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The Law and Recent Jurisprudence on Need for Communities’ Consent in Extractives Industry in Kenya

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

Despite the continued development in the policy and legal framework on public participation and inclusive decision-making processes and the development of international law on the right to free, prior, and informed consent (FPIC), the level of openness of the government to citizen engagement in policy and development decision making is largely insufficient and sometimes completely missing even in cases where their livelihoods and rights to property and environment are at stake. There many cases where communities and groups of persons in Kenya have sought court intervention, both locally and regionally, to have their right to participation in decision-making processes affecting their lands. There are also instances where either consent is inappropriately obtained or the government invokes its powers on compulsory acquisition of land with or without adequate compensation. The extractives industry is the best example to in demonstrating the prevailing dynamics of communities’ consent in Kenya.

As a matter of fact, the extractive industry projects place intense pressure on land. At the same time, FPIC introduces heightened social performance requirements at a time where many mining companies are still grappling with the fundamentals of their corporate social responsibilities (CSR). Section 37 of the Mining Act 2016 stipulates that prospecting and mining rights should not be granted under the Act with respect to private land without the express consent of the registered owner, and such consent should not be unreasonably withheld. Consent is deemed to be given for the purposes of the Act where the owner of private land has entered into a legally binding arrangement with the applicant for the prospecting and mining rights or with the Government, which allows for the conduct of prospecting or mining operations; or an agreement with the applicant for the prospecting and mining rights concerning the payment of adequate compensation.

The Mining Act also provides that prospecting and mining rights should not be granted under the Act or any other written law over community land without the consent of the authority obligated by the law relating to administration and management of community land to administer community land or the National Land Commission in relation to community land that is unregistered. For this purpose, consent should be deemed to be given for the purposes of the Act where the registered owners of community land have entered into a legally binding arrangement with the applicant for the prospecting and mining rights or with the Government, which allows the conduct of prospecting or mining operations; or an agreement with the applicant for the prospecting and mining rights concerning the payment of adequate compensation. It is however worth pointing out that the Cabinet Secretary responsible for mining is entitled to take steps under Compulsory acquisition of land or rights or interests in land, to vest the land or area in question, or rights or interests in such land or area, in the Government or on behalf of the Government, where the consent required under sections 36, 37or 38 of the Mining Act 2016 is unreasonably withheld or the Cabinet Secretary considers that withholding of consent is contrary to the national interest.

Courts in Kenya have demonstrated willingness to uphold the requirement for seeking community consent where the same was not sought. For instance, in the case of Mohamed Hussein Haji v Issa Kuno & 4 others [2018] eKLR36, the petitioner sought a declaration that the Petitioner was entitled to information from the Respondents to verify and confirm whether constitutional and statutory regulatory requirements were complied with before the 1st and 2nd Respondents began their mining activities in the Ali Jibril area, within Wabari Ward in Garissa County, amongst other reliefs. The Court, ruling in favour of the petitioner, observed that in the case of a community land which falls within the ambit of customary law ownership which is neither public nor private, before any interest is acquired by any individual, the persons who ordinarily use that particular land must be consulted. The Court added that development that threatens life is not suitable development and it must be halted.

In environmental law, intergenerational equity involves the application of equity within the present and future generation such that each member has an equal right to access the earth’s natural and cultural resources. The land in question had not been acquired by the government from the community concerned by way of compulsory acquisition. The land belonged to the community and was held by the County Government of Garissa in trust for the affected community. There was no indication that consent was sought and obtained from the said County Government of Garissa.  The land in question was an unregistered community land held in trust by the County Government of Garissa on behalf of the communities and as seen from the decision above, the consent of the county government must be obtained on behalf of the community. While the finding in this case is a step in the right direction by Kenyan courts to protect the interests of communities, there is still the risk of investors directly seeking the consent of county governments who then ignore communities and purport to grant consent on behalf of such communities. This may be done without the County government in question first engaging the communities to help them appreciate the whole project and the process in question and how the same might affect their livelihoods.

The question of consent has not only been arisen in the Kenyan context only. In South Africa’s case of Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another 2019 (2) SA 1 (CC), the Constitutional Court overruled an eviction order, issued by a lower court to a mining company, permitting it to evict 13 families from a farm in the Lesetlheng Community, North West Province, where the company had mining rights. Significantly, the court upheld a provision in the Interim Protection of Informal Land Rights Act, a law enacted to protect land rights after apartheid, which says that no person may be deprived of any informal right to land without his or her consent. The mining company had secured consent to the granting of the right from the minister who held the land in a trust and the traditional council but those living on the land were not consulted, as the Interim Protection of Informal Land Rights Act and the Mineral and Petroleum Resources Development Act required. The Constitutional Court ruled they could not be evicted because they had not been consulted and consented, nor were mechanisms for resolving disputes under the Mineral and Petroleum Resources Development Act exhausted.

This issue was also canvassed before the Pretoria High Court, in Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP) where court ruled that companies must first seek permission from local communities if they plan to mine on their ancestral land (the famous Xolobeni judgment). There are, however, those who have challenged the High Court decision as one that would make it practically impossible to get mining rights on traditional land because of the numbers of people affected. The critics of the South African High Court’s decision did not however see any problem with the Constitutional Court’s decision which is seen as one with two sides of the requirement for consent of the occupiers: The first is the consent of the traditional authority as the lawful representative of the community; and the second is the consent of those directly affected, both of which do not require the consent of every single occupier and makes a provision for majority consent under common law. The problem with requiring consent of every person living within an area, even those not directly affected by any proposed development project is that one faction of the community in question may be in favour of the mine because of the potential economic benefits as a result of compensation and the other would be opposed because it would affect their traditional way of life.

Last year in September, the Pretoria High Court, again in Baleni and Others v Regional Manager Eastern Cape Department of Mineral Resources and Others [2020] 4 All SA 374 (GP), handed down yet another landmark judgment confirming that mining-affected communities have the right to access information about the projects that impact them. In a case filed by the Leaders of the Umgungundlovu community which had for the last five years been concerned about the impacts of titanium mining proposed in the Xolobeni area of the Eastern Cape and were refused access to the mining rights application. They approached the High Court under the Promotion of Access to Information Act (PAIA) of South Africa arguing that the usual process for requesting that kind of information places communities at a disadvantage and may prevent them from exercising their constitutional rights.  High Court ruled in favour of the Community ordering that interested and affected parties, the Community must be furnished with a copy of an application for a mining right to have meaningful consultation on an equal footing. What this means is mining community members will by default have access to the information to participate fully in discussions with mining companies and the state in their quest to realise other constitutional rights.

The Court, in the case of Patrick Musimba v National Land Commission & 4 others [2016] eKLR, opined that it had no doubt that the State under Article 69 of the Constitution is enjoined to ensure sustainable development and is also bound to ensure that every person has a right to a clean and healthy environment. However, physical development must also be allowed to foster to ensure that the other guaranteed rights and freedoms are also achieved. Such physical development must however be undertaken within a constitutional and statutory framework to ensure that the environment thrives and survives. It is for such reason that the Constitution provides for public participation in the management, protection and conservation of the environment. It is for the same reason too that the Environmental Management and Coordination Act (“the EMCA”) has laid out certain statutory safe guards to be observed when a person or the State initiates any physical development.

The Court went on to state that at the core is the Environmental Impact Assessment and Study which is undertaken under Section 58 of the EMCA and the regulations thereunder. Under Regulation 17, the Environmental Impact Assessment Study must involve the public. The inhabitants of any area affected by a physical development must be given an opportunity to air their views on the effects of any such development. After the Environmental Impact Assessment Study report is compiled, the same report must be circulated to the affected persons. The challenge is thus balancing the interests of both groups while ensuring that the ensuing court battles do not affect the country’s development agenda. This defines the burden on the states which, in addition to securing a balance between corporate and citizen rights, must grapple with the challenge of creating and fostering conditions for sustainable and diversified economic growth if they are to avoid the so-called ‘resource curse.’

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD: Muigua, K., “Maximising the Right to Free, Prior, and Informed Consent for Enhanced Environmental Justice in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/ 2019/03/Maximising-the-Right-to-FPIC-in-Kenya-Kariuki-Muigua-29th-March-2019. pdfDr. 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

Booysen, M., ‘Mining Rights and Communities – Does The Xolobeni Judgment Take South Africa Forwards Or Backwards?’ iAfrica, February, 4, 2019.

Bruce, L.A., “Game-changing judgment for Xolobeni community on mining rights applications,” available at: https://www.wits.ac.za/news/sources/cals-news/2020/game-changing-judgment-for-xolobeni-community-on-mining-rights-applications.html (accessed on 18/11/2021).

Mavhinga, D., “South Africa’s Constitutional Court Protects Land Rights: Landmark Rulings Protect Women and Communities Affected by Mining Companies,” Human Rights Watch, November 6, 2018. Available at https://www.hrw.org/news/2018/11/06/south-africas-constitutional-court-protects-land-rights [Accessed on 18/11/2021].

United Nations Environmental Programme, “South African indigenous community win environmental rights case over mining company,” December 7, 2018. Available at https://www.unenvironment.org/ news-andstories/story/south-african-indigenous-community-win-environmental-rights-case-over-mining [18/11/2021].

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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1

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The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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Dr. Kariuki Muigua: The Making of Top Arbitrator in Africa

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African Arbitrator of the Year 2022 Dr. Kariuki Muigua's Journey to the Top of ADR in Africa is a Case Study of Excellence

The journey of Dr. Kariuki Muigua to becoming the African Arbitrator of the Year 2022 has seen him painstakingly and consistently research, teach, write, edit, publish, train, mentor and practice arbitration, alternative dispute resolution (ADR), conflict management and dispute resolution for the last 30 years with excellence as a leading lawyer, authoritative scholar and ADR expert. Today, Dr. Kariuki Muigua, Phd, C.Arb is a Chartered Arbitrator and the African Trustee of the Chartered Institute of Arbitrators and the African Arbitrator of the Year 2022. He is an advocate of 33 years standing and the Managing Partner of Kariuki Muigua & Co. Advocates. He is also the author of the Leading Textbooks on ADR, Mediation and Arbitration including the seminal Settling Disputes Through Arbitration in Kenya, now in 4th Edition. Dr. Kariuki Muigua is ranked at Band 1 by Chambers & Partners among the leading Arbitrators in Kenya noting that “He has been involved in several ground-breaking arbitrations,” “has an astute understanding of arbitration” and “is respected for litigation.”

Dr. Kariuki Muigua is also both the founder, publisher and editor of Africa’s leading Conflict Management Journal as well as one of the PhD Academics who majored in resolution of Natural Resources and Environmental Conflicts using mediation. Dr. Kariuki Muigua is also a leading author in the area of conflict management and has published several books on the topic including Resolving Conflicts through Mediation and Natural Resources and Environmental Justice in Kenya. It is these exploits that have left many of his admirers convinced that his next stop would be Professorship and admission to the Rank of Senior Counsel.

As an ADR Practitioner, Dr. Muigua was declared the first ever winner of the Chartered Institute of Arbitrators (Kenya Branch) ADR Lifetime Achievement Award, the highest honour given by the Institute to one member every year for his immense contribution to the growth of practice, research and scholarship of ADR in Kenya and across Africa. The award came barely a week after Dr. Muigua had won the coveted Law Society of Kenya ADR Practitioner of the Year Award at the 4th Edition of the Nairobi Legal Awards. LSK recognized Dr. Muigua for his outstanding practice in ADR and especially arbitration and his role as mentor to many lawyers venturing into the area. Dr. Kariuki Muigua was also awarded the ADR Publisher of the Year for his scholarship, authorship and editorship of leading research and publications on ADR in Africa including the Journal of Conflict Management and Sustainable Development and Alternative Dispute Resolution, the Official Journal of the CIArb (Kenya).

The tripartite awards have been hailed by many of Dr. Kariuki Muigua’s peers in the ADR and Arbitration fraternity as a fitting tributes to his made immense contribution to mainstreaming of alternative dispute resolution (ADR) and especially arbitration as way of resolving disputes in Kenya, East Africa and across Africa in the last two (2) decades. Indeed, starting in 2002 when Dr. Muigua took the Special Member Course leading to membership to the Chartered Institute of Arbitrators (MCIArb), Dr. Muigua one of the staunchest advocates of ADR in Africa in addition to becoming the foremost intellectual voice shaping ADR practitioners and scholars of the future. The contribution of Dr. Kariuki Muigua to the alternative dispute resolution (ADR) sector has taken many shapes and forms including as a practitioner, leader, policy maker, scholar, author, trainer, mentor and trailblazer among others.

Dr. Muigua is a leading Alternative Dispute Resolution (ADR) practitioner in Kenya, Africa and the world at large who has been recognized nationally and globally by peers. The world leading peer-reviewed lawyers’ directory, Chambers and Partners, rates Dr. Kariuki Muigua as one of the best alternative dispute resolution experts in the country. It describes as ‘a highly respected arbitrator and mediator with a sterling background in commercial and constitutional cases, as well as matters relating to the environment and natural resources.’ The most recent ranking adds: “Kariuki Muigua of Kariuki Muigua & Co is held in high regard by market commentators for his role in the Kenyan arbitration sphere. He possesses stellar experience in commercial and constitutional disputes, as well as environmental matters and those relating to the extractive industries. In addition to being “a big noise in the arbitration association,” he is widely recognized for his academic work.”

Dr. Muigua has served in many panels as an arbitrator appointed by the Chartered Institute of Arbitrators (CIArb)-Kenya, the Law Society of Kenya (LSK), the Nairobi Centre for International Arbitration (NCIA), the London Court Of International Arbitration (LCIA) and the International Court of Arbitration under the auspices of the International Chamber of Commerce (ICC) on several occasions as a sole arbitrator and a member of arbitral tribunals in arbitrations involving commercial disputes. He has vast experience and expertise in adjudication and has sat as both as a panel member and a chairperson in various adjudication Boards both locally and internationally. He is also an accomplished mediator and has successfully presided over numerous matters both as a private mediator and a court appointed mediator under the Court-Annexed Mediation program in Kenya.

Dr Muigua was elected (unopposed) to the Chartered Institute of Arbitrators (CIArb) Board of Trustees as the Regional Trustee for Africa, for the term beginning 1 January 2019. Previously, he served as the Branch Chairman of CIArb-Kenya from 2012 to 2015. He also served CIArb as Member and past Chairperson of the Sub-committee on Information Technology (IT), CIArb and as Member of the Legal Committee Chartered Institute of Arbitrators (CIArb) – Kenya chapter. He is a Fellow of Chartered Institute of Arbitrators (CIArb)-Kenya chapter. He is also a member of the London Court of International Arbitration (LCIA), Chartered Institute of Arbitrators (UK) and Kenya Branch. He is also a Member of Kigali International Arbitration Centre (KIAC) and Nairobi Centre for International Arbitration (NCIA). For his contributions, he was awarded Chartered Institute of Arbitrators Chairman’s Medal with a citation for exemplary service in December, 2015.

In policy-making, Dr. Kariuki Muigua is currently a member of the National Steering Committee for Formulation of the Alternative Dispute Resolution Policy representing the Academia since 2020. The team is providing guidance and overseeing the process for formulation of a national policy and institutional framework on Alternative Dispute Resolution (ADR) in Kenya. He has also served as Member of the Meditation Accreditation Committee Panel of Mediators Accredited for Commercial Mediation under the Judiciary of Kenya. Recently, he led negotiations that achieved partnership with Chartered Institute of Arbitrators UK on GPR 625 (International Commercial Arbitration) for University of Nairobi LLM students to achieve membership status without further tests, 2020 to 2023.

On ADR Scholarship, Dr. Muigua is the author of the leading textbook on Arbitration in Kenya, namely, Settling Disputes through Arbitration in Kenya, now in its 4th Edition (2022) and available for free download, Alternative Dispute Resolution and Access to Justice in Kenya (2015) and Resolving Conflicts through Mediation in Kenya (2013). He has been cited hundreds of times as an ADR Scholar, contributed at least 3 chapters of published books, authored dozens of peer-reviewed articles in the areas of arbitration and alternative dispute resolution and presented over two dozen papers on ADR in diverse fora. Dr. Muigua has also facilitated numerous trainings, workshops and conferences on ADR. He has supervised and supervised at least two (2) completed PhD thesis on ADR, Dozens of Masters Thesis and is supervising three (3) PhDs in the area as a lecturer and mentor in ADR practice and scholarship. Dr. Muigua is a lecturer in International Commercial Arbitration at the University of Nairobi and tutor, trainer and assessor at the Chartered Institute of Arbitrators (Kenya Branch).

Dr. Kariuki Muigua is a Chartered Arbitrator (since January 2015) and Fellow of the Chartered Institute of Arbitrators (since October 2010) and Member of the Chartered Institute of Arbitrators (since 2002). He holds a Diploma in Arbitration (2012) and became Accredited as a Mediator by the Mediation Training Institute in 2015. He is also a renowned consultant on ADR Law and Practice and has authored reports whose recommendations had far reaching impact on the sector. As a professional who strives to attain excellence in the legal and ADR arenas, Dr. Muigua has gone out of his way to put ADR in the frontline as one of the leading modes of dispute resolution in Kenya, Africa and at global stage. Dr. Muigua is a holder of a Ph. D in law from the University of Nairobi and has widespread training and experience in both international and national commercial arbitration and mediation. Previously, he served as the chairperson, Department of Private Law of the University of Nairobi School of Law 2020-2021.

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Overcoming Hindrances to International Commercial Arbitration in Kenya

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By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021*

In the face of globalisation, it is important that international trade and investment take place with minimal interference by territorial barriers such as unnecessary domestic courts’ intervention. It has been asserted that the settlement of disputes between parties to an international transaction, arbitration has clear advantages over litigation in national courts. The foreign court can be an alien environment for a businessman because of his unfamiliarity with the procedure which may be followed, the laws to be applied, and even the mentality of the foreign judges.

In contrast, with international commercial arbitration parties coming from different legal systems can provide for a procedure which is mutually acceptable. They can anticipate which law shall be applied: a particular law or even a lex mercatoria of a trade. They can also appoint a person of their choice having expert knowledge in the field. Thus, it is argued that these and other advantages are only potential until the necessary legal framework can be internationally secured, at least providing that the commitment to arbitrate is enforceable and that the arbitral decision can be executed in many countries, precluding the possibility that a national court review the merits of the decision.

There is a need to employ mechanisms that will help nurture and demonstrate Kenya to the outside world as a place with international commercial arbitrators with sufficient knowledge and expertise to be appointed to arbitrate international arbitrators. There is also the need to put in place adequate legal regimes and infrastructure for the efficient and effective organization and conduct of international commercial arbitration in Africa. This ranges from legislating comprehensive law on international commercial arbitration as well as setting up world class arbitration centres in Kenya to complement the Nairobi Centre for International Arbitration (NCIA).

There is also the Centre for Alternative Dispute Resolution (CADR) which is an initiative by the Chartered Institute of Arbitrators, Kenya and was incorporated in May, 2013. Its objective is to establish and maintain a regional Dispute Resolution Centre in the country. The CADR is a positive step towards nurturing international commercial arbitration in Kenya. This will afford the local international commercial arbitrators the fora to showcase their skills and expertise in international commercial arbitration and will also attract international clients from outside Africa. It has been noted that there should be basic minimum standards for international commercial arbitration centres or institutions. These include: modern arbitration rules; modern and efficient administrative and technological facilities; Security and safety of documents; Expertise within its staff; and some serious degree of permanence. There is a need to set up more regional centres for training of international commercial arbitrators in Africa and Kenya.

The Kenyan Chapter of Chartered Institute of Arbitrators trains arbitrators across Africa and has trained arbitrators in countries like Nigeria, Zambia, Uganda and even Malawi. Kenya can indeed play a pivotal role in nurturing international commercial arbitration, not only in Kenya but also across the African continent. There is also need for the existing institutions to seek collaboration with more international commercial arbitration institutions since this will work as an effective marketing tool for the exiting institutions. For instance, the Kenyan Chartered Institute of Arbitrators Branch maintains a close relationship with the International Law Institute (ILI) Kampala and the Centre for Africa Peace and Conflict Resolution (CAPCR) of California State University to conduct Courses in Mediation and other forms of ADR both locally and internationally.

There is need for all African centres and institutions to do the same to promote international commercial arbitration in Africa. The Kenyan law on arbitration appreciates the need to limit court intervention in arbitration to a basic minimum. It has been argued that the relationship between the courts and the arbitral process can be made much closer, both practically and psychologically. The psychological link can be strengthened by encouraging all or at least a good number of the commercial judges and advocates to take up training in arbitration and consequently ensuring that they benefit from having prior experience of arbitration either as representative advocates or actual arbitrators. This will subsequently boost the confidence of foreigners in the African Arbitration institutions as well as the role of courts. Effective and reliable application of international commercial arbitration in Kenya has the capacity to encourage investors to carry on business with confidence knowing their disputes will be settled expeditiously.

In essence, there is need to develop a clear framework in Kenya within which international commercial arbitration can be further nurtured. There are arbitral institutions already in place in Kenya as highlighted in this paper. The presence of such institutions in the country points to an acceptance of alternative dispute resolution modes as well as the need to nurture the practice of international commercial arbitration other than exporting commercial disputes to foreign countries for settlement. With the right frameworks in place, Kenya indeed has the capacity to conduct successful international commercial arbitration. Nurturing international commercial arbitration in Kenya is a necessity whose time has come.

*This article is an extract from published article Nurturing International Commercial Arbitration in Kenya,” by Dr. Kariuki Muigua, PhD, the African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), CIArb (Kenya) ADR Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021. Dr. Kariuki Muigua is a Foremost Dispute Resolution Expert in Africa ranked among Top 6 Arbitrators in Kenya by Chambers and Partners, Leading 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 2022 and is ranked among the Top 5 Arbitrators in Kenya in 2022 by The Lawyer Africa. 

References

Muigua, K., “Nurturing International Commercial Arbitration in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2021/10/Nurturing-International-Commercial-Arbitration-in-Kenya.pdf (accessed 15 July 2022).

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