Ghana’s ADR progression: The missing role of chiefs

On May 31, 2010, Ghana introduced one of the most forward-thinking pieces of legislation globally: the Alternative Dispute Resolution Act, 2010 (Act 798). This Act aimed to facilitate dispute resolution through arbitration, mediation, and customary arbitration, establish an Alternative Dispute Resolution (ADR) Centre, and address related matters.

 Act 798 replaced the Arbitration Act of 1961 (Act 38) and was largely modeled on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Arbitration (1985), amended in 2006.

The ADR Act, which emphasises party autonomy, empowers disputants to independently draft processes for resolving their conflicts in ways that best suit their contexts. It also recognizes the separability of arbitration agreements, treating arbitration clauses separately from the main contracts. According to Paul Kirgis, the ADR Act represents an ambitious effort to integrate traditional and modern legal systems, aiming to standardize commercial arbitration, mediation, and customary arbitration practices nationwide.

Since its enactment, Ghana’s ADR Act has garnered both national and international praise. It has aligned the country’s arbitration law with global conventions, providing a legal framework to encourage dispute settlement through ADR. The Act has positioned Ghana as a leading example of “judicial democracy” in Sub-Saharan Africa, admired for offering an efficient, cost-effective, non-adversarial means of conflict resolution.

Ghana’s government, judiciary, legal professionals, and ADR practitioners all hold the ADR Act in high regard. The declaration of ADR Week from July 15-19 by the Chief Justice serves as a testament to the nation’s commitment to ADR awareness. This event is celebrated multiple times a year and is an opportunity to educate the public on the significance of ADR. However, the 2023 celebration faced challenges due to a strike led by organized labor, including the Judicial Service Staff Association of Ghana (JUSAG).

Numerous reviews by scholars, jurists, and practitioners have analysed the strengths and weaknesses of the ADR Act. These reviews highlight the Act’s alignment with internationally recognized principles like the autonomy of arbitration agreements and its modern approach to customary arbitration. According to Frempong (2006), the ADR Act is essentially a “recast of time-tested pre-colonial conflict resolution mechanisms,” emphasising reconciliation over mere dispute settlement.

ADR in Africa
Other African countries have also developed ADR frameworks in recent years. Nigeria, for example, enacted the Arbitration and Mediation Act in 2023, updating its Arbitration and Conciliation Act of 1988. South Africa has embraced ADR since the 1960s and became a signatory to the New York Convention in 1976. Egypt made significant strides in arbitration with its 1994 Arbitration Law, and Rwanda established the Kigali International Arbitration Centre in 2012 to promote ADR in the region.

However, some countries, like Togo, have not experienced the same level of ADR development. In Kenya, ADR methods such as mediation and arbitration are widely used, although arbitration processes can take between six months to three years.

Purpose of this article
This article does not intend to reiterate the existing critiques of the ADR Act’s strengths and weaknesses. Instead, it seeks to highlight the crucial yet overlooked role of chiefs and traditional leaders in the development of ADR in Ghana. The exclusion of chiefs from the ADR Board is a significant gap that undermines the full potential of ADR in Ghana.

This piece aims to raise awareness about the role of the ADR Centre and encourage the inclusion of traditional leaders in the governance of ADR in the country.

Inauguration of the ADR Board
In July 2024, the President of Ghana inaugurated the Governing Council/Board of the ADR Centre, as mandated by Section 117 of the ADR Act. The Board consists of various representatives from professional bodies such as the Ghana Chamber of Commerce, the Ghana Bar Association, and the Institute of Chartered Accountants. However, notably absent from the Board are representatives from the chieftaincy institution or the National House of Chiefs.

The absence of traditional leaders on the Board is an omission that the writer believes may not have been intentional. Despite the Act’s recognition of customary arbitration, it does not adequately reflect the historical role of chiefs in ADR practices.

The role of the ADR Board
The ADR Board’s primary function, as outlined in Section 117(3), is to facilitate ADR practices. The Board is expected to manage the ADR Centre, which includes offering facilities for arbitration and mediation, maintaining a register of qualified arbitrators and mediators, and conducting educational outreach on ADR practices. The Centre is also tasked with promoting research and issuing publications on ADR.

However, the absence of chiefs or their representatives in the management of the ADR Centre seems to overlook their vital role in customary arbitration, a key element of Ghana’s ADR landscape.

The contributions of chiefs to ADR
In Ghana, chiefs have long been central to conflict resolution, both pre- and post-colonial. Traditionally, chiefs and their councils acted as arbiters, resolving disputes within their communities. Even today, chiefs continue to play a pivotal role in maintaining social order and promoting peaceful dispute resolution.

Chiefs are the custodians of customary law and hold authority over customary arbitration, as enshrined in the 1992 Constitution and the Chieftaincy Act of 2008. The Constitution guarantees the role of chiefs in customary arbitration, asserting that traditional authorities have the power to resolve disputes with the consent of the parties involved. Yet, the ADR Act 2010 does not provide a direct platform for chiefs to contribute to the administration of ADR through the ADR Centre.

Recommendations
To better integrate traditional leaders into the ADR system and fully leverage their historical contributions, the following recommendations are made:
1.    Amendment of the ADR Act 2010

The ADR Act should be amended to include representatives from the chieftaincy institution on the ADR Board. This would acknowledge the important role chiefs play in customary arbitration and ensure their continued involvement in ADR governance.

2.    Promulgation of a Legislative Instrument
In addition to amending the Act, a subsidiary legislation should be passed to address existing gaps, such as the exclusion of negotiation as an ADR method and the lack of representation of traditional rulers on the ADR Board.

By bringing chiefs and traditional councils into the ADR governance framework, Ghana can further strengthen its ADR system and continue to serve as a model for dispute resolution in Africa.