David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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This article discusses how the Ethiopian state can maintain the level of protection of human rights necessary to protect its standing in the international community while at the same time respecting and incorporating within its formal legal system the multiple customary law systems existing within its borders. The article describes the modern Ethiopian State and the ethnic composition of the Ethiopian people, with particular reference to the Amhara, Gumuz and Somali peoples, and it examines the treatment of homicide within the customary law systems of these three peoples (with focusing on the right to life, the protection of female children against exploitation, and the right of women not to be discriminated against on the basis of their gender). The article examines in detail the interplay between customary law systems, modern notions of human rights, federalism and legal pluralism, and it considers procedural mechanisms useful for reconciling the formal Ethiopian legal system and the informal Ethiopian customary law systems. Finally, the article proposes a plan of action for the Ethiopian government that will respect and preserve the customary law, concluding that the key to success is adoption of a maximally flexible system of legislative federalism.The article argues that in order to fulfill its commitment to establish the rule of law while protecting its customary law systems, the Ethiopian government should 1) create a flexible federal framework of statutory law that will allow the Ethiopian state governments to accommodate the customary law systems within their borders; 2) inventory the more than sixty Ethiopian customary law systems to evaluate their procedures and practices and determine which are and which are not in conformance with the international human rights guarantees contained in the Ethiopian constitution; and 3) devise techniques to monitor the performance of the customary law regimes for compliance with minimal standards of human rights protection, and to upgrade their performance in that regard. Completion of these tasks will require reconciling competing pairs of values: rule of law and preservation of customary law, protection of human rights and protection of custom, certainty in the law and flexibility, uniformity in the law and local autonomy.
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