News & Analysis

Proposals for Reducing Carbon Emissions in Africa

Published

3 years ago

March 26, 2022

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

It is estimated that without new policies, by 2050, more disruptive climate change is likely to be locked in, with global greenhouse gas (GHG) emissions projected to increase by 50%, primarily due to a 70% growth in energy-related CO2 emissions. The debate on what African countries can do reduce carbon emissions has largely been missing. In this article, in line with the principle of common but differentiated responsibilities under the international environmental law, we discuss some of the viable steps African States to take to address to reduce carbon emissions and hasten the race to zero.

Clean Development Mechanism

Carbon or emissions trading works by limiting the amount of carbon dioxide that entities such as companies, municipalities or countries can release into the atmosphere, creating competition to encourage them to become more energy efficient and adopt cleaner technology whereby companies aiming to reduce their carbon output can sell unused pollution allowances and those that exceed their allocated emissions allowance may have to buy more emissions permits, or be subject to monetary fines. African countries should invest in and explore more clean development mechanisms not only as way of raising funds but also for climate change mitigation. For instance, Kenya has introduced the Green Bond Programme – Kenya, which aims to promote financial sector innovation by developing a domestic green bond market.

Transition to Electric Vehicles in Africa

Currently, the transport sector accounts for around a quarter of energy-related CO2 emissions globally since it is almost completely dependent on fossil fuels and, therefore, decarbonizing the sector is crucial to achieving the temperature goals of the Paris Agreement. Notably, in Africa and South Asia, the transition to low-carbon vehicles is vital in mitigating climate change. While improved and expanded physical infrastructure through investment in roads and rail lines is an important and necessary enabler of socio-economic development, countries must start moving towards environmental friendly means of transport such as electric vehicles, through financial incentives as has been witnessed in Rwanda where the country’s leadership has unveiled incentives meant to encourage the citizenry to embrace electric cars.

Enhancing the Role of the Private Sector in Reducing Emissions

The Paris Agreement underscores the important role of Non-State Actors (NSAs), particularly the private sector in the implementation of the key provisions the landmark Pact adopted in 2015, such as the Nationally Determined Contributions, adaptation, mitigation and finance. Arguably, in addition to top-down national or international policy instruments that aim to regulate the amount and flow of global emissions, the private sector is rising as a potent force for change. The private sector is an important player in creating innovative and technological solutions, as well as providing resources to meet global environmental challenges. For instance, private sector financing is necessary to complement public sector finance in realizing universal energy access in conjunction with renewable energy uptake, which is often prevented by high financing costs as a result of a range of technical, regulatory, financial and informational barriers and their associated investment risks. Indeed, research shows that ‘without significant additional investments and dedicated policies, the goal of total rural electrification and universal access to modern cooking fuels and stoves by 2030 is unachievable’.

Investing in Energy Technology Innovation in Reducing Greenhouse Gas Emissions

Most rural area residents have relied on biomass fuels for long due to their relatively cheaper accessibility as lack of financial resources is a key barrier to access to energy in rural Africa. The combustion of biomass fuels in traditional stoves produces greenhouse gases and aerosols such as black carbon and the extensive use of biomass can also result in forest, land, and soil degradation, leading to net CO2 emissions. As part of reducing GHG emissions, understanding the influence of energy technology innovation in reducing a country’s greenhouse gas emissions requires a systematic review to characterize the existing system. There is a need for adoption and promotion of low carbon resilient development initiatives. Low-carbon resilience is an agenda that tackles reducing carbon emissions while simultaneously building climate resilience and supporting development in a supposed win-win policy agenda.

Promoting Sustainable Sources of Energy and Transport through Poverty Eradication

There is two-way relationship between the lack of access to adequate and affordable energy services and poverty. Often, people who lack access to cleaner and affordable energy are often trapped in a re-enforcing cycle of deprivation, lower incomes and the means to improve their living conditions and using expensive and unhealthy forms of energy that provide poor and/or unsafe services. Most people especially in developing world struggle with lack of access to clean energy in what is now commonly referred to as energy poverty defined by the World Economic Forum 2010 as the lack of access to sustainable modern energy services and products. Currently, there are 1.2 billion people who lack access to electricity and nearly 40 per cent of the people in the world lacking access to clean cooking fuels’. There is a need to continually invest in research and development of newer and cleaner technologies as well as understanding the distribution of current and future energy needs, if the African countries are to overcome energy poverty and also achieve zero emissions from energy sources. Addressing poverty can go a long way in empowering people to not only embrace but also afford alternative and sustainable sources of energy and transport.

Investing in Off-Grid and Mini-grid Energy Sources

The use of renewable energy for climate change mitigation is yet another approach African States should consider in tackling climate change. As it is, the most cost-effective way to expand household electricity access varies widely, within and between countries. Observers say that ‘in sub-Saharan Africa, two-thirds of the population live in areas that are not linked up with an electrical grid, and arguably, off-grid energy is the only option for these people. Hence, off-grid energy options are hailed as viable tools of combating energy poverty especially in Africa. Mini-grids are also considered to be a viable option for those living in the most remote areas, where standalone solar systems operating independently of the grid can meet smaller home electricity needs but may struggle with larger electricity loads such as powering machinery and agricultural equipment, and that is where mini grids which operate in a space between the two come in; when the population is too small or remote for grid extension and standalone solar systems aren’t viable for larger electricity needs. There is a need for continued exploration and investments in this sector to empower people regardless of their distance from the main national power grid.

*This article is an extract from the Article: “The Race to Zero Emissions from an African Perspective,” (2021) Journal of Conflict Management and Sustainable Development Volume 7(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.

References

Allet M, ‘Solar Loans through a Partnership Approach: Lessons from Africa’ [2016] Field Actions Science Reports, The Journal of Field Actions

Amesheva I, ‘The Road to Net-Zero Is Paved with Good Intentions’, https://www.arabesque.com/wp-content/uploads/2021/09/The-Road-to-NetZero_Part-One_FINAL.pdf> Accessed 24 September 2021.

Association GO-GL, ‘Providing Energy Access through Off-Grid Solar: Guidance for Governments’ [2015] Utrecht, the Netherlands, 9.

Cimate Change “Biggest Threat Modern Humans Have Ever Faced”, World Renowned Naturalist Tells Security Council, Calls for Greater Global Cooperation | Meetings Coverage and Press Releases’ https://www.un.org/press/en/2021/sc14445.doc.htm accessed 23 September 2021.

Collett, Katherine A., Maximus Byamukama, Constance Crozier, and Malcolm McCulloch. “Energy and Transport in Africa and South Asia.” Energy and Economic Growth (2020), 2.

Collins Mwai, ‘Rwanda Unveils New Incentives to Drive Electric Vehicle Uptake’ (The New Times, Rwanda, 16 April 2021) https://www.newtimes.co.rw/news/rwanda-unveils-new-incentives-drive-electric-vehicle-uptake accessed 17 October 2021.

Environmental Migration Portal, ‘Accelerating SDG 7 Achievement: Policy Briefs in Support of the First SDG 7 Review at the UN High-Level Political Forum 2018’ Available at: https://environmentalmigration.iom.int/accelerating-sdg-7-achievement-policy-briefs-support-first-sdg-7-review-un-high-level-political (Accessed 12 October 2021).

González-Eguino, M., “Energy Poverty: An Overview.” Renewable and Sustainable Energy Reviews 47 (July 1, 2015): 377–85. https://doi.org/10.1016/j.rser.2015.03.013.

Green Finance Platform, ‘Achieving Clean Energy Access in Sub-Saharan Africa,’ (8 April 2019) https://www.greenfinanceplatform.org/research/achieving-clean-energy-access-sub-saharan-africa (Accessed 12 October 2021).

GSDRC, ‘The Role of the Private Sector,’ Available at: https://gsdrc.org/topic-guides/urban-governance/elements-of-effective-urban-governance/the-role-of-the-private-sector/(accessed 27 September 2021).

Green Bonds Kenya, ‘Kenya Green Bonds Programme,’ https://www.greenbondskenya.co.ke/(accessed 17 October 2021).

Habitat for Humanity, “Energy Poverty,” https://www.habitat.org/emea/about/what-we-do/residential-energy-efficiency[1]households/energy-poverty (Accessed October 12, 2021).

Jordaan, S.M., Romo-Rabago, E., McLeary, R., Reidy, L., Nazari, J. and Herremans, I.M., ‘The Role of Energy Technology Innovation in Reducing Greenhouse Gas Emissions: A Case Study of Canada’ (2017) 78 Renewable and Sustainable Energy Reviews.

Karekezi, S. and others, ‘Energy, Poverty, and Development’ in Global Energy Assessment Writing Team (ed), Global Energy Assessment: Toward a Sustainable Future (Cambridge University Press 2012) 153 https://www.cambridge.org/core/books/global-energy-assessment/energy-poverty-and-development/DC1771AD93DD0A5031A07B057CA3A8C7 (Accessed 12 October 2021).

Năstase C and Popescu M, ‘Sustainable Development through the Resource Use[1]Regional Innovation System.’, Proceedings of the 3rd IASME/WSEAS International Conference on energy, environment, ecosystems and sustainable development (EEESD’07), Agios Nikolaos, Crete Island, Greece, 24-26 July, 2007 (World Scientific and Engineering Academy and Society Press (WSEAS Press) 2007).

PACJA, ‘The role of the African private sector in the transition to low-emission, climate-resilient, green growth and NDCs implementation,’ 9th Conference On Climate Change and Development in Africa (CCDA-IX), Santa Maria, Sal Island, Cabo Verde, 13-17 September 2021.

Pachauri, Shonali, Bas J. van Ruijven, Yu Nagai, Keywan Riahi, Detlef P. van Vuuren, Abeeku Brew-Hammond, and Nebojsa Nakicenovic. “Pathways to Achieve Universal Household Access to Modern Energy by 2030.” Environmental Research Letters 8, no. 2 (May 2013): 024015. https://doi.org/10.1088/1748- 9326/8/2/024015.

OECD, ‘Climate Change Chapter of the OECD Environmental Outlook to 2050: The Consequences of Inaction – OECD’ accessed 17 October 2021.

Shoibal, C. and Massimo, T., ‘Energy Poverty Alleviation and Climate Change Mitigation: Is There a Trade Off?’ (2013) 40 Energy Economics S67, S67. 88 González-Eguino, Mikel. “Energy Poverty: An Overview.” Renewable and Sustainable Energy Reviews 47 (July 1, 2015): 377–85. https://doi.org/10.1016/j.rser.2015.03.013.

Sun-Connect-News, ‘3 Reasons Off-Grid Solar Energy Isn’t Yet Serving the Poor in Sub-Saharan Africa,’ Available at: https://www.sun-connect-news.org/de/articles/market/details/3-reasons-off-grid-solar-energy-isnt-yet-serving-the-poor-in-sub-saharan-africa/ (accessed 12 October 2021).

UNFCCC, ‘Advancing Electric Mobility in Africa,” available at: https://unfccc.int/news/advancing-electric-mobility-in-africaaccessed 13 October 2021.

UNEP, ‘Private Sector Engagement’ (2 June 2021) Available at: http://www.unep.org/about-un-environment/private-sector-engagementaccessed 27 September 2021.

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News & Analysis

What is Carbon Markets?

Published

4 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.

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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

6 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

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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

7 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).

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