Patterns of Legal Mixing in Eritrea: Examining the Impact of Customary Law, Islamic Law, Colonial Law, Socialist Law, and Authoritarian Revolutionary Dogma

Chapter 10
Patterns of Legal Mixing in Eritrea: Examining the Impact of Customary Law, Islamic Law, Colonial Law, Socialist Law, and Authoritarian Revolutionary Dogma

Daniel R. Mekonnen

With a history of only 21 years since independence, Eritrea is the second-youngest country in Africa, the youngest country being the newly independent state of South Sudan. The Eritrean legal system derives its influence from more than two legal traditions or legal families. Thus, building on the definition of William Tetley (2003), one can describe Eritrea as a typical example of a country with characteristics of a mixed jurisdiction. In this context, a mixed jurisdiction is defined as “a political unit (a country or its political subdivisions) in which a mixed legal system prevails.” (Tetley 2003: 181). A mixed legal system “is one in which its force is derived from more than one legal tradition or family.” (Tetley 2003: 183). And the term legal system “refers to the nature and content of the law generally, as well as the structures and methods whereby the law is legislated upon, adjudicated upon, and administered, within a jurisdiction” (Tetley 2003: 181).¹

In what seems a definitive characterization, Mengesteab Negash (1999) describes Eritrea as a civil law country. This description does not fit well with reality. Eritrea rather portrays significant traces of legal pluralism. Negash’s observation holds true only as regards the practice of ordinary Eritrean courts, whose judgments are based primarily on codified laws. These codified laws are the six major codes inherited from Ethiopia in 1991 with some amendments. However, building on Tetley’s definition of civil law, it is difficult to characterize Eritrea as a typical example of civil law. According to Tetley (2003: 178), civil law is “a legal tradition that has its origin in Roman law, as codified in the Corpus Juris Civilis of Justinian (AD 528–534) and as developed subsequently in Continental Europe and around the world.” It is true that some, if not all, of the six major Eritrean codes are greatly influenced by the legal traditions in continental Europe. However, statutory law, defined as “law found in legislation other than civil codes” (Tetley 2003: 179), is also a very common feature of the Eritrean legal system. Since its independence in 1991, the government in Eritrea has promulgated hundreds of proclamations and legal notices, which make up an unwieldy body of statutory law.² According to Tetley (2003: 179), statutory law is a legal characterization common to both the civil and the common law traditions, and its main purpose is “bridging the gap between the civil law and the common law in a mixed legal system.”

Moreover, at the center of the Eritrean legal system are Shari’a courts and traditional or customary courts, whose judgments are based neither on modern codified laws nor on statutory law but rather on religious edicts such as Shari’a (in the case of Islamic courts) and written and unwritten indigenous laws (in the case of customary or community courts). As will be seen later in this chapter, in the preindependence era Eritrea also endured considerable influence from socialist law during the reign of the Derg regime from 1974 until 1991. Socialist law is defined as a legal system predominately shaped by Marxist-Leninist ideology, and its most distinguishing feature is the replacement of private property ownership by state ownership and cooperatives (see generally Quigley 1989). Some of these traits are still common in Eritrea, tracing their origins not from the Derg regime but from the history of the liberation struggle, which at some stage was also strongly influenced by Marxist-Leninist ideology. Eritrea is ruled by what I call (and later explain) authoritarian revolutionary dogma. Whether this dogma stands by its own right as a distinct legal system might be subject to controversy. Nonetheless, it is the prevailing politico-legal order in Eritrea. All in all, the Eritrean legal system has significant influences from civil law, socialist law, Islamic law, customary law, colonial law, and authoritarian revolutionary dogma. To a certain extent, the Eritrean legal system may also have some influence from common law. As a result, its legal system has characteristic features of a mixed jurisdiction.

Six important stages in the politico-legal history of Eritrea are also essential for our understanding of Eritrea as a pertinent case study of a mixed jurisdiction. These different stages have now become a standard stratification for a serious academic discourse on legal development in Eritrea.3 The first stage is the precolonial era. The second stage is the colonial era, particularly that of Italian colonialism, which stretched from 1890 to 1941. The third stage is the era of the British administration, which was from 1941 to 1952. The fourth stage is the period stretching from 1952 to 1962, when Eritrea was under a federal arrangement with Ethiopia. The fifth stage is the era of the annexation of Ethiopia from 1962 to 1991, which also coincides with the Eritrean armed struggle for liberation. The sixth and final stage is the postindependence era since 1991.

As previously noted, today Eritrea portrays visible elements from civil law tradition, customary law, Islamic law, and authoritarian revolutionary dogma. The effect of the civil law tradition is noticeable in ordinary Eritrean courts, whose judgments are based mainly on the six codes Eritrea inherited from Ethiopia in 1991. Islamic law applies widely in Eritrean Muslim communities with regard to major social issues such as family, marriage, and inheritance. As a result, the Eritrean legal system accommodates special Islamic courts. With a tailor-made jurisdiction based on Islamic jurisprudence, these courts address disputes arising in Muslim communities. Throughout the country’s history, customary law or indigenous legal transition has also enjoyed semiofficial recognition, including in the colonial era, as long as it did not contradict statutory law. Customary law was given more prominence with the establishment in 2003 of a new system of courts, known as community courts, which adjudicate on matters by drawing on both customary law and statutory law. The Eritrean legal system also is strongly influenced by the history of the liberation struggle (1961–1991), which gave rise to an authoritarian revolutionary dogma. This dogma affects the protection of fundamental rights and freedoms, and the Eritrean experience has become a major cause for despondency. Authoritarian revolutionary dogma refers to the secretive political culture of the Eritrean government, which traces its roots to the liberation struggle ideology characterized by secrecy and excessive centralization of political power.

In different stages of its politico-legal history, Eritrea has endured a number of influences from different legal traditions. Therefore, the Eritrean legal system is one of the best examples for discrediting the ideology of legal centralism, which is defined as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions” (Griffiths 1986). By examining essential elements of the Eritrean legal system and exploring the interplay of different factors that have shaped legal development in Eritrea, this chapter discusses Eritrea as a pertinent case study of a mixed jurisdiction phenomenon. The objective is to explore the challenges and opportunities of a mixed legal system as experienced in Eritrea with a view to proposing practical recommendations for future improvements, particularly in light of the current politico-legal crisis in the country: authoritarian revolutionary dogma. I also address the extent to which other sources of law, such as Islamic law and customary law have coexisted with statutory law. In the second part, I discuss the role of customary law and its historical background and current status in Eritrea. In the third part, I discuss the legacy of the colonial era, particularly starting from Italian colonialism up to the end of foreign occupation in 1991. In the fourth part, I discuss the postindependence legal development in Eritrea, with more emphasis on the post-2001 politico-legal crisis. This crisis appears to have had the most enduring effect in everyday life of Eritreans, and I have therefore given more discussion space to this particular challenge. I conclude by summarizing the main findings and highlighting essential recommendations for improvement.

Precolonial Era: Eritrea as a Pluralistic State4

One of the most important points of departure relating to the theme of legal pluralism in Eritrea is Tesfatsion Medhanie’s (1986: 6) characterization of Eritrea as a “poly-ethnic, poly-national state.” So what type of legal system applied to the diverse populations of Eritrea? This basic question will help us to understand legal pluralism and legal development in Eritrea. Citing Alan Watson (1985: ix), Yohannes Gebremedhin (2004: 31) notes that an effort to answer the question should begin with an examination of actual historical data. Therefore, a brief discussion of the religious and ethnolinguistic composition of the Eritrean society is in order.

There are nine officially recognized ethnic groups and four officially recognized religious faiths in Eritrea (the Eritrean Orthodox Church, the Evangelical Lutheran Church, Islam, and the Roman Catholic Church). Overall the population is described as evenly divided between Christianity and Islam, except for a small minority whose beliefs are indigenous African. These beliefs also include the veneration of ancestral saints. There are also other less recognized religious groups such as the Beha’i faith. The nine officially recognized ethnic groups, from largest to smallest, are Tigrinya, Tigre, Afar, Saho, Hidarib, Bilen, Nara, Kunama, and Rashaida. Each ethnic group has its own distinct language, which comes from the name of a particular ethnic group. Its members are also called by the same designation. However, there are at least two small communities that have requested official recognition as distinct ethnic groups and whose claim has never been officially acknowledged or denied by the government. These are the two Muslim communities of Jeberti and Tekurir. The Jeberti speak Tigrinya. The Tekurir, who are believed to be recently settled descendants of the Hausa tribe in Nigeria, speak Arabic with an accent (Weldehaimanot 2009).

In the Eritrean context, every ethnic group is addressed as a biher, a term that is equivalent to the English term ethnic group. The term is usually prefixed before the name of a certain ethnic group, as in the bihere-Afar or the bihere-Hidarib. David Pool (2001: 11) writes that the most important distinction perceived by Eritreans is that between highlands and lowlands, a distinction that derives not only from climate, ecology, culture, and modes of production associated with such factors but also from religion. Accordingly, most analysts have associated peasantry and the highlands of Eritrea with Christianity and pastoralism and the lowlands of Eritrea with Islam. In reality, the population in the highlands is mostly Christian, and the population in the lowlands is mostly Islamic. The traditional legal systems prevalent in these two major geographic areas are also different, reflecting religion, ecology, and other factors.

In the precolonial era, the Eritrean society was exclusively governed by its own indigenous laws, which are based on deeply held traditional and religious values. For many years, indigenous law was not formally recognized as an official source of law in Eritrea, although it is still followed by the Eritrean society in several aspects. Gebremedhin (2004) notes that because of variations along ethnic and regional lines, uniform application of customary law is also practically impossible in Eritrea. However, through informal incorporation, customary law plays a prominent role in the modern legal system. In most of the individual localities that form modern Eritrea, particular indigenous norms and institutions of customary law govern several aspects of social life. Historical accounts indicate that written records of Eritrean customary laws are more than three centuries old. Citing Ludolf’s (1681) Historia Aethiopica, Gebremedhin (2004: 32) notes that the inhabitants of the highlands of Hamasien elected their own leaders three centuries back and applied their own indigenous laws “like a small republic.” He also notes that most of the customary laws of Eritrea were reduced to writing long before the arrival of the Europeans. Gebremedhin (2004: 32–33) continues:

In the highlands of Eritrea a number of customary laws evolved dating back to the early fifteenth century. According to Ostini, the oldest customary laws are the laws of Adkeme Mlgha’e, the edicts of Habsullus and the law of Mehem Mahaza. Other accounts date the law of Adkeme Mlgha’e and other customary laws such as the law of Loggo Chiwa and the law of Adghena Tegheleba to earlier times.5

Muluberhan B. Hagos (2009: 6) notes that the law of Loggo Chiwa was established in 1492 during the reign of Emperor Eskender of Abyssinia. The Eritrean highland communities have a long written tradition associated with the Orthodox Church, which had strong ties with ancient Abyssinian rules and remains the most influential church in the highlands. As a result, several customary laws of the highlands were codified before the advent of Italian colonialism. The readily available academic literature mainly focuses on the customary laws of the highland communities, which have a relatively longer written history. In contrast, the pastoral or lowland communities do not have a long written tradition (Abbink 2005). As such, the legal literature on the customary laws of the lowland or pastoral communities is one of the subjects on which there has been a dearth of knowledge and academic writing. Therefore, my discussion focuses on the customary laws of the highlands.

The basis of law in much of rural Eritrea, which constitutes 80 percent of the total population, remains customary law. Eritrean customary laws are greatly influenced by deeply rooted communal values, such as the principles of restorative justice in settling cases of homicide. In the old days, customary laws were made or amended by a village council formed by representatives of the people, who were “elected elders from neighboring villages bound by common heritage convened … under the shade of a sycamore tree found in a secluded common area” (Gebremedhin 2004: 33). The body of representatives or village council, known as Baito, is analogous to a modern-day assembly or parliament, denoting the democratic process of lawmaking during the old times.

A unique feature of the Eritrean customary laws of the highland communities, as recognized by Gebremedhin, is that the laws are made up of purposefully formulated rules and standards that determine the reciprocal expectations of conduct in varied circumstances of social interaction. Because these laws are made and amended by elected tribal elders and men of wisdom, the general characterization of customary law by some writers as “any recurring mode of interaction between individuals and groups”⁶ does not fit Eritrean customary laws. The laws regulate a wide range of social interaction, “including criminal offences, blood money, torts, marriage, land and public holidays (saint days)” (Gebremedhin 2004: 37). The procedural rules applicable in customary dispute resolution mechanisms were described as “interesting parallels to Roman Law, early Anglo-Saxon, Germanic and the Common Law,” by an American scholar, Franklin Russell (1958: 103), who served as attorney general in Eritrea. In elucidating his assertion, Russell particularly mentions one of the earlier court cases⁷ decided by the Federal High Court of Eritrea, in which some aspects of Eritrean customary laws were put to the test. The case, known as the Goat Case, involved the unlawful seizure and sale of some goats by officials of the government of the day and was possibly decided in the 1950s. Jon Abbink (2005: 346) also describes Eritrean customary laws as “a remarkable corpus, showing the creativity of local communities in settling their disputes and devising corrective mechanisms.”

Communality is a major building block in the centuries-old social structure and indigenous dispute resolution mechanisms of the highlands (Longrigg 1945: 65; Trevaskis 1962: 15; Trimingham 1952: 166). The inhabitants of the highlands, the Tigrinya-speaking population, are mainly settled agriculturalists who are organized in village communities that consist of a number of kinship units known as endas. The village is the principal social and political unit of the Eritrean highland rural society. From the many sociopolitical inventions of an Eritrean highland village, there are at least two prominent institutions involved in administrative and judicial functions. Local administration is customarily provided by an elected council of elders called shimagle.8 Judicial matters or dispute resolution functions are administered by a chiqa, the equivalent of a magistrate in modern judiciaries, and the nebaros, a body of God-fearing village elders and wise men. Although the role of the nebaros is only advisory to the chiqa, notes Gebremedhin, it is very unusual for a chiqa or a judge to decide against the opinion of the nebaros, who are highly regarded in the community.⁹ A pertinent concept from modern legal thought comparable to the nebaros would be a trial jury, which represents a group of sworn laypeople convened to assist a court of law on factual and legal findings.¹⁰

A standard Eritrean highland village has some 800 inhabitants. For example, one study indicates that in Zoba Debub, which is a densely populated administrative area in the Eritrean highlands, 85 percent of the population are agriculturalists and 13 percent are agropastoralists. This administrative area combines considerable parts of the former Akele Guzai, Hamasien, and Seraye provinces. The livelihood system in the highlands depends on rain-fed traditional agriculture combined with livestock rearing (Food and Agriculture Organization of the United Nations 2004: 4–5). As in the case of other agrarian societies, land is a very decisive natural resource in the life of the Eritrean highland community. The following observation by Siegfried Nadel (1946: 1) is illustrative in this regard:

It has been said of the African that he does not possess his land but is possessed by it. The attitude of the Eritrean peasant towards his land cannot be more aptly described. Indeed, his preoccupation with his landed possessions shows a depth and passion not often paralleled among African races.

Land is not only a fundamental means of livelihood but is also a major indicator of the social status of individuals. One of the major land tenure systems in the Eritrean highlands is known as risti. Luca Castellani (2000: 2) defines risti as the land held by an extended family (enda), in which each head of a nuclear family belonging to the enda is entitled to a plot for his or her lifetime. This title is granted only to the original occupants of a village, who are then called ristegnatat. They are also known as deqebat, meaning original settlers, denoting at the same time a higher social status by reason of their privileged access to land, which is based on the principle of closest proximity to the forefathers. As a result, land law occupies a central place in Eritrean customary laws. At the same time, land law has been subject to considerable alteration since the Italian colonial era, which started in 1890. Indigenous Eritrean laws and traditions recognize two major types of land ownership: individual and communal. For many years, individual and communal land ownership has been the established custom in Eritrea. State ownership of land was introduced to Eritrea by the Italians. With the exception of a brief period during the Ethiopian-Eritrea Federation (1952–1962), land has always been owned by the state, including in the postindependence era. Land tenure is now one of the most controversial issues in Eritrea.

The Colonial Era

As previously noted, what is now known as Eritrea has been ruled successively by ancient Abyssinian rulers, the Ottoman Turks, the Egyptians, the Italians, the British, the Ethiopians, and finally by the Eritreans themselves. However, the modern colonial history of Eritrea, including its creation as a nation-state, starts from the end of the nineteenth century. Like most African countries, Eritrea was created through intricate processes of political and economic conquest by Western colonization. The current political map of Eritrea began to take concrete shape for the first time when Eritrea was officially declared an Italian colony at the end of the nineteenth century. In this regard, Mia Fuller (2011: 3) writes, “Having extended its military presence into the highlands, in 1890 the Italian government declared Eritrea—an area with borders, as well as a name, of its invention—its colonia primogenita (‘first-born colony’).”