DigitalSENSE Business News2. Trial by Combat
As the family groups started to come together through clans and ethnic groups, the society gets more organized and secure. Disputes among members of the family were settled by family heads, while disputes among two or more families were settled by clan heads. In the same vein, any decision affecting the entire community or settlement was taken by the clan heads.
The clan heads of the community decide whether to go to war with a rival community or not i.e TBC. This method of dispute resolution is still prevalent today with the Heads of States or Government of Nations declaring war to settle a disagreement with a rival leader. Wars may also occur between warring parties who contest an incompatibility. The nature of an incompatibility today can either be territorial or governmental but a warring party must be a “government of a state or any opposition organisation or alliance of organisations that uses armed force to promote its position in the incompatibility in an intrastate or an interstate armed conflict.”
A classical example of such TBC which is essentially “might is right” is how the North Korean Leader Kim Jong Un settled his dispute with his uncle Jang Song-Thaek:
The New York Times reports that the Jang’s death was the end result of a brutal gun battle between Jang supporters and those of the regime over who controlled key land.
As the Times tells it, Kim’s forces were ordered to take back control over important fishing grounds that Jang had previously seized, but Jang wouldn’t give it up without a fight. The battle ended in the death of many of Kim’s soldiers.
Kim was furious and ordered that Jang’s top aides be executed. According to the Times, the two men were killed with antiaircraft machine guns rather than regular guns or rifles.
Yomiuri Shimbun, a Japanese newspaper, reported that Kim was “very drunk” when he ordered the death of Jang’s men.
Earlier this month (December, 2013), Jang was executed for allegedly committing treason... Jang was accused of corruption and substance abuse, among other crimes that could not be verified by Western media.
Another instance of such TBC was the initial step taken by the then belligerent Countries in the Nigeria / Cameroon dispute over the Bakassi peninsula which resulted to skirmishes:
Among the many border disputes that Cameroun and Nigeria have had in the years since independence, the Bakassi peninsula stands out very clearly as the most serious dispute of all. ...The show of arms, especially in the past seventeen years, has left many dead and wounded. Fighting occurred on the lands surrounding the peninsula, (which are equally disputed), on the peninsula itself, and on the sea...
Things became heated on May 16, 1981. A Cameroun national radio news report informed the world that a Nigerian military patrol army violated Cameroun’s territory by penetrating the Bakassi peninsula as far as the Rio del Rey and opening fire on the Cameroun Navy.
Cameroun troops in returning fire killed five Nigerian soldiers. Cameroun alleges that this incident has provided the Nigerian authorities the pretext for exploiting the incident politically and for trying to put the blame on Cameroun.
However as it would be explained in detail below, when Cameroun weighed its population size and other options, it veered off to explore other methods of dispute resolution.
The Boko Haram insurgency that is today a clog in the peaceful co-existence of the people of the North East also are inclined to TBC as their mechanism of choice to resolve what could have been resolved through other peaceful means. Findings indicated that the group, which initially drew membership from the South-West, started off as “The Taliban.” It was first invited to Yobe State during the build-up to the 2003 elections, in the wake of Sharia implementation in some states in the North. However, because the election in the state did not assume the dimension their host thought it would take, the group was said to have been abandoned to its fate, before the state government ordered them to vacate its vicinity.
It is reported that the group surfaced in Bayan Quarters ward, near the Railway terminus of Maiduguri, Borno state under the aegis of Jamaatul ahlil sunna lida’awati wal jihad (People committed to the propagation of the Prophets teachings and holy war). Initially seen to be innocuous, but exhibited their propensity for resort to settle disputes through TBC since the disturbance of 2009. They were defeated in the uprising and order was restored. However, they still carry out a hit and ran style guerrilla warfare against soft targets from their hideouts in the forests.
It is observed that TBC is very popular among separatist agitators and proponents of intergroup conflict in Nigeria and indeed the whole of Africa. A cursory look at the activities of Movement for the Emancipation of Niger Delta (MEND), Movement for the Actualisation of the Sovereign State of Biafra (MASSOB), Odua People’s Congress (OPC),
The Egbesu Boys, Akhwat Akwop Militia, The Bakassi Boys, Ethnic/Tribal Militias among which the Ombatse Cult Group stood out to be counted among the most ruthless along with Boko Haram indicates their penchant to resort to violence to settle disputes or disagreement. It is worthy of research to find out why the resort to such dastardly method by such groups, because answering the “WHY” question would give us an insight into their thinking and thereby proffer reasonable solution to stop the carnage.
3. Trial by Judge(s) with or without a Jury
Trial by Judge(s) refers to a formal legal process or a formal examination of facts and law in a civil or criminal action before a court of law in order to determine an issue. It can also refer to the use of court process to determine an issue or somebody’s guilt or innocence.
Under the Adversarial adjudicating system which we follow in Nigeria, the Judge (without the jury, a
group of citizens from the community), decides which facts in dispute are true. A judge presides at the trial, determines and applies the law. At the end of the trial, the judge will enter a judgment that constitutes the decision of the court. The parties must adhere to the judgment of the court.
In Nigeria cases are tried before judges. This is known as a court trial or a bench trial. A court trial is basically identical to a jury trial, except the judge decides both the facts and the law applicable to the action. In some jurisdictions like the United States however, actions created by statute may be tried only before the court without a jury. Although in some court trials, the court will have an Advisory Jury. The advisory jury observes the proceedings just as an ordinary jury would, but the judge need not accept the advisory jury’s verdict.
Today, it is the most widely used and acceptable means of dispute resolution. This informed the migration of most disputes more particularly from TBC to adjudication. For instance, when Cameroun weighed the options of going into full scale war (TBC) against Nigeria and realised that the odds could be turned against it, it instituted an action at the International Court of Justice (ICJ) at the Hague.
Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements; good offices should also be added to the list. Among these methods, some involve appealing to third parties. For example, mediation places the parties to a dispute in a position in which they can themselves resolve their dispute with the intervention of a third party.
4. Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) also known as external dispute resolution in some countries, such as Australia includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is also referred to as a collective term for the ways that parties can settle disputes, with (or without) the help of a third party.
Most discerning minds have come to appreciate the shortcomings of BF, TBC and TBJ means of settling disputes. More so, African culture and tradition is inclined to dialogue and negotiation to settle disputes. This informs the challenges of lack of understanding of the English judicial system by an average Nigerian due to its technicalities and complexities. This ignorance about how the system works might have informed the branding of Lawyers who took the pains to study and understand it as Liars. In the circumstance, as Dr. Ahmadu Ali said, “we must try to settle our disputes through dialogue.” Hence the desire to adopt (ADR) which is simpler, convenient, cheaper and in tune with the peoples culture and local knowledge.
Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR for some type of cases, usually mediation, before permitting the parties’ cases to be tried. While some Courts like the High Court of Justice, Borno State designate a specific Judge as an ADR Judge.
Indeed the European Mediation Directive (2008) expressly contemplates “compulsory” mediation. This means that attendance is compulsory, not that settlement must be reached through mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes.
Further detailed explanation would be found in the following chapter. Due to the existence of a thin line between dispute and conflict and the use of same by some practitioners interchangeably, a brief discussion on the two concepts is made hereunder.
Conflict
Since conflict is sometimes interchangeably used with dispute, it is important to briefly touch on what conflict is. Accordingly, for ease of understanding below is a brief explanation of conflict.
Conflict is defined as a disagreement through which the parties involved perceive a threat to their needs, interests or concerns. Conflicts like disputes explained above are seen as normal occurrences in human societies. Ordinarily, it does not cause much impact on the society. However, organized conflicts are viewed differently.
War being the most organized form of conflict (TBC) would therefore be widely used in this discourse. In addition, it is also the type of conflict that has wider and most negative effect on human societies.
War is an organized and often prolonged conflict that is carried out by states or non-state actors. It is generally characterized by extreme violence, social disruption, and economic destruction. War should be understood as an actual, intentional and widespread armed conflict between political communities, and therefore is defined as a form of political violence or intervention. The set of techniques used by a group to carry out war is known as warfare. An absence of war is usually called peace.
Wars sometimes seen as a higher form of dispute which has degenerated into conflict) sometimes conclude with a peace agreement, defined as a “formal agreement between warring parties, which addresses the disputed incompatibility, either by settling all or part of it, or by clearly outlining a process for how the warring parties plan to regulate the incompatibility.” In a nutshell, after war with all its consequences, most times the parties would still sit down to sign an agreement.
For instance, after the famous first Arab/ Israeli war or conflict, the parties still reached a cease fire agreement as can be seen in the illustration below:
Moshe Dayan and Abdullah el Tell reached a cease fire agreement during the 1948 Arab–Israeli War, Jerusalem. 30 November 1948.
Since then the Arab–Israeli conflict became an ongoing dispute that included many battles and wars since 1948, when the state of Israel was formed. During the Six-Day War of 1967, Israel had captured Egypt’s Sinai Peninsula and roughly half of Syria’s Golan Heights. According to Chaim Herzog:
On June 19, 1967, the National Unity Government of Israel voted unanimously to return the Sinai to Egypt and the Golan Heights to Syria in return for peace agreements.
The Golan would have to be demilitarized and special arrangement would be negotiated for the Straits of Tiran. The government also resolved to open negotiations with King Hussein of Jordan regarding the Eastern Border.
So Dispute and Conflict resolution practitioners have been concerned with the penchant of parties to resort to violence, even though are conscious of the fact that other better alternatives are still open to them. However detailed explanation on various methods of Dispute Resolution would be found in the following chapters.
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