The Ingenuity of Our Forefathers – By Gherezgher Bekit 02/18/16

Brief Background:

As you very well know, the Eritrean traditional laws in general and Ftih Mehari (Mensa’s traditional laws) in particular had been practiced in Eritrea way before the Europeans set their foot in the region. Despite the fact that they were illiterate, our forefathers were evidently advanced and forward thinking in the way they formulated their laws and put them into practice. I am fascinated by the way they reached decisions through shared and participatory governance and consensus. It was a system that encouraged broad participation which should be emulated. 

Ftih Mehari’ s laws, just like any other Eritrean traditional laws, were handed down verbally from generation to generation until Carl G.Roden, a Swedish missionary, compiled them in Tigre in a book format which was published in 1913. The book was translated into Italian; widely circulated in Europe and became sociologists’ sensation. Incidentally, I have made an observation that Ftih Mehari’s articles have some striking similarities with some Western or American laws.  So, the question is who copied whom?  According to several indicators described below, there is compelling evidence that Westerners have copied our forefathers’ ingenuity in formulating portions of their modern laws.

Taking communication and literacy barriers of that era into consideration, one can safely conclude that there is no way our forefathers could have copied the Westerners.   Our ancestors’, especially Mehari’s, innate knowledge and capacity of traditional laws were astounding.  I learnt from other relevant readings that Mehari, the chief architect of the laws, was profoundly well- versed in law and, as a result, he produced collections of considerable merit.  Ftih Mehari has a total of 83 articles. Below is a short rough translation of Ftih Mehari sample articles translation, randomly selected, that I have drafted to share with you some of the similarities.

Samples:

Ftih Mehari Article 22:   A father may make a proposal to apportion, while living (Living Trust), a portion of his wealth or property to anyone he desires by designating beneficiaries.  As he nears to death due to sickness or old age, he summons his first born son to apprise him about his wishes of distributing or allocating part of his property (land or cattle) to the beneficiaries. The beneficiaries could be his children and/or other relatives.  Nevertheless, his first born son’s consent is essential in order for the designation to move forward.  If the son assents to the proposal, the father calls witnesses to reaffirm his Will. This process constitutes a contractual obligation between the father and the son.  Only then his “Will” becomes valid, binding and enforceable. During the process, the father discloses all his outstanding debts as well as money or assets owed to him. Upon his death, his family honors the expressed verbal contract to make the agreed upon distribution of wealth as well as paying all debt obligations.

The American Version:  Estate Planning is the process of anticipating and arranging, during person’s live, for the disposal of their assets.  It is also referred to as Living Trust or Will because people can assign beneficiaries while they are alive.  Advanced medical directives and durable power of attorney may also be established during this time to give authority to the trustee or administrators to make important medical decisions when and if the trustor is incapacitated.  This process also eliminates any uncertainties of administrating the estate in the future.

Ftih Mehari Article 26:  Orphanage:  Orphans have the choice to stay with foster parents or with relatives of the deceased parent/s.   This was a result of an amendment that made during Kentebay Bimnet’s reign.  Before the amendment, orphans were raised by an uncle (from the father’s side), if the mother was to be re-married.  The purpose of this amendment was to not let the children be raised by a step-father.

The American Version:  States have rigid and strict laws regarding foster parenting and adoption laws.

Ftih Mehari Article 49:  The community (Adi) has a blanket power or authority to take pieces and bits of lands surrounding a road for a public use.  The road is called “Gebey 40” in Tigre, meaning Highway 40.  The names implies that the road belongs to the community (Adi) at large and thereby it should be maintained by collective efforts of the community.
The American VersionEminent Domain.  The State or national government has the power or authority to take private properties for public use such as highways, schools and/or parks by compensating owners with fair market value. In other words, land is given up for the common and greater good.

Ftih Mehari Article 57:   A purchase of land:  A purchase of land requires three witnesses in order to be legally binding.  However, the buyer shall have three (3) days or 72 hours to regret the transaction and has the option of cancelling the purchase if he/she wishes to do. This is considered to be a cooling off period for the buyer to withdraw from the commitment without repercussions or ramifications.

A purchase of mule, horse, bull, jewelry and clothings does not have a cooling off period because they have to be tested or fitted before purchase.  Once the transaction is consummated, the items cannot be returned; no cooling off period.

American Version:  Purchase of land or home:   The purchase of land or home (mortgage) has to be notarized in order to be legally binding.  The law gives the buyer 3 days or 72 hours to cancel the contract.   Again, this is considered a cooling off period for the buyer to back out of the contract without penalties.   In other words, the buyer has three (3) days to cool off.

A purchase of vehicles: Once a contract is signed, the sale is consummated and the vehicle is driven out of the lot, a purchase of vehicles does NOT allow cooling off period.  Usually, car salesmen encourage buyers to test drive a vehicle before they commit themselves to a purchase. There is a saying, “Buying a car without a thorough test drive is like getting married before your first date.”

Ftih Mehari Article 59:  The purchase of land or cattle requires a surety bond or guarantor to protect the buyer or consumer from fraud.  The guarantor or the bondsman should be a relative of the seller.  If the cattle sold is not in a healthy condition, dies consequently and the seller cannot be found or refuses to return the money to the buyer, the buyer can go after the guarantor or bondsman of the sale.  Any loan that has a life span of more than a year requires a guarantor.

The American Version:  In lending agreements, collateral is a borrower’s pledge of a specific property to a lender to secure the repayment of a loan.  Secured lending is required for mortgages.

Ftih Mehari Article 69: Rendering Justice:  Efforts are made to settle all disputes and grievances out of court through witnesses, arbitration and/or oath before they go through court proceedings. For example, marriage disagreements or conflicts could be managed or contained by separating the husband and wife for a brief period of time known as “beki” to allow them to cool off and come back to their senses.  The next step is to assign the case to the most sagacious and able people who have the capacity and patience to resolve the conflict.  This is a prudential way of strategizing to move from conflict management to conflict resolution. It makes a perfect sense to first contain or manage the conflict before you attempt to resolve it because not all conflict are resolvable.

 American Version:   Settlement of Court Cases:  Court cases may be settled out of court through arbitration and/or mediation with a mutual agreement of both disputing parties. 

Courts order injunctions or restraining orders to put the conflict under control.  In other cases, they suggest separations to cool off the situation before they proceed with divorce proceedings.

Ftih Mehari Article 71:  Animal abuse/cruelty and borrowing:  Animal abuse is punishable by law under any circumstances.  Also, a horse, mule, donkey or bull can be borrowed for a short and specified period of time for transportation or plowing the field. If the animal dies within the contracted time, the borrower is not required to compensate the lender.  However, if the borrower keeps the animal more than what the contract allows for and the animal dies while in the possession of the borrower, the borrower must compensate the lender with a fair market value.

American Version:  The Humane Society prohibits the cruelty, abuse and neglect of animals and violators are punishable by law.

Ftih Mehari Article 82:   Arson– If a house is burned down by a work of an arson and results in a loss of life, the arsonist shall be given a death penalty.  But, if the loss is only property damage, the arsonist shall be obligated to pay 120 cows to the owner of the house.

The American Version:  The act of deliberately or intentionally setting fires into buildings or vehicles in the intent to cause damage is a criminal act and punishable by law.

Other practiced tradition: A person/s can pass through others property without permission to get access to his land.

American Version: Easement (right of way): An easement is a non-possessory of use and/or entry onto the real property of anther without possessing. Example: A Utility company can go to your backyard to check meter readings or fix electricity pole or going fishing by trespassing other’s property.

Other practiced tradition: People whose properties lie adjacent to waterway have the right to divert/use water. Good example:  Sheib, Ansaba River, Gash River, Chomarat, Gebena and other localities.

American Version: Riparian Rights- A system for allocating water among those who possess land along its path.

Other practiced tradition:  If a person defects or seeks refuge to the Mensa land from other parts of Eritrea, Kentebay Adi/ the community leader convenes the Adi/community to look into the matter.  He or she shall be interrogated according to the local laws.  If the defection was due to a dispute with his locality, the Adi/Baito or the villagers’ conference tries to reconcile him with his locality/Adi before they extradite him.  If they can’t reach to an agreement and they are convinced that the asylum seeker’s life is in danger or jeopardy, the Kentebay asks the Baito to find him a sponsor for a year.  The sponsor looks after him, providing him with food and shelter for a year.  After a year, his case will be reassessed.  If he has shown good citizenship during the year, he will be allowed to stay in the Adi.  In other words, he will be given a residence permit and land to toil until he becomes economically self- sufficient. Thereafter, every year, the settler gives abusinti tesmi (a liter or so of butter) to his sponsor as a way of his gratification.

American Version:  Giving asylum to refugees and issuing them green cards after a year and eventually citizenship if they demonstrate good citizenship.

Finally, Ftih Mehari concludes its articles with article # 83 which addresses an Amendment clause.   Only five articles had been amended up to the time the original book was published in 1913.  These five amendments were made during Kenteby Bimnet’s reign.  This slow and gradual process of amending laws validates the notion that bylaws or constitution is NOT a living document that can be amended frequently at a whim of individuals. It requires absolute consensus ad idem and meeting of the minds.

American laws:  Almost all bylaws conclude with Amendment article and requires an overwhelming majority to go through the ratification process.

I hope this brief translation will instigate talking points to a new level and instill the desire to explore ways to take a daunting task of translating the entire book of “ Dgim Kilie Mensa and Ftih Mehari” into English so that our youth will have a better and complete understanding of the history and ingenuity of our forefathers.

Posted in Blog.

13 Comments

  1. Dear Fakoy, thank you very much for the kind words. No need to be sorry. I know you have been recuperating the last three months from your surgery and I am so elated that you are on your way to full recovery. Also, I read your article and I thank you for the contribution. As you know, Ftih Mehari’s Tigre is sometimes very difficult to navigate through and decipher its content. Well done !! As you stated in your article, there are a lot to be written about the Mensa history and culture that we should be proud of. Unfortunately, only a handful of people made the effort to document it to a certain degree. One of these few people, aside from Carl G. Roden and et al, is Fitwerari Michael Hassama. I know his tremendous efforts of researching and documenting the Eritrean history in general and Mensa in particular firsthand because I worked with him very closely when he was working on a very interesting piece of work in English in 1980. I am not certain though if that piece of work has been completed and made it to publication. I look forward to reading your next article. Keep it up, dear brother.

    Best,
    Gabe

  2. My dear friend and brother Gebre:

    I hope my excuse will be good enough to express my delay of not reading and responding to your magnificent comparative law of Mensa and the American law. It is fascinating educational piece. It is 11 pm central time here in my neck of the woods. I just finish the well written article which consumed my attention fully. Your article was written 02/18/16. As you know I had surgery 02/11/16. I was practically less functional for two month. The third month I have been humanly functional. Therefore, I miss the opportunity to read you wonderful article.

    Simply, I would like to say to you I am sorry for the delay, but, more over, your amazing writing and educating us in capitulating manner the history of Mensa is creating another history by itself. Thank you.

    Fickak Habtes, DPA., MPH., MHSA

  3. Dear Yassin, I am very honored and humbled by your kind words. Thank you so much. Quite honestly, I don’t see myself as a “prolific” writer as you have described me. It was just a simple gesture of imparting a brief history and mystery of our ancestors that would enable us to engage in further discussions. I am certain we have members who are capable of offering praise-worthy contributions. I am confident that together we make a difference. By way of this blog, I would like to kindly ask you to continue sharing your beautiful Tigre poems on this website when time permits.

  4. Better late than never to thank Gabe for this wonderful and inspiring article. We’re glad that Gabe is one of us—MansaE and we must be profoundly proud of his intellect and of his prolific writing. Our ancestor’s proud History, Culture and Language will be alive reserved and pass-on to our new generation for generation to come simply because of you KULOT WELAD BEKIT (KWB). I thank you from the bottom of my heart.

  5. Dear ahg,

    Thank you for your thought provoking question. The Kenteby and the cheiftains ( chaqeqit) had the authority of interpreting the laws of Ftih Mehari ( see page 29, line 64). But the Kenteby had the supreme authority and he was the ultimate custodian of Ftih Mehari. Case in point, Kenteby Bimnet amended a number of articles during his time ( see page 185, article 85). Before the existence of Kenteby, the people used to select a committee, composed of elders, who had the knowledge, expertise, wisdom and a sense of fairness in resolving conflicts according to the laws of Ftih Mehari. Traditionally, when disputes arose, a special committee was tasked to settle the disputes. If they were not successful in settling the case, the parties ( plaintiff & defendant) took their case to a chieftain ( lower court) and eventually to the Kenteby, superior court if you will. It was also customary for the Kenteby to convene with a panel of subject matter expertise, sort of his council, to allow them to weigh in in the case before he rendered his ruling, albeit he had full athoritu .

    If the dispute was between individuals or groups from the two Mensa and all efforts failed to make peace between them, the case was referred to Hazaga court ( Hamassien) for review and resolution ( refer to Zanta Ertra by Fitewrari Michael Hasama). You may call the Hazaga court as an appellate court. This action was meant to find a neutral body, impartial to any group, to grant a verdict. Usually, the ruling was final and binding. Imagine, it took weeks to travel to Hazaga and this also meant to encourage people to make peace between themselves because their land that needed toiling, especially winter time, would sit idle for weeks and months and this was very precious time that they could not afford to pass.

    I hope this helps.

  6. Thank you both, Gabe and Mussie.
    Other points to wonder, if there is a dispute in any given Ftih Mehari article between two rightfully interest group in a case (e.g. between two brother), who would define the judgement meaning of Fith Mehari? Here in U.S. the Judges interpret the U.S. Constitution, particularly the Supreme Court is the final arbitrator. Still some people argue the U.S. Constitution does not give authority to the Supreme Court for defining the meaning of the constitution, but historically the Supreme Court is the final arbitrator.
    Other Follow-up questions are: Does Ftih Mehari give authority to any part of the society for interpreting the meaning of any given article? If no, do we have any as historical or stories disputes over the intended meaning of Fthi Mehari articles, and how it been settled?

  7. I would like to chime in, as an addendum, regarding the discussion of whether girls can inherit their father’s property. According to Ftih Mehari article # 25, if a father does not have boys in the family, the girls will administer and enjoy their father’s property until they get married. During their marriage, the father grants dowry to his daughters from his moveable property such as cows, cash, etc, but not land. However, the girls do inherit all their mother’s jewelry. The land and the remaining assets will be inherited by his nephews ( his father’s side). The rationale behind this decision is that the father wants to ensure that land and the remaining moveable property pass to his cousins ( again, father’s side or bet ab) so that the wealth can stay within his cousins ( bet ab) domain. Traditionally, it’s the bet ab (cousins) who contribute funds during crisis or compensating families who lost their loved ones by either an accident or deliberate action. This compensation is usually known as tariq or kahsa. Girls are not allowed to inherit land in most areas of Eritrea, except the Seraye region. In Seraye, the girls inherit land equally as the boys do.

  8. Dear ahg,

    Thank you for presenting a valid and good question. My apologies. Quite frankly, in my hasty translation, I neglected to add the section that talks about the refusal of the son to approve his father’s will. The article stipulates that in the event the son refuses to accept his father’s will, the father can deny him the share that was intended to be doled out to him. In other words, if he refuses to accept his father’s will, he would be deprived of inheritance. So, there is an incentive for him to fully cooperate and comply with his father’s wish. As you know, there is no law that is fool proof; there are always some loopholes in any law that require patching. Likewise, Ftih Mehari article #22 does not address the absence of a first born son in a family; all the children could be girls. In such instances, what would you do? I presume they might have some sort of precedent laws.

    In Western countries, societies may face legal cases that have never been tried in a court law before or never been formally addressed in their books of laws because no one thought of them. Such cases are resolved in a court of law based on legal opinions. Hence, these legal cases set precedence and are known as precedent laws or legal precedent and they will be reflected or cited in the books. Thereafter, all subsequent and similar cases will be tried following the precedent laws. I hope this helps.

  9. Ftih Mehari Article 22: What would happen if, the first born son opposed the living trust as proposed by the father? The article sounding like a father suggest his Will and first oldest son approve or disapprove the Will, the article sounds like the first oldest sons write the Wills.

  10. Thank you Yakob for the comments. We will find a way to send you a copy of Ftih Mehari in Tigre after consulting with the Shmagle of the Association and the webmaster of our site.

  11. Thank you Hallo Gabe for making our association stronger and stronger and for all your efforts to pass Mensa history to new generation.

  12. I m proud that I m from mensea, and if it is possible plz send us in our language the fthi mehari bcz those youngsters only know a little. thank for sharing things related our history nd culture.

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