Customary arbitration

Ever since arriving in Ghana, I have been interested in the relationship between the different systems of law here, and particularly in the way in which customary law interacts with the civil and common law.  I have already mentioned the different types of marriage as a good example of this interplay, and another such is arbitration.

Arbitration is governed by the Alternative Dispute Resolution Act 2010.  Part I deals with what might be called “legal” arbitration, namely arbitration by official institutions according to a set of defined rules.  Arbitration under this section is very similar to arbitration under the UK Arbitration Act 1996.

Part III is concerned with “customary arbitration”, namely arbitration by traditional authorities such as chiefs.  This is similar in many ways to legal arbitration.  For example, the circumstances in which customary arbitrators may be removed from their posts are almost the same, and there is a requirement under both systems for arbitrators to be impartial and to apply the rules of natural justice. 

Furthermore, I had thought that customary arbitration would operate almost in isolation from the court system, but in fact the two are closely linked.  Customary awards can be registered at court and can be enforced in the same manner as a court judgment.  Parties can apply to the District, Circuit, or High Court for a customary award to be set aside.  Awards made in customary arbitrations are binding and any attempts to resurrect the issue in court will be struck out under the principle of res judicata.   

Many of the provisions in the ADR Act 2010 simply codified existing practice, such as the giving of a token (money or some strong drink) to signify acceptance of the arbitration.  The Act can therefore be interpreted in two contrasting ways: as the imposition of legal control over traditional customs - or the acceptance by the legal system of a fait accompli.