Abstract
This paper deals with the possible role that traditional dispute resolution mechanisms can play in reducing the burden of too much litigation in post-colonial countries – particularly in Africa. The importance of such mechanisms has been recognized by the United Nations and by the constitutions and laws of many African countries. The paper addresses the issue of the effect a paucity of lawyers in African countries might have on the litigation in such countries. The approach and methods of traditional dispute resolution in Africa are discussed and the question raised whether such traditional dispute resolution mechanisms can be integrated into the Western approach to dispute resolution in order to reduce litigation. The challenges facing such integration are also addressed. The article concludes that traditional methods of dispute resolution are already reducing the burden of too much litigation, but further research using statistical and empirical data should be undertaken to substantiate this.
Highlights
It is trite that developing countries, in Africa, have a mixture of colonialinspired formal justice systems and traditional dispute resolution practices which have been referred to as “a fabric of pluralism” (Aiyedun and Ordor 2016, p. 3)
The Constitution of Kenya (2010) states: In exercising judicial authority, the courts and tribunals shall be guided by the following principles (...) (d) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted. (Constitution of Kenya, art. 159(2)(c))
This paper is aimed at encouraging policy makers and legislators to consider formally incorporating traditional dispute resolution mechanisms into their justice systems – subject to such practices being consistent with fundamental human rights
Summary
It is trite that developing countries, in Africa, have a mixture of colonialinspired formal justice systems and traditional dispute resolution practices which have been referred to as “a fabric of pluralism” (Aiyedun and Ordor 2016, p. 3).Recognition of such traditional dispute resolution practices is often provided for in the constitutions and laws of African countries. It is trite that developing countries, in Africa, have a mixture of colonialinspired formal justice systems and traditional dispute resolution practices which have been referred to as “a fabric of pluralism” Such recognition is usually conditional on the traditional practices not violating the fundamental rights in the country’s constitution The formal justice system tends to take a punitive and deterrent approach in criminal cases, and a rights-based compensatory approach in civil matters 110), while traditional dispute resolution practices in both criminal and civil cases are usually based on restorative justice, reconciliation and reintegration into the community by transgressors of other people’s rights. The traditional system may have had both punitive and compensatory elements, for instance, in Uganda where traditionally persons found guilty of murder were punished, and those found guilty of manslaughter or culpable homicide ordered to pay compensation (Elias 1956, pp. 130– 131)
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