AFRICA TRADITIONAL PROCEDURES OF SETTLING DISPUTE; a case study BETWEEN THE PEOPLE OF IHIAGWA

INTRODUCTION

Africans don not believe in the modern conflict resolution process, they believe in using proverbs or using the past history to settle conflict. The Africans believe to settle dispute amicable no sides suffers the bad effect, they go home happy. Human beings live in families, hamlets, villages and in larger communities As they interact dispute occur. Disputes are therefore an integral part of human nature which date back to the origin of human beings. All the members of a family can hardly share the same view. There is well bound to be divergent opinions as when friends or members of a family disagree or as when clans, town or states hold tenaciously views that are diametrically opposed.

In order to forestall escalation of conflicting views an organized society lays down in advance well guarded policies of conflict resolutions. The formulation of such policies in advance is necessary to avoid taking an on the-the-spot haphazard decision to settle an outstanding dispute which may likely be misinterpreted by the disfavored party. But once the policies are there before any dispute occurs, the chances of leveling accusation of discrepancy and unfairness in judgment are reduced to minimum.

Before the adulteration of various cultures by alien cultures, the traditional methods of settling disputes varied from one society to the other. These methods were essentially based on each society’s ways of life. Prior to the advent of alien culture Ihiagwa community had a well laid down traditional process of conflict resolution? Not that the citizens were neither quarrelsome nor litigious but to enhance the fraternal relations which existed among the people.

There were no established courts, trained lawyers, judges and police. There was also the absence of court messengers and warrant chiefs which were the off-shoot of the British colonial Imperial Administration. The Ihiagwa community was closely knit and homogeneous because there was the belief that all the members of a clan had the same ancestral origin. Only very few of the citizens lived outside the community, so it was possible to rally people to settle disputes. This paper seeks to explain the way conflict is being resolve in the African settings.

CONCEPTUAL CLARIFICATION

Alternative Dispute Resolution

Procedures for settling disputes by means other than litigation; e.g., by Arbitration, negotiation and mediation: Such procedures, which are usually less costly and more expeditious than litigation, are increasingly being used in commercial and labor disputes, Divorce actions, in resolving motor vehicle and Medical Malpractice tort claims, and in other disputes that would likely otherwise involve court litigation.

Traditional conflict resolution mechanism is a social capital, defined as the “capability of social norms and customs to hold members of a group together by effectively setting and facilitating the terms of their relationship… sustainability facilitates collective action for achieving mutually beneficial ends” (Fred_-Mensah, 2005:1). Over the years, there have developed inter group conflict over land; increasing reliance on formal contracts to regulate relationships and create understanding; and shifts in methods of conflict resolution in that mediation seems to have given way to more confrontational statutory approaches based on formal court procedures (Fred-Mensah, 2005). Despite these, traditional methods still prevail, especially at the grassroots level.

Conflict resolution comprises a complex network of forces surrounding the parties in the conflict. It is a healing process in which all stakeholders contribute positive energy. The task is to re-establish the energy flow within individuals, families and communities so as to re-build social harmony. In this context, reconciliation often requires symbolic gestures and associated rituals including exchange of gifts, and slaughter of animals (chickens, goats, sheep, cows) (Ndumbe III, 2001). Conflicts may be managed so that they do not escalate and lead to crisis.  Conflict management is different from peace building which seeks to prevent conflicts  from developing in the first place by engaging all stakeholders in processes that  facilitate peaceful coexistence. Conflict resolution deals with settlement of conflicts that may already exist. The spiritual dimension of conflict resolution refers to creating and restoring impaired relationship with God, the spirits, ancestors, family and neighbours as the case might be (Kealotswe, n.d.; Mbiti, 1991). This is critical in restoring other relationships at the physical level. In this context, rituals play an  important role in the reconciliation process. They help to link people to the past, present and future.

AFRICA TRADITIONAL DISPUTE RESOLUTION PROCESS

Negotiation:  Obviously, the most direct method for resolving disputes is for the parties to work out their own differences through skillful negotiation.  All too often, however, parties and their lawyers put less effort into resolving disputes amicably than they do in negotiating agreements for the project in the first place.  As contractors, you negotiate agreements on projects all the time; so why should you automatically throw up your hands and turn to the courts when problems arise?

Negotiation is a voluntary process by which parties attempt to reach a mutually satisfactory agreement through informal and unstructured discussions.  Successful negotiators typically focus on problem solving and trying to satisfy both parties' interests without determining who is right and who is wrong. 

The process of negotiation, the parties remain in control of the outcome; no result is imposed on the parties, and they are free to walk away from the process at any time.  A neutral third-party is usually not present.  Moreover, although participants often employ attorneys trained in problem-solving to represent their interests in negotiation, this is not essential.  Negotiation is especially valuable in situations where future interaction between the parties is desirable because negotiation is less confrontational than litigation and helps restore, preserve or strengthen the parties' business relationship.

 negotiation in the African settings makes parties to a conflict to side a ground of positio9n exorbitance of belong, focus on the customs and norms of the society, be tolerance , cooperative and appreciate the values of peace and harmony for positive coexistence,; here no mediator and no mediator.

 Mediation:  Mediation is another method of resolving conflict between two parties in the Africa settings, similar in many respects to negotiation.  Both are generally private, voluntary, and informal.  The focus in both is on problem-solving rather than on determining who is right and who is wrong, and the parties themselves decide the outcome.

In mediation, however, a neutral third party is chosen by agreement to help the parties resolve the dispute.  The mediator listens to each side's version of the problem in an informal setting and helps the parties come up with ideas for resolving the dispute.  The mediator encourages each party to attempt to understand and evaluate the interests of the other party, although the mediator generally does not "judge" the strength of either side's case.  For the most part, the mediator has no authority to impose an outcome on the parties if they fail to reach agreement, and both sides are free to walk away from the process at any time. 

The parties can agree to mediate at any stage of a dispute, even after a lawsuit has been filed.  Contracting parties can also include "mediation clauses" in their contract documents requiring the parties to attempt mediation of any disputes before resorting to litigation.  While several organizations exist which provide skilled mediators, the parties may also agree to name a particular individual in whom both parties have confidence and trust.

 he Helps the parties to identify the points of disagreement and common interest. Diffuse anger while developing empathy between the disputants or rival parties or gangs Strives for Win-Win-Win Resolution always. By this the mediator focuses on finding solutions that meet the interests of both parties or gangs or individuals.

Using this approach, the mediator tries to facilitate the process of finding solutions that meet all parties’ needs and wants. This approach generates the Win-Win Negotiation, which takes the interest based approach to solving the parties’ differences. By looking at what both parties want to achieve and finding creative ways of coming to a solution that both parties are happy with, you have nip the conflict in the bud (parties in this case could be rival gangs, neighbours, friends, associates, etc.)

Arbitration:  In arbitration, a dispute is submitted to one or more impartial persons, usually experts in the construction field, who decide the outcome.  The arbitrator's decision is private and binding unless the parties have agreed to an advisory opinion.  In binding arbitration, the arbitrator's decision may be appealed to court, but an arbitrator's decision can be reversed only in exceptional circumstances such as obvious bias by the arbitrator or fraud.

Although arbitration is more structured than negotiation or mediation, it is more flexible, and less costly, than litigation.  Generally, the parties decide how formal the arbitration proceeding will be and what rules they will follow regarding procedures such as discovery, presentation of evidence, and the necessity of a detailed opinion supporting the arbitrator's decision.  Fewer discoveries is conducted in preparing a case for arbitration than for trial.

Arbitration: In the African settings they have court, if the parties have tried negotiation and mediation and it did not work they move to the court, which   might be the town hall, in the court the juges, which are the elders will be at one side of the court  and the chief priest at the other hand , the parties to the conflict will now come out and state their case(s) and their supporters will cheer them. The elders and chiefs will now judge them using their norms and believe or the hearing of the gods. Arbitration is a higher step of mediation because mediation process can be done at home, but arbitration is done at the town hall and village square in a wider form.

 Adjudication: Explains the final conflict result, we now be judge by the law said about the conflict. in this case there is nothing like bending the law, the law is followed strictly . The elders cannot manipulate the law the law. The individual or parties is judge by the law of the constitution and law of the land.

Reconciliation; this is a method of restoring order and normalcy. In other words, it means a way of reaching agreement or compromise towards healing the wound of misunderstanding. This is a positive means of restoring friendly relationships and therefore preventing chaos or crisis. It recognize dynamic of pacification and soothing medicine for angry parties to a conflict.

ABOUT THE PEOPLE OF IHIAGWA IN OWERRI WEST L.G.A OF IMO STATE OF NIGERIA.

The Ihiagwa people are an Igbo speaking ethnic-group in the South-Eastern part of Nigeria, West Africa. This people who number about ten thousand (10,000) are easily identified among the Oratta people of Owerri in Imo State of Nigeria West Africa.

They are located at Latitude-5N, Longitude 7E, Altitude 156m (Altitude 511ft) and 12km south from the Owerri capital territory. This people are grouped into an autonomous community otherwise called Ihiagwa autonomous community.

The Ihiagwa autonomous community is a University town in the Owerri west local government area with headquarters’ in UmugumaOwerri, Imo State in Nigeria, West Africa. The town Ihiagwa as earlier said is located about 12km south from Owerri Capital territory, in the heart of the Oratta clan. It is bounded on the North by Nekede, on the South by Eziobodo and Okolochi, on the East by Obibi and on the West by Obinze. The town Ihiagwa Autonomous community is organized into eight villages namely ;Iriamogu village, Ibuzo village, Nnkaramochie village, Umuezeawula village, Aku/Umuokwo village, Mboke village, Umuelem village and Umuchima village. Ihiagwa is also home to the Federal University of Technology, Ihiagwa.

These eight villages are grouped around the ancient market place of the Ihiagwa people i.e. the NkwoukwuIhiagwa market. Also this territory of the Ihiagwa people has been a cultural, Political, and Social religious community before the advent of the British colonial imperialist in Nigeria. Furthermore, the unity of this territory has stood against historical changes and this shaped a distinct social, cultural, political and Religious system which was unique in the pre-British and post -British eras in Nigeria.

It is also worth mentioning that the citizenship of this autonomous community is strictly restricted to the aforementioned villages. The neighboring communities such as mentioned above have never been and is not part of Ihiagwa autonomous community, and their citizens never been known as Ihiagwa citizens.

Infact, the citizens of this nearby autonomous communities, will vehemently oppose the idea of being called an Ihiagwa indigene and Ihiagwa on the other hand has never tried to assimilate them as Ihiagwa indigenes.

Hence this Ihiagwa autonomous Community has existed from days of yore and has never been an appendage of any autonomous community except perhaps in the circumstance of her membership of the Oratta clan.

So, it is worth mentioning that the Ihiagwa people are also referred to as the Aguzieafors i.e. the calendar keepers. This means in those pre-British times the Ihiagwa were responsible for keeping the calendar of the surrounding communities and also had the duty of alerting the surrounding communities of the date for the new yam festival and also other dates.

AFRICA TRADITIONAL PROCEDURES OF SETTLING DISPUTE BETWEEN THE PEOPLE OF IHIAGWA

If the bone of contention cannot be resolved by the parties involved either of them may invite a common relation or friend to arbitrate.

Conflict between Husband and Wife

If a man and his wife cannot settle their dispute, the man’s parents are invited. If the wife still disagrees with their advice or judgment a message is sent straight to her parents to come possibly with a confident. Usually they arrive very early in the morning and the parties – the man with his parents and their confident – consider the issue. If the woman is found guilty she is requested to apologize to her husband. She may be urged to cook a delicious meal for her husband to beg for pardon. Her parents may also invite her to their home where she is advised to “change her behavior” and take a new leaf.

Conversely if the man is at fault he will be advised to apologize to her wife though not publicly, but rather do so when they are alone and possibly to buy  her gift e.g.  wrapper (traditional Igbo attire). If the man has falsely accused the wife of adultery he will be urged to kill a goat for her publicly to vindicate her.

Traditional marriage in Ihiagwa involves the active participation of all the man’s kindred as well as the woman’s family hence she is generally and fondly called “Nwanyianyi” our wife. What she does concerns the man’s larger family and everyone takes interest in her ways of life. That is why a conflict between her and the husband may attract the unsolicited intervention of the man’s larger family depending on the intensity of the quarrel. The woman’s children are called “Nwanwaanyi” – Our daughter’s children at their maternal home and are generally regarded as great children who must not be harmed. This intertwined relationship of both families makes it mandatory for all members of both families to encourage the preservation of the marriage which they were witnesses to and had a share in the marriage gifts.

Conflict between Brothers 

When two brothers disagree the elders of the family may intervene or may be invited. If they fail to effect a resolution, daughters of the family married elsewhere, ´Mgboto´, could be invited. These classes of women though married outside the family still have the interest of their parental family at heart and will do their level best to maintain stability in it. In the traditional Ihiagwa community their powers were the dispute eludes their grip the elders of the village are invited.

Conflict between Towns Men

If two disagreeing townsmen cannot resolve their differences, either could report to a selected town elders referred to as Ikoro-Oha. The Ikoro-Oha in turn invites the parties in the conflict to settle the case. This involves a mediator

Conflict between Kindred Relations

In this conflict situation the one who feels being maltreated report to the eldest member of the family who in turn reports to few other elders of the kindred and invites the two parties. If their judgment is unacceptable to any of the parties, that party can urge them to invite other elders of the village or can even invite them. If their decision ties with the previous one it will be unreasonable for that party to go further.

Conflict between Families

If two families are quarreling over a piece of land for example either of them can report to the elders of the village or villages who will try to settle it. whereby they fail, the case is reported to the central Ikoro-Oha comprising elders from all the villages in the town. Where the case defies their settlement it is return to some of the priest of our deities called “Ndi-Ishi-Agbara”. These men were feared by everyone in the traditional Ihiagwa society because of the powers of their Gods, and their decisions were taken seriously for fear of their Gods letting lose their wrath on an erring or disobedient citizen.

PROCEEDING

A typical resolution of dispute in Ihiagwa takes a common pattern. The members of the two parties in dispute are seated together. Usually each party produces a spokesman who rightly may be the eldest among the group or his representative who should be fluent. He is usually versed in the liberal use of anecdotes and figurative language. The spokesman of the plaintiffs is asked to state his case and this supplemented, amended or summarised by his supporters. Members of the other side may ask him a few questions and then present their own case. The defendants may then ask questions make corrections, rebuttals or denials. Thereafter some knowledgeable members of the audience may narrate their own versions as they saw, experienced or heard. hearsay evidence is freely admitted though more credence is placed on direct evidence.

Observers interest in the settlement of the dispute can give evidence for or against either party without being invited. There are basically no technicalities to halt the proceedings except where some people are delegated to go and survey the piece of land in dispute or where the priest of one of our Deity should be consulted to authenticate cases of poisoning or murder.

Otherwise the arbiters go out to confer where the members of the parties in dispute are numerous or ask them out to enable them (arbiter) take decision. Everybody is then called in and the spokesman of the arbiters who should be witty, fluent and persuasive and also independent enough in relationship with either of the parties to allay suspicion passes the judgment. He begins by asking the parties if they will like them (arbiters) take oath which reads thus (if we arbiters) will reject whatever judgment we shall give here if someone else passes it on us may the God kill us). This oath is designed to convince the quarreling parties of their impartiality. If any of the parties is suspicious of their judgment it spokesman will insist that the arbiters take the oath.

This is why facts are of greatest importance in traditional decision making in Ihiagwa. The spokesman makes a general comment on the specific wrongs committed by the parties as well as commendations for specific good behavior such as restraint in the face of provocation and keeping down the quarrel to manageable proportions in spite of temptations to aggravate. The punishment, reparation, compensation or retaliation is then awarded. If the bone of contention is a piece of land it could be returned to the rightful owner or shared between them. Or the erring party could be requested to apologies to the other party with a bottle of gin, keg of palm-wine and oil been salad or a sizeable portion of meat. If the dispute hinges on allegation of adultery, poisoning or revealing a cult’s secret, the reconciliation could be followed by the concoction of a native portion ´Ishioriko´ which members of the disputing parties taste or drink from the same cup, or swearing of oath not to harm the other. Such name as `Ikokwu´ could be given to a new born baby to consolidate the reconciliation between husband and wife. The location of a settlement between two clans may be given a special name.

The aim of adjudication in Ihiagwa is to reconcile the parties by arriving at an acceptable solution in accordance with the values of the community. If they had not been on speaking terms an injunction is given for them to resume communication. Though the winners may rejoice and entertain their friends to celebrate their victory, the losers do not bury their heads in shame.

FEES

Litigation fees in the traditional Ihiagwa community were paltry ranging from 25 kobo to N2 as at 1982 when this paper was published, payable to the chief arbiter.  Disputes between husband and wife or relations which were normally resolved by members of the families did not attract litigation fees. Judges in disputes were not paid as well, but they took the lion share of food and drink which the quarrelling parties were made to present.

The victor in a dispute may be refunded his own litigation fee while that of  the loser is shared among the judges. On the whole there was no class of paid advocates who were hired to present or defend the case for their clients. Rather individuals versed in the act of traditional litigation were consulted privately for pieces of advice.

APPEALS

If either party was dissatisfied with a judgment it could lodge a complaint before a high-powered tribunal or a more influential chief or some more respected elders and the case will start all over again not a re-trial or a review of the previous judgment. If a party rejected a judgment without seeking a fresh adjudication it incurred the displeasure of the community for such action was looked upon as destablising and harmful to the community. The party might then be ostracised in various ways which might include severing various links such as trading discussing or dealing socially with members of the party until it succumbed to the wishes of the community for settlement.

 Conflict that have spiritual dimensions involve incantations, curses, witchcraft and oath-taking, among others, are brought before the traditional and spiritual leaders  including the fetish priests, custodians of deities, herbalists and soothsayers. For example, one party may invoke a curse by using the name of a river or a deity to harm another person for perceived wrong doing. Once the afflicted party realizes through  divination that they have been cursed, the accused is requested to reverse or remove that curse by performing the necessary rituals at the appropriate fetish/shrine and going through the necessary cultural processes. It is also common to invoke an oath during conflicts. A litigant may swear an oath to support his/her claim. When that happens, it is expected that the other party, if innocent will also swear an oath against that claim. In that case, the contending parties having sworn the oath have to go to the paramount chief, fetish or river, etc to perform  the necessary rituals and settle the dispute. However, failure to respond to an oath is  perceived to be admission of guilt until reversed by the custodian of the oath (eg.chief/fetish priest) (Kendie and Guri, 2006)

CONCLUSION AND RECOMMENDATIONS

The elders have been effective and efficient on the resolution of disputes in traditional African communities. Majority of disputes in the African communities were based on land and family disputes. Land was seen as the main influence of economic growth and human development. A significant number of men and women earned their living from the land, from tilling the land as farmers, to animal rearing. As the elders were seen as custodians of land, they were better placed to determine such disputes. On the other hand, family disputes were mainly based on number of women a man was married to, and some cases the legitimate and illegitimate children of a man. In these areas mentioned, it will be justifiable to say the elder(s) were the best custodians of justice in the dispute resolution process.

As the laissez-faire societies grew in size and complexity, the concept of impartiality in the dispute resolution process began to undergo a radical transformation in the traditional African communities. Notably, in communities were the powers of the Clan system became a big challenge. Especially, in a situation a disputant came from one Clan different from the other disputant. In such circumstances, the issue of impartial decision by the deciding elder(s) became one that was seen as controversial.

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