Alternative Dispute Resolution In Ghana

Ghana is located on the West African Coast between Togo and Cote d’Ivoire. Ghana gained independence in March 1957 from the then British Colonial Government. The Country covers a total land area of 238,540 square kilometres. A population census conducted in 2000 indicated a population of 18,800,000 with projected figures for 2005 as 21,029,853. The literacy rate in Ghana has been estimated at 74.8%. Religious distribution in the Country constitutes 69% of Christians 8.5% Traditionalists, 15.6% Muslim and 6.9% others. The major ethnic groups in Ghana include the Akan, Ewe, Mole-Dagbani, Guan, and Ga-Adangbe. Subdivisions of each group share a common cultural heritage, history, language, and origin. In 1960, roughly 100 linguistic and cultural groups were recorded in Ghana.

The above information shows the heterogeneous nature of ethnicity and religion in Ghana. This has sometimes resulted in heightened ethnic tensions in some areas of the Country. For example, in February 1994, more than 1,000 persons were killed and about 150,000 others displaced in the north eastern part of the country in fighting between the Konkombas on one hand and Nanumba, Dagomba, and Gonja on the other. What has been referred to and popularly called the Konkomba-Nanumba War, resulted from longstanding grievances over land ownership and the prerogatives of Chiefs.

I intend to take readers through the traditional processes of dispute resolution that have existed in the past and their impact on society, and further explain why Alternative Dispute Resolution (ADR) as a contemporary dispute resolution mechanism is best suited to the nature of the people of Ghana.

In reality, the principles of ADR have been in existence in Ghana, dating as far back as the pre-colonial days. These principles have remained embedded in various traditional norms and values of Ghanaian societies and communities. The methods of traditional disputes resolution entrenched in the social fabric of our ancestors enabled the Colonial Courts, established by the colonial administrators at the time to recognize, validate and enforce these traditional settlement outcomes in the courts. Settlement was through Chiefs, Elders and Heads of Families and Clans in each community.

The Extended Family System in the country today comprises the nuclear family (i.e. father, mother and children) and other relatives such as Uncles and Unties, Grand fathers and mothers, Cousins etc. Each Extended Family is normally headed by the eldest male called the “ebusua panyin” (Akan) – the Head of Family. Further, each Extended family belongs to a specific Clan in the community. Each Clan is normally headed by the eldest living male within the Clan or an elected elder of one family.

In the past, most disputes have been resolved through the extended family system. Parents refer disputes in the family to the Head of Family who tries to resolve the dispute. When this effort fails, the clan head is called in to help. The last resort is normally the Chief, who gives a final and binding determination.

The Extended family system continues to suffer a gradual break down due to urbanization and rural-urban migration within the Country in recent times. Most individuals and families generally have relied on the Court trial process of dispute resolution (Litigation).

However, Litigation is fast becoming unpopular due to a general negative perception of the public regarding the judicial processes in the country. Litigation has also been slow, expensive and cumbersome.

These and other factors have led to the recent initiation of a comprehensive reform programme of the Judicial Service of Ghana to reduce the backlog of cases in the courts, to significantly reduce time spent in trying cases, and also to introduce policies and processes that make justice more accessible to the poor and vulnerable in society.

Perhaps, ADR mechanisms can act as a welcome and appropriate substitute to the traditional and Extended Family methods of resolving disputes in Ghana. These Extended Family mechanisms have become outdated and almost extinct due to the gradual breakdown of the Extended Family system.

The people of Ghana have been described as a friendly, hospitable and peace-loving people. With the gradual breakdown of the Extended Family System, it is important to seek other contemporary ways of keeping the peace that has established the much needed stability and economic development. I believe this can be achieved through the introduction and practice of appropriate ADR mechanisms in the country.

ADR mechanisms have actually been in use for sometime now and are fast gaining popularity as a preferred method of dispute resolution. Parties who have gone through some ADR processes like Mediation acknowledge their satisfaction and trust in the process.

Some ADR mechanisms commonly used by stakeholders in the Country are Negotiations in its various forms, Mediation and Arbitration.

In negotiation procedures generally, offers and counter offers are exchanged by parties in dispute until a middle ground is reached where proposals are acceptable to the parties based on compromises on issues in dispute. Advocates of contemporary negotiation methods in the country are encouraging the practice of “Good Faith Negotiations” where parties negotiate in good faith by considering the interests of the other party and assist (in problem-solving fashion) the other party to jointly resolve the issues in dispute. Indeed some current legislation such as the Labour Act, 2003 (Act 651) of Ghana advocates this method of “Good Faith” negotiations.

Mediation is practiced in various forms in Ghana. Even though the concept is quite new and is fast gaining grounds, a lot more education and sensitization needs to be undertaken to make the process more popular and accepted. The mediation process is generally understood as an opportunity for parties in dispute to voluntarily select and invite a neutral third party called the mediator, to help or assist them in communicating and exploring viable options to conclusively resolve their dispute amicably.

The mediator is not a judge but has the role and responsibility of facilitating an amicable settlement brokered by the parties in the dispute. The parties remain in control of the process and determine for example, how their dispute should be settled. Mediation practice in specialist areas in Ghana includes Labour, Community, Commercial, Court-Connected or Court Annexed, Environmental and Christian.

The National Labour Commission (NLC) of Ghana (www.nlcghana.org) was established by the Labour Act in 2003 to facilitate the settlement of industrial disputes and to investigate labour related complaints, in particular unfair labour practices and take such steps as it considers necessary to prevent labour disputes in the Country. The Commission is also required to maintain a database of qualified persons to serve as Labour Mediators and Arbitrators who will assist the Commission and also the disputing parties to Mediate or Arbitrate their disputes.

Community Mediation is a new programme which has been introduced by the Legal Aid Board of Ghana with donor support from the United Nations Development Programme (UNDP). Community Mediation centres have been set up in selected regional and district capitals to encourage members of the community to resolve their disputes with the help of trained Community Mediators. The programme is currently in the pilot phase and continues to record favourable results.

Commercial and Court-Connected or Court Annexed Mediation are part of a comprehensive reforms programme of the Judicial Service of Ghana. Under the High Court Civil Procedure Rules (C.I. 47), Mediation is practiced in the Commercial Division of the High Court of Ghana as a mandatory pre-settlement procedure. The Courts Act, 1993 (Act 459) in sections 72 and 73 encourage the use of ADR to resolve disputes pending before the courts. Based on the above, the Judicial Service of Ghana has introduced a National ADR Programme as a mainstream process of resolving cases pending in court through Court-Connected Mediation. In this programme, trained Mediators are attached to selected courts to assist parties to resolve their disputes. The Magistrate or Judge, after educating the parties on the benefits of ADR and suggesting the alternative process of mediation, seeks their consent to refer the dispute to mediation. The parties are then assisted to select a mediator and attend the mediation session on an agreed date.

The process has been tried on a pilot basis with average settlement rates of about 60% of all cases mediated. Efforts are underway to replicate the programme across the country The Judicial Service is also in the process of recruiting mediators all over the country for the programme.

Finally on mediation, Christian Mediation is also developing gradually in the country. The Centre for Mediation and Conflict Resolution under the leadership of Rev. N. M. Ghartey as well as an ADR Consultancy, Gamey & Gamey Academy of Mediation (www.academyofmediation.com) both specialize in Christian Mediation. Churches in Ghana are yet to fully become associated with the principles of Christian Mediation.

Arbitration on the other hand has been in practice since 1961 after the passage of the Arbitration Act, 1961 (Act 38). The Act is still the main reference legislation that regulates Arbitration practice in the Country. Commercial and Labour Arbitration are the common forms of Arbitration being practiced in Ghana currently. However, other forms like Customary Arbitration can also be found in practice under the customary Laws as recognized by the National Constitution of the Republic of Ghana.

The National Labour Commission (NLC) and the Ghana Arbitration Centre are the main bodies that operate as centres for Arbitration practice. Of course there are individual and private Arbitrators who practice arbitration strictly under the Arbitration Act and other international Arbitration Laws.

Some Governmental Institutions by the nature of their responsibilities employ ADR processes to achieve their statutory mandates. These include the Commission of Human rights and Administrative Justice (CHRAJ), The Judicial Service, Department of Social Welfare, The Legal Aid Board, National Labour Commission etc.

Other private individuals and organizations have also contributed immensely to ADR advocacy and practice in the Country. These include the ADR Coalition of Ghana, The Ghana Arbitration Centre, Ghana Association of Chartered Mediators and Arbitrators (GHACMA), Gamey & Gamey Academy of Mediation, and West Africa Dispute Resolution Centre (WADREC).

The ADR Coalition of Ghana comprises a number of organizations involved in ADR, in a joint effort to advocate and unify the various practices and mechanisms of ADR through appropriate regulations. The Coalition is made up of the Judicial Service of Ghana, Commission for Human Rights and Administrative Justice, The Legal Aid Board, Ghana Association of Chartered Mediators and Arbitrators, the Ghana Arbitration Centre and the Attorney Generals Department.

The Coalition, with the support of UNDP, has undertaken a registration exercise of all qualified and practicing ADR practitioners in the country with the view of publishing a national directory of ADR practitioners. This will enable parties in dispute to locate and contact appropriate ADR practitioners in and around their various localities. The Coalition is also liaising with the Attorney Generals Department to prepare and lay before parliament an ADR Bill, which will be the main Reference Legislation for ADR practice in Ghana. The Bill, which is at an advanced stage of final drafting, seeks to consolidate all the Laws on ADR into one comprehensive Law.

The coalition has also facilitated the preparation of a National ADR practice manual which will serve as a national guide for all ADR practitioners in the country. A nationwide drive for ADR is necessary to further popularize the concept for acceptance by the people of Ghana.

Pieces of legislation scattered in the statute books of Ghana continue to regulate ADR practice in the country. These include the Arbitration Act, 1961 (Act 38), the Commission on Human Rights and Administrative Justice Act, Minerals and Mining Act, the Children’s Act, the Courts Act and many others.

The ADR Bill however, in the near future will be passed by the Parliament of Ghana to become the main Law that will regulate the practice of ADR in the Country.

The process of integrating the ADR concept into the Ghanaian society continues to face some major challenges. Firstly, it is competing with Litigation which is very established as the main dispute resolution mechanism in the country. As such, more effort is needed to educate and convince the Ghanaian populace to buy into the concept of ADR.

Another major challenge is the training and appropriate remuneration of ADR Practitioners. The global consensus on expected outcomes of ADR mechanisms, point to the fact that the qualification and skills of the neutrals or practitioners are a major factor to achieving good results. The training of neutrals must therefore be of the required and accepted global standards to ensure an effective and standardized practice of ADR in the country.

Even though ADR advocates continue to say that ADR mechanisms are cheaper than the court trial processes, it must be noted and accepted that ADR practitioners are professionals in their specialized fields of practice and hence must be remunerated as such. This argument must be made to clarify the misconception that ADR practice is highly voluntary and sacrificial in nature and hence practitioners do not have to be remunerated as pertains to other professions. This assertion is not a clear fact but has been implied in general pronouncements made by some stakeholders, vis-à-vis the appropriate remuneration of neutrals.

Adequate and intensive ADR advocacy and public sensitization programmes must be undertaken to further establish the practice of ADR in Ghana. Even though some advocacy continues to be done, a lot more is needed to fully achieve the level of acceptance and popularity of the ADR concept of Dispute Resolution.

The Future of ADR in Ghana looks very promising. Settlement rates are favourable and acceptable. The process continues to be appreciated by parties who experience it. It is also very suitable to the nature of the people of Ghana. Above all, it enhances access to justice by persons who are unable to access justice through the established court trial systems. The process is more affordable and flexible and hence easier to undertake in all communities in the country. ADR is indeed Good News to the Ghanaian.

                       

Senyo M. Adjabeng

Senyo M. Adjabeng is a Labour Mediator and Arbitrator (ADR Consultant) in Accra – Ghana.  He is a certified trainer and holds a Post Graduate Degree in Conflict, Peace and Security Studies, and Post Graduate Certificates in Business Administration and Governance and International Diplomacy.  He is a member of the Institute… MORE >