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Alternative Dispute Resolution: How Africa can use its traditional knowledge to better itself.

Many African citizens have lost faith in the ability of their nations courts to provide timely or just conclusions to their grievances.[1] A 2009 Survey in Liberia found that only 3 percent of criminal and civil disputes were taken to a formal court whereas over 40 percent sought resolution through informal mechanisms.[2] The remaining 55 percent did not consult any forum at all.[3] The traditional means of solving disputes arising from a breach in relationship between two or more parties is reconciliation.[4] African societies have traditionally resolved disputes through the use of negotiated settlement.[5] But as the countries were systematically colonised the new governments controlled dispute resolution mechanisms and subsequently replaced the old customary law systems.[6]

Alternative Dispute Resolution (ADR) is an age long cultural phenomenon in most African countries.[7] Formal litigation is grounded in an adversarial process and is limited in ensuring fairness and satisfaction for disputants.[8] The process is often plagued by overcrowding and lengthy delays.[9] Courts are often overburdened and overwhelmed resulting in an inability to provide timely and effective closure. [10] ADR encompasses a series of mediation mechanisms for resolving conflicts which may be linked to but function outside of the court systems. Whereas trials are formal proceedings governed by strict rules, mediation involves third party neutrals facilitating negotiations between the disputing parties. Focus is thus on the interests of the parties themselves as opposed to their negotiating positions.[11]

ADR has helped courts reduce delays and costs to litigate, deliver justice faster and fairly and allow parties to exercise control in the resolution of their cases without feeling alienated.[12] A prime example is the Gacaca courts of Rwanda.[13] In the period between 6 April and 4 July 1994 an estimated 800 000 to 1 000 000 citizens were massacred at the hands of an ethnic motivated genocide.[14] After the genocide the government imprisoned thousands of suspects. The judicial system had not escaped decimation by the war and could not adjudicate its caseload over a realistic period of time.[15] In 2001, almost 120 000 people remained in prison awaiting trial for their participation in the genocide.[16] The International Criminal Tribunal for Rwanda (ICTR) had only produced 8 sentences and one acquittal after 7 years of work while the local courts had dealt with approximately 6000 cases.[17] Attempting to alleviate the problem the country passed the Gacaca law in January 2001.[18]

The aim was to resuscitate a traditional form of communal justice in which communal elders (elected by the community and of proven integrity) would resolve disputes by devising compensatory solutions aimed at restoring societal harmony.[19] These took place on an ad hoc basis and encouraged community participation. By the conclusion of the Gacaca court’s genocide trials in 2012, 12 000 community courts had tried and concluded an approximate number of 1.2 million cases.[20] The Gacaca courts were important in that they emphasised the country’s traditional philosophy of reconciliation and reintegration as opposed to the punitive concept of justice introduced by the colonial systems.[21]

Some of the traditional dispute resolution methods have stood the test of time surviving only as informal systems and in some instances lower courts in the judicial hierarchy.[22]  ADR is an increasingly popular complementary system to the official legal channels to resolve disputes.[23] However the concept of a dispute resolution mechanism that encompass reconciliation and reintegration are not new to Africa.[24] And it is perhaps time for the continent to adapt its traditional knowledge towards bettering mechanisms brought in by the West that have proved to be in some aspects less effective than the traditional system.

The African Institute of Mediation and Arbitration in Zimbabwe provides a wide range of ADR services  such as  mediation, arbitration, med-arb and expedited mediation or arbitration, reminiscent of the traditional approach. These services focus on providing clients with efficient and effective ADR that are impartial and safeguard confidentiality. Our vision is to provide fairness and finality in alternative dispute resolution. In this manner ADR can be used to settle labour disputes, commercial disputes, family disputes and disciplinary matters amongst others.

Article by Tanita Gandidze Legal Officer at AIMA (BSocSci International Relations, Industrial Sociology & History) University of Cape Town , (LLB) University of Cape Town.

 

[1] Ernest E. Uwazie Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability in Africa Security Brief No.16 November 2011.

[2] Ibid at 1.

[3][3] Ibid. this included cases where claimants felt the need to take justice into their own hands, often with violent consequences.

[4] F Peter Phillips, ADR in Africa Mediate.com Everything Mediation. Jasmine C Dickerson Overview of Commercial Alternative Dispute Resolution in Africa. https://www.mediate.com/articles/PhillipsPbl20120625.cfm

[5] Ibid.

[6] Ibid.

[7] Ernest E. Uwazie Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability in Africa Security Brief No.16 November 2011 at 2.

[8] Ibid at 3.

[9] Ibid.

[10] Ibid.

[11] F Peter Phillips, ADR in Africa Mediate.com Everything Mediation. Jasmine C Dickerson Overview of Commercial Alternative Dispute Resolution in Africa. https://www.mediate.com/articles/PhillipsPbl20120625.cfm

[12] Anuradha Chakravarty, Gacaca Courts in Rwanda: Explaining Divisions within the Human Rights Community. Yale Journal of International Affairs 2006 @ 113.

[13] Shanon E. Powers Rwandan’s Gacaca Court: Implication for International Criminal Law and Transitional Justice. Insights. Vol 15 Issue 17 2011.

[14] Anuradha Chakravarty,  Gacaca Courts in Rwanda: Explaining Divisions within the Human Rights Community. Yale Journal of International Affairs 2006 @ 113.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Chika Ezeanya-Esiobu @ TEDGlobal 2017 How Africa can use its traditional knowledge to make progress.

[20] Ibid.

[21] Ibid.

[22] F Peter Phillips, ADR in Africa Mediate.com Everything Mediation. Jasmine C Dickerson Overview of Commercial Alternative Dispute Resolution in Africa. https://www.mediate.com/articles/PhillipsPbl20120625.cfm

[23] Ernest E. Uwazie Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability in Africa Security Brief No.16 November 2011 at 2.

[24] Megan W Westberg Rwanda’s Use of International Justice Aftre Genocide: The Gacaca Courts and the ICTR 11/24/2010 at 337.