Family is a fundamental social institution that plays a crucial role in socializing children, maintaining social solidarity, and contributing to national socio-economic development. It provides future generations with the social capital they need to gain access to resources through inheritance and other mechanisms.
However, the family is also vulnerable to disputes, with inheritance-induced conflicts being a major source of familial discord. Considering the devastating potential of such conflicts on the basic social fabric, it is highly desirable that family law regulate family relationships, working tirelessly to reduce family conflict and allow families to maintain their vital societal functions.
Family structure and practices, including inheritance, vary widely between societies and nations. This is undoubtedly the product of existing laws, policies, and institutional arrangements that regulate and shape family practices, as well as different societal norms that shape people’s attitudes and behaviors.
Map of Ethiopia showing regional states.
Evolution of Family Law in Ethiopia
To this end, Ethiopia ratified its first civil code in the 1960s, which dealt with family and property law. The civil code in general, and family law in particular, have been revised to accommodate emerging socio-economic changes in society and to overcome the clearly observed drawbacks of previous policies and legal frameworks concerning family relations (the Revised Family Code Proclamation No. 213/2000). Furthermore, property law has also undergone several revisions at different times, using proclamations to protect the property rights of marginalized groups, which can ultimately reduce the level of inheritance disputes between family members.
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In contrast, inheritance-induced family conflict has emerged as a new conflict dynamic and the second most common type of conflict after domestic violence, as illustrated by the case of the Harergie district in the Oromia Regional State, Ethiopia.
According to Kefyalew et al. (2018) in 1994, there were 1852 higher level court cases, 14,750 district-level court cases, and a total of 16,603 court cases, which increased to 8038 superior courts, 94,232 district-level court cases and a total of 102,270 court cases in 1918 in the East Gojjam area (northwestern Ethiopia). Of 102,270 trials in 1918, 87,575 were property cases, and the largest proportion concerned inheritance of family property, while the remaining 14,101 were criminal cases.
Despite these large increases and their negative consequences, the empirical literature on inheritance has focused disproportionately on the importance of inheritance for the transmission of wealth and intergenerational solidarity, and paid little attention to the stress, quarrels and dissatisfaction of family members. Consequently, empirical studies of inheritance in Ethiopia and other sub-Saharan African countries also focus on gender aspects of inheritance and their impact on the intergenerational transmission of poverty. Studies on the existing conflict mainly focus on ethnic, clan and politically induced conflicts.
In addition, the comprehensive profile of conflicts in Ethiopia by Getinet (2010) also indicates that ethnic, political and religious conflicts are common types of conflicts in Ethiopia. However, the nature of family disputes related to inheritance, their impact on family relationships and general social stability and development, and the views of lawyers and litigants on disputes that can serve as a basis for reducing these disputes have not been sufficiently studied.
Therefore, this article aims to examine the nature of family court litigation over inheritance and the perspectives of legal professionals and litigants on the prevalence of inheritance-induced family court disputes in the eastern Gojjam district of northwestern Ethiopia. In particular, the main research questions of the study were: What is the nature of familial ties involved in an inheritance-induced dispute?; What types of properties are at the center of recurring inheritance disputes?; What are the legal-policy gaps inducing inheritance disputes? And what are these emerging socio-economic dynamics aggravating inheritance disputes?
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Research Methods
This study employed a mixed research approach to investigate the distribution of conflicts across kinship ties and property types as well as obtain perspectives of lawyers and litigants on such disputes. The use of this approach helps to bridge the weaknesses of one approach with the other in order to better investigate the research problem.
Various data-gathering techniques and approaches were used to gather empirical data from a variety of sources. In the first phase, researchers gathered important data from closed court cases, mainly those involving family disputes based on inheritance that are already resolved by zonal-level courts by the year 2020. Second, employing the survey method and in-depth interviews, primary data were also gathered from the disputing parties.
In-depth interviews with non-sampled contenders as well as lawyers and judges handling similar cases were also conducted. This helped investigators in addressing those crucial issues that were missed in the archived court records containing closed cases. Emphasis on recent cases that have resulted in a final decision at the zonal-level was considered in order to better grasp the contemporary severity of the problem than cases that took place in the distant past (including those cases that they are not referring to the zonal-level courts and instead ended up in the lower level courts). Additionally, only closed cases were deliberately chosen in order to avoid unnecessary interference in the private matters of the disputing parties during the legal proceedings and in order to gather more reliable information from closed cases than pending cases.
In order to capture the diverse viewpoints of the litigants and legal professionals involved in dispute resolution, both as judges and as legal advisors to the litigants, a two-stage sampling technique was employed to select the appropriate participants for each data collection method. In the first stage, four of the twenty-one rural districts and four of the municipal administrations that were available in the East Gojjam zonal administration were randomly selected.
Once the districts were selected, court cases involving family property disputes that were reported to the court at the zonal-level and those that received a final decision within the specified period of time (2020) were identified. Consequently, a total of 570 closed cases pertaining to inheritance-related family disputes were identified of which 235 samples were selected using the Yamane (1967) formula with an accuracy level of 5, taking into account a relatively homogeneous population.
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In terms of data collection, quantitative data was collected from 470 people, one defendant and one accuser from each of the 235 selected court cases to identify the types of family ties in dispute and the types of property in dispute and their relationship with legal and policy gaps. Researchers strongly believe that data obtained from court records and disputing parties may not be sufficient to successfully examine legal and policy gaps, as well as emerging socio-economic dynamics that exacerbate family disputes over property.
For this reason, in-depth interviews were conducted with legal advisors and lawyers working in the region to obtain their expert views. A total of twelve (12) key informants (a legal advisor and a judge) were specifically selected from each selected district based on their willingness and experience with the subject under study (the interviews were conducted outside the office hours). In addition, in-depth interviews were also conducted with eighteen (18) disputants to find out their detailed experiences and feelings during and after the trial. All interviews were conducted at the informant’s home in order to provide respondents with reasonable privacy.
Data Analysis
The data analysis process is the most complex and mysterious of all the phases of any qualitative investigation. Considering the nature of the problem under study, the qualitative data analysis process was carried out using thematic analysis techniques, while the quantitative data were analyzed using descriptive statistics (percentage and frequency) of the distribution.
Thematic analysis is a qualitative data analysis technique that involves searching a dataset to identify, analyze, and report repeating patterns. Field notes and recorded audio recordings were listened to repeatedly, fully understood, and eventually transcribed into Amharic text (the language in which the data was originally collected). Then the Amharic text was translated into English, leaving the message unchanged, and it was read well to familiarize us with the whole data. Then the relationship between the datasets and the codes was identified and checked against the dataset to see if there was a possibility of a different code or an overlapping of codes.
Next, the relationship between the codes and the dataset was examined to look for themes and make them independently meaningful and consistent with the overall analysis. Once the subjects were constructed, they were re-verified with all the codes and data to shape them to achieve the study objective and finally integrated with quantitative data.
Legal and Policy Frameworks on Family and Property
Ethiopian family law recognizes the family as the natural foundation of society, which requires adequate protection from both the state and society itself. One mechanism to do this is to implement proper regulations and regulate family relationships through the legal system. Similarly, Ethiopia has also sought to regulate inheritance systems that allow for the smooth transfer of wealth and solidarity between those who give a will and the heir, avoiding potential disputes between competing heirs and other relationships (Civil Code of the Ethiopia 1960 s and Revised Proclamation of the Family Code No. 213/2000).
Although Ethiopia introduced its first civil code in the 1960s to regulate family relationships and property rights, including inheritance, only a few changes have been made to the existing traditional regime that had been used prior to the ratification of the civil code. In addition to the inclusion of a few elements in the civil code, the recently added elements were largely impractical and obscured by the customary inheritance law.
In particular, while the civil code gives equal rights to all legal heirs without any discrimination based on sex or age, the age-old customary inheritance system (which served as the main system for the transfer of property rights) was rather discriminatory by gender. Furthermore, the civil code describes the land, which is the most valuable asset, as government property, so that all citizens have equal access and inheritance rights from their families (1960 Civil Code of Ethiopia). Contrary to what the law says, the land was owned by landowners and the church, and the mechanism of transmission to descendants was through patrilineal lines, including other socially and economically valuable assets.
This discriminatory system of property transfers, contrary to statutory law, has exposed families and women who do not own property to tenure insecurity as well as to the generational transmission of poverty. On the other hand, court cases related to inheritance disputes were less frequent and inheritance disputes between daughters, parents, and their brothers were almost non-existent. Even the already limited extent of property disputes was not brought to court; On the contrary, they could easily be solved by traditional arbitrators, who also prefer men. Currently, inheritance disputes have emerged as a new conflict dynamic in Ethiopia, as seen in the Harergie area.
When the Derg regime came to power in 1974, it was only in the last years of its power that a constitution, family laws, and other full-fledged laws were developed. However, since development rhetoric was equivalently used to refer to rural development, the then government paid due attention to the land issue and tried to develop a new land policy in 1975. The policy ended with the nationalization of all rural lands with the proclamation of March 4, 1975, and redistributed them among peasants through local peasant associations.
The primary goal of nationalization and redistribution of rural land was to reduce the inequality in the distribution of rural land, as well as the rent paid for land use, which is usually associated with rural poverty and closely related to the traditional tenure system. However, the transfer of land by sale, lease...
Most legal theorists agree that law is the 'mirror of society' and its purpose is 'maintenance of social order'. This so called mirror-theory underlines that the basic source of law is social values and interaction, and the state should not blatantly ignore societal values and impose aspirational laws. Unfortunately, Ethiopia has taken measures to modernize the country through legislative reforms including by abolishing selected aspects of customary family institutions in 1960 and 2000. As a result, important values of the society have been overlooked in the official family laws and that separate the law from the community.
Betrothal, one of the long established practices of Ethiopians, is totally ignored by the federal family law and has become an extrajudicial act. Similarly, though customary way of family dispute settlement is recognized under the FDRE Constitution, the family law barely empowers it thereby eliminating its functions and importance. Equally, the law that obliges adoption agreement to be in written form, parties to appear before court of law and secure approval of the relation, is believed to be mechanical and contrary to societal practices.
As a result, the family laws have been considered by many as a poor adoption of foreign practices that ignore societal values and long-proved customary institutions. The author, however, argues for " a multilayered approach to family regulation [that] builds on the notion that many families have a complex identity and experience, shaped and defined by many different cultural, legal, and political ties.
