies widely - judiya, joediya or goodiya or for Darfur
ahleeya, or suluh are terms used.
4 Pastoralism is a form of livelihood production based on raising livestock.
5 The literature available in English does not report on where and by whom the practice of
judiyya is used, not least to resolve environmental conflicts. No systematic, overall study
to document the exact practice, location and use patterns of judiyya across Sudan seems
to have been undertaken. It is likely that the Arabic literature, which the researcher is not
able to access, would contain a wealth of relevant data. However, the literature in English
produced by Sudanese scholars, which the writer was able to locate, also seems to have
access to only the same limited data.

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 Customary mediation in resource scarcities and conflicts in Sudan: Making a case for the Judiyya

Part one provides a general overview and the context of resource scarcities,
competition and conflicts between and within pastoral and farmer groups in
Sudan. Part two describes the practice of judiyya in some detail with particular
focus on a) the role of native administrators6 as mediators (or ajaweed), and b)
the use of judiyya in resolving larger-scale conflicts through peace conferences.
Part three examines present challenges to judiyya. The concluding discussion
assesses the future of judiyya in general terms and for managing scarce natural
resources and conflicts.

This chapter is the result of desk research, semi-structured interviews, and draws
on primary research materials collected from civil society actors in Sudan during
a fieldwork visit to Southern Kordofan in July 2010. Although the paper largely
focuses on the country of Sudan, perspectives from South Sudan are brought
into the discussion, given that the secession of South Sudan took place only in
July 2011. Much of the research and the literature on judiyya on which this
chapter draws were based on the unified Sudan.

Overview and context: Resource scarcities and pastoral-farmer

conflicts in Sudan
Resource scarcities do not only arise because of a decline in the total amount
of natural resources (such as water and land for grazing and farming) available
to users. In the literature on resource scarcity, scholars focus on a set of ‘critical
resources’ on which a person or community depends for economic wellbeing
and to make a living.

According to Homer-Dixon (1998) and McLeman (2011) a critical resource

can become scarce in a number of ways. First, the total availability of a critical
resource can decline, for example a water resource as a result of a lack of rain.
Second, the amount of the resource available to a person or user can decline.
This means that while the total resource is the same as before, there is less of

6 The native administration (NA) is ‘the customary institution of traditional leaders,

including Sheikhs, Oumdas and Emirs, who are responsible for maintaining customary
law, including the allocation and management of land’ (Egeimi et al., 2003:22).

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it because of a greater number of users – for instance, in the case of increases

in population. Third, some groups or individuals could benefit more from a
resource than others, or it could be less accessible to some people as a result of
particular characteristics they may have. This latter is called structural scarcity,
coined by Homer Dixon in 1998, and often means the act by one group or
person to intentionally exclude another from a resource.

Table 1: Visual representation of the origination of resource scarcity

Status quo Absolute Decline in Resource
decline in availability no equally
resource (a) (b) available (c)

Dependent
population

Size of ‘pie’
or resource

Source: Author, adapted from Homer-Dixon (1998) and McLeman (2011).

In Sudan, numerous factors presently contribute to the creation and

perpetuation of resource scarcities and conflicts. These include the legacy of the
civil war (Saeed, 2009a), natural and human-induced changes in the climate
and environment (Saeed, 2009a), and the high dependence on natural resources
for livelihoods in the context of greater competition over those resources
(Egeimi et al., 2003).

First, the legacy of the civil war has left significant post-conflict peacebuilding
issues which contribute to resource scarcities and other (often more localised)
violent and non-violent conflicts (Saeed, 2009a). The 20-year civil war ended
in 2005 and led to the secession of South Sudan in 2011. However, the society

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continues to be highly militarised and polarised7 and conflicts between and

within farming and pastoral groups are often more violent and last longer
because of the availability of small arms (Babiker, 2002b). High levels of mistrust
and animosity between these groups further contribute to social cleavages and
localised conflicts (Bronkhorst, 2011). These in turn affect how access to scarce
communal resources is managed between the groups.

Related issues include widespread poverty and weak institutional and

governance capacity. In particular, weaknesses in law making and enforcement,
the provision of essential services and the management of resources lead
to insecure land tenure and access, and to poor resource management and
distribution (Mohammed, 2002; Saeed, 2009a, 2009b). Competition and claims
over access to land, development policies that favour farming over pastoralism,
and ambiguity in laws governing access to land are related issues (Egeimi and
Pantuliano, 2003). These will be discussed in more detail in the third section of
this paper.
Second, the post-civil war situation is also exacerbated by natural and human-
induced changes in the climate and environment (Saeed, 2009a, 2009b; United
Nations Development Programme [UNDP], 2006; United Nations Environment
Programme [UNEP], 2007). Sudan has had a year-on-year decline in rainfall of
0.5% between 1941 and 2000, with declines from c.425 mm/year during 1941-
1970, to c.360 mm/year in 1970-2000 periods. The desert has expanded south
by between 50km and 200km since the 1930s (UNEP, 2007:9). Land degradation
– the result of demographic pressure and poor resource management according
to UNEP (2007) – is further contributing to vulnerability. Deforestation is
occurring at a rate of 0.84% per annum nationally and 1.87% in UNEP case
study locations, with 11.6% of forest cover lost between 1990 and 2005, and
nearly 40% of cover since independence (UNEP, 2007:11). Deforestation across

7 For instance, in Southern Kordofan (the state immediately north of the border with now
independent South Sudan), black Nuba farmers joined the opposition SPLM/A (the Sudan
People’s Liberation Army/Movement) against the government during the civil war, after
the government armed Baggara pastoralists of Kordofan and Darfur against the Nuba
with the promise of Nuba land after the war (Buckles, 1999; Suliman, 1999). At the time of
writing, Southern Kordofan has seen violent clashes since July 2011 between government
troops and members of the Sudan People’s Liberation Movement – North (SPLM-N). The
latter has a strong support base among black Nuba farmers (UNMIS, 2011).

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the drylands of Africa has a devastating effect on rangeland resilience as it

exacerbates desertification, creating scarcities of land for grazing for pastoralists
(Berkes et al., 2000).
Third, these environmental changes would not have been so critical had nearly
80% of Sudanese not depended for their livelihoods on the agricultural and
livestock sectors (Global Environment Facility [GEF], 2007). Pastoralism
and rain-fed farming, or a combination of these, have traditionally been
and continue to be the main forms of livelihood production for Sudanese
(Fahey, 2007). Both groups are highly reliant on and respond to natural climatic
changes – pastoralists travel north during the rainy season, during which
farmers in the south plant crops. This is reversed in the dry season when
pastoralists need to move south to wetter areas in order to secure grazing for
their livestock (Siddig et al., 2007).
Traditionally, scarce resources were peacefully managed and shared between
the groups through, for example, judiyya (Saeed, 2009a, 2009b; UNDP,
2006). Recently, however, resource competition has intensified as a result of
the aforementioned changes in climate and the environment. This is coupled
with post-conflict developments in the socio-economic, political, institutional,
legislative and demographic landscape, resulting in higher levels of resource
scarcity and conflict among and within pastoralist and farmer groups (Egeimi
and Pantuliano, 2003). It is instructive to consider how conflicts over resources
arise in Sudan.

Pastoralist-farmer conflicts in Sudan

A typology of pastoralist versus farmer conflict is emerging from studies of
such conflicts in Sudan (Siddig, 2007; summarised by Bronkhorst, 2012) that
clearly demonstrates the role played by resource scarcities. The types of conflict
recorded range from competition through disputes to instances of collective
violence in Kordofan and in Darfur.8

8 For specific cases, see Bronkhorst, 2011; Egeimi and Pantuliano, 2003; Egeimi et al., 2003;
El Hassan and Birch, 2008; Large and Suleiman El-Basha, 2010; Saeed, 2009a, 2009b;
Suliman, 1999.

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Conflicts typically happen near or along pastoral migration routes, especially

where pastoralists’ livestock encroach on farmland or where agriculturalists
started to farm on land that is traditionally meant for livestock routes or for
grazing. Encroachment is usually the result of traditional migration routes that
have shifted or are being blocked. These shifts or blockages are often the result of
droughts and desertification, the civil war and insecure land tenure and access.
This last is due particularly to the Government of Sudan’s (GoS) introduction of
private mechanised farming projects in fertile areas of Sudan which prevents the
use of traditional or favourable livestock routes (Siddig, 2007).

In terms of water, one result of new mechanised farms is that life-giving water
resources along livestock routes are in parts no longer legally available to
pastoralists. When pastoralists access this water they come into conflict with
private land owners and when they seek alternative water sources they often
come into conflict with farmers. Drought and desertification also lead to a lack
of water along livestock routes, with the same effects. Conflicts over water occur
near hafirs (man-made water holes dug out to capture surface run-off) or in cases
where farmers, because of drought or water scarcity, are becoming protective
over water sources previously shared with pastoralists and their animals (Siddig
et al., 2007; Bradbury et al., 2006). Rainfall variability (for example rains not
arriving when they should) forces pastoralists to leave grazing areas earlier. They
often thus reach farming areas before farmers have had a chance to harvest.
Livestock then damage and graze on crops, leading to conflict.

Judiyya or customary mediation

Judiyya is a sophisticated form of customary, citizen-based third-party mediation
(Flint, 2010; Birech, 2009). In Sudan it is an important social institution for
resolving conflicts at different levels, ranging from personal disputes between
individuals to conflicts between ethnic or tribal groups (Babiker, 2002a, 2011).
Researchers report on judiyya processes being followed in Darfur (Mohammed,
2002; Flint, 2010; Birech, 2009), Southern Kordofan (Bronkhorst, 2011), North
Kordofan (Wadi et al., 2005), parts of northern Sudan (Mohammed, 2002),
eastern Sudan and South Sudan (Mohammed, 2002; Wassara, 2007).

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Mediators (or ajaweed, plural; ajwadi, singular) are usually selected from
traditional leaders (or native administrators) who are respected elders and
‘men of good deed and men of respect’ (Egeimi et al., 2003:20). They are often
figures known for their knowledge of customary law (Flint, 2010) and for their
understanding of the ecology and history of tribal areas (Babiker, 2011). Judiyya
is relatively easy to set up for minor conflicts as ajaweed are freely available
(despite their high standing in the community), approachable by communities
and not protected by any support staff (such as secretaries). Depending on the
seriousness of a matter, it is first received by the Imams or Sheikhs, who are
religious and village leaders and who take decisions according to Shari’a Law. If
this fails, the case is passed to Omdas, or local administrative chiefs, who tend to
inherit their positions from their fathers. In some cases, conflicts will be referred
to the Nazir - the official tribal leader (Larsen, 2007; Flint, 2010).9 Only when
judiyya fails would legal channels be sought (Egeimi et al., 2003).
Judiyya is particularly suitable and successful for smaller scale conflicts (Babiker,
2002a, 2011) where meetings are held communally. However, judiyya can take
different forms and operate at different scales. It can be led by the community,
government or facilitated by other actors (such as local or international NGOs
and international organisations) and operate at communal level or even at state
level (Mohamed, 2009). Judiyya therefore differs between locations and different
groups, and seems to depend greatly on the approach of the ajaweed (Birech,
2009). Abdul-Jalil (2005) argues that while people share a common acceptance
of judiyya and despite its widespread acceptance as a form of TCR, the beauty of
the institution lies in the fact that it is not standardised. Ajaweed are thus able to
respond to a wide range of conflict situations.

Judiyya plays a critical role in the management of natural resources, especially in

a country that faces scarcities of water and fertile land for grazing and farming.
It therefore performs an important function, especially at village level, to settle
disputes between individuals over water and land. During colonial times it
was the key institution that regulated land and grazing rights between groups

9 Al-Hardullu and El Tayeb (2005:15) explain that the Nazir is the political head of the
dar (homeland), ‘territory that is controlled by members of a single ethnic group. Dar
ownership implies rights over land and political and administrative power’.

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(Babiker, 2011). For example, pastoralists would approach traditional leaders

or native administrators and arrange for compensation to be paid if damages
happened during their passage (El Hassan and Birch, 2008).

Native administrators, through judiyya and acting as ajaweed, were also

responsible for managing and protecting common pool resources, for resource
conservation and determining their sustainable and peaceful use and for keeping
the peace vis-à-vis natural and other resources. This extended further to other
activities such as pest and fire control (Nile Basin Initiative [NBI] and Eastern
Nile Technical Regional Office [ENTRO] 2006; El Hassan and Birch, 2008:7).
The NA managed livestock movements and ensured the separation of grazing
and farming areas, issuing orders regarding the timing, direction and location
of livestock migration, when water points would be available, and the timing for
the arrival of pastoralists in farming areas (El Hassan and Birch, 2008).

Judiyya to address resource-related conflicts

Egeimi et al. (2003:20) documented in some detail the process and considerations
of judiyya in their study of resource-related conflicts in the state of Northern
Kordofan. In short, judiyya involves:

a. Securing commitment from conflicting parties for mediation;

b. Fact-finding and analysis to establish the root causes of conflict;

c. Listening to both sides and reaching some sort of consensus on the root
causes of the conflict;

d. Reaching a solution.

In some cases mediation is followed by the signing of an official agreement by

both parties but this seems to be a more recent development (Egeimi et al., 2003).

Even before the start of a mediation meeting, ajaweed play an active conflict
resolution role by offering to be mediators or being approached to do so. Often
securing commitment to judiyya from conflicting parties means a cessation of
hostilities (if any). In Northern Kordofan, ajaweed are responsible for gauging

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the amount of tension between conflicting parties, often threatening to leave

or not undertake the mediation if the parties are unable to productively engage
in the mediation. This threat is taken very seriously – custom and respect for
ajaweed ensure that most community members would not want to see mediators
leave unhappy. Ajaweed may also visit each party individually beforehand to
facilitate reconciliation later on (Egeimi et al., 2003).

Egeimi et al. (2003) also highlight the importance of the ajaweed’s knowledge
of the ecology of an area and the history of similar conflicts or even the
history of that particular conflict. These are essential to provide the context for
preparations for the judiyya meeting itself and to be able to show examples of
how a conflict can be resolved.

The actual mediation meeting to resolve a resource-related conflict itself usually

involves a number of steps:

1. The expression of mutual forgiveness by both parties;

2. Examples of conflict resolution from the perspective of the Koran are

highlighted by the ajaweed;

3. A presentation by each of the parties of their analysis of the conflict or

issue (in other words where both parties are able to state their case, and
outline what they see as the facts and contributing factors to the conflict);

4. A way forward is proposed by the ajaweed and discussed (while the

mediator may already have a solution to the conflict, it is customary to
respect the parties to the conflict, to let them both state their case, which
helps to make them feel that the solution has come from them);

5. A conclusion of judiyya with a reading from the Koran (Egeimi et al.,

2003).

The questions of compensation and restorative justice appear to depend on

the case at hand. According to Egeimi et al. (2003), judiyya may or may not
(depending on the case) involve a discussion of ‘punishments and fines or rewards’
in the form of compensation for losses suffered. In other cases, restorative justice
and compensation are important objectives in judiyya. For instance, according

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 Customary mediation in resource scarcities and conflicts in Sudan: Making a case for the Judiyya

to Wadi et al. (2005:15) important objectives in judiyya include determining

‘casualties, destruction and damages’ (such as to life, buildings, crops) and
to determine blood money (or diya) and any compensation. Mohammed
(2002) however argues that objectives to compensate for resource damages are
secondary to the broader objective of maintaining social cohesion and facilitate
reconciliation between conflicting groups.

There is surprisingly little literature that focuses explicitly on the use of judiyya
to resolve conflicts over scarce resources. This does not mean that resource
conflicts are rarely resolved through judiyya. Rather it highlights the general
applicability of the mechanism, to deal with all conflicts on a communal level,
be it about the environment or not. As Swift (1996 cited by Swiss Peace, 2009)
argues, the management of natural resources is thus a daily affair that forms
part of the ‘everyday management of pastoral affairs’. This perhaps explains
why the specifics of environmental discussions that take place under judiyya
are not recorded in more detail. Also, the inter-connectedness of issues on a
communal level, the underlying structural issues that often underpin conflict
(such as poverty and underdevelopment) and the importance of resources for
livelihoods, mean that it might not be possible to distinguish resources as a
discreet issue in judiyya.

Judiyya in peace conferences

It has been argued that climate change is likely to exacerbate existing tensions and
create new conflict fault lines. For this reason it is important to consider the use
of judiyya in resolving larger-scale and tribal conflicts in Sudan. For larger-scale
conflicts, judiyya can take the form of an open conflict resolution conference or
a peace conference (Birech, 2009; Wadi et al., 2005). Peace conferences usually
involve a wide range of stakeholders from government officials, to traditional
leaders of other tribes, pastoral and farmer unions, NGOs and other institutions.
In recent years, the donor community and international NGOs in particular
have also been promoting the use of peace conferences to resolve tribal conflicts
(Mohamed, 2009).

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In the state of Southern Kordofan and its neighbouring states where resource-
related conflicts between and within pastoralist and farmer groups are widespread
(Balandia, 2010; El Tom, 2010; Mohammed, 2002), the use of judiyya in the
form of government-sponsored peace conferences is prevalent and promoted.
Conferences are often sponsored or supported by the state government, NGOs,
international organisations such as the UN and its then peacekeeping arm
in Sudan, UNMIS (Bronkhorst, 2011), often in collaboration with state and
local authorities. In the state, the government body to strengthen peace – the
Reconciliation and Peaceful Coexistence Mechanism (RPCM) – works closely
with international institutions such as the UN and other funders, which finance
programmes and projects and provide technical support for judiyya.

Challenges arise as a result of the involvement of external actors in judiyya. One

of these relates to concerns about government meddling in judiyya, with some
ajaweed appointed with clear political affiliations (Mohammed, 2002). Another
is that government involvement often means that only the symptoms of conflicts
are addressed with little focus on underlying issues (Wadi et al., 2005). An
important challenge is one of legitimacy, which arises from the involvement of
foreign actors and local civil society in local affairs. If processes are not accepted
as belonging to the communities themselves, and judiyya is seen to be externally
facilitated, what are their chances of success? International and local NGOs aim
to ensure that processes are acceptable both locally and by the state governments,
as such high profile initiatives would not proceed without government support
(Badawi, 2010; Badawi, 2010; Balandia, 2010).

Greater government involvement ensures that when agreements are reached

there is arguably a greater chance that decisions would be implemented.
This may also apply to NGO involvement, given that NGOs often have funds
available to assist with implementation. With greater government involvement
it is more likely that increased government awareness of resource scarcities
as a result of structural factors may lead to policy changes. Where structural
scarcities could be managed without the possibility of policy changes, a case
exists for the involvement of state and local government. This would ensure that,
should NGOs wish to act to assist communities or communities wish to take
steps to address scarcities, there would be the appropriate legal, administrative

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and other institutions. At the very least these could approve of steps being taken
and provide the necessary support.

Judiyya, environmental scarcities and conflicts: Challenges

It is also instructive to examine some factors which facilitate or constrain the
legitimacy and functioning of judiyya and ajaweed and affect the implementation
of agreements reached. Challenges include:
a. the role and decline of traditional authorities and the NA in Sudan;
b. broader issues of legitimacy and power vis-à-vis traditional authorities;
c. governance issues in Sudan.

Traditional leadership, the Native Administration (NA) and Judiyya

Native administration, through tribal leaders, has been part of Sudanese society
since the 1500s (Elhussein, 1989). While the role of traditional leaders was
eroded by the Mahdi regime (between 1885 and 1898), the NA was reintroduced
by the British colonial administration in order to ensure pacification at a local
level (Elhussein, 1989). Where previously tribal leaders led conflicts as warriors,
their role was transformed by the British to that of peacemakers (or ajaweed).
They were entrusted to ensure law and order in their communities and with
other groups (Mohammed, 2002).

It is evident that the role of native administrators was essential in the functioning
of judiyya and to secure law and order on the communal level. In addition,
acceptance by conflicting parties of ajaweed as legitimate third parties in
mediation and judiyya as a legitimate mechanism for conflict resolution, are
key aspects ensuring the survival of judiyya. However, government policies
instituted since the 1960s have systematically undermined the role of tribal
structures, processes and values, and the NA which has affected the legitimacy
of ajaweed and functioning of judiyya (Mohammed, 2002; Babiker, 2011).

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For instance, with the abolishment of the NA in 1970, followed by the Unregistered
Land Act of 1971, the government effectively took over the responsibility for
resource management from the NA. While this move was largely the result
of commercial agricultural development plans, it nonetheless led to a loss of
power and privilege for the native administrators at the time (Al-Hardullu and
El Tayeb, 2005). The abolishment of the NA effectively removed Nazirs, Sheiks
and Omdas from power, which had a crippling effect on conflict resolution and
resource management at the communal level (El Hassan and Birch, 2008).

The NA was reintroduced in the 1980s but had been severely undermined
as a result of its absence. For instance, some argue that communities value
the NA less, while native administrators themselves have lost interest in their
traditional responsibilities (Mohammed, 2002:3). The latter may well be because
the government appears hesitant to allow the native administrators the full
power and status of the past. Al-Hardullu and El Tayeb (2005:72) argue that
the government could fear losing control locally and fear losing support for its
Islamising policies (also see Shouk, 2011). Thus, while the less powerful positions
of Omda and Sheikh were re-established, the highest and most influential title
of Nazir was not (it was replaced by Amir). According to Elhussein (1989) this
was as a result of ‘political complications’.

Efforts to promote the legitimacy of the NA10 after the fall of the Nimeiri
regime in 1985 were ‘limited, uncoordinated, and lacked proper and legal
institutionalization’ (Elhussein, 1989:444). This is perhaps not surprising,
given that after abolishing the NA, the government introduced new systems
which created an overlap of authority and mandate with regard to resource
management in particular (Table 2 illustrates the overlap of formal and
traditional structures).

10 For instance, local people’s government councils were dissolved (these councils were
introduced by the Nimeiri regime to replace the function of NAs at local levels, after the
latter’s abolition) (Elhussein, 1989). Also, nomadic leaders in the then Kordofan region
were reinstated as administrative assistants (Muawin Idari). In Darfur, similar measures
were taken, where leading tribal families were represented in administrative bodies at
provincial level (Elhussein, 1989:443).

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Table 2: Hierarchy of formal and customary authority

Formal Customary
Federal -
State -
Province (Commission) Tribe (Nazir, now Amir)
Locality (Mahalia) Section (Omda)
Village Clan (Sheikh)
Source: UNDP 2007 cited by El Hassan and Birch 2008.

The new systems faced a number of challenges. They were not able to facilitate
the linkages between communities and local government in the same way and
with the same success as the NA. The NA had and, some argue, continues to
have (Wadi et al., 2005) the competitive advantage for resolving conflicts. For
environmental conflicts native administrators are well versed in and know the
history of conflicts, the natural environment and the groups that depend on
the environment for a living. For these and no doubt other reasons, despite
the introduction of local councils after the abolishment of the NA, a great
administrative vacuum was left. This could not be filled by formal structures. It
contributed to the decline of the Nemeiri regime in certain areas, the failure to
collect taxes that had been facilitated through the domination of major tribes,
and the authority of Nazirs (Elhussein, 1989:441).

These challenges led some governors in the states of the then Kordofan, Gedarif
and Darfur to re-establish some form of the NA as ‘self-administration’ to
manage the overlap between formal and traditional institutions and weak
government capacity locally. In two states there is evidence that the NA has been
given official powers to manage natural resources and to deal with conflicts
involving the environment. In Northern Kordofan, an act was instituted that
gave formal authority to the NA for land, natural resource management and
environmental conservation. While, since the first abolition of the NA, this is the
responsibility of the local councils, the act delegated power to the NA to take on
this role (Egeimi et al., 2003). There are also reports that in Sudan’s Gedarif state
conflicts over land, water and grazing rights are resolved by members of the NA
and rarely reach official legislative channels (Wadi et al., 2005).

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Also, where there has been a lack of government involvement, traditional

systems remain, even without formal delegated authority. For instance, eastern
Sudan largely has not benefited from government involvement in conflicts,
such as through peace conferences held in Southern Kordofan or in Darfur.
This has meant that the NA, through tribal or ethnic leaders, continues to play
a major role in resolving conflicts. In this case, while the native administrators’
role is informal, their involvement and the power they bring to bear on
conflict resolution proceedings are much greater than those of government
representatives (Al-Hardullu and El Tayeb, 2005). It may well be that this
model of informal governance and conflict resolution would only be effective
in remote communities, where government presence is nearly absent. This is
recommended by some scholars (Birech, 2009).

The upshot of renewed NA involvement (whether official or not) is that turf

wars between the NA and local government are a distinct possibility which will
affect the way conflicts are dealt with, if at all. One example is that of tensions
arising between local government and native administrators about decisions
taken by the NA on land allocation in Northern Kordofan (Egeimi et al., 2003).
While state and federal governments legally retain the right to allocate land,
the traditional authority granted to the NA means that land allocation in a
homeland (dar) is done by the Nazir or the NA.

The GoS has also had a radical effect on judiyya and the NA. In some cases this
has been by replacing native administrators with the politically faithful, thereby
ensuring political loyalty rather than the appointment of objective mediators.
Some argue that the government has been responsible for the Islamising of the
NA (Shouk, 2011). This has affected the impartiality and therefore legitimacy
and efficacy of some ajaweed and thus the judiyya process. It is telling that
one author argues that ‘the government has its political priorities sometimes
conflicting with the interests of parties in conflict’ (Mohammed, 2002:4). Egeimi
et al. (2003) also report on political appointments of Amirs and Omdas in
certain areas, although they argue that elsewhere the NA remains strong.

The appointment of the politically connected as native administrators may have

certain benefits in that it could facilitate changes in policy and the interaction

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with ruling party structures. However, it is unlikely that these individuals would
have any legitimacy locally if they are not accepted by their people and if they do
not perform their function fairly and without bias. For example, while the case
of Darfur cannot be examined in isolation from broader political, economic and
social factors that beset the state, it is interesting that repeated peace conferences
have been unsuccessful. Mohammed (2002) reports that in the 40 years from
1957-1997, 30 conferences were held and all were unsuccessful. These often
involved the same conflicting parties. The causes for the failure of judiyya are
ascribed to a lack of independence and neutrality of ajaweed and interference
by the government with political agendas, while tribal militia leaders rather than
tribal elders were in charge.

Another factor highlighted by Mohammed (2002) is that the interference of

government has reduced a deeply rooted and key practice of judiyya – seeking
and identifying the root causes of a conflict. Instead, ajaweed are asked to address
the symptoms of conflict while ignoring the underlying factors. Mohammed
(2002:5) argues that government-sponsored judiyya tend to be mechanisms for
conflict ‘postponement rather than resolution’.

Power and legitimacy of ajaweed

Clearly the role of traditional leaders is increasingly challenged. Government

policies, post-conflict dynamics, the rise of modern aspirations and external
actors have affected the legitimacy of traditional leaders. These are bringing to
bear power that is eroding the legitimacy of judiyya (Wassara, 2007) and which
may even prevent it taking place at all. Moreover, ‘new communal powers’ are
arising, which to a large extent derive legitimacy and power exogenously, often
in the form of weapons supplied by the government (Babiker, 2011).

One such reported power is the youth (Babiker, 2011) or tribal militia leaders
(Mohammed, 2002). Their legitimacy is derived from their followers and
weapons, and their world view and values are informed and motivated not
by social cohesion, the community and social capital (values underpinning
judiyya), but by economic and political power (Babiker, 2011). According to

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Babiker (2011) ‘The interest of the youth is different from the ajaweed – youth
are interested in political power and serving the party, the ajaweed in serving
the community’.

The upshot is that whereas traditional leaders understand the ecology of their
homelands (diar), these new sources of authority may have little appreciation
or understanding of the delicate balance between people and nature, seasonal
changes in the environment, and relationships between communal groups. They
also have very little respect for decisions taken by traditional authorities (Babiker,
2011). As one some scholars argue ‘Hawazma young herders in para-military
force uniform and carrying guns are no longer conforming to the decisions
made by assessment committees on compensation for crop damage when their
cattle trespass into cultivated areas of local farmers’ (Wadi et al., 2005:15).

Another issue is that judiyya does not take place among actors of equal authority,
nor is it isolated from external influences. Therefore, it is necessary to consider
the ‘wider political contingencies, power constellations and elite interests’ that
bring power to bear on proceedings (Swiss Peace, 2009:38). Ajaweed themselves
may therefore be influenced by tribal powers, for instance by tribes of status
or those which have a particular position in society. There are also reports of
bias against pastoralists in judiyya and that pastoralists have a lower chance of
‘winning’ in the process (Wadi et al., 2005:22).

Other actors that bring power to bear on traditional authorities and judiyya
include owners of new mechanised farming projects, donors, local civil society,
international organisations and charities, and even peacekeeping forces such
as those deployed in the previously united Sudan, UNMIS and UNAMID
(Bronkhorst, 2011). There are even cases of universities being involved in
conflict resolution and training on a communal level (Bronkhorst, 2011), and it
would be naïve to assume that they do not influence proceedings.

In terms of resource management and conflict resolution under judiyya, the

crisis of legitimacy that results from these changes and power imbalances create,
among others, complications in the selection of representatives to negotiate
resource access and resolve conflict. As Babiker (2011) warns, not everyone
will want elders to speak for them, or native administrators as ajaweed, and

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 Customary mediation in resource scarcities and conflicts in Sudan: Making a case for the Judiyya

could be spoilers during negotiations or during the implementation stage of

judiyya agreements. In this context, with more stakeholders and new sources of
authority, resource scarcity and conflicts are a lot more difficult to manage; there
may be a need for the GoS to play a more significant role to restore the balance
of power locally and to facilitate the implementation of agreements reached
through judiyya.

Institutions and mechanisms of governance

Broader governance questions are crucial in the management of scarcities,

resource management and processes that take place before or contribute to
conflict. Arguably, government should also play a significant role, after judiyya
has taken place, in the implementation of decisions. This is especially necessary
in cases of larger conflicts and where the outcomes demand some administrative,
technical or policy interventions (such as new route demarcations, or the
creation of new water sources). Therefore, while government might seem
distinct from judiyya, it forms an essential part of the mechanism by creating an
enabling or disabling (or distorted, as demonstrated) environment within which
the mediation mechanism and ajaweed function.

Government (as demonstrated) has the potential to provide power to the NA,
through delegated authority, to manage resources and deal with conflicts. It
stands to reason therefore that if government is weak or ineffectual it will not be
able to maximise the competitive advantages inherent in areas where customary
law, traditional leaders and customary conflict resolution mechanisms are better
able than local government to deal with local issues. In other words, institutions
and mechanisms such as route demarcation, federal policies that impact local
conflicts, judiyya agreements that may call for policy changes, the facilitation
of resource management, implementation of policies, and a myriad of others,
require government support and facilitation if not leadership.

Other factors which affect judiyya in Sudan include weak governance locally
and weak governance of natural resources more generally (Saeed, 2010). A lack
of clear mandates for different resource management institutions, overlap of
mandates and a lack of capacity generally are concerning, and will affect the

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Salomé Bronkhorst

implementation of decisions taken under judiyya. For instance, some scholars

report on ‘institutional chaos’ created as a result of the restructuring of various
ministries, which have affected the management of water resources, rangeland
and the protection of pastoralist interests (El Hassan and Birch, 2008; Bronkhorst
2011). In one case, the Range and Pasture Administration was removed from
the Rural Water Corporation, which has affected coordination between these
two bodies significantly according to the UNDP (2007, cited by El Hassan and
Birch, 2008). In addition the Range and Pasture Administration is severely
under-funded despite the critical contribution the livestock market makes to the
Sudanese economy. In Southern Kordofan, for example, the state Rural Water
Corporation is hampered by a lack of capacity in terms of tools, staff, skills,
underinvestment and generally poor support from the federal government.
In the context of weak government structures unable to resolve conflicts,
competing mandates and poor environmental management, water scarcity has
increased, contributing to conflicts between pastoralists and farmers (SECS,
2010:4; Bronkhorst, 2011).

Finally, in order to manage the uncertainty and variability of the climate, the
migration of people and livestock, and the management of resources in sending
and receiving communities, and along livestock routes, information and a
process of learning are essential. However, this process is severely undermined
by a serious lack of data and information on the pastoral system, land use
and land use changes, human and livestock population sizes and even project
documentation on past environmental and agricultural projects (UNDP, 2006;
Saeed, 2009a). Although NGOs and international organisations are compiling
data they often do not talk to each other. In addition, livestock routes are not
defined and are in constant flux as a result of natural environmental change
and other pressures (Saeed, 2009a). According to the UNDP, this information
weakness naturally undermines the work of the government and agencies to
‘propose [perhaps in response to judiyya agreements] and implement feasible
projects in areas of development and resources planning, including forestry,
land use, wildlife, water development, etc.’ (UNDP, 2006:3).

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 Customary mediation in resource scarcities and conflicts in Sudan: Making a case for the Judiyya

Concluding discussion

There is potential for customary mechanisms such as judiyya to manage

scarce resources and conflicts that arise from climate change in Sudan. In some
cases, the native administrators through judiyya seem to have the comparative
advantage to perform this function that will be a crucial part of adaptation to
climate change.

A number of factors promote or constrain the legitimacy and functioning of,

and the implementation of agreements reached through, judiyya. Judiyya is
highly dependent on a legitimate traditional authority, such as the NA, that
operates in an environment where the daily lives of communities are embedded
in customs and customary law. Judiyya cannot function without the NA which,
while native administrators derive legitimacy from within, obtains its power to
act exogenously from the government. Thus, when that power was removed, as
it was in 1970, and not fully reinstated later, the NA was weakened and so was
judiyya. Should the Sudanese government see the value in promoting the NA
and judiyya for resource and conflict management, it is realistically the only
actor that is able to truly strengthen and restore fully the NA and judiyya. It is
clear that this decision would need to be taken with the overall peacebuilding,
development, DDR and post-conflict reconstruction agenda in mind. To this
end, a number of considerations emerge from this chapter.

First, as noted, the GoS is the only actor able to restore power to the NA, initially
at a federal and policy level, and then feasibly through the delegated authority
of local governments. There is evidence that local governments have successfully
delegated authority to the NA for resource management and conflict resolution
but that authority should be clearly delineated and exist with little interference
by the government. That said, the NA and local government should work
with state and federal governments so that the management of scarcities
by the NA can take place within a broader framework of formal land and
resource management.

Local, state or even federal government involvement in judiyya will be necessary,

in some cases. This is especially so given increasing privatisation of tribal lands,
mechanised farming policies, the nature of pastoralism, and where there is a
need to work with non-traditional stakeholders and issues such as mechanised

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Salomé Bronkhorst

farming schemes and private land owners. Also, as many structural scarcities
in Sudan are the result of government weaknesses, judiyya requires a higher
level of formal engagement to address the root causes of conflicts and not
just the symptoms. Therefore, for conflicts resulting from government policy
or structural scarcities, or that are larger in scale, government support and
involvement may be important in order to ensure that the implementation of
agreements is facilitated. Furthermore, where local government is weak or non-
existent there may be a need for oversight by state governments.

Government involvement carries a number of caveats. One benefit of judiyya

is that it is by most accounts a ‘fast’ form of conflict resolution, which could
commence immediately and resolve conflicts quickly. But the danger is that
government bureaucracy or a lack of capacity could delay processes. There is
also the chance that government interference, manipulation and Islamisation
of judiyya and ajaweed will continue in some cases. However, if larger-scale
and tribal conflicts are to be sustainably resolved, and if judiyya is deemed the
way forward, that is the risk which needs to be taken. Some of the weaknesses
in administrative, technical and implementation capacity of the government
highlighted in the chapter are likely to be issues that constrain cooperation on
judiyya between traditional and formal authorities, and between local, state
and federal governments. Nevertheless, agreements reached that are considerate
of broader formal processes and policies are more likely to be sustainable than
agreements that will infringe on the rights of others like private land owners, or
users of other common resources.

Second, for judiyya to have a future in Sudan, there will be a need to strengthen
legitimacy locally. In light of new powers or authority at a communal level (and
while providing official authority to the NA will help this process), there is a need
to manage armed tribal militias. Without the legitimacy derived from their own
communities native administrators and ajaweed are unable to perform their
function. Strengthening traditional authority will need to form part of present
DDR processes. Whether the political will is there, and whether successful
disarmament is immediately possible in post-conflict Sudan (in light of recent
developments) is another question, which should be seen in the context of the
highly complex web of factors that contribute to, among others, the continued

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 Customary mediation in resource scarcities and conflicts in Sudan: Making a case for the Judiyya

presence of tribal militias and the rise of modern aspirations amongst

young people.

Third, weaknesses in governance, in terms of administration, legislation and

resource management can create resource scarcity and conflicts. But they can
also influence the functioning and implementation of judiyya agreements.
Notwithstanding government information weaknesses and the lack of clear
over-riding land and resource management policies, some development is
taking place in Sudan. It stands to reason that as government capacity (especially
at a local level) grows and the aforementioned challenges are addressed, there
would be a natural decline in traditional authority. The question is as to
whether this is why judiyya is facing serious present-day challenges. In other
words, are we witnessing a natural decline in traditional authority and conflict
resolution mechanisms resulting from development? The evidence suggests not
and highlights that most changes are the result of external factors. The place for
judiyya and traditional authorities remains in modern day Sudan. In many cases
it would seem the most suitable mechanism for resolving future climate-related
resource conflicts, especially in rural areas and for smaller-scale conflicts.

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Conclusion

Martha Mutisi

Given the increasing search for alternatives and answers to the African
problematique, a critical review of the status and role of traditional institutions
and their significance in conflict resolution in Africa is both timely and
responsive. Even as calls for African solutions to African problems are being
made at the policy level, especially from within the African Union, there is still
a compelling need for corresponding calls and responses by the academic and
practitioner community. This is the rationale for compiling this monograph:
to examine in detail how traditional and state institutions are working together
towards resolving the challenges posed by conflict in the continent. The chapters
deal with Darfur, Ethiopia, Rwanda, Sudan and finally Uganda. Together they
are a cumulative response to the question of how to operationalise the rhetoric
on ‘African ownership’ of conflict resolution processes.

The various chapters in this monograph clearly demonstrate the relevance of

traditional institutions in conflict resolution and peacebuilding in Africa. This
collection is motivated by the reality that in the context of the post-conflict
African state, conflict is inevitable and permanent. The teething African states
face multiple challenges including limited capacities for providing development
and security. The result has been the ‘withdrawn state’. In these states, the vacuum
is often filled by other forms of governance, notably traditional institutions.

The case studies presented in this work demonstrate that communities possess
local capacities for promoting peaceful coexistence. The role of traditional
institutions in conflict resolution continues to burgeon. This is because in
many post-colonial and post-conflict African states, governmental capacities
for managing conflicts are still weak. State institutions are not sufficiently
capacitated to undertake conflict management at all levels.

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Martha Mutisi

In all of the chapters, the authors further emphasise how these traditional
institutions are ingrained in the culture and values of their communities.
This is important because people are often deeply committed to their cultural
values. As a result, in many conflicts in Africa the notion of culture becomes
both an objective and a subject for conflict resolution. Traditional structures of
conflict resolution are thus also relevant in building a sense of community and
facilitating ownership of peace processes by communities.

Although traditional institutions undoubtedly contribute towards conflict

resolution and peacebuilding, the case studies presented here also capture
certain ambiguities and paradoxes surrounding these institutions. First, there
are concerns about actual and perceived clashes between traditional systems
of customary law and modern jurisprudence, especially within the realm of
human rights. Second, the case studies remind us that the relationship between
traditional institutions and the state is a delicate one, and in some cases
politicised. For example, in the case of Rwanda, although the abunzi fill a huge
gap in the justice system by attending to smaller civil and criminal cases at the
local level, the author criticises the idea of state-mandated mediation. This is not
only for its coercive nature but also for the potential of the abunzi mediation
being used as an extension of the intrusive Rwandan state.

Another weakness of traditional institutions emerging strongly across all the

chapters is the limited space which exists for women to play leadership roles
and to effectively benefit from the utilisation of traditional institutions. From
the Ekika system among the Baganda in Uganda to the judiyya in Darfur and
Sudan, the inaudible voice of women in traditional conflict resolution processes
is a cause for concern. Admittedly in the case of the abunzi mediators in Rwanda
the state, through the Rwandan Constitution, calls for 30% representation
of women in public positions and institutions. However, many institutions
of traditional conflict resolution remain male dominated and therefore
marginalise women.

Despite these shortcomings, the authors of the case studies demonstrate that
traditional institutions of governance and conflict resolution still play an
important role, especially given a supportive policy and political environment.

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 Conclusion

The strengths of both the traditional and the state institutions in conflict
management need to be drawn upon to promote an integrated approach to
peace, security and development.

From the perspective of the ‘nested paradigm’ of conflict, peacebuilding efforts

must connect micro-level and relational issues with the systemic and structural
dimensions of conflict. Using the same argument, the connection between the
traditional structures and state institutions will ensure sustainable conflict
resolution. Ultimately, an effective integrated state-local approach to conflict
resolution will promote the larger agenda of peace and security in Africa. Most
importantly, as demonstrated by the case studies in this monograph, traditional
institutions of conflict resolution in Africa depart diametrically from modern
approaches. The traditional institutions are more restorative and conciliatory
than the modern ones, which emphasise the establishment of guilt and execution
of retribution. The case studies of the Afar in Ethiopia, abunzi in Rwanda, the
judiyya in Darfur and Sudan, and the Ekika among the Baganda highlight the
importance of compensation, restitution, reconciliation and reincorporation of
the offender into the wider community following the resolution of the dispute.

This collation of case studies thus opens debate on the possibility of integrating
both traditional and modern approaches to conflict resolution. Further research
needs to be undertaken to examine how the state and traditional institutions can
work together in building sustainable peace without undermining each another.
Some of the strategies that have been suggested include the establishment of
a national security policy based on a synergy of the revised traditional and
modern strategies. Other suggestions include the legalisation and constitutional
positioning of traditional institutions as approaches to enhance their
performance as well as to guide and monitor them.

Although the case studies focus more on countries in the eastern region of Africa,
the lessons to be drawn from this geographical constituency resonate with other
regions of the continent. Nonetheless, a key area for the further study of this
theme would be the expansion of the geographical coverage of the case studies to
include central, north, west and southern Africa. Additionally, further research
needs to be conducted into how to proactively prepare traditional institutions

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Martha Mutisi

to be vehicles of conflict prevention. This is especially relevant in the context

of the prevalence of election-related violence on the continent. Apart from the
gacaca courts in Rwanda, little is known about the potential role of traditional
institutions in addressing large-scale violence occurring at the macro-level.

In conclusion, this monograph underscores how African value systems and

institutions of conflict transformation remain relevant and viable towards
promoting peace and security on the continent. It is hoped that the lessons to
be drawn here will inform academic, policy, national and global discussions
on the role of traditional institutions in dealing with conflict, justice,
development, governance and security. It is anticipated that these case studies
will have succeeded in underscoring the message that African people and their
institutions are central to the successful resolution of their conflicts. Certainly,
traditional institutions will continue to shape the African landscape of conflict
transformation. Without manipulating or politicising such entities, the modern
post-colonial and post-conflict African state should continue to embrace these
institutions. They merit being viewed as a key feature of the African peace and
security architecture.

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Notes on Contributors

Andrea Bartoli

Dr Andrea Bartoli is the Dean and Drucie French Cumbie Chair of the School
for Conflict Analysis and Resolution (S-CAR) at George Mason University,
USA. He has been at the School since 2007, working primarily on peacemaking
and genocide prevention. The Founding Director of Columbia University’s
Center for International Conflict Resolution (CICR), a Senior Research Scholar
at the School of International and Public Affairs (SIPA), a Teaching Fellow at
Georgetown University, and at the University of Siena, Dr Bartoli has taught in
the US since 1994. He is a member of the Dynamical Systems and Conflict Team
and a Board member of Search for Common Ground. He has been involved in
many conflict resolution activities as a member of the Community of Sant'Egidio,
and has published books and articles on violence, migrations and conflict
resolution. He was co-editor of Somalia, Rwanda and Beyond: The Role of
International Media in Wars and International Crisis. An anthropologist from
Rome, Dr Bartoli completed his Italian dottorato di ricerca (PhD equivalent)
at the University of Milan and his laurea (BA-MA equivalent) at the University
of Rome.

Salomé Bronkhorst

Salomé Bronkhorst is a research consultant on climate change, environment

and conflict at the African Centre for the Constructive Resolution of Disputes
(ACCORD). With a master’s degree in Environment and Development attained
from the London School of Economics, her research focus lies in the interaction
of development, environment, and climate change and peacebuilding issues
in sub-Saharan Africa. Previously, as Senior Researcher at ACCORD, Ms
Bronkhorst’s research and publications focused on issues related to climate
change, environment and conflict, including human security approaches to
addressing environment-related conflicts; the environmental dimensions of
pastoral-farmer conflicts in Sudan; and the use of traditional mechanisms of

151
conflict resolution to address environment- and climate-related conflict. She
has also worked and written on land mediation issues in Burundi, mediation at
the African Union, environmental justice and green technology, and on broader
development issues, such as HIV among domestic workers in South Africa.

Demessie Fantaye

Demessie Fantaye is a lecturer and researcher at the Department of Political

Science and International Relations, Addis Ababa University. He has also
served as a member of the editorial board of the Ethiopian Journal of the
Social Sciences and Humanities (EJOSSAH), from 2004 to 2008. His research
interests focus on mechanisms of indigenous conflict resolution in Ethiopia and
the nexus of security, development and conflict in Ethiopia in particular and
the Horn of Africa region in general. Mr Demessie has published several book
reviews, conference articles and reports focusing on development policies of the
Federal Government of Ethiopia, maritime piracy in the Horn of Africa and
regional security.

Martha Mutisi

Dr Martha Mutisi currently heads the Interventions Department at ACCORD. She

previously worked as a Senior Researcher in ACCORD’s Knowledge Production
Department. Dr Mutisi identifies and implements practice-oriented research
and provides technical and substantive expertise to strengthen ACCORD’s
knowledge production, management and interventions. A Fulbright Scholar
and recipient of the Harry Frank Guggenheim Fellowship for Young African
Scholars and the French Drucie Cumbie Fellowship for Conflict Resolution,
Dr Mutisi holds a PhD in Conflict Analysis and Resolution from S-CAR at
George Mason University. Her research interests include peacebuilding and
peacemaking, gender and development, regional institutions, democratisation,
governance and transitional justice. She has authored book chapters and journal
articles covering these themes.

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Ashad Sentongo

Ashad Sentongo is a PhD Candidate at S-CAR, George Mason University,

focusing on power-sharing and ethnic conflict in Africa, currently working
with the International Conference on the Great Lakes Region in Burundi
on Prevention and Punishment of Genocide and Crimes against Humanity
in the region, Mr Sentongo also worked with the Sudan Group at S-CAR to
reconcile rebel groups in Darfur, and Coexistence International at Brandeis
University on transitional justice in West Africa. Other areas of work included
National Defense University Center for Complex Operations (USA), Delta
State Economic Reintegration Program (Nigeria) on sustained dialogue in
oil producing communities, Mercy Corps (USA) on conflict management in
Kosovo, Guatemala, Indonesia and Ethiopia, Southern Africa Dawah Network
(South Africa) on education in township private schools, and Peace Education
Forum (Uganda) on peace education in Northern Ugandan primary schools.

Abdullahi Osman EI-Tom

Dr Abdullahi Osman El-Tom is Head of the Department of Anthropology,

National University of Ireland, Maynooth (NUIM). He was born in Darfur,
Sudan and has been living in Ireland for the last two decades. His publications
include the following books: Military Strategies of an African rebel movement:
the case of JEM, Sudan, published by RSP (in print); Darfur, JEM and the
Khalil Ibrahim Story, published by RSP, 2011, Arabic version published by Dar
Merit, Cairo 2011; Growing up in Darfur, Sudan, published by SSC, Cairo, 2007;
Proverbs of western and Central Sudan, jointly with A. Adam, published by SSC,
Cairo, 2002; and Globalisation: A critical study, jointly with A. Adam, published
in Arabic by Dar El Warraq, London, 1999. El-Tom is also a Sudan activist
and a member of the Executive Board of the Sudanese Justice and Equality
Movement (JEM).

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Kwesi Sansculotte-Greenidge

Dr Kwesi Sansculotte-Greenidge is based in Juba, South Sudan where he is the

Coordinator of ACCORD’s South Sudan Initiative. He previously served as a
Senior Researcher in ACCORD’s Knowledge Production Department focusing
on the Horn of Africa. He obtained a PhD in Anthropology from Durham
University, UK; an MA in African Studies from Yale University, USA and a
Diploma in History from the University of Guyana. Dr Sansculotte-Greenidge
has previous experience as a consultant working on conflict analysis in the
Horn of Africa and an analyst for a consulting firm focusing on the Caribbean
Basin region. His research interests include conflict-sensitive approaches to
development, traditional governance structures, ethnic conflict and conflict
mitigation. Additionally, Dr Sansculotte-Greenidge has lectured in the US
and UK and worked in South Sudan, South Africa, Darfur, Chad, Ethiopia
and Guyana.

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