Tuesday, April 16, 2013
A conversation with Senai W. Andemariam
Attorney Senai W. Andemariam
Issayas: As you know Eritrea is one of the few countries that had/has its own written customary laws for centuries. A couple of years ago, you and I went to interview Professor Asmarom Legesse at his home. If you don't mind, I would like to quote him at length. In that interview, Prof. Asmarom mentioned the following:
“The most fascinating aspect of the Eritrean Customary Law is its dynamism. Laws are not written in order to be administered by law enforcement agencies. Laws exist as a background to intervention, to mediation, to conflict resolution.The purpose of law is to establish a framework for conflict resolution. Resolution of conflict is the most important aspect of Eritrean Customary Law. In my view, Eritrean Customary Law's backdrop to mediation, backdrop to peace making is what is the important aspect. In this regard, customary laws in Eritrea are quite unique. The uniqueness is not that they are customary but that they are written. And these Eritrean customary laws are written by communities and administered by communities, which did not exist in anywhere else in Africa. In Eritrea, we have two traditions when it comes to Eritrean Customary Laws: One is a liberal tradition which believes that laws are a living thing and you write them and rewrite them continuously so that they remain alive. The other is the onservative tradition, which states that laws are not to be changed as you please, they were written by the founding fathers in the state of sanctity and in the final form, which doesn’t evolve".
So, my question is, are the concepts from the customary laws included in the new Eritrean codes that have been drafted and finalized?
Senai: I had the opportunity to be part of the that very long process and joined it in its final stages of review and finalization particularly in the works on the draft Penal Code and draft Criminal Procedure Code. I was also assigned to draft the Evidence Code. Part of the finalization process was to incorporate, as much as possible, notions of Eritrean customary laws that are: (1) common to the majority of the Eritrean communities; and (2) in tandem with contemporary understanding of the rule of law and human rights. As the good professor told us when you and I interviewed him, there was even a discussion during the drafting process of the Eritrean Constitution to insert a provision on the status and handling of customary laws of Eritrea. What the consolidation team did in part was to give some color to the draft codes (especially the Civil Code and Penal Code) by incorporating such fitting notions of common customary laws into the draft codes. When the resulting final versions which, among a few other modifications, contained these in-corporations were presented to audiences
of the legal community and other concerned bodies, the reaction was very encouraging.
Issayas: Do communities in Eritrea still practice customary laws?
Senai: It is a hard question to answer because of the different vantage points from which one can look at it. The answer also depends on which aspects of Eritrean customary laws one is referring to. For one who believes that the Eritrean customary laws (as all customary laws) do, in one way or another, try to fit into the prevailing social, political and legal situation of the day, yes the Eritrean communities still resort to a number of customary-law based practices even in matters as significant as settlement of homicide. The payment of blood money (ghar nefsi) is still continuing in the communities and some practices (such as the payment of bride price (ghezmi)) are continuing
despite their prohibition by law more than two decades ago.
However, for one who wants to be a legislative puritan the practice of customary laws, unless allowed by exception, is prohibited under existing Eritrean national law. Arguments are available to support and oppose such prohibition, but what remains at the ground is that traditional societies as we commonly understand them to mean, such as which the majority of our people are, will continue to follow their customary-law based practices and the phasing out of these practices towards ‘modern’ laws will be a slow evolutionary process. A pragmatic solution, such as that being attempted through the now 10-year-old community courts’ experiment in Eritrea, may be to institutionalize some notions of customary laws (especially their procedural aspects) and get them connected to the national legal system.
Issayas: I read a Ministry of Justice report (2011) written in Tigrigna about Eritrean society, culture etc. Would you briefly tell us about the gathering of different elders who represented their respective societies and the final conclusion of the aforementioned report. Honestly, I believe this report should be translated into English for the benefit of the diaspora in particular and the world in general. It is not just a report of a gathering of people, but also an anthropological and sociological work. Could you tell us briefly about the purpose and the outcome/result of the report?
Senai: I wish I could tell you more about that interesting book which, I gathered, is a small part of the result of many years’ (I think since 1982) of research, interviews and field trips to scores of villages. Unfortunately, I was not part of the team that worked on the project. As someone who read the book, however, I agree with you that it is a must read – – as it is or as translated into English – for anyone interested to know about traditional Eritrean communities in general.
A report produced by the Ministry of Justice
in 2011 entitled The System of Administration,
Law and Culture of Eritrean Society.
Issayas: You are a member of the editorial team of the Journal of Eritrean Studies. I'm glad that the journal is revived. Would you tell us the background and purpose behind the journal?
Senai: The Journal of Eritrean Studies (JERS) is a biannual, peer-reviewed journal of the College of Arts and Social Sciences (CASS) in Eritrea. It was originally published in 2004 by the College of Arts and Social Sciences of the University of Asmara. Until it was discontinued in 2006 with the phasing out of the University, five volumes were published and after more than two years’ of hard work to reinstate it, JERS Vol. VI, No. 1 was launched in December 2012. Hdri Publishers has agreed to be our publisher now. JERS seeks to “promote a deeper understanding and appreciation of key issues relevant to the past, present and future of Eritrea”. The journal intends to be a publication for
anyone who wants to read or contribute scholarly articles on Eritrea’s history, culture, politics, economy, society, environment, languages and related methodologies. We have close to 30 well-established Eritrean and foreign scholars serving in its editorial and advisory teams. Those interested to contribute a manuscript can email us at firstname.lastname@example.org and, for subscription, contact Hdri Publishers at email@example.com or call them at +291-1-126177.
Issayas: Senai, again it's always nice talking to you. Thank you for your time.
Senai: Thank you.