Arbitration and human rights in Africa

 Andrew I Chukwuemerie
 LLM (Lagos)
 Mediator and Arbitrator, World Intellectual Property Organisation, Switzerland; Member, London Court of International Arbitration; Partner, Okibe Lawhouse, Legal Practitioners, Arbitrators, Port Harcourt, Nigeria; Studies Director, Centre for Arbitration Studies, Port Harcourt; Professor of Law, Ebonyi State University, Nigeria
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 Edition: AHRLJ Volume 7 No 1 2007
  Pages: 103 - 141
 Citation: (2007) 1 AHRLJ 103-141
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Summary

With a colonial background and, in many cases, years of military and other forms of dictatorship, most African countries have elaborate constitutional provisions for the protection of human rights. Colonialism and those dictatorships involved the extensive denial and abuse of citizens' rights. Independence and cessation of dictatorships therefore invariably involved keen resolves to ensure the protection of citizens' rights in all practicable ways. African constitutions are therefore quite elaborate, for instance, with provisions that confer on every citizen or resident of the country in question such rights as those of unfettered access to courts for the determination of causes and matters as well as a requirement of public hearing of cases and pronouncement of judgments or findings. Most African countries are also now embracing commercial arbitration for the resolution of disputes. They are equally making serious efforts to transform themselves into preferred venues for international arbitrations by business people and business entities. Since arbitration is fundamentally a private and confidential process and an election to go to arbitration is in one way or the other a decision not to go to court, whether or not arbitration breaches citizens' human rights, is becoming an important issue on the continent. This article examines the question and finds that, unlike the situation in some other parts of the world, arbitration and human rights are not in any form of conflict on the continent. Therefore, arbitration does not breach human rights in Africa. African countries have rather worked out a synergy between the two streams of law. The article also finds that the situation is the same in the customary law and that, in working out this synergy, the continent has shown a worthy example to the world just as it did with the idea of an international customary law arbitration.

1.  Introduction

In Africa, human and peoples' rights are issues of prime importance. Some of the rights provided for in the constitutions of African countries are those that concern the proper administration of justice. These are the rights of access to the courts and to a fair hearing within a reasonable time, as well as the right to a public hearing and public declaration of judgment. [1] These rights are also enshrined in the African Charter on Human and Peoples' Rights (African Charter). The right of access to a court ensures that all citizens are able to take their grievances against the government or any other citizen to impartial umpires paid by the state for determination according to law. A public hearing and a public delivery of judgment minimise the risk of deliberate miscarriage of justice. They promote probity and public scrutiny of the administration of justice. Considering that many African countries are developing political cultures, these rights are of enormous importance. [2]

As arbitration law and practice grow in importance in the different African countries, [3] the question whether or not arbitration proceedings violate these cherished rights is assuming tremendous practical importance. In the same way, whether or not an infringement of any of the rights is arbitrable is becoming a very important question in Africa. Prima facie, there are conflicts between these rights and some of the sacred principles of arbitration. For instance, against constitutional provisions guaranteeing unfettered access to the courts for the determination of practically all manners of causes and matters, [4] a recourse to arbitration is in all African countries — as in most jurisdictions — a waiver of the right of access to court for the particular dispute. That, in a sense, is an ouster of the court's jurisdiction to entertain such matters, at least unless and until the parties have attempted arbitration. [5] In those African countries that have enacted national statutes that are based wholly or partly on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, 1985, [6] statutory provisions even expressly and almost completely oust the jurisdiction of the courts to entertain any cause or matter that is the subject of an arbitration agreement. [7] Constitutional provisions requiring the public hearing of cases and public delivery of judgments [8] are in conflict with privacy of hearing and of awards which are hallmarks of arbitration. [9] While such constitutional provisions secure for every citizen lawfully conducting himself a right to attend and watch/participate in the proceedings of a court or other tribunal set up by law, [10] except in extremely rare cases, [11] an arbitrator or arbitral tribunal is bound in law to exclude the public — all persons except those allowed in by the parties themselves. [12]

Ordinarily, these are areas of conflict between fundamental rights and arbitration. It is a conflict that has been recognised by, and is worrisome to, arbitrators, arbitration practitioners, constitutional lawyers and foreign investors. These stakeholders have recognised the conflict as existing not only in Africa but in practically all parts of the world. [13] In foreign investment-seeking or -receiving countries, which most African countries presently are, the matter is of even greater importance. Investors may be encouraged or discouraged from investing in a particular economy depending on whether or not the conflict has the capacity of compromising a vibrant recourse to commercial or investment arbitration in or by that country. [14]

This article examines these issues and finds that beneath the surface there is really no conflict between arbitration and human rights in Africa. The article finds that, rather, a very good symbiosis has been worked out, even if unwittingly, by African countries, between human rights and arbitration. It canvasses the view that the right to a fair hearing within a reasonable time is far more secure during arbitration than before courts and other tribunals. It finds further that, in working out the symbiosis referred to above, Africa has taken the lead, just as it has done in another area with respect to commercial and investment arbitration. [15] It is further the argument of the article that this symbiotic relationship between human rights and arbitration, which enables the continent to profit appropriately from two otherwise conflicting but very necessary streams of law, was not worked out merely to engender foreign investment, but in the search for substantial justice. It is also my view that, even if there was any conflict, it is in the interest of African countries, as of all countries, to make exceptions in favour of arbitration with respect to those rights. This would be notwithstanding the enormous importance of the rights of access to courts and of public hearing and delivery of judgment. As international commercial arbitration gains popularity in study and use in Africa, everything must be done to ensure that it thrives and brings to African countries the tremendous benefits which other countries and regions have derived and are deriving from it. [16]

The article also examines whether or not human rights disputes ought to be arbitrable in Africa. This is an issue which hardly attracts scholars' attention. Such disputes are routinely taken to courts. However, in Africa the question deserves careful examination, even if circumstances in other parts of the world are different. Human rights abuses by governments and state agencies often occur on the continent. More than in most other parts of the world, congestion and delays in the court system make the dispensation of justice by the courts far less effective than by arbitration. [17] For this and other reasons, the risk that justice will not be done is particularly so when the state — which sets up and funds the courts and also appoints judges — is a party. Also, the state (embodied by the government or government agencies) is generally the defendant in human rights matters. [18] On the other hand, arbitration remains the most effective dispute resolution mechanism in the world. [19] What is more, though arbitration is generally consensual — flowing from private agreements — and human rights disputes often arise in ways and manners that do not enable or permit the parties to reach an agreement to arbitrate, statutory arbitrations thrive on the continent. These statutory arbitrations, such as trade dispute arbitrations, also involve governments and their agencies. There is no reason why human rights arbitrations fashioned after statutory arbitrations should not thrive. The article argues that as of now, arbitration is the best, if not indeed the only way to secure real independence of adjudicators and real speedy justice against most African governments and their agencies in human rights matters.

The article examines arbitration and human rights in African customary law, both in historical and contemporary perspectives. This is necessary because customary law remains a very important part of the law or legal system of practically every African country. [20] In its various forms [21] and variance in details from place to place on the continent, [22] it remains the private law of a good percentage of African people. Such people are not just illiterate village dwellers. In many cases they are also well-educated persons resident in cities but who have chosen, even if unwittingly in some cases, to have customary law regulate their intimate personal affairs. [23] However broadly the African constitutional provisions on human rights may be framed, there will always be patterns of behaviour following ‘the contours of norms' that are indigenous to the people within or outside the constitution and there will always be interactions that will be shaped by (and disputes resolveable only by) standards and procedures emanating directly from the day to day traditional life of the people and the reality of their society. [24] In this writer's view, therefore, this discussion will be grossly incomplete, and indeed a denial of the very nature of Africa and African laws, if it does not also examine the subject from the perspective of customary law. There is nothing in any African constitution suggestive of an intention to abrogate customary law rules. On the contrary, customary law, at all appropriate points, complements the constitutions and other statutory provisions on relevant subjects, including human rights. Indeed, with respect to human rights, just as in other areas, the constitutions ‘leave a wide range of matters in personam by what may be referred to as ‘‘operative rules and norms”', which include indigenous or customary legal institutions and rules. [25]

After discussing the relevant issues as they relate to customary law, the article examines human rights provisions in the different African constitutions under appropriate subheadings. It also considers relevant provisions of the African Charter and examines the meanings that have been attached, or are likely to be attached, to these constitutional and Charter provisions. The provisions as interpreted are juxtaposed with arbitral proceedings to see how they affect arbitration positively or negatively. Where decisions have not yet been made on any relevant constitutional or Charter provision, reference is made to decisions on similar conventions and statutes in other parts of the world. In this respect, decisions on the European Convention on Human Rights and the English Human Rights Act, 1998, are useful. All such decisions are, of course, mere examples of what African courts or the African Commission on Human and Peoples' Rights (African Commission) may decide to do or pronounce in similar circumstances; that is, they are only of persuasive influence or value.

2.  Customary law arbitration and human rights

This writer has attempted to show in different ways in other works that arbitration and alternative dispute resolutions (ADRs), such as conciliation, mediation and negotiation, were firmly entrenched in the old traditional African societies and were part and parcel of the people's life, though not called by these English names. [26] Those works also showed that as of now, customary law arbitration has grown to cover disputes in even such matters as oil and gas operations as well as some aspects of international trade and investment. These issues do not bear repetition here.

Like all incipient societies, however, early African societies did not have a human rights charter. Such things evolved with time in each society. [27] The effect was therefore that, in ancient African societies, most of which were organised into empires and kingdoms, little importance was attached to the observance of human rights. It was therefore in some cases possible for human rights to be flouted, even with impunity. [28] In many societies, human rights generally depended on the social status of the person in question. [29] A slave was for all intents and purposes an object or subject of ownership (a piece of property as it were) and was not entitled to many of the rights guaranteed by law — such as access to courts, a right to a fair hearing and a public hearing.

Slaves were not entitled to go to court and could not appoint an arbitrator. It was the practice that they could complain to a person outside the slave owner's house or state their case in any dispute with an outsider through their owner. A complaint or case against a slave would be made to or through that slave's owner. An owner would therefore pursue in his own name any arbitral or court proceeding between the slave and a freeborn. The slave owner in such proceedings occupied a higher position than a parent, guardian or friend does today in proceedings involving an infant. [30] The question of whether or not a resort to arbitration amounted to a breach of his right of access to court or of fair and public hearing therefore did not arise at all.

Generally amongst freeborns outside the monarchy, there was equality of persons before the law. Each person had a right of access to the courts just as much as he had to arbitration and alternative dispute resolution generally. [31] There were no statutory or constitutional provisions that made access to courts a superior right over access to arbitration, or granting an exclusive or preferential jurisdiction to the courts over other dispute resolution fora in the manner that the present provisions on access to court seem to suggest. As a matter of fact, the traditional African environment did and does give preference to arbitration and alternative dispute resolution over litigation. Therefore, a separate or exclusionary right of access in favour of the courts could only be a mirage. [32]

Whether or not a public hearing and delivery of judgment were strict requirements of customary law depended on the part of Africa in question. Whilst they were strict requirements in most language groups of South Africa, [33] Igboland in Nigeria and Asante in Ghana, it was not so in the Upper Volta regions and among some of the language groups of North Africa. [34]

In modern African customary societies, this has changed a great deal. For instance, the institution of slavery has long been abolished and every person enjoys equality before the law.

Concerning the right of access to courts vis-à-vis the right or choice to arbitrate, the legal position will depend on the courts that are used. If it is access to customary courts as against customary arbitration, the position is exactly as it was in pre-colonial times when Western-style constitutions and courts were not yet in place. If it is the right of access to Western-style courts (set up by constitutions) as against customary law arbitration, the situation is akin to that of Western-style courts against Western-style arbitration which is discussed below. With respect to the right to a public hearing and the public delivery of a finding, the position varies depending or whether or not the courts in question are customary or Western-style courts. [35]

With respect to the principles of a fair hearing, the position has remained the same. Observance of the relevant principles ensuring a fair hearing is a sine qua non for the exercise of any judicial, quasi-judicial or other adjudicatory power, including that of an arbitrator, under customary law. A person cannot be an arbitrator over a matter if he has a personal interest in it. He cannot be a judge in his own cause. It is equally so if his spouse, child, parent, brother, sister or other relation has an interest in the matter. If the arbitrator manifests bias against any party in the proceedings, his award is completely invalid. It seems clear that it would be of no moment that the award went in favour of the person against whom the bias was shown. [36]

One unique principle in the observance of human rights (including the rights of access to courts and public hearing) in traditional African society of the past and present is the concept that every man is his brother's keeper. This concept has ensured an admixture of rights and duties. As a man is given rights, he acquires also certain duties and responsibilities which he owes other members of the society. He cannot claim rights except alongside the execution of his duties. The individual's rights cannot be claimed against society except as part of society's rights and cohesive system. The position is well captured by the late Professor Claude Ake: [37]

Another commentator put the matter this way:  [38] 

This is a defining characteristic of the typical African traditional society. It must, however, be properly appreciated to avoid the rather sweeping and erroneous extension or interpretation which a few scholars, even African scholars, have tried to put on it. One such scholar has interpreted it as a ‘mentality of assistance', indeed a ‘colonial mentality' under which [39]

With due respect, if this is actually the position anywhere in Africa, it is the exception rather than the rule and must be at the fringes of the continent. Much as African society ensures a high degree of brotherhood and collectivity, it does not destroy individuality or initiative. Uniqueness and initiative resulting in personal differences, approaches and dispositions ensure dynamism for the society. A very high degree of republicanism has always existed in such societies as the Igbos of Southeastern Nigeria and in some other parts on the continent. Nguema in the same article identified four types of traditional African societies and the proposition could never have been true of the four types. It is also worth noting that no authority for these assertions was cited, nor did he name any society where that is the position. Such scathing remarks on the kinship principle, particularly as it concerns human rights, stem from a hangover of mental colonialism and an insufficient perception of the differences between the obsessive concern of the West for the individual and the commendable African emphasis on the collective. This difference has been expressed very well by another writer as follows: [40]

3.  Relevant constitutional provisions

3.1  Right of access to court

One of the rights that prevents or curtails political and other forms of persecution is the right of access to the courts. The right is so fundamental for any society that it is recognised as a constitutional right, even in jurisdictions with unwritten constitutions, [41] unless it is expressly excluded by law. [42] It is one of the bedrocks of a proper administration of justice that to deny a citizen access to the courts is an outright denial of justice and the rule of law and indeed a breach of his right. We can therefore safely assert that it is an existing right, even in the few African countries where the constitutions are silent on the point. [43] In these countries the people have a right of access to justice. In each cause or matter they are at liberty (subject to regulation by statutes and non-statutory legal principles) to choose to go to court or to choose any other mode of dispute resolution.

In fact, the right of access to a court is sometimes actually regarded as synonymous with, and the embodiment of, the right of access to justice. Such an impression or emphasis is particularly the case in countries emerging from colonialism or dictatorial and oppressive regimes. It exists because litigation has previously been the major or principal mode of dispute resolution. Framers of constitutions normally have only courts and formal tribunals set up by government in mind when framing provisions for access to justice or to dispute resolution fora. It is mainly this mindset that breeds the problem or question as to whether or not arbitration and other informal or private dispute resolution mechanisms operate in breach of parties' right of access to courts or, in that sense, to justice. This is because (with only litigation in mind) the framers of constitutions routinely impose on adjudicators such requirements as the observance of a public hearing and the publication of the decision, which fly in the face of the core values and strengths of arbitration over litigation. [44] We shall now examine African constitutional provisions on the right of access to courts with a view to seeing if and how a resort to voluntary arbitration may amount to a breach of that right.

As already stated, some countries have no constitutional provisions conferring a right of access to the courts, but this does not mean that citizens have no such right. It simply means that they have an equal right of access to the courts and all other dispute resolution mechanisms. Even if unwittingly, such constitutional provisions avoid the error of giving the unintended impression that litigation is the only recognised or the preferred dispute resolution mechanism or that it is superior to other mechanisms. In such countries the question of whether or not a resort to arbitration breaches a party's right of access to court does not arise. It will at best be a mere, and indeed mute, academic point.

Other constitutions confer rights of access to the courts in a manner that purports to convey finality and rigidity on the point. For instance, article 68 of the Egyptian Constitution provides that ‘the right to litigation is inalienable for all, and every citizen has the right to refer to his competent judge'. The 1994 Ethiopian Constitution provides in article 37 that every person has the right to bring ‘justiciable disputes to, and obtain a decision or judgment by a court of law or, where appropriate, by another body with judicial power'.

Prima facie this right and others like it seem to be an absolute right. It must be noted, however, that what these sorts of provisions seek to achieve is simply the protection of a citizen's right to go to court if he so wishes. No constitution in Africa or anywhere else imposes upon any person a duty to go to court in a civil matter [45] if he does not want to. The provisions also do not expressly negate or exclude all other dispute resolution mechanisms such as arbitration. The question that arises is whether, if a party voluntarily enters into an agreement to go to arbitration with another party, can he, when a dispute actually arises, refuse to go to arbitration on the allegation that the arbitration agreement or a consequent arbitral proceeding would be in breach of his right of access to court? In other words, does the making of an arbitration agreement amount to a waiver of his constitutional right to litigation or is he, by virtue of such a constitutional provision, unable to waive the right to litigation? In these matters, no case law or judicial interpretation of the relevant provisions can be found on the continent. Neither an African court nor the African Commission seems to have encountered the point, though it would appear that in the case of Scot v Avery arbitration clauses, there is a clear waiver of the right of access to court. [46] With respect to cases involving other than Scot v Avery clauses, and outside the statutes based on the UNCITRAL Model Law, a cue can be taken from the European Commission and Court of Human Rights which have held in a number of cases that the right of access to court is by no means an absolute right, but one subject to limitation; [47] and that by its very nature the right of access to court may be waived by a party in preference to another dispute resolution mechanism such as arbitration, provided that the waiver is unequivocal. [48]

In considering article 6 of the European Convention, the European Commission has held that the voluntary making of an arbitration agreement is a waiver of the right of access to court.  [49]However, African courts and the African Commission can hardly find such reasoning persuasive. There is nothing in the mere making of an arbitration clause that automatically ousts the jurisdiction of the courts. The clause can after all be an Atlantic Shipping clause [50] or even a Union of India clause, [51] either of which implicitly preserves court jurisdiction, unlike a Scot v Avery clause. It is therefore only with respect to Scot v Avery clauses [52] that African courts and the African Commission can find an automatic waiver of the right of access to the courts. [53] It also needs to be pointed out that, where a resort to arbitration is not voluntary but compulsory, the parties cannot be said to have waived their right of access to court. Their choice of arbitration is not the product of the exercise of their will. [54]

Therefore, a resort to arbitration can fail to act as a waiver of a party's right of access to court and, arguably, become a breach of that right if, and only if: [55]

(a)    it is a compulsory/statutory arbitration not predicated on an agreement freely entered into by him;

(b)    the choice of arbitration and the consequent waiver of the right of access to court are not unequivocal;

(c)    the arbitrator compels him as a third party to join the process despite the fact that there is no arbitration agreement binding upon him;

(d)    through some artificial processes (such as the piercing of a corporate veil, the alter ego doctrine or the ‘group of companies' doctrine), it (the party) is brought in as a sister organisation to one of the parties. Such a bringing in or inclusion of a third party cannot be regarded as a clear waiver of its right to go to court. 

It is only in these circumstances that an arbitral proceeding in those African countries can be viewed as being in breach of the constitutional right of access to court. Even then investors and business organisations operating or wanting to operate in such countries have no reason for fear or apprehension. Compulsory arbitrations (ie (a) above) are encountered only in trade disputes between employers and employees. Such arbitrations do not normally affect the investment and business potential or chances of the parties, particularly when they are expatriates or owned by expatriates. [56] Subheads (b) and (c) above cannot arise unless the parties themselves bring them about. The arbitration of investment disputes can be effectively resorted to in such places just as any other.

The third, and more difficult type of provision of the right of access to court in African constitutions is the case in which the constitution provides for dispute resolution in court and ‘other tribunal established by law'. The Constitution of the Republic of Malawi, 1994, provides in section 41 that every person shall have access to any court of law or any other tribunal with the jurisdiction for the final settlement of legal issues. In section 23(2), the 1991 Constitution of Sierra Leone equally empowers ‘any court or other authority' prescribed by law for the determination of the existence or extent of civil rights or obligations, to hear causes and matters. The Constitution of the Republic of Togo provides in article 19 that every person shall have the right in all affairs to have his cause heard and decided equitably by an independent and impartial jurisdiction within a reasonable time. There is nothing in the Constitution restricting the meaning of ‘jurisdiction' to courts only. Rather, it seems obvious that tribunals are included.

Article 18(9) of the Zambian Constitution, 1991, is even more liberal, by granting parties a right to exclude a public hearing by agreement. Article 28(1) of the Ugandan Constitution, 1995, confers on courts or ‘tribunals established by law' the jurisdiction to entertain disputes over people's civil rights and obligations. Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, provides that in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality. Section 34 of the South African Constitution, 1996, provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a ‘court or, where appropriate, another independent and impartial tribunal or forum'. [57]

The germane question here is whether or not arbitral tribunals fall under the term ‘other tribunal established by law' or its several in these and similar provisions. If arbitral tribunals fall within the scope of ‘other tribunal', it means that constitutional requirements in each such country for public hearing/trial and the publication of judgment bind arbitral tribunals and thus effectively destroy confidentiality, one of the attractive hallmarks of arbitration. [58] In such a case, any arbitration conducted in private would amount to a breach of the parties' right to a public hearing and public pronouncement of decision. Such arbitration would be unconstitutional and therefore invalid and completely null and void. [59] A resort to arbitration, properly so called, would be a breach of a party's right. Such a scenario would enable a shifty businessman to enter into an arbitration agreement, derive all possible benefits from the transaction, and after the dispute resile from arbitration and insist on litigation. He would even most probably insist on litigation in his own country's courts. Such a legal regime would hardly be consistent with the yearnings of African nations and their concerted efforts through NEPAD. [60] It would also negate their efforts, made through modern and progressive arbitration statutes, to attract direct foreign investment and to make their shores attractive venues for transnational arbitral proceedings. [61] I seek to show here that arbitral tribunals are neither ‘other tribunals' in those provisions, nor does a recourse to arbitration constitute a breach of any party's right to have his matter heard and determined by a court or ‘other tribunal'. 

Taking the latter first, that is, if arbitral tribunals are not the tribunals envisaged by the constitution, our arguments above to the effect that the right of access to court is not absolute, will hold. When a party elects to go to arbitration by voluntarily and clearly entering into an arbitration agreement, he has properly waived his right of access to court with respect to the dispute in question. [62] It will not lie in his mouth to allege a breach of his right of access to court.

At the risk of repetition, we need to restate here that in Africa, outside of customary law, arbitration and ADRs are relatively new. In fact, until recently, many African minds conceived of dispute resolution through the legal process outside the customary law simply as litigation. Commercial arbitration, particularly international arbitration, was regarded with skepticism flowing mainly from unsavoury experiences in the past at the hands of biased international arbitrators. [63] Even now that awareness has been created in most countries, arbitration is still not as popular with policy and law makers as litigation. The natural consequence of this is that arbitral tribunals are not kept in mind when constitutions are drafted. The words ‘other tribunal' are therefore not a reference to arbitral tribunals, but to official or public quasi-judicial tribunals, such as tribunals of inquiry set up by government.

Generally, the independence and impartiality of an arbitration tribunal and its duty to treat the parties equally are consistent with the strict principles of fair hearing and have been provided for clearly in African arbitration statutes. Examples are section 12 of Uganda's Arbitration and Conciliation Act, 2000, and section 8 of Nigeria's Arbitration and Conciliation Act. [64] Each requires an arbitrator to be impartial and independent with respect to the dispute and parties before him. This is not usually the case with the courts and official or public tribunals. [65] The provision is missing from statutes establishing those courts and tribunals because constitutional provisions on fair and public hearing bind them. The provisions on a fair hearing appear in African arbitration statutes, simply because the draftsmen, knowing that the constitutional provisions do not apply to arbitral tribunals, have to make provision for arbitral tribunals. In the absence of such provisions in arbitration statutes, arbitral tribunals would infringe no statutory law if they did not observe a fair hearing.

As already stated, African countries have for some time now had deliberate policies to enact modern arbitration statutes and generally make their shores preferred venues for international commercial arbitration. [66] It is inconceivable that they would want to remove or destroy the prime characteristics and advantages of arbitration over litigation (privacy, etc) by requiring all arbitral proceedings to be held in public. For instance, since 1967 Nigeria has consistently taken steps to aid the growth of the law and the practice of arbitration within her shores and has consistently tailored her policies and legislations in that direction. She could therefore [67] hardly have in 1999 adopted a constitutional policy destroying the privacy of arbitration.

Article 7(1)(a) of the African Charter grants every individual the right of access to ‘competent national organs' and article 7(1)(d) grants him ‘the right to be tried within a reasonable time by an impartial court or tribunal'. It is not clear why, with respect to a criminal trial, the African Charter uses the specific words ‘court or tribunal', while using ‘competent national organs' in respect of civil suits. Nonetheless, it seems rather clear that ‘competent national organs' include tribunals set up under the law. A community reading of articles 7(1)(a) and 7(1)(d) seems to suggest this. Other regional and global human rights instruments are clearer on the point. The jurisprudence that has been developed around those clearer provisions supports our argument that arbitral tribunals are not part of the tribunals envisaged by provisions on access to courts and tribunals. For instance, the European Convention on Human Rights provides in article 6 that, in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing ‘by an independent and impartial tribunal established by law'. It has been held repeatedly that ‘tribunal established by law' in that provision does not include an arbitral tribunal in a voluntary arbitration and that entry into an arbitration agreement by a party amounts to a renunciation of the right to go to court. [68] It has also been held that, for a tribunal to be a ‘tribunal established by law' it needs to, amongst other things, exercise judicial functions, have independence from the executive arm of government and the parties, have a fixed term of office for officers and have guarantees afforded as to its procedure. [69] The African Commission may be persuaded by arguments in the same direction when interpreting articles 7(1)(a) and (d).

The International Covenant on Civil and Political Rights, of which most African countries are state parties, provides in article 14 that:

In its General Comment No 13, the United Nations (UN) Human Rights Committee [70] stated:

Of course, this commentary has no force of law whatsoever and can only at the very best have persuasive authority. Despite the commentary, countries have felt free to interpret the provision as excluding arbitral tribunals. In fact, the commentary itself was a reaction to the general trend of interpretation and implementation of article 14 by state parties which involved or entailed the exclusion of arbitral tribunals. For instance, the article has force of law in Hong Kong having been domesticated by the Hong Kong Bill of Rights Ordinance, 1991, but several Hong Kong courts have taken the view that not all tribunals fall under the provision. In R v Town Planning Board ex parte Kwan Kong Co Ltd, [71] Wang J held inter alia: 

It should be abundantly clear from the foregoing that a recourse to arbitration by any person in Africa is not a breach of his right of access to a court or formal tribunal, but rather a voluntary waiver of that right. Since arbitration is currently the best dispute resolution mechanism, particularly in an African/Third World setting, [72] it is a waiver that enables the party to achieve the best for himself or itself in the resolution of the dispute at hand.

We contend that on yet another ground arbitration enforces the African's right of access to justice more than mere access to court does. The African Commission has repeatedly held that the right of access to the courts ‘must naturally comprise the duty of everyone, including the state, to respect and follow these judgments'. [73] Despite pious and salutary provisions in most African constitutions on the rule of law and the independence of the judiciary, most African countries, as represented by their governments, have failed woefully in this area. The continent has had more than its share of military and other oppressive dictatorships run by self-centred officials. [74] Such regimes behold court judgments with deep contempt and arrogant defiance. In fact, in the imagination of most such rulers the fact that judges and the courts constitute an arm of government simply means that the judges and courts are extensions of the executive. They further imagine that judges and courts must take instructions from rulers (the executive) and should not dare ‘annoy' them through adverse judgments. Even some civilian regimes disobey court orders with surprising impunity almost as a matter of course. [75]

On the contrary, arbitral awards are not observed in the breach. Even oppressive governments normally obey arbitration awards, particularly when other nationals or foreign interests are involved. [76] To that extent, therefore, the question as to whether or not arbitration breaches any citizen's human right does not arise at all. The truth is rather that, while the courts are often helpless in the breach of citizens' rights which they (the courts) pronounce upon, arbitration effectively secures citizens' rights in this area.

It must be noted that a waiver of the right of access to court (ie by electing to go to arbitration) does not amount to a waiver of other fundamental procedural safeguards under the different African constitutions. Whether it is an arbitral tribunal or any other adjudicating mechanism, the party's right to a fair hearing by an impartial umpire remains intact, as we shall see in the next section.

3.2  A fair hearing within a reasonable time

In the area of fair hearing, arbitration law corresponds completely with the African constitutional ideals, not because the constitutional provisions are applicable to arbitration, but simply because the two legal regimes happen to be similar. Practically all African constitutions provide for a fair hearing. Section 19(13) of the Constitution of Ghana, 1992, demands that every civil case ‘be given a fair hearing within a reasonable time'. The South African Constitution provides in section 34 for a ‘fair public hearing' before a court or another independent and impartial tribunal or forum. Section 36(1) of the Nigerian Constitution, 1999, entitles every person to ‘a fair hearing within a reasonable time' by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality. Ironically, some countries have no provisions on the right to a fair hearing in their constitutions for civil cases and matters. [77] In such countries, parties can only rely on other statutory provisions and the common law principles governing a fair hearing. Article 7(1)(d) of the African Charter provides for ‘the right to be tried within a reasonable time by an impartial court or tribunal'.

The fair hearing requirement is fundamental to the administration of justice. As such, even minor breaches cause the proceedings to be null and void. It is in this regard that most African constitutions require courts and tribunals to be both independent and impartial. [78]

A court or tribunal has to give each party an (equal) opportunity to present his case and challenge the other party's case. This equality of opportunity is not to be evaluated solely from the point of view of the amount of time allocated. If a plaintiff in a court action elects to file his statement of claim within seven days instead of the 21 days provided for under the relevant rules of court, the defendant cannot be compelled to also file within seven days. He may decide to use the length of time (21 days) granted him by the rules. In the same way, if a party to an arbitral proceeding elects to file his points of claim within three days, nothing says that the respondent must have only three days to file his points of defence.

Since arbitral tribunals are not part of the dispute resolution fora covered by African constitutions, the principles governing a fair hearing or natural justice stated in these constitutions do not bind them. The rules that govern arbitral tribunals and arbitrators in this regard are to be found in the individual countries' arbitration statutes and common law, which in effect have the same rules for arbitration as the constitutions have for litigation. In Nigeria, for instance, under the common law any adjudicatory function performed in breach of any of the tenets of a fair hearing is absolutely null and void and of no effect whatsoever. The courts have held that such a proceeding has no consequence with respect to the rights and obligations of the parties. [79]

There are arguments in some jurisdictions outside Africa, in Europe for instance, on whether or not the right to a fair hearing or equal treatment can be waived by a party. [80] In those jurisdictions, even when a tribunal or court is not independent and impartial, its judgment may still stand if the trial was ‘generally fair'. [81] In African countries with the same common law heritage as Nigeria, it is not so because, generally, the right to a fair hearing cannot be waived by any party involved in any proceeding. The right is not granted to him for his benefit alone, but also for the general good of society. [82] He is incompetent to waive that which belongs to him and every other member of his society. To the best of this writer's knowledge, a case is yet to be seen in common law Africa in which the court or tribunal was obviously partial and dependent and the trial was said to have been fair overall or ‘generally fair'. If such an issue arises before the courts in common law Africa, it can almost certainly be said that the courts, as alert as they are against a breach of fundamental rights, will have great difficulty in saving such a proceeding. Once a rule is allowed to stand to the effect that an unfair trial is generally fair, it will be very difficult in the majority of cases to draw the line between apparent partiality and dependence, and ‘overall' or general fairness of trial. On the contrary, the African Commission has established for the continent persuasive authority in one of its decisions, to the effect that a trial must be fair as a whole, that is, wholly fair. [83]

As shown above, six African countries have domesticated the UNCITRAL Model Law, a number which will increase with time. [84] In each country, article 18 becomes part of that country's statute on arbitration. It provides that the parties shall be treated equally and that each party shall be given the opportunity of presenting his case. [85] This ensures that the tribunal treats the parties equally and evenly without fear or favour — the principle of equality of arms. This principle is so sacrosanct that, in jurisdictions like Ghana and Nigeria, it is an abuse of office by a tribunal or an arbitrator if any one of the principles of a fair hearing is breached. [86]

It has been held by the European Court of Human Rights that equality of arms in a matter involving two opposite interests —

(a)    means that each party should be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent; [87] 

(b)    involves an opportunity to comment on all facts of importance to the award, to canvass his legal viewpoint and oppose his opponent's, to offer relevant evidence and take part in the proceedings; [88]

(c)    also entails a duty on the part of the tribunal to properly examine the submissions, arguments and evidence adduced by each party without prejudice to its assessments of whether they are relevant to its decision in the matter at hand; [89] and

(d)    proceedings are not conducted in a manner that puts a party at an advantage over and against the other party. It is of no moment that the favoured or privileged party did not actually benefit from the advantage. It suffices that he could have benefited from it. [90]

African courts and the African Commission are likely to feel persuaded by this reasoning when faced with cases calling for decisions on these points. As yet there has not been such an opportunity.

The foregoing considerations show that, sometimes, there may be a theoretical equality of arms, but a practical equality tainted with misdemeanour. If, for instance, an arbitrator makes overtures ‘equally' to both parties directly or through their lawyers, offering his services for any future arbitrations, his award in the matter at hand cannot stand, even if it is argued that the development did not affect his decision in the matter at hand. In Babcock and Wilcox Co v PMAC Ltd, [91] this was what happened between an arbitrator and the parties' lawyers. One of the lawyers agreed to consider him for future work while the other told him that his conduct was improper. Though the court reasoned that ‘it does not necessarily follow that the arbitrator's impartiality was compromised', it nullified the award. A contrary decision would have been very surprising because by their responses the lawyers (and therefore the parties they represented) had put themselves in unequal positions before the arbitrator. The party whose lawyer acted wrongly by making a promise of future consideration to the arbitrator had automatically been placed at an advantage over the other party whose lawyer had adopted the correct professional approach.

National statutes in the six countries that have domesticated the Model Law also ensure that each party has adequate notification of proceedings. This is because without due notice to, and/or appearance of, a respondent, it cannot be said that the parties are equal or are being treated equally or even that the tribunal has jurisdiction to entertain the matter. [92] Article 21 of the Model Law determines that, unless the parties agree to the contrary, arbitral proceedings over a dispute commences on the date on which the request for arbitration (a notice of arbitration) is received by the respondent. [93] All through the proceedings, whatever document a party forwards to the tribunal, he must forward to the other party. In the same way, whatever the tribunal sends to or does with one party, it must send to or do with the other party. [94]

Article 12 requires any person approached in connection with an appointment as an arbitrator to disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. He bears this duty of disclosure throughout the proceedings. [95] Therefore, to competently sit over an arbitral proceeding, each and all of the arbitrators must be independent of the parties and also actually impartial.

Independence is decipherable on an objective basis or standard whilst partiality can hardly be detected before it manifests. Partiality rests on the personal conviction, prejudices and general mental disposition of the arbitrator in question. [96] If in any business, blood or deep social relationship exists between an arbitrator (or a presiding judge in a court) and one of the parties, he is not independent of that party. [97]

It is obvious from the foregoing paragraphs that, though in Africa constitutional provisions on a fair hearing do not govern arbitration, the principles guaranteeing a fair hearing apply in arbitral proceedings on the continent. This is particularly so in countries that have enacted the Model Law into their domestic legal regimes on arbitration. It has been argued that the specific nature of arbitration as a dispute resolution mechanism ‘does not allow that the elements comprising the fair administration of justice ... be transported mutatis mutandis to voluntary arbitration'. [98] However, in practice, the different aspects of the right to a fair hearing are effectively secured in arbitration. It follows, therefore, that proper arbitral proceedings on the continent do not breach the fair hearing principle.

It needs to be pointed out here that in another major way, arbitration seeks to secure greater impartiality than the court system. Nowhere in Africa, to the best of this writer's knowledge, is a judge required by any expressly written rule to disclose to the parties appearing before him certain relationships he may have had with any of them. The law takes his impartiality for granted and does not demand of him to make disclosures — it is assumed that he will do so. If there was or is a relationship which can reasonably be expected to affect his independence or impartiality, he is expected to disqualify himself from hearing the matter and have it transferred to another judge. However, he may only disclose the reason — the relationship — if he so wishes. If, in his judgment, the relationship is not such that it will affect his judgment, he can keep quiet about it, whether or not it is known to the other party. If the other party finds out about the relationship and raises it, it would be considered, but if that party never gets to know or fails to raise it, the case will proceed as usual. This therefore means that a judge who is not very honourable [99] may well have a relationship with one of the parties in a matter before him. Knowing that it can or indeed will affect his judgment, but that the disadvantaged party does not know about the relationship, he may keep quiet on it, hear the matter and, out of bias, enter judgment for the favoured party. [100]

That is hardly possible in arbitration. As part of the impartiality requirements, every arbitrator is required to disclose to the parties and fellow arbitrators in the matter any prior or contemporary relationship with any of the parties that may be capable of affecting his independence and/or impartiality. [101] He bears the duty for the duration of the arbitral process. 

A disclosure made by an arbitrator under this rule enables others to dispassionately consider the matter and decide whether he should withdraw or continue. That way, the matter is taken away from his one-man opinion, which obviously would look upon his action or situation more favourably than a detached third party may. It is extraordinary men that are able to judge themselves or their actions with the same detachment and dispassion with which a non-involved person would.

The duty of disclosure in this way ensures that persons laden with bias or potential bias do not get to hear causes and matters in which they would, even if unconsciously, favour or victmise any one. Of course, like any other good thing, if the duty of disclosure gets overstretched, it becomes itself counter-productive and a hindrance to arbitration. That has not happened in Africa, to the best of this writer's knowledge, but there are examples in the United States, for instance, to be avoided. In Al-Harbi v Citibank, NA, [102] A lost an award before three arbitrators, one of whom was C. A discovered that C, a lawyer, had been a partner in a firm which represented (B was the other party in the arbitral proceedings) interests affiliated with B's interests. It was found that, though C had never met B, never worked on B's matter and did not know that B or B's affiliate had been a client of that firm (which in any case he had left), he was not in a position to ask the firm for a conflict check. The court of first instance invalidated the award because of his failure to disclose these facts. The decision was only overturned upon appeal. The duty of disclosure need not be that cumbersome. Prospective arbitrators can hardly be required to embark on a voyage of discovery to unearth very far-away or reasonably inconsequential events they may very well have forgotten. An arbitrator only needs to disclose that which would cause a reasonable man to suspect bias. The standard is that of a reasonable man, not a timorous or highly litigious man determined to find excuses with which to attempt the overturning of an award, or an unnecessarily suspicious person.

If there is any relationship or circumstance that can affect the prospective arbitrator, then it is a valid ground for him to be challenged by the disadvantaged party. If he refuses to withdraw, the other arbitrators may ask him to withdraw from the proceedings and he must. [103] A failure to disclose a disclosable relationship has been held in an American case, Richo Structure v Parkside Village Inc, [104] to be a disqualifying factor. An arbitrator failed to disclose past business relationships with the party which eventually won the award. That party's lawyer had in the past represented the offending arbitrator and was, at the time the arbitral process was taking place, also representing him. The award was invalidated. The court reasoned that, if the facts had been disclosed, the disadvantaged party would have had an opportunity to evaluate their significance. That party, it was further held, might ultimately have judged that the value of the arbitrator's ‘expertise in the subject matter might outweigh the possibility of his being partial'. African courts and arbitration practitioners are likely to find this sufficiently persuasive to adopt in similar circumstances. [105]

It must also be stated here that sometimes the high expectations had of judges and other adjudicators such as arbitrators may well be less real than is normally assumed. It is particularly so when, as often happens in arbitration, the adjudicators are not lawyers and so may not have as much detachment from the case before them as lawyers can have because of their training. It has been stated that: [106]

Let it also be noted that a litigant's right to have his matter heard ‘within a reasonable time', which is part of the right to a fair hearing in African constitutions, is even more likely to be satisfied or achieved by arbitration than litigation. One of the strong points of arbitration above other dispute resolution mechanisms is timeous hearing. [107] What is more, the Model Law and national (African) statutes based on it contain provisions for even much faster disposal of cases than obtains under any other legislation. Article 25 [108] empowers an arbitral tribunal to terminate the proceedings if the claimant fails to communicate his statement/points of claim. It equally empowers the tribunal to continue the proceedings up to an award if the respondent fails to communicate his statement/points of defence. This is, however, without treating the respondent's failure in itself as an admission of the claimant's claim. Even after the parties have exchanged pleadings, if any of them fails to appear at the hearing to give evidence in support of his case, the tribunal may proceed to make an award based on the evidence before it.

In most of Africa, the courts often fail in this area as they are congested and delay is a very serious problem. Several factors, such as a lack of equipment, non-conducive service conditions and work environment for judicial officers, account for this. Cases sometimes take decades to get decided. For instance, in the Nigerian case of Yesufu Adedoyin and Others v Muili Okunola, [109] the retired Honourable Justice Olatawura was a clerk of the court when the case was filed in the High Court of Ibadan. It lingered on in that court until he left, completed his legal training and qualified as a lawyer, practised law for several years and was appointed a judge. He again encountered the case in that court and sat over it as presiding judge — 15 years later! In ACB and Another v Prince AO Awogboro and Another, [110] a suit was filed in June 1986 along with a motion on notice for injunction. Appeals to the Court of Appeal and Supreme Court on the propriety or otherwise of the grant of the injunction sought took the next nine years, at which time the substantive issue was moot. [111] 

3.3  Public hearing

With respect to courts and formal tribunals, a public hearing is a must. Thus, except for the noted exceptions, [112] any judgment issuing from a non-public hearing or proceeding is invalid. A public hearing for them also includes the public delivery of judgment.

Confidentiality is the prime characteristic of arbitration. Confidentiality ensures that parties' trade secrets and other aspects that they are unwilling to disclose to the public remain their private information. For instance, company A may proceed against another in a dispute that requires disclosure of company A's trade secrets, such as chemical or other formula of production. If it gives such evidence at a public hearing, the evidence becomes public information and the company's competitors can use the information for any purpose. Every and any person who desires can, in the absence of any of the applicable exceptions, attend a public hearing and he cannot lawfully be excluded therefrom if he is not rowdy or otherwise unlawful. This would normally happen in litigation. On this account, parties prefer arbitration. What is more, arbitrators are under a duty not to testify in any subsequent court proceeding about facts that came to their knowledge while acting as arbitrators. In a public (court) hearing, not only the witnesses but the judge can lawfully testify later on facts that came to their knowledge in the course of those proceedings.

Arbitration is mainly a private affair that lays tremendous emphasis on party autonomy — the freedom of the parties to agree on how any aspect of the proceedings should play out. A constitutional provision requiring a public hearing by arbitrators and for awards to be delivered publicly whether or not the parties so desire would be antithetical to autonomy and it would destroy confidentiality. As already stated, confidentiality is a very important part of arbitration. There is nothing in the constitutional or legal cultures and policies of African states to suggest that in this age and time they would be taking steps to scare away parties from arbitration by decreeing the compulsory public hearing and pronouncement of awards. They would not want to convert arbitration into litigation. It would be much less so now that they are taking steps to make their states competitive in the field of international commercial arbitration. In fact, the requirement of a public hearing and public delivery of decisions is proof of the fact that arbitral tribunals are not envisaged by those constitutional provisions. 

It is highly recommended that African constitutions exclude arbitral proceedings from tribunals that must hold public hearings and public delivery of findings. In the United Kingdom, as is the case in the rest of the world, this is not so. In these places, human rights treaties require all tribunals and courts to hold public hearings. In such places, a solution had to be found so as to preserve the prime characteristics of arbitration. The appropriate authorities have held that an arbitral proceeding and award need not strictly conform with this provision since they could after all be subject to subsequent control by courts that are, in themselves, bound to observe a public hearing and public pronouncement of decisions. That way, the desired guarantees are provided by the courts, which are then in a position to cure any defects of substance (not just form) that may have occurred in an arbitral proceeding. This is generally the position in the United Kingdom and in the jurisprudence of the European Court of Human Rights, with respect to the statutory adjudication scheme and under the UK Human Rights Act, 1998. It is equally the case under article 6 of the European Convention on Human Rights. In Bryan v United Kingdom, [113] it was held that article 6 would not be breached if the proceedings in question were subject to ‘subsequent control by a judicial body that has full jurisdiction and provides the guarantees of article 6'. This was followed in the English case of Austin Hall Building Ltd v Buckland Securities Ltd, [114] where the court considered a pubic hearing with respect to adjudication. It held that, in answering the question whether a right to a public hearing had been observed, it was necessary to consider not only the adjudication process itself, but also the subsequent court proceedings that may become necessary in enforcing the adjudicator's decision.

Even if fair hearing provisions in African constitutions were to cover arbitral tribunals, it is possible that African courts would feel compelled to promulgate rules similar to this one. This is because, in practice, every African country's arbitral awards are enforceable only in the courts; [115] courts which are themselves bound to observe public hearing and public delivery of judgments, as has already been shown in this work. No doubt, those courts generally lack the power to go into the merits of an award. They have jurisdiction simply to recognise and enforce an award or deny recognition and enforcement. Nonetheless, they certainly exercise ‘subsequent control' of the awards and the arbitral process in the sense meant in Bryan. To that extent, therefore, arbitration proceedings would not be invalid in any African country that adopts the Bryan jurisprudence, despite being held in private.

Whichever of these options is taken as correct, an important factor is that African countries must preserve the confidentiality of arbitration. 

Otherwise they would destroy the very essence of arbitration. Such a destructive move would breed deep scepticism and dissatisfaction against arbitration amongst citizens. This would be an undesirable situation; the kind of situation which African countries, like the rest of the Third World, would not want. [116] It would also run against the grain of the popular international position. As a further consequence, it would make African countries less attractive to parties who ordinarily might have chosen African countries as a venue for their arbitrations.

The African Charter does not provide for a public hearing even by the courts. As it concerns arbitration, this is a very commendable position. The position joins the African constitutions in freeing arbitration on the continent from any requirement for a public hearing or public delivery of judgments. Equivalent human rights treaties, such as the European Convention on Human Rights and the American Convention on Human Rights, and indeed even the Covenant on Civil and Political Rights, provide for public hearings.

The position exemplified by the African Charter lends credence to my contention that African countries do not impose public hearings and public delivery of awards on arbitrators. This is proof of the fact that, where necessary, the continent has charted its own course and need not be judged by, or prevented from taking the initiative. A necessary initiative now underway on the continent is the arbitration of human rights disputes, as discussed below.

4.  Arbitration of human rights matters

Human rights causes and matters normally arise when a party's right has been abused or is about to be abused — in Africa most often by a government or its agents. Such abuses occur in the realm of torts or delict, not contract. Our interest here is not just in whether such abuses are currently arbitrable, but also whether they should become arbitrable.

It has long been the position that tortious or delictual claims are not arbitrable. [117] This may be explained on at least two grounds. In the first place, tortious wrongs, particularly breaches of fundamental rights, seldom arise out of contractual relationships. There would therefore not be any pre-dispute agreement between the parties allowing a resort to arbitration. Nor is it particularly easy for an aggressor — a flouter of a citizen's right — and his victim to sit down and conclude an agreement about anything after the dispute has arisen. This is even far less likely with respect to an agreement on how to extract a remedy from the aggressor by going to arbitration. This is particularly so if the aggressor is an oppressive government. Even if the parties were to be accommodating to each other so as to mutually agree on anything, such as a resort to arbitration, they would face a further hurdle if the breach of the right in question also constitutes a criminal offence. In that case, the breach may well not be compromisable and would therefore not be arbitrable under public policy. These difficulties, however, are not insurmountable or even as serious as they may look prima facie. I will show that African governments have often been parties to other forms of arbitration and that there is nothing intrinsically wrong with their being parties to human rights arbitrations.

In some African countries, the position on whether human rights are arbitrable seems to have been left open by statutes and constitutions. In Nigeria, for instance, section 46 of the 1999 Constitution provides that any person alleging that his right or rights is being or is likely to be contravened in any state ‘may apply to a High Court in that state for redress'. The phrase ‘may apply to' in the provision is capable of more than one interpretation. It could mean that he may or may not apply for redress, that is that he may decide to forego the pursuit of his rights: He ‘may apply to court' as opposed to ‘shall apply to court'. It could also mean that he may apply to court just as he may decide to apply elsewhere, for instance to an arbitral tribunal set up for the purpose. A tribunal could be set for the purpose, if the parties had agreed before or after the dispute that, rather than going to court and spending years on the adjudication of the matter, they should go to arbitration. There is really nothing in the statutes, public policy or indeed the common law stopping parties from submitting such compromisable claims to arbitration.

Another difficulty is that the chances of winning of a would-be claimant in such a proceeding are further diminished if he cannot show that the dispute over such a violation of his fundamental right is a dispute of a commercial nature. Under some African arbitration statutes that are based on the UNCITRAL Model Law, arbitration is necessarily commercial if undertaken under these statutes. The statutes, following the footnote to article 1 of the Model Law, list a number of aspects to be regarded as ‘commercial'. [118] Though the list is not exhaustive, it is obvious that these aspects are in the same general family of aspects — commercial ventures and concerns. By the application of the eiusdem generis principle of statutory interpretation, tortious wrongs and claims are clearly excluded. This is notwithstanding the fact that the provisions provide that relationships of a commercial nature ‘include, but are not limited to' those aspects. Under these provisions, when a man is wrongly detained without trial or his property is destroyed or seized by a rampaging government official or agency or a private individual, it will be difficult to bring it under any of those subheads. The position would be the same when he has suffered one form of discrimination or the other based on race or tribe, religion, gender or any other ground.

Another hurdle is that, though an arbitration agreement can be made to cover future disputes, there can be no arbitral proceeding over a dispute that has not arisen, no matter how soon it may happen. There must be an existing dispute between the parties. Therefore, any application based on an allegation that the party's right is ‘likely to be contravened' will hardly be arbitrable on this ground, since it would not be a dispute in the sense envisaged by the arbitration statutes.

These difficulties notwithstanding, in the African environment at least some disputes on human rights violations may be arbitrable. Despite the pious constitutional provisions in African countries, it is often difficult or impossible to secure redress for human rights violations through the courts, especially when a government is the defendant. This is due to the inordinate delay that attends litigation in those countries. Sometimes there are judges who are more ‘executive-minded' than the executive itself, and would adopt legal interpretations and excuses to deny a citizen his redress when the government has violated his rights. [119]

Firstly, there is really nothing in legal policy or common sense that determines that a matter is absolutely unarbitrable simply because it has not arisen out of a contractual relationship. It was probably because of this realisation that the UNCITRAL Model Law stipulated what should be arbitrable under it, ie what is ‘commercial' to be ‘matters arising from all relationships ... whether contractual or not'. [120] It should be sufficient that the parties to a dispute have reached an agreement to go to arbitration whether the relationship or situation out of which the dispute arose is contractual or not.

The requirement for a relationship to be commercial for a dispute arising therefrom to be arbitrable is, all things considered, simply an extension — even if an unconscious extension — of the unnecessary old rule for the relationship to be contractual. Commercial relationships are necessarily, or at least almost always, contractual. The philosophy of the Model Law that a matter may be arbitrable whether or not it is contractual ought to be carried through. There is really no irrevocable reason why non-commercial matters should not be arbitrable. This is particularly so in today's complex world where there is — more than ever before — an intermix of issues, ideas and principles in any single legal matter in question. The division of legal causes, matters and principles into straight jacket departments of commercial law, public law, private law, property law, and so on is, particularly now, convenient and real only for study and academic enterprise/endeavour. In real life dispute-resolution processes, any strict division of issues along these lines may well be artificial and impracticable, whether it is in litigation or any other mode of dispute resolution. It is time for the law to drop the rigid classification of matters into ‘commercial' and ‘non-commercial' for purposes of arbitrability. It should suffice that a compromise is capable of being reached in that the parties have agreed to go to arbitration. The whittling down of party autonomy — one of the bedrocks and virtues of arbitration — in this area ought now to cease. It is instructive that the Model Law set out to end this unnecessary dichotomy by including many things into the class of ‘commercial' things. It is regrettable that the effort was easily defeated on delivery by the eiusdem generis principle, as already explained in this work.

Even if the foregoing suggestion is considered rather radical for now, a progressive approach to the law can still achieve arbitrability for several human rights disputes. For instance, if a dispute based on a human rights violation is in any way related to those aspects presently classified as ‘commercial' by the law, it should be regarded as having satisfied the requirement of being ‘commercial' in nature. Thus, if a citizen's right is violated in the course of ‘construction of works ... engineering' and so on, whether or not there is a contract between him and anyone whosoever, the dispute over the violation of his rights could be termed ‘commercial' since it arose out of a transaction defined by law as ‘commercial'. It should not matter that the dispute itself is tortious or delictual and not ‘commercial'.

Turning to the arbitrability of disputes or causes of action that have tortious and criminal elements (ie that are prima facie not compromisable), it is submitted that such disputes should be arbitrable. After all, the dispute the parties seek to resolve by arbitration is not the criminal aspect of the matter, but the civil. The criminal aspect — the non-compromisable aspect — would remain for the courts. Thus, if a man is slapped or beaten up by another, they should be able to have the civil wrong and the attendant question of compensation resolved by arbitration if they so wish. The criminal aspect — the assault — would remain for adjudication by the courts. This would be the same as if the victim was suing in court over a civil aspect, it should be enough that the victim — the complainant — first duly reported the matter to the police. By reporting the matter to the police, he would have set criminal proceedings in motion before taking recourse for a civil wrong. [121]

It remains to remark that the fact of the government is the culprit in most cases of human rights abuses does not pose any difficulty to the arbitrability of such disputes. Governments can be parties to arbitral proceedings. This is already happening in investment disputes, particularly under the auspices of the International Centre for the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID), which operates under the ICSID Convention. [122] African states are members of the Convention and are often parties to proceedings conducted under the auspices of the Centre. [123] Even outside of investment arbitrations some African governments have been regular parties, as it were, in arbitrations between them and their own nationals or subjects. In Nigeria, for instance, labour disputes between government and its workers routinely go through mandatory (statutory) arbitration, under the auspices of the Industrial Arbitration Panel, before proceeding to the National Industrial Court or ultimately to the regular courts if the arbitration is unsuccessful. [124]

Since at least some African states and governments get involved in these two types of arbitration, African governments can legitimately be party to arbitrations on violations of citizen's human rights. In fact, it is only through the arbitration of such violations that the victims can be sure of an expeditious hearing and the granting of relief or remedies.

Pursuing remedies for human rights violations through the courts is a very cumbersome process because of the congestion and delay in the courts. On the other hand, arbitration is a fast and effective procedure. Victims of human rights violations by governments can be sure that arbitrators in their matters will be independent and impartial at least on two grounds. One is the compulsory duty of disclosure of impairing relationships and circumstances which arbitrators bear on the continent. [125] The second is that, although African governments sometimes attempt to influence court judgments, they are unable to influence arbitrators. Whilst judges are appointed and paid by the state, arbitrators are highly-skilled individuals plying their trade. They cannot afford to be corrupt or pervert justice. Whilst a judge who is known to be pro-government may retain his job despite such a slur, an arbitrator so inclined will be out of business soon. The citizens may never again engage his services. Even if the government re-appoints him, such appointment will easily, vigorously and successfully be challenged by the other party or parties. [126]

The fact that human rights disputes are currently not arbitrated in other parts of the world is no reason to argue that they should not be arbitrated in Africa. Circumstances on the continent necessitate the arbitration of human rights disputes. As the continent begins to have them arbitrated, it will be showing a new path to the rest of the world, just as it has done with the introduction of the concept of international customary law arbitration. [127] Dogma or colonial hangovers should not be used to dismiss the concept of human rights arbitration

5.  Conclusion

This article attempted an examination of whether or not arbitration is antithetical to the human rights provisions in the various African constitutions on access to courts, fair and the public hearing of disputes and a public delivery of judgment. The article argues that arbitration does not breach these rights. It shows that a recourse to arbitration is a waiver of the parties' right of access to court. Parties who have so waived their rights of access to a court cannot allege a breach of that right. The article concludes that arbitral tribunals do not fall into the category of courts and tribunals which African legal systems require to hold public hearing and public delivery of judgments or findings.

The article shows that arbitration engenders fair hearing on the continent more than litigation. It posits the idea that disputes on the violation of human rights are arbitrable and should be arbitrable in Africa. In this regard, it argues that arbitration will ensure the greater attainment of justice for complainants or victims. It demonstrates that, dogma aside, the mere fact that a government is a party does not and cannot, without more, make human rights arbitrations wrong in law or common sense. It has shown that African governments are often parties to other types of arbitration (such as investment and trade dispute arbitrations) and that there is nothing intrinsically wrong in their being parties to human rights arbitrations. It contends that, even if human rights disputes are not currently arbitrated elsewhere, peculiarities on the African continent now necessitate the arbitration of such disputes in Africa. In that regard the article contends that, in arbitrating such disputes, the continent would be leading the world into a new direction as it has done in another area of arbitration through the concept of international customary law arbitration.

In summary, the inquiry shows that the human rights provisions in African constitutions do not affect arbitration in a negative way. The two legal streams of arbitration and human rights are smoothly flowing through the continent for the good of the people. Things can, in this respect, continue as they are. Things can even improve should disputes on human rights violations be arbitrated.