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Decongesting the Courts through
Alternate Dispute Resolution
A GNA feature by Boakye-Dankwa Boadi
Accra, May 17, Ghanadot/GNA – Ghana gained political independence
from the British Colonialists on March 6 1957 but kept his
governmental institutions. It was a sort of an old car which
underwent bodyworks, was sprayed and handed over to a new
driver.
Nothing was done about the engine so the country was run
along the same lines with black faces replacing white ones.
In fact the illiterate Ghanaian had an apt description for
those who replaced the white men – “odi Broni di bre” to wit
he is holding the position of a white man.
The Judiciary, the third estate of the realm, is arguably
the most conservative of the four estates – Executive,
Legislature and Media.
The Judicial System is based on the English System, what is
referred to as the Common Law. It is Adversary or Accusatory
System. It is a contest between two parties: Prosecution and
Defence in criminal cases and Plaintiff and Defendant in
civil cases.
Since the system is alien to the Ghanaian socio-cultural
milieu, bottlenecks emerged making it difficult for the
majority of the people to access justice. Cases began to
pile up at the Courts, especially civil cases.
In fact in one instance an Old Man made a pathetic appeal to
a High Court in Kumasi. He told the Judge: “The building in
dispute was put up by me. It belongs to me. This litigation
started when I was 57 years old. I am now 75 years old and
this case has been dragging on. Is the case being delayed so
that I will die?”
This Old Man’s case is by no means isolated. There are civil
cases that have been going on for 25 years. It was in the
face of this stark realism that in 2003, the Lord Chief
Justice of the Republic of Ghana issued a policy directive
to mainstream Alternative Dispute Resolution (ADR), using
the Court-connected approach, as a component of the Justice
System.
The use of ADR process in the administration of justice is
necessary as a means of decongesting the Courts and as a
tool to making justice more accessible to the poor and
vulnerable in society.
To this end, a week is set aside in each legal term to hold
an ADR Week programme aimed at reducing the backlog of cases
pending in Courts as well as to sensitize the public on the
benefits of Court-connected ADR. The programme has been
successfully piloted in Courts within Accra and Tema and
will soon be extended to the other regions of Ghana.
During the ADR Week, parties in dispute who have cases
pending in court are given the opportunity to have their
cases settled through Mediation.
Mediation is a voluntary process whereby a neutral third
party called a Mediator assists parties to discuss their
dispute through direct talks with each other in order to
reach an acceptable and amicable agreement.
The Mediator, unlike a Judge, does not decide the outcome of
the dispute for the parties; rather she/he simply
facilitates the discussion between the parties with a view
to helping them to resolve their dispute. Mediation has been
found to be faster than Court litigation in that about 60
per cent of cases referred to mediation are successfully
settled within two hours.
Giving a background to ADR in a write up made available to
the Ghana News Agency, Senyo M. Adjabeng, National
Coordinator of ADR, said in recognition of the need for a
faster and efficient mechanism for adjudication of cases
pending in the courts, the Lord Chief Justice in 2003 set up
an ADR Taskforce with the objective to determine an
appropriate and customized policy direction that
incorporates ADR in the Court adjudication process.
The Taskforce recommended the adoption of a Court Connected
ADR system, which would use private Neutrals in mediating
cases referred to ADR by Magistrates and Judges.
Based on the recommendations of the Task Force, the Lord
Chief Justice issued a policy directive adopting and
incorporating ADR as a part of the adjudicating process of
the Judicial Service of Ghana and an available option to
parties in dispute who file cases in the Courts or whose
cases are already pending in court.
In 2006, the Lord Chief Justice directed that the first week
of each legal term be set aside as ADR week. During this
week, cases referred to ADR in selected Magistrate’s courts
are to be settled through ADR, and especially Mediation.
The ADR week programme has so far been piloted in Courts in
Accra and Tema with encouraging results. These results point
to the fact that when extended to other parts of the
country, the programme may constitute a major effort to the
reduction of backlog of cases in courts as well as improving
justice delivery in the Judicial Service.
On November 03, 2006, the National ADR Taskforce was
inaugurated as an Institutional Working Committee of the
Judicial Service called the National ADR Committee.
The Committee has the function of advising and assisting the
Judicial Reform and Projects Unit to roll out the ADR agenda
of the Judicial Service as per policy directives issued by
the Office of the Lord Chief Justice.
There is at present one subcommittee of the ADR Committee
called the Publicity Subcommittee. This Subcommittee is
responsible for determining and pursuing appropriate
channels of publicity for the National ADR programme.
ADR Week Activities Mediation Programme
Cases suitable for mediation are referred by the Judge or
Magistrate, prior to the ADR week. Parties or disputants are
given specific dates to appear in Court to go through the
mediation process during ADR week. They are sometimes served
with hearing notices as a reminder of the specific date to
appear in court.
Trained Mediators are selected, briefed and assigned to
participating Courts. They mediate cases throughout the week
from 9:00 am to 2:00 pm. When a case is successfully
resolved, the agreement is entered as consent judgement by
the Judge or Magistrate immediately after the mediation
process. Otherwise, the case is referred back to court to
follow continue its normal Court trial process.
Media Sensitization and Open Day
A day is normally set aside during the ADR week to sensitize
the media and the public on court-connected ADR and
especially the Week's programme. The programme is publicized
through this important media interaction.
Other publicity programmes undertaken prior to the week
include granting interviews on Television and Radio FM
stations in and around Accra and Tema in English and other
local languages.
Mediators Briefing Session
Selected Mediators are normally briefed by members of the
ADR Committee prior to the ADR week. In the briefing,
Mediators are reminded of the basic principles of
Court-connected ADR as well as the expectations of the
Judicial Service for the ADR Week.
After ADR week, a debriefing session is also organized for
mediators who participated in the programme. Feedback from
Mediators is collated after intensive interaction on the
drawbacks and successes of the Programme. This has been very
helpful to the Service because it helps update and
restructure the programme for future implementation.
Programme Administration
The programme is coordinated and administered by the
National ADR Coordinator under the Director, Judicial
Reform, Projects Development and Implementation.
Imposition of Penalties
No doubt the adoption of ADR would bring justice to the
vulnerable in society but the reforms of the Judicial System
should not end there. Much needs to be done to get
Magistrates and Judges to impose reasonable penalties. It is
absurd to sentence a village thief, who went to steal
plantain from an Old Lady’s farm to six months’ imprisonment
to be fed by the Ghanaian Taxpayer instead of asking him to
go to clear the two hectare-farm within a month for the
Court to go and inspect.
In this way the convict would have contributed to food
production and the Old Lady would have benefited from the
Judicial System.
GNA
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