Caption: Justice
Ambeng Kandakasi
By MATTHEW VARI
NATIONAL Court Judge, Justice Ambeng Kandakasi, stated that the major issue of customary land ownership in the country could be effectively sorted out through mediation.
He made the comments during a guest lecture given to candidates of the National Research institute run Economic Policy Analysis course.
Justice Kandakasi gave a comparison to the benefits of mediation in understanding emotions that accompany conflict in land dispute issues.
“The beauty of mediation is that each party is sitting and the other party is talking, so if you have two parties one sits down telling his or her stories on how he feels and what he or she feels about what is happening, the other does the same,” Kandakasi explained.
“In court the lawyers run the show, they will get the affidavits done and will determine what evidence to bring in and what not to bring in.”
“Once the evidence comes in only one side goes to the evidence box to take the stand and gives their testimony, the other side is not there as the rules prevents the other side from sitting in, otherwise the credibility or the evidence is rendered almost nil in some instances.”
He said whereas in mediation, the people talk to each other and are told that they are not talking to the mediator, but to the other party on what they think is the cause of the problem.
“The problem is that Court cases can only plead- judges and lawyers can plead only what the law can possibly allow, but they cannot plead how one person feels,” the judge said.
“They cannot plead emotions; it can not plead to a mater that cannot be described in words or in law- so that is where mediation comes in where we are able to get through it quiet easy.
He explained the process in which mediation is now playing in being an avenue to address land issues in a much shorter period of time.
“The process begun in 2001 when I got appointed at the first place and that was Sir Arnold Amet’s administration, but during then we did not take it to the next level,” he said.
“Until in 2008 when the current chief justice came into office, and he was proactive enough to get the National Court Act amended to allow for mediation.”
“This allowed for judges to allow for mediation at any stage of proceedings, with or without the consent and approval of the parties.”
The amendments then paved the way for a whole set of rules to set out how the court can make orders in cases, and training and accreditation of mediators, discipline of those that go wrong, and the enforcement of mediated agreements.
“We have started to train our mediators, and we have got almost two hundred professionally accredited mediators, who are mainly magistrates, lawyers, some other professionals, and judges.”
“Through that process we have now been able to increase our local content to about 12- with the first lot of mediators to graduate on November 26 this month.”
“One thing I find through this mediation, especially the and ownership mediation for customary land disputes is that if they go thorugh the normal process they will be locked up for 17 to 20 years.”
He referred to what happened in Gobe (Southern Highlands), Misima (Milne Bay).
“While the mine came and closed, people were still fighting for 17 years, and the lawyers seem to be the greatest winners in these sorts of things,” he added.
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