News & Analysis

The Legal and Institutional Framework for Nuclear Energy in Kenya: Are we Getting it Right?

Published

3 years ago

November 14, 2021

Admin

By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*

Many countries are reconsidering the role of nuclear energy in their energy mix, as a means to alleviate the concerns over climate change, security of energy supply and the price and price volatility of fossil fuels. The need for alternative sources of energy has been fueled by the combination of climate change fears and a continued growth in energy demand as a way of moving away from the global fossil fuel addiction. It is estimated that nuclear fission as one such alternative accounts for 14% of global electricity generation and has the potential to generate significantly more. The proponents of use of nuclear energy argue that it has the potential to reduce pollution, cut greenhouse gas emissions, and help countries attain more energy independence.

The Global Legal and Institutional Framework for Nuclear Energy

The global legal framework on production and use of nuclear energy governs key issues relating to the use and safety of nuclear energy. All countries venturing into this territory are expected to abide by the same. Specifically, the existing international nuclear liability regime is based on the Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982 (1960 Paris Convention) and the Vienna Convention on Civil Liability for Nuclear Damage (1963 Vienna Convention), which set forth the basic principles of nuclear liability law. These principles include: the operator of a nuclear installation is exclusively liable for nuclear damage; strict (no fault) liability is imposed on the operator; exclusive jurisdiction is granted to the courts of one State, to the exclusion of the courts in other States; and liability may be limited in amount and in time.

In terms of institutional framework, the International Atomic Energy Agency (IAEA) is the main institution that oversees the implementation of these legal instruments among other functions. The mandate of the IAEA as an international organization is to seek to promote the peaceful use of nuclear energy, and to inhibit its use for any military purpose, including nuclear weapons. Currently, over thirty countries produce and use nuclear energy, with some, like France, producing large portions of their electricity from nuclear power, and others like Brazil and the Netherlands producing small percentages of electricity by nuclear power.

The Kenyan Legal and Institutional Framework for Nuclear Energy

Kenya is still at a nascent stage in its plans to set up nuclear reactors, especially as far as regulatory frameworks are concerned. The preferred site for the nuclear plant in the country is Tana River County, near the Kenyan coast which was preferred after studies across three regions. The plant will be developed with a concessionaire under a build, operate and transfer model.

Nuclear Regulatory Act 2019

The Nuclear Regulatory Bill 2018 was first published by Parliament on November 19, 2018. The Bill has since been enacted as law under Nuclear Regulatory Act, 2019 and the law to provide for a comprehensive framework for the regulation of safe, secure and peaceful utilization of atomic energy and nuclear technology; the production and use of radiation sources and the management of radioactive waste; the repeal of the Radiation Protection Act and for connected purposes. While the Act is quite comprehensive, there will be need for constant review as the stakeholders identify what works and what challenges arise in the course of its implementation.

Nuclear Power and Energy Agency (NuPEA)

The Nuclear Power and Energy Agency, formerly Kenya Nuclear Electricity Board (KNEB), is a State Corporation established under the Energy Act 2019. The Agency is charged with, inter alia: being the nuclear energy programme implementing organization and promoting the development of nuclear electricity generation in Kenya; and carrying out research, development and dissemination activities in the energy and nuclear power sector. The Agency is therefore expected to work closely with the other stakeholders in the energy sector to oversee the setting up and successful running of nuclear energy production projects in the country.

Nuclear Energy in Kenya: Are we Getting it Right?

Some commentators have keenly highlighted some of the issues that have made the general public uncomfortable with the idea of Kenya turning to nuclear energy including: lack of properly trained manpower, the overall cost of the project, suitability of the sites where nuclear plants are to be built and nuclear disaster management. However, even as the Government proceeds with the project, there has been many emerging issues and questions surrounding the viability of the nuclear energy project especially given that Kenya still has vast renewable energy resources that remain under exploited to this day.

Indeed, the progress towards making Kenya a Nuclear Energy producer has received a mixed bag of fortunes in this year, in a span of less than 3 months between June and October 2021. In June 2021, the International Atomic Energy Agency (IAEA) carried out a follow-up Integrated Nuclear Infrastructure Review (INIR) mission to assess the country’s progress on recommendations from an INIR mission conducted in 2015. IAEA reviewed the status of nuclear infrastructure development using the Phase 1 criteria from of the IAEA’s Milestones Approach, which provides detailed guidance across three phases of development (consider, prepare, construct). Phase 1 evaluates the readiness of a country to make a knowledgeable commitment to a nuclear power programme.

The follow-up INIR team of the IAEA said noted that Kenya had made progress in the implementation of most recommendations and suggestions from the 2015 review. In particular, the follow-up INIR team noted that Kenya developed the National Nuclear Policy and the National Policy and Strategy for Safety to enable the Government to make an informed decision on whether to introduce nuclear power. Further, it acknowledged the country enacted a national nuclear law and established a regulatory body with clear responsibilities for safety, security and safeguards. Kenya had also completed an assessment of the national legal framework and identified other laws needing review and there was enhanced the coordination among its key stakeholders in the development of its nuclear power program. However, the IAEA team said that further work is needed in areas such as the development of a nuclear leadership programme and the ratification of international conventions in the area of nuclear safety.

Interestingly, before the good news sank in, the Presidential taskforce on reviewing power purchase agreements recommended the dissolution of the Nuclear Energy and Energy Agency (NuPEA), stating that it is of no use at the moment. The presidential taskforce said in the report that the country is years away from installing its first nuclear power plant and does not yet need an autonomous parastatal to lead the process. This comes even as last year the Agency had announced the plans to build a $5 billion (Sh540 billion) nuclear power plant on a site in Tana River County over the next seven years with funding from private investors. In August 2020, the Kenya Nuclear Electricity Board (KNEB) in a regulatory filing with the National Environment Management Authority (Nema), revealed that the plant with an initial capacity of 1,000 megawatt (Mw) plant was to be constructed through a concession on build, operate and transfer (BOT) model.

But this did not stop the Presidential Taskforce from sounding the death knell on NuPEA putting limbo the future of nuclear energy program in limbo. The taskforce stated in a report released to the Media in October 2021: “According to the 2020-40 LCPDP, the country is unlikely to enter nuclear power generation in the near future. A separate entity to promote and implement a nuclear program in Kenya, therefore, is not needed at this time, and this high-level non-generation role could be played by the Ministry of Energy. The intended role, which is not nuclear-related, can be efficiently played by the respective entities. he implication of the costs of running NuPEA as a separate entity cannot be justified.”

Whole Kenya began considering nuclear electricity in 2008, a first plant had been proposed to be built by 2020 but this target was moved to 2027 and then later to 2037. It is interesting that the task force recommended the amendment of Section 54 of the Energy Act, which established NuPEA barely two be transferred to a department within the Ministry of Energy to manage the development of general nuclear energy policy. The question that begs is: Do we even need nuclear energy at all? As things stand, countries as France and Germany that have far much advanced technology and regulatory frameworks in place for nuclear energy are cutting down on their use of nuclear energy for its potential negative effects if not well handled. In fact, Germany has put in place long term plans to phase out their plants.

Given the nuclear energy trends among major players as highlighted above even before Kenya launches its own nuclear power project, shouldn’t the Government be considering focusing on other more affordable and safer sources of renewable energy? In any case, Kenya is already hailed as one of the notable producers of renewable energy such as wind power and geothermal power. There is a need to explore these at a higher scale because while they are not cheap to produce, nuclear energy may even prove more expensive and complicated to run due to the potential risks.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Muigua, K., “Exploring Alternative Sources of Energy in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2020/10/Exploring-Alternative-Exploring-Alternative-Sources-of-Energy-in-Kenya-Kariuki-Muigua-PhD.pdf, Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021.

References

Bloomberg, ‘Kenya on Course for $5 Billion Nuclear Plant to Power Industry,’ https://www.bloom berg.com/news/articles/2020-08-04/kenya-on-course-for-5-billion-nuclear-plant-to-power-industry (4 August 2020) accessed 19 August 2020.
Bodansky, D., ‘Nuclear Energy: Principles, Practices, and Prospects,’ (CERN Document Server, 2008) https://cds.cern.ch/record/1109377 (accessed 19 August 2020).
Bukszpan, D., ‘11 Nuclear Meltdowns and Disasters’ (CNBC, 16 March 2011) https://www.cnbc.com/ 2011/03/16/11-Nuclear-Meltdowns-and-Disasters.html (accessed 6 October 2020).
Gioia, A., “The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation. Explanatory Texts.” (2007): 5-99 < https://www. pub.iaea.org/MTCD/ Publications/PDF/P1768_web.pdf> accessed 8 September 2020.
International Atomic Energy Agency, ‘Nuclear Energy for Peaceful Uses,’ https://www.nti.org/ learn/treaties-and-regimes/international-atomic-energy-agency/ (accessed 6 October 2020).
International Atomic Energy Agency, “IAEA Reviews Progress of Kenya’s Nuclear Infrastructure Development,” Available at: https://www.iaea.org/newscenter/pressreleases/iaea-reviews-progress-of-kenyas-nuclear-infrastructure-development (accessed 14 November 2021).
Kawi, ‘Background’ (Ministry of Energy), Available at: https://energy.go.ke/?page_id=439 (accessed 28 September 2020).
Nuclear Regulatory Act, No. 29 of 2019, Laws of Kenya.
Owiro, D., G. Poquillon, K. S. Njonjo, and C. Oduor. “Situational analysis of energy industry, policy and strategy for Kenya.” Institute of Economic Affairs (2015) < https://media.africaportal.org/ documents/Situational-Analysis-ofEnergy-Industry-Policy-and–Strategy-for-Kenya_1.pdf> (accessed 28 September 2020).
Republic of Kenya, National Energy Policy, October, < https://kplc.co.ke/img/full/BL4PdOqKtxFT _National %20Energy%20Policy%20October%20%202018.pdf > accessed 30 September 2020.
Strupczewski, A. “Accident risks in nuclear-power plants.” Applied Energy 75 (2003): 79-86.
The Star, ‘A Case for Nuclear Energy in Kenya,’ https://www.the-star.co.ke/opinion/columnists/ 2019-04-05-a-case-for-nuclear-energy-in-kenya/(accessed 19 August 2020).
The Star, ‘A Case for Nuclear Energy in Kenya,’ Available at: https://www.the-star.co.ke/opinion/ columnists/2019-04-05-a-case-for-nuclear-energy-in-kenya/ (accessed 19 August 2020.)

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News & Analysis

What is Carbon Markets?

Published

4 months ago

July 8, 2024

MMA Advocates LLP

Written by Faith Nyambura Kabora, Advocate.

Carbon markets are a mechanism designed to reduce greenhouse gas emissions which are essentially gases that trap heat in the atmosphere and contribute to the negative impacts of climate change such as prolonged drought and rising of sea levels.

Carbon markets operate on the principle of putting a price on carbon emissions to create commercial/economic incentives for public and private entities to reduce their carbon footprint and invest in cleaner, sustainable practices.

Ideally, by putting a price on carbon, the carbon markets encourage sustainable environmental practices and help counties meet their emission reduction targets under international treaties, like the Paris Agreement, which Kenya is a signatory to. For a broader understanding, here is how a carbon market works;

A Government establishes a limit on the total amount of greenhouse gas emission/pollution is allowed within its geographical limits;
A grant, say permissions are created and distributed to eligible participants. This allowance represents the right to emit a certain amount of greenhouse gas;
The participants can then buy and sell the allowances. Ideally, those who reduce their emissions more efficiently sell their surplus allowance to those who find it more challenging to reduce the emissions. If a company pollutes a lot, they need to buy more permissions, and if they do not pollute as much, they can sell their extra permissions.
Entities are required to hold enough allowances to cover their actual emissions. If they exceed allocated allowances, they face penalties or, as expounded above, they buy additional allowances. This is the part where compliance becomes mandatory for all the key players.
The price of the allowances fluctuates based on supply and demands and reflects the cost of emitting greenhouse gases. It is essentially like paying for pollution.

A carbon market plays a pivotal role in advancing climate action and promoting sustainable practices by incentivizing companies to reconsider their pollution practices, which can result in financial consequences as pollution becomes a costly endeavor. In Kenya, the introduction of a Carbon Market is imperative as the world confronts the dire consequences of climate change. Furthermore, it offers a commercial opportunity for investors considering the growing demand for environmentally friendly and carbon neutral products and services.

As mentioned above, the Paris Agreement is one of the most important international treaties dedicated strengthen global response to the negative impact of climate change. Ultimately, the Agreement’s goal is to motivate countries to limit global emissions and more importantly, to hold them accountable for their actions around reducing their carbon footprints.

Kenya as a signatory to the Paris Agreement has made significant contributions towards fulfilling the obligations under the Paris Agreement of limiting global temperature. The Climate Change (Amendment) Act 2023, nudges Kenya towards the realization of Article 6 of the Paris Agreement by introducing provisions and regulation of and participation in carbon markets.

MMA Advocates LLP

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As one of the top law firms in Nairobi, MMA Advocates is renowned for its proactive strategy and innovative legal lawyer advice. Our firm is committed to delivering strategic assistance that not only tackles current difficulties but also equips clients for future legal trends and advancements. As top lawyers in Nairobi Kenya, we take great satisfaction in our ability to combine in-depth legal knowledge with creative problem-solving. We keep a close eye on business trends and legal advancements to deliver timely guidance that enables our clients to make wise choices.

Our main goal as MMA Advocates is to establish long-lasting partnerships based on integrity, decency, and reliability. Since every client’s circumstance is unique, our best advocates in Kenya offer timely service and individualized attention at every stage of our collaboration. We make sure our clients are informed and empowered throughout their legal journey because we value openness and transparency in communication. In every case we take on, we are deeply committed to obtaining positive results and client satisfaction. This is just one aspect of our unwavering commitment to quality.

Whether you are a startup negotiating regulatory obstacles, an established corporation expanding, or a private citizen seeking legal assistance on personal problems, our Best Corporate Lawyers in Kenya are dedicated to becoming your legal partner. Our expertise include Commercial Litigation, Real Estate & Development, Fintech, Public Procurement (Public Private Partnerships), Project Finance, Public Law Litigation, Legal Audits & Compliance Advisory and Crisis Management.

We hope to arm you with the legal know-how and strategies needed to achieve your objectives. Our team enjoys taking on challenging legal matters with creativity and strategic understanding, protecting your rights and effectively achieving your goals. With a thorough comprehension of both regional laws and global norms, we are prepared to confidently and competently lead you through the complexities of corporate law.

In the intensely competitive legal arena, our tailored legal and strategic solutions distinguish us. We value depth over breadth, guaranteeing our clients our full dedication and unparalleled efficiency. Where many spread themselves wide, we narrow our focus to a select few of the most challenging cases. We tread the path less traveled.

To find out more about how MMA Advocates in Nairobi Kenya can help you with your legal issues, get in touch with us. With our team of committed professionals and our standing as one of the top law firms in Nairobi, we are well-positioned to offer outcomes that surpass expectations and guarantee your success in a legal environment that is always changing.

News & Analysis

Review: Alternative Dispute Resolution (ADR) Journal, Volume 12(3), 2024

Published

6 months ago

April 28, 2024

Kariuki Muigua & Company

The Alternative Dispute Resolution (ADR) Journal, Volume. 12, No.3, 2024 covers pertinent and emerging issues across all ADR mechanisms. This volume exposes our readers to a variety of salient topics and concerns in ADR including Building Peace in Africa, Public Policy as a Ground of Setting-Aside an Arbitral Award, Ethics, Integrity and Best Practice in Mediation, Accessing Justice in Kenya, Sports Arbitration, ESG Arbitration, Arbitration of Investor-State Dispute in Kenya, Article 159(2) of the Constitution of Kenya 2010 and issuance of interim measures by Arbitral Tribunals. The ADR Journal is a publication of the Chartered Institute of Arbitrators, Kenya Branch. It provides a platform for scholarly debate and in-depth investigations into both theoretical and practical questions in Alternative Dispute Resolution.

The journal is edited by Professor of Law at the University of Nairobi, Faculty of Law Hon Prof. Kariuki Muigua, a distinguished law scholar, an accomplished mediator and arbitrator with a Ph.D. in law from the University of Nairobi and widespread training and experience in both international and national commercial arbitration and mediation. Prof. Muigua is a Fellow of Chartered Institute of Arbitrators (CIArb)- Kenya chapter and also a Chartered Arbitrator. He is a member of the Permanent Court of Arbitration, The Hague. He also serves as a member of the National Environment Tribunal. He has served as the Chartered Institute of Arbitrator’s (CIArb- UK) Regional Trustee for Africa from 2019 -2022.

In the paper “Building Peace in Africa through Alternative Dispute Resolution” Hon. Prof. Kariuki Muigua critically discusses the role of Alternative Dispute Resolution (ADR) mechanisms in peace building in Africa. The paper argues that ADR mechanisms can play a fundamental role in building peace in Africa. The paper further posits that ADR mechanisms are able to enhance sustainable peace in Africa due to their focus on reconciliation and restorative justice. It proposes solutions towards building peace in Africa through ADR.

In “the Emergence of the International Commercial Court: A Threat to Arbitration of Investor-State Dispute in Kenya” Marion Injendi Wasike and Dr. Kenneth W. Mutuma argue that the proliferation of international commercial courts, including their introduction in Kenya, necessitates a thorough analysis of their implications on arbitration’s role in investor-state disputes. By juxtaposing these emerging judicial entities against traditional arbitration paradigms, the discussion aims to unravel the complexities and potential shifts in dispute resolution preferences, highlighting the balance between innovation in legal adjudication and the sustenance of arbitration’s revered position in the international legal order.

Kamau Karori SC, MBS in “Striking a Balance: A Delicate Dance Between Sanctity and Scrutiny” notes that the continuing debate —between upholding the inviolability of arbitral awards and judicial intervention in cases of egregious injustice points to the need for delicate balancing between non-interference and the need to correct unmistakably unjust awards. The urgency of this discourse is informed by the need to prevent consumers or potential consumers of arbitration services opting to exclude arbitration clauses due to perceived deficiencies. The article seeks to navigate the genesis of the debate, delicately dissect the different perspectives, and draw comparisons with global practices.

The article “Reforming Kenya’s Law on Probation and Aftercare Services to Promote Alternative Dispute Resolution” by Michael Sang engages in a comprehensive exploration of Kenya’s Probation of Offenders Act within the context of the growing role of Alternative Dispute Resolution (ADR) principles in the nation’s criminal justice system. Drawing inspiration from international legal instruments such as “The Beijing Rules,” “Bangkok Rules,” and “Tokyo Rules,” the study evaluates the Act’s provisions, strengths, and limitations. It concludes with a call for thoughtful reforms that align Kenya’s criminal justice system with international standards, emphasizing a balanced and compassionate approach to justice.

The “Upholding Ethics, Integrity and Best Practice in Mediation” by Hon. Prof. Kariuki Muigua, OGW critically discusses the need for standardization of mediation practice in Kenya by adopting best practices. It examines some of the challenges facing mediation practice in Kenya. It is also explores measures adopted towards fostering best practices in mediation at both the global and national level. The paper further suggests recommendations aimed at upholding ethics, integrity and best practice in mediation. In “Exploring the Role of Mediation in Promoting Small and Medium Enterprises (SMEs) and Fostering Economic Growth in Kenya” Atundo Wambare offers an in-depth analysis of the use of mediation in promoting the growth of small and medium enterprises (SME’s). He makes recommendations on how best mediation can be harnessed as a tool for economic growth in Kenya.

James Njuguna and Nyamboga George Nyanaro in “Compulsory Resolution or Autonomy Erosion? The Debate on Mandatory Sports Arbitration delve into the contentious issue of mandatory sports arbitration, questioning its role as a potential future pathway for dispute resolution. Their research examines the implications of compulsory arbitration on athletes’ autonomy, juxtaposing it with the benefits of expedited dispute resolution.

Paul Ngotho in “Constitution of Kenya 2010 Article 159.2.(c): Ancestry, Anatomy, Efficacy & Legacy” traces the rather odd origin and everlasting effect of the often-cited Article 159.2.(c) of the Constitution of Kenya 2010. It acknowledges the central role played by two members of the Chartered Institute of Arbitrators Kenya Branch, quietly and privately, away from the mainstream constitution making process. One of them chairman of the Branch, the other the Minister of Justice, National Cohesion and Constitutional Affairs.

David Onsare in “Navigating The ESG Maze: Emerging Trends in Arbitration and Corporate Accountability” embarks on a timely exploration of the dynamic interplay between Environmental, Social and Governance (ESG) factors and arbitration, a field gaining critical importance in the realm of corporate accountability. By offering a comprehensive view of the complexities and practical implications of ESG in arbitration, the article serves as a crucial guide for legal professionals navigating the evolving landscape of corporate responsibility and arbitration. In “Public Policy as a Ground of Setting-Aside an Arbitral Award: Musings on the Centurion Engineers Civil Appeal Judgment”

Ibrahim Kitoo argues a case for upholding of public policy as a ground for the nonrecognition, non-enforcement and setting aside of an arbitral award in cases where to recognise and enforce such awards proves to be a clear violation of the law and against the public good. Juvenalis Ngowi in “Arbitral Tribunals: Do they have the power to issue interim measures during the proceedings?” discusses the powers of the Arbitral Tribunal to grant such orders and examines some procedural rules which empower arbitrators to issue such orders, the scope of those powers, and the factors to be considered when granting interim measures in the arbitral proceedings.

In “Examining the Efficacy of Mediation as A Tool for Accessing Justice in Kenya: Opportunities, Challenges, and Future Perspectives” Murithi Antony undertakes a thorough examination of mediation as a form of ADR in the Kenyan context. He identifies opportunities arising from the integration of mediation into the country’s legal system and explores barriers impeding its widespread adoption. The article concludes with a resounding call to action for all stakeholders to champion the use of mediation collaboratively and proactively, given its proven efficacy in dispute resolution.

Kariuki Muigua & Company

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Kariuki Muigua & Company Advocates is a Top-Tier Kenyan law firm situated at the heart of Nairobi city in Kenya. We are a broad-based practice with a reputation for offering a full range of quality services to our domestic and international clients.

At KM&CO, we take pride in offering personalized attention to our diverse clientele. Our practice aspires to offer efficient and cost-effective legal solutions that meet our esteemed clients’ needs in a timely and competent manner.

KM&CO was founded in 1993 by the current senior Advocate, Dr. Kariuki Muigua. It is based in the Central Business District of Nairobi at the Pioneer Assurance House located opposite 7th August Bomb Blast Memorial Park enjoying the convenience of close proximity to major financial, commercial and governmental institutions.

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.

News & Analysis

Way Forward in Applying Collaborative Approaches Towards Conflict Management

Published

7 months ago

March 24, 2024

Kariuki Muigua & Company

By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, March 2024)*

It is necessary to embrace and utilize collaborative approaches in managing conflicts. These techniques include mediation, negotiation, and facilitation. These mechanisms are effective in managing conflicts since they encourage parties to embrace and address disagreements through empathy and listening towards mutually beneficial solutions. Collaborative approaches also have the potential to preserve relationships, build trust, and promote long term positive change. They also ensure a win-win solution is found so that everyone is satisfied which creates the condition for peace and sustainability. These approaches are therefore ideal in managing conflicts. It is therefore important to embrace collaborative approaches in order to ensure effective management of conflicts.

In addition, it is necessary for third parties including mediators and facilitators to develop their skills and techniques in order to enhance the effectiveness of collaborative approaches towards conflict management. For example, it has correctly been observed that mediators and facilitators should listen actively and empathetically in order to assist parties to collaborate towards managing their dispute. Therefore, when a dispute arises, the first step should involve listening to all parties involved with an open mind and without judgment. This should entail active listening, which means paying attention to both verbal and nonverbal cues and acknowledging the emotions and perceptions involved.

It has been observed that by listening empathetically, a third party such as a mediator of facilitator can understand each person’s perspective and start to build a foundation for resolving the conflict through collaboration. In addition, while collaborating towards conflict management, it is necessary to encourage and help parties to focus on interests and not positions. It has been pointed out that focusing positions can result in a standstill which can delay or even defeat the conflict management process. However, by identifying and addressing the underlying interests parties can find common ground and collaborate towards coming up with creative solutions towards their conflict.

Mediators and facilitators should also assist parties to look for areas of agreement or shared goals. Identifying a common ground can build momentum and create a positive environment for resolving the conflict. Further, in order to ensure the effectiveness of collaborative approaches in conflict management, it is necessary to build strong collaboration. It has been asserted that strong collaboration can be achieved by establishing a shared purpose, cultivating trust among parties, encouraging active participation by all parties, and promoting effective communication.

Strong collaboration enables parties to develop trust between and among themselves and strengthen communication channels between the various parties. It also helps to generate inclusive solutions that arise from wider stakeholders’ views. Therefore while applying collaborative approaches, it is necessary for parties to foster strong collaboration by identifying common goals, building trust, ensuring that all stakeholders are involved, and communicating effectively in order to come up with win-win outcomes.

Finally, while embracing collaborative approaches in conflict management, it is necessary for parties to consider seeking help from third parties if need arises. For example, negotiation is always the first point of call whenever a conflict arises whereby parties attempt to manage their conflict without the involvement of third parties. It has been described as the most effective collaborative approach towards conflict management since it starts with an understanding by both parties that they must search for solutions that satisfy everyone.

It enables parties to a dispute to come together to openly discuss the issue causing tension, actively listen to each other, and come up with mutually satisfactory solutions. However, it has been correctly observed that negotiation may fail especially if the conflict is particularly complex or involves multiple parties due to challenges in collaborating. In such circumstances, where negotiation fails, parties should consider resorting to other collaborative approaches such as mediation and facilitation where they attempt to manage the conflict with the help of a third party. A mediator or facilitator can assist parties to collaborate and continue with the negotiations and ultimately break the deadlock.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024) by Hon. Prof. Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

References

Bercovitch. J., ‘Conflict and Conflict Management in Organizations: A Framework for Analysis.’ Available at https://ocd.lcwu.edu.pk/cfiles/International%20Relations/EC/IR403/Conflict.ConflictManagementinOrga nizations.pdf (Accessed on 01/03/2024).

Bercovitch. J., ‘Mediation Success or Failure: A Search for the Elusive Criteria.’ Cardozo Journal of Conflict Resolution, Vol. 7, p 289.

Bloomfield. D., ‘Towards Complementarity in Conflict Management: Resolution and Settlement in Northern Ireland,’ Journal of Peace Research., Volume 32, Issue 2.

Burrell. B., ‘The Five Conflict Styles’ Available at https://web.mit.edu/collaboration/mainsite/ modules/module1/1.11.5.html (Accessed on 01/03/2024).

Demmers. J., ‘Theories of Violent Conflict: An Introduction’ (Routledge, New York, 2012).

Diana. M., ‘From Conflict to Collaboration’ Available at https://www.pmi.org/learning/library/conflict-collaboration-beyond-projectsuccess-1899 (Accessed on 01/03/2024).

Food and Agriculture Organization., ‘Collaborative Conflict Management for Enhanced National Forest Programmes (NFPs)’ Available at https://www.fao.org/3/i2604e/i2604e00.pdf (Accessed on 01/03/2024).

International Organization for Peace Building., ‘Natural Resources and Conflict: A Path to Mediation.’ Available at https://www.interpeace.org/2015/11/naturalresources-and-conflict-a-path-to-mediation/ (Accessed on 01/03/2024).

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