Gidey Belay Assefa
One of the most devastating impacts of the War on Tigray has been the destruction of Tigray’s legal system. The courts, which were already struggling to cope with the sheer volume of cases, have been destroyed and looted by the invading forces. Many lawyers, including judges, prosecutors, and advocates, have been killed, wounded, or forced to flee. This has created a significant gap in the legal expertise available in the region. Consequently, almost all transactions have been stalled, leading to the non-performance of different contractual obligations that existed before and during the war, ranging from small equb associations to loans, rents, sales, and big construction projects. This is also true in criminal matters. There was no law and order in the last two and a half years and crimes such as theft were rampant. Moreover, the courts had not been providing services at full capacity even before the war due to the Covid-19 pandemic, and this has created a huge number of backlogged cases.
Recently, an interim administration has been set up following the agreement for a cessation of hostilities between the FDRE government and the TPLF. While courts in limited areas have resumed their services, it is expected that courts in areas under the occupation of ENDF and non-ENDF forces will resume soon. However, let alone these crippled courts, a full-fledged court system cannot handle the flood of cases that will flow to the courts once they resume their services.
The absence of a quick and efficient way to settle disputes will have a negative impact on society. It may erode the social fabric as people may resort to illegal means of settling disputes. It may also develop mistrust among people because there is no guarantee that they will assert their rights before the courts of law. This, in turn, may discourage people from engaging in business and other activities that involve contracts as they do not have a swift forum to enforce them. Furthermore, working people may spend their precious time in stuck in court proceedings instead of going back to work. This hinders the successful rebuilding of Tigray.
Therefore, given the extent of the damage to the legal system, a new dispute settlement system must be designed and implemented to address the potentially overwhelming number of cases that will be brought before the courts. This is key to rebuilding Tigray. To this effect, the interim administration may need to think of ways of designing an effective dispute settlement system in collaboration with different funding institutions. It also requires the collaboration of professional associations and other non-profit organisations in designing and implementing the system.
One option may be institutionalising the traditional mechanisms of dispute settlement mechanisms within the constitutional limits. Tigray has local dispute settlement mechanisms that can be institutionalised for the sake of ensuring certainty, trust, and accountability. Examples include settling disputes by elders known as Shimgilina, practised in many parts of Tigray, Wagare of Irob, and Sirrit (Abbo Gereb) of Wajirat. This will help Tigray utilise its own local expertise by engaging the elders and respected people in resolving disputes peacefully. This may also be the cheapest system as the need to train and certify professionals is less.
Another option, which can also exist in parallel to the traditional and modern dispute settlement systems, maybe mediation. Mediation is a dispute resolution process that involves a neutral third party who facilitates communication and negotiation between the parties to the dispute. The mediator’s role is to help the parties reach a mutually acceptable resolution to their dispute. The process is voluntary and confidential. Also, it is a win-win solution, maintaining the relationship between the disputants.
Both court-annexed mediation and private mediation may be relevant in this case. Court-annexed mediation is a process where the courts refer the cases to mediation while private mediation is a mediation process that takes place separately from the courts. Court-annexed mediation can be especially suited to the needs of Tigray because it allows courts to oversee and ensure the fairness of the mediation process, and this creates confidence in the people. However, this check and balance shall not create any burden on the courts and there must be a mechanism to ensure that judges are not spending their time observing the mediation process. In this case, the recent initiatives to implement the court-annexed mediation at the federal level can be a lesson. But most importantly, the experience of jurisdictions with developed mediation systems must be consulted.
Mediation will require not only building institutions but also training professional mediators who may continue to serve society even after the backlogged cases are settled or lowered. The existence of trained mediators and mediation institutions has the potential to change the future dispute settlement system of Tigray. And this will have a direct impact on the facilitation of business transactions and improving the relationship between the people.
Cognizant of the fact that not all disputes can be referred to alternative dispute settlement mechanisms, efforts must be made to ensure all disputes that could be settled out of court are sent to the newly developed dispute settlement system. For this purpose, observing the constitutional provisions is crucial.
In conclusion, the war has highly impacted the dispute settlement system of Tigray and the overwhelming backlogged cases cannot be quickly settled by them. And without changing this circumstance, it is difficult to successfully rebuild Tigray. Thus, a new dispute settlement system must be designed. In designing the system, the traditional dispute settlement system, and mediation can be some of the options that can be adopted and institutionalised.
Gidey Belay Assefa is student of Transnational Dispute Resolution at the University of Manchester.