customary law and legal history in the world

customary law and legal history in the world

1. Prepared by: Brhane m. Email address: [email protected] Phone number:[phone] You are the models of good lawyers for the coming batch! Customary

2. Chapter one Introduction to customary law

3. Introduction to customary law and legal transplantation No unified definition of customary because custom is relative concept What is custom? Is rule of conduct which is accepted and practiced by a given community Is unwritten and kept in memory of the given people

4. Kind of custom Two type of custom based on their source Legal custom: legalized custom i.e. law Conventional custom: express or implied agreement based custom Both have binding force but their reason is different.

5. Legal custom legal custom by itself classified into two based their jurisdiction: Local custom: applicability is limited to a particular area. There are a preconditions to be source of law, In line with natural justice Time immemorial Continuity Certainty and reasonability 2. National/ general custom: applicable by majority diverse people

6. Customary practice is also called custom or convention Accepted and practiced by majority member of the community with out obligatory force All customary law are customary practice and the reverse is not true. Customary practice vs customary law

7. Legal transplantation Legal borrowing legal importation legal reception and legal taking Refers to the taking and planting of legal system Factors of transplantation: accessibility war migration commercial interaction

8. Some illustration of French law Europe ( by military force), Africa ( existence of legal gaps and colonialism), Latin America (technical merits and Spanish and Portuguese colonial rule) Legal extension: aspiration Legal penetration: actual reality

9. Customary law vs. positive law Similarity: both regulates human behavior both have binding force both are dynamics with changing circum Difference: written and unwritten local and general organized body sanction

10. concept of Legal system System means synergy or summation Synergy of legal rule, principles, standards, policies, traditions operating in a given geographical area.

11. Feature of African customary law Unrecorded: effects challenge for precise feature and nature Difficult to identify ideas introduced by European Maintains for harmony of the society than penalizing the offender Less responsive for change i.e. static Perceived to be primitive Gender insensitive

12. Cont ….. Commonly interconnected with religion Emphasize on mediation and concilation Oral nature

13. Misconception toward customary laws Treating as primitive and backward only for the mere reason of being in contradict to fairness and justice of European i.e. communal interest In spite of its reasonability and logicality, it cannot solve conflict systematically. African customary law implies only custom as source of law but the truth is not that.

14. Cultural absolutism and cultural relativism Although for every culture some moral judgment are valid, no moral judgment is universally valid. Cultural relativism: about common culture for major community. Cultural relativism: community based culture. E.g.: gender based HR violation are often defended or legitimized by reference to cultural particularity in a given society I.e. women mutilition

15. Chapter two Customary law and the 1960 Ethiopian civil code

16. State and customary law in Ethiopia can be divided into three phases: Imperial imported sacred tradition pre-modern era Characterized by indigenized translated texts based on biblical and roman byzantine tradition and which gives limited reference to the importance and precedence of local customary law 2. Modern secular imported nation building period under hailesslasie and derg Development of legal code by foreign experts externals to the Ethiopian context

17. codification by foreigners implies repealing of customary law i.e. legal unification Limited scope to customary law. 3. Post modern ethnic federalist period under EPRDF Ethnicity was proposed as organizing principle. What implies that? Constitutional recognition of CDR jurisdiction on family and personal matter article 34(5) of FDRE constitution.. What implies federalism? What are self rule and shared rule in respect to customary law?

18. Challenges of the FDRE constitution Lack of institutionalized Clarity of CDR jurisdiction on criminal matter Practical problem of CDR in relation to vulnerable groups ( women, children and minorities) Role of Ethiopian women lawyer association (EWLA) in relation to RFC ( fault based divorce, marriage age difference, choosing of common residence, household head was husband and manage property) and criminal code ( domestic violence, genital mutilation and inadequate penalty for rape).

19. Exclusive or inclusive jurisdiction of CDR in personal and family matter? Silence? Residual power? Recommendation: fruitful cooperation and recognition. Lack of uniformity: customary law is diverse, different community answers differently. Example blood relationship degree Unifying policy: economic trade relations, social ( inter-ethnic marriage)

20. Emperor hailesslassie and rene david After a decision to modernize laws Policy guide line is prepared Codification commission is selected Directions given by the emperror To take rules mainly from continental legal system with discretion in relation to BI of the country To adapt these legal rules and institutions to Ethiopia situation To incorporate customary law

21. After the codification was completed the emperor confirmed that his instruction had been properly observed Rene david also support the emperor by saying “base of the code is the feeling of Ethiopians for justice” Family law, tort and property law of the civil code are influenced by customary law

22. Oppositional arguments of some ethiopians Ethiopian customary laws are not sufficiently recorded prior Lack of acceptance for 48 yrs General policy of legal unification

23. Rene David methods Incorporation method: preconditions generality test natural justice test socio economic test clarity test Those are tests of R ene D avid for giving space for customary issues. 2. Explicit reference to custom method 1731

24. 3. Gap filling method 3347 of the civil code 4. Discretion of court article 1168

25. Customary articles from civil code Family: 573( reasonable compensation for moral prejudice due to breach of betrothal ), 577(modes of conclusion o f marriage i.e. formality req.t), 580(customary marriage), 606(religious), 807(obligation to maintenance between relatives by consanguinity and affinity for the reason of moral duty that exists among family members. When a member of a family becomes needy, no one is nearer than the family members to maintain such member. ) and 808( between bro and sis)

26. Property law: 1131( intrinsic element of goods and agreement deals with them), 1168( usucaption for immovable owned jointly by family member is not applicable ), 1371(increase from breeding i.e. accession)

27. Contract law: 1713 law for contracting parties

28. Amicus curiae (Assessors) Friends of court Interested individual should be given chance to participate in the administration of justice e xample jury in common law legal system Ethiopia: zufan chilot roadside court administration of justice proclamation 1942 article 19 article 223 of criminal procedure

29. Chapter three CDR and criminal code

30. CDR and principles of legality? Ppl : uniformity of criminal law and jurisdiction CDR system are not allowed any formal space of operation in criminal areas in spite of the fact that they are heavily involved in criminal matters De facto CDR institution are involved in criminal cases in many of the state in border areas

31. FDRE vs. criminal CDR The Constitution of FDRE has acknowledged the rights of the NNPE to develop & promote their own culture. Moreover, it imposes duty up on both the state and federal government to support the growth and enrichment of cultures and traditions that are compatible with the supremacy of the constitution and fundamental PPL of human rights. Hence , as far as those cultures & traditions do not contradict with aforementioned principles there is possibility to develop & promote them. Article 39(2) and 9(1)

32. T he phrase ‘disputes relating to personal nature’ under the above Article 34(5) may be construed to mean those types of crimes punishable up on private complaint under the context of both the Criminal Procedure Code of Ethiopia and criminal Code of FDRE. Therefore, it is not sound to conclude that the Constitution of FDRE disregards the role of CDR in the criminal justice administration.

33. Criminal code and criminal CDR C rimes are classified into two under the Criminal Code of FDRE. Those are crimes punishable up on public prosecution & those punishable up on private complaint. Particularly , the Criminal Code of FDRE proclaims charging is the discretionary power which is vested with the crime victim to petition complaint against the offender as per Criminal Code of FDRE, Art.211-213.

34. Criminal procedure code and CDR Article 151 Article 223

35. Consent as defense for crime upon private prosecution implies using CDR is an optional to parties as per Article 70 criminal code

36. CJP vs. criminal CDR Not recognized law. It clearly allows CDR for crimes punishable with simple imprisonment ( not serious committed and by not serious danger offender) It introduces concept of plea of bargaining

37. Plea bargain it recognises three kinds of plea bargaining: Charge bargaining : amend the charges to a lesser offense that carries a lesser penalty. An individual charged with burglary , a felony, may be offered a chance to plead guilty to criminal trespass , which is a misdemeanour.

38. Plea bargain Fact bargaining : the introduction of certain evidence, thereby eliminating the need for the prosecutor to have to prove them, in return for an agreement not to introduce certain other facts into evidence.

39. Plea bargain Sentence bargaining : In this instance, the prosecutor agrees to make a specific recommendation to the judge of a sentence in return for a guilty plea. Most charges carry a wide range of sentence possibilities. Given the range of possible outcomes, many defendants prefer the certainty of a specific sentence rather than the uncertainty of a sentence following a guilty verdict when the sentence is entirely at the discretion of the judge

40. አንቀጽ ፻፺፯ መርህ ፩. ማንኛውም በምርመራ ፣ ክስና የፍርድ ሒደት ላይ ያለ የወንጀል ጉዳይ በባሕላዊ ሥርዓት መሰረት ታይቶ ውሳኔ ወይም መፍትሔ ሊሰጥበት ይችላል፡፡ ፪. N ot all crimes can be refereed to customary practices: በሕገ መንግሥትና ሕገ መንግሥታዊ ሥርዓት፣ በሽብርተኝነት፣ በሙስና፣ ሕገወጥ የሠዎች ዝውውር፣ በኮምፒውተር የሚፈፀሙ ወንጀሎች፣ በወንጀል ድርጊት የተገኘ ገንዘብ ወይም ንብረት ሕጋዊ አስመስሎ ማቅረብ፣በዘር ማጥፊት፣ በከባድ የሰው ግድያ፣ በሰው ዘር ላይ በሚፈጸም ወንጀል፣ በአስገድዶ መድፈር፣ በሕፃናት ላይ በሚፈጸም ፆታዊ ጥቃት፣ በጦር መሣሪያ ወይም በኃይል በሚፈጸም ወንጀል የተጠረጠሩ ወይም የተከሰሱ እንደሆነ የአማራጭ መፍትሔ ርምጃ ተፈጻሚ አይሆንም፡፡

41. አንቀጽ ፻፺፱ ቅድመ ሁኔታ ፩. ዓቃቤ ሕግ ጉዳዩ በባሕላዊ ሥርዓት መፍትሔ እንዲያገኝ ሲወስን የተጠርጣሪውን ወይም የተከሳሹን ፈቃደኝነት እና ጥፊተኛ ለማሰኘት የሚያስችል በቂ ማስረጃ መኖሩን ማረጋገጥ አለበት፡፡ አንቀጽ ፪፻ በባሕላዊ ሥርዓት እንዲታይ የሚቀርብ ጥያቄ አቀራረብ ዓቃቤ ሕግ በራሱ አነሳሽነት ወይም በተጎጂው ወይም በባሕላዊ ሥርዓት ሥልጣን ባለው ሰው፣አግባብ በሆነ የመንግስት አካል ፣ ጉዳዩን በሚያየው ፍርድ ቤት ጠያቂነት ተጠርጣሪው ወይም ተከሳሹ ፈጸመ የተባለው የወንጀል ድርጊት በባሕላዊ መንገድ እንዲታይ ሊፈቅድ ይችላል፡፡

42. Procedural execution of CDR in criminal matter regulation number 1/2012

43. Chapter four Customary dispute resolutions

44. Major x- cs of CDR 1. voluntary and consensual proceeding no coercive proceeding mechanism Only by agreement of the partries Unlike formal proceeding 2. litigant involvement in selection of local mediator Participant selected or community selected mediator Have knowledge experience and respected by the community Sometimes self appointed mediator

45. 3. locally circumscribed constituency Operate locally within particular ethnic group Sometimes may resolve inter ethnic dispute 4. public participation public proceeding and public decision open for opinion of the public

46. 5. A ccepted and flexible norms, rules and values Deliver justice in accordance with norms, rules and values that are generally known and accepted by participant. rules and evidence are flexible relating to cases 6. Group-based responsibility Responsibility for the harm rests, not with an individual but with the broader social grouping, often the family or clan.

47. 7. negotiation and compromise resolve the case amicably No winner loser situation Agreeing on result 8. forgiveness and compensation forgiveness and paying compensation rather than physical punishment or imprisonment

48. 9. Restoration and maintenance of peaceful coexistence Main aim of CDR is restore and harmony between disputant and family 10. D ynamism and responsiveness to changes CDR institution are not static but have evolved over generation to their current status

49. Advantages of CDR Accessibility in terms of distance, culture and language Timeliness by shorting the procedure L imited cost of transport, legal expert Legitimacy and appropriateness in terms of acceptance because are locally contextual Restorative capacity by reconciling the parties Participatory procedure

50. Predictable process and outcome: based on local and known case precedence E nforceable community based sanction through making lonely from the community, naming and shaming A voidance of coercive measures B uilding community cohesion/ building common ground between members

51. Limitation of CDR In equitability In gender terms women as mediator In relation to the interest of child and young persons treated as the same as adults In relation to minority group 2. Non compliance with human right standards Legality of crime and punishment because no CDR legislation

52. 3. Undermining of individual rights Because CDR presuppose collective responsibility 4.Inabilitry to guarantee procedural fairness May biased or corrupt it is mostly spiritual rather than evidential 5. Lack of uniformity so many ethnic groups with difference on their CDR system. One issue may solve differently because the issue is not the dispute and its legal issue rather its ethnicity and locality

53. Coexistence and collaboration without mutual recognition Ignorant relationship between them! R ecommend it? THE END GOOD LUCK!