The judicial system of Ethiopia: the case of ațebiya-dańa (local judge), 1940s–1960s

Abstract

This research explored the history of Ațebiya-Dańa, village judge in Ethiopia, from 1947 to the 1960s. The research delved into the role of Ațebiya-Dańa in resolving disputes, administering justice, and maintaining social order in Ethiopian communities. The research examined the impact of modernization and political change on the institution of Ațebiya-Dańa during the period. The research employed a multi-method approach that combines historical research, oral history, archival research and group interviews. Historical documents, such as court records, government reports, and scholarly literature, were analysed to provide a historical context for Ațebiya-Dańa. The research provided a comprehensive understanding of the history, role, and impact of Ațebiya-Dańa in Ethiopian society from 1947 to the 1960s. It shed light on the dynamics between traditional justice systems and modern legal institutions, and the challenges and opportunities faced by traditional authorities in the face of modernization and state intervention. The institution, Ațebiya-Dańa had important roles for conflict resolution, social order, and legal pluralism in Ethiopia and other African societies.

Keywords:

• Ethiopia
• legal history
• Ațebiya-Dańa
• conflict resolution
• society
• justice
• court

Reviewing Editor:

• Samuel Adu-Gyamfi, History and Political Studies, Kwame Nkrumah University of Science and Technology College of Arts and Social Science, Ghana

Subjects:

• Criminal Law & Practice
• Criminology – Law
• History
• Religion
• Cultural Studies

1. Introduction

Ethiopia has a long and rich history of traditional justice systems, with Council of Elders and local judges playing a central role in many communities. Ațebiya-Dańa, which translates to village judges were respected figures who were entrusted with the responsibility of resolving disputes, maintain peace, mediating conflicts, and ensuring adherence to customary laws and norms from 1940s to 1960s. Since 1947 Ethiopia underwent significant changes due to modernization efforts and political reforms. These transformations had a profound impact on the institution of Ațebiya-Dańa. The introduction of new legal codes and institutions, coupled with the expansion of state power, challenged the traditional authority and jurisdiction of Ațebiya-Dańa.¹

Despite these challenges, Ațebiya-Dańa remained a significant force in many Ethiopian communities. They continued to play a vital role in maintaining social order, resolving disputes, and upholding customary laws. However, their role evolved in response to the changing social and political landscape.

2. General objective

The general objective of this research was to examine the history of Ațebiya-Dańa, Village judge in Ethiopia, from 1947 to the 1960s, with a focus on its role in resolving disputes, administering justice, and maintaining social order in Ethiopian communities. It had also the following specific objectives:

2.1. Specific objectives

• To investigate the historical context and evolution of Ațebiya-Dańa in Ethiopian society

• To analyze the functions and practices of Ațebiya-Dańa in resolving disputes, mediating conflicts, and upholding customary laws.

• To assess the impact of modernization and political change on the role and authority of Ațebiya-Dańa.

• To explore the factors that contributed to the persistence and adaptation of Ațebiya-Dańa in the face of modernization and state intervention.

3. Methodology

The research employed a multi-method approach that combines historical research, oral history, and ethnographic fieldwork. Historical documents, such as court records, government reports, and scholarly literature were analysed to provide a historical context for Ațebiya-Dańa. Oral histories were collected from elders and knowledgeable individuals to capture their personal experiences and perspectives on the role of Ațebiya-Dańa in their communities. Group interviews were conducted in selected communities to capture the practices of Ațebiya-Dańa and their interactions with formal legal institutions in the period under study.

4. Establishment of Aţebiya-Dańa court

Following Emperor Hayelä Sellassé I's return from exile, in 1941, the Emperor instituted extensive administrative, fiscal, and judicial changes in Ethiopia. One of the most significant developments in the country’s legal system was the administration of justice Proclamation no. 2 of 1942, which officially created four tiers of judicial hierarchy. These were the Imperial Supreme Court, the High Court, the awraja court, and the wäräda court.² The four hierarchical levels of the court system existed and functioned in Ethiopia until its rectification in 1947 and 1948. The Justice Administration Proclamation no. 2 of 1942 was amended in the 1947 and 1948 Proclamation nos. 90 and 102, respectively. In this Proclamation, the previous awraja and wäräda courts in the country had been promoted to ţäqelay gezat and awraja courts, respectively. Besides, two courts were introduced: meketel wäräda court and aţebiya dańa.³ This paper examines aţebiya dańa and its functions that existed in Ethiopia from 1947 to 1965.

Under the Proclamation, no. 90 of 1947, the aţebiya dańas (local judges) were established with different responsibilities. The judges were not government employees; they were either bale gult, or mälkäǹa that held the hereditary title. Sometimes, they were chosen or nominated by landowners, local governors. Two assessors were assigned to manage the offices together with the aţebiya dańa. As its name implies, it administrated justice with the power of fining up to 25 Ethiopian Birr for criminal and civil cases.⁴ Another scholar who cited the same Proclamation as a source said the aţebiya dańa was empowered to adjudicate civil cases in value of not more than 26 Ethiopian Birr and 15 Birr fine in criminal cases.⁵ The archival materials confirmed that the aţebiya dańas were empowered to judge criminal cases that were not more than fifteen Birr value. Similarly, the aţebiya dańa was empowered to consider disputants in a civil case which was not more than twenty six Ethiopian Birr value.⁶

5. The way of appointment of aţebiya dańa

In Ethiopia, the regular court was organized based on the 1942 Proclamation. However, there were places where the regular court was not established. To fill this gap, the government declared the following:

በ1934ቱ ስለ ዳኝነት ስራ አካሄድ ህግ በወጣበት ጊዜ ደንበኛ ፍርድ ቤት በየስፍራዉ እንደማይዳረስ በመገመት ፍርድ ቤት ባልቆመበት ስፍራ ላይ ትንሹ ነገር እንደአገር ልማድ በኢትዮጵያ ህግ እንዲያልቅ በእርቅም ለመጨረስ የሚያስችል ሁኔታዎች መጠቀም አዋጅ ያልከለከላቸዉ መሆኑን ተገልጿል፡፡⁷

The 1942 court establishment organization understood the difficulties to establish a regular court in the remote areas of the country; so, the Proclamation allowed the traditional laws and courts to handle minor issues

Based on the above rules, in 1947, the government of Ethiopia proclaimed a proclamation about the establishment of aţebiya dańa. The declaration had eleven articles on the appointment or selection, the limit of administrative territory, and the roles and responsibilities of the aţebiya dańa.⁸

The twenty-five-year Nägarit Gazėţa number ninety (90) 1947 article six granted power for three authorities to appoint aţebiya dańa for each däber in Ethiopia. The first was that the government granted the power to the president and the vice president of the wäräda and meketel wäräda courts to appoint or assign aţebiya dańa.⁹ The two officials could appoint aţebiya dańa from rest-gult holders, mälkäńa, church and monastery administrators, and färäsäǹa(horsemen). According to the proclamation of 1947, number 8, the list of the chosen aţebiya dańas, should be sent to the awraja court president, and the awraja court president would approve and send it to the ţäqelay gezat court president and then to the Ministry of Justice. After receiving the list, the Ministry of Justice had a responsibility to present it to the Ministry of the Council to approve the appointment and the monthly salary of the aţebiya dańa.¹⁰

Second, the authority to assign the aţebiya dańa was given to gult gäź and rest holders. A letter confirmed that ባለ ጉልቱ በቀሪዉ ትርፍ ቦታ ላይ ሌላ ሰዉ መሾም ይችላል የበላገሩ ይዞታ ለአጥቢያ ዳኝነት ከሚከለለዉ ስፋት በላይ ይዞ ከሆነ (in cases where the possession of the rest holder, gult holder, and the mälkäńa exceeds the expected limit, they can appoint aţebiya dańa over the extra territory). They also had the power or the authority to dismiss an aţebiya dańa.¹¹

The third option was to select aţebiya dańa through election. The voting system was mostly applied in areas where people live in the communally owned areas or non-gult areas. In this regard, people could choose the aţebiya dańa in their respective villages and send their list to the awraja office for approval of the ţäqelay gezat court.¹² As a result, the aţebiya dańa could be appointed to serve in the village where the gult holder was unavailable.

The declaration stated that all the above three mechanisms of appointing judges should be approved by the committee organized at the meketel wäräda level before it was sent to the wäräda governors. A committee organized at meketel wäräda level consisted of a district governor, elders, and gult holders. Some elders chosen to serve on committees in some wärädas are included in Table 1. However, some of their fathers’ names are missing in the sources I consulted.¹³

Table 1. List of committee members at the Meketel wäräda level to recruit aţebiya daǹa.

	Name of the wäräda	Leaders of the committee in five meketel wäräda	Elders
	Yilman Ena Dénsa	Grazmać Damţė	Grazmać Aynaläm Ayälä, Belata Täräfä and Ato Käbädä Negusė
		Qäńazmać Bäyänä Kenfu	Ato Mängistu Engeda, Ato Nägäsä Dästa, Ato Gäsäsä Yelma
		Grazmać Senešaw	Belata Śefäraw, Grazmać Alämu Adegäh, Belata Amońä Engeda
		Qäńazmać Mängistu	Belata Engeda, Qäńazmać Meteku, Grazmać Täräfä Ayälä
		Qäńazmać Admasu Gugsa	Grazmać Mängäša, Belata Śefäraw Wudė, Qäńazmać Sämäǹ

Source: Compiled from Däbrä Marqos University Archive Center.

Thus, from 1947 onwards, the administrators in Gojjam were engaged in organizing the aţebiya dańa institution and appointing individuals for the post to each däber of Gojjam. Ras Hayelu Bäläw gave the individuals, strict instructions to organize the aţebiya dańa in accordance with the timetable that the Ministry of Justice issued to the ţäqelay gezat. People who did not complete their tasks on time received punishment, and some lost their positions of authority. For instance, in tikimt 1949, The chairperson, Ras Hayelu Bäläw, and his associates fitawrari Bälaćäw Yemär (director for ţäqelay gezat), Ato Tadäsä Tamrat, Däjjazmać Alamräw, fitawrari Jämbäré Fänta, and colonel Tadäsä Gébré met for discussion to penalize those wäräda and awraja governors, who failed to organize aţebiya dańa. As a result, the governors of Awabäl, Senan, Gozamn, Anädäd, and Däjän, fitawrari Zäwudé Mäkonnän, fitawrari Zäwudé Yemär, fitawrari Antänäh Negusé, fitawrari Admasu Alämu, and ato Fäläkä, were each fined a month’s salary. Thus, the first two were penalized with 30 Birr each while, Antänäh and Admasu were punished fifty Birr, and the last one was punished with twenty-five Birr.¹⁴

Once the aţebiya dańa was appointed, he would act as the guardian of justice in the village. He or she made his/her administration centre near the village market or other areas where the people could easily reach him/her. Their primary responsibilities were protecting peace and order in their respective areas. Their second responsibility was guarding the wäräda gezat offices and courts. Third, they were responsible for coordinating and encouraging the people for any development activities. Fourth, they were tasked with collecting government taxes.¹⁵ The fifth responsibility was providing judgment for disputants who brought minor cases, both civil and criminal, cases. They were encouraged to settle all issues through conciliation. If they could not negotiate, the aţebiya daǹas would sit and see the cases in their gubayé (council). The council consisted of two elders, emaǹ (witnesses) and the aţebiya dańa. If the emaǹ (witnesses) did not agree with the judgment, their views must be recorded on the minute with the aţebiya dańa’s decision. If one of the disputants disagreed with the decision made by the council, he could appeal first to the vice district court and then to the wäräda court, where the final decision was made.¹⁶ The aţebiya dańa was paid no salary from the awraja or the justice administration authorities. The only income he received was one-third of the fine collected from non-criminal cases.¹⁷

6. Problems of the appointment of the aţebiya dańa

The appointment was still a subject of debate. One of the issues was that the law left unclear who would be the aţebiya dańa for a däber which consisted of more than one gult governor or färäsäńa. In a single däber, there might be two or three färäsäǹas or gult holders, or even more. On December 23/1961, a meeting was held in Däbrä Marqos constituting the wäräda, awraja and ţäqelay gezat representatives. The representatives unanimously decided that the most capable person be picked from numerous gult gäź in a däber to be aţebiya dańa in a däber. It was not practical to offer all of them this status in every däber. This implies that not all balbats or former gult holders could be assigned as aţebiya dańas.¹⁸

The other problem was lack of specifying the administrative-territorial limit of the aţebiya dańa. The problem was that there was no clear guideline as the following observation shows: የአጥቢያ ዳኞች የሚዳኙበት የስልጣን ክልል በህዝብ ብዛት ወይም በመሬቱ ስፋት/በጋሻ/ይሁን የሚገልፅ ነገር የለዉም (There is no clear instruction whether the aţebiya daǹa would be appointed depending on the population number or the territorial limit of a village hold).¹⁹ Because of this unclear concept, the committee in each wäräda proposed aţebiya dańa over the däber which had the different size of population. For instance, in Yelmna ena Dénsa wäräda, the committee proposed one individual as aţebiya dańa over a däber that consisted of fifty to sixty households. But the wäräda governors rejected such an appointment and sent a letter of rejection to the committee. The letter read as: በመጀመሪያ ነገር አጥቢያ ዳኛ ሹሙበት የሚባለዉ ከአንድ ሺ ያላነሰ ሰዉ የሰፈረበትን መንደር ነዉ፤ እናንተ ግን ሃምሳና መቶ በማይሞላ ህዝብ ላይ ዳኛ ደልድላችኋል (First of all, the appointment of an aţebiya dańa should be when there are not less than a thousand people in the village, but you assigned an aţebiya dańa for a village which does not have more than fifty and hundred people.)²⁰

Similarly, the committee proposed to the appointment of an aţebiya dańa to be based on the extent of the däber’s territory. However, there was no standard size similarities among the areas assigned to an aţebiya dańa. For instance, the committee was aware that some aţebiya dańas oversaw up to 140 gaša fields, while others oversaw just 10 Gaša lands.²¹ They, therefore, recommended that the size of the aţebiya be uniform. The other issue was that several aţebiya dańa -related laws were inconsistent, making it unclear what functions the aţebiya dańa should serve. A couple of restrictions were introduced to the 1947 Proclamation. The circular letter written and sent in 1951 overrode several of its terms. For instance, the responsibility of the selection or appointment of the aţebiya dańa was given to the community members, not the court officials from wäräda and meketel wäräda. The government empowered the community to select aţebiya dańa over the places where there were no mälkäǹa, balä gult, rest holder, or färäsäǹa. The government removed the power of the meketel wäräda and wäräda court presidents in the appointment of aţebiya dańa through a circular letter.²²

In the newly circulated letters about aţebiya dańa a new thing was added. If the rest holder, bale gult, färäsäǹa or mälkäǹa owned more than the limit of the expected jurisdiction, they had the authority to appoint their aţebiya dańa. They were responsible for paying salary from what they received or collected.²³ However, the question was whether or not the balabat or balägult had the right to dismiss their appointed aţebiya dańa after they had appointed them. Some of the balagults dismissed the aţebiya dańa from their power and appointed a new one, which remained a source of litigation. The dismissed aţebiya dańa might appeal to the courts, claiming two things. First, the gult holder had no power to remove the aţebiya dańa from their power once appointed. Second, the appointment or the dismissal should be approved by the wäräda court.²⁴ The gult holders dismissed and appointed the aţebiya dańa more than six or seven times a year. District governors were tired of reading the gult holders’ letter to approve the appointment of aţebiya dańa in their respective gults.²⁵ The Ministry of Justice opposed such activities of the rest holder, bala gult, and mälkäǹa. Therefore, in 1953 the Ministry sent a circular letter to each ţäqelay gezat, which read as:

ባለርስተ ጉልት፤ ባላባትና መልከኛ የሚወክሉት ያጥቢያ ዳኛ በግርማዊ ንጉሰ ነገስት ከተሾመ በኋላ ለሚፈጸመዉ ጥፋት ወይም ጉድለት እንደሌሎቹ ዳኞች በጉባኤ እየታየ ይወሰናል እንጅ ወካዮች በፈለጉት ጊዜ እንዳይሽሩ፡፡²⁶

The rest holder, balabat, mälkäńa who appoint aţebiya dańa after the approval of the Emperor do not have the power to dispose of the appointed without the approval of the judicial council which had the authority to punish the judges including the aţebiya dańa for their mistakes.

The Ministry of Justice sent a circular letter prohibiting the balabats, and other authorities not to depose aţebiya dańa by themselves. In 1960, another circular letter was sent from the Ministry of Justice about the appointment and demotion of the aţebiya dańa. The letter read as:

የወከለዉን የአጥቢያ ዳኛ ወካዩ ለመሻር የፈለገበትን ምክንያት እንዲገልጽ እንዲደረግና ምክንያቱ በቂ መሆን አለመሆኑን በየጠቅላይ ግዛቱ እና በየደረጃዉ እየተጣራ እንዲቀርብ ሲል አሳስቧል.²⁷

The appointers of the aţebiya dańa should justify why they needed to dismiss; and the efficiency of their justification should be examined by the ţäqelay gezat court and other authorities.

Although the 1947 Proclamation granted the power to the aţebiya dańa to punish up to 15 and 26 Ethiopian Birr for both criminal and civil cases, respectively, the declaration and the criminal code did not say anything about what kind of punishments would follow if the punished individuals was unable to pay the imposed fee. It was one of the proclamation’s weaknesses and greatly impacted the roles and functions of the aţebiya dańa.²⁸ To fill this gap, in 1950, the Ministry of Justice sent a circular letter after the Council of Minister had approved it. The circular letter stated that the aţebiya dańas were empowered to pass judgment up to 20 days imprisonment on those who could not pay the fines imposed by the aţebiya dańa.²⁹ This also introduced new problems. The aţebiya dańa did not have prison houses in their jurisdictions. Therefore, there was confusion about whether these criminals were to be imprisoned in the police station or prison-house in the wäräda and awraja. The confusion can be seen from this appeal: በአጥቢያ ፍርድ ቤት ስልጣን የሚታሰሩ ሰወች በወሕኒ ቤት ወይም በፖለሲ ጣቢያ ይታሰሩ እንደሆን ክቡርነትዎ በጉባኤ አይተዉ አስፈላጊዉ ዉሳኔ እንዲሰጥልን በማክበር እናመለክታለን.³⁰ (I appeal to you to decide whether criminals sentenced by the aţebiya court should be imprisoned at the ţäqelay gezat prison house or in police stations).

The Proclamation and circular letter did not specify who would pay the aţebiya dańa’s salary or service income. The Ministry’s Council decided the aţebiya dańa’s monthly wage under the 1947 Proclamation through the Ministry of Justice’s presentation, which conflicted with the recently disseminated letter written in 1951.³¹

All aţebiya dańas were permitted to receive a monthly stipend equal to 50% of the court fees derived from civil cases.³² The wäräda gemeja bét, required a steady income to be submitted each month by all aţebiya dańa. The gemeja bét should pay the aţebiya dańa half of the money obtained in the name of the daǹnät and the remaining half for stationary, excluding the money acquired through criminal penalty.³³Aţebiya Dańa service users were required to pay with receipts. Every aţebiya dańa was required to gather receipts and pay 5 Birr for each. Only half of the fees received from gemeja bét (treasury office) for civil cases were permitted to the aţebiya dańa ‘s monthly wage.³⁴ In addition, the newly installed aţebiya dańa did not return the receipt they obtained from the Gemja bét to collect various fees, which caused a financial crisis for the government.

The chain between the aţebiya -dańa, wäräda, and awraja court was weak. This was because the decision made by the aţebiya dańa could not go beyond the wäräda court. Some say that decision made by the aţebiya-dańa court was not sent to the wäräda or awraja court in the form of appellate; instead, the cases or the charges were presented as a new case. ‘Any person dissatisfied with the judgment given by the aţebiya dańa can only take up his cases to the wäräda or awraja court as new.’³⁵ I think this is wrong because the criminal procedural code of Ethiopia clearly stated that if the disputed cases did not get a solution in the aţebiya dańa court, parties could go to the wäräda court in the form of appellate, not as a new case.³⁶

7. The Aţebiya Dańa in the eyes of the community

The advantage of establishing the institution of aţebiya dańa was questioned by some. They said that the presence of aţebiya dańa as an institution did not have any value. Rather, it was a burden for society and the government in many ways.³⁷ Others say that it had multiple advantages for the government and the community despite some procedural problems. To give solution to the varying views, the Ethiopian government ordered the Ministry of Justice to open a discussion forum in each ţäqelay gezat about the advantages and disadvantages of the aţebiya dańa. Accordingly, the Ministry of Justice sent the following discussion points on the subject of the aţebiya dańa in each ţäqelay gezat. The first question was how many aţebiya dańas were found in each ţäqelay gezat. The second question was on the achievements and contributions the aţebiya dańa to the society and the government since their establishment and appointments. The third question was, if the institution were not present, what kind of consequences would it have in the future? The fourth question was about the local people’s preference: did the people and/or officials choose the aţebiya dańas? Based on the above guiding questions, each ţäqelay gezat officials and concerned individuals discussed the issues seriously.³⁸

Accordingly, for the first question, each ţäqelay gezat, including Gojjam ţäqelay gezat, reported the number of its aţebiya dańa. Table 2 shows the number of aţebiya dańas in Ethiopia by ţäqelay gezat in 1950s.

Table 2. Number of Aţebiya Dańa in each Ţäqelay Gezats.

	Ţäqelay Gezat	No of Aţebiya Dańa
1	Šäwa	3664
2	Wällo	603
3	Tigré	568
4	Bägmeder and Sämén	838
5	Gojjam	2631
6	Wälléga	745
7	Illbabur	247
8	Gamo Gofa	108
9	Kafa	266
10	Sidamo	230
11	Arsi	357
12	Bali	80
13	Harar	331
Total		10,668

For the second question, some of the ţäqelay gezats such as Harar, Kafa, Wälléga, Šäwa, and Gamgofa answered that the presence of aţebiya dańa had no significance for the community and the government. Their argument was the following. First, they argued that the aţebiya dańa mainly worked for their private lives, not for the community. Secondly, they were corrupt and received mätäyaya or gubo (bribe). The third compliant that was that the aţebiya dańas instigated conflict among the people to get income from trials. At the same time, they did not support arbitration if the disputants arbitrated each other before they reached the aţebiya dańa; the aţebiya dańas did not accept it by arguing that the arbitration without their presence and knowledge was meaningless and unlawful. ³⁹

Contrary to the above ideas, ţäqelay gezats such as Wällo, Gojjam, Tigré, Bägmeder and Sämén, Arsi, Sidamo, and Bali concluded that the aţebiya dańas had many advantages. Their main justification was the aţebiya dańa institution was important in alleviating the local people’s problems by reducing the long-distance, cost, and energy of the people who litigate on different issues. They argued that it was an excellent opportunity for society to get timely and cost-effective judgments. The letter of the appeal of the people who demanded the continuation of aţebiya dańa read as: ለኛ እጅግ በጣም ጠቃሚያችን ነበር፡፡ በሀያ ስድስት በር ከደጃፋችን ፋይል ከፍተን እንነጋገርና ወዲያዉ ተመልሰን ስራችንን እንሰራ ነበር (It was very valuable to us both financially and in saving time because we expended only twenty-six Birr to open charge and return to home for our usual work soon). The second justification for supporting the institution was that banning the aţebiya dańa office would bring a work burden on the vice district governors, especially when they were required to bring the accused, witnesses, and suspected criminals from their locality to the court. Third, they argued that abolishing the aţebiya dańa institution means, by implication, negating one of the sources of income for the government. The other justification was that many aţebiya dańas would lose their additional incomes.⁴⁰

Unlike the above two arguments, the Illbabur ţäqelay gezat presented the idea that allowing the balabats to give permission for the appointment an aţebiya dańa was the wrong decision of the proclamation. They suggested that the people should choose capable individuals from the community to be an aţebiya dańa.⁴¹

8. Aţebiya dańa and its abolishment

From 1947 onwards, the aţebiya Dańa institution played significant role in facilitating the country’s justice system. It solved many disputes through reconciliation and trials, especially at the local level, at a low cost.⁴² In 1961, the Ethiopian government promulgated a new law of criminal procedure. It described the roles of the aţebiya dańa regarding crime issues in articles 223 and 224.⁴³ According to these two articles, the aţebiya dańa had the power to conciliate minor crimes such as insulting and theft in value of not more than twenty-five Birr in their respective jurisdiction. The articles in the criminal procedural code further stated that if the disputants did not negotiate, the aţebiya dańa would call a council to hold trial. Thus, the aţebiya dańa and two elders or assessors had to sit and judge the disputants. They could punish them with not more than a fifteen-birr fine if they found them guilty. Article 224 further elaborated on the judgment of the aţebiya dańa; if the disputants were dissatisfied with the decision of the aţebiya dańa, they could appeal to the wäräda court.⁴⁴ The civil procedural code promulgated in 1965 stipulated that the aţebiya dańa was not permitted to hear civil matters unless both parties consented to mediate their disputes. This implies that the aţebiya dańa was denied of hearing disputes involving rest and other property claims, which were their sources of income.⁴⁵

Inferentially, the aţebiya dańa service income halted since they were only allowed to hear criminal cases.⁴⁶ In each ţäqelay gezat, this led to considerable confusion. In response, numerous letters were addressed to the Ministry of Justice to specify who would be responsible for paying the aţebiya dańa’s salary and their respective tasks and obligations. Finally, thirteen ţäqelay gezat courts received a circular letter from the Ministry of Justice. The letter’s main goal was to have the aţebiya dańa institution eliminated from the first instance court. According to the letter, the roles of the aţebiya dańa were replaced by conciliation roles stated in the civil code on articles nos. 3318 and 3324.⁴⁷ The letter further said that a person who rejected the decision made by elders’ conciliation might be seen based on the laws stated in articles 315 to 319 and 350 to 357 of the civil procedural code.⁴⁸

Some ţäqelay gezat governors including Tigré, Šäwa and Gojjam strongly opposed the abolishment of the aţebiya dańa roles and the circular letter which briefed the articles about the aţebiya dańa’s roles stated in the civil procedural law. On September 05, 1966, a circular letter was written to 14 ţäqelay gezats. The letter read as:

ተከራካሪ ወገኖች ክርክራቸዉን በአጥቢያ ዳኛ አስታራቂ ሽምግልና አማካይነት እንዲወሰንላቸዉ ፈቅደዉና ወደዉ ከተስማሙ ዳኛዉ ነገሩን ተቀብሎ የሽምግልና ዳኝነቱን ዉሳኔ ቢሰጥ ህጉ አይከለክዉም፤፤ የአጥቢያ ዳኞች በወንጀለኛ መቅጫ ስነስርዓት ህግ የተሰጣቸዉን ስራ እንዳይሰሩና በአገር አገዛዙም በኩል ግብር መሰብሰቡን የፀጥታዉንም አጠባበቅና ሌላ ሌላዉንም አገልግሎት እንዳያከናዉኑ ሰርኩላሩም ሆነ ህጉ አላገዳቸዉም፡፡⁴⁹

Since the litigants agreed to be arbitrated under the aţebiya dańa, the law did not prohibit the aţebiya dańa to hear their appeal and give an arbitrary verdict. The criminal penal code did not prohibit the aţebiya dańas from their previous role such as collection of tax, protecting peace and others.

The above circular letter created confusion. It omitted to mention the aţebiya dańa’s source of income because they could not allow hearing civil cases while being permitted to hear criminal cases.⁵⁰ In 1966, many aţebiya dańas from different wärädas had complained. For instance, seven aţebiya dańas from Enemay wäräda complained against the restriction of aţebiya dańa from hearing the civil case. These were Fitawrari Ţerunäh Adegäh, Ato Dästa Yemär, Ato Alämayähu Dämisé, Ato Gätnät Hulubantä, Ato Wibnäh Wändé, Ato Diran Dästa and Abäbäch Säyifu.⁵¹

በደጀን ወረዳ ግዛት ዉስጥ የሚገኙት የአጥቢያ ዳኞች እነ አቶ ማሙየ አለሙ ሦስት ራሳቸዉን ሆነዉ …. በርስት ጉዳይ እንዳታከራክሩ ሲል የደጀን ወረዳ ፍርድ ቤት ስራችንን ተቃዉሞ ስለፃፈብን ህዝቡም ይህንን ምክንያት በማድረግ በማንኛዉም የመንግስት ስራ ሁሉ አልቀበለን ስላለ ለወደፊት በሃለፊነት እንዳንጠየቅ ሲሉ አመልክተዋል…⁵²

The aţebiya dańa in Däjän wäräda under the leadership of Ato Mamuyä appealed that the Däjän wäräda court prohibited us from hearing civil cases. As a result of this, the people opposed us from doing another government task; and they said that we could not have responsibility for any failure in the future.

Furthermore, 13 aţebiya dańas from Yelmana Dénsa wäräda under the leadership of Gäbrmaryam accused Ato Mäkonnän Ţerunäh, the civil judge of Yilma Ena Dénsa wäräda who prohibited all heads of gädam, church and other aţebiya dańas from hearing civil cases.⁵³ Similarly, the seven aţebiya dańas in Bićäna wäräda complained that ‘the awraja civil courts denied our rights to the administration of judgments.’⁵⁴

Therefore, some of the ţäqelay gezat, awraja, and wäräda governors and the aţebiya dańa used various means and justifications for the continuation of the aţebiya dańa institution. For instance, some awraja governors wrote a letter to their respective wäräda governors to inform the aţebiya dańa to continue their work since the criminal code did not rescind their power. A letter confirms this: የአጥቢያ ዳኞች ስልጣን በወንጀለኛ መቅጫ ስነ ስርዓት የተገለፀ ስለሆነ የፍትሐ ብሔር ክርክር በዳኝነት እየተቀበሉ የማየት ስራቸዉን እንዲቀጥሉ (The aţebiya dańa power still persisted in the penal code. Thus, they wrote a letter to the aţebiya dańas to continue their work). The other administrators wrote a letter that justified the continuation of the aţebiya dańa. One letter read: የአጥቢያ ዳኞች በስራዉ ላይ መኖር ጠቃሚነትና ጎጅነት ተጠንቶ በአገዛዙ በኩል ዉሳኔ እሰኪሰጥበት ድረስ በቀድሞዉ ሁኔታ እንዲቆዩ (The aţebiya dańa should continue their work until further study about its value and disadvantage is conducted and decisions are made). ⁵⁵

The others argued that until a study was made about the advantages and disadvantages, the aţebiya dańa should be allowed to continue their work. Some other wäräda or awraja governors wrote to their respective aţebiya dańas to continue their work by referring to an article on the Sändäk Alama News Paper. A letter read as የአጥቢያ ዳኞች ስልጣን ያልተሰረዘ መሆኑን በሰንደቅ አላማ ጋዜጣ ላይ ተገልጿል (Information disseminated in the Sändäk Alama News paper confirmed the continuation of the aţebiya dańa in power).⁵⁶

Two things mainly caused these misunderstandings. The first was the failure to provide the civil procedure law to all relevant local bodies. The second was the failure to accept the Proclamation of the new procedural code as a law. As a result, the code abrogated its power and replacement with the most recent arbitration roles. It stated as:

የፍትሐ ብሔርና ሌሎችም የፍትሐ ብሔር ነክ የሆኑት ጉዳዮች ሁሉ ተከራካሪዎቹ የሚፈቅዱ ከሆነ ለክርክሩ መነሻ የሆነዉን ንብረት ግምት ሳይወስኑ በመረጡት ወይም በመረጡዋቸዉ የግልግል ዳኞች ሊፈርዱ ይችላሉ፡፡ ባለጉዳዮችም ተመርጠዉ ለክርክሩ ዉሳኔ የሚሰጡትን የግልግል ዳኞች የሚሰጡትን ብይን ዉሳኔ በመደበኛ ፍርድ ቤቶች በሚያከናዉኑት በማንኛዉም አይነት የዳኝነት ስነስርአት የሚመራና የሚፈፀም፤ እንዲሁም ብይናቸዉ በይግባኝ አቀራረብ ሆነ በፍርድ አፈፃፀም ረገድ ከመደበኛ ፍርድ ቤቶች ልዩነት የሌለዉ መሆኑን ያስረዳል.⁵⁷

If the litigants agree all the civil law and related civil law case may be arbitrated or judged by the arbitrators of their choice, regardless of the property in which the dispute is based, the decisions of the arbitral tribunal shall be governed and administered by any court of competent jurisdiction. It also shows that the verdict is indistinguishable from the ordinary courts in terms of appeals and judicial proceedings.

9. Conclusion

The aţebiya dańa was one of the offices that attempted to resolve disputes through conciliation to the greatest extent possible. In addition, the aţebiya dańas were responsible for maintaining peace and order in their respective locality, collecting taxes, guarding the wäräda court and administrative office, and mobilizing the people for development works. Until the civil procedure code of 1965 of Ethiopia abolished it from the structure, the aţebiya dańas made the life simple for the rural people of Gojjam in many ways. The people used the office for any type of appeal with least labour, time and money cost.

Acknowledgement

I want to say thank you professor Shumet Sishagn and professor Temesgen Gebeyehu for their critical comments and suggestions on the initial draft of this paper.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Ayele Tariku Mesheshsa

Dr. Ayele Tariku Mesheshsa is a historian specializing in Ethiopian legal history. Currently, he holds the position of Assistant Professor in the Department of History & Heritage Management at Bahir Dar University in Ethiopia. Dr. Meshesha’s research interests span Ethiopia’s legal history, focusing particularly on the period from the medieval era to 1974.

Notes

1 Mehari Yohannes, “Debremarkos Awraja Gojjam Local Administration: the Role of Traditional.

Elements,” (B.A. Thesis, Department of Political Science and International Relations, Haile Selassie I University,1970),p.45.

2 Administration of Justice Proclamation, Year 1, No.2, Nägarit Gazėţa, 1942; Heran Sereke-Brhan,.

“Building Bridges, Drying Bad Blood: Elite Marriages, Politics and Ethnicity in 19^th and 20^th Century Imperial Ethiopia,” (PhD. Dissertation, Michigan State University, 2002), p.87; Bairu Tafla,”Two of the Last Provincial Kings of Ethiopia,” (Journal of Ethiopian Studies, Vol. 11, No. 1, 1973),p.29; Abdussamad H. Ahmad, “The Gumuz of the Lowlands of Western Gojjam …pp.57-58; Fantahun Berhanie, “Gojjam from 1800-1855,” (Thesis, H.S.I.U. Department of History, 1973), p.1; Decree Approving Administrative Regulation, Year 1, No. 6, Nägarit Gazėţa, 1942; Getachew Assesfa (eds). “Towards widening the constitutional space for customary justice systems in Ethiopia” in Susanne Epple, Getachew Assefa (eds.) Legal pluralism in Ethiopia, Actors, Challnges and Solutions. (Bielefeld: Majuskel Medienproduktion GmbH, Wetzlar, 2020)., pp.5-8.

3 Administration of Justice Proclamation (Amendment), Year 8, No.102, Nägarit Gazėţa, No.4,.

of 1948; Establishment of Ațebiya Daǹa(Local Judges) Proclamation, Year 25^th, No. 90, Nägarit Gazėţa, Year 6; No 18, 1947; IES, Ms File No, 1879, Yä Ferd Bét Awäqaqär, pp.1-8.

4 Establishment of Ațebiya Daǹa(Local Judges) Proclamation, No. 90, Year 25^th, Nägarit Gazėţa, Year.

6; No 18, 1947.

5 Getachew, “Towards Widening the Constitutional Space…p,47.

6 Getachew, “Towards Widening the Constitutional Space…p,47; N.A.L.A, Folder No 501, File.

No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from emperor Hailä Sälasė I to Ras Hayelu Bäläw, Ref No N/A, Pagumé 3, 1943EC.

7 Administration of Justice Proclamation, Year 1, No.2, Nägarit Gazėţa, 1942.

8 Establishment of Ațebiya Daǹa(Local Judges) Proclamation of 1947, Year 25^th, No. 90, Nägarit.

Gazėţa, Year 6; No 18, 1947; Informants: Ayaléw Dästa, Bälay Abäbä, Bezuayähu Munė; N.A.L.A, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from emperor Hailä Sälasė I to Ras Hayelu Bäläw, Ref No n/f, Pagumé 3, 1943EC.

9 Ibid.

10 Establishment of Ațebiya Daǹa (Local Judges) Proclamation of 1947, Year 25^th, No. 90, Nägarit

Gazėţa, Year 6; No 18, 1947; D.M.U.H.A.R.C, Folder no 221, File No 66, A Letter from Ye Gojjam TŢäqelay Gezat Ferd Bet, Mikitil President to Ras Hayelu Bäläw Yä Gojjam Ţäqelay Gezat Gäź, Ref No. 15/5/1948ec.

11 D.M.U.H.A.R.C, Folder no 221, File No. 66, A Letter from Däjazmać Șähyu Iniqu Selllassé, Endärasé

to Ye Ferd Minister Mikitil Minster, Ref No69/3, 13/2/1950ec.

12 Ibid.

13 D.M.U.H.A.R.C, Folder No 221, File No 66, A Letter from Baher Dar Awraja Gezat Șifät Bét to.

Yilman ina Dänsa wäräda Gezat Șifät Bét, Ref No 44, Tahisas 2, 1944ec.

14 D.M.U.H.A.R.C, Folder No. 902 File No 88, Bä Ferd Bét Silaltäfätșämä Nägär, A Letter from Ras.

Hayelu Bäläw to all Seven Awraja Governors, Ref No 54/ለ/, 1942ec; Haile Muluken, “A History of Traditional and Modern Legal and Justice Systems of Ethiopia CC.1900-1974,” (M.A. Thesis, Department of History, Addis Ababa University, 2007).p,23.

15 N.A.L.A, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from

emperor Hailä Sälasė I to Ras Hayelu Bäläw, Ref No n/f, Pagumé 3, 1943EC.

16 Establishment of Ațebiya Daǹa(Local Judges) Proclamation of 1947, Year 25^th, No. 90, Nägarit

Gazėţa, Year 6; No 18, 1947; N.A.L.A, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from emperor Hailä Sälasė I to ras Hayelu Bäläw, Ref No n/f, Pagumé 3, 1943EC.

17 Ibid.

18 N.A.L.A, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from emperor Hailä

Sälasė I to Ras Hayelu Bäläw, Ref No N/A, Pagumé 3, 1943EC.

19 Ibid.

20 D.M.U.H.A.R.C, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from.

Baher Dar Awraja Gezat Șifät Bét to Yilman ina Dänsa wäräda Gezat Șifät Bét, Ref No 44, Tahisas 2, 1944ec.

21 Ibid.

22 N.A.L.A, Folder No 91, File No 21, Selä Ațbiya Daǹoć Yätdärägä Açir Ţinat, Nähasé 1963ec.

23 Ibid.

24 Ibid.

25 N.A.L.A Folder No 80, File No 6, A Letter from ministry of justice to all Ţäqelay Gezat courts, Ref.

No 1927/ፍ/33፣ Miyaziya 9, 1946ec.

26 Ibid.

27 N.A.L.A folder no 80, File No 6, A Letter form ministry of justice to all Ţäqelay Gezat courts, Ref

No 1/03/ፍ/39, date hidar 25, 1960 ec.

28 N.A.L.A, Folder No 91, File No 21, Selä Ațbiya Daǹoć Yätdärägä Açir Ţinat, Nähasé 1963ec.

29 N.A.L.A, Folder No 91, File No 21, A Letter from ministry of justice to all Ţäqelay Gezat courts Ref

No 748, Nähasé 12, 1950 ec.

30 D.M.U.H.A.R.C, Foder No 55, File No መበ/113 Selä Sira, 1959, A Letter from Šifäraw Räta to

Gojjam Ţäqelay Gezat Wana Director Ref No 225/11, 16/3/1947ec.

31 N.A.L.A, Folder No 182, File No 90, Selä Ațebiya Daǹoć, Selä Ațebiya Daǹoć .

Šumät Bäqutär 90 Yäwäța Awajoć, 1939-1963.

32 N.A.L.A, Folder No 91, File No 21, Selä Ațbiya Daǹoć Yätdärägä Açir Ţinat, Nähasé 1963ec.

33 D.M.U.H.A.R.C, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from

Yägnäzib Minister Gojjam Awraja Mäqoțațäriya Șifät Bét to Gänzäb Minster, Ref No 18614, date Nähasé 7 1944ec.

34 Ibid.

35 N.A.L.A, Folder No 182, File No 90, Selä Ațebiya Daǹoć, Selä Ațebiya Daǹoć .

Šumät Bäqutär 90 Yäwäța Awajoć, 1939-1963.

36 The Ethiopian Empire, The Criminal Procedural Code of Ethiopia, … p.75.

37 N.A.L.A, Folder No 182, File No 90, Selä Ațebiya Daǹoć, Selä Ațebiya Daǹoć .

Šumät Bäqutär 90 Yäwäța Awajoć, 1939-1963.

38 N.A.L.A, Folder No 182, File No 90, Selä Ațebiya Daǹoć, A Letter from ministry of justice to all

Ţäqelay Gezat Courts, Ref No 411/35/49, Nähasé 24, 1956 ec.

39 N.A.L.A, Folder No 182, File No 90, Selä Ațebiya Daǹoć, Sle Aţbiya Daǹoć yetdrege Açir Tinat,.

Nähasé 1963ec.

40 N.A.L.A, Folder No 182, File No 90, Selä Ațebiya Daǹoć, Selä Aţbiya Daǹoć Yätädrägä Açir .

Ţinat, Nähasé 1963ec.

41 Ibid.

42 Proclamation 1939 ec, Yäţätäqalälu Higoć, pp.126-126.

43 The Ethiopian Empire, The Criminal Procedural Code of Ethiopia, … p.75;.

44 The Ethiopian Empire, The Criminal Procedural Code of Ethiopia,… p.75; The Ethiopian Empire, The

Civil Code of the Empire of Ethiopia of 1960, Nägarit Gazéța, 19^th Year, No. 2. Proclamation, No. 165 of 1960 (Addis Ababa: Berhan ina Sälam Matämiya Bét, 1960), pp 707-708.

45 Ibid.

46 D.M.U.H.A.R.C, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from

Bälätä Gäbré Șadiq, Yä Awraja Gäź to Yä Gojjam Ţäqelay Gezat Endärasé, Ref No 324/21, date 2/5, 1951ec

47 N.A.L.A Folder No 182, File No 90 A Letter from the ministry of justice to thirteen Ţäqelay Gezat

courts ref no 3560/ፍ/33, Miyaziya 19, 1958; The Ethiopian Empire, The Civil Code of the Empire of Ethiopia of 1960. Nägarit Gazéța, 19^th Year, No. 2. Proclamation, No. 165 of 1960 (Addis Ababa: Berhan ina Sälam Matämiya Bet, 1960), pp.556-561.

48 N.A.L.A Folder No 182, File No 90 A Letter from ministry of justice to thirteen Ţäqelay Gezat.

courts Ref No 3560/ፍ/33, Miyaziya 19, 1958; The Ethiopian Empire, The Civil Procedural Code …pp.101-103, 113-115.

49 N.A.L.A, Folder No 182, File No 90, A Letter from ministry of justice to Fourteen Ţäqelay Gezat

courts, Ref No 6240/ፍ/39, Pugamé 1, 1958ec.

50 N.A.L.A, Folder No 182, File No 90, A Letter from ministry of justice to fourteen Ţäqelay Gezat

courts, Ref No 6340/ፍ/39, Hidar 10, 1960ec.

51 D.M.U.H.A.R.C, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from

Inämay Wäräda Aţbiya Daǹoć to Däjazmać Däräjä Mäkonnän, Yä Gojjam Ţäqelay Gezat Gäź, Ref No- N/A 27/2/1965ec.

52 D.M.U.H.A.R.C, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from

fitaawrari Mäkonnän Kasa, Yä Bićäna Awraja Gäź and Yämazäga Bét Šum to Yä Gojjam Ţäqelay Gezat Șifät bet, Ref No 227/120, date 29/1/1966ec.

53 D.M.U.H.A.R.C, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from

Yilma ina Dänsa Wäräda Aţbiya Daǹoć to Gojjam Ţäqelay Gezat Șifät Bét, Ref No. N/A,1965 ec.

54 D.M.U.H.A.R.C, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from

Däjazmać Däräjä Mäkonnän, Indärasė, to Baher Dar Awraja Gezat Șifät Bét, Ref No 15817/69/3, 5/11/1965ec; D.M.U.H.A.R.C, Folder No 501, File No. 69, Selä Ațebiya Daǹoć Yätädärägä, A Letter from mämihir Gäbrémaryam Färädä and Mämihir Antänäh Käfalä to Gojjam Ţäqelay Gezat Șifät Bét, Ref No.N/A date11/6/1966ec;Infoemants: Abäbay Nureliǹ (Ato) Abatä Täsäma, Abbay Jänbäré,Abäzu Admasé, Abrham Kasa, Afäwärk Ingida.

55 D.M.U.H.A.R.C Bićäna Awraja Ferd Bét Selä Raport, A Letter from Bićäna Awraja Governor to

Kuye Wäräda Governor, Ref No 3321/3, 1954EC; A Letter from Baher Dar Awraja Governor to Yilma Ina Dänsa wäräda Governor Ref No 2/1h, 1966.

56 D.M.U.H.A.R.C Folder No. 781, File No መ/አ-69, Däjän Wäräda Ferd Bét, A Letter from Däjän

wäräda governor to Gubaya mikitle wäräda governor Ref nn 643/21/, 1965EC.

57 D.M.U.H.A.R.C, Folder No. 962 File No 50, Yä Ferd Afäșașäm Guday, Açir Mastawäša, 1963.