Customary Arbitration in an Evolving Africa


by Paul Kirgis

ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross, Paul Kirgis, and Cynthia Alkon.

August 2011

Paul Kirgis

Just as I am beginning to settle back into my bourgeois American lifestyle, I wake up this morning to find this article in the Times on a Ghanaian chief who spends most of his year in New York overseeing a taxi operation with his wife. While in Ghana last week, I had the opportunity to speak with several chiefs who participated in our mediation training. It was fascinating to speak with them about the pressures they face as their traditional dispute resolution is, fitfully, integrated into the judicial system of an emerging liberal democracy.

Ghana has long had a court system on the Anglo-American model, with a Supreme Court, intermediate appellate courts, and a variety of trial courts. The trial courts are far too few to adequately cover the entire country, however, resulting in huge backlogs. With the reach of the courts limited this way, the traditional system of dispute resolution conducted by chiefs remains vital. Every city, town, and village has a chief who sits at the top of the social pyramid for that community. Chiefs can be quite well-off in relative terms, as they receive a share of what can be considered rents or taxes on the property in their domain. Their main public responsibility is to resolve local disputes. A party with a grievance goes to the chief to request a hearing. The chief then calls the respondent to appear at the chief’s palace. The parties indicate their consent to the jurisdiction of the chief by paying a nominal sum of money. The chief holds a hearing in which the parties are entitled to submit evidence and argue their cases. Then the chief issues a ruling, which has traditionally been oral. The system is, for all practical purposes, arbitration. It is referred to in Ghana as customary arbitration.

As an assertive generation of modern lawyers and judges pushes the country to extend the reach of the rule of law and to diminish the force of traditional hierarchies built on disparities of wealth, status and power, the system of customary arbitration is being challenged in important ways. The Ghana ADR Act of 2010 includes a set of fairly detailed provisions governing customary arbitration. These provisions could end up diluting the power of the chiefs both at the stage of compelling arbitration and in the enforcement of awards. Coupled with recent judicial decisions, the ADR Act suggests that chiefs have lost much of the power they traditionally had to compel parties to appear. Further, the Act contains a rule on judicial review that seems intended to place the judiciary in a supervisory role. Section 112 of the 2010 Act allows a party to apply to a court to set aside the award on the grounds that the award:

(a) was made in breach of the rules of natural justice,
(b) constitutes a miscarriage of justice, or
(c) is in contradiction with the known customs of the area concerned.

Those are, potentially, very broad grounds for review. The chiefs that I spoke with felt that they were not given a full opportunity to participate in the ADR Act’s creation (this point was disputed by lawyers and law professors involved in the Act’s drafting and passage). They see the Act as an attack on a system of dispute resolution that has served Ghana well for centuries. The full import of the Act will not be known until the courts have the chance to implement its provisions. Clearly much remains to be done to forge a workable national dispute resolution system that respects both the rule of law and traditional social norms. But Ghana deserves credit for the audacity of its approach. Given its history of peaceful dispute resolution, Ghana is better positioned than almost any other African country to pull it off.



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Biography




 Paul Kirgis, Professor of Law; Associate Dean for Faculty Scholarship; Faculty Chair, Hugh L. Carey Center for Dispute Resolution.

Paul F. Kirgis began teaching at St. John's University School of Law in 1998.  His primary field of interest is Dispute Resolution.  He is Faculty Chair of the Hugh L. Carey Center for Dispute Resolution, which he founded pursuant to a gift from former New York Governor and St. John's Alumnus Hugh L. Carey.  

Professor Kirgis teaches Negotiation, Alternative Dispute Resolution, and Evidence.   His scholarship focuses on dispute resolution both within and outside of the traditional civil litigation paradigm.  He has written a number of articles analyzing the role of juries as decision makers in the civil justice system.  In recent years, he has turned his attention to the increasing use of arbitration and other extrajudicial dispute resolution processes as alternatives to the court system.  His articles have appeared in the Oregon Law Review, William & Mary Law Review, Ohio State Law ReviewGeorgia Law Review, and the peer-reviewed International Journal of Evidence & Proof, among others.

 


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Website: www.stjohns.edu/academics/graduate/law/faculty/Profiles/Kirgis

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