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International Legal Framework on Indigenous Knowledge and Environmental Management
Published
2 years agoon
By
Admin
By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The United Nations Declaration on the Rights of Indigenous Peoples was adopted against a background of indigenous peoples having suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests. It therefore came in to, inter alia, correct such situations through guaranteeing their right to self-determination. In addition, it reaffirms the indigenous peoples’ right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired; the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired; and States should give legal recognition and protection to these lands, territories and resources. Such right includes their right to use their customs, traditions and land tenure systems of the indigenous peoples concerned especially in relation to their right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States are therefore obligated to establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.
The Convention on Biological Diversity recognises the role of indigenous knowledge in in-situ conservation of biological diversity and requires contracting states to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity. 38 The Convention further advocates for promotion of wider application of indigenous knowledge with the approval and involvement of the holders of such knowledge who should equitably share in the benefits which arise from the use of their knowledge. Further, under article 10(c) of the Convention, each Contracting Party shall, as far as possible and as appropriate protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.
The Convention is the only international treaty that specifically acknowledges the role of traditional knowledge, innovations, and practices in biodiversity conservation and sustainable development and the need to guarantee their protection, whether through intellectual property rights or other means. In order to achieve the vision of the Convention and optimise the role of indigenous knowledge in sustainable development, there is need to ensure clarity with regards to ownership of traditional knowledge and traditionally used biological resources; a process and set of requirements governing free prior and informed consent and equitable sharing of benefits with respect to traditional knowledge and associated genetic resources.
Principle 22 of the 1992 Rio Declaration on Environment and Development acknowledges that indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. In light of this, States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. The United Nations Educational, Scientific and Cultural Organization (UNESCO) asserts that ‘culture is who we are and what shapes our identity. No development can be sustainable without including culture.’
The Food and Agriculture Organization of the United Nations (FAO) opines that the promotion and protection of traditional and indigenous food and agricultural knowledge will require international, intercultural and interdisciplinary approaches, communication and cooperation. Coordination of indigenous and local communities’ sustainable use, conservation and management of food and agriculture within and across ecosystems, landscapes and seascapes will also require synergies that link food security, livelihood sustainability, poverty alleviation and food and agricultural productivity to rural development processes based on in and ex situ conservation of food and agricultural genetic resources. Traditional environmental knowledge from these communities thus becomes relevant in achieving the foregoing.
The 1994 Draft Declaration on Human Rights and Environment describes the procedural rights, such as the right to participation, necessary for realization of the substantive rights. Article 1 of the Aarhus Convention states that “in order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and wellbeing, each Party should guarantee the rights of access to information, public participation in decision-making and access to justice in environmental matters in accordance with the provisions of this Convention.” Environmental procedural rights such as the access to information, public participation and access to justice may be one of the ways and means to a realistic way for attaining the sustainable development. Recognition and active utilisation of communities’ traditional environmental knowledge can create a viable channel for communities to appreciate government’s efforts in effective environmental governance through promoting sustainable use of the environment and its resources.
Agenda 21 provides that Governments at the appropriate level, with the support of the relevant international and regional organizations, should, inter alia: promote a multidisciplinary and cross-sectoral approach in training and the dissemination of knowledge to local people on a wide range of issues which include various resources management. Further, Agenda 21 states that Coastal States should promote and facilitate the organization of education and training in integrated coastal and marine management and sustainable development for scientists, technologists, managers (including community-based managers) and users, leaders, indigenous peoples, fisherfolk, women and youth, among others. Management and development, as well as environmental protection concerns and local planning issues, should be incorporated in educational curricula and public awareness campaigns, with due regard to traditional ecological knowledge and socio-cultural values. This is useful in promoting sustainable and inclusive sustainable resources management through empowering the local people to participate meaningfully in the same.
The Bali Principles also affirm the fact that the impacts of climate change are disproportionately felt by small island states, women, youth, coastal peoples, local communities, indigenous peoples, fisherfolk, poor people and the elderly. Also noteworthy is the assertion that the local communities, affected people and indigenous peoples have been kept out of the global processes to address climate change. The Principles also acknowledge that unsustainable production and consumption practices are at the root of this and other global environmental problems. The impacts of climate change also threaten food sovereignty and the security of livelihoods of natural resource-based local economies. They can also threaten the health of communities around the world-especially those who are vulnerable and marginalized, in particular children and elderly people. More importantly, the Bali Principles acknowledge in the preamble that combating climate change must entail profound shifts from unsustainable production, consumption and lifestyles, with industrialized countries taking the lead.
African States and other stakeholders, in the Ngorongoro Declaration have acknowledged that Sustainable development can ensure that appropriate efforts are deployed to protect and conserve the cultural and natural resources of a region faced with the challenges of climate change, natural and human-made disasters, population growth, rapid urbanization, destruction of heritage, and environmental degradation for present and future generations. As such, they declared that on the one hand, African heritage is central to preserving and promoting African cultures thereby uplifting identity and dignity for present and future generations in an increasingly globalized world, and on the other hand, heritage, including World Heritage properties, is a driver of sustainable development and critical for achieving regional socio-economic benefits, environmental protection, sustainable urbanization, social cohesion and peace.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Revisiting the Place of Indigenous Knowledge in the Sustainable Development Agenda, Available at: http://kmco.co.ke/wp-content/uploads/2020/09/Revisiting-the-Place-of-Indigenous-Knowledge-in-the-Sustainable-Development-Agenda-Kariuki-Muigua-September-2020.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.
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The Top 100 Arbitrators in Kenya in 2023
Published
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October 30, 2023By
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THE LAWYER AFRICA released the list of TOP 35 Arbitrators in Kenya 2023 who comprised mainly active Chartered Arbitrators and the most distinguished active arbitrators in Kenya. THE LAWYER AFRICA TOP 100 ARBITRATORS IN KENYA 2023 comprises arbitrators who are outstanding in arbitration in Kenya. Given that Kenya has slightly over one thousand qualified Arbitrators, the TOP 100 ARBITRATORS are essentially the top 10% of Arbitrators in the country. The listed arbitrators have acted in several recent and significant arbitrations and are leaders or in the panels of the various Arbitration bodies active in Kenya including Chartered Institute of Arbitrators, ICC-Kenya, Nairobi Centre of International Arbitration (NCIA) and LCIA Africa Users Council among others.
TOP 100 ARBITRATORS IN KENYA 2023
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Uncategorized
Whether to Regulate or Not to Regulate ADR in Kenya
Published
2 months agoon
October 2, 2023By
Admin
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 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023).
Regulation of ADR is a subject wrought with contentious discourse. There are those who strongly advocate for ADR to be deregulated, while others argue for strong state regulation. On one end, the regulation of ADR carries with it the advantages of encouraging its adoption nationally; establishing standards of ADR practitioner’s competence; developing systems of compliance and complaints; addressing weaknesses of ADR such as ensuring the fairness of the procedure and building capacity and coherence of the ADR field.
Proponents of regulation have argued that regulation of ADR will increase the use and demand of services and create or enhance an ADR “market”. There are those who believe that the regulation of ADR may have its value in assuring that the parties employ qualified, neutral and skilled mediators and arbitrators in resolving a wide variety of disputes. However, this is countered by the argument that in mediation where the parties select private non-government mediators, monitoring is complimented by the fact that the parties share in the compensation of such neutrals, better assuring their freedom from bias. This assertion may be relevant to Kenya considering that private mediators are also appointed and compensated the same way. It is therefore possible to argue that the mediator may be compelled by this fact to act fairly.
Contention would, however, arise where there are allegations of corruption. It is not clear, at least in Kenya, how the parties would deal with the same. This is because, unlike in arbitration where parties may seek court’s intervention in setting aside the otherwise binding arbitral award, mediation outcome is non-binding and wholly relies on the goodwill of the parties to respect the same. Therefore, faced with the risk of corruption and the potential non-acceptance of the outcome by the parties, it is arguable that the foregoing argument of the compensation being a sufficient incentive may not be satisfactory. This may, arguably, call for better mechanisms of safeguarding the parties’ interests. In arbitration, the argument advanced is that whether of interests or rights disputes, the same process of joint selection and joint funding coupled with mutual selection of neutral from a tried and experienced cadre of professional arbitrators further assures their independence and neutrality, with protection of their integrity as their only ticket to future designations.
Again, the issue of independent practitioners would arise. For instance, in Kenya, there has been increased number of professionals taking up ADR. Professional bodies and higher institutions of learning have increased their rate of teaching ADR, as professional course and academic course respectively. The net effect of this will be increased number of ADR practitioners in the country. As part of professional development, not all of those who get the academic qualifications may enroll with the local institutions for certification as practitioners. There are also those who may obtain foreign qualifications and later seek such certification. However, there are those who are not affiliated to any institution or body. In such instances, it would only be hoped that they would conduct themselves in a professional manner, bearing in mind that any misconduct or unfair conduct may lead to setting aside of the award or even removal as an arbitrator by the High Court.
The court process obviously comes with extra costs and it would probably have been more effective to have a supervisory body or institution to report the unscrupulous practitioner for action, without necessarily involving the court. Such instances may thus justify the need for formal regulation, especially for the more formal mechanisms. Currently, there are attempts to make referral to ADR mandatory in Kenya. This is especially evidenced by the gazetted Mediation (Pilot Project) Rules, 2015, which provide that every civil action instituted in court after commencement of these Rules, must be subjected to mandatory screening by the Mediation Deputy Registrar and those found suitable and may be referred to mediation.
Thus, there is no choice as to whether one may submit the matters voluntarily or otherwise. While this may promote the use of mediation where the parties are generally satisfied with the outcome, the opposite may also be true. Caution ought to be exercised in balancing the need for facilitating expeditious access to justice through ADR and retaining the positive aspects of the processes. For instance, in other jurisdictions where there is provision for mandatory promotion of ADR processes, the use of those processes has not necessarily become common. Among the reasons given for this reluctance towards the adoption of ADR include lack of education and training in the field, lack of court-connected programs, whether voluntary or mandated and insufficient legislation.
The argument is thus made that when introducing ADR for the first time, there may be a need for some element of compulsion or legislative control, as this can support its growth. This is the path that the Kenyan Judiciary has taken. The Judiciary mediation programme is on a trial basis and the outcome will inform future framework or direction. The pilot program (having been rolled out to other stations outside Nairobi in May 2018) will define how the practitioners as well as the general public perceive court-annexed mediation and ADR in general. It is therefore important that the concerned drivers of this project use the opportunity to promote educational programming, with the efforts including workshops and seminars among the local practicing lawyers to enhance their understanding of ADR and the services provided by the pilot project. This, it is argued, may enable them to assist their clients in making informed decisions about whether or not to use ADR.
On the other end, it has been argued that legislative regulation, no matter how well meaning, inevitably limits and restrains. The regulation of ADR is feared to hamper its advantages. The developing country’s experience with court-annexed ADR indicates that when a judge imposes a conciliator or mediator on the parties, it does not provide the proper incentive for the parties to be candid about the case. ADR advantages such as low cost, procedural flexibility, enhanced access for marginalized groups and a predictable forum for conflict management tend to disappear when there is discretionary power with court personnel, procedural formalities within the ADR process or an artificial limit to competition within the ADR market.
Court mandated mediation has been argued to negate the fundamental aspects of voluntariness and party control that distinguish it from litigation, the very aspects attributed to its success in a vast number of cases. In addition, the “one size fits all” approach taken by legislation that encourages or requires all to use ADR, without regard to needs in various contexts and to the distinctions among the various processes, is another reason why ADR legislation should be undertaken with caution. For instance, in the Kenyan situation, while the Mediation (Pilot Project) Rules, 2015 require screening of civil matters for possible submission for mediation, it is possible for the Registrar to realise that some of the cases may be appropriate for arbitration instead of mediation. The programme only takes care of mediation process with no reference to arbitration or any other process, well, apart from litigation.
The question that would, therefore, arise is whether the Registrar has powers to force parties into arbitration as well. Further, if they have such powers, the next question would be who would pay for the process, bearing in mind that it is potentially cost-effective but may be expensive as well. On the other hand, if the Registrar lacks such powers, it is also a question worth addressing what the Court would do if it ordered the parties to resort to arbitration but both parties fail to do so due to such factors as costs. It is, therefore, worth considering whether the Mediation Accreditation Committee, established under the Civil Procedure Act, should have its mandate expanded to deal with all processes, or whether there should be set up another body to deal with the other processes.
*This is an extract from published article “Regulating Alternative Dispute Resolution (ADR) Practice in Kenya: Looking into the Future,” by Dr. Kariuki Muigua, PhD, 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 Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. 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 Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 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.
References
Muigua, K., “Regulating Alternative Dispute Resolution (ADR) Practice in Kenya: Looking into the Future,” Available at: http://kmco.co.ke/wp-content/uploads/2018/08/Regulating-ADR-Practice-in-Kenya-Kariuki-Muigua-June-2018.pdf (accessed 02 October 2022).
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Top Commercial Lawyer, Arbitrator, Mediator and Adjudicator: Jacqueline Waihenya
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2 months agoon
September 30, 2023By
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Jacqueline Waihenya is a Senior Advocate of the High Court of Kenya of 25 Years standing, a Chartered Arbitrators of the Chartered Institute of Arbitrators (CIARB), Chartered Mediator of the Institute of Chartered Mediators & Conciliators (CM-ICMC) and Patent Agent registered by Kenya Intellectual Property Institute (KIPI). She is one of the only 4 Lady Chartered Arbitrators in Kenya but also one of the pioneer Mediators accredited by the Kenya Judiciary. Jacqueline is the Founder and Managing Partner of JWM LAW LLP, a Mombasa-based leading Commercial and Corporate Law and Dispute Resolution Boutique Law Firms. Before starting her firm, she practiced law at leading law firms in the country including Dentons Hamilton, Harrison & Mathews (HHM) and as inhouse lawyer at a top transport and logistics company in Kenya. She was listed as Leader in Law in International Arbitration in 2021, Africa’s Influential Female Lawyers in 2022 and Hall of Fame Commercial Lawyer in Kenya by THE LAWYER AFRICA in 2023.
Jacqueline is a highly-regarded Professional Leader who has been chosen by her peers as their representative in numerous cases. Presently, she sits at the helm of law, arbitration, mediation, corporate secretarial and trade industries in diverse capacities. She is the incumbent Chairperson of the Chartered Institute of Arbitrators (Kenya Branch). Previously, Jacqueline served the CIARB (Kenya Branch) as Branch Treasurer and Vice Chairperson among others. She is the Vice Chairman of the Kenya National Chamber of Commerce & Industry (Mombasa Chapter) and the Vice Chairperson of the Mombasa Law Society (MLS). She sits on the Continuing Professional Development Committee of the Law Society of Kenya (LSK) and is also the founder and convener of the Alternative Dispute Resolution Committee as well as the Admiralty and Maritime Committee of Mombasa Law Society (MLS).
In arbitration, besides being a Chartered Arbitrator (C.Arb), Jacqueline is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a CIARB Accredited Tutor and a holder of Post-graduate Diploma in International Arbitration. Further, she holds an Advanced Certificate in Construction Adjudication from CIARB and is an International Federation of Consulting Engineers (FIDIC) Legal Professional trained at Kings College London and is a member of the Dispute Resolution Board Foundation (DBRF). She chaired the Taskforce on the Transition of CIARB (Kenya Branch) from a Society to a Company Limited by Guarantee and was one of the original 3 subscribers who oversaw the incorporation and operationalization of CIARB Kenya Limited transforming the Kenya Branch into one of the international corporate branches of CIARB (UK).
Jacqueline is one of the Top 10 Mediators in Kenya and holds distinguished qualifications in Mediation including being a Certified Mediator by International Mediation Institute (IMI), Chartered Mediator by Institute of Chartered Mediators and Conciliators (ICMC), FIFA Approved Mediator and Accredited Mediator of the Judiciary of Kenya. She holds Certified Advanced Mediator qualifications in Sports Mediation, Tax Mediation, Commercial Mediation and Family & Divorce Mediation from the Mediation Training Institute International (East Africa). She has keen focus in commercial mediation and has resolved numerous complex disputes in public finance, capital markets, private equity, real estate, marine and logistics and joint venture between local and foreign parties whose combined subject matter estimated value is over USD. 100 Million.
Jacqueline is a well-respected Corporate Governance Practitioner as a Fellow of the Institute of Certified Secretaries of Kenya (ICS), Certified Public Secretary, Accredited Governance Auditor, a Legal and Compliance Auditor trained by the Kenya School of Law and Governance Trainer. In March 2017, she attended the 20th Corporate Governance Training in Johannesburg, South Africa on the eve of the coming into effect of the King VI® Report undertaken in conjunction with the Institute of Directors South Africa (IoDSA) and Prof. Mervyn King and other leading governance experts. She is the Vice Chairman of the Governing Council of Institute of Certified Secretaries (ICS) where she previously chaired the Membership Committee as well as the Research & Publications Committee of the Institute.
As the National level, Jacqueline was recently appointed by the Chief Justice to the National Council on the Administration of Justice (NCAJ) Standing Committee on Civil Justice Reforms. In 2020, she resented CIARB (Kenya) as a member of the National Steering Committee National Steering Committee for the Formulation of the Alternative Dispute Resolution Policy. She served at the Committee as the convener of the NSC Sub-Committee on Legislative Proposals which was instrumental in preparing the draft proposed Amendments to the Arbitration Act as well as proposals for a Construction Adjudication Bill and a Dispute Resolution Bill attached to the Report presented to the Attorney General in 2021 and which was approved by Cabinet in March 2023. She also served on the Taskforce to the Review of the Certified Public Secretary Act which presented its report in November 2021. She served as the inaugural Kenya Country Chair in District 9212.
Jacqueline is also a respected intellectual and academic in areas of law, ADR, corporate governance and finance. She holds an LLM in Public Finance & Financial Services Law from the University of Nairobi and is currently pursuing an LLM in International Dispute Resolution at Queen Mary University of London and a Doctorate of Laws (PHD) at the University of Nairobi. She is also a prolific researcher who has authored over a dozen peer-reviewed journal articles in the areas of law, arbitration, mediation, corporate governance and ADR. She is currently an Adjunct Lecturer at Kenya School of Law, an Associate Editor of the ADR Journal and the Editor-in-Chief of the Mombasa Law Society Journal. She oversaw the publication of the ICS’s Governance Journal 2022 and the launch of the Governance Ethics Research and Compliance Manual and training. She is a frequent panelist and keynote speaker on law, ADR and governance at high level events in Kenya and around Africa.

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