ADJUDICATING CRIMINAL CASES IN OROMIA:THE PRACTICE, ROLE AND

LIMITATIONS OF CUSTOMARY COURTS IN WOREDA/KEBELE LEVEL.

A PROPOSAL SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIRMENTS FOR

DEGREE OF BACHILOR OF ART(BA) IN LAW

AT

JIMMA UNIVERSITY

COLLEGE OF LAW AND GOVERNANCE

By:Gelana Adugna

Advisor: Mr. Obsinan Girmaye

JIMMA, ETHIOPIA

November ,2024
 TABLE OF CONTENT PAGE

1. Background of the study.......................................................................1

2. Problem Statement................................................................................4
3. objectives of study................................................................................7
3.1General objective.................................................................................7
3.2 Specific Objectives............................................................................7
4. Research Questions...............................................................................8
5. Research methods.................................................................................8
6. Scope of the study.................................................................................8
7. Significance of the Study......................................................................9
8. Limitations of the Study........................................................................9
9 .structure of the Study............................................................................9
10 .Ethical consideration.........................................................................10
11. Citation Style....................................................................................10
12. Summary of the chapter....................................................................10
 Legal pluralism is a fact of life 1 .1 It is a situation whereby two or more legal systems coexist
in the same social field2.Ethiopia, being a land of plurality, formal and informal justice systems
have been operating side by side3. They have been approached differently at different times, too 4.
Pre-1991, under imperial and military rule, the country opted for a repressive strategy thereby
forcing members of the non-dominant groups to entirely or partially give up their identities 5.
After 1991, especially following the adoption of the 1995 FDRE Constitution, the strategy
completely shifted toward accommodation of plurality of multiple types 6.The right to self-
determination of Nations, Nationalities, and Peoples of Ethiopia guaranteed by the Constitution
has broader implications on legal plurality, including recognition of customary values 7. Each
ethnic group has been given the space to promote its own culture and language, and legal
pluralism is officially recognized8. Specifically, the Constitution provided the possibility of
establishing or recognizing customary and religious courts operating based on customary and

1
Swenson, Legal Pluralism in Theory and Practice, International Studies Review, Volume 20, Issue 3, September 2018, Pages 438–
462, cited by teferi bekele ayana,2023

2
BOAVENTURA DE SOUSA SANTOS, TOWARD A NEW LEGAL COMMON SENSE: LAW, GLOBALIZATION, AND
EMANCIPATION 89 (2nd ed. 2002)

3
For detail explanation of these relationships-combative, competitive, cooperative and complementary see
Swenson, G., Supra note 1, at 443-445

4
Brian Z Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2007), 30 SYDNEY LAW
REVIEW, 375

5
Tsehai Wada, ‘Coexistence between the Formal and Informal Justice Systems in Ethiopia: Challenges and
Prospects’ (2012), 5 AFRICAN JOURNAL OF LEGAL STUDIES, 269

6
Teferi Bekele Ayana, Administration of Justice in Customary Courts in Oromia, HARAMAYA LAW REVIEW 12: 1-24 (2023)

7
CONSTITUTION, Proclamation No 1/1995, FED. NEGARIT GAZETA, 1st Year No.1, 1995 (here after FDRE CONSTITUTION, Art.39 (1-2).
See also Zelalem and Moti, supra note 6, at 81

8
Susanne Epple & Getachew Assefa (eds.), Legal Pluralism in Ethiopia: Actors, Challenges and Solutions, 2020, p11; available at <
https://library.oapen.org/handle/20.500.12657/41792 >. Accessed on 7th of January, 2023

1
religious laws9.The Oromia Constitution envisaged a similar thing 10. Because of this, the strategy
followed to approach plurality may take more than one form: bridging, incorporation, or
subsidization as the case may be, but it is no longer repressive 11.Customary courts have not been
formally established by law for years in the country in general and in Oromia in particular 12. The
2018 change that happened in the country can be taken as a triggering factor for their
establishment13. Following the change, many government organs existing both at federal and
regional levels took different reform initiatives 14.As part of this, Oromia courts reorganized their
structure by Proclamation No.216/201915. One of the major changes introduced by the
proclamation was the decentralization of judicial jurisdiction 16 Accordingly, civil matters
regarding movable property where the matter involved does not exceed ETB one million and
immovable property where the amount involved does not exceed ETB three million, application
for Habeas Corpus, criminal matters whose maximum punishment does not exceed fifteen years
of imprisonment became the jurisdiction of District Court 17.This time, District Courts are loaded
with many tasks and the Oromia Supreme Court envisaged its possible implication on judicial
accessibility18.At the same time, the Supreme Court had already known through research findings
that Kebele Social Courts were not accessible to the local community because of several factors
such as lack of public trust, lack of capacity to enforce their judgments, and lack of sense of
professionalism and ethics with the judges 19. Because of this, the idea of establishing Customary
Courts was suggested, and researching how to go about was taken up by the Oromia Legal
9
FDRE Constitution, Art.34 (5) cum.78 (5).

10
The 2001 Revised Oromia Constitution, Art. 34 (4- 5) and 62 (1-2)

11
Teferi Bekele Ayana, Administration of Justice in Customary Courts in Oromia, HARAMAYA LAW REVIEW 12: 1-24 (2023

12
ibid

13
ibid

14
ibid

15
ibid

16
ibid

17
A Proclamation to Redefine the Structure, Powers and Functions of the Oromia Regional State Courts Proclamation No. 216/2018,
MAGALATA OROMIYA Finfinnee, 8th of October 2018 (hereafter, Oromia Customary Courts Proclamation), Art.31

18
Teferi Bekele Ayana,supra note11

19
For details of these problems, see Asnee Enda lemma and Abdi Tesfa, The Effectiveness of Oromia Kebele Social Courts, OROMIA LAW
JOURNAL, Vol.9, No.1, 2020, pp167-181 (Published in Afan Oromo)

2
Training and Research Institute20.The Institute started conducting the research in 2019, finalized
and presented it in 2020 at different meetings on which various stakeholders, including leaders of
justice sectors professionals, Abba Gadaas, university lecturers, and leaders of the Oromia
Cultural Bureau21. Again, the meeting was continued in the presence of some members of Caffee
Oromia, including the Speaker of Caffee.22. The research has critically analyzed the opportunities
and the challenges related to the establishment of a Customary Court in Ethiopia 23. However, it
indicated that the opportunities will outweigh the challenges mainly because of the potential
accessibility the courts will afford 24. After a series of serious discussions made on the research,
drafting the proclamation proceeded based on the findings25. After multiple deliberations were
made on the draft proclamation with all concerned, the Oromia Regional Government
established and recognized Customary Courts across Oromia by Proclamation No.240/2021
(hereinafter shortly referred to as, Oromia3Customary Courts Proclamation), proclamation
implementing Regulation No.10/2021 (hereinafter referred as, Oromia Customary Courts
Regulation) and the regulation implementing directive No.15/2021 26. These customary courts are
newly established or recognized existing ones to adjudicate disputes based on customary
courts27.By so doing, after three decades of delay, the Oromia Regional State converted the
constitutional provisions of customary courts into a reality for the first time in the country 28.Now,
customary courts are functioning in Oromia29.This is good as it increases certainty by defining
the relationship between customary systems and formal state courts 30. For example, it
substantially resolves the challenges customary systems were facing which, inter alia, include
20
Teferi Bekele Ayana, supra note,11

21
ibid

22
ibid

23
ibid

24
ibid

25
ibid

26
ibid

27
27A definition for customary courts is provided under Art. 2 (7) of the Oromia Customary Courts Proclamation

28
Teferi Bekele Ayana, Administration of Justice in Customary Courts in Oromia, HARAMAYA LAW REVIEW 12: 1-24 (2023)

29
ibid

30
ibid

3
abuse and exploitation by disputants who strategically engage in forum shopping, i.e., those who
move back and forth between the customary and formal state courts 31. However, how the courts
are operating in their actual practice of administering justice has not been studied32. Although the
establishment of the courts is very recent, they need to be studied at their earliest possible given
that they are ‘new’ systems at least in Ethiopia. Research-based-interventions are highly
encouraged. This paper is a preliminary attempt toward that effort by focusing on objectives,
jurisdiction, applicable laws, independence and accountability, judgments of the customary
courts, and their relationships with other formal state courts as core points of discussion.4

2. Problem Statement

In Ethiopia, there are varieties of legal systems though not recognized by the state as such
sufficiently.There are European originated state laws introduced to the nation during 1950s and
1960s through the codification process33. There are also different customary laws of different
ethnic groups as well as religious laws such as the Sharia laws that exist side by side 34.Similarly,
in oromia and even at woreda and kebele level these customary laws do exist in abundance 35.
However, since the codification process, the recognition accorded to customary practices by
newly transplanted laws is very minimal or insignificant 36. Nonetheless, practically, those
customary laws have endured to-date and have been effective enough despite the above
mentioned denial of recognition by the state laws 37.Objective of Oromia customary court as can
be depicted from Cumulative reading of the Preamble and Art.6 of the Oromia Customary Courts
Proclamation depicts two core objectives of establishing the courts: promoting Oromo culture
and values and ensuring accessibility of justice without violating the supremacy of the
constitutions. As is the case in any other organized society, Oromo people have their way of

31
Susanne Epple & Getachew Assefa (eds.), supra note 14, at 55

32
Gebre Yantis, Assefa Fish, &Facade Azeez (Eds.) the State of Knowledge on Customary Dispute

33
Ethiopian Arbitration and Conciliation Center, Addis Ababa, vol.1, pp.21-35 33Id, p.23

34
Osman Ahmad Muhammad:The Afar customary criminal justice system: toward its better accommodation, june,2017

35
ibid

36
ibid

37
ibid

4
viewing the world, i.e., the Oromo worldview, which is reflected in all affairs of life 38.In
Oromo’s world view, there is the concept of ‘safuu 39. It provides the moral and ethical code
according to which events, whether at a personal, social, or cosmic level take place 40.For
example, protecting the environment is appropriate, and arbitrary deforestation is wrong.
Accordingly, the Oromo have cultural norms to decide what trees to cut and not to cut; when to
cut and not to cut41. Similarly, disowning one’s child is not appropriate 42.These all are dictated by
‘safuu’. Oromia customary courts also reflect such values while administering justice (deciding
real cases).There is little agreement about the meaning of access to justice 43. However, it is
recognized in different international and national instruments 44. In many legal systems, the
notion is built from such explicit and implicit recognition of rights like access to courts; trial by
competent, independent, and impartial tribunals; fair and public proceedings, effective redress,
and legal assistance and legal aid45. The General Comments on human rights also explain that
access to justice encompasses issues like removal of physical and non-physical barriers or at
least keeping them at a minimum46, affordable court fees to obtain redress47, easiness of the
procedures to access courts and tribunals for all sections of the society 48. and disciplined and

38
Asefa Jalata, Gada (Oromo Democracy): ‘An Example of Classical African Civilization’ (2012), 5 THE JOURNAL
OF PAN AFRICAN STUDIES, 140

39
Teferi Bekele Ayana, Administration of Justice in Customary Courts in Oromia, HARAMAYA LAW REVIEW 12: 1-
24 (2023)

40
Gemetchu Megersa, Knowledge, Identity and the Colonizing Structure, The Case of the Oromo in East and North
East Africa, (PHD DISSERTATION, SUBMITTED TO THE DEPARTMENT OF ANTHROPOLOGY UNIVERSITY OF
LONDON, SCHOOL OF ORIENTAL AND AFRICAN STUDIES,1993), p261

41
Oromia Supreme Court, Gadisa Bulletin, especial issue, November 2022, at 10

42
Teferi Bekele Ayana,supra note 39.

43
Ibid at pp 7

44
See, for example, Art. 8 of the Universal Declaration of Human Rights, Arts. 2, 3(a), 7(1 (a) (c) and (d), 9(4), 14
(1), 14(3) (c) of the ICCPR

45
Mizanie Abate and et al, supra note 35, at 6.

46
7 UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts and
tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32, available at: https://www. Refworld.org/ docid
/478b2b2f2.html [accessed 16 January 2024]

47
Id.

48
International Convention on Civil and Political Rights, Art.14 (1)

5
trained; independent and impartial court personnel49.From this, one can easily understand that
access to justice is a very wide concept. Oromia Customary Courts apply the customary laws of
the people found in the specific locality 50.The only care the courts need to make is ensuring the
compatibility of these laws with the Constitution, public morality, and natural justice 51.They
serve free of charge, i.e., users do not pay court fees.They are also culturally relevant to the
society. They use Afan Oromo as the working language. They are constituted at Kebele level if
they are First Instance Courts and at district and town levels as may be necessary if they are
Appellate Customary Courts52. These courts are also deciding many cases. Until April 2023, First
Instance Customary Courts processed a total of 260,382 cases and disposed of 209,270 cases 53.
Similarly, Appellate Customary Courts processed 12,051 cases and disposed of 8, 800
cases54.This is within a short time (less than two years) as the courts completed preparations and
started the actual operation of handling cases at the beginning of 2022 although they were
established by law in 2021. From the perspective of accessibility, these figures may explain the
following things. First, many cases are coming to Customary Courts. This implies that users are
interested in resolving their cases by the courts. Users are not interested unless the courts are
accessible to them. Similarly, the figures indicate how fast the courts are in handling the cases
which is also another aspect of accessibility. Celerity of decision is an essential feature of
informal justice systems. It is one of the most important reasons why the system is needed.
Because of the proximity of the system to the users, the absence of service costs or the
affordability of service costs, popularity and respectfulness of local practitioners, and easy and
simple procedures that are embedded and legitimated in local values and beliefs, they are quicker
than the formal justice systems in deciding cases 55.Oromia Customary Courts cannot be different
from this general trend. However, it should be noted that unless the system is strengthened from

49
Human Rights Committee General Comment 32, para. 18-20; 32, para. 18-20

50
Oromia Customary Court Proclamation No.240/2021, Art. 26 (13)

51
Ibid., Art. 26 (13)

52
Id., at Art.7 (2-3). It is also good to note that a First Instance Customary Court can serve two or more kebeles.

53
Oromia Supreme Court Telegram Channel: https://t.me/MMWO2020 (posted in April 2023)

54
id

55
Susanne Epple & Getachew Assefa, supra note 14, at 20

6
time to time, celerity may decline as the number of cases increases through time 56. Second, the
number of cases flowing to formal state courts has been reducing from year to year since
Customary Courts started functioning. There is no certainty for the situation of lack of a clear
synergy between the two legal regimes to continue in the future in the same direction. In order to
avoid such dilemma, options that should be taken to solve the problems of the stalemate must be
thought of. Therefore, a case in which, criminal adjudication by customary laws, in principle, are
not recognized at the state level and, however, practically exist in some parts of the country ,
particularly ,like the Oromia region. Accordingly, to narrow the gaps and working towards
creating more harmonized legal system is indispensable.Therefore, the primary aim of this
research will be focus on working toward creating more harmonized legal system in order to
create a conducive environment for customary court criminal adjudication to play its own role at
state level, even at Woreda and kebele level. The role, practice and limitation of customary court
at Woreda/kebele will be dealt with in detail. The harmonized legal system has a paramount
importance because custom help to develop language, culture, religion and etc.Therefore ,I will
address these problems through the objectives of my research as follow:

To evaluate the practice,role and limitation of customary courts in adjudicating

criminal cases within the kebele/woreda of Oromia.

To Examine how customary courts in Oromia are structured and how they function in
the adjudication of criminal cases within the Woreda/Kebele level.

To analyze the role and influence of customary courts in the local criminal justice system,
including their impact on legal outcomes and community relations.

To Identify and assess the limitations and challenges faced by customary courts in handling
criminal cases, including legal, procedural, and societal constraints.

To compare the practices of customary courts with formal judicial systems to understand
differences, overlaps, and potential areas for integration or improvement.

To propose recommendations for enhancing the effectiveness and fairness of customary courts in
the adjudication of criminal cases.

56
Tsehai Wada, supra note 5, at 284

7
 What is the organizational structure of customary courts in Oromia, and how do they
operate at the Woreda/Kebele level in adjudicating criminal cases?

What role do customary courts play in the local criminal justice system, and how do their
decisions impact the community and the legal landscape?

What are the primary limitations and challenges faced by customary courts in the adjudication of
criminal cases, and how do these affect their effectiveness?

How do the practices of customary courts compare with those of formal legal systems in terms of
procedural fairness, legal consistency, and community acceptance?

What strategies or reforms could be recommended to improve the functioning and effectiveness
of customary courts in handling criminal cases?

This research will employs qualitative research design.Document analysis(review case

records, legal text and existing literature on customary law and practice) will be focused. The
establishing laws (Oromia Customary Courts Proclamation and Regulation) will serve as a
starting point for discussion on almost all issues. This approach was followed to lay a fertile
ground to understand the justice administration dimension of the courts given that the laws
themselves are relatively recent8.

The study will focus on customary courts in Oromia at Woreda/ kebele level.It will cover a
period from August 2024 to October 2024.The research will be geographically limited to Oromia
and conceptually focus on criminal adjudication practices and limitation within customary legal
system.Constraints may include variability in courts practices across region and potential access
to court records.

This study will contribute to a deeper understanding of role and effectiveness of

customary court in Oromia. By identifying challenges and limitations, research will offer
recommendations for improving the integration of customary and formal legal system.Stake
holder such as policy maker,legal practitioner and community leaders will benefit from study,
which could enhance justice system's responsiveness to the local needs.

8
 Limited number of customary court case may affect the generality of the
finding.Restricted court access to court records and limited documentation may constraint the
research.The reliance on qualitative data may introduce subjectivity in interpreting the findings.
Since this for the first time I conduct research, lack of experience will also one of the factors that
will affect my finding. Since I don't have a PC of my own,It is not an issue to be overlooked
too.The reliance on qualitative data may introduce subjectivity in interpreting the findings.This
limitation will be acknowledged, and effort will be made to mitigate their impact through careful
document analysis and try to handle the limitation by any chance.

9 .structure of the Study

My research will contains four chapters.The first chapter will devotes to the introductory part
which includes background of study, statement of problem, research question, research
objective ,research methods and etc. The second chapter will deals with literature review.the
main concern of this chapter is providing analysis of existing literature on customary court and
their role in criminal adjudication.The third chapter will be all about research methods. Detailed
description of research design, method and etc will be provided. The last chapter will focus on
recommendation and conclusion.it is summary of key finding and suggestion for policy and
practice improvement.

I will give appropriate credit to all sources and ideas that are not my own.properly cite all
references and avoid plagiarism by acknowledging the work of others.when dealing with legal
doctrine from different cultures or historical period, I will be sensitive to the context and avoid
anachronistic or culturally sensible interpretations.

11. Citation Style

I will use OSCOLA9citation style. Because it is mostly used in legal writing like
research.Author,title and year of publication is its proper order.

9
 12. Summary of the chapter

This study explores the role, practice, and limitations of customary courts in adjudicating
criminal cases within the Oromia region of Ethiopia, particularly at the kebele and woreda levels.
Legal pluralism is a defining characteristic of Ethiopia, where multiple legal systems—state,
customary, and religious—coexist. Despite the constitutional recognition of customary laws and
the establishment of customary courts in 2021, there remains a lack of clarity regarding their
integration with formal legal systems.The research aims to address the challenges faced by
customary courts, including public trust, enforcement capabilities, and the ethical conduct of
judges. It posits that customary courts can enhance access to justice, particularly for communities
that rely on them for dispute resolution. Through qualitative research methods, including
document analysis of relevant laws and existing literature, the study seeks to evaluate the
organizational structure of these courts, their operational dynamics, and their impact on local
legal outcomes and community relations.

Key objectives include examining how customary courts function, identifying limitations,
comparing practices with formal systems, and proposing recommendations for improvement.
The findings will be significant for policymakers, legal practitioners, and community leaders,
potentially guiding reforms to harmonize customary and formal legal systems in Ethiopia.

The study is limited to Oromia, focusing on criminal adjudication practices from August to
October 2024. Challenges such as variability in court practices and access to records may affect
findings. Ethical considerations will guide the research, ensuring proper citation and sensitivity
to cultural contexts. The research will utilize OSCOLA citation style, suitable for legal writing.

Ultimately, this research aims to contribute to a deeper understanding of the effectiveness of

customary courts in Oromia, facilitating their integration into a cohesive legal framework that
respects local customs while ensuring justice.

10
11