News & Analysis

How to Fulfill the Right to Water as a Socioeconomic Right in Kenya

Published

3 years ago

December 14, 2021

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*

Water is now considered a human right issue and there is an increasing need to balance all of the competing commercial demands on water resources so that communities have enough for their needs. The State obligation to fulfil its human rights obligations includes the obligations to facilitate and promote the fulfilment of the right to water. The obligation to facilitate requires the State to take specific measures within its available resources to assist individuals and communities to enjoy the right to water. The obligation to promote requests the State to take targeted steps. To this end, the State can take the following measures towards the fulfillment of water as a socioeconomic right for the people of Kenya.

Public Participation and Consultation in Decision-Making

Principle No. 2 of the Dublin Statement on Water and Sustainable Development’ (1992) recommends that water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels. It goes on to state that ‘the participatory approach involves raising awareness of the importance of water among policymakers and the general public. It means that decisions are taken at the lowest appropriate level, with full public consultation and involvement of users in the planning and implementation of water projects.’ There is a need for the Government and other stakeholders to involve communities in decision-making processes relating to water management not only as a way of ensuring that the constitutional thresholds are met but also as a way of ensuring that the appreciate the challenges that face the sector and use the available water efficiently.

Addressing Poverty for Fulfilling the Right to Water

In a Resolution on the Right to Development adopted on 19 December 2016, the United Nations General Assembly expressed their concern that the majority of indigenous peoples in the world live in conditions of poverty, and recognized the critical need to address the negative impact of poverty and inequity on indigenous peoples by ensuring their full and effective inclusion in development and poverty eradication programmes. Considering that there is continued privatization and commercialization of provision of water services in the country, there is a need to address poverty levels in the country in order to ensure that people are economically empowered to afford safe, clean and adequate amounts of water for their own use.

Addressing Gender Inequality in Water Services

It has rightly been argued that since women have an increased need for water for hydration, sanitation and hygiene during menstruation, pregnancy, the postnatal period and while caring for sick family members or young children, when these basic needs are not met, women and girls are unable to participate equally in society. This is especially more pronounced in Kenya and Africa where gender roles in society are still greatly affected by cultural beliefs. As modernity and campaigns towards promotion of gender equality continue to address these cultural notions, there is a need for the government and water providers to ensure that women and girls have access to adequate and safe water for domestic and agricultural use for as long as they still bear the burden of being caregivers and nurturing families.

While the 2010 Constitution of Kenya acknowledges access to clean and safe water as a basic human right falling under social economic rights and assigns the responsibility for water supply and sanitation service provision to county governments, for a huge population of the Kenyan people, this remains a mirage. As things currently stand, water was commercialized as evidenced under the current water laws in Kenya and water has continually become expensive and women and girls’ access to the same is further hindered by their reduced purchasing power, especially in the urban informal settlements.

It is estimated that only about 20% of the population in Kenya’s urban informal settlements have access to safe drinking water. While in the major restructuring of Kenya’s urban water delivery system towards commercialization and privatization where private vendors are being regularized for better service delivery in terms of regulation of prices and quality of water, women and the urban poor continue to be disadvantaged. There is thus a need for continued empowerment of women and girls as a way of ensuring that they are economically, socially and politically empowered in order for them to have not only a say in water management decisions but also have the economic means to access the same.

Combating Climate Change for Safeguarding Water Resources

Considering that climate change poses a great threat to water sources and supply, there is a need for the stakeholders in water sector to work closely with other stakeholders in order to combat climate change through such means as sound management policies for water, using climate resilient technologies, among other means. Some authors have also argued that since water and sanitation services contribute to greenhouse gas emissions, choice of wastewater treatment technologies, improved pumping efficiency, use of renewable sources of energy, and within system generation of energy also offer potential for reducing emissions.

Financing of Water Projects

Under the Water Act 2016, there is also established a water sector financing institution to be known as the Water Sector Trust Fund.58 The object of the Fund is to provide conditional and unconditional grants to counties, in addition to the Equalisation Fund and to assist in financing the development and management of water services in marginalized areas or any area which is considered by the Board of Trustees to be underserved including- community level initiatives for the sustainable management of water resources; development of water services in rural areas considered not to be commercially viable for provision of water services by licensees; development of water services in the under-served poor urban areas; and research activities in the area of water resources management and water services, sewerage and sanitation.59 This fund should be utilized towards ensuring that all persons get to enjoy the right to clean, safe and adequate amounts of water as a socio-economic right. The fund should be used to improve water supply for both urban and rural populations.

A Human Rights Approach to Water Services Provision

It has been argued that the human right to water implies that water supply must be accessible within, or in the immediate vicinity of, each household, educational institution, workplace and public place. The right to water is now seen as an implicit component of the right to an adequate standard of living and the right to health. In the case of Isaac Kipyego Cherop v State Ministry of Water & 142 others [2017] eKLR, the Court affirmed that the right to clean water is intertwined with the right to clean and healthy environment. The right to water and sanitation is now anchored in international human rights law and states, policymakers, international development partners and civil society groups are enjoined to work om making the right to drinking water and sanitation a reality.

While it is acknowledged that the fulfilment of the right to water as a socio-economic right is progressive, the Government should continually work with non-state actors, private investors, NGOs and other stakeholders to ensure that the same is fulfilled for Kenyan citizens and especially the most vulnerable and marginalized groups. The Government should continually work towards coming up with ways of ensuring that water is affordable for all. However, considering that water is a scarce commodity, there is also need for public education and creating awareness on the need to use water efficiently in order to minimize wastage of the same. Water is an integral part of the socio-economic rights and the Government cannot ably fulfill its obligations on Article 43 of the Constitution of Kenya without working towards fulfilling its obligations on provision of water for all citizens. Fulfilling the right to water as a prerequisite for realization of other socio-economic rights for the people of Kenya is indeed necessary and possible.

*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 ADR Lifetime Achievement Award 2021 (CIArb Kenya): Muigua, K., Fulfilling the Right to Water as a Socioeconomic Right for the People of Kenya, https://kmco.co.ke /wp-content/ uploads/2020/11/Fulfilling-the-Right-to-Water-as-a-Socioeconomic-Right-for-the-People-of-Kenya-Kariuki-Muigua-Ph-D.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.

References

Albuquerque, C., “Climate Change and the Human Rights to Water and Sanitation.” (2010)< https://www2.ohchr.org/ english/issues/water/iexpert/docs/ClimateChange _HRtWS.pdf> (Accessed 11 December 2021).

CESR, ‘What Are Economic, Social and Cultural Rights?’ (3 December 2008), Available at: https://www.cesr.org/what-are-economic-social-and-cultural-rights (Accessed 29 October 2020).

Centre on Housing Rights and Evictions and others (eds), Manual on the Right to Water and Sanitation: A Tool to Assist Policy Makers and Practitioners Develop Strategies for Implementing the Human Right to Water and Sanitation (Centre on Housing Rights and Evictions 2007).

Chepyegon, C. and Kamiya, D., ‘Challenges Faced by the Kenya Water Sector Management in Improving Water Supply Coverage’ (2018) 10 Journal of Water Resource and Protection 85; ‘Nairobi Water: What’s behind Severe Shortages?’ BBC News (2 November 2019) (accessed 14 December 2021).

Constitution of Kenya, Laws of Kenya, Government Printer, Nairobi, 2010.

Dawood Ahmed and Elliot Bulmer, ‘Social and Economic Rights,’ International IDEA Constitution-Building Primer 9, International Institute for Democracy and Electoral Assistance (International IDEA), Second edition, 2017, Available at: https://www.idea.int/sites/default/files/publications/social-and-economic-rights-primer.pdf (Accessed 20 October, 2020).

Dos Santos, S. and others, ‘Urban Growth and Water Access in Sub-Saharan Africa: Progress, Challenges, and Emerging Research Directions’ (2017) 607–608 Science of The Total Environment 497.

Dublin Statement on Water and Sustainable Development’ (1992) 10 Waterlines 4, Available at: http://www.cawater-info.net/library/eng/l/dublin.pdf (Accessed on 11 December 2021).

General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), Adopted at the Twenty-ninth Session of the Committee on Economic, Social and Cultural Rights, on 20 January 2003 (Contained in Document E/C.12/2002/11).

Howard, G., and others, ‘Climate Change and Water and Sanitation: Likely Impacts and Emerging Trends for Action’ (2016) 41 Annual Review of Environment and Resources 253.

Human Rights Watch, “‘There Is No Time Left.’” (2 Jan. 2019), Available at: www.hrw.org/report/2015/ 10/15/there-no-timeleft/climate-change-environmental-threats-and-human-rights-turkana; (Accessed 1 December 2021).

Kiefer, T., Winkler, I., and Cacciaguidi-Fahy, S., “Legal Resources for the Right to Water and Sanitation. International and National Standards.” International and National Standards – 2^nd Edition (2008).

McGraw, G. S. “Defining and defending the right to water and its minimum core: legal construction and the role of national jurisprudence.” Loy. U. Chi. Int’l L. Rev. 8 (2010): 127.

Lancet Global Health, ‘Water and Sanitation in a Post-COVID World’ (2020) 8 The Lancet Global Health e1101.

Levin, T., M. Nierenköther, and N. Odenwälder. “The human right to water and sanitation: Translating theory into practice.” Eschenborn, Germany: Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH (2009).

Ling San Lau and others, ‘COVID-19 in Humanitarian Settings and Lessons Learned from Past Epidemics’ (2020) 26 Nature Medicine 647.

Muigua, Kariuki. “Streamlining Water Governance in Kenya for Sustainable Development.” (2017), Available at: http://kmco.co.ke/wp-content/uploads/2018/08/Streamlining-Water-Governance-in-Kenya-17TH-FEBRUARY-2017.pdf (accessed 14 December 2021).

Navarra Center for International Development, ‘Water Provision in Kenya: Problems and Challenges in Managing Finite Resources,’ http://ncid.unav.edu/en/news/water-provision-kenya-problems-and-challenges-managing-finite-resources (accessed 14 December 2021).

Nicol, A., ‘The Pandemic Is Laying Bare a Global Water Crisis’ (Foreign Policy) accessed 28 October 2020;

Safe Drinking Water Foundation, ‘Human Rights,’ Available at: https://www.safewater.org/fact-sheets-1/2017/1/23/human-rights (accessed 28 October 2020).

Sarkar, A., ‘Informal Water Vendors and the Urban Poor: Evidence from a Nairobi Slum’ (2020) 45 Water International 443.

UN-Water, ‘Water’ (21 December 2015) https://www.un.org/en/sections/issues-depth/water/ (accessed 28 October 2020).

UN-Water, ‘UN World Water Development Report 2020 “Water and Climate Change”’ (UN-Water, 21 March 2020) accessed 28 October 2020.

United Nations, CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000 (Contained in Document E/C.12/2000/4);

UN General Assembly, The Human Right to Water and Sanitation: Resolution / Adopted by the General Assembly, 3 August 2010, A/RES/64/292.

UN, ‘International Decade for Action “Water for Life” 2005-2015. Focus Areas: The Human Right to Water and Sanitation’ https://www.un.org/waterforlifedecade/human_right_to_water.shtml (accessed 21 October 2020).

UN General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1. 25.

Water Act, No. 43 of 2016, Laws of Kenya, Government Printer, Nairobi, 2016.

Water Project, ‘The Water Crisis: Poverty and Water Scarcity in Africa,’ Available at: https://thewaterproject.org/why-water/poverty (accessed 14 December 2021).

World Health Organization. Water, sanitation, hygiene, and waste management for the COVID-19 virus: interim guidance, 23 April 2020. No. WHO/2019-nCoV/IPC_WASH/2020.3. World Health Organization, 2020.

Admin

admin@thelawyer.africa | Website | + posts

Up Next

Role of Science and Technology in Environmental Management in Kenya

Don't Miss

The Challenges Hindering Access to Water in Kenya

Click to comment

News & Analysis

What is Carbon Markets?

Published

5 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

+254 729-999-333 | info@mmaadvocates.co.ke | Website | + posts

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

7 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

+254 020-2210281 | admin@kmco.co.ke | Website | + posts

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

8 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).

Isenhart. M.W., & Spangle. M., ‘Summary of “Collaborative Approaches to Resolving Conflict” ‘ Available at https://www.beyondintractability.org/bksum/isenhart-collaborative (Accessed on 01/03/2024).

Kaushal. R., & Kwantes. C., ‘The Role of Culture and Personality in Choice of Conflict Management Strategy.’ International Journal of Intercultural Relations 30 (2006) 579– 603.

Leeds. C.A., ‘Managing Conflicts across Cultures: Challenges to Practitioners.’ International Journal of Peace Studies, Volume 2, No. 2, 1997.

May. E., ‘Collaborating Conflict Style Explained In 4 Minutes’ Available at https://www.niagara institute.com/blog/collaborating-conflict-style/ (Accessed on 01/03/2024).

Miroslavov. M., ‘Mastering the Collaborating Conflict Style In 2024’ Available at https://www.officernd.com/blog/collaborating-conflictstyle/#:~:text=It’s%20one%20of%20the%20strat egies,their%20underlying%20needs %20and%20interests. (Accessed on 01/03/2024).

Muigua. K & Kariuki. F., ‘ADR, Access to Justice and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/ADR-access-tojustice-and-development-inKenyaRevised-version-of-20.10.14.pdf (Accessed on 01/03/2024).

Muigua. K., ‘Alternative Dispute Resolution and Access to Justice in Kenya.’ Glenwood Publishers Limited, 2015.

Muigua. K., ‘Reframing Conflict Management in the East African Community: Moving from Alternative to ‘Appropriate’ Dispute Resolution.’ Available at https://kmco.co.ke/wpcontent/uploads/2023/06/ Reframing-ConflictManagement-in-the-East-African-CommunityMoving-from-Alternative-toAppropriate-Dispute-Resolution (Accessed on 01/03/2024).

Muigua. K., ‘Resolving Conflicts through Mediation in Kenya.’ Glenwood Publishers Limited, 2nd Edition., 2017.

Quain. S., ‘The Advantages & Disadvantages of Collaborating Conflict Management’ Available at https://smallbusiness.chron.com/advantagesdisadvantages-collaborating-conflict-management-36052.html (Accessed on 01/03/2024).

Samuel. A., ‘Is the Collaborative Style of Conflict Management the Best Approach?’ Available at https://www.linkedin.com/pulse/collaborative-style-conflictmanagement-best-approach-samuel-ansah (Accessed on 01/03/2024).

United Nations., ‘Land and Conflict’ Available at https://www.un.org/en/landnatural-resources-conflict/pdfs/GN_ExeS_Land%20and%20Conflict.pdf (Accessed on 01/03/2024).

Weiss. J., & Hughes. J., ‘Want Collaboration?: Accept—and Actively Manage— Conflict’ Available at https://hbr.org/2005/03/want-collaboration-accept-andactively-manage-conflict (Accessed on 01/03/2024).

Kariuki Muigua & Company

+254 020-2210281 | admin@kmco.co.ke | Website | + posts

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.