Access to Justice Through Formal Alternative and Informal Mechanisms: A Comparative Analysis

INTRODUCTION

Access to justice remains a foundational promise of Nigeria’s constitutional order, yet its practical realisation continues to expose a widening gap between legal ideals and lived experience. Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) guarantees the right to fair hearing, reflecting a commitment to timely, impartial, and effective adjudication of disputes. In theory, this guarantee is operationalised through a comprehensive hierarchy of courts established under the Constitution, including Magistrate Courts, State and Federal High Courts, specialised tribunals such as the National Industrial Court, and appellate courts culminating in the Supreme Court. These institutions exercise jurisdiction over civil, criminal, and commercial disputes in accordance with statutory and common law principles.

In practice, however, Nigeria’s formal judicial system is persistently constrained by structural deficiencies that undermine effective justice delivery. Chronic delays, inadequate judicial infrastructure, limited manpower, and severe resource constraints have rendered litigation slow and burdensome. Many disputes remain unresolved for years, eroding public confidence in the courts and weakening the constitutional promise of justice. These challenges are exacerbated by the high cost of legal representation, court filing fees, procedural technicalities, and limited access to legal aid, particularly for indigent and rural populations. As a result, formal justice has become economically and practically inaccessible to a significant segment of Nigerian society.

Against this backdrop, informal dispute resolution mechanisms have assumed increasing relevance. Nigerians frequently resort to community-based arbitration, mediation by traditional rulers, negotiation facilitated by religiozus leaders, and reconciliation through family or community elders. These mechanisms are often more affordable, culturally familiar, linguistically accessible, and procedurally flexible than formal litigation, making them especially attractive for resolving everyday civil and communal disputes. Their growing prominence reflects not a rejection of law, but an adaptive response to the shortcomings of formal adjudication.

This article examines the shift from reliance on Nigeria’s formal court system to informal dispute resolution mechanisms and analyses the legal, social, and policy implications of this transition for access to justice.

It asks: to what extent is informal dispute resolution replacing formal courts in Nigeria, and what are the implications of this shift for access to justice, legal protection, and the rule of law? The study adopts a doctrinal and qualitative methodology, drawing on constitutional provisions, statutes, case law, academic literature, and comparative perspectives. It proceeds by analysing Nigeria’s legal framework, examining the operation of informal justice systems, comparing international experiences, and proposing reforms for harmonising formal and informal justice in Nigeria.

ABSTRACTS

Access to justice remains a persistent challenge in many legal systems, particularly in societies marked by poverty, institutional weakness, and social inequality. Formal court processes are often slow, costly, and inaccessible, pushing individuals toward alternative mechanisms for dispute resolution. This article examined how different justice systems respond to access-to-justice challenges through the interaction of formal courts, alternative dispute resolution, and informal justice mechanisms. Using a comparative legal methodology, the study analyzed the justice frameworks of the United Kingdom, Kenya, Somalia, and Nigeria.

The findings revealed that the United Kingdom has successfully institutionalized alternative dispute resolution within its court system, reducing delay while preserving judicial oversight, though cost barriers remain for indigent users. Kenya’s constitutionally recognized hybrid model enhanced accessibility by legitimizing traditional justice mechanisms, but inconsistencies and enforcement gaps persisted. Somalia’s reliance on customary law demonstrated high accessibility and social legitimacy in the absence of functional courts, albeit with significant human rights concerns. Nigeria possessed strong formal legal guarantees but suffered from implementation failures, court congestion, and weak legal aid delivery.
The study concluded that meaningful access to justice requires an integrated, rights-sensitive approach that combines formal adjudication, alternative dispute resolution, and regulated informal justice mechanisms tailored to societal realities.

LITERATURE REVIEW / LEGAL FRAMEWORK

A. Statutory Law and Relevant Legislation in Nigeria

1. Arbitration and Alternative Dispute Resolution in Nigeria

Nigeria’s contemporary Alternative Dispute Resolution (ADR) framework reflects deliberate statutory and institutional efforts to decongest courts and expand access to justice. Central to this framework is the Arbitration and Mediation Act 2023, which replaced the Arbitration and Conciliation Act 1988. The 2023 Act modernises Nigeria’s arbitration regime by expanding mediation, recognising hybrid dispute resolution processes, and strengthening the enforceability of arbitral awards in line with international standards such as the New York Convention.
Complementary statutory authority for ADR is found in the Sheriffs and Civil Process Act, which provides mechanisms for the recognition and enforcement of arbitral awards. In addition, several High Court Civil Procedure Rules including those of Lagos State, the Federal Capital Territory, and Kano State mandate or strongly encourage pre-action ADR, signalling judicial preference for settlement before litigation. At the subnational level, Lagos State has played a pioneering role through the Lagos Multi-Door Courthouse Law 2007, which institutionalises mediation, arbitration, and neutral evaluation within court processes.

Judicial institutions further reinforce ADR’s statutory legitimacy. The establishment of ADR Centres within specialised courts, including the National Industrial Court, demonstrates formal endorsement of ADR mechanisms at sector-specific levels of adjudication. Scholarly analysis affirms that these statutory developments position ADR as an integral component of Nigeria’s justice architecture rather than a peripheral alternative.

B. Constitutional and Fundamental Rights Framework

The constitutional foundation for ADR and access to justice is anchored in Section 36 of the 1999 Constitution, which guarantees the right to fair hearing. Although primarily associated with formal adjudication, fair hearing jurisprudence increasingly accommodates non-adversarial mechanisms that promote timely and effective dispute resolution. Furthermore, Section 19(d) of the Constitution expressly recognises arbitration and mediation as legitimate means of resolving disputes and reducing pressure on courts, providing constitutional legitimacy for ADR practices.

At the international and regional levels, Nigeria’s obligations under the African Charter on Human and Peoples’ Rights reinforce access to justice as a fundamental human right, encompassing both formal and alternative mechanisms.

C. Judicial and Case Law Framework

Nigerian courts have played a pivotal role in legitimising informal and customary arbitration. In Agu v Ikewibe, the Supreme Court laid foundational principles for recognising customary arbitration outcomes, provided parties voluntarily submit and accept the decision. Subsequent judicial reasoning has reinforced the enforceability of arbitration agreements and awards. In MV Lupex v NOC & S Ltd, the Supreme Court affirmed the binding nature of arbitration clauses, strengthening confidence in ADR mechanisms.
Judicial support for arbitration has been further analysed in academic literature examining how Nigerian courts interpret arbitration statutes and balance party autonomy with procedural fairness.

D. Scholarly Commentary and Academic Perspectives

Academic literature broadly supports ADR as a viable mechanism for enhancing access to justice in Nigeria. Scholars highlight ADR’s advantages cost efficiency, speed, confidentiality, and flexibility while also identifying challenges such as limited awareness, inconsistent quality of neutrals, and uneven enforcement. Doctrinal studies on Islamic ADR further reveal how religious dispute resolution practices intersect with informal justice structures in Nigeria, deepening the pluralistic nature of dispute resolution.

E. International and Comparative Instruments

Nigeria’s ADR framework is informed by international norms, particularly the UNCITRAL Model Law on International Commercial Arbitration, which serves as a global benchmark for arbitration legislation. Additionally, Nigeria’s status as a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards enhances the international enforceability of domestic arbitral decisions.

F. Institutional and Policy Frameworks

Institutional actors also shape access to justice. The National Human Rights Commission (NHRC) functions as a quasi-judicial body promoting human rights protection, including dispute resolution and access to justice. Similarly, institutions such as the Citizens’ Mediation Centre (CMC) provide practical, low-cost mediation services for everyday disputes, illustrating how institutional ADR bridges formal law and community justice.

ANALYSIS / CRITICAL DISCUSSION

A. Informal Justice in Nigeria: A Functional Response to Formal Court Barriers

Why do informal dispute resolution systems continue to attract widespread patronage among ordinary Nigerians despite constitutional guarantees of access to formal justice?
Nigeria’s Constitution expressly recognises alternative and informal dispute resolution mechanisms. Section 19(d) of the 1999 Constitution endorses arbitration and mediation as legitimate means of dispute settlement and as tools for reducing judicial congestion. This constitutional recognition is reinforced by institutional developments, including the establishment of court-connected ADR centres at both federal and appellate levels, notably the Court of Appeal ADR Centre. These initiatives reflect a formal policy preference for non-adversarial justice.

Despite this framework, informal justice mechanisms such as traditional mediation by community elders, religious arbitration, and community dispute councils remain the dominant mode of dispute resolution for many Nigerians. This preference is best explained as a functional response to structural barriers within the formal court system rather than a rejection of state law. Formal litigation in Nigeria is widely perceived as expensive, procedurally complex, and excessively delayed, often taking several years to resolve relatively simple disputes. Limited access to legal aid, bureaucratic inefficiencies, and inadequate judicial infrastructure further compound these barriers, particularly for indigent and rural litigants.
Empirical evidence underscores this functional explanation. Court-connected ADR initiatives, such as the Lagos Multi-Door Courthouse, have resolved a significant proportion of disputes within considerably shorter timeframes than conventional litigation, highlighting the demand for accessible and efficient justice mechanisms. However, where institutional ADR remains under-funded or poorly supported, disputants frequently resort to informal systems that are culturally familiar, linguistically accessible, and socially legitimate.

Comparative data demonstrates that Nigeria’s experience is not exceptional. International research indicates that in developing contexts, over 80 per cent of disputes are resolved through informal or customary mechanisms due to the inaccessibility of formal courts. This global pattern suggests that informal justice thrives not because it is normatively superior, but because it responds more effectively to everyday justice needs.

Critics rightly argue that informal systems may lack procedural safeguards and may entrench power imbalances, particularly disadvantaging women and minority groups. However, abandoning informal justice altogether would ignore the persistent justice gap faced by millions. International institutions such as the International Development Law Organization (IDLO) advocate a harmonised approach that integrates human rights standards into informal justice processes rather than excluding them from the legal ecosystem. Informal justice in Nigeria should therefore be understood not as a failure of law, but as an adaptive response to institutional shortcomings, reinforcing the need to assess justice by outcomes rather than venues.

B. Comparing ADR Frameworks: Nigeria, Europe, and Developing Nations

B.1 Nigeria’s ADR Model: Restorative Access Amid Institutional Strain

Nigeria’s ADR framework derives authority from the Arbitration and Mediation Act and constitutional endorsement under Section 19(d). Institutional innovations such as the Court of Appeal ADR Centre demonstrate formal adoption of ADR within the judiciary. Nevertheless, ADR remains under-utilised in practice. Limited public awareness, uneven judicial support, professional resistance from litigation-oriented practitioners, and inadequate funding continue to constrain its impact. Although Nigeria possesses a sound legal framework, systemic inertia undermines ADR’s potential to meaningfully reduce the justice gap.

B.2 European ADR and Informal Justice Approaches

European jurisdictions adopt a highly institutionalised approach to ADR, embedding mediation, ombudsman schemes, and regulatory dispute resolution mechanisms within formal legal frameworks. These mechanisms are particularly prominent in consumer, employment, and administrative disputes. Strong regulatory oversight, procedural safeguards, and enforceability mechanisms foster public trust and legitimacy.

Unlike Nigeria, European ADR systems are closely tied to statutory guarantees and user protections, ensuring transparency and fairness. While critics argue that European ADR can be overly formalised and sometimes costly, potentially limiting accessibility for low-income users, the emphasis on procedural safeguards demonstrates that accessibility need not come at the expense of justice quality. European models therefore offer valuable lessons on institutional integration and rights protection.

B.3 Developing Nations: ADR Innovation for Access to Justice

In many developing and fragile states, informal justice systems operate as the primary dispute resolution mechanism. Somalia’s Xeer, a customary legal system administered by clan elders, exemplifies how non-state justice can maintain social order in the absence of effective state courts. Such systems are accessible, culturally resonant, and efficient.
IDLO research confirms that in fragile contexts, up to 80 percent of disputes are resolved outside formal courts. However, these systems often lack appellate structures and may conflict with international human rights standards. The emerging consensus favours hybrid integration retaining cultural legitimacy while introducing oversight, mediator training, and rights-based safeguards.

C. Evaluating ADR’s Effectiveness: Access Versus Institutional Constraints

The international legal community increasingly recognises ADR as central to access to justice. Sustainable Development Goal 16.3 explicitly endorses both formal and informal mechanisms as pathways to equal justice. ADR enhances access by circumventing high litigation costs, procedural delays, and technical formalities that characterise traditional courts. Empirical studies confirm that ADR offers cost-effective, flexible, and collaborative dispute resolution, particularly for ordinary litigants. The success of the Lagos Multi-Door Courthouse further demonstrates that hybrid justice systems can reduce court congestion while delivering timely outcomes.

However, ADR is not a panacea. Concerns regarding enforceability and fairness persist where procedural oversight is weak. These risks can be mitigated through statutory safeguards, judicial supervision, and enforceability mechanisms.

COMPARATIVE ANALYSIS

Comparative legal analysis provides a useful framework for assessing how different justice systems respond to access-to-justice challenges through courts, alternative dispute resolution (ADR), and informal mechanisms. It enables identification of institutional practices adaptable to Nigeria’s plural legal system. Jurisdictions were selected based on legal tradition, integration of ADR, recognition of informal justice, and socio-economic relevance to Nigeria’s justice challenges.

Empirical Research indicates that in several African Jurisdictions, more than two-thirds of disputes are settled outside the formal court system, largely because of high costs, procedural delays, and limited accessibility. This contextualises Nigeria’s justice gap and justifies comparison with jurisdictions that have adopted varying models of ADR and informal justice.
The United Kingdom represents a developed legal system where ADR is institutionally embedded within formal litigation. The Civil Procedure Rules actively encourage mediation and settlement, and courts may impose cost sanctions on parties who unreasonably refuse ADR. Pre-action protocols require early information exchange and settlement efforts before litigation commences, reinforcing ADR as a procedural expectation. Court-connected mediation schemes reduce cost and delay while remaining subject to judicial oversight. However, ADR in the UK remains largely lawyer-driven, increasing costs and limiting accessibility for low-income and self-represented litigants. Thus, ADR complements but does not replace formal justice.

Kenya offers a strong African comparator due to its explicit constitutional recognition of ADR and traditional dispute resolution under Article 159(2)(c) of the 2010 Constitution, subject to human rights and public policy. Community elders and religious leaders play a central role in resolving land, family, and inheritance disputes, with outcomes often socially binding. Kenyan courts actively refer suitable matters to mediation and traditional mechanisms, particularly to reduce case backlogs. While Kenya’s hybrid model enhances accessibility and cultural legitimacy, weaknesses include inconsistent outcomes, patriarchal norms disadvantaging women, and limited enforceability without court endorsement.
Somalia represents an extreme model where informal justice functions as the primary system due to fragile state institutions. Customary law (Xeer), administered by clan elders, governs most disputes through reconciliation and compensation rather than punitive sanctions. Compliance is enforced through social pressure and collective responsibility. Although Xeer provides rapid and accessible justice, it lacks procedural safeguards, formal appeals, and alignment with international human rights standards, particularly regarding women and minority clans.

Nigeria occupies an intermediate position. While constitution guarantees such as the right to fair hearing exist, court congestion, high litigation costs, and public distrust push citizens toward informal dispute resolution.

Unlike Kenya, Nigeria lacks explicit constitutional recognition of community-based justice, limiting oversight and enforceability. Comparative analysis suggests Nigeria would benefit from a regulated hybrid approach integrating informal justice and ADR within a rights-based framework combining Kenya’s constitutional legitimacy with the UK’s institutional safeguards, while avoiding Somalia’s unregulated reliance on custom.

FINDINGS AND OBSERVATIONS

A. Summary of Key Findings

This study examined access to justice through formal courts, alternative dispute resolution (ADR), and informal justice mechanisms in Nigeria, with comparative insights from the United Kingdom, Kenya, and Somalia. The analysis reveals that formal court systems alone are insufficient to guarantee meaningful access to justice, particularly in jurisdictions affected by court congestion, high litigation costs, and procedural complexity. Nigeria exemplifies this challenge, while Kenya faces similar, though less severe, constraints. Institutionalised ADR, as demonstrated by the United Kingdom, significantly reduces cost and delay but does not fully eliminate barriers for economically marginalised groups without sustained state support. Constitutional recognition of ADR and informal justice, as seen in Kenya, enhances legitimacy and accessibility, especially in rural and underserved communities. In contrast, Somalia illustrates how informal justice systems become the primary dispute resolution mechanism where formal institutions are weak or absent. While informal justice prioritises reconciliation, social harmony, and compensation, it raises concerns regarding consistency, enforceability, and human rights compliance. Overall, Nigeria operates a hybrid justice system in practice rather than by deliberate design, with informal mechanisms filling gaps created by systemic failures in the formal court system.

B. Original Contributions and Observations

This research demonstrates that access to justice is fundamentally an institutional design problem rather than a mere absence of law. It identifies Nigeria’s challenge as a failure of implementation and operationalisation, highlights constitutional recognition as a key legitimacy trigger for informal justice, and shows that informality improves accessibility but undermines predictability. The study concludes by proposing a structured hybrid justice model for Nigeria that integrates ADR and informal mechanisms within a rights-based legal framework.

CONCLUSION AND RECOMMENDATIONS

This study examined how legal systems respond to access-to-justice challenges through formal courts, ADR, and informal mechanisms, using the United Kingdom, Kenya, Somalia, and Nigeria as comparative case studies. It argued that access to justice depends less on the existence of courts and more on how justice institutions respond to social realities, cost barriers, and procedural complexity.

The analysis showed that the UK’s court-embedded ADR reduces delay and expense but remains inaccessible to the poorest without state support. Kenya’s constitutional recognition of ADR and traditional justice enhances legitimacy and rural access, though consistency and enforceability remain concerns. Somalia demonstrates that customary systems can sustain order where courts fail, but at significant cost to human rights protection and legal certainty. Nigeria, despite strong constitutional and statutory frameworks, suffers from weak implementation, congestion, and limited public legal education, forcing reliance on unregulated informal justice. Accordingly, this study recommends institutionalising court-connected ADR nationwide, strengthening legal aid funding, and formally regulating community dispute mechanisms under constitutional safeguards. Lawyers should adopt problem-solving advocacy and expand pro bono services, while NGOs and international partners should support legal education and mediation capacity. Future research should examine gender impacts, digital dispute resolution, and public trust in ADR.

TABLE OF AUTHORITIES / REFERENCES

A. Cases

Agu v Ikewibe (1991) 3 NWLR (Pt 180) 385 (SC)

MV Lupex v Nigerian Overseas Chartering & Shipping Ltd (2003) 15 NWLR (Pt 844) 469 (SC)

B. Statutes and Legislation

Nigeria

Administration of Criminal Justice Act 2015

Arbitration and Mediation Act 2023

Arbitration and Conciliation Act 1988 (repealed)

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Lagos Multi-Door Courthouse Law 2007

Sheriffs and Civil Process Act

Kenya

Constitution of Kenya 2010

C. International Instruments & Treaties

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986)

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) 1958

UNCITRAL Model Law on International Commercial Arbitration 1994

E. Books

Sanders P, The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Kluwer Law International 1979)

Journal Articles

Gbemisola Bamodu, ‘Judicial Support for Arbitration in Nigeria: Interpretation of Aspects of the Arbitration and Conciliation Act (2018) 8 .

Nwauche ES, ‘State Responses to Outcomes of Traditional Justice Resolution Mechanisms in Commonwealth Africa: Customary Arbitration in Nigeria and Ghana’ (2022) Journal of

Commonwealth Law

Ojo SO, ‘Alternative Dispute Resolution (ADR): A Suitable Broad-Based Dispute Resolution Model in Nigeria; Challenges and Prospects’ International Journal of Conflict Management
Onyema E and Odibo M, ‘Alternative Dispute Resolution Made a Comeback in Nigeria’s Courts’ Africa Research Institute Counterpoints Shittu-Adenuga ZO, ‘A Critique of Alternative Dispute Resolution under Islamic Law and Its Relevance in Contemporary Nigeria’ Jurnal Syariah Samuel Olugbenga Ojo, ‘International journal of conflict management’ (2023) 4

G. Institutional Reports & Policy Documents

International Development Law Organization (IDLO), Creating a Culture of Justice: Elders as the Foundation of Stability in Somalia National Human Rights Commission (Nigeria), Mandate and Functions

H. Online Sources

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Amnesty International, ‘Somalia Country Report’
https://www.amnesty.org/en/location/africa/east-africa-the-horn-and-great-lakes/somalia/report-somalia/ Accessed 19 January 2026

Broken Scales: Exposing the Hidden Barriers Hindering Justice in Nigeria’s Court System, Chaman Law Firm https://chamanlawfirm.com/nigerian-court-system-challenges/ accessed 19 January 2025.

Bob Arnot, ‘How Traditional Justice in Nigeria Is Changing’ (British Council, 2015), https://www.britishcouncil.org/voices-magazine/how-traditional-justice-nigeria-changing/ accessed 19 January 2025.

Gbadebo Ololade Samual, The Court System in Nigeria (Legal Method Course Material) https://www.scribd.com/document/855297293/Nigerian-Court-System-Essay-Full accessed 19 January 2026

Guardian (Nigeria), Ameh Ochojila, ‘How Lack of Support for ADR Strains Nigeria’s Legal System’
https://guardian.ng/features/law/how-lack-of-support-for-adr-strains-nigerias-legal-system/ Accessed 19 January 2026

International Development Law Organization, ‘Elders Represent the Foundation for Stability in Somalia’
https://www.idlo.int/news/highlights/elders-represent-foundation-stability-somalia

Accessed 19 January 2026

Judiciary of Kenya, ‘Promoting Alternative Justice Systems’
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Judiciary of Kenya, ‘Mediation Centre Opened in Kisumu’
https://judiciary.go.ke/mediation-centre-opened-in-kisumu/ Accessed 19 January 2026

LegalAfrica, May Mens, ‘Access to Justice: Why Do Most Africans Rely on Informal Justice Systems?’
https://legalafrica.org/access-to-justice-why-do-most-africans-rely-on-informal-legal-systems/ Accessed 19 January 2026

National Industrial Court of Nigeria
https://en.wikipedia.org/wiki/National_Industrial_Court_of_Nigeria
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Sustainable Development Goal 16, https://en.wikipedia.org/wiki/Sustainable_Development_Goal_16 accessed 19 January 2025

Transparency International, ‘Nigeria Country Profile’
https://www.transparency.org/en/countries/nigeria Accessed 19 January 2026

UNCITRAL, Model Law on International Commercial Arbitration
https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/06-54671_ebook.pdf Accessed 19 January 2026