Decongesting the Courts through Alternate Dispute Resolution

A GNA feature by Boakye-Dankwa Boadi

Accra, May 17, 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.