Customary Versus Modern Laws of Eritrea on Gender Equality: A Comprehensive Study on Harmonization of Pluralistic Laws

By Muluberhan Hagos

The research of Muluberhan Hagos compares the customary laws of ethnic groups in Eritrea and the modern laws of the country, with a focus on the legal issues in society that emerge, understood from a gender perspective. These issues include the laws of person and gender, abortion, family law, succession and property, the law of contracts and criminal and civil liabilities in gender-related offences. Muluberhan Hagos treats customary law as a system that is dynamic and alive and responds to community matters. It is an excellent and detailed study on the relevance of customary law today. The book, which is part of the GAIC Network and African studies series published with Langaa, makes an important contribution to the literature on legal studies, African studies, social protection and governance.

• Language: English
• Publisher: Langaa RPCIG
• Release date: Feb 7, 2023
• ISBN: 9789956553969

Book preview

Second Edition Foreword I

Mirjam van Reisen

¹

For the law to be meaningful in a society, it must be embedded in a culture in which the understanding of it, its application, and adherence to it is lived and evolves with the new customs of the time. No society is static, and its rules, written or unwritten, must change to remain relevant. Transformation is rarely absolute or sudden, but rather an intricate process in which some elements remain and others disappear or return to mingle with elements that seek to find their place at any one point in time. In the remix, things are never the same. A set of rights is, therefore, not just about the present – an understanding of the provenance of a law may lead us to an appreciation of its value today, as our norms and values evolve into the unknown future.

In any case, whatever form our laws take, the legal system reflects a certain order. What is not relevant within that order, does not feature among the considerations of what should be protected by that order. The law, as an architecture of order, is a principle place of contestation of what matters, who is best placed to determine what matters, and who has the power to enforce this order.

It was an important moment when I met the former Eritrean High Court Judge, Muluberhan Berhe. I was honoured to receive a copy of his book, Customary versus Modern Laws of Eritrea on Gender Equality, which he was carrying with him on his challenging journey from Eritrea. In this book, Hagos discusses the customary laws of Eritrea in relation to modern law. The study is factual, thorough, and technical, and provides an excellent in-depth overview of the wealth of legal considerations of the different ethnicities living in Eritrea and their systematic underpinning. While in no place does the book reveal any political stance, it is by its very nature testimony to the diversity of the societies that live in Eritrea, their distinction in terms of the languages spoken, values held and legal approaches taken, as well as their political organisation. These are presented without bias, favour or hierarchy. The analysis is a valuable statement of the existence of ethnic diversity in the country, and the relevance of belonging to the indigenous communities living together in Eritrea’s pluralistic society.

The investigation in this book does not explicitly challenge the modern Eritrean state. However, it may raise questions on the divergence of interests between the national authorities and the various local leaders in defending the rights and wellbeing of the people who live in the country. It presents Eritrea as a given, while examining the place of customary law within the modern legal system that came with the construction of the country after the referendum of 1993. In so doing, it describes the long-standing historic practices, codified in customary law – and still practised – within the new stratification of Eritrea as a young nation. It is a tribute to the customary administrations in place in Eritrea. These local administrations have relevance due to their deep knowledge of the history, land, language, customs and traditions of their communities.² This book articulates the relevance of the traditional leadership of Eritrea, within the rapidly changing landscape.

The focus of this book is on extremely sensitive and thorny topics of life and death, including reproductive rights, the rights of the unborn, and the relations between men and women. While referring to this within the concept of gender equality, Hagos advances detailed notions of community responsibility for a safe and just handling of the existential issues that communities face. He departs from a notion that customary law is systematically discriminatory against women.³ The author effortlessly transforms a concept defined in Western discourse through an African lens on gender.

In this study, Hagos conceptualises the community as the unit of analysis and sets himself within the framework of the great tradition of ubuntu, in which togetherness takes priority over individual needs, rights and identities. He positions gender in an African tradition,⁴ in contrast to the Western concept of gender as a space in which individually and biologically determined ‘bodies’ are negotiated as metaphors for embodied individuality.⁵ In this philosophy, gender equality is no longer a women’s question, nor a matter of intrinsic competitive relations between gendered individuals within a community,⁶ but an issue that determines the wellbeing of the entire community.

Photograph © Mirjam van Reisen

With his rigorously technical description of customary law in Eritrea, in comparison to the modern laws, Hagos establishes a strong foundation for studying this topic in contemporary society – and not as an exotic study object of the past. He convincingly establishes that customary law is relevant in current study and debate in Africa. From the detailed descriptions in this study, it can be concluded that the traditional processes, described as customary practices, may still inform the narrative about Eritrea’s history, as a reasonable and relevant history that may help Eritreans to overcome the alienation they feel today, in a society in which right and wrong lacks authenticity.

If this exercise of studying customary law is so enriching, it begs the question: Does this discussion have relevance to judicial meaning-making in other places in and outside Africa? While contemplating this question, I sat down under a nearly 800-year old court lime tree in Reichenau. It was a peaceful spot. There was a signpost indicating that this was the spot where court was previously held, under the tree. I realised that the court lime tree is one of the trees used in culturally Germanic areas as a sacred place for holding assemblies and courts. This place was the site of an historic place of justice.

In Europe under the Holy Roman Empire, the court lime tree, or linden tree, was where customary law (judicum sub tilia/rechts or ding tree) was exercised in Germanic speaking areas, up until the beginning of the 17th century. The ‘ding’, a word still used in Dutch law for a short urgent legal procedure (‘kort geding’), refers to a meeting held by a community under a tree, as a place where issues were deliberated and resolved according to customary rules. The tree – a spiritual place under which the community ‘sorted things out’ – leaves its traces up to today, where it still provides shade for members of the community to sit, consider, and discuss what is right and wrong.

Perhaps this is what is so attractive about this original book, presented here in a second edition by Hagos. The author takes customary law out of the anthropological drawers and cabinets of peculiarities. He presents with rigour the difficult questions that communities handle in the context of the challenges they face in the modern world. Through this exercise, he gives it the prominent place it deserves. Hagos has succeeded in presenting a study through which he returns an ubuntu-based approach to community justice to Africa, as a relevant asset that has its place in the administration of communities today. He has also succeeded in opening up a reflection on customary law as a valuable object of study, with universal value, not dependent on a singular African proposition, but connecting a human practice of organising belonging, custom and togetherness across our continents.

Photograph © Mirjam van Reisen

¹ Professor Dr Mirjam Van Reisen holds the Chair of International Relations, Innovation and Care at Tilburg University and the University Chair FAIR Data Science at Leiden University Medical Centre at Leiden University, both in the Netherlands.

² Vaughan, O. (2003). Chiefs, power and social change: Chiefship and modern politics in Botswana, 1880s–1990s. New Jersey: Africa World Press

³ Zungu, C. (2011). Gender equality and customary law in South Africa. In: T. Falola, & B. House-Soremekun (eds), Gender, Sexuality, and Mothering in Africa. New Jersey: Africa World Press

⁴ van Stam, G.J. (2015). Ubuntu and peace: Without a mother, there is no home. In: M. Van Reisen (ed.), Women’s Leadership in Peace Building, Conflict, Community and Care. New Jersey: Africa World Press

⁵ Oyewumi, O. (1997). The invention of women. Making an African sense of western gender discourse. Minneapolis: University of Minnesota

⁶ Mies, M. (1986). Patriarchy & accumulation on a world scale women in the international division of labour. New York, NY: Zed Books

Second Edition Foreword II

Munyaradzi Maware

⁷

Researching and writing on intellectual projects in post-colonial Africa is always unsettling for fair-minded academics who have passed through Western-biased education systems. There appears to be a constant battle over which perspective - Western or African - one should adopt. With respect to legal discourse on Eritrea, which is the subject of this book, the basis of this conflict is also partly a result of these questions: How do we resist the colonial appellation and renunciation of African customary laws and steadfastly uphold ‘African indigenous’ laws in a way that cultivates generative conversations about the cartographies of generative laws and indigeneities? How can gender sensitivities in customary laws, in this case of Eritrea, be realised? And how do we compare and contrast modern laws and customary laws?

At another level, this mental battle of perspectives culminates in discourses about decoloniality that call for the need to not only challenge the imposition of (Western) colonial legal systems and ways of knowing, but to also uphold customary laws and their indigenous epistemologies as relational and complementary. In this respect, ‘indigeneity’ should not be understood as frozen in time and space. This is exactly what the Bolivian anti-colonial, indigenist feminist theorist, Silvera Cusicanqui,⁸ reminds us of when she says:

[…] the indigenous world does not conceive history as linear [but that] the pastfuture is contained in the present […]. Indigenous modernity can emerge from the present in a spiral whose movement is a continuous feedback from the past to the future [offering] a principle of hope or anticipatory consciousness that both discerns and realizes decolonization at the same time.

Thus, instead, indigeneity should be understood as an international category that repeals colonial appellations and impositions. Nevertheless, the challenge is that colonial appellation also positions Africa as bearing the burden to prove her claims about the ‘indigenous’ and ‘indigeneity’, particularly in relation to who owns and can claim such. For Adefarakan,⁹ this reality calls for African scholars to push back. I must, however, hasten to say this does not mean that we liberalise ‘indigenous’ and ‘indigeneity’ to the extent that anyone and everyone can hold unquestioned claims to be indigenous to any land, place, time and culture. Instead, the coloniser’s claim to be indigenous on other people’s lands and cultures needs to be unapologetically questioned. Elsewhere, as I have repeatedly argued, the term ‘indigenous’ is marked and characterised by the absence of imperial imposition at all levels, not only by the absence of physical imperial occupation. It is about the past, present and future connection of a people to their land – politically, spiritually, culturally and even emotionally. This means that any culture whose history is connected to the colonial expansion of the ‘Empire’ has an obligation to scrutinise and put to the test all claims to indigeneity. Regrettably, uncritical conversations about the colonial appellation of the indigenous (and sometimes of decolonial discourse itself) often privileges the ‘coloniser’ to tell the ‘colonised’ or the ‘indigene’ what it means to be indigenous and how indigenous should be construed and understood.

What I have briefly described above, for many critical scholars and especially for Muluberhan Berhe Hagos in this book, is the biggest problem for intellectual discourse on Africa today. Hagos’ book is not merely a collection of stories proving to readers that (African) customary law is worth academic investigation per se, for we have gone past the time when it was necessary to prove such an idea. Instead, Hagos makes a critical argument that the repudiation, devalorisation, devaluation and, worse still, de-legitimisation of African customary laws has been far-reaching and with consequences gastric to contemplate, not only for Africa, but for the entire world. It is not only Africa that lost in this equation, but the entire world. We desperately need each other, no matter how rich or poor (materially) we might be, especially on epistemic and social fronts. Abundant intellect can be expended defending (African) customary laws in global intellectual-legal spaces, but the point is that Africa did not lose her ‘indigeneity’ with the advent of European colonialism on its land. And generative conversations between Western laws and African laws are fundamentally critical not only for conviviality and epistemic justice to prevail, but to recoup the losses incurred during colonialism.

Hagos’ book is a challenge to all of us, especially those in involved in legal fields and knowledge studies, for it proves that no matter where we come from, we all have a responsibility to nurture indigenous systems of thought and practice. This is why Eurocentric corporate capital interests in indigenous spaces in Africa must be met with bottomless scepticism and criticism. Sharing our knowledge systems must result in local people losing control of their knowledge, but in generative conversations between people.

As such, Hagos’ book affords African scholars the space to be the witnesses and guardians of their own intellectual spaces, but without turning a deaf ear to the intellectual spaces of other people. It opens the space for epistemic pluralism and generative conversations. To demonstrate this, Hagos makes an in-depth comparison between the customary and modern laws of Eritrea. Using his findings from the field, he clearly refutes the wide, biased and generalised perceptions of Eurocentric scholars that the customary laws of Eritrea are discriminatory against women. He demonstrates the gender sensitivity of a number of provisions contained in Eritrea’s customary laws, which are lacking in the so-called modern laws adopted from the West. A good example given by Hagos relates to the customary laws pertaining to paternity, which view paternity from both a biological and a social perspective – a progressive trait of gender equality that is absent in the modern laws of Eritrea. This progressive trait is not only visible in Eritrean customary law, but in many African cultures, including those south of the Sahara. In the Shona culture of Zimbabwe, for example, we have what we call babakadzi (female fathers) – aunts who are accorded the same status as (or even higher than) males in the family.

Another excellent example given by Hagos that demonstrates the gender sensitivity of Eritrean customary laws is to do with the attribution of legal personality to a foetus and compensation to the victim of miscarriage due to physical damage. In contrast, the modern laws of Eritrean deny legal personality and, consequently, legal status to a foetus. This deprives people of their right to seek compensation for material and moral damage when a miscarriage occurs due to physical damage caused by another. Thus, the monolithic perspective of (Western) modern laws suggests a particular colonial engagement of (legal) knowledge steeped in Eurocentrism and imperialist cultural ideologies of modernity.¹⁰ This is not a new development, as, throughout history, the ‘colonial-modernity’ dialectic¹¹ has aided, if not pioneered, the subduing of the ontologies and epistemologies of Africans, as well as of indigenous and colonised peoples around the world, universalising the ‘white’, Western liberal subject as representative of all humanity.¹² As Mignolo and Walsh¹³ rightly argue, modernity and coloniality have worked in tandem to negate, disavow, distort, and deny knowledges, subjectivities, world senses, and life visions. This is substantiated by Hagos, who argues in this book that it is imperative to destabilise the dominant Euro-exclusive claim of modernity, at least from the vantage point of (African) indigeneity and pluralism.

In light of the above, the novelty of this book lies in the fact that it brings an expansive gaze to legal studies, while making a bold attempt to destabilise and demystify the Eurocentric myth that (African) customary laws are repressive and anti-progressive. Above all, the book corrects the misrepresentations and misinterpretations about customary laws permeating Eurocentric legal discourses on Africa, while opening new spaces for mutual and generative conversations between those working in the areas of Western law and African customary law. In this way, this book adds to the existing series by Langaa on generative dialogue between Europe and Africa. Mutual conversations between Europe and Africa are fundamentally important, as they clearly demonstrate that we have diverse epistemologies that can be deployed in today’s troubling times, when existential answers to the complex challenges of the day are peremptory. For Hagos, such conversations demand the full acknowledgement and validation of epistemic pluralism, including African indigeneity, which take into account our African historical, cultural and ancestral memories, as the ontological and epistemic heritage necessary to drive both the anti-colonial and decolonial discourses.

⁷ Professor Dr Munyaradzi Mawere is a Professor and Research Chair at the Simon Muzenda School of Arts, Culture and Heritage Studies at Great Zimbabwe University.

⁸ Cusicanqui, S.R. (2012). Ch’ixinakax utxiwa: A Reflection on the practices and discourses of decolonization. South Atlantic Quarterly, 111(1), 95-109 (pp. 96-97). doi: 10.1215/00382876-1472612

⁹ Adefarakan, T. (2011). (Re-)conceptualising ‘indigenous’ from anti-colonial and black feminist theoretical perspectives: Living and imagining indigeneity differently. In: G.J.S Dei (ed.), Indigenous Philosophies and Critical Education: A Reader. New York, NY: Peter Lang, pp. 34–52

¹⁰ Grosfoguel, R. (2011). Decolonising post-colonial studies and paradigms of political economy: Transmodernity, decolonial thinking and global coloniality. Transmodernity: Journal of Peripheral Cultural Production in the Luso-Hispanic World, 1(1), 1-36

¹¹ Mignolo, W. (2007). Delinking: The rhetoric of modernity, the logic of coloniality and the grammar of de-coloniality. Cultural Studies, 21(2-3), 449-514

¹² See also Grosfoguel, R. (2011). Decolonising post-colonial studies and paradigms of political economy: Transmodernity, decolonial thinking and global coloniality. Transmodernity: Journal of Peripheral Cultural Production in the Luso-Hispanic World, 1(1), 1-36

¹³ Mignolo, W., & C. Walsh (2018). On decoloniality: Concepts, analysis and praxis. Durham, NC: Duke University Press, p. 4

Foreword to the First Edition

Prof. Asmarom Legesse

Anthropologist and Director of Citizens for Peace in Eritrea

This ground-breaking study has deeply examined the customary laws of Eritrea in unprecedented manner. The in-depth comparison made between customary and modern laws of Eritrea refutes the sweeping, subjective and generalized perceptions that customary laws of Eritrea are discriminatory against women. It suffices to mention the following examples to demonstrate the gender sensitivity of a number of provisions contained in customary laws in contrast to modern laws.

A pertinent example that demonstrates sensitivity to gender is the attribution of legal personality to a fetus and compensation to a victim of miscarriage due to physical damage. In contrast, modern laws deny legal personality to a fetus, save retroactive recognition provided the new-born is viable. Consequently, the heirs lack recourse to seek compensation for material and moral damages. The second example relates to some provisions of the customary laws that view paternity not only from biological standpoint but also from social standpoint disclose that customary laws possess progressive traits in terms of gender equality. The customary laws applicable to the adherent of Islam provide extremely difficult presumption to rebut and disown a child born in wedlock. The customary laws of the Afar and Kunama explicitly stipulate the attribution of social paternity to a child born out-of-wedlock where proving biological paternity is difficult or impossible. In exceptional circumstances, a Kunama and an Afar child born out-of-wedlock may respectively have their maternal uncle and their tribe as a social father. I think these are examples of respect to human rights and gender equality.

Finally, I strongly believe this book will be a good resource to the public and law enforcement institutions in Eritrea. I commend the author for his hard work and achievement.

INTRODUCTION

This book, which was originally published in Tigrigna language, examines the strengths and weaknesses of the pluralistic customary and modern laws of Eritrea pertaining to gender equality. The term gender refers to societal attitudes and viewpoints designated to females and males. It is a social difference that determines the role, power and resources allotted to both genders. Accordingly, gender equality as a concept addresses the equal or unequal enjoyment of rights and duties enshrined in substantive and procedural laws. In contrast, the term sex deals with biological differences between male and female. Generally, boys and girls develop their gender identity as per the designated attitudes and viewpoints of their community. Thus, the learned and experienced behaviours, attitudes and values configure the gender identity of both sexes.¹ The phrase modern laws in the context of this book means the transitional codes and domestic laws of Eritrea duly proclaimed since the independence of Eritrea, as well as relevant ratified and acceded to international laws. The transitional codes of Eritrea are a set of codes proclaimed during the regime of Emperor Haile Sellassie in Ethiopia and adopted in post independent Eritrea.

The core objective of this comparative study is to assess the role of law as a tool for social engineering by specifically focusing on gender equality. The comparative analyses and syntheses often adhere to a four-tiered approach. The initial paragraph or sub-section often gives brief analyses on the principle or conceptual background of the topic. The second paragraph or sub-section examines the principles and concepts stipulated under the modern laws pertaining to gender equality. The third paragraph or sub-section explores the customary laws of Eritrea from gender equality perspective. The fourth paragraph or sub-section compares and contrasts the modern and customary laws of the nine Eritrean ethnic groups’ pertaining to gender equality. The pluralistic customary legal frameworks are also compared and contrasted from within where differences and similarities are traced. The ultimate goal is to assess the harmonization of customary and modern laws in the promotion and protection of gender equality.²

The publication of this book is timely and essential for the current and future generations. Significant number of the current generation lack basic knowledge of the customary and modern laws.³ The transference of the Eritrean customary legal system from generation to generation has been adversely affected due to the prevailing political and socio-economic crises dating back to the 1940s. Consequently, the lack of in-depth and sufficient knowledge of the pluralistic legal systems of Eritrea has resulted in subjective statements that regard the customary laws as backward, discriminatory and incompatible with human rights.⁴ Moreover, the prevailing socio-cultural crises, such as the proliferation of succession and family cases as well as contract and business-related disputes may have been prevented or minimized had the basic legal knowledge been successfully transferred by the emerging generation. This book comes in point to fill this void,⁵ to contribute in developing positive attitudes on the rule of law,⁶ to provide mechanisms for nonproliferation and conflict transformation⁷ and to serve as a reference material in transforming disputes.⁸

Furthermore, the book is expected to serve as a source for the development of the Eritrean legal system. Customary laws are deeply engraved and embedded in the mind and soul of the Eritrean people. The majority of the Eritrean society has been applying customary legal frameworks in daily life and in dispute resolution. So far, the wisdom prevailing within the Eritrean customary laws has not been adequately, systematically and comprehensively explored. The most serious challenge has been a lack of comprehensive, critical, objective and comparative research on the customary and modern laws of Eritrea. In 1916, the renowned and acclaimed Italian scholar, Carlo Conti Rossini, published the Principles of the Eritrean Customary Laws specifically addressing the customary laws of the ethnic groups of Tigrigna, Bilen, Tigre ( Kl’a Mensa’e, Maria and BeniAmir), Kunama and Nara. Since then, except the recently published Blood, Land and Sex: Legal and Political Pluralism in Eritrea by Lyda Favali and Roy Pateman, The Challenges of a Society in Transition: Legal Development in Eritrea by Yohannes Gebremedhin other research done and publications made lack comparative analyses between the modern and customary laws of Eritrea.⁹

The driving forces that compelled the author to specifically focus and limit the book in examining gender equality are:

First, the author’s experiences sitting as a High Court Judge, hearing serious complaints of injustice by a number of women during adjudication and after judgment.

Second, reading and referring to secondary sources, books, reports and certain researches expressing statements, perceptions and understandings that the customary laws of Eritrea discriminate against gender.

Thus, the author decided to undertake a comprehensive comparative research to empirically find out the strengths and weaknesses of the customary and modern laws pertaining to gender equality in order to serve as a base for assessment on harmonization of pluralistic legal systems.

Finally, this introductory section is intended to render brief background on the development of the customary and modern laws of Eritrea. It also briefly sets out the process of the making of the customary and modern laws of Eritrea. Moreover, the objectives, scope and limitation of the book, research methodology and overview of the sections are provided in this section.

1. Objectives of the Book

The book has the following objectives:

1. To compare and contrast the strengths and weaknesses of the customary and modern laws pertaining to gender equality.

2. To explore the knowledge, attitude and behaviour of the Eritrean society regarding gender from the perspective of legal frameworks.

3. To serve as a reference or resource material in harmonizing the pluralistic legal systems, namely the customary and modern laws intending to rectify historical and systematic gender inequality.

4. To spearhead the function of civic legal education and maximize harmonization of customary and modern codes.

2. Brief Definition, Characteristics and Background of the Customary Laws of Eritrea

The customary laws of Eritrea refer to a community-based legal system that has either been directly or indirectly developed. The directly developed sets of laws consist of enforceable customs that resulted from general or emerging practices and socially desired norms. The indirectly developed sets of laws comprise the formally legislated local statutes made through representatives of a given community. The phrase customary law is, therefore, constructed through the terms customary or traditional and law. The term customary denotes an established and habitually practiced custom, norm, culture, ritual, belief, practice, behaviour, attitude and knowledge. The term law refers to a set of rules, regulations, orders, principles, systems, concepts, theories and procedures to respect the obedience and protect rights as well as enforce duties of an individual and group of persons.¹⁰ Most Eritrean customary laws have been reduced in to written form and encompass significant implied and often non-verbalized laws. These forms of customary laws necessarily require the interface of community legislators. In contrast, the unwritten or orally conserved customary laws often directly derived from the community. They often avoid the interface of third-party decision makers, such as legislators and judges. It is, therefore, safe to conclude that the customary laws of Eritrea are a hybrid of unwritten customarily developed sets of laws and written duly proclaimed traditional laws.¹¹ In the process of reducing customary laws into a written form, respected community members had to be elected and/or selected¹² to serve as a legislative body. They often had to assemble under large trees near a water basin¹³ or travel from place to place to ensure fair representation in the law-making process.¹⁴ The community legislatures had the duty to collect, analyse and synthesize the laws of clans, tribes, localities, sub-regional and other administrative or tribal units. Moreover, they adhered to dynamic community-based law making processes that addressed the prevailing socio-economic, cultural and political development of a given community.

The customary laws of Eritrea, as compared to state-set laws, are communitybased, enjoy society ownership and adhere to the bottom-up concept in contrast to the top-down. Consequently, the development of customary laws has resulted in community-based enforcement mechanisms. Individuals respect the customary laws of their respective communities and recognize the benefits of behaving in accordance with the communities expectations. Under customary legal system, the duty to obey laws and law enforcement mechanisms is based on reciprocity. The reciprocity of voluntary agreement to customary laws results with the duty to abide by the law. The reciprocal relationships of the parties impose relatively equal or similar performance. Furthermore, mechanisms for obeying customary laws are based on the assumption that the duty somebody owes someone today will be owed tomorrow by somebody else. For instance, the Customary Codes of the Afar and Hdareb (Bedawet) ethnic groups’ respectively qualify the stated assumption as dinto and dihrit. Dinto in the Customary Code of the Afar ethnic group is an assumption based on concession or compromise that an aggrieved or victimized individual, clan or tribe makes. It is regarded as a debt in the future against a perpetrator.¹⁵ The debt can be set-off in a subsequent damage or act committed against a perpetrator. If the previously ensued damage contrasted with the currently committed act is disproportionate, the previously made concession or compromise serves as a mechanism to mitigate the penalty or compensation. Dihrit, in the Customary Code of the Bedawet ethnic group specifically serves to limit blood feud. The settlement of homicide depends either by setting-off with prior committed similar act or suspending it as a debt until a similar act is perpetrated. A suspended debt may be set-off where any of the deceased’s family members, clan and tribe committed comparable homicide against an offender or an offender’s family member. The Bedawet ethnic group developed the unique customary practice of dihrit to settle homicide contrasted to the mode of blood money (money paid to the family of a deceased) in other ethnic groups’. The theory of reciprocal relationship is, therefore, inversely balanced.¹⁶

Moreover, the internalization of voluntary recognized laws results with participation of the community in the enforcement of customary laws, should somebody breach them. An individual must balance the gain to be achieved in contrast to the cost to be paid. The protection of personal property, individual and group liberties and rights remain attractive incentives to respect, cherish and love the rule of law.

Eritrean customary laws focus in resolving conflicts and rehabilitating victims of a criminal act rather than retribution. The rationale behind the stated assumption stems from the principle of facilitating interaction and avoiding confrontation. A criminal offence against an individual member is often regarded as a harm perpetrated against the entire family, clan and the community. Facilitating interaction is believed to be achieved through accomplishment of recognized codes of conduct, reciprocally enforced, well established dispute resolution mechanisms and effective legal sanctions. Moreover, Eritrean customary laws prefer to adapt to new situations through legal reform¹⁷ and inculcating into individuals to observe others’ behaviour in a particular exemplary way rather than inflicting punishment alone. The enforcement mechanisms similarly are intended to avoid confrontation and recognize reciprocal benefits. Furthermore, customary laws have developed alternative institutions to those of the coercive organs of modern law, such as police and prison apparatus. The alternative institutions are a neutrally respected judge, arbiter and mediator or support groups, such as family, clan and chosen community members that immediately step-in to resolve disputes and to defend victims. The preferred mechanism is to provide individuals with strong reciprocal incentives without compromising justice, equity and rule of law.

Customary laws are sensitive to avoidance of blood feuds and warfare between individuals and group of persons. Eritrean communities prefer to be pragmatic and seem to understand that coercive dispute resolution mechanisms are often costly and may not maximize victim compensation. Consequently, customary laws have been developing arrangements and procedures for non-violent dispute resolution mechanisms. A negotiated settlement is preferred in contrast to the highly contested procedures of dispute resolution mechanisms. The neutral judge, arbitrator, mediator or selected community members ensure to impose solution(s) to disputant parties rather than inflicting punishment alone. The persons and entities vested with the duty to resolve disputes seek compromised mechanisms and acceptable rulings for disputant parties. Persuasion is, therefore, the real power that a neutral arbiter, mediator or adjudicator utilizes in resolving disputes. Nevertheless, centuries-old internalized and developed sets of rule of law are never compromised. The dispute-resolving persons and institutions have legal and moral obligations to adhere to the elaborate codified or developed sets of substantive and procedural laws.

The punishment against a convicted offender often tends to be a fine or restitution rather than imprisonment, capital punishment or other penalties, save for serious offences, such as murder.¹⁸ Restitution in the form of a fine or an indemnity to be paid to a victim, family or clan is preferred for pragmatic reasons. As stated above, the customary legal system adheres to non-violent and persuasive modes of penalty. The irrelevance and absence of coercive institutions to enforce judgement of customary adjudication has motivated the choice of fine or indemnity rather than other modes of penalty. Moreover, levying a fine and restitution for the ensued harm on persons and destruction of property is deemed a pragmatic means of compensation, save in exceptional cases, such as murder.

Finally, the customary legal system provides varieties of pragmatic modes of litigation and executions. For example, an aggrieved party does not need the issuance of service of summons from a police or a court. A plaintiff has every right to compel a defendant stating the magic phrase ziban mengisti literally means (on the back or shoulder of the government) or ziban highi (on the back of the law) contextually means (in the name or power of the government or the power of the law you must follow me to the local judge or dispute resolving institution.) The defendant or accused then has a legal and a moral obligation to cease any activity and follow the plaintiff to traditional court. Furthermore, the judgments under the customary legal system are secured enforceability through a number of modes, such as ostracism by the community, reciprocities between the groups or fear of becoming outlawed. The adjudicated or alternative dispute resolution modes, therefore, tend to be accepted mechanisms due to fear of the stated severe types of sanctions. It is fair to conclude that Eritrean people love, respect, cherish, memorize, know and safeguard their customary laws as they do to maintain their life, property and liberty.

2.1. Brief Historical Developmental Stages or Phases of Eritrean Customary Laws

Eritrean customary laws are often the product of evolutionary and voluntarily emerged or centuries-old settled legal traditions. The primary sources are customs, rituals, norms, religious doctrines, cultural, socio-economic and political settings that eventually developed into binding legal norms. The customary laws are, therefore, products of long-standing history, socio-economic, cultural and political structures and features of the Eritrean communities. Customary laws have been essential tools in resolving disputes, preserving unity and language¹⁹ and ensuring peace, order and tranquillity. They manifest the prevailing and preserved political order, namely the traditional democratic institutions. The contemporary Eritrean people’s respect for the rule of law is attributable to the deeply cherished, loved and adhered customary laws. One of the essential instruments in challenging the internal and external forces against Eritrean people has been the existence of well- developed customary laws.²⁰

The essential modes of preserving and passing customary laws to the subsequent generations have been through word-of-mouth and codification. The preambles of certain customary laws, such as Highi Loggo Chiwa enshrine codification during or prior to the 14th century. However, the earliest codified customary law that the author was able to access dates from the beginning of the 19th century. The concisely written customary law of Loggo Sarda was written in 1900 and the customary law of F’t’h Mehari, Kl’a Mensa’e, was codified in 1913.

The following paragraphs will briefly discuss the developmental period of the codified customary laws.²¹ The details on the codification processes will be addressed in the subsequent paragraphs. The developmental period will be limited to a brief discussion of the temporal processes of codification. The focus is on the challenges of identifying the exact era of codification and application of customary laws. The lack of in-depth research on the legal history of Eritrea and the dearth of materials pose serious difficulty to identify the exact codification periods. Nevertheless, the preambles of the currently available and accessible customary laws and information obtained through personal interviews have been helpful in identifying the codification era and processes. The developmental period could, therefore, be classified into the following six phases or stages: First, the customary codes believed to be codified prior to the Italian colonialism, namely before 1890 are the following: The Customary Codes of Loggo Chiwa, Adkeme Mlgae, Miem Mehaza, Enda Fgray Waela Seleste Tsimaro (Timzia Seraye) and Afar, BurEli Med’a. The preambles state that the codification of the Customary Codes of Adkeme Mlgae, Enda Fgray Waela Seleste Tsimaro (Timzia Seraye) and Afar took place prior or after the 14th century. However, as stated above the author was only able to access the customary laws codified during and after the Italian colonialism. Thus, customary laws believed to be codified before or in the 14th century could not be verified.²² The verification process requires deeper and multi-disciplinary research done by relevant professionals.

The codification and promulgation of customary laws during the Italian colonialism is the second phase. The customary law of Loggo Sarda with its scanty provisions was codified in 1900. The customary law of F’t’h Mehari, Kl’a Mensa’e, was proclaimed in 1913. The customary law of Waela Shewate Anseba, Sehartn Lamzan Weqertn Damban, Habselus Nay Ghebrekristos Nay Deqqiteshim, Karneshm, Dembezan and Loggo Chiwa were codified and duly proclaimed in 1918. The customary laws of Karneshm, Dembezan and Waela Shewate Anseba have been amended several times.²³ The other customary codes have certainly been implicitly amended and may have been expressly amended but no up-to-date data has been available.

The third phase is the codification of customary laws during the British Military Administration in Eritrea, 1941-1952. The Loggo Chiwa customary law was amended for the fifth time in 1943. The customary laws of Adkeme Mlgae, Saho and Adghna Tegheleba were respectively codified in 1943, 1944 and 1946.²⁴

The fourth phase is the codification process of customary codes during the simulated federation of Eritrea with Ethiopia, 1952-1962. The Customary Codes of Sahel, Alqanun Alaurf Liqebael AlSahel Alam and the New Code of Beni-Amir, Alqanun Alaurf Liqebael AlbeniAmir were codified in 1958. The Customary Code of Bet Tarqe Bogos Bilen was also codified on 4 September 1960.

The fifth phase is during the Ethiopian colonialism of Eritrea under the reign of Emperor Haile Sellassie and the rule of the Dergue. During the reign of Emperor Haile Sellassie the customary laws were legally repealed, save for those expressly provided under the 1960 Civil Codes of the Empire of Ethiopia. Pursuant to Article 3347 of the Civil Code of the Empire of Ethiopia all customary laws were repealed unless otherwise expressly provided.²⁵ Nevertheless, the Eritrean people have been systematically preserving, applying, codifying and amending their customary laws. For instance, the customary law of the Dembezan was amended several times at least until 7 January 1977. Moreover, the late Fitewrari Yassin Mohammed made successful efforts to codify the customary law of the Afar, the BurEli Med’a, in 1973. Furthermore, the customary law of the Karneshm enjoyed the continuous amendment known as hintiltil (literally means additional 6th finger and contextually means amendment to the initial codification.)²⁶

The Dergue regime that overthrew Emperor Haile Sellassie in 1974, shared a similar point of view with the Emperor on the applicability of customary laws. Customary laws remained repealed unless otherwise expressly provided in the Civil Code. However, the Eritrean people persistently applied, preserved and amended their customary laws. For instance, the Customary Code of Maria Tribes, Alqanun Alaurf Liqebael AlMariatain was amended and codified in 1989.²⁷

The sixth phase is the status of the customary laws since the de facto independence of Eritrea on 24 May 1991 and de jure independence on 24 May 1993. On 15 September 1991, the Provisional Government of Eritrea duly proclaimed the transitional codes of Eritrea, the amended and adopted Imperial codes of Ethiopia that were codified during Emperor Haile Sellassie. Consequently, the customary laws remained repealed unless otherwise expressly stated under the transitional codes or laws proclaimed after the independence of Eritrea. Pursuant to Article 13(A)(2) of Proclamation No.25/1992 village court judges were empowered to refer to their respective customary laws. However, Proclamation No.133/2003 has amended Proclamation No.25/1992 and limited judicial jurisdiction into Community Court, Regional Court and High Court. The jurisdiction of the Village Court was implicitly abrogated.²⁸ Yet, significant portion of the Eritrean people have been applying the provisions and spirits of their customary laws in resolving a variety of disputes.²⁹ This is best illustrated through the codification processes to draft a common customary code for the three Bilen kinfolks in 2005. The harmonization and codification of the Bilen (Terqen, Tewqen Asertekilte Negedin) Customary Code was essential tool for reconciliation and resolution of the boiling controversies due to the fragmentation of the Bilen communities’ customary codes.³⁰

So far, the Customary Laws of the Kunama, Nara, Reshaida and Hidareb (Bedawet) ethnic groups respectively known as Buya, Buta, Med’a and Osslif or Sewalif have not been codified.

2.2. The Codification Processes of the Eritrean Customary Laws

The preambles of the codified customary laws often briefly describe the codification processes. The codification processes were carried out through duly elected and/or selected local law drafting committees or representative local assemblies, save the customary law of F’t’h Mehari, Kl’a Mensa’e that was drafted by an expatriate, pastor Karlo Gustav Rodden.³¹ The codification processes vary, depending on the communities’ stratification, administrative or tribal structure. The then-prevailing territorial or tribal administrative structures were the determinant schemes for election or selection of the codifying body. The highlanders, particularly the Tigrigna ethnic group, used to elect representatives based on the then-prevailing territorial administrative structure.³² In contrast, the ethnic groups governed under the tribal structure used to elect representatives of their corresponding tribe or clan regardless of the territorial administrative structure of the electorates.³³ The criteria for selection include traits, such as nobility, wisdom, being members of the clergy and having experience of drafting laws and dispute resolution skills. The drafters were all men but women were indirectly contributing their wisdom, opinions and suggestions. Women used to advise the drafters and their opinions were seriously taken in resolving challenging legal issues.³⁴ The primary task of the law drafting committees or representatives of the local assemblies was to collect and systematize the then-prevailing customary practices. The special focus was on the customary practices that had acquired the power of law. The drafting committees either traversed the areas where the group members resided or alternatively seat under a big tree near running water or the vicinity of a valley and drafted the laws. The drafted laws were submitted to the public or especially designated representatives for final approval. The finally approved laws were declared to the public through a variety of mechanisms, such as holding meetings, beating drums and deliberations that caught the attention of the concerned population to listen and understand the newly made or amended laws. The following paragraphs briefly discuss the codification processes of the 17 customary codes reduced into a written form that the author was able to access:-

1. The Loggo Chiwa Customary Code, one of the oldest customary laws of Eritrea, governs the Loggo Chiwa³⁵ and Kebesa Chiwa³⁶ communities that reside in certain parts of the former Hamassein and Seraye provinces. Geographically, the Loggo Chiwa and Kebesa Chiwa communities reside south and southeast of Asmara, the capital of Eritrea. The Customary Code was named after the root ancestors of the communities, the L oggo Chiwa and Kebesa Chiwa. The unique features of the codification processes are adapting to prevailing circumstances through several amendments and fair representation schemes. The Loggo Chiwa Code was amended four times since the first codification. According to the Preamble of the 1946 Code, the first codification is believed to have occurred during the reign of Emperor Eskender in 1492.³⁷ The first amendment is believed to have been made in 1658 during the reign of Emperor Fassil.³⁸ The second amendment was performed during the early period of the Italian colonialism in Eritrea in 1900; and the third amendment in 1918. Cavelleiri Enriccho Macchia, the Italian colonial governor of Hamassein province, made an initiative for the third amendment.³⁹ The fourth amendment, the current code, was drafted through the representatives of the Loggo Chiwa during the British Military Administration (BMA). The author was able to access only the 1918 and 1946 amended Codes. The Preamble of the 1946 Code provides that the representatives of the Loggo Chiwa convened in Mai Liham in 1943 and elected a Law Drafting Committee composed of 38 members. The Law Drafting Committee comprised representatives of both Christians and Muslims. The Muslim representatives were Blata Mahmud Siraj from Adi Wato’t, Kelifa Bey Arabi Salim from D’barwa and Abdel Jemil from Bambiqo. The Interfaith combination of the Law Drafting Committee demonstrates elements of fair representation. Moreover, the Code expressly provides that both Christian and Muslim believers must abide on secular issues and have the right to be adjudicated through their respective canons on spiritual matters.⁴⁰ Finally, the Local Law Drafting Committee completed its function within two years and proclaimed the latest Code in 1946.⁴¹

2. The Adkeme Mlgae Customary Code governs the ancestral descendants’ of the twins, Adkeme and Mlga, of the former province of Seraye. The Code was named after them. The descendants of the twins are the majority residents of the former province of Seraye.⁴² The Preamble further elaborates that the Code is believed to have been written centuries ago and documented in Debri (monastery) of Abune Yonas. The drafters used to convene every three, five or seven years to amend and review the Code. The convening venue was in an area known Mai Gif situated in Tekhe’la, former district of the Seraye province. The convenient and preferred shelter was under a Momona tree near the vicinity of running water. The convention often continued for a week or two. The amended or newly enacted provisions used to be orally passed from generation to generation. Unfortunately, the centuries-old Code is believed to have been destroyed due to wars and conflicts.⁴³ The currently available and accessible Code was proclaimed during the British Military Administration in May 1936 Ge’ez calendar (1944 Gregorian calendar.) The Preamble provides the period that the Code was proclaimed but remains silent on the duration of the codification processes. It is, therefore, difficult to know the length of the codification period. Moreover, the Preamble expressly enshrines the complex representation process of the drafters. They comprise the elected and selected representatives of the Adkeme and Mlgae kinfolks. The unique feature of the Adkeme Mlgae Code is the designation of seven villages as Adi Highi (literally means the villages of law and contextually the villages where legal issues were adjudicated.) The seven villages of law are: (1) Areza, (2) Addi Mongenti, (3) Kudofelasi, (4) Q’ine Hayela, (5) Adi H’ys, (6) Mai Liham and (7) Bet Ghebriel. During the codification processes, the seven villages of law elected two representatives each totalling 14 representatives. Furthermore, seven representatives were elected from each district to assist the representatives of the seven villages of law. The selected 24 notables known as Seyemti Seraye, (the chiefs of Seraye) participated in the process of codification that includes Rae’si⁴⁴ Kidanemariam Ghebremeskel.⁴⁵

3. The Adghna Tegeleba Customary Code is applicable to all residents of the former province of Akkele Guzai. Pursuant to the Preamble, it was preceded with the Customary Code known as Miem Mehaza, Akkelen Guzain, Onayn Logayn. The Miem Mehaza Code was named after the place of codification, the valley situated within the vicinity of Addi Leggi, Shewate Deqi Zeriesenay, southeast of Addi Keih, the capital of the former province of Akkele Guzai.⁴⁶ The Miem Mehaza Code is believed to have been codified during the reign of Dejazmatch Sabagadis,⁴⁷ in about 1823.⁴⁸ The codification processes of the Miem Mehaza Code comprised six locally skilled drafters and nine representatives empowered to legislate. It was accomplished within a year and six months. The drafters of the Adghna Tegeleba Code speculated that the copy of the Miem Mehaza Code existed in the monastery of Enda Mariam Gunda Gunde, the province of Agame, Tigray, in northern Ethiopia. The non-availability and non-accessibility of the Miem Mehaza Code resulted in a vacuum of authoritative local code. Judicial or arbitral decisions were rendered relying on words of individuals testimonies believed to have acquired knowledge on the provisions of the Code. Their testimonies were often contradictory and based on hearsay. Consequently, uncertainty and unpredictability of the legal system prevailed and dismayed the residents of the province. The vacuum of an authoritative code and the necessity of drafting laws that represent all inhabitants of the province became timely and imperative. The unique feature of the Adghna Tegeleba Code is the representation scheme applied to elect the drafters. The Law Drafting Committee comprised 83 elected representatives and 28 selected notables that include Raesi Tesema Asberom. Each sub-region was represented as per the population. The Law Drafting Committee had frequently travelled and convened in Addi Keih, Segenaiti and Senafe and finalized the draft of the Code within a year and half. The newly drafted Code was named Adghna Tegeleba. It was given after the geographical area coverage of the entire former province of Akkele Guzai. Adghna is a village situated at the border of the former provinces of Hamassein and Akkele Guzai; and Geleba is a village at the border of Eritrea with Tigray, northern Ethiopia. The Adghna Tegeleba Code is, therefore, a customary law inclusive of the residents from Adghna up to Geleba. ⁴⁹ The second unique feature of the Code is unification and harmonization of the pluralistic multi-kinfolks customary laws of the former Akkele Guzai province inhabitants. There were seven diversified customary codes that regulates the affairs of the diversified communities who have been residing within the former province of Akkel Guzai. The drafting process also includes representation in terms of faith. Azmatch Ahmed Abdelkadir and Fitewrari Sied Zeinu were among the Muslim representatives drafts persons. However, the Saho Muslims that largely reside in the former province of Akkele Guzai preferred to enact their own customary code.⁵⁰

4. The Customary Code of Habsulus Nay Gebrekristos Nay Deqqiteshim governs the descendants of Atoshim.⁵¹ The name of the Code was given after the former judges and governors, father and son, respectively, Degiat Habsulus and Degiat Ghebrekristos and the ancestor Atoshim. Degiat Habsulus and Degiat Ghebrekristos served as governors and judges of the area that the descendants of the Atoshim inhabit. The initial negotiation for codification was reportedly carried out during the reign of Degiat Habsulus in 1713 Ge’ez calendar (1721 Gregorian calendar.) In the convention that was held in Mai Menka, Degiat Habsulus agreed for his son Degiat Ghebrekristos to serve as the vice-chief administrator and judge. The codification processes was believed to have taken place in the convention of Maibella⁵² in the presence of Degiat Gebrekristos. Furthermore, the initial attempt to reduce the Code into written form is reported to have occurred in 1901 Ge’ez calendar (1909 Gregorian calendar.) The author was able to access the 1918 proclaimed Code. According to the Preamble, Cavalier Enriccho Machia the Italian governor of the former province of Hamassein made the initiative and the representatives of the Atoshum descendants did the codification. At the subsequent Maibela convention 10 representatives of the Atoshim descendants were elected to draft the 1918 version of the Habsulus Nay Ghebrekristos Nay Deqqiteshim Code. The secretary of the local Law Drafting Committee was Qeshi (priest) Gheremariam Woldegherghis from Adi Quntsi.

5. The Customary Code of Shewate Anseba Zemat Tahtay applies to the residents of the Anseba river basin.⁵³ The Anseba basin region is situated north and northwest of Asmara. The name of the Code was given after the stated common residence. A common residential geographic area name was preferred due to the diverse ancestral genealogical origins of the Shewate Anseba communities.⁵⁴ The initial Code is believed to have been made in 17th century. However, the author was able to access to the 6 December 1910 Ge’ez calendar (1918 Gregorian calendar) proclaimed Code. The currently applicable Code was drafted and proclaimed in Awde Berhanu. The Preamble of the Code enshrines that Cavalier Enriccho Macchia, the Italian governor of the former Hamassein province, made an initiative and the representatives of the Anseba basin communities did the codification and ratification processes. The author recently accessed the original Debter (the document that provides the initial Code and the subsequent amendments.) According to the newly accessed document, the Code had been amended several times at least until late 1930th.⁵⁵

6. The Customary Code of Sehartn Lamzan Weqertn Damban applies to the Seharti, Lamza, Weqerti and Damba communities that have diverse genealogical ancestral origins but reside in a common geographic area situated south of Asmara.⁵⁶ The common domicile, regardless of their divergent genealogical ancestral origin, was the motivating factor for codification of a commonly applicable legal framework. Pursuant to the Preamble, Cavalier Enriccho Macchia made the initiative and the representatives of the Seharti, Lamza, Weqerti and Damba communities accomplished the codification processes. Finally, the currently available Code was promulgated in 1910 Ge’ez calendar (1918 Gregorian calendar). Unlike other customary codes, neither the preamble nor the text of the Code renders detail on the codification processes.

7. The Customary Code of Karneshm governs the community that resides north of Asmara and has evergreen and dense forestry known as Semenawi Bahri, (Northern Sea Coast.) The Code was named after the place that the Karneshm⁵⁷ community have been residing. The Karneshm Code has been repeatedly amended and re-drafted at least twice. The first codification was made in 1902. The Preamble enshrines that Cavalier Enriccho Macchia made the initiative and the representatives of the Karneshm communities accomplished the codification processes. The currently available Code was promulgated in 1910 Ge’ez calendar (1918 Gregorian calendar). The local codification representatives were convened in Hirim Zaghir, (the valley of Zaghir,) situated north of Asmara.⁵⁸ The author was able to access the first and second amendments that were respectively made in 1918 and 1926. The unique feature of the Karneshm Code is the dynamic and continuous amendment processes. The amendment is known as Hintiltil (meaning additional sixth finger attached to the natural five fingers) and each amendment has been attached with the amended provision.⁵⁹

8. The Customary Code of Dembezan governs the Dembezan community that resides in 16 villages situated north of Asmara. The Dembezan Code was named after the genealogical ancestral origin.⁶⁰ It was codified in 1910 Ge’ez calendar (1918 Gregorian calendar) and amended several times thereafter at least until 1977. The unique feature of the Dembezan Code is the sequential inclusion of the amendments with the amended provisions. Unlike other customary codes, the Preamble of the Dembezan Code does not elaborate on the codification process. However, the cover of the Code expressly states the promulgation period, the initiative of Cavalier Enriccho Macchia, the Italian former governor of Hamassein province and the representatives of the Dembezan communities did the codification processes.⁶¹ The Local Law Drafting Committee comprises 91 representatives and they were often regularly holding meeting on every 21st of Ge’ez calendar (28th Gregorian calendar) and lately every two weeks in Geshinashim in Mai Anber.⁶²

9. The Customary Code of Enga’na, S’rat Atsmi Harmaz, specifically governs the Enga’na community that inhabits the former Akkele Ghuzai province. The Enga’na Code has been written but not yet duly proclaimed. The Preamble enshrines that the representatives of the Enga’na community were elected by putting pieces of leaves over the heads of the elected persons. The putting of leaves is equivalent to the current use of paper ballots. According to Solomon Ghebrekristos, the estimated period of reduction into written form is approximately 1900 Gregorian calendar. The name of the Code was given after the genealogical ancestral origin and the drafting place or the venue for the convention. The Enga’na represents the ancestral origin and the Atsmi Harmaz literally means the trunk of an elephant. A group of elephants were believed to have passed by and rested in the valley near the big trees where the representatives of Enga’na assembled or convened and made laws.⁶³

10. The Customary Code of Enda Fgray Waela Seleste Tsimaro (Timzia Seraye) applies to the community of Timizia Seraye that administratively inhabits the former Seraye province.⁶⁴ The name of the Code was given after the place of codification, Enda Fgray, and Waela Seleste Tsimaro (the tripartite convention or agreement of three common ancestral origin communities)⁶⁵ that reside within the border of the former provinces of Akkele Guzai and Seraye. The communities that reside in the Timizia Seraye, despite being administratively governed under the former province of Seraye, codified Enda Fgray Code due to their ancestral origin. The Enda Fgray Code applies to the residents of 14 villages that border with the former provinces of Seraye and Akkele Guzai. The Code is alleged to have been written approximately in 1221. However, it has not yet been duly proclaimed and the preamble does not provide details on the codification processes.⁶⁶

11. The Customary Code of the Saho ethnic group Alqanun Alauruf LilMuslumin Akkele Guzai Lilqebael AlSaho, (The Customary Code of the Saho Tribes Muslim Inhabitants of the Akkele Guzai) is written in Arabic. In 1943, S.F.Nadel, the British Military Administration governor of the former province of Akkele Guzai, held a meeting of local chiefs and M’slenetat (local governors) that represented the Christian and Muslim believers of the province and requested them to submit their respective customary laws. The attendants replied that their customary laws had been preserved orally and not yet codified. Major Nadel then ordered the codification of their respective customary laws.⁶⁷ The local chiefs and traditional leaders of the Saho ethnic group established a Law Drafting Committee composed of 11 members. The Committee submitted the draft on 13 November 1943 to the four Nuzars (the notables or superior local chiefs of the Saho) for approval. The Nuzars approved the drafted laws the same day. However, it was duly proclaimed on 15 July 1954. The name of the Code was given to qualify the religious background and ethnic identity of the represented communities.⁶⁸ The phrase LilMuslin Akkele Guzai (the Muslim believers’ inhabitant of Akkele Guzai) was deliberately inserted to qualify the religious background and Lilqebael AlSaho (the tribes of Saho,) to identify the tribal and ethnic communities governed under the law.

12. The Customary Code of the Sahel Tribes is written in Arabic and titled as Alqanun Alauruf Liqebael AlSahel Al’am (The General Customary Code of the Sahel Tribes.) The term general seems to be intentionally inserted to demonstrate the superiority of the proclaimed law over any possible tribal or sub-tribal laws or practices. Pursuant to the Preamble, there are 24 Tribes in the former Sahel province that affiliate to the Tigre ethnic group. Mr. Ahmed Alhasse Hasseno the former governor of the Sahel province suggested the drafting of the customary law to the notables, sheiks (clergies) and representatives of the Sahel tribes. His idea was welcomed