Highlighting Coverage of Alternative Dispute Resolution in Ghana

 Jacqueline Nolan-Haley, Mediation and Access to Justice in Africa: Perspectives from Ghana, 21 Harv. Negot. L. Rev. 59 (2015).

Summary and Analysis by Anna Grushetsky

            Some African countries are experiencing what scholars have dubbed civil justice “revolutions.” [1]   Specifically, these countries are embracing previously overlooked forms of alternative dispute resolution (hereinafter “A.D.R.”) processes.[2]  Nolan-Haley focuses her analysis on Ghana, a burgeoning democracy that leads sub-Saharan African countries in its implementation of formalized A.D.R. processes. [3] Ghana, as a case study, illustrates the complex interactions that may arise between traditional methods of dispute resolution and newer methods of formal A.D.R. as they are transmuted into systems implementing aspects of both traditional cultural and formal governmental origin.[4]  Improving efficiency in court systems is key in enhancing perceptions of justice and encouraging foreign investment in developing economies such as Ghana, especially where international trade demands quick resolution of commercial disputes.[5]  Diverse methods of dispute resolution abound in African cultures and African commentators have noted that A.D.R., as practiced in Western cultures, traces a portion of its origin to African culture .[6]  As formalized A.D.R. systems replace some aspects of traditional forms of negotiation and dispute resolution in African countries, some citizens continue to use traditional dispute resolution alongside formal systems. [7] Others even rail against the implementation of formal A.D.R., suspicious of legal systems that have tended to erode rather than enforce citizens’ rights, particularly in the shadow of colonialist histories.[8]

Ghana continues to develop its “dual” legal system by including customary dispute resolution and Western A.D.R. principles.[9] These two systems have coalesced in a pluralist system which implements both traditional and formal dispute resolution processes in evolving ways.[10] Traditional dispute resolution in African cultures is typically anchored in concepts of consent and reconciliation.[11] Community leaders often play roles similar to those of mediators, but more similarly to those of arbitrators, in the settlement of disputes.[12]  While consent between the negotiating parties is fundamental to this customary process, community interests are also weighed in the balance, and the local community ultimately validates the result of any negotiation process.[13]  Reconciliation is also key in customary dispute resolution processes, where offenders violating local social norms and laws may be required to apologize, ask forgiveness, and make restitution.[14]  .

Early attempts at implementing Western A.D.R. processes in African countries, which coincided with internationally-sponsored attempts to solve ethnic conflicts in post-colonial states, were largely unsuccessful.[15]  Other non-governmental organizations such as the World Bank and American Bar Association have been active in bringing A.D.R. training programs to Africa.[16] Many formal African justice systems incorporate mandatory A.D.R. into civil litigation.[17]

Implementation of Western forms of A.D.R. processes in African justice systems has not been free of criticism; some have criticized the implementation of Western A.D.R. as global imperialism Which inappropriately subjugates African values to the Western ideals of justice.[18]  Some court-mandated A.D.R. processes in African countries suffer when cultural norms and values are disregarded, such as when a culture highly respectful of elders may resist participating in a mediation presided over by a youthful, freshly-trained lawyer.[19]  Other critics have called for the maintenance and preference of traditional forms of dispute resolution in Africa, and still more critics have advocated for a blend traditional and modern forms of A.D.R. that incorporate cultural context and values into a hybrid with Western A.D.R..[20]

Undoubtedly, some aspects of customary and Western A.D.R. do clash, such as when African values of reconciliation, and emphasis on community interests and parties’ consent conflict with traditionally Western values of self-determination, individualism, and autonomous choice.[21]  Nolan-Haley notes that these differences are not static but are general, evolving norms of complex cultures.[22] African mediation tends to differ from traditional Western mediation as each emphasizes different roles of the mediator: in Western cultures, the ideal mediator is truly neutral, whereas an ideal mediator in African traditions may be a moral or wise person who plays a more active and directorial role in guiding parties to a just resolution.[23]  Ghanaian mediators are required to “facilitate and counsel” parties into a resolution, garnering authority from the community to actively direct resolutions.[24]

Individualism is stressed in Western cultures and is thus reflected in Western styles of mediation. [25]  For example, most western dispute resolution programs are designed to respect the parties’ autonomy and  self-determination.[26]  By contrast, in a more communal culture such as Ghana’s, “the individual does not exist outside the group,” and an “honorable compromise” is more important than the satisfaction of the mediating parties in reaching a resolution.[27]  Tension also exists between Western values of confidentiality in A.D.R. processes contrasted with African value assigned to accountability to one another and to the public in settling disputes.[28]

Ghana has institutionalized mediation in both political and legal disputes.[29]  It has developed institutions on the cutting edge of A.D.R. scholarship, such as the Ghana Arbitration Centre.[30]  Ghana has established National Peace Councils to mediate intra-state conflict and has passed a comprehensive A.D.R. law in 2010 and A.D.R. has been incorporated into professional legal education.[31] In its colonization, Ghana was imbued with the English common law and with it Western adversarial legal processes by Anglo-centric governments. [32]  Ghanaian cultural traditions were preserved despite colonization, and traditional dispute resolution has retained influence in some spheres.[33]  Customary Ghanaian dispute resolution was typically conducted by chiefs, queen mothers, clan heads, and other communal leaders; today, chiefs continue to occupy positions of influence in local justice administration throughout Ghana.[34]

The Ghanaian Chief Tenancy Act gave chiefs and, later female community leaders called queen mothers, primary authority to solve disputes through customary arbitration methods.[35]  Some Ghanaians struggle to access formalized justice through adversarial court system due to backlogged dockets, high costs, and the negative attitudes of the judiciary toward traditional processes.[36] Ghana has responded by aggressively adopting A.D.R. through a series of rapid legislative and policy transitions.[37]  In 2010, comprehensive A.D.R. legislation was passed in the Ghanaian Alternative Dispute Resolution Act, bringing statutorily governed mediation into the legal mainstream and cementing the importance of A.D.R. in Ghana’s justice systems.[38]  The Act was praised for its inclusion of traditional processes; offering a “checklist” to assist customary mediations and to reduce the number of agreements later invalidated through the court system.[39] Some commentators were apprehensive about the prospect of customary systems being displaced by Western A.D.R.[40]

Civil litigation in Ghana mostly centers on real property, commercial, and property disputes.[41]  Cases involving land disputes are particularly difficult to settle, partly because land holds a distinct cultural significance in may African cultures, and thus the loss or gain of land will have a serious bearing on the prestige of the landowners.[42]  This significance causes land disputes to be less successful in reaching mediated settlements.[43]  Many litigants in African countries have expressed a more generalized resistance to the entire mediation process itself,  as compulsory participation may cause reactionary resistance among mediating parties accustomed to valuing consensual negotiation.[44]  Some scholars express concern with Ghanaian mediators behaving in ways that could be perceived as too coercive in pushing for compromise.[45]  The mere cultural foreignness of a neutral mediator who conducts confidential caucuses with one’s opponent  causes discomfort for some Ghanaian mediating parties.[46]

 

 

[1] Jacqueline Nolan-Haley, Mediation and Access to Justice in Africa: Perspectives from Ghana, 21 Harv. Negot. L. Rev. 59 (2015).

[2] Id.

[3] Id. at 61, 64.

[4] Id. at 61, 64.

[5] Id. at 61.

[6] Id. at 62.

[7] Id.

[8] Id. at 62.

[9] Id. at 64.

[10] Id. at 68.

[11] Id. at 69.

[12] Id.

[13] Id. at 70.

[14] Id.

[15] Id. at 71-72.

[16] Id. at 72-73.

[17] Id. at 74.

[18] Id. at 76.

[19] Id. at 75.

[20] Id.

[21] Id. at 77.

[22] Id.

[23] Id. at 78.

[24] Id.

[25] Id. at 79.

[26] Id.

[27] Id.

[28] Id. at 80.

[29] Id. at 82.

[30] Id. at 71

[31] Id. at 82-83.

[32] Id. at 83.

[33] Id at 84.

[34] Id.

[35] Id. at 84-85.

[36] Id. at 85.

[37] Id. at 86.

[38] Id.

[39] Id. at 87.

[40] Id. at 88.

[41] Id. at 89.

[42] Id. at 89-92.

[43] Id. at 93.

[44] Id.

[45] Id. at 95.

[46]See id. at 98-99.

[47] Id. at 105

[48] Id.

[49] See id. at 106.

[50] Id.