Sisay Kinfe, Centre for Federalism and Governance Studies, Addis Ababa University
Relevance of the Practice
In Ethiopian federalism the subject matter of power division left some of the salient arenas to gender equality, such as regulation of family relations, as a residual power to the states. As per the Article 52(1) of the Federal Republic of Ethiopia’s (FDRE) Constitution, the making and administration of family law fall within the reserved powers of states. In addition, the Constitution in Article 34(5) gives customary and religious institutions the power to regulate marital relations based on the consent of the parties. From ten regional states of the Ethiopian federation, seven regional states have their own family law that empowers customary and religious institutions to regulate family relations at local level.[1] Throughout Ethiopia, customary local institutions play wide roles in the regulation of family relations, particularly in rural areas where there is limited access to formal institutions of the state.[2]
Following the adoption of an ethnic-based federal state structure, in some regional states, such as Southern Nations, Nationalities and Peoples (SNNP), regional community-based civil society organizations (CSOs), in collaboration with political elites of ethno-cultural communities who mainly live in urban areas, and traditional leaders of customary local institutions which are mainly found in rural areas, engaged in the transformation of customary laws from oral tradition to written form to revitalize customary rules to make it a politically salient feature as well as to make it compatible with women’s rights enshrined in the FDRE Constitution.[3] The relevance of this practice lies in showing the limitations of the process of transforming customary laws from the perspective of protecting women’s rights and the promotion of gender equality, taking as an example the case of the Guraghe Zone. The Guraghe Zone is one of the autonomous local governments in the SNNP region established with the purpose of accommodating diversities.
Description of the Practice
The Guraghe community-based CSOs found in the federal capital, Addis Ababa, are among the first associations that initiated the transformation of customary laws in collaboration with the political elites of the Guraghe Zone and traditional leaders of customary local institutions which are mainly to be found in rural areas of the Zone. The Sebat-bet Guraghe community have a customary local council called yajoka which exercised the traditional legislative function for the community for centuries. Historically this council is exclusively composed of men and attempts to justify the exclusion of women. Under the guidance of the community-based CSO of the Sebat-bet Guraghe community, yajoka deliberated and ratified the transformed customary law of the community which was printed for use in 1998. In the printed document/transformed customary law, it states that making customary rules of the community compatible with women’s rights enshrined in the FDRE Constitution is one of the objectives of transforming the community’s customary law.[4]
However, in the process of transformation or deliberation neither women were represented nor were their rights in family relations respected. The transformed customary law, even though there is a general provision that states that women’s rights shall be respected equal to men in all spheres of life,[5] systematically maintained the discriminatory customary marriage and divorce law of the anqiti. Anqiti is a customary norm and cultural belief adopted by the Sebat-bet Guragheregarding marriage and divorce which has the purpose of avoiding divorce requested by a woman.[6] This customary rule forbids the Sebat-bet Guraghe woman from divorce and remarriage without the will of the man she once had married or engaged. Therefore, if a woman wants to divorce her husband for any reason, she must get the consent of the husband. Without such consent, the marriage would not be dissolved and the woman would not be allowed to remarry. On the other hand, the husband is free to divorce his wife at any time as well as marry as many times as he likes without in fact divorcing the former wife. Moreover, a woman who decided to divorce her husband takes almost nothing from the matrimonial property as per the customary rule of anqiti.[7]
Assessment of the Practice
The use of community-based CSOs and customary local institutions to transform customary law is, first, underutilizing the degree of autonomy guaranteed to the community in the federal and regional constitutions. An autonomous local government unit that has been created for the accommodation of diversity in Ethiopia such as the Gurage Zone has three critical features which have the capacity to accommodate interests of customary local institutions although this has not been exploited. First, it makes national minorities local majorities, restoring the dignity and pride of such communities in their cultural settings. Second, it leads to the establishment of government institutions that exercise political power. Third, there is devolution of defined competences which are relevant for the protection of the identity and culture of the ethnic communities.[8] With regard to the first feature of autonomy in the Gurage Zone, the Gurage communities are now local majorities in the Zone. The Zone has established all the three branches of government which exercise autonomous political power without contradicting the powers and laws of the federal and regional governments. Regarding the third feature of autonomy, the Federal Constitution and regional constitutions indicate competences that can be exercised by every ethnic community in the country.[9] Making use of custom-respecting human rights and democratic principles is a recognized cultural right of all ethno-cultural communities endorsed by both the state and federal laws.[10] This makes transforming customary laws a power potentially left to autonomous local government units. However, no effort has been made so far by policy-makers, i.e., either by political parties or women’s policy agency, to bring the issue to local government institutions. These problems emanate from limited awareness of autonomy at local level as well as the sense of insecurity created by ethnic-based federalism in Ethiopia which contains provisions that consider every ethnic community homogeneous as well as confines the sphere of influence of every ethnic community only to their ancestral land that is mainly found in rural areas.
References to Scientific and Non-Scientific Publications
Legal Documents:
Constitution of the Federal Democratic Republic of Ethiopia (1995)
Revised Constitution of Southern Nations, Nationalities and Peoples Regional State (2001)
Scientific and Non-Scientific Publications:
Awilachew Y, ‘Yajok Kitcha: Sebat-bet Guraghe Customary Dispute Resolution Mechanism’ in Gebre Yatiso, Faqada Azaza and Assefa Fiseha (eds), Customary Dispute Resolution Mechanisms in Ethiopia (Ethiopian Arbitration and Conciliation Center 2011)
Ayele ZA, Local Government in Ethiopia: Advancing Development and Accommodating Ethnic Minorities (Nomos 2014)
Sisay K, ‘Cultural Legitimization of Human Rights: The Case of the Guraghe Ethno-cultural Community in Ethiopia’ in Wolfgang Benedek, Tadesse Kassa Woldetsadik and Tesfaye Abate Abebe (eds), Implementation of International Human Rights Commitments and Implications on Legal Reforms in Ethiopia (Brill Nijhoff 2019)
Yatiso G, Fisseha A and Azeze F (eds), Customary Dispute Resolution Mechanisms in Ethiopia (Ethiopian Arbitration and Conciliation Center 2011)
—— KITCHA: The Guraghe Customary Law (Trade Printing Organization 1998)
—— Guraghe Cultural Values, Prepared by Gurage Zone Culture and Tourism Government Communication Office (Walkite 2000)
[1] The regional states that enacted regional family laws are the states of Tigray, Oromia, Amhara, Harari, Southern Nations, Nationalities and Peoples (SNNP), Gambela and Benishangul Gumuz
[2] Gebre Yatiso, Faqada Azaza and Assefa Fiseha (eds), Customary Dispute Resolution Mechanisms in Ethiopia (Ethiopian Arbitration and Conciliation Center 2011).
[3] Sisay Kinfe, ‘Cultural Legitimization of Human Rights: The Case of the Guraghe Ethno-cultural Community in Ethiopia’ in Wolfgang Benedek, Tadesse Kassa Woldetsadik and Tesfaye Abate Abebe (eds), Implementation of International Human Rights Commitments and Implications on Legal Reforms in Ethiopia (Brill Nijhoff 2019).
[4] ibid; KITCHA: The Gurage Customary Law.
[5] Art 5(1) of KITCHA: The Gurage Customary Law.
[6] Yewendiwesan Awilachew, ‘Yajok Kitcha: Sebat-bet Guraghe Customary Dispute Resolution Mechanism’ in Gebre Yatiso, Faqada Azaza and Assefa Fiseha (eds), Customary Dispute Resolution Mechanisms in Ethiopia (Ethiopian Arbitration and Conciliation Center 2011).
[7] Knife, ‘Cultural Legitimization of Human Rights’, above.
[8] Zemelak A Ayele, Local Government in Ethiopia: Advancing Development and Accommodating Ethnic Minorities (Nomos 2014).
[9] See, for example, Art 81 of the SNNPR Constitution.
[10] See, for example, Art 91(1) of the FDRE Constitution.