Litigation

Online Dispute Resolution In Africa: The Future Of Justice Or An Imaginative Castle In The Air

INTRODUCTION

Since time immemorial, human life has been a process of constant change with everyday birthing new problems and ways of solving them, and this is reflected in the justice system as can be gleaned from the words of Myers J in Arconti v Smith:“It’s 2020. We no longer record evidence using quill and ink… We now have technological ability to communicate remotely effectively…” Thus, this yearning to keep pace with realities has given rise to online dispute resolution (ODR),  an offshoot of alternative dispute resolution (ADR),[1] which means the adaptation of technological tools and systems for the resolution of offline and online disputes.[2] Although ODR started gaining prominence in the 90s,[3] Covid-19 finally brought it to the limelight in Africa. While African countries are adopting various forms of ODR, such as online mediation, electronic case management systems, and virtual courts,[4] one is left with the question: what is the future of ODR in Africa?

ODR: FAIRLY IN USE BUT HOW FAIR CAN IT YIELD JUSTICE IN AFRICA?

It is worth noting that the dispensation of justice in Africa is marred with inhibiting factors such as corruption, high cost, delay, inadequate judicial personnel, and poor infrastructure, amongst others. However, ODR gives hope with tools that will help in the effective and efficient resolution of not only online but offline disputes too.

Worthy of note, e-commerce is now commonplace in Africa, with over 5, 200 tech startups on the continent.[5]  The proliferation of financial technologies (fintech) and blockchain technologies, such as smart contracts, non-fungible tokens (NFTs), and the Metaverse is a clear indication that life is shifting from physical to virtual. Consequently, the adoption of ODR is a wake-up call to ensure that people’s rights would be well protected in the future as the world has transformed beyond the physical realms. Therefore, an efficient online dispute resolution will be useful in resolving business-to-business (B2B), business-to-consumer (B2C), and consumer-to-consumer (C2C) disputes via ODR platforms such as blind bidding; drafting collaboration; automated negotiation; virtual mediation room; arbitration system; online case initiation, and online/virtual courts.[6]

Concerning offline disputes, if there had been any modicum of doubt about ODR as the path to justice in the nearest future, the pandemic dispelled the myths, pushing the reality right into our noses enough to sense the truth. Interestingly, ODR does not come to only challenge the status quo but to complement it. For instance, the adoption of virtual court proceedings in countries like Nigeria[7] and Ghana is a pointer to how ODR can be relied upon in expedient circumstances due to its flexibility.

Furthermore, the adoption of electronic case management systems in African countries is no doubt paving way for justice in reducing costs through filings and serving of notices. Also, better information management systems and the adoption of artificial intelligence (AI) and deep learning machine technologies in case management in courts and tribunals will not only speedy up the process but also lessen the work, thus enabling a more rapid and efficient delivery of justice to a wider population.

While judges and other ADR tribunals may be partial, non-human ODR tools will reduce the chances of reaching biased and unjust decisions. Thus, it suffices to aver that, with the prevalence of many failures in African legal systems, ODR provides an avenue for justice to take it place in the society as everyone will be given his/her due irrespective of who they are and wherever they are.

BEYOND THE PROSPECTS: A SEED CAST IN THORNS OR ON FERTILE SOIL?

Like the parable of the sower in Mathew 13: 4-8, no matter how good a seedling may be, the environment determines its success, and this lies the fate of ODR in the future of justice in Africa. ODR needs the internet to survive but internet penetration in Africa is a challenge as only 40% of Africans have access to it.[8] Going by the utilitarian theory of the greatest good for the greatest number of people, the availability of justice to 40% to the exclusion of 60% is not good.

Also, the lack of access to electricity by many would render ODR less applicable. According to the African Development Bank Group, 640 million Africans live without electricity,[9] and even for those with electricity, it is not stable due to power outagess. By implication, the inaccessibility and instability of electricity will render access to the internet impossible which will also affect access to justice.

Another issue which is a thorn in the flesh of ODR in Africa is the rate of digital literacy, together with the lack of technical skills in operating ODR mechanisms. For instance, Nigeria which tops the list of digital platforms in Africa still has more than 50% of people without digital skills who cannot use digital services.[10] The effects of this digital divide are far-reaching as ODR will not only be inapplicable but would face stiff resistance from many people.

In addendum, the legality of ODR in most African jurisdictions is a clog in the wheel to its acceptability and adoption especially in litigation. Without a firm legal framework, it will continue to face problems like in Nigeria where the constitutionality of virtual court proceedings under section 36(3) and (4) of the Constitution[11] was challenged.[12] Also, there are concerns about privacy rights and the reliability of ODR due to the fallibility of human inventions and vulnerability to hacking and manipulation.

CONCLUSION/RECOMMENDATIONS

Notwithstanding the challenges to be faced by ODR, neglecting its veritable role in the future of the African justice system is like rejecting the possibility of a baby coming out of pregnancy. However, for it to succeed, the legal framework must be laid and sufficient resources invested in building a digital ecosystem where ODR tools and platforms would be effectively utilised in the dispensation of justice irrespective of time, distance, and cost. Interestingly, ODR is to litigation and other ADR mechanisms as equity is to common law, and the waters of both can run and even mix in the same channel in attaining justice.


[1] Bongkiyi John Pau, ‘Online Dispute Resolution: Its Prospects and Potential for Cameroon” (2021) Zien Journal of Social Sciences Ononogbu and Humanities, 1(1), pp 86-95 <https://zienjournals.com > accessed 15 November 2022

[2]  Rabinovich-Einy O. and Katsh, E. Digital Justice: ‘Reshaping Boundaries in an Online Dispute Resolution Environment’ (2014) International Journal of Dispute Resolution, 1(22).

[3] Bongkiyi (n 1)

[4] Ijeoma, Africa: Dispute Resolution in the Digital Age (75th session of UNCITRAL Working Group II on Dispute Settlement, March 2022).

[5] McKinsey & Company, Fintech in Africa: The end of the beginning (30 August 2022) <https://www.mckinsey.com/industries/financial-services/our-insights/fintech-in-africa-the-end-of-the-beginning> accessed 15 November 2022.

[6] Deepak Verma, Anshu Banwaru and Neerja Pande, “Online Dispute Resolution” (Intech Open, 19 September 2018) <https://www.intechopen.com/chapters/61440 > accessed 15 November 2022

[7] Olugasa O. and Davies A., ‘Remote Court Proceedings in Nigeria: Justice Online or Justice on the Line’ (2022) International Journal for Court Administration, 13(2), p. 2. < http://doi.org/10.36745/ijca.448 > accessed 15 November 2022

[8] Adeyemi Adepetun, “Internet users in Nigeria, South Africa, Kenya, Others up by 13%” (The Guardian, 21 September 2022) <https://guardian.ng/technology/internet-users-in-nigeria-south-africa-kenya-others-up-by-13/ > accessed 15 November 2022.

[9] African Development Bank Group, “Light Up and Africa – A New Deal on Energy for Africa” <https://www.afdb.org/en/the-high-5/light-up-and-power-africa-%E2%80%93-a-new-deal-on-energy-for-africa > accessed 15 November 2022.

[10] Godsgift Onyifinefu, “Over 50% of Nigeria’s population lack digital skills – World Bank” (Business Day, 19 May 2022)  <https://www.google.com/amp/s/businessday.ng/amp/technology/article/over-50-of-nigerias-population-lack-digital-skills-world-bank/ > accessed 17 November 2022.

[11] Constitution of the Federal Republic of Nigeria, 1999 (as amended)

[12] Tobi Soniyi, “Judges Oppose Virtual Court Sitting, Says It’s Unconstitutional” (This Day, 2020) <https://www.google.com/amp/s/www.thisdaylive.com/index.php/2020/05/17/judges-oppose-virtual-court-sitting-say-its-unconstitutional/amp/ > accessed 16 November 2022

author-avatar

About Francis A Wayo

Francis is a LL.B candidate at Obafemi Awolowo University, Ile-Ife/WIPO Academy Alumnus/Former intern at S.P.A Ajibade & Co, Omaplex Law Firm, and Pensbury Attorneys and Solicitors/Winner of several essay competitions including Funmi Roberts and Ifelaw Annual ADR Essay Competition (2nd edition), The Mavericks Annual Essay Competition in Memory of Dayo and Joy 2022, and Federal Social Democrats Undergraduate Essay Competition 2021. His areas of Interest: Intellectual Property, ADR, and Human Rights.