Abstract
The chapter explores the dilemma of alternative dispute resolution (ADR) and access to justice for women in Ghana. It argues that introduction and use of ADR has contributed to improving access to justice with regards to reducing delays in formal court procedures, cost reduction, time saving, opening spaces for less-resourced individuals and groups, particularly women, to have access to justice. Above all, ADR does bring access to justice systems close to remote areas, serving the needs of disadvantaged individuals including women and others who are most vulnerable. However, the weaknesses and challenges in the formal legal system, coupled with the historical and cultural dynamics of the Ghanaian society, which is patriarchal in nature, have prevented mostly women from reaping the maximum benefits of ADR. Revisiting the challenges of the justice system and the historical and cultural norms of Ghana would help increase and enhance women's access to justice through ADR.
TopBackground
Ghana’s comprehensive ADR system came into effect in the year 2010 as a means of facilitating access to justice and making steps towards enhancing the justice system and procedures (Nolan-Haley & Annor-Ohene, 2014:1; Alternative Dispute Act-798, 2010). It also had the aim of enhancing foreign direct investment in Ghana (Wood, 2011). The legislation of the ADR system has introduced many important elements in the justice mechanism which includes the operation of the traditional customary process of ADR alongside the formal legal justice system. In view of this, the system of mediation as well as traditional arbitration has significantly become a vital part of the civil justice mechanism. Ghana’s Alternative Dispute Resolution Act, 2010, Act 798 is applied to matters other than those which are related to:
- 1.
“The National or Public Interest”
- 2.
“The Environment”
- 3.
“The Enforcement and Interpretation of the Constitution”, and
- 4.
“Any Other Matter which by Law cannot be settled by an Alternative Dispute Resolution”.
Key Terms in this Chapter
Human Rights: Human rights are described as involving the basic or fundamental rights and freedoms which are based on a shared value system including equality, fairness, dignity, independence, and respect for one another; the values here are defined and protected though the system of law.
Legal System: The legal system entails the rules and procedures through which public as well as private initiatives and systems are undertaken within legitimate measures and means.
Equality: Equality describes the state of all people being equal in terms of opportunities, rights, liberties, freedoms and equal access to socio-economic and political goods and services. This includes gender equality, racial equality, equality of opportunities etc.
Access to Justice: Access to justice entails the need to give maximum respect to principles of legal as well as natural justice, people's rights to fair and quality trial equally to all individuals and groups.
Formal Justice System: Is explained as a system that incorporates civil as well as criminal justice through the formal system of state-based institutions of justice, its procedures and rules including the courts, prosecutors, and the police.
Justice: It explains the effective administration and maintenance of law through equitable and fairness for all groups and individuals.
Mediation: A process that takes into concern the use of a neutral mediator that enable parties or groups involved in a dispute to make provisions for discussing and deciding on a solution that is mutually agreed by all the parties.
Alternative Dispute Resolution: Encompasses dispute and conflict resolution practices that fall within but operates outside the normal court system of resolution.