CUSTOMARY LAW ARBITRATION AND THE CHALLENGE OF PARTY AUTONOMY: A CONTEXTUAL OVERVIEW

Abstract

Customary Law arbitration has remained a veritable means of resolving disputes in African societies. Its practicehas largely been anchored on voluntary submission of disputes to ‘chiefs’ and ‘elders’ of the community forresolution in accordance with societal norms, customs, usages, practices and customary law. However, theprocess of throwing up the customary arbitrators appears systemic and inexorably intertwined with nativecustoms and norms – which constitute the customary law. This systemic nature of customary arbitration appearsto completely deprive the parties of the exercise of their right to make certain decisions with respect of theirarbitration. This has been a challenge which tends to derogate from the hallowed principle of party autonomy,an alluring element in arbitration practice. What is the way forward? The paper posits that in addition toenhancing more active participation of the disputants in the process amidst systemic constraints, the proceduremust also throw up credible ‘chiefs’ and ‘elders’ properly so called, who are fit enough to act as arbitrators inaccordance with real dictates of customary ethos. This will inspire and sustain interest and confidence in thepeople who utilise the procedure.