Civil Justice Reform

The Civil Justice Reform Debate: An African Perspective

Francis Kofi Korankye-Sakyi (University of Cape Coast, Ghana)
Source Title: Advancing Civil Justice Reform and Conflict Resolution in Africa and Asia: Comparative Analyses and Case Studies
Copyright: © 2021 |Pages: 17
DOI: 10.4018/978-1-7998-7898-8.ch003


Civil justice comprises the entire system of the administration of justice in civil matters. One significant discourse concerning the civil justice system in the last three decades is reform. This is due to various controversies around the subject resulting in crises. African approaches to civil justice jurisprudence encompass a variety of theoretical and normative elements that shape the way Africans conceive justice delivery. Over the years of the reform debate, not enough light has been shed on this to explain the existence of such perspective. It is argued that the African position to civil justice in the current reforms debate must not be pinned to just the doctrinal option imbedded in statutes but also be based on methods and procedures nurtured on the soil of Africa that align with the practical needs of the people encompassing social, political, cultural, and religious values. The chapter concludes that the African system of justice delivery is largely mirrored in the Ghanaian experience to justice system in civil jurisprudence.


“Law is not to be regarded simply as the product of lawmakers’ decisions and intentions but as embodying fundamental values which gain normative force independently of what is decided, written or intended by lawmakers.” Atudiwe P. Atupare (2021)

In the last few decades, civil justice jurisprudence has seen fundamental changes in the world (Genn, 2009). One significant discourse concerning the civil justice system is reforms. According to Kourlis (2016), ‘[C]ivil justice reform is [finally] a hot topic.’ He further describes the situation as a movement (Kourlis, 2016). There is always the thought of different forms of controversy, call it a crisis, surrounding how civil justice is administered in nations around the world (Zuckerman, 1999). The subject of civil justice is embedded with inherent controversy even with its scope and composition. According to Sir Jacobs (1987), the phrase “civil justice” is often used in place of “civil procedure” under the common law of the United Kingdom (UK). Civil justice thus means ‘the entire system of the administration of justice in civil matters’ (Jacobs, 1987). This gives civil justice a wider scope than it is generally perceived with far-reaching coverage, thus comprising civil procedure law which has not been widely considered (Jacob, ibid). In the wider sense, the expression “civil justice” has three components that include; first, the institutional component; second, the professional component and third, the procedural component (Jacob, ibid). This is supported by the juristic position that considers the attempt to distinguish between substantive and procedural law as artificial and illusory (Gerdy, 2000). In essence those for this theory consider that there is no difference. Admittedly, it is very difficult to distinguish between substantive and procedural law (Gerdy, ibid). This broad dichotomy and coverage of civil law in itself serves as a source of controversy in terms of definition and categorisation. This is so, especially, when procedural law1 Under most legal juristic jurisprudence is also distinguished from substantive law (Procedural Law vs. Substantive Law, n.d.).2 In fact, procedural law and substantive law are seen as two separate branches of law (Loggerenberg, 2016).

These controversies reinforce the movement for reforms and the whole debate theory is grounded on this so-called crisis. Aside from the general reasons assigned for the crises including but not limited to the lack of concise definition and scope, cost, delays and predictability of cases of civil nature (Zuckerman, ibid; Yin & Seiwoh, 2021), another constructive ground can be in the jurisdictional values such as cultural, religious and social norms that characterise most African countries affect the administration of justice. On this basis, the appreciation of the civil justice system from the African perspective enriches the reforms discourse on the whole.

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