National consultants to present paper on the Conference “Law and Development: Legal Pluralism, Traditional Justice and the Role of Legal Actors in Eth

The concept of “Law and Development” is a paradigm in the study of law that articulates the role of law in a state’s development, particularly economic development. Law and development, as an interdisciplinary field, studies the intersection of economics, law and institutional practice. It can be taken as a powerful tool for problem-solving, which focuses on social problems and evaluates institutional reactions to them in terms of economic efficiency. To this end, a deep understanding of law and economics is crucial for a developing nation like Ethiopia, particularly at a time when the Country is following new policies and it’s considering new avenues of integrating itself with regional and international economic communities. However, much needs to be said as to what types of laws, what types of legal institutions, and what processes are most conducive to solving particular development problems, as the concept eludes not just the community but also most professionals within either the field of economics, law or development studies. In Ethiopia, a multi-ethnic and multi-national country, there are numerous ethnically-based legal systems. The customary regimes of the various ethnic groups, often consisting of unwritten norms, have been in operation for long governing the daily lives of the members mostly providing the only normative order that serves as the only means to preserve peace, justice, and social harmony in and among communities. Apart from these non- state (alias ‘customary’) laws, there are also religious laws in operation (Judeo-Christian—Fetha Negast, Islamic-Sharia, or Traditional). The formal modern legal system, most of the corpus of which was introduced into Ethiopia in the middle of the twentieth century, is superimposed on these customary and religious laws that form the sub-text of the legal system. The Ethiopian political elite of the 1960s, under the leadership of Emperor Haileselassie envisaged a new order and societal pattern and wanted to effect a complete break from the past. Some concepts like social change, legal “modernization”, development and others energized the whole process and hence between 1957 and 1965, six codes, most of which had a continental origin, were produced, through a grand codification process. Thus the penal code was promulgated in 1957 only to be followed by the civil code, commercial code, and maritime code of 1960; the code of criminal procedure of 1961; and the civil procedure code of 1965. The drafters and scholars involved in the ‘legal transplantation’ effort believed that Ethiopia does not have a law thereby necessitating legal modernization if development is to be realized. The modern law was thus presented as if filling what was conceived to be a legal vacuum. Although the modern law was formally ‘received, voluntarily’ by the modernizing emperor and the political elite of the times, in actual fact the modern law was imposed on the society whose life has hitherto been governed by the non-state laws. It was thus no accident that the Civil Code sweepingly repealed and replaced all other forms of laws (i.e., customary and religious laws) that preceded it. As a result, the ‘other’ laws (e.g. customary and religious law) came to be viewed as anachronistic to the times as they were perceived to be anti-thetical to modernity and progress. With the fall of the Imperial regime and declaration of socialism as the new state orthodoxy, the government’s policies focused on the idea of bringing the basic means of production (e.g. land) under the government’s control for the major purpose of mobilizing the natural, financial and human resources, so as to find a solution for the problem of extreme poverty. As to the legal system, the government inherited the codes ‘imported’ from developed western countries. It also inherited numerous other legislations in the form of proclamations, orders, decrees, legal notices enacted by the regime that precede it. For the large part, the codes were not enforced partly because they were not consistent with the socialist ideology promoted by the state (the codes protect private property regimes, freedom and privity of contract, etc while the reigning state ideology was preoccupied with nationalization and communalization of property) and partly because there was weak state and legal penetration into the rural areas. Consequently, the vast majority of the people sought order, peace, and justice from the non-state (mostly customary ad religious) laws that operated in and among their communities. The nationalization laws, with their lofty objectives of curing the economic and socio-political ills of the country, arrived on the scene having such a diverse normative and institutional framework as their background. One quickly notes that, in spite of the familiar professional (lawyers’) bias towards the idea that ours is one monolithic legal system, the modern ‘imported’ laws and the institutions established thereof did not succeed in constituting a single unified legal system. Legal diversity was a lived fact, if a denied norm. Customary and religious laws demonstrated resilience in the face of a sweeping repeal provision of the civil code. This fact of legal diversity, coupled with weak state-legal penetration and the consequent toleration of the ‘other’ laws constituted what scholars have recently called empirical (or de facto) legal pluralism, i.e., a legal pluralism that is outside of formal recognition and promotion of the existence of diverse legal orders operating alongside the state legal order. (This is often contrasted to formal or juridical legal pluralism which is marked by state recognition of and conscious promotion of legal diversity.) The Constitution of the Federal Democratic Republic of Ethiopia (FDRE), decentralized the law making process, recognized customary and religious laws, and by so doing, laid down the framework for a formal legal pluralism. The right to be adjudged by one’s customary and religious laws before one’s customary or religious court came to be a right (and not a duty, of course). In addition, true to its commitment to federalism, the constitution has established a federal state structure where governmental powers are divided and shared between the federal government on the one hand and the governments of the nine constitutive units of the federation on the other. The type of federalism embraced by Ethiopia provides the setting for a formal legal pluralism (both internal—to the state law system—and external—between the state law system and the ‘other’ legal orders). This is particularly so owing to the multi-national nature of the federal setting with emphasis on ethno-cultural justice. Consequently, the legal system is also expected to recognize its multiple sources and multiple foundations in as much as the ethno-national groups and/or their members will have ‘the right to their own indigenous customary laws’ (as per art 39(3) cum art 78(5)). In spite of the fact that the formal legal pluralism seems to extend limited recognition (of customary and religious courts that have only consensual jurisdiction over family and personal matters only), the diverse customary law systems continue to play a central role in the legal life of the peoples of Ethiopia. The inability of the formal legal system to penetrate the "living laws of the peoples" (customary laws) of the country is regarded as the major reason for its inefficacy in some aspects and which creates a gap between the law in action and the law in codes.

Duties and Responsibilities

The Justice and Legal System Research Institute by its establishing proclamation is conferred with the mandate of undertaking legal reform studies and research activities with a view to strengthening and modernizing the justice and legal system, and build the capacity and improve the efficiency of organs in the administration of justice, with a particular emphasis on revising the laws of the country. This is, to see to it that the constitution is properly enforced, to ensure the prevalence of the rule of law, and to promote the economic and social development of the country. The UNDP, in its endeavor to promote development in Ethiopia, seeks to support efforts at examining the potentials and limits of law to steer development in the Ethiopian society. It also seeks to kindle and facilitate a national dialog (and conversation) on issues pertaining to rule of law, access to justice, and development in the context of legal pluralism permeated by the resilience of indigenous justice systems in the country. Hence, organizing this and a series of subsequent conferences with a national significance has the overall objective of identifying the factors that impact (negatively or positively) the development of the country thereby warranting reform. It is also hoped that the ideas that emerge from the papers to be presented in the conference will contribute to the strengthening of the constitutional order and a system of rule of law which is deemed necessary for the achievement of the development objectives of the justice system as broadly outlined in the Growth and Transformation Plan of Ethiopia. The conference will have the following specific objectives: Identifying specific areas of law and development that are of particular relevance to Ethiopia Initiating a dialogue on law and development and identify a set of research agenda in the realm of law and development. Exploring the meaning of law and justice as it is understood in the context of the ‘imported’ and indigenous systems of law. Launching a systematic examination of whether, and the extent to which, the country’s laws reflect the needs of the society Identifying mechanisms of accommodating the diverse needs of the society as reflected in the diverse systems of law with their own normative, procedural and institutional frames. Assessing how legal professionals perceive their role in the development of the Country, in terms of understanding the law and responding to the needs of the society. Creating a forum where lawyers, economists, government officials and private actors working on development to discuss their respective views and roles in the advancement of the development agenda. Creating a forum for experience sharing from scholars who have well researched the conceptual and practical realities of the relationship between law and development Individuals are required to submit their proposal from the contents listed below: Overview of Intended Paper Presentations and preview of the contents. The Law and Development Paradigm - This paper reflects on the law and development paradigm and tackles questions such as: What are the key claims of the law and development paradigm? What are its legal-theoretical roots? How does it view the role of law in economic development and in the wider society? How does it fare in the context of a developmental state? (Does it sit well with it, or are there any tensions? Where and how do we resolve the tension, if any?) What are the milestones in the ‘life’ of the law and development paradigm? What factors were behind the rise, the decline, and the resurrection of the law and development paradigm? What is the contemporary state of the scholarship on Law and development? Historical Evolution of the Relation between Law and Development in Ethiopia This paper is hoped to shed light on the role of the law and development paradigm in the past and present of the Ethiopian legal system. It seeks to explore, among others: The relationship between law and development in Ethiopia: past The relationship between law and development in Ethiopia in the era of codification. Law and development in contemporary Ethiopia: interface—any link (conscious or unconscious)? Legal Pluralism in Ethiopia and Development - This paper discusses legal pluralism in relation to development. In particular, it examines: The meaning, elements and fundamental concepts of legal pluralism. The interaction between religion, culture, custom, modernization, globalization etc, with particular emphasis on the Ethiopian experience. The functioning and implementation of legal pluralism within the multinational federal setting of Ethiopia, and the relationship among the multiple layers of the country’s legal structure, including the chief challenges posed by the fact of legal pluralism. Areas of law where there is widely practised deviations from the formal legal system are witnessed, such as formation and enforcement of contracts, and procedural justice. Legal Pluralism: A Comparative African Perspective Legal pluralism has been viewed as a phenomenon that predominates the legal landscape of the post-colonial world. In Africa, it began to be an area of (legal-)anthropological inquiry since the time when at least two ‘types’ of laws applied to citizens (one for the white colonial settlers, and another for the black indigenous folks).inheriting the legacy of colonial dualism/pluralism of law, post-colonial African states continued to value legal pluralism as a fact of life. The external element further pluralized the legal system that is already horizontally plural. But the relation between the modern state law and indigenous laws took different forms in different countries with differing colonial legacies. Ethiopia, it is hoped, will do well to learn from the experiences of these diverse systems of managing legal pluralism. This paper tries to bring the diverse African experiences thereby offering a variety of options as to how best to handle legal diversity in a polity with a developmental agenda. The following topics will be covered: Law in Africa: pre-colonial, colonial, and post-colonial The beginning of legal pluralism in Africa: the Colonial legacy and its diversification of law orders. Legal pluralism as the lens with which to view the African legal phenomena. Legal Pluralism in Africa: Anglophone, Francophone, Lusophone, Magrab, Ethiopia. Approaches to (or patterns and trends in) governing legal diversity The convergence and divergence of the Ethiopian experience when compared with and contrasted to that of other African countries. Legal Pluralism in Ethiopia: an Empirical Study - This paper seeks to describe the phenomenon of legal pluralism in Ethiopia. Among other issues, it explores the following: What does the legal landscape in Ethiopia look like? (Describing the legal system)—describing the fact of legal diversity. What are the sources of legal diversity in Ethiopia? (Federal multiplicity of jurisdictions, alias, internal legal pluralism; impact of globalization; resilience of customary laws; religious laws; informal urban laws; international (human rights) laws; lack of state-legal penetration; etc. Official and non-official (empirical) legal pluralism in Ethiopia. Presentation of a case by picking up a specific geographic/cultural area where legal pluralism is seen at work. What challenges does legal pluralism pose to development endeavors in the context of developmental state? How do we overcome the challenges? What is the prospect? The Role of Legal Institutions and Professionals in Development With a view to exploring the potentials and the limits of legal institutions and legal professionals in development endeavors, this paper discusses the role that legal institutions and legal professionals should play in relation to situations where legal pluralism exists and customary law systems have been recognized and/or play a significant role in the lives of the majority. Gendered Justice and its Place in Development - In this paper, an attempt is made to reflect on the following questions: What is the place of Gender in the Law and Development discourse? How do we engender the Law and Development discourse in contemporary Ethiopia? How do women’s human rights fare in a developmental state context? How do women’s human rights (including right to development) complement the developmental aspiration of the state? And how does this contribute to the law and development discourse? Unregulating, Regulating, and/or Deregulating Labor in a Developmental State: Harnessing Labor Relations in Law for Development: Considering the fact that regulation, un-regulation, or deregulation of labor plays a significant place in the process of development, this paper explores the potentials (and limits) of labor/employment laws in enhancing development in the Ethiopian society. Labor law regime in the law and development discourse: any role? (Un)Regulating and de-regulating labor in Ethiopia: what is labor to development in the context of Ethiopia? What are the challenges of harnessing labor for development, and what is the role of law in this regard? Expected Outcome A common understanding on the part of all participants that, in order for law to play a major role in the development of the country, it needs to reflect the current needs of the society in which it exists and be responsive accordingly, leaving a room at the same time for accommodating international developments. Concrete recommendations, aimed at influencing relevant public authorities entrusted with policy making, to come up with laws that address the pluralistic nature of the society and improve the justice system in a manner that accords with the justice development objective of the Growth and Transformation Plan. Scope of work and other conditions Preparation of a paper in one of the above specified topics and presentation of the paper on the date of the Conference. The paper needs to be a maximum of 35 pages. For Presentation purposes, it’s preferable that the paper is prepared in a PowerPoint format. There is no restriction as to whether the paper has been presented in prior workshops. All the papers prepared for presentation will be compiled and published in a form of a book. For Publication purposes, all issues, legal or otherwise, which may ensue with regard to the originality of the paper, will solely be borne by the paper presenter Deliverables A soft and hard copy of the document need to be delivered to the panel of reviewers fifteen days prior to the date of the Conference. Tentative schedule and venue of the Conference: The Conference will be conducted in Addis Ababa, for three (3) consecutive days and it’s tentatively scheduled to be staged during November 2011.

Competencies

Education: Minimum of LL.M degree in Law. Experience: 2 years experience in teaching or conducting research in the area they are to present a paper, or have prior publications on the subject. Language: Except for those paper presenters who could not communicate using the Amharic language, the preparation of all papers will be in Amharic.

Required Skills and Experience

DOCUMENTS TO BE INCLUDED WHEN SUBMITTING THE PROPOSAL I. Proposal: (not more than 450 words) Explaining why they are the most suitable for the work Provide a brief methodology on how they will approach and conduct the work (if applicable) II. Financial proposal: indicate lump sum fee. III. Personal CV including past experience in similar projects and at least 3 references IV. Financial Proposal

UNDP is committed to achieving workforce diversity in terms of gender, nationality and culture. Individuals from minority groups, indigenous groups and persons with disabilities are equally encouraged to apply. All applications will be treated with the strictest confidence.