BY STELLA AMANUEL | ERITREA PROFILE
Customary laws set acceptable standards and norms in a given society, and the Eritrean people practice dispute resolution mechanism by using customary laws with a view to achieving reconciliation. It is common for the elderly to act as mediators, conciliators and arbitrators in all kinds of disputes.
Unlike the Western practice, which is retributive, Eritrean customary laws are attributed to restorative justice. The customary laws advocate restoring the wrong doer to society and harmonizing him or her with the community and attaining peaceful co-existence.
The Eritrean customary laws do not recognize the distinction between private and public wrongs, which is the case with the Penal Code. They consider all wrong doing as private in nature. In the old days self-help was the hall mark of customary law.
If a person is proven to have committed a homicide, the victim’s family have the right, in abstract theory, to avenge the homicide with counter-action. To put it in another way, if someone murders a person, the relatives of the deceased may take retribution on anyone from the killer’s family.
In practice, the norm is to seek reconciliation and redress the wrong through marriage or acceptance of monetary compensation.
Recently there was an instance of some guy who was run over by a car. Unfortunately the victim lost blood and died. It was a painful reality to face for the parents of both the deceased and the driver. Then the parents of the driver went to the family of the deceased to offer money and other presents. But the victim’s family refused to accept the offer claiming that the driver did not intend to run over their son. The two families reconciled.
This is the heart of Eritreans, securing peace through forgiveness and reconciliation. In some cases disputants solve their case themselves without involving third parties. In some other instances disputants submit their case to a third party called ‘shimagle’. ‘Shimglna’ is a dispute resolution institution that encompasses all types of arbitration, mediation and negotiation.
The ‘shimagle’ may be self-appointed or nominated by the disputants. Most of the time, the ‘shimagle’ is an elderly person, a religious leader, or a local or community administrator. He has to have wide acceptability by the community, be eloquent and fair. Settlements can be initiated without the knowledge of the disputant parties, upon the consent of relatives. There is often no resistance to the authority of the ‘shimagle’.
The ‘shimagle’ might hide some facts and offers made by one party, if they find them to be offensive to the other party, and try to get the parties to compromise. The ‘shimagle’ are not paid and are not compensated for any expenses they may incur.
The proceedings by the ‘shimagle’ take place in an open air, under the shades of trees, in private houses or any other place agreed upon by the concerned parties. Working as part of the ‘shimagle’ is considered a public duty and people tend to take it wholeheartedly. The subject matters of arbitration tend to be family matters such as inheritance, divorce and property.
The elderly dealt with many disputes and helped bring about peace in our society for a long time. The customary laws contributed a lot in resolving disputes by upholding the principle of love and harmony.
The Eritrean people apply customary laws in many situations to attain love, peace and reconciliation through forgiveness. This they do not only among themselves but also in their dealings with others.