How is Justice Administered in Africa through ADR Mechanisms: A Brief Introduction
By Shelly Freeman
In the western world the use and practice of Alternative Dispute Resolution, hereon in referred to as ADR has become more popular, it is used as a means of the promoting the access to justice especially in developing countries. ADR is the process whereby easy access to justice is ensured, through the process of offering mediation mechanisms in order to solve conflicts outside of the usual court litigation process. [1] In Africa, ADR mechanisms are being incorporated within courts and tribunals. However, many African citizens have lost faith in the ability of their nations’ courts to provide timely or closure to their grievances. [2]
In Lagos, Nigeria an institution was established under the Lagos Court of Arbitration Law, no 17,2009 named the Lagos Court of Arbitration. It was established to provide institutionalised arbitration and ADR services. [3]
Moving on,the formal system of justice in Africa has many weaknesses, the system tends to have a win or lose approach. Due to the fact that seeking justice is so expensive, thereby privileging the rich over the poor. Furthermore, many countries in Africa face the problem of having high hospital bills during the inspection of victims, this may cause the delay of hearings and the enforcement of cases in court.[4] For instance in Ghana, the way the law is applied and the law itself is said to be beyond the reach of understanding by the ‘ordinary person.’ Causing the people to feel estranged from the process of litigation. [5]
There are numerous weaknesses which lie within the traditional justice systems of numerous developing countries. The weaknesses shed further light on how important the access to justice is, especially for individuals whom are unable / denied the same opportunity to make use of the courts on an equal basis in order to obtain justice, especially through the means of ADR. [6] ADR has not only had a huge impact on the Western justice system, as the time goes by, it is being recognized and used more globally as well. Therefore, also having a strong hold on developing countries in aid of promoting access to justice, encouraging the rule of law, human rights, securing peace continuous development. [7][8]
As mentioned previously, the formal justice system did not give fair and equal treatment to everyone that wanted to avail of the system. ADR can contribute to building an effective dispute settlement system, also aiding in bridging the gap between the formal legal system and traditional modes of the African justice. ADR serves as peacebuilding, conflict resolution and development tool for the developing countries.
Therefore, having the resort of ADR available can be deemed as an opportunity to expand the frontiers of justice to all and enable individuals to attain a form of justice that is fair, accountable, and most importantly effective. However, the ADR process in Africa has been adjusted more towards the management of case loads and the safeguard of the economic rights of foreign investors.
Moreover, it has not been used as a means of promoting human rights. Hopefully, as time goes by ADR in Africa will not only be used as providing a more accessible process for disputes, but it can also be used as an educative tool. The Africa Arbitration Academy (AA) was introduced in order to project the arbitration industry and jurisprudence in Africa.[9] The initiative was mainly to showcase and educate the international community using some of the intelligent and experienced arbitration practitioners. [10]
Furthermore, the future is becoming more intelligent in the sense that technology is advancing and developing by the day. Africa as a whole has the opportunity to transform within the legal sector with the use of digital technology. Artificial intelligence (AI) is a quickly developing technology which can be utilised in Africa which also is an exponentially growing market. An example for an environment in which companies focused mainly on AI and are able to thrive is South Africa. The country has a growing tax-based economy in cities like Cape Town and Johannesburg.[11]
However, the aforementioned initiative only has potential for growth and expansion provided that infrastructure focusing on digitization and Artificial Intelligence is available on the continent.
[1] (Africacenter.org, 2021) <https://africacenter.org/wp-content/uploads/2016/06/ASB16EN-Alternative-Dispute-Resolution-in-Africa-Preventing-Conflict-and-Enhancing-Stability.pdf> accessed 15 February 2021.
[2] ibid
[3] (2021) <https://www.lca.org.ng/about/https://www.lca.org.ng/about/> accessed 18 February 2021.
[4] Gender Justice in Ghana Through Court-Connected ADR' (Mediate.com, 2021) <https://www.mediate.com/articles/adjabengS4.cfm> accessed 15 February 2021.
[5]ibid.
[6] 'Access to Justice Practice Note | UNDP' (UNDP, 2021) <https://www.undp.org/content/undp/en/home/librarypage/democratic-governance/access_to_justiceandruleoflaw/access-to-justice-practice-note.html> accessed 13 February 2021.
[7] Cappelletti, Alternative Dispute Resolution Processes within the Framework of the Worldwide Access to Justice Movement, 56 the MoD. l. rev. 287(1993); and Amy J. Cohen, Debating the Globalization of U.S. Mediation: Politics, Power, and Practice in Nepal, 11 hArv. neGot. l. rev, 295 (Spring 2006).
[8](2021) <https://www.researchgate.net/publication/275655705_Alternative_Dispute_Resolution_and_its_Implications_for_Women's_Access_to_Justice_in_Africa_-_Case-Study_of_Ghana> accessed 13 February 2021.
[9] 'About Us – Africa Arbitration Academy' (Africaarbitrationacademy.org, 2021) <https://www.africaarbitrationacademy.org/about/> accessed 18 February 2021.
[10] Ibid
[11] Stephen Timm, '6 AI Startups In Africa To Look Out For | CLEVVA News' (Clevva, 2021) <https://clevva.com/press-release/6-artificial-intelligence-startups-africa-look> accessed 18 February 2021.