ABSTRACT
Despite great strifes at resolving civil wars and political crisis in West Africa, interpersonal and group conflicts continue to threaten the stability and security of states within the sub region. Contemporarily, these states are described as having weak institutions, poor infrastructure and poor human resource capacity necessary for resolving the root sources of the conflicts. Given the aforementioned structural and agency difficulties, the study set out to investigate the efficiency of ADR in West Africa employing Ghana as a case study. Donor partners such as the UNDP and the World Bank have prescribed ADR as a solution for managing the dysfunctional nature of the conflicts with its multifaceted mechanisms. In Ghana, since 2005, the Judicial Service has adopted ADR mechanisms as part of its comprehensive structural reforms. The ADR Act 798(2010) is the legal framework for ADR aimed at promoting justice for all by delivering timely, quicker and more affordable services to help restore faith in the formal justice delivery system. The study proved that largely ADR is popular among Ghanaians and is effective in resolving interpersonal and group conflicts by restoring, reconciling and repairing strained relationships among disputants. Disputants are prepared to recommend ADR to others once their case is resolved. Despite highlighting the advantages of ADR, its application remains constrained because of limited resources, insufficient centres, continuous political interference and lack of trained professionals. Given the immense advantages of ADR mechanisms, the study recommended more education and sensitization among Ghanaians, further training especially among prospective lawyers, reviewing the laws to amend the provision on the governing board and disassociate ADR from politics.
CHAPTER ONE INTRODUCTION
BACKGROUND TO THE STUDY
In the early post-cold war era, the West African sub region experienced series of civil wars as seen in countries like Liberia, Sierra Leone and Ivory Coast. The civil wars, which started in the 1960’s, lasted for years and led to the loss of millions of lives.1 Contemporarily, the civil wars have largely subsided within the sub region but even the more stable countries like Ghana, Nigeria and Senegal continue to experience civil conflicts such as ethnic, religious, commercial, political and chieftaincy conflicts.2 In Ghana, communal, chieftaincy and religious conflicts have resulted in disruptions of properties and lives. For instance, the Konkomba –Nanumba conflict and the Dagbon Chieftaincy conflict in the north-eastern part of Ghana in 1994 saw more than a thousand people dead.3
Equally, West African communities and societies experience natural resource conflicts, which often border on the joint use, resource depletion and border conflicts.4 Ghana and Ivory Coast had contested their maritime boundaries largely due to oil and gas that is found in the Gulf of Guinea.5 Climate change, ecological degradation and natural resource depletion are at the centre of the Fulani herdsmen farmer conflicts in the littoral West African states.6 Conflicts also often occur between private companies because of conflictual interpretation of contracts and challenges associated with carrying out their daily commercial activities.7 Natural resource and commercial conflicts in particular are often not amenable to the orthodox judicial system. This is because the courts do not often afford the privacy, quick adjudication and conciliatory measures that are
essential for the continued interdependence of communities and businesses that have to depend on each other after the resolution of the conflict.
A common source of goal incompatibility in West Africa is the siting of administrative capitals and other institutions especially when it comes to where their headquarters have to be located.8 This has resulted in inactivities or delay in the implementation of government policies and in serious cases undermines government’s legitimacy, fuels violence and heightens disrespect for the rule of law. Again, a major source of conflict and lack of social cohesion in West Africa is group, however, defined and interpersonal conflicts. The group conflicts are closely related to communal conflicts. The interpersonal conflicts often border on relations, property and familial conflicts such as marriage, custody and property ownership issues. Traditional authorities, government agencies and non-governmental organizations are some of the institutions that manage these conflicts. However, the most common medium of resolving interpersonal and group conflicts in West Africa is mainly through the orthodox court (hereinafter referred to as courts). Nevertheless, the courts are particularly weak in handling these conflicts since they are not conciliatory and often justice is served without peace.9
At the courts, the above conflicts are often resolved through judgements that take the form of winner takes all. Although justice is attained, peace is, however, not achieved.10 Given the resource-constrained circumstances such as non-availability of sufficient administrative staff and logistics, the prosecution of conflicts at the courts are often delayed leaving a backlog of cases that constrain the timely and efficient delivery of justice.11 Some cases have delayed at the law courts for over a decade.12 Such delays often influence disputants to take the law into their own hands and as such conflicts that have laid dormant sporadically occurs. Again, justice at the law court often depend on parties’ access to legal representation and as such, the cost of prosecuting conflicts
at the courts are quite expensive. 13 The procedures are also cumbersome and unfriendly to the ordinary citizen due to the anglicized nature of the courts, especially; the use of English during proceedings at court prevents people from resorting to such means in resolving their differences. Of late, there has been accusation of corruption with justice being sold to the most influential bidder.14 For the above reasons, since the 1990’s Alternative Dispute Resolution (ADR) has been increasingly sold as a solution to the West African public.15 The case for the institution of ADR has been promoted by the United States Agency for International Development (USAID) and the European Union (EU) for the institution of ADR to speed up the resolution of commercial disputes, strengthen governance and promote effective delivery of justice. The argument is often made that the weak, corrupt and nostalgic nature of the judicial court in West Africa serve as a disincentive for attracting Foreign Direct Investment (FDI) for the West African sub region.16 This is because corporate entities often prefer a speedy and amicable settlement of commercial dispute to prosecution at the law court
Menkel –Meadow therefore argues that due to the psychological, exacerbating and dysfunctional nature of conflict, it calls forth the need to find creative ways of managing conflicts to prevent them from escalating.17 Furthermore, it is believed that such creative ways as ADR would promote greater reconciliation and restoration among disputants especially when they continue to be interdependent on each other. It is often said that ADR is not a new concept as it shares certain key philosophies with the traditional African method of resolving conflicts. Both methods thrive on trust, transparency, relationship building and above all reconciliation, which are very important in a culture oriented sub region where societies continue to build stable and enduring social systems. Ahorsu and Ame, posit that traditional African traditions such as kinship systems are still strong in Africa and have remained unchanged with majority of the citizens’ resorting to their
traditional rulers to have conflicts resolved.18 Furthermore, given the limited reach of African families and traditional authorities to reap the full benefits of full-scale court processes and the persistent traditional outlook of African societies, it is prudent to blend both traditional and western methods of mediation in resolving civil conflicts at various levels of societies synonymous with the culture of the citizens.19 According to Atua, ADR is not meant to replace the judicial system but only act as an alternative to full-scale court processes. He argues that in traditional African societies where cultural norms often subordinate the rights of women especially in the traditional Ghanaian communities, ADR can aid in protecting their rights since its primary objective is to promote justice for all.
Subsequently, since the early 1990’s, USAID and EU through the pioneering effort of Professor Ernest Uwaize has promoted ADR in West Africa. In Ghana, he worked through such institutions as the Law Faculty and the Legon Centre for International Affairs and Diplomacy (LECIAD) of University of Ghana, Ghana Judicial System and the Bar to promote ADR in West Africa and around the world. Since 1996, ADR has been practiced in several levels in Ghana with the help of the USAID and prominent persons such as the former chief Justice of Ghana Her Ladyship Georgina Wood, Prof Henrietta Mensa – Bonsu and Nene Amegatcher. Ghana consolidated its ADR when it passed into law the ADR Act of 2010(278).
Today, Ghana boasts of such commendable ADR mediation centres such as the Ashaiman Mediation Centre, Centre for Peace, Gamey and Gamey Mediation Group and Marian Conflict Resolution Centre, which mediate cases across the length and breadth of Ghana. The former Chief Justice of Ghana, Her Ladyship Georgina Wood during a lecture at the California University Peace Awards Dinner (2013) asserted that indeed ADR has become an integral part of Ghana’s legal and judicial system And that, ADR is providing easier and faster mechanisms for conflict resolution.
This has helped reduce the caseloads associated with the orthodox judicial systems. ADR has served as an attractive economic feature for development by attracting corporate investment in Ghana. On the other hand, Ahorsu and Ame argue that though the ADR Act (798) 2010 makes room for traditional modes of mediation, what obtains in Ghana is purely a western concept of ADR. They further argue that West African societies despite social change and globalization are still very traditional and cultural in outlook and practice. Therefore, there is the need to incorporate traditional African mediation values into the practice of ADR in order to achieve greater efficiency in West African societies, where levels of consciousness differ from place to place, community to community and person to person. Given the debate surrounding the feasibility, effectiveness and efficiency in the institution of ADR as a conflict mechanism institution in West Africa, this study evaluates how effective ADR has been so far as a solution to group and communal conflicts in Ghana.
