QUESTION
“The modern system of ADR is believed to emanate from the African traditional systems of Adjudication”
Critically examine this statement in relation to African Customary System of ADR.
Introduction
By tracing back to the African Traditional System of Adjudication it is considered that the Alternative Dispute Resolution (ADR) was from the alternative judicial process of settlement of civil disputes which takes place in private, pursuant toward the agreements between the parties to the disputes under which parties bounded by the decision being enforceable by the law such as ARBITRATION.
The Traditional Dispute Resolution mechanism has existed so many years ago. As the fact was practiced in most of societies by the elders, chiefs village headman, or village council under the form of mediation, conciliation even some form of arbitration for resolution of their disputes.
In those communities the Alternative Dispute Resolution mechanism was focused on conciliation, or some form of mediation so as to maintain peace, equity, cohesion within the society.
Traditional system of adjudication in previously was called as the “Primitive Practice of Alternative Dispute Resolution” on individual, group of people, on solving their wrongs that referred to as “might is right”.
At all those time the Alternative Dispute Resolution was consensus, compromise, non violence and compensation, the said procedures was simple and flexible. In the case of LEWIS v BANKOLE (1908) 1 N.L.R 81 at 100 ,that held for "One of the most striking features of West African native custom … is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its character."
Differed to the colonial system whereby there was an introduction of the judicial system of solving disputes that referred to be a formal system or formality, complex and complicated.
After African states gaining their independences there was many questions that arose upon the proper way of solving disputes and passing proper justice.
For example in Tanzania there were a lot of changes under statutory as well as to administrative laws as follows;
§ 1985there parliament enact the law that was a Ward Tribunal Act that give judicial power to ward tribunal and require the use of mediation as much as possible in solving disputes before them
§ 1991under (GOVERNMENT NOTICE) GN no 508/1991that restricting the granting of adjournment in civil cases as well on reinforce accountability and reduce confusion and misplacement of case files.
From the said reason the late Chief Justice Nyalali learnt about the practice of Alternative Dispute Resolution Mechanism in the superior court of Washington DC, the said idea was appealed to him. as further more on MROSO J Committeethat ADR should be amended in the civil justice by amending the Civil Procedure Code (CAP 33,R.E 2002)and introduce ADR accordingly. From GN No 422/1994 which come into operation on the 1st November 1994.
The amendment of Order IV, V and VIII (Civil Procedure Code (CAP 33,R.E 2002)introduce Order VIII A, VIII B ,and VIII C of the 1st schedule. The provision on Order VIIIA can be said to be the main provision which statutorily introduce ADR in Tanzania civil justice system.
In LEE v SHOWMAN’S GUILD OF GREAT BRITAIN (1959] 1 All E.R. 1175Lord Denning said"… parties cannot contract to oust the ordinary courts from their jurisdiction. They can of course agree to leave questions of law, as well as fact to the decision of the domestic tribunal. They can, indeed, make the tribunal the final arbiter on questions of law. They cannot prevent its decision being examined by the courts. If parties should seek by agreement to take the law out of the hands of the courts and put it in the hands of a private tribunal, without recourse at all to the courts in case of error, then the agreement is to that extent contrary to public policy and void."
African traditional system of dispute resolution
That customary law is generally known to be accepted in a particular community. A community may accept certain norms as binding on them. In Africa, such customary law may be accepted by member of particular ethics group and may be regarded as ethics customary law.
Customary law is unwritten and one it’s most commendable characteristics is its FLEXBILIT, apart from the fact that it is the accepted norm of usage.but the resolution of dispute was a major function under the INDEGENOUS system of the governance. The role was taken up by the elders or chief, and the chief was meant to maintain social cohesion. In its operation, Africa dispute was very much like ARBITRATION in that resolution of dispute was not adversarial.
Any person who is concerned that a dispute between parties threatened the peace of the community could initiate the process. The same parts have the opportunity to state their case and their expectation but the final decision is that of their elders (chiefs). Customary arbitration is not private but is organized to socialize the whole society, hence the community is present. The process is gender sensitive as such women were excluded from male driven communal dispute resolution. Parties could arise from the whole process and maintain their relationship, and where a party got an award the whole society was witness and saw to it that it was enforced. Social exclusion or ostracism was a potent sanction for any erring party therefore enforcement of an award was not a problem.
In the case of LEWIS v BANKOLE (1908)1 NLR 81 is was held that one of the most sticking features of west African natives customary... is it flexibility: it appears to have been always subjects to motivate of expediency and its unquestionable adaptability to altered circumstances without losing its character.
The customary system of alternative of dispute resolution in Africa it composed on the followings as follows;
Mediation and reconciliation; whereby elders in this aspect were elected or volunteered to settle disputes that arose between individuals, family level, and clan level. The duty to solve the problem was under the rule of mediator who was to insure that all parties resolve their conflict before him. For example they said was practiced as the lineage counselor who convenes a conclave of the inner lineage and an internal moot held Kadume’s case.
Trial by battle or contest form of dispute settlement These are occur where the part in dispute engaged themselves in protest against each are in form of fight always be in form of words. As evidenced in DRAMING SCANDAL CASE as well in TORGIND v MTSWENI case, then the society through village leaders or elders could be summoned from both parts and determine the case peaceful the result of every opponent was deemed to be a winner on his part.
Trial by ordeal This was another system of solving disputes as well under criminal and civil instances. It was regarded as a primitive way of determining upon whether a person was guilty or innocent by subjecting the suspected or accused person to dangerous or painful means until when it is determined to the contrary as shown in the case of Palamba s/o Fundikira v. R ( 14EACA 96 (Tanganyika)1947
All these disputes under traditional mechanism was to be solved under the elders who use to solve their disputes through the peaceful means without rapture of harmonious, social relationship, creating any enemity, so that after the dispute had been settled , the parties or families could resume co-operative living and thus promote peace and tranquility within the community.
Resolution of disputes
But the resolution of disputes was a major function under the INDEGENOUS system of governance. The role was taken up by the elders or the chief, and the chief was meant to maintain social cohesion. In its operation, Africa dispute was very much like ARBITRATION in that resolution of dispute was not adversarial.
- Any person who is concerned that a dispute between parties threatened the peace of the community could initiate the process. The same parties have opportunity to state their case and their expectation but the final decision is that of elders (chiefs).
- Whereas the western types arbitration is attractive because of its private nature.
- Customary arbitration is not private but is organized to socialize the whole society, hence the community is present.
The process is gender sensitive as such women were excluded from male driven communal dispute resolution.
Parties could arise from the whole process and maintain their relationship, and where a party got an award the whole society was witness and saw to it that it was enforced.
Social exclusion or ostracism was a potent sanction for any erring party therefore enforcement of an award was not a problem.
In the said circumstances the modern system of ADR is believed to emanate from the African traditional system of adjudication since that;
The modern system of ADR is said to have been practiced by the American court, and ita essence is said to be since 1800’s when the American where in the transitional period and it is from that time their courts started to apply the alternative system of adjudication and termed as the modern ADR. This has been noted when we tries to study the jurisprudence of American laws and the glorification of their legal system as the best system in the world. It is obviously the Americans make studies to different system in the world .in course of glorifying their own legal system, and among of which African system of adjudication was crossed upon, which was in use of customary system of adjudication in different part of the region.
Hence, the African traditional system of adjudication it is addresses the culture reality of the African societies in such a fact that the modern system of alternative dispute resolution is suitable in multi culture setting whereby most of parties in disputes according to their interaction who comes from the said traditional systems.
It has to enhance the respect for the elder under traditional system of adjudication whereby those elder were considered as the mediator in disputes, to this position of the elders who believed as a wise man in the society in the modern this system has emphasized on a mediator who use to influence on the solution in disputes.
The means of solving disputes in the traditional system was democratic and consensual free participation of the parties in disputes as well as the society in general as the resulting to the modern system of alternative dispute resolution where the problem was solved on consensual mean of solving problems as it was in the traditional system of solving disputes.
If we take the applicability of the traditional system of settling disputes we refer that was wide applicable by other means we can say was flexible means in the modern system the flexibility of the solving disputes seem as the major way of solving dispute in alternative dispute resolution.
The method of solving dispute in traditional system was to social justice as open and exposed to the others which means that the whole society was on the right to observe the decision made by the elders the same to the Alternative dispute resolution method that it looking upon the confidentiality of parties and the community as well.
Basing to cheaper, quicker and peaceful focuses on solving disputes in the society the traditional system of solving disputes. The modern system of solving dispute was refer on the said as cheaper too and it use to save time more than the litigation.
According to the said measures the state made court congestion and inordinate delays in the dispensation of justice in the country this brought to the fore the concept of finding alternative methods of resolving civil disputes by complimenting to traditional judicial system.
Conclusion
Despite to the above explanation there are however several limitations of this process in modern times. One is that it is mostly applied to land and family disputes. It is hardly applicable to monetized commercial transactions and certainly not to transaction of an international character[1]. Furthermore, it is community focused and does not contemplate transactions where the parties are from different cultural backgrounds. The lack of privacy could be a disadvantage in that the parties might not want the community involved. But with regard to the modern system of ADR it is obviously having much advantages and has the modifications of the traditional African system of adjudication which is resembles.
References
Alexkol ltd and another; the ritchtersveld community and others, South Africa customary law.
Bolaji Owasanoye: dispute resolution mechanisms and constitutional right in Sub-Sahara Africa (No.14, chapter 2 , march 2001)
P.H. Gulliver: Kadume's case (from Social Control in an African Society: a Study of the Arusha: Agricultural Masai of Northern Tanganyika, 1963) (Warusha-Tanzania).
Statutes
The Civil Procedure Code (CAP 33,R.E 2002)
