Despite scant advance publicity, the hot and airless court-room of Malawi's Southern Regional Traditional Court was filled to overflowing on October 19, 1971, to hear the case against Walla Laini Kawisa. Every lawyer and senior civil servant who could possibly arrange it was there. The Police had cordoned off the area surrounding the Court. A huge crowd stood behind the barrier in an attempt to catch a glimpse of the proceedings. On the bench were three elderly chiefs, a legally-qualified magistrate and a young Judge from a lower Traditional Court. Police Superintendent Phuza prosecuted, assisted by the Attorney General and a senior CID officer. Kawisa was unrepresented and pleaded guilty to three counts involving eight murders. The Prosecutor told the Court that the accused had agreed to have other charges taken into account. Kawisa impassively pleaded guilty each time the details of a charge were read, causing a stir in the courtroom. On October 30, 1971, after an arduous presentation of the case by the Prosecutor, Kawisa was found to be solely responsible for thirty-one murders and fifteen attempted murders. Reading the Judgement, Chief Chikumbu said:

The attention of the world was focused on Ethiopia, briefly, when Emperor Haile Selassie I, once considered the inviolate descendant of Solomon and Sheba and the Elect of God, was deposed on September 12, 1974, and when, on November 23, 1974, sixty public and military officials were executed without trial. The Provisional Military Administrative Council, or Dirg, formally assumed power under Proclamation No. 1 of 1974 (Neg. Gaz. 34/1) which deposed the Emperor and “suspended” the 1955 Revised Constitution, while providing that all other laws and regulations remain in force. De facto, of course, the entire legal system remains in suspense and the emerging Grundnorm or basic postulate of Ethiopian public law has become the as yet vague philosophy of Ethiopia Tikdem, defined as encompassing the tenets of Ethiopian socialism.

Although the “revolutionary” movement was undertaken in the name of the peasants, events and legal changes have, to date, affected only the urban areas, and the Dirg's promise to pursue rural development and land reform (Ethiopian Herald, 1974: 4) has remained a mere promise. Will the interests of rural Ethiopians be pursued by the new regime in the future? What role will law play in this process? These problems will be resolved as a result of future political choices, and Ethiopia is at a stage in her history when difficult choices must be made in many areas. It is therefore an appropriate time to assess where the Ethiopian legal system has been and where it could go from the standpoint of improving the quality of the life of Ethiopia's subsistence peasants, who constitute eighty percent of the population.

Benjamin Disraeli took a calculated “leap in the dark” in 1867, when he extended the right to vote to almost all British men. With hindsight, his leap can be seen to have been a necessary (but not sufficient) means of defusing discontent and promoting democratization. Ethiopia seems poised for an even bigger constitutional leap into a murkier realm, into an ethnicized attempt at democratization. To gain acceptance, a new constitution like Ethiopia's must seem to be all things to all people and, in Ethiopia and elsewhere, the end of the Cold War has seen an explosion of ethnic nationalisms similar to the one occurring in Europe late in the 19th century. Without benefit of hindsight one can only make informed guesses about the effects of a new Ethiopian “constitutionalism” on events which are largely beyond the drafters’ control. I will argue that there are grounds for a guarded optimism over Ethiopia's leap.

The attention of the world was briefly focused on Ethiopia when Emperor Haile Selassie I, once considered the inviolable descendant of Solomon and Sheba, and the Elect of God, was deposed on 12 September 1974, and when two months later 60 public and military officials were executed without trial. The ‘creeping coup’ began in March 1974, and was undertaken by the military Co-ordinating Committee (commonly called the Dirgue, the Amharic word for ‘committee’) in the name of the peasants. Until the Nationalisation of Rural Lands Proclamation of 4 March 1975, however, the activities of the Dirgue were designed to secure an urban power base, and the peasants and the politics of numbers were tacitly irrelevant to a continuing paternal, factional, and urbanised political style. As the prologue to the Proclamation indicates, the Dirgue recognises the centrality of land reform to a broadly-based rural development:

In 1960, the Government made the first modern attempt at a comprehensive and formal statement of Ethiopian private law by promulgating Civil and Commercial Codes.2 An earlier source of private law rules, the Fetha Negast (Law of the Kings) has been part of the Ethiopian legal experience since at least 1686, when it was translated from the Roman-influenced thirteenth century Nomocanon of the Egyptian Coptic Church. There is no evidence that this compilation was ever officially promulgated, and it was often subordinated to “equity” (personal feelings of justice influenced by the need to maintain social harmony) and the territorial application of diverse and unrecorded traditional laws.3

In 1969, Malawi accorded extensive criminal jurisdiction to its Local or Traditional Courts, in an attempt to make the administration of justice more palatable to the Government and the people. There has been a sufficient number of Traditional Court decisions to permit a tentative analysis of the results of this experiment. A deeper study awaits the passage of time. This article is an attempt to inject some objective evidence into the debate over the desirability of courts in which lay judges apply customary law.