Justice that Heals and Restores: The Potential of Embracing Borana Oromo Indigenous Justice System Alongside the Ethiopian Formal Criminal Justice System
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Date
2015-06
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Addis Ababa University
Abstract
Experiences in many countries, including Ethiopia, indicate that the formal criminal justice system has not been achieving its objectives of controlling crime and reducing recidivism. Dissatisfaction with the process and outcome of the formal criminal justice system has led to the quest for alternative way of addressing the problem of crime and its consequences. In the course of time, a new way of viewing and responding to crime known as restorative justice has emerged. In its approach, restorative justice focuses on the healing of the harm caused to the victim and restoring the personal and social relationship disrupted by criminal act. In cases where restorative practices and values are embedded in their indigenous justice systems, some countries have opted to maintain or revitalize these restorative practices. The main objective of this study was to explore the restorative potentials embedded in Borana Oromo indigenous justice system which has been providing the people an alternative way of responding to problem of crime. In order to find out these potentials, qualitative data have been gathered from victims, offenders, Borana elders and officers of formal justice system in the study area. The data have been gathered mainly through interviews and FGDs. The findings revealed that Borana indigenous justice system aims at the restoration of the disrupted personal and social relationship and harmony in its response to problem of crime, instead of incarceration. The justice process involves all those affected by the crime and they are the ones to determine the outcome of the justice process. The outcome addresses victim‘s needs and ensures peaceful reintegration of the offender into the community. In the araara/reconciliation/ process, both the material and the spiritual aspects of the damage caused by the crime are addressed. For example, in case of murder, 30 head of cattle is paid as gumaa by the clan of the offender to repair the material damage caused to the victim. The spiritual and emotional disharmony between the parties is healed through the ritual cleansing ceremony. Based on the principle of collective responsibility, the clan of the offender is accountable for the crime committed by a clan member. As there is no category of civil and criminal law under Borana indigenous justice system, gumaa is a non-punitive and non-custodial punishment which combines both criminal and civil liability. The findings have revealed that Borana indigenous justice system is functioning in parallel with the formal justice system with wide support which shows that the desired homogenization of legal system has not succeeded. The study has shown that the Borana have acknowledged the jurisdiction of the formal criminal justice system over detested crimes like rape, intentional homicide and recidivism. But as there is still lack of mutual recognition between the systems and their unregulated rivalry, this has made the people vulnerable to the sanctions of both systems creating tensions and uncertainties in the society. The study has shown that there is a need to avoid the destructive aspects of the two systems and make both systems user-friendly. The study has revealed that the existing Borana normative landscape would require giving some space to Borana indigenous justice system in the area of criminal justice so that the people may be beneficiaries of the restorative potential embedded in the system
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Borana; indigenous justice system; restorative justice; criminal justice