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*

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 article is an extract from published article “Regulating Alternative Dispute Resolution (ADR) Practice in Kenya: Looking into the Future,” 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., “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 09 July 2022).

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 Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

It is estimated that Africa hosts 30% of the earth’s mineral reserves, including 40% of gold, 60% of cobalt, and 70% of platinum deposits, and produce about 30% of the world’s gold, 70% of the world’s platinum, 28% of the world’s palladium, and 16% of the world’s bauxite. In addition, Africa also produces (yearly, in thousand metric tons) 205,056 of hard coal, 67,308 of nickel bearing ores, and 29,174 of iron bearing ores, as well as 595,507 kg of gold bearing ores. The extractive or mining industries generally have long been touted as key to anchor ‘development’ or ‘economic growth’ to alleviate poverty in developing countries. Despite this, African countries have largely exhibited low levels of development and poor standards of living. This has been attributed to various factors including exploitative multinational corporations, lack of expertise and corruption, and African countries negotiating unfavourable mining development agreements, with the result that the Continent has received inadequate returns for its mineral wealth.

At the continental level, the Africa Mining Vision is expected to address most of these challenges if not all. But despite this Vision document, most of the African countries still struggle with making the mineral resources work for them, in uplifting the lives of their people. Kenya is no exception as it has a number of mineral deposits albeit in smaller amounts, which, as already pointed out, have not contributed much to the country’s GDP as would be expected. The communities are also yet to boast of any significant benefits from the mining activities going on within their regions. Notably, GDP from Mining in Kenya is estimated to have increased to 12527 KES Million in the fourth quarter of 2018 from 12313 KES Million in the third quarter of 2018. GDP from Mining in Kenya averaged 8963.05 KES Million from 2009 until 2018, reaching an all-time high of 12906 KES Million in the first quarter of 2018 and a record low of 4195 KES Million in the first quarter of 2009.

According to the Mining and Minerals Policy, Sessional Paper No. 7 of 2016, as at 2016, the sector was contributing 0.8 percent to gross domestic product (GDP) per annum. The contribution to GDP was expected to increase to three (3) percent by 2017 and ten (10) percent by 2030 according to the Medium Term Plan (MTP) II (2013-2017). While these statistics paint a hopeful picture with the figures increasing over the last ten years, there is still a lot of room for not only growth in these figures but also positive contribution of the mining sector to the lives of the ordinary citizens especially those to be found within the localities where such mining takes place. Indeed, the discovery of such minerals as the titanium deposits products in the Coastal region gives hope to the expectation of a brighter future for the sector and country at large. Reserves for Titanium and Niobium, both found in the Coast region, are projected to be worth Sh9 trillion, and Sh3.8 trillion for the estimated 750 million barrels, according to Tullow Oil’s 2017 projections.

Regulations were made by the Cabinet Secretary seeking to ensure that the mining activities do not only go on smoothly but also that they benefit the local communities even as they contribute to the national development agenda. These Regulations are meant to streamline the mining sector in the country by ensuring that some of the main provisions in the Mining Act 2016 are fully and efficiently implemented. Notably, some of these Regulations such as the Mining (Use of Local Goods and Services) Regulations, 2017; Mining (Employment and Training) Regulations, 2017 are meant to directly empower the local communities by promoting job creation and market for locally produced goods. However, while these Regulations mean well for the local communities and local industries, a lot still needs to be done to ensure that the environment favours the implementation of such Regulations.

For instance, the Regulations on use of local goods and services require that the holder of a licence, its contractors and sub-contractors shall, to the maximum extent possible, when purchasing goods and procuring services required with respect to operations or any activity to be conducted under a licence, give first priority to- materials and goods made in Kenya; and services provided by citizens of Kenya or entities incorporated and operating in Kenya or owned and controlled by Kenyans: provided that such goods and services are equal in quality, quantity and price to, or better than, goods and services obtainable outside of Kenya. This proviso stands to defeat the purpose of these Regulations.

As it may be proved through statistics, there are many factors of production that may, and have indeed, been making locally produced goods more expensive when compared to imported ones. Thus, as long as investors can prove that they can source such goods and/or services at more competitive prices or those with better quality, they will easily bypass the requirements of these Regulations. The manufacturing sector and other factors affecting the local production of goods and services may thus need to be fixed before these Regulations can effectively be implemented. Unless capacity is built across all stages of mineral extraction right from minerals agreements’ negotiations all the way to the actual extraction of these resources, then Africa, including Kenya, will continue to lag behind in development despite its rich deposits in minerals.

*This article is an extract from the Article: Securing Our Destiny through Effective Management of the Environment, (2020) Journal of Conflict Management and Sustainable Development Volume 4(3), 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.

Reference

Muigua, K., “Securing Our Destiny through Effective Management of the Environment,” (2020) Journal of Conflict Management and Sustainable Development Volume 4(3), p. 1.  

The National Environment Tribunal members led by chairperson Mohammed Balala and Vice Chairperson Christine Kipsang and members Bahati Mwamuye, Waithaka Ngaruiya and Dr. Kariuki Muigua, PhD dismissed an appeal by lobby groups led by the Greenbelt Movement seeking to stop the construction of the Nairobi expressway by cancelling its EIA License issued by Nema to the contractor China Road and Bridge Corporation an EIA licence. The decision was reached in an appeal against Environmental Impact Assessment(EIA) License issued to the contractor for the construction of Nairobi Express Highway. The Appellants sought to set aside the EIA license issued by NEMA in respect of Nairobi Express Highway. They also sought order that NEMA require Strategic Environmental Assessment (SEA) to be conducted and Resettlement Action Plan to be developed. They also sought that after new SEA and Resettlement Action Plan is carried out, a new EIA be carried out and restoration order be issued to require the Contractor to restore the damages to the environment so far.

The grounds cited by the Appellant for the appeal include that NEMA approved the TORs without conducting scoping exercise contrary to EIA Regulations. Further, it was alleged that NEMA issued an EIA license for the project before subjecting the project to Strategic Environmental Assessment (SEA) contrary to Section 57A of EMCA and Regulation 42 of the EIA Regulations. The Appellants also argued that NEMA issued the EIA Licence despite the fact that the Environmental and Social Impact Assessment (ESIA) process had failed to meet the threshold set out for public participation under Regulation 17(2) of the Regulations and the threshold of information and analysis required under the EIA Regulations and could not possibly form the basis for the grant of an EIA Licence.

In response, Respondents opposed Appeal on grounds, among others, that NEMA (the 1^st Respondent) took into account the public consultations as well as the stakeholders’ views during the EIA process, but it was not legally bound by those views but was instead obligated to undertake its own technical and factual assessment based on various principles such as adequacy of mitigation measures, and adequacy of risk assessment and management among others. Further, the 1^st Respondent wrote to the Contractor seeking clarification on a number of issues such as the extent to which Uhuru Park would be acquired and the resettlement action plan for all project affected persons; which queries were responded to vide a letter dated 30^th March 2020 clarifying that no land  was going to be acquired from Uhuru Park, stated that a comprehensive resettlement action plan for all project affected persons and properties was ongoing, and it provided a detailed utility relocation plan for the affected among other clarifications.

As for SEA, the 1^st Respondent stated that the same only applies to plans, programs and policies and not to specific projects as is the case in this Appeal. In a nutshell, the 1^st Respondent prayed for the dismissal of the Appeal in its totality. The project’s detailed terms of reference do comprehensively identify the potential impacts on the physical and biological environment, the existing infrastructure, land based livelihoods including land ownership, socio-economic considerations among other considerations of what would be impacted by the expressway project. On SEA, the 2^nd Respondent (the Contractor) stated that it is not a mandatory requirement prior to the granting of an EIA licence.

On public participation, the 2^nd Respondent stated that it took all reasonable steps to ensure that public participation was effective by placing posters in strategic places, publishing advertisements in newspapers with nationwide circulation, broadcasting the advertisement on KBC radio and held at least 8 meetings on various dates in separate locations within Nairobi. It was also argued that the project is founded on the social justice principle of sustainable development not only for the current generation and future generations and is a solution to the serious traffic congestion on the AS road which has caused serious delays for both public and private road users and the resultant pollution, and the reduction in the productive time of the said users.

In its decision, the Tribunal noted that it derives its powers from section 129 of EMCA. The powers of the Tribunal are well set out under section 129 (3) of the Act which provides that “Upon any appeal, the Tribunal may confirm, set aside or vary the order or decision in quest ion; exercise any of the powers which could have been exercised by the authority in the proceedings in connection with which the appeal is brought; or make such other order, including orders to enhance the principles of sustainable development and an order f or costs, as it ma y deem just.“ The Tribunal added that it had considered the Appeal, the evidence presented by the parties and perused the voluminous bundles of documents presented by the parties.

In its finding, the Tribunal found that the project proponent largely complied with the stringent requirements of EMCA and the EIA Regulations for the licensing of the project   but did not carry out a climate change analysis. The Tribunal reached the following conclusion:

“117. The Tribunal is faced with the monument al task to make a decision on whether to cancel the EIA Licence in its entirety due to the stated deficiencies or step into the shoes of the 1^st Respondent and make orders for compliance on the aspects that we find being incomplete. The effects of cancellation of the licence would be to cause a repeat of the process that has been carried out including public participation and the ensuing processes. We are minded to consider that colossal public funds are incurred during such processes and the repeat of that process does not serve to offer any solution on the environmental impacts involved in the project especially on aspect s of the EIA process that have not been impeached.

118. Considering the nature of the project and noting that the project proponent has largely complied with the requirements for the grant of the EIA Licence, the Tribunal declines to cancel the licence but we shall issue order s under sections129 (3) (c) of EMCA to ensure compliance with the requirement for climate change analysis for the disputed project.

119. For the foregoing reasons the Tribunal makes the following orders:

(a) The Appellant’s appeal is hereby dismissed;

(b) The Tribunal invokes its powers under section 129(3) (c) of EMCA to make orders for the preservation of the environment and for sustainable development and hereby orders the 2^nd Respondent to carry out and complete a climate change analysis for the project within eighteen (18) months from the date of this judgment;

(c) The 1^st Respondent shall ensure compliance with order (b) above and the Climate Change Act, Act 11 of 2016; and

(d) Each party shall bear their own costs”

In essence, by ordering China Road and Bridge Corporation to carry out and complete a climate change analysis for the project within 18 months from the date of their judgement, the National Environmental Tribunal (NET) has in effect put climate change analysis to the forefront. Climate change is defined in section 2 of the Climate Change Act to mean, “a change in the climate system which is caused by significant changes in the concentration of greenhouse gases as a consequence of human act ivities and which is in addition to natural climate change that has been observed during a considerable period.” Section 20 of the Climate Change Act provides that, “The Authority shall integrate climate risk and vulnerability assessment into all forms of assessment and for that purpose liaise with relevant lead agencies for their technical advice.“

The Tribunal held that the road being a  project to ease congestion caused by motor vehicles using the AB corridor as well as the vehicles within the larger downtown Nairobi does require an analysis  of the impact of the project on the climate as motor vehicles are known transmitters of greenhouse gases. It added that although the ESIA report states that the Expressway shall pass through two distinct climatic zones being the Central Highlands/Rift Valley which includes the Nairobi County’s JKIA-James Gichuru Section; and Eastern Kenya which includes the Machakos County’s Mlolongo-JKIA Section, the report fails to do any analysis of the impacts created by the emissions of greenhouse gases on the sections affected by the Expressway. The Tribunal thus concluded: “We find that climate change analysis was necessary prior to the issuance of the EIA Licence.”