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AEGIS European Conference on African Studies
11 - 14 July 2007
African Studies Centre, Leiden, The Netherlands
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Troubled judicial itineraries: the in-between out-of-court cases in Eritrea
| Panel |
36. Between customs and state law: The dynamics of local law in sub-Saharan Africa
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| Paper ID | 98 |
| Author(s) |
Bozzini, David
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| Paper |
No paper submitted
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| Abstract | This paper contrasts customary and national law and procedure in Eritrea as practiced in two institutions: family arbitration sessions and community courts. The former has been in existence since the Ethiopian period and deals mainly with divorce cases; the latter was created in 2004, confirming the government’s interest that out-of-court dispute resolution be extended to other cases. Both institutions are related to formal and to customary law. The cases are registered in court and then forwarded to the arbitrators or elders for reconciliation or mediation-arbitration. The agreements made in these contexts are often binding and categorized as customary law, principles and procedures.
I argue that these two institutions represent alternative dispute mechanisms which lay in between the realms of law and norms, neither deeply founded in customary law, nor closely linked with national law and its reforms. This legal situation is not so much plural as uncertain and volatile. It allows its principal actors (judges, elders, arbitrators, parties and the state) a certain flexibility or a form of “norm-shopping” from which some of them can benefit. However, this flexibility is often constrained by forms of (self-)control which implicitly introduce principles and policies of the socialist-oriented government of Eritrea. Ideology, arguments, bureaucracy and informal agents of the State are some of the areas in which this control is evident, and in which we can witness a blurring of the old distinction between customary and state law.
This presentation is based on original material gathered during fieldwork carried out in Eritrea between 2004 and 2006 under a 36-months fellowship provided by the Swiss National Science Foundation. While there exists a small number of studies on family arbitration in Ethiopia during the past few decades, little research has been conducted in Eritrea since independence. My dissertation, of which this paper is a part, aims to fill this gap by exploring the role of customary law in state-sponsored judicial reforms, in both urban and rural settings.
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