Snapshot of Alternative Dispute Resolution (ADR) in Botswana

Mr Edward W.F. Luke II FCIArb, FSIArb, FBIArb, MCIArb,Dip Int Arb (CIArb)

 

ABSTRACT

I was delighted to welcome Mr Edward Luke II, a Barrister-at-law, England and Wales, a Barrister and Solicitor of Sierra Leone, and an Attorney of law, Botswana. He is the Managing Partner of Luke and Associates and one of Botswana’s leading lawyers with a wealth of local and international experience. He has engaged in several high-profile cases in the High Court and Court of Appeal in Botswana, including Botswana’s most sensational murder trial; appeared in the Court of Appeal with Sir Desmond de Silva Q.C. 
Mr Luke is a fellow of the Chartered Institute of Arbitrators in the United Kingdom, Kenya and Zambia. He is also a fellow of the Singapore and Botswana Institute of Arbitrators. He is an author who has spoken at several international conferences on International Arbitration. 
In this episode, we explored ADR as it stands in Botswana today.
Keywords: Access to Justice, Alternative Dispute Resolution, Arbitration, Multi-Door Courthouse, Kgotla, Botswana; United Kingdom.

 

INTRODUCTION

 

What prompted the birth of Arbitration in Botswana?

The Arbitration Act of Botswana was promulgated in 1959 to assist in the speedy resolution of disputes. It is essential to state that since Botswana became a prosperous country in the sense that when they find diamonds for so many years, they had the fastest economy globally. There was a lot of construction going on, which brought about a lot of disputes at all levels. So Arbitration became a widespread mechanism used to resolve these disputes efficiently.

 Prior to introducing ADR in Botswana, they had Kgotla – a place where people who have disputes assembly or meet with the chief or with the elders to help them resolve their disputes. People go before the Kgotla and air their views, and the chiefs or elders review them, and the decisions are always arrived at by consensus. Thus it is a traditional local means of resolving disputes and still part of the local culture that they have in Botswana.

 

How has the Arbitration journey fared in recent times?

In recent years, Arbitration is growing though they still use the old 1959 Act; however, the courts are very pro-arbitration. So the courts have made decisions that have established Botswana as a major alternative dispute resolution mechanism country. The courts recognise Arbitration, and they have been very consistent in accepting Arbitration as a dispute resolution mechanism.

Hence the courts have given decisions that are very ADR friendly. Once the parties agree to the arbitration clause, then Arbitration is held, and if the arbitrators do not misconduct themselves or misconduct the proceedings or there is no fraud. The court upholds the arbitration award.

 

Is there a Court-annexed ADR or Multi-Door Courthouse in Botswana?

 It is not enforced or provided yet in the act, but then the Chief Justice mentioned that they are trying to introduce Court-annexed Mediation to proceedings.

However, the Civil proceedings rule has what is called the Case Management Conference (CMC), and in those case managements, the courts encourage the parties to settle before a matter goes to trial.

 

What skills are necessary for anyone to engage in ADR?

There is an institution that has a ‘Rolls Royce’ training for arbitrators, and it is the Chartered Institute of Arbitrators in the UK. They have membership courses and also the fellowship, which is a challenging and comprehensive course. So mastering and passing these courses will enhance the skills needed to engage in ADR.

 

What is your advice for potential users of ADR and people who want to pursue a career in ADR?

To reiterate, people who want to get involved in Arbitration should get in training with the Chartered Institute of Arbitrators, and also try to hook up with law firms that deal with Arbitration and attend conferences. This period (Covid 19-Pandemic) is a very good time that many people could attend conferences online. There are many webinars that are going on where some of the leading arbitrators in the world speak. So clearly, the opportunities for young people interested in Arbitration are plentiful. We would encourage both potential users and persons who want to pursue a career in ADR to look up this webinar, join them, and listen. There is no way that they cannot learn one or two things that would aid them in starting up a career in ADR vis-a-vis opt for ADR as an option. 

 

CONCLUSION:

This essay has succeeded in summarising what prompted the birth of ADR in Botswana, how far they have fared in recent times and the necessary skills required for anyone to engage in ADR.

Hence, with the evidence provided in this essay, we believe that potential users and people who want to pursue a career in ADR, to be precise, Arbitration, would make a well-informed decision while searching for the best option in developing themselves in the chosen career path. 

To hear the full version of episode 14 of EVA, click here.

 

REFERENCES:

Botswana Arbitration Law, 1959.

Chinwe Stella Egbunike- Umegbolu, Dispensation of Justice: The  Lagos Multi-Door Courthouse (LMDC) as a Case Study (Ongoing-research at the University of Brighton 2018-2021) 89.

 

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5 thoughts on “Snapshot of Alternative Dispute Resolution (ADR) in Botswana

  1. Great article Chinwe

    Very well written; I had no idea until now of your writing capabilities; Most impressive I may add

    Thank you so much !!! ( I Luv the ” Rolls Royce ” mention, CLASSIC! )

    Allan Walker
    Founder of The Beverly Drake Kids Foundation ( Canada )

  2. Is only Arbitration which is a form of ADR recognised by Botswana government or there is another forms that are being recognised

    • Thank you for your question. Alternative Dispute Resolution (ADR) includes Mediation, Conciliation, Early Neutral Evaluation and Conciliation. These mechanisms or processes are well recognised and utilised in Botswana. I hope this helps.

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