Moussa Samb (Dakar, Bonn): Mediation as Effective Traditional Dispute Resolution in Africa

Abstract

Traditionally, mediation was the preferred way for resolving intra-community conflicts in Africa. It helped find an acceptable solution for conflicts between family members, with other families or between different historically linked communities, thereby preserving relations between the groups.  Most practices of traditional African conflict management in Africa were classical mediation or negotiation with a third-party catalyst, with a particularly strong integrative spirit. The mediator seeks a formula for an agreement – a common definition of the problem and the solution that can be defined as the terms of a trade agreement between the parties. Building on the society’s desire for restored harmony, order and justice, the mediator brings the two parties together in a win-win outcome that meets both parties’ interest, while preserving peace within the community.

Previous research has shown how during colonialism, legal transplants from French civil law or Anglo-American jurisprudence were imposed in Africa, while African values, norms and beliefs provided the normative and undergirding framework for conflict resolution, named by scholars the “African Medicine for conflicts”. In this presentation, we will show, with collected references and cases, how the traditional mediation procedure was organized, ruled and remains in practice today in Africa.

Despite the fact that there traditional conflicts resolution mechanisms retain some resilience, less confidence is placed in the “modern” corrupted justice system in Africa. It appears, then, that traditional mediation remains the best way to resolve social conflicts, which arise mostly on family and land issues.

Curriculum vitae

Legal scholar Moussa Samb is Professor of Private Law and Business Law at the University Cheikh Anta Diop in Dakar, Senegal, and teaches a master course on “Contract Law in Africa” within the program “Master of Business Law in Cross Cultural Practice” at the University of Fribourg, Switzerland. He was Invited Professor at the University Paul Cezanne Aix-Marseille III and attended the Georgetown University Law Center in Washington, D.C. as a Senior Fulbright Scholar. Professor Samb also served as Senior program officer in the program “Governance, Equity and Health” of the International Development Research Center in Canada and was Director of Research and Documentation of the Organization for the Harmonization of Business Law (OHADA) in Benin. Most recently, he was a Fellow at the Institut d'Etudes Avancées in Nantes. Since October 2015, Moussa Samb is Fellow at the Käte Hamburger Center for Advanced Study in the Humanities “Law as Culture”.