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*
As a matter of fact, while legislating ADR terms would come with the advantage of clarity and consistency, it could also result in lack of flexibility in the ADR processes. It is, however, on the foundation of consistent terminology that obligations and protections can be mandated by law. Article 159(2) (c) of the Constitution of Kenya makes mention of reconciliation, mediation, arbitration and traditional justice systems. The Civil Procedure Act, which provides for court-mandated mediation, defines mediation as ‘an informal and non-adversarial process where an impartial mediator encourages and facilitates the resolution of a dispute between two or more parties, but does not include attempts made by a judge to settle a dispute within the course of judicial proceedings related thereto.’
Notably, the Mediation (Pilot Project) Rules, 2015 also adopt this definition. The Act also provides for the referral of matters to other Alternative Dispute Resolution mechanisms where the parties decide or the court sees it suitable, only making reference to arbitration in a separate section. It conspicuously does not define ADR, nor does it give the list of mechanisms which would fall under its umbrella. Although, this broad provision covers under it a number of terms, policy makers would do well to specifically set out these mechanisms, as this is the foundation of the regulation of ADR such as setting standards for ADR practitioners.
Using consistent terms serves important functions. First, it ensures those who use, or are referred to conflict management services receive consistent and accurate information and have realistic and accurate expectations about the processes they are undertaking. This will enhance their confidence in, and acceptance of, conflict management services. Secondly, it helps courts and other referrers to match processes to specific disputes and different parties. Better matching improves outcomes from these processes. Thirdly, it helps service providers and practitioners to develop consistent and comparable standards. Such understanding also underpins contractual obligations and the effective handling of complaints about conflict management services. Fourthly, it provides a basis for policy and program development, data collection and evaluation.
The flipside to outlining an exhaustive list would however be that some of the ADR and TDR mechanisms, that the policy makers would be unaware of, risk being left out and consequently be undermined. It is important to also be aware of the diverse contexts in which ADR is used. Thus, definition or outlining an exhaustive list may impede access to justice through locking out some useful yet unlisted mechanisms. National Alternative Dispute Resolution Advisory Council (NADRAC) in Australia, advocates for the ‘description’ of terms as opposed to their definition, as this sets out the contexts in which such terms are used as opposed to their essential features. This may be useful in contemplating every possible ADR and TDR mechanism as recognised settings.
It is imperative to point out that the Constitution of Kenya recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. Further, it requires the State to, inter alia, promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage. Indeed, it has been argued that in the traditional settings, some of the conflict management mechanisms could be classified as forms of cultural expressions. For instance, the mechanisms they used include, kinship systems, joking relations, third party approach, consensus approach, riika (age-sets) social groups, women/men elders and blood brotherhood. Caution should, therefore, be exercised while approaching the issue of definition to ensure that such mechanisms are given a chance. Courts ought to appreciate the fact that culture has a role to play in conflict management.
Indeed, the 2010 Constitution of Kenya recognises culture as the foundation of the nation and as cumulative civilisation of the Kenyan people and nation. Further, one of the principles of land policy is encouragement of communities to settle land disputes through recognised local community initiatives consistent with the Constitution. It is therefore imperative that in matters that affect a whole community or even individuals, but with a bearing on cultural factors, courts should take into consideration such factors. Regulation should not result in locking out viable mechanisms as this would defeat the constitutional intentional of recognising TDR for aiding access to justice for all.
Further, aspects of national values such as social justice, inclusiveness, equality and protection of the marginalized as outlined in Article 10 of the Constitution also point at the need to promote local, cultural and traditional dispute resolution mechanisms of the diverse communities. Thus, the strict definition of ADR processes and methods applicable in Kenya could end up locking many relevant and applicable ADR and TDR mechanisms which are currently in application but are yet to come to service in the formal settings. In fact, if due care is not taken, such definitive legislation could end up having restrictive impact equal to the repugnancy clause that has been responsible for locking much of African legal system out of the formal justice system.
In final analysis, Kenyan lawmakers are advised to proceed with caution in addressing the matter of legislating the definition and scope of ADR processes. This calls for the appreciation of the potential breadth and depth of ADR as a dispute resolution method in Africa. It also requires deliberate effort to avoid limiting or locking out ADR methods and processes that are not necessarily practiced in the Western World given the need to appreciate that ADR practice is largely local and has to reflect local influences and inspirations as far as possible in the interest of helping parties to it embrace the process and its outcome instead of feeling out of place. In fact, allowing local influence to come to bear in the design of ADR processes is a reflection of the principle of party autonomy in ADR.
*This article is an extract from the Article Regulating Alternative Dispute Resolution (ADR) Practice in Kenya: Looking into the Future, 10(1) Alternative Dispute Resolution Journal, p. 1 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). 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 Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Constitution of Kenya, 2010,
Civil Procedure Act, Cap 21, Laws of Kenya.
Muigua, K., Resolving Conflicts through Mediation in Kenya. (Glenwood Publishers Ltd, Nairobi, 2012), Chap.2, pp. 20-37.
Muigua, K., “Heralding A New Dawn: Achieving Justice Through Effective Application of Alternative Dispute Resolution Mechanisms (ADR) in Kenya”, Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 1, No 1, (2013), pp. 43-78.
Muigua, K., Court Sanctioned Mediation in Kenya-An Appraisal, available at http://www.kmco.co.ke/ attachments/article/152/Court%20Sanctioned%20Mediation%20in%2 0Kenya-An%20Appraisal-By%20Kariuki%20Muigua.pdf .
Muigua, K., ‘Empowering the Kenyan People through Alternative Dispute Resolution Mechanisms,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 3, No. 2, (2015), pp. 64-108.
Muigua, K., ‘Effective Justice for Kenyans: is ADR Really Alternative?’ The Law Society of Kenya Journal, Vol. II, 2015, No. 1, pp. 49-62.
Muigua, K., ‘Legitimising Alternative Dispute Resolution in Kenya: Towards a Policy and Legal Framework,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 5, No 1, (2017), pp. 74-104.