Ghana’s ADR Progression: The missing place of chiefs

Introduction

On 31st May 2010, Ghana enacted one of the world's most progressive legislations—the Alternative Dispute Resolution Act, 2010 (Act 798). The Act was designed to provide mechanisms for the settlement of disputes through arbitration, mediation, and customary arbitration, establish an Alternative Dispute Resolution Centre, and address related matters.

Act 798 repealed the Arbitration Act, 1961 (Act 38) and was largely modeled after the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Arbitration of 1985, as amended in 2006. The Act, emphasizing party autonomy, allows disputants the freedom to design dispute resolution processes to suit their contexts. It also recognizes the separability of arbitration agreements, treating arbitration clauses independently from the main agreement.

The ADR Act has garnered national and international acclaim over its 14 years of operation, harmonizing Ghana’s arbitration laws with international conventions and best practices. It has provided a legal framework that encourages dispute settlement through ADR procedures, achieving conflict resolution in a non-adversarial, efficient, and cost-effective manner. Ghana is now regarded as a beacon of "judicial democracy" in Sub-Saharan Africa.

ADR in Africa: Comparisons and Context

The enactment of Ghana's ADR Act in 2010 was a significant milestone in the region. Other African nations have followed suit, with Nigeria enacting the Arbitration and Mediation Act in 2023, a full 13 years after Ghana's legislation. In South Africa, ADR has been a part of the legal landscape since the 1960s, and Egypt passed a key arbitration law in 1994. Rwanda's Kigali International Arbitration Centre (KIAC), established in 2012, aims to create opportunities for arbitration in the region. However, in countries like Togo, ADR has not experienced the same level of development.

Purpose of This Article

This article does not seek to repeat the commonly discussed achievements and shortcomings of the ADR Act, as outlined by jurists, law lecturers, and ADR practitioners. Rather, it highlights the critical contributions of Ghana’s chiefs and traditional leaders to the growth and appreciation of ADR mechanisms.

The article also addresses the exclusion of traditional rulers from the ADR Board, a critical oversight in Act 798. Furthermore, it aims to educate the public about the ADR Centre's role and encourage the active participation of traditional leaders in the ADR process.

The Inauguration of the ADR Board

In July 2024, the President of Ghana inaugurated the Governing Council/Board of the ADR Centre. The Board’s composition, as specified in Section 117 of the ADR Act 2010, includes a lawyer as Chairperson, nominees from professional bodies such as the Ghana Chamber of Commerce, Ghana Bar Association, and others, as well as representatives from organized labor, industry, and the ADR Centre itself.

While this was a landmark event, it is noteworthy that no traditional leader or representative from the National House of Chiefs was included in the Board, despite the significant role chiefs play in ADR, particularly in customary arbitration.

The Role of the ADR Board

The ADR Board’s role is outlined in Section 117(3) of the ADR Act, where it is tasked with facilitating ADR practice in Ghana. The Board will operate for three years and will oversee the functions of the ADR Centre, which include providing facilities for dispute resolution, maintaining a register of arbitrators and mediators, setting guidelines for fees, conducting research, and more. However, the Act’s focus on these duties limits the Centre’s scope, restricting creativity and innovation in the ADR field. The Board’s responsibilities should be expanded to allow for greater oversight and development of ADR practices.

The Contributions of Chiefs and Traditional Rulers to ADR

The chieftaincy institution has long played an integral role in dispute resolution in Ghana. Chiefs and their councils have historically overseen arbitration and mediation, providing resolutions that promote social harmony. Even after colonial rule disrupted traditional conflict resolution mechanisms, the chieftaincy system remains a key player in resolving local disputes, with customary arbitration continuing to be an essential practice.

Customary law, as enshrined in the Constitution of Ghana (Article 11(2)), empowers chiefs to serve as arbitrators in disputes, provided all parties consent. This underscores the relevance of traditional rulers in dispute resolution, particularly in rural areas, where their authority and cultural significance remain paramount.

Exclusion of Chiefs from the ADR Board

Despite the pivotal role of chiefs in ADR, the ADR Act 2010 does not include them on the ADR Centre’s Board. This exclusion is a clear oversight, as traditional rulers have long been at the forefront of conflict resolution in Ghana. While Section 115(2)(k) of the Act recognizes the role of traditional councils in registering customary arbitrators, it falls short of granting chiefs a seat on the ADR Board. This limited involvement is insufficient, considering the substantial contributions of chiefs to ADR practices.

Recommendations

To fully integrate traditional rulers into the governance of ADR in Ghana, the following measures are proposed:

Amendment of the ADR Act 2010 (Act 798): The ADR Act should be amended to include representatives from traditional councils or the National House of Chiefs on the ADR Board. This will ensure that chiefs have a direct role in the governance and development of ADR in Ghana.

Promulgation of a Legislative Instrument: A subsidiary legislation could be passed to address gaps in the current ADR Act, such as the exclusion of negotiation as an ADR mechanism and the lack of representation for chiefs on the ADR Centre Board.

Intentionality in Appointments: The President should intentionally appoint a chief or representative from the National House of Chiefs to the ADR Board, even if this is not formally required by the Act. This would foster a greater connection between the ADR Centre and traditional conflict resolution systems.

Proactive Role of Chiefs: Chiefs should take a more active role in promoting ADR, particularly in rural communities. By setting up ADR centres and encouraging their citizens to engage in these processes, chiefs can contribute significantly to the growth of ADR in Ghana and beyond.

Conclusion

The exclusion of chiefs from the ADR Board is a missed opportunity to leverage their centuries-old experience in dispute resolution. Including them in the governance of ADR practices in Ghana would not only honor their role in customary arbitration but also help strengthen the country's ADR framework, ensuring a more inclusive and effective system of justice for all Ghanaians.

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