News & Analysis
Community Practices and Cultural Voices under Sustainable Development Goals (SDGs)
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*
Sustainable development is one of the national values and principles of governance that binds all State organs, State officers, public officers and all persons whenever any of them—applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions.30 This is in addition to democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised; and good governance, integrity, transparency and accountability. Arguably, this should include participation of communities and their cultural knowledge especially in matters related to the sustainable development agenda.
Target 11.4 of the 2030 Agenda on Sustainable Development Goals seeks to, inter alia, “strengthen efforts to protect and safeguard the world’s cultural and natural heritage”. It has however been argued that this is a weak reference because it is not specific on cultural heritage, but it is mentioned together with natural one; furthermore, this specific target deals only with the protection and safeguard of cultural heritage. Arguably, culture has received insufficient attention as an intrinsic component of sustainable development and must be translated and embedded in national and local development. Indeed, some commentators have argued that culture, sustainability and sustainable development are complicated concepts that are not always easy for scientists, policy makers or practitioners to grasp or apply. Culture can play a significant role in the attainment of the Sustainable Development Goals (SDGs), especially those related to quality education, sustainable cities, the environment, economic growth, sustainable consumption and production patterns, peaceful and inclusive societies, gender equality and food security.
According to UNESCO, from cultural heritage to cultural and creative industries, culture is both an enabler and a driver of the economic, social and environmental dimensions of sustainable development. This is due to its potential to have community-wide social, economic and environmental impacts. Notably, traditional knowledge can and should be used to contribute to the realization of sustainable development agenda, where most indigenous and local communities’ contribution can go beyond conservation and sustainable use of biological diversity to include their skills and techniques which provide valuable information to the global community and a useful model for biodiversity policies. Furthermore, as on-site communities with extensive knowledge of local environments, indigenous and local communities are most directly involved with conservation and sustainable use.
The relevance of this traditional knowledge in the sustainable development debate is premised on the fact that it is based on the experience, often tested over centuries of use, adapted to local culture and environment, dynamic and changing especially in relation to knowledge and skills on how to grow food and to survive in difficult environments, what varieties of crops to plant, when to sow and weed, which plants are poisonous, which can be used for control of diseases in plants, livestock and human beings. SDG Goal 2 seeks to end hunger, achieve food security and improved nutrition and promote sustainable agriculture. As also acknowledged under the Constitution of Kenya, traditional knowledge related to the preservation of existing genetic resources, including the genetic diversity of seeds, should be recognized and maintained, and the fair sharing of the relevant benefits should be promoted. However, for effectiveness, it has been recommended that there should be integration of cultural factors, including the knowledge, traditions and practices of all people and communities, into local strategies on environmental sustainability.
The indigenous knowledge based on cultural practices should be utilized in achieving such goals as SDG Goal 2 on food security. Thus, while there is little by way of mention in the 2030 Agenda on SDGs on the role of culture and communities’ traditional knowledge in achieving sustainable development goals, practically, these communities have a lot to contribute in tackling the challenges that face the world today, ranging from food insecurity, poverty, and environmental degradation, among others. The global community cannot therefore afford to ignore their role in the same.
Integrating Community Practices and Cultural Voices into the Sustainable Development Discourse: Way Forward
Call for Diversity in Development Voices
People-centred development is inclusive and participatory and rooted in local culture and heritage. While the national government should continually strengthen efforts to implement policies/legislation aimed at addressing cultural practices such as female genital mutilation and child marriage, which slow access to education and affect attainment of gender equality and equity, the positive aspects of culture should be tapped into especially in relation to natural resources management. SDG Goal 17 calls for countries to ‘strengthen the means of implementation and revitalize the global partnership for sustainable development’.
One of the targets under this goal is tackling systemic issues which include countries respecting each country’s policy space and leadership to establish and implement policies for poverty eradication and sustainable development, and encouraging and promoting effective public, public-private and civil society partnerships, building on the experience and resourcing strategies of partnerships. The Global South should tap into all available knowledge including traditional knowledge to tackle the unique problems that may exist in their territories. Communities are more likely to identify and offer plausible solutions to the problems found within their localities better than the scientific or western knowledge would do.
Equitable Access of Resources by Communities and Fair Benefit Sharing
Communities should tap into the available resources, enjoy equitable access, to enable them utilize these resources to achieve tangible development within their regions. The government should thus continually look for ways through which this can be achieved. This would give these communities incentives to not only participate in the sustainable development of resources but also to proffer solutions to degradation challenges where they feel that their traditional knowledge can be utilized. The law should therefore not be used to limit communities’ access and enjoyment of the accruing benefits from natural resources but should instead be used to guarantee the same.
The cultural and creative industries have been rated among the fastest growing sectors in the world, with an estimated global worth of 4.3 trillion USD per year, accounting for 6.1% of the global economy and nearly 30 million jobs worldwide, employing more people aged 15 to 29 than any other sector. Thus, cultural and creative industries are considered to be essential for inclusive economic growth, reducing inequalities and achieving the goals set out in the 2030 Sustainable Development Agenda. There is a need for the government to rise to the occasion and promote a conducive environment for communities to benefit from the intellectual property of their indigenous knowledge for economic advancement and achievement of sustainable development agenda.
Guaranteed Cultural Security
While the phrase “cultural security” is used to mean different things in different regions of the world, in Australia, the phrase is used when speaking about how modernization threatens to change the way of life of Aborigines, while in Africa, leaders have applied the phrase in voicing concerns over the impact of development on local traditions. While modernization is desirable, the constitutional safeguards against erosion of culture should be upheld and used to ensure that communities are afforded a chance to celebrate their culture and meaningfully participate in the development agenda through the use of the beneficial aspects of their culture. It should not only be a source of pride for them but also a source of livelihood where possible, through the support of the government. They should be involved in what is referred to as Primary Environmental Care (PEC), ‘a process by which local groups or communities organise themselves with varying degrees of outside support so as to apply their skills and knowledge to the care of natural resources and environment while satisfying livelihood needs.’
*This article is an extract from the Article: “Integrating Community Practices and Cultural Voices into the Sustainable Development Discourse,” (2021) Journal of Conflict Management and Sustainable Development Volume 6(2), p. 45 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.
Adom, D., ‘The Place and Voice of Local People, Culture, and Traditions: A Catalyst for Ecotourism Development in Rural Communities in Ghana’ (2019) 6 Scientific African e00184.
Anne-Marie Deisser and Mugwima Njuguna, Conservation of Cultural and Natural Heritage in Kenya (2016) 1 accessed 6 January 2021.
Cities U and Governments L, Culture in the Sustainable Development Goals: A Guide for Local Action (Academic Press 2015) accessed 3 January 2021.
Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005, Paris, 20 October 2005.
Constitution of Kenya, 2010, Laws of Kenya, Government Printer, Nairobi.
Dessein, J. et al (ed), ‘Culture in, for and as Sustainable Development: Conclusions from the COST Action IS1007 Investigating Cultural Sustainability,’ (University of Jyväskylä, Finland, 2015), p. 14. Available at http://www.culturalsustainability.eu/conclusions.pdf (accessed 6 January 2021).
Harris J, ‘Basic Principles of Sustainable Development’ (2001).
Human Rights Watch, ‘Kenya: Abusive Evictions in Mau Forest’ (Human Rights Watch, 20 September 2019) https://www.hrw.org/news/2019/09/20/kenya-abusive-evictions-mau-forest (accessed 6 January 2021).
The Ministry of Sports, Culture and Heritage, ‘The Ministry,’ http://sportsheritage.go.ke/the-ministry/ (accessed 6 January 2021)..
Nocca F, ‘The Role of Cultural Heritage in Sustainable Development: Multidimensional Indicators as Decision-Making Tool’ (2017) 9 Sustainability 1882, 2 https://www.agbs.mu/media/sustainability-09-01882-v3.pdf (accessed 6 January 2021).
Republic of Kenya, Implementation of the Agenda 2030 For Sustainable Development in Kenya, June, 2017, 45 https://www.un.int/kenya/sites/www.un.int/files/Kenya/vnr_report_for_kenya.pdf (accessed 6 January 2021).
The Ngorongoro Declaration on Safeguarding African World Heritage as a Driver of Sustainable Development, adopted in Ngorongoro, Tanzania on 4 June 2016.
UNDP, ‘Sustainable Development Goals | UNDP in Kenya’ (UNDP) https://www.ke.undp.org/content/ kenya/en/home/sustainable-development-goals.html (accessed 6 January 2021).
United Nations Educational, Scientific and Cultural Organization (UNESCO), ‘Culture for Sustainable Development,’ available at http://en.unesco.org/themes/culture-sustainable-development Accessed 6 January 2021.
United Nations, Transforming our World: the 2030 Agenda for Sustainable Development, A/RES/70/1, Resolution adopted by the General Assembly on 25 September 2015, para. 36.
News & Analysis
Brief History of the Permanent Court of Arbitration (PCA)
By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.
The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.
The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.
The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”
In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.
As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.
The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.
PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25th May 2023).
News & Analysis
Former KCB Company Secretary Sues Over Unlawful Dismissal
Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.
Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.
In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.
He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.
“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.
Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.
Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.
He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.
“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.
Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.
He wants further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.
Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.
He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.
He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.
He adds that at that point his roles were given to Okumu for reasons that were not related to work demands. He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.
Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.
“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.
He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.
News & Analysis
Court of Appeal Upholds Eviction of Radcliffes from Karen Land
The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.
Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:
“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”
On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.
The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.
The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.
At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.
The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.
As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.
Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.
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