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 question of whether Alternative Dispute Resolution (ADR) practice in Kenya should be regulated as a specialised area of practice or profession requires the proper historical perspective especially given that ADR was not an invention the colonial masters. Indeed, it is worth noting that the formal justice system in Kenya as we know it today was never part of the indigenous communities in Kenya until the colonial masters introduced the same as a tool of colonization. Community-based conflicts were dealt with using the traditional methods of conflict management and those who administered the same did so within the societal accepted ideals and were guided and regulated by the norms and traditions of the particular community. Notably, there were mostly organized forums where community members appeared for conflict management such as Njuri Ncheke among Meru and Council of Elders among the Kikuyu, and each of these had an accepted code of conduct and minimum qualifications for one to join as a member. As such, the members were expected to abide by the set guidelines all the time.
However, with the advent of the colonial masters, most of the ADR and traditional justice systems were relegated to an inferior position, with the main conflict management methods becoming the formal common law system, which went ahead to be established as a profession requiring specialised training and qualifications. It is the misconception of the African communal way of life, conflict resolution institutions and prejudice against their traditional way of life that led to the introduction of the western ideals of justice which were not based on political negotiations and reconciliation. Under this new arrangement, although certain minor disputes could be settled in a customary manner, the English Common Law became the ultimate source of authority.
It is noteworthy that while there was no problem with some of these developments, the practitioners of the alternative and traditional justice systems were rarely recognized under the new system during colonialism and even after colonialism. Even where recognized, the system was to be used only for reference when dealing with a small section of disputes touching on a few issues such as community land, family law, amongst others. The political and legal systems of the colonial masters were superimposed upon the traditional and customary political and legal processes of African people, and the African customs and practices were allowed to continue ‘only if they were not repugnant to justice and morality’.
This is how a few of the ADR mechanisms such as arbitration and mediation gained prominence even under the formal systems, as they were supported by mainly the international business community as forums to address arising commercial disputes. Thus, for example Kenya, in an attempt to be at par with its international business partners, developed laws on arbitration, which have been revised with time to reflect international best practices. There have also been a few organisations training professionals on mainly the two mechanisms and developing codes of conduct for those training or practicing under their umbrella. But it is the recognition of ADR under the current Constitution of Kenya 2010 which has triggered increased need for more professionals to train and gain expertise in various ADR mechanisms. This growing numbers of practitioners from different professional backgrounds come with the challenge of the need for regulation of this seemingly fast growing area of practice.
The formal recognition of the various ADR and TDR mechanisms in the Constitution of Kenya and under various statutes has also led to increased application of these mechanisms by courts and tribunals, amongst other informal forums. For instance, the Judiciary has also since launched and rolled out the Court Annexed Mediation Project to especially deal with commercial and family matters. As a result, a good number of disputes that used to end up in court are now increasingly being managed using these mechanisms. In any case, courts have a constitutional obligation to promote their utilisation whether within the formal framework, that is, court-annexed ADR, or as informal mechanisms as envisaged in the various constitutional provisions.
Thus, in the last few years, ADR practice has emerged as an area of specialisation with both lawyers and non-lawyers becoming recognized ADR practitioners. In fact, Law Society of Kenya has even introduced the ADR Practitioner of the Year Award in recognition of its members (Advocates) who are excelling in ADR Practice. At the same time, seeking to cash in on the consequently increased demand for trained practitioners, ADR centres have been set up to offer training and continuing professional development courses for the trained. This is what makes it necessary to grapple with the question as to whether or not ADR and TDR practice should formally be regulated by an overall body or at least under a centralized policy framework or be left within the ambit of private regulation by private bodies.
There is no question that this debate is far from conclusion. However, it is important to note that at the moment the law, as it is, does not specify whether courts should deal with institutional-affiliated ADR practitioners only or even those practicing independently, for instance, in ad hoc arbitrations. Unlike the legal profession where lawyers or advocates wishing to practice law in Kenya must be affiliated to a professional body, namely, the Law Society of Kenya, ADR practice does not have such requirements. It is for this reason that the question on regulation of ADR practitioners should be addressed, especially within the current constitutional dispensation. There is no question that numerous issues in ADR require regulatory guidance including how to refer disputes to ADR, how to choose the applicable ADR process or method, obligation to participate in the ADR method, the applicable procedure in ADR and formal enforceability of the ADR outcome. These issues underscore the basic need to regulate ADR, which through self-regulation or Governmental regulation or both.
*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
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.