ABSTRACT

This dissertation studied the need for contemporary mediation in Africa, specifically Ghana, and the effectiveness and efficiency of contemporary mediation in resolving conflicts in Africa. The study adopts a qualitative method, using both secondary data and primary data, which were gathered from the target population which consists of practitioners of ADR, academics with expertise in mediation and students of the University of Ghana. The findings of the study indicate that the administration of mediation and other ADR methods have been successful in improving the judicial system of Ghana and promoted peace and stability in various Ghanaian communities. An example of success chalked by mediation and other ADR methods include the successful resolution of major conflicts such as the Andani and Abudu conflict of the people of Dagbon state, leading to the installation of a new Dagbon King, Yaa Naa Abubakari Mahama, in January 2009. Despite the successes of mediation in Ghana, the study also found that mediation has not been successful in its attempt to resolve some disputes in Ghana; noticeable among them are the Kokomba and Nanumba conflicts in Northern Ghana and the Nkonya and Alavanyo crisis in the Volta region. The unsuccessfulness of mediation in resolving conflicts in Ghana is attributable to different challenges which are classified into three categories namely: Practitioner Challenges, Regulatory Challenges and Client Challenges. In order to make the administration of mediation more effective and efficient in resolving conflicts in Ghana, the study recommends that the government of Ghana should come out with an adequate remuneration package for Mediators and other ADR practitioners so as to get the best from them. The government should also adopt a project to comprehensively sensitize and educate the Ghanaian populace about the availability and the benefits of using mediation and other ADR methods in conflict resolution. Thirdly, the government of Ghana should come out with a regulatory body that will harmonize the activities of all the institutions that administer mediation in the country. Finally, the study also recommends that mediators and other ADR practitioners should fully comply with the code of ethics of ADR so as to gain the trust of community members, business men and the entire Ghanaian populace in the usage of mediation as an effective conflict resolution mechanism in Ghana.

CHAPTER ONE INTRODUCTION

       Background to the Study

During and immediately after the Cold War, there have been major challenges and attacks on existing state authorities and these caused several states in the international system to lose de facto control over parts of their territory.1 Due to these attacks on de facto governments, several conflicts and fighting had occurred along ethnic and territorial lines across the globe during and immediately after the Cold War. Most of these conflicts, however, took the form of intra-state or civil conflicts as compared to the inter-state conflicts that occurred during World War One and World War Two. The civil wars of the post-Cold War system caused deadly damages to humanity, properties and had long lasting negative effects on the development of several countries in the international system.2 The Bosnian War of 1992–1995; the Albanian civil war of 1997; the Kosovo War of 1998–1999; the Rwandan genocide of 1994; the Liberian Civil Wars of 1989 – 1997 and 1999 – 2003; the Ivorian wars of 2002 – 2007 and 2010 – 2011 are all examples of post-Cold War civil wars that led to destruction of lives and properties in the international system.3

In sub-Sahara Africa, the trends of intra-state or civil wars have drastically subsided over the years. Ethnic conflicts which have in the past led to the destruction of lives and properties of African countries have drastically reduced. Although intra-state or civil wars have subsided in most African societies, family, communal and industrial (organizational) conflicts are persistently on the increase.4 As individuals interact with each other in their families, communities and industries, disputes lead to diverse conflicts among people of the same family, community or industry.

Generally, family, communal or industrial conflicts in most African countries are resolved or managed through the orthodox court system. The orthodox court system however has several setbacks such as corruption, backlog of cases, delays in justice procedures, technicalities (difficulty in understanding) and expensiveness of arbitration process which undermines the ability of the court system to effectively resolve the numerous family, communal and industrial conflicts across most African societies.5

In addition to the above setbacks of the orthodox court system, family, communal and industrial conflicts, unlike intra-state conflicts, are more relational and occur between people who have to live with each other in the same family or community or industry after the conflict has been managed or resolved. The emphasis on the orthodox court system is, however, to ensure justice without necessarily leading to true peace or reconciliation between the conflicting parties. This focus of the orthodox court system has therefore caused many divisions among members of the same families, communities and organizations to the neglect of finding true peace and reconciliation between disputants which is cherished by African societies.6

As a result of the setbacks of the orthodox court system, coupled with the fact that the orthodox court system does not encourage true peace or reconciliation of disputing parties, some think- tanks, international organizations and governments across the international system suggested mediation as an alternative system of addressing and managing conflicts. For example, foreign direct investors, governments and foreign embassies which operate in different countries are much concerned about the length of time involved in the adjudication of industrial cases in  courts and how this affects the operations of their businesses in foreign countries. Foreign direct investors, therefore, prefer the use of mediation in resolving industrial conflicts as compared to the orthodox court system due to the delay that is associated with the orthodox court system.7

Mediation is defined as a process in which an impartial third party (a mediator) facilitates the resolution of a dispute(s) between two or more parties by promoting the parties voluntary agreement (or self-determination) of the dispute(s).⁸

Focusing on conflict situations in Ghana, it is important to state that although Ghana is relatively a peaceful country, there is ascendency in the trend of family, communal and industrial (organizational) conflicts in the country.9 As individuals interact among themselves in their families, communities or industries, they offend each other and this leads to conflict in most Ghanaian societies. The conflicts that occur in the contemporary Ghanaian system are, therefore, more relational as compared to civil conflicts which may occur on ethnic basis and, as a result, the disputants may not have direct relations among themselves. It is, however, unfortunate that most of the conflicts that occur on family, community and industrial basis in Ghana are sent to the orthodox court system to be resolved and some of these cases remain in court as long as ten years. Due to challenges such as back log of cases, delay in court proceedings and the failure of the orthodox court system to promote true peace and reconciliation between disputing parties, the orthodox court system falls short of ensuring sustainable peace among disputants in most Ghanaian communities. This, therefore, led to the introduction of mediation into the Ghanaian legal system as an alternative dispute resolution mechanism. In Ghana, an Alternative Dispute Resolution Act, 2010 (Act 798) was enacted in 2010 to improve access to relatively cheaper and quicker justice. It was also to ensure a more affordable, amicable and reconciliatory peace and justice and to also reduce the setbacks associated with the court system in Ghana. It is important to mention that certain individuals such as Justice Nene A.O. Amegatcher, Professor Henrietta Mensah-Bonsu and institutions such as the California State University and USAID have made significant contributions to the establishment of Alternative Dispute Resolution in Ghana. They

trained chiefs, organizations and members of the society on how to use ADR methods to resolve their conflicts.