Appropriate Method
B. DISPUTANTS
6.3 Analysis of findings of the quantitative phase
6.3.1 Research Question One: What does ‘appropriate dispute resolution method’ mean?
6.3.1.2 Fairness
Impartiality, competence, or mastery over the mediation process are very key to ensuring procedural fairness from disputants’ perspective. This confirms earlier findings in the District Courts in Ghana.611 What this finding means is that each dispute resolution stakeholder expects to be treated fairly throughout the dispute resolution process. Disputants expect dispute resolution practitioners to be fair to all. They do not expect partial treatment. They do not expect to be looked down by their co-disputant(s) or dispute resolution practitioner(s). They expect every evidence they will adduce to be objectively examined and considered on its own merit. They do not expect the dispute resolution practitioner to make prejudicial comments while the case remains unresolved. In fact, this concept aligns perfectly with the provisions of article 17(1) and (2) of Ghana’s Constitution, which states that all are equal before the law and prohibits discrimination.612 Again, this concept is so important that the Constitution demands that one accused of committing a criminal offence is required to be offered a fair hearing.613 A judge against whom proceedings have been instituted for his/her removal is also entitled to be heard.614 It is therefore not surprising that a disputant who perceives real likelihood of bias against him/her is allowed to raise it. A successful objection on the ground of real likelihood of bias supported by
609 Shestowsky Donna, ‘Procedural preferences in Alternative Dispute Resolution: A closer, modern look at an old idea’ [2004] Psychology, Public Policy and Law 211.
610 Feng Jiaojiao and Xie Pengxin, ‘Is mediation the preferred procedure in labour dispute resolution systems?
Evidence from employer–employee matched data in China’ [2020] Journal of Industrial Relations 81.
611 See the work done by Crook RC, ‘Alternative dispute resolution and the Magistrate’s courts in Ghana: a case of practical hybridity’ [2012] Africa power and politics 1.
612 Constitution of the Republic of Ghana 1992 Article 17(1).
613 Constitution of the Republic of Ghana 1992 Article 19(1).
614 Republic V Chief Justice of the Republic of Ghana and Another [2020] GHASC 43.
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cogent and convincing evidence pointing to inability to get justice against a judge, for instance, will lead to that judge being asked to recuse himself/herself from hearing the case.615
A case that readily comes to mind is an ongoing criminal case in the High Court of the Republic of Ghana.616 In the original case, the defendants were charged for playing various roles leading to the Republic of Ghana losing huge sums of money. During the hearing, the defendant617 who was charged for causing financial loss to the state to the tune of $217 million raised an issue of bias against the presiding judge (Justice Clemence Jackson Honyenuga) who was subsequently appointed a judge of the Supreme Court of Ghana. The defendant expressed doubt about getting a fair hearing. The judge rejected the accused’s objection. The presiding judge therefore refused to recuse himself and continued to sit as an additional High Court judge (having become a Supreme Court judge). The defendant proceeded to the Supreme Court to challenge the decision of the High Court. The Supreme Court of Ghana618 by a three-two (3-2) majority decision overturned the decision of the High Court and barred the presiding judge from hearing the case.
Interestingly, in arbitration a person appointed arbitrator is required to disclose any information that will affect his/her neutrality,619 or disclose any matter likely to occasion reasonable doubt concerning his/her independence and impartiality.620 This applies to mediation as well. Fairness is required both in the procedure adopted and the outcome of a dispute resolution process. A critical issue that ought to be considered is the designing of a dispute resolution method. Indeed, many abound, and more are being designed by the day. What this finding tells designers of such mechanisms (whatever name they are known by or called) is that adequate systems should be incorporated to allow for fairness from start to finish. The existing methods can also re-assess their processes with the view to redesigning them for optimal fairness delivery.621
615 Republic v High Court (Financial Division) Accra (JS/32/2019) [2019] GHASC 74.
616 The Republic v Stephen Kwabena Opuni & 2 Others H3/23/2009 (2019) 1.
617 A former Chief Executive Officer of COCOBOD, a Ghana (State) Government Owned Enterprise.
618 The Republic V Stephen Kwabena Opuni & 2 Others (2021) SC.
619 Alternative Dispute Resolution Act 798 of 2010, s 12(5).
620 Alternative Dispute Resolution Act 798 of 2010, s 15.
621 See Alternative Dispute Resolution Act 798 of 2010, s 74(5).
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This virtue is so jealously guarded by the judiciary that it is a misconduct per Rule 3 of the Code of Conduct for Judges and Magistrates for a judge or magistrate to be impartial in the discharge of his/her judicial functions.622 Again, E (1) of the Code states that a judge is disqualified if she/he acts in a manner where his/her impartiality becomes questionable. Judges and Magistrates are mandated to give every person with legal interest in proceedings the right to be heard.623 What is more, Rule3(8) of the same Code of Conduct mandates all judges and magistrates to dispose of all judicial matters before them fairly. These and many of such provisions are meant to guarantee fairness of litigants and users of the courts in Ghana.
While bias may exist for no cogent reason, it may be a child of corruption. A party may compromise the third party supposed neutral to obtain a favourable outcome. This is more pronounced in litigation.624 This may be due to its public nature and the fact that disputants have no hand in the selection of the judge or magistrate who determines their case.
This has been acknowledged by the judiciary and almost all the Chief Justices see it as a setback to justice delivery. That is why many attempts have been made and continue to be made to weed the justice delivery system of corruption. A key step was the Code of Conduct for Judges and Magistrates, and the Public Complaints and Court Inspectorate Unit (PCCIU) which was set up in 2003 with public relations and complaints units (established in 2014-2015) to receive complaints of corruption and bias.
Indeed, the popular saying that “Judges like Caesar’s wife must live above approach”625 is non- negotiable and ought to be jealously guarded and defended if litigation is to continue to play its role effectively. This explains why some judges have been removed from office for stated
622 Judicial Service of Ghana, Code of conduct for Judges and Magistrates (Judicial Service of Ghana Accra 2014) 6.
623 Judicial Service of Ghana, Code of Conduct for Judges and Magistrates (Judicial Service of Ghana Accra 2014), Rule 3(7).
624 At least the ‘Number 12’ investigative piece undertaken by TIGEREYE PI gives some evidence of judicial corruption in Ghana.
625 As cited in The Republic V Chief Justice of the Republic of Ghana and Another [2020] GHASC 49.
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misconduct under Article 46 of Ghana’s constitution.626 In the same vein, those who resolve disputes using the other dispute resolution methods, like Nana’s627 wife must live above reproach.