By CHIPOYA TEDDY
ABSTRACT
This study undertakes a critical examination of African traditional Alternative Dispute Resolution (ADR) mechanisms in contrast with the Western paradigms. In this writing we shall define, analyze and highlight ways in which African Dispute resolution mechanisms can be institutionalized in modern day legal system. African traditional dispute resolution mechanisms are vital components in accessing justice, it is imperative to revisit their core characteristics and contextualize them within broader African legal systems.
INTRODUCTION
ADR is an all-encompassing term covering various processes including negotiation, mediation, arbitration, conciliation, adjudication, expert determination, early neutral evaluation, and Traditional Dispute Resolution Mechanisms (TDRMs)., Traditional Dispute Resolution Mechanisms refer to method traditional African communities had established institutions and mechanisms that effectively managed and resolved conflicts among their people, reflecting their unique socio-political structures and values.
Traditional African communities had established institutions and mechanisms that effectively managed and resolved conflicts among their people, reflecting their unique socio-political structures and values. Since Africans have always been peace loving people, they led a communal way of life. Even today, Africans value peaceful coexistence. As a Consequence they developed certain principles that were ideal in managing conflicts, which have been in application in Africa for a long period. However, Wesley Maraire, found that; “scholars have predominantly focused on adopting and adapting Western ADR paradigms in African jurisdictions, often neglecting to examine the origins of these models, which have been traced by anthropologists to the African continent.”
However, with the different social interaction and disputes the formal justice system is hence challenged, as the majority of Africa’s one billion population relies on indigenous dispute resolution processes to address their social and legal issues. These traditional mechanisms, relegated to informal status during the colonial era for failing to meet imposed standards.
CONTEXTUALIZING AFRICAN TRADITIONAL DISPUTE RESOLUTION MECHANISM TO THE MODERNIZED JUDICIAL SYSTEM
Any effective ADR system must be structured in the way that it is directly proportional to the way of life of the people who seek it’s guidance and counselling. African society particularly, have indigenous yet diverse principles that regulate there interaction, we believe in harmonic society. Hence there is a prevailing principle of “Ubuntu” the Swahili term “utu” meaning “Humanness” or “personhood”.The traditional system is rooted in serving all parties to the dispute a win-win solution and at the same time administering fair justice in a dynamic yet culturally appropriate manner, to archive this, several steps must be taken which include:
- Establishing and empowering Traditional Dispute Resolution based Institutions
- Enactment of legislation for indigenous dispute resolution Mechanism
- Creating incentives for stakeholders
- Tracking Progress: Monitoring ADR Effectiveness and Efficiency
- Integrating African Traditional Dispute Resolution in Early Childhood Education
Establishing and empowering Traditional Dispute Resolution based Institutions
Incorporating Traditional ADR into trial proceedings, leveraging the respect accorded to traditional and religious leaders in communities, could enhance its efficacy. This approach would recognize the value of indigenous conflict resolution practices and promote more inclusive and culturally sensitive justice systems, and this institutions include:
The family and extended family or neighborhood has been a key institution in conflict management and the husband is the overall administrator of family matters and property including bride price, inheritance and where applicable, land issues.
The clan is another institution in the management of conflicts traditionally. Clan members are also guided by certain rules And regulations that are key in avoiding conflicts, for instance, that member of the same clan Cannot inter-marry but can marry from other clans.
Council of Elders is the most common institution, in Kenya Among the Pokot and Marakwet the council of elders is referred to as kokwo and is the highest institution of conflict management and socio-political organization. It is composed of respected, wise elderly men who are knowledgeable in the affairs and history of the community. And finally
The Tribe is at the top of the hierarchy of most traditional African communities‟ socio-political Organization. It is the custodian of the community land, resources and customary law. It also brokers inter-community peace pacts, negotiate for peace, grazing land, water and other resources and in compensation arrangements.
Enactment of legislation for indigenous dispute resolution Mechanism
It’s a major integrating step to enact a provision that provides for traditional dispute resolution in the constitution, for example, Kenya’s constitution and the constitution of Zambia provide that:
“article 118(2)(d) provides that alternative forms of dispute resolution, including traditional dispute resolution shall be promoted provided that the traditional dispute resolution Mechanism shall not (a) contravene the bill of rights, and/or (b) be inconsistent with the provision of the constitution or other written Law or be repugnant to justice and morality.”
This is the major step in contextualizing traditional alternative dispute resolution, for they are formally recognized by the supreme law of land. Furthermore, since customary law is unwritten law, the legislature are rather reluctant in enacting statutory specifically for regulating customary law, However in criminal and civil procedure there has been a transition of justice where the court adopted these system of dispute resolution among other reason to reduce the back load of cases.
For instance in Zambia High Court Rules and Subordinate Court Rules provides for court annexed mediation it is mandatory that at the scheduling conference and before an action down trial, a judge shall refer any action amenable to mediation to court annexed mediation, except for a case involving a constitutional issue, the liberty of an individual, an injunction or where the court considers the case referable.
Creating incentives for stakeholders
In this case, for African Traditional Dispute Resolution ADR to be adopted, it should offer an additional tool to enhance the efficiency of their practice, potentially increase revenue, And achieve greater satisfaction for both the lawyer and Client. For instance in Zambia, By the provisions of rule 39 Of the Legal Practitioners Rules, it is a Mandatory obligation imposed on a lawyer To “encourage clients to reach a solution By settlement outside court rather than Start legal proceedings”. As such, advising A client to settle outside court inevitably Means advising the client on the available ADR options. The ultimate test of an ADR system will be how much it affects a country’s conflict vulnerability and mitigation capability.
Tracking Progress: Monitoring ADR Effectiveness and Efficiency
To maximize the efficiencies And complementarities of ADR with the official judicial process, a systematic monitoring process should be Established. This includes measuring key qualitative and Quantitative data that would then lead to adjustments in The scope and focus of ADR efforts. Indicators include ADR usage, percentage of cases filed and processed Through ADR vs. court litigation, the average time Spent on a case, the number of successful ADR settlements with agreements reached, the number of qualified ADR practitioners and trainers, the number of ADR Institutions and services in the country, community acceptance, and level of service satisfaction by disputants.
Integrating African Traditional Dispute Resolution in Early Childhood Education
ADR techniques to address youth unrest and violence based on peace education and restorative justice principles should be integrated into school programs. One pilot project in the Niger Delta region of Nigeria in which schools launched peer mediation programs demonstrated reductions in acts of school indiscipline (fights, drug use, bullying, cheating) and gender biases, an increase in school attendance and critical skills (communication, problem-solving, leadership), and popularity among teachers, principals, students, and participating communities.
CONCLUSION
In my submission, African traditional resolution mechanisms continue to play a vital role in contemporary society, as evident in family gatherings aimed at resolving interpersonal, family, and communal disputes. As these mechanisms are governed by customary law, which is largely unwritten, effective integration into modern systems would require legislative adoption of core indigenous Alternative Dispute Resolution (ADR) principles, such as “ubuntu.”
About Author:
TEDDY CHIPOYA IS A THIRD YEAR LAW STUDENT AT THE COPPERBELT UNIVERSITY HE WRITES THIS ARTICLE IN HIS OWN PERSONAL CAPACITY.
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The author was project director of the initiative, which was funded by the JAMS Foundation
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WEBSITE
Wesley.maraire@gmail.com; wesley.maraire@uib.no