Justice Mensah-Homiah Speaks on ADR Boundaries
Justice Angelina Mensah-Homiah, a respected member of Ghana’s Court of Appeal, has issued a clear reminder about the limits of Alternative Dispute Resolution (ADR) within the Asogli State. During a recent sensitisation engagement on ADR, she cautioned chiefs and traditional authorities not to adjudicate criminal matters under ADR mechanisms. Her comments reinforce the principle that while ADR can play a constructive role in resolving civil disputes and community conflicts, criminal matters require formal court processes and due process.
Understanding ADR and Its Purpose
ADR is designed to offer faster, less adversarial, and potentially more culturally attuned dispute resolution options. In many communities in Ghana and across Africa, ADR structures are valued for their accessibility, confidentiality, and emphasis on restorative outcomes. These mechanisms often involve mediations, arbitrations, or community dialogues, guided by customary norms and, at times, religious or traditional frameworks.
However, Justice Mensah-Homiah reminded participants that the authority of ADR bodies does not extend to crimes such as assault, theft, fraud, or more serious offenses. She stressed that criminal cases fall under the jurisdiction of formal courts, where prosecutors, defense counsel, and judges operate under strict legal procedures, evidentiary standards, and rights to appeal.
The Risks of Overstepping Boundaries
The judge highlighted several risks associated with allowing traditional leaders to decide criminal matters. These include potential violations of due process, inconsistent application of the law, and the possibility of undermining the state’s monopoly on the legitimate use of force and punishment. Additionally, unresolved criminal allegations can leave victims and communities without the formal remedies that a court system provides, such as custodial penalties, fines, or restitution determined under statutory frameworks.
In many jurisdictions, attempting to resolve criminal disputes through ADR can also raise concerns about fairness, transparency, and accountability. The risk of bias, coercion, or the entrenchment of informal power dynamics may hinder the pursuit of justice for victims and ensure that perpetrators do not face appropriate consequences.
Why this Clarification Matters for Asogli State
The Asogli State, with its rich cultural tapestry and active traditional leadership, often relies on communal mechanisms to settle disputes. Justice Mensah-Homiah’s caution serves to preserve the integrity of formal legal channels while encouraging ADR to handle non-criminal issues such as land disputes, chieftaincy succession, and civil disagreements. The guidance aims to prevent a Jamaica-like overlap between customary authority and state law, which could otherwise complicate prosecutions and undermine confidence in both systems.
Her remarks also underscore the need for ongoing collaboration between the judiciary and traditional authorities. By delineating clear lines between civil and criminal matters, stakeholders can better harmonize customary practices with constitutional rights and national laws, ensuring that justice is accessible without compromising legal safeguards.
Practical Steps for ADRsensitisation in the Region
To operationalise this stance, several practical steps are being proposed. First, community education programs should delineate the difference between ADR for civil and criminal disputes. Second, training for chiefs and mediators can include legal literacy components, emphasizing what falls within their scope and when to escalate issues to the courts. Third, formal referral pathways can be established so that criminal allegations raised in community settings are promptly directed to competent authorities. Finally, monitoring and evaluation mechanisms should track ADR activities to ensure compliance with national law and protect the rights of all parties involved.
Broader Implications for the Ghanaian Legal Landscape
<pJustice Mensah-Homiah’s cautions are part of a broader trend in many African democracies to refine the balance between traditional dispute resolution and modern statutory law. As more communities adopt ADR approaches to alleviate court backlogs and deliver culturally resonant justice, it becomes critical to maintain clear boundaries that safeguard due process, victims’ rights, and the rule of law. The Asogli State example may serve as a model for other regions seeking to maximize ADR’s benefits while preventing illegal or inappropriate uses of traditional authority in criminal matters.
Conclusion
The call from the Court of Appeal emphasizes a simple yet vital message: ADR has a legitimate and valuable role in resolving certain disputes, but criminal matters require formal legal processes. Asogli State’s leadership, together with the judiciary, must continue to collaborate to ensure justice is both culturally respectful and legally sound. This balanced approach will help strengthen public confidence in both traditional institutions and the national justice system.
