Friday, November 16, 2007

Capital reviews Alemayehu Fentaw's work on Legal Pluralism

Legal Pluralism: Its promises and pitfalls for Ethiopia

By Kirubel Tadesse

Ethiopia has dealt with diversity in ways that recognize legal identities on the basis of cultural as well as territorial boundaries. The ideas of multinational federalism and legal pluralism are mutually reinforcing. The present politico-legal order of Ethiopia is based upon a federal constitution which was adopted in 1994. In Ethiopia today, multinational federalism is given expression in Article 8 of the Constitution, what might be called the sovereignty clause, which vests sovereignty in the various ethno-national groups of the country, and Article 39 which reassures these groups their “unconditional right to self-determination, including secession”. As a manifestation of their right of self-determination on a cultural level, every ethno-national group has been left to their customary way of maintaining group cohesion. Particularly, Article 34 (5) gives expression to what Lawrence Friedman calls “cultural pluralism”, which he considers as one of the two variants of horizontal legal pluralism in addition to structural pluralism. This presses on the idea of multinational federalism. The article by Alemayehu Fentaw, Assistant Lecturer, Faculty of Law, Jimma University, which arises from his senior research which was supported by the research and graduate programme of Addis Ababa University in June 2004, explains that legal pluralism rests upon the very idea of federalism, be it mono national or multinational.
Alemayehu Fentaw explains, “Federalism is inherently and inextricably intertwined with legal pluralism. In keeping with federal theory and practice elsewhere, the Constitution of the Federal Democratic Republic of Ethiopia has established a federal state structure where governmental powers are shared between the federal governments on the one hand and nine constitutive units of the federation. Logically speaking, such division of powers, especially legislative power between the two levels of government, necessarily entails pluralism in the law. This is exactly what has been referred to as “structural pluralism” by Friedman. Consequently, in ways that would reflect diversity in the law on a territorial basis, currently in Ethiopia there are one federal and nine state legal systems. While the federal is full-fledged and real, the state legal systems are fledgling and yet under construction.
On his acclaimed article which was expressed as, ‘a thesis which examined Ethiopia’s new experiment in federalism with care and fresh insight’ by Andreas Eshete, president of Addis Ababa University, Alemayehu goes on to explain the growing importance of legal pluralism which has been reflected in the demands of the country’s ethnic groups for representation in their respective political and legal institutions, both at local and national levels. He states, “Non-territorially, attempts have been made to accommodate the interests of cultural and religious communities. For instance, Muslims are given adjudicatory authority in accordance with Islamic law with respect to civil matters. In such cases, religious rules determine family law with the effect that citizens embracing different faiths are subject to different legal norms.
Although family law may seem too insignificant an area of jurisdiction to call this a case of non-territorial self-government, as Ayelet Schachar points out, it has alongside its distributive role regarding maintenance and succession, a demarcating function that determines ascriptive membership in a community through lineage and marriage.”
Alemayehu, following the tack taken by Professor Andreas Eshete, proposes to consider legal pluralism as a federalist policy and practice “under the unfavorable condition aspect of non-ideal theory,’ which, in the words of John Rawls, ‘deals with unfavorable conditions, that is, with the conditions of peoples whose historical, social, and economic circumstances make achieving a well-ordered regime, whether liberal or hierarchical, difficult, if not impossible.” Alemayehu says Andreas remarks that ‘Federalism is a public value tailored to conditions unfavorable to constitutional democracy that are not universal but rather peculiar to certain societies.’ For him, therefore, a general justification of federalism grounded in an invariant particularist value is utterly indefensible. Instead, federalism is justified to the extent that it comes to terms with the unfavorable conditions that prompted it in ways that enhance or, at least, do not compromise democratic ideals of universal reach.”
Despite the purported decentralization or devolution of legislative powers, the Ethiopian regional states have little legislative autonomy says Alemayehu Fentaw, and to assert his point quotes Professor Andreas, “What is dispersed to regional states is executive power. If this is correct, the problem is to explain or explain away the legislative… powers that the constitution grants to member states. The real power of the states, in respect to the law is therefore the administration of justice, not legislation.” Therefore, legislative federalism is not realized in Ethiopia and the center continues to overshadow the peripheries/states as has been the case throughout Ethiopia’s history; as Andreas points out one-party dominance establishes the legislative supremacy of the center,” concludes Alemayehu Fentaw.
Obviously legal pluralist ethos has played a central role in the making of the new Ethiopian Constitution, Alemayehu says what might be called, a major departure from the received constitutional tradition of the country, the Constitution of the Federal Democratic Republic of Ethiopia provides the framework for the independent validity of non-state or unofficial laws such as customary and religious laws in some fields of social activity. Here it is important to draw a distinction regarding the nature of legal pluralism. One helpful distinction is that between formal, or what Professor Gordon Woodman calls “state legal pluralism,” and informal, or as Woodman calls “deep legal pluralism.” Both formal and informal legal pluralism are discernible in Ethiopia. According to Andre Hoekema formal pluralism is a legal concept referring to the inclusion within the legal order of a principle of recognizing ‘other’ law.
Alemayehu on his article’s chapter ‘Informal Legal Pluralism: Crafting a Second Recognition’ explains that in most parts of Ethiopia, the traditional practice of dispute resolution in accordance with the ethnically based criminal norms applied by community elders is kept alive and well. Despite the extension of the formal legal system to all corners of the country, it has difficulty penetrating the indigenous legal cultures since its advent. This is more so in the peripheries than in the center. For instance, the customary law systems hold sway in the day to day affairs of these nationalities: the Somali, the Amhara and the Gumuz.
Alemayehu Fentaw explains that two chief challenges tend to complicate the effort to appraise the successes and failures of legal pluralism in Ethiopia: adequate protection of human rights and forum shopping. These are at best challenges posed by the fact of legal diversity. Particularly, they complicate the task of synchronizing the state and non-state law systems. The problem of adequate protection of human rights figures in prominently, since the non-official norms axiomatically deviate, at least in some ways, from the official constitutional and statutory norms. On a different plane, legal pluralism gives rise to the notorious problem of forum shopping, which has been the subject of unending debates in contemporary conflict of laws. Of course, much of the intricate problems of conflict of laws are excluded, as they fall outside the scope of this article. In the sections that follow, we shall attempt to paint, albeit with a broad brush, the two challenges and point to some possible ways of mediating them, so to speak.
Alemayehu Fentaw says “having analyzed the implementation of legal pluralism in Ethiopia, I have arrived at the following points by way of recommendation. On the one hand, the federal government should:
1. Launch a state-led statewide field research by legal anthropologists, with an eye to studying and analyzing all of the customary law systems within its boundaries and conforming them to the minimal standards for adequate protection of the human rights of its citizens;
2. Extend full public recognition to the ethnically based customary law systems; particularly, redraw the boundaries of formal legal pluralism to accommodate at least the well-established and dominant customary dispute (criminal) settlement mechanism; stated differently, leave elbowroom for the non-state actors.”
Alemayehu Fentaw finally recommends that state governments should assume a moral duty to execute their constitutions; and in order to effectively execute their constitutions, state judicial and legislative organs require judicial review and legislative autonomy respectively. “Both governments, federal and state, should enact codes of conflict of laws with a view to addressing the complex problem of choice of law, and tailored to meet challenges arising from legal diversity, especially forum shopping,” he concludes