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.*
The phrase alternative dispute resolution refers to all those decision-making processes other than litigation including but not limited to negotiation, enquiry, mediation, conciliation, expert determination, arbitration and others. To some writers however the term ‘alternative dispute resolution’ is a misnomer as it may be understood to imply that these mechanisms are second-best to litigation which is not true. Article 33 of the Charter of the United Nations outlines these conflict management mechanisms in no unclear terms and is the legal basis for the application of alternative dispute resolution mechanisms in disputes between parties be they States or individuals. It outlines the various conflict management mechanisms that parties to a conflict or dispute may resort to. It provides that the parties to any dispute shall, first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
Some conflict management mechanisms are resolution mechanisms while others are settlement mechanisms. Litigation and arbitration are coercive and thus lead to settlements. They are formal and inflexible. Whereas mediation, negotiation and the traditional dispute resolution mechanisms are resolution mechanisms which mean they are informal, voluntary, allow party autonomy, expeditious and their outcomes are mutually satisfying. Under article 159 of the Constitution, it is provided that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall all be promoted as long as they do not contravene the Bill of Rights and are not repugnant to justice or inconsistent with the Constitution or any written law.
The scope for the application of ADR has also been extensively widened by the constitution with Article 189 (4) stating that national laws shall provide for the procedures to be followed in settling intergovernmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration. These are the key provisions that form the constitutional basis for the application of ADR in dispute management in Kenya, whose import is that ADR can apply to all disputes and hence broadening the applicability of ADR and enhancing access to justice. It is also a clear manifestation of the acceptance of ADR as a means of conflict management in all disputes.
Alternative dispute resolution mechanisms such as mediation, negotiation and conciliation allow maximum party autonomy and are flexible, informal and leave room for parties to find their own lasting solutions to their problems. For example, in environmental conflicts, mediation encourages public participation and “environmental democracy” in the management of environmental resources. Conflict management mechanisms such as mediation encourages “win-win” situations, parties find their own solutions, they pursue interests rather than strict legal rights, are informal, flexible and attempts to bring all parties on board.
Mediation is democratic and ensures public participation in decision making, especially in matters relating to natural resources management. Public participation is a tenet of sound environmental governance and is envisaged in the constitution. Mediation in the informal context leads to a resolution (court-annexed mediation as envisaged under Section 159A-159D of Cap.21 is a settlement process) and in environmental management it involves parties’ participation in development planning, decision making and project implementation. The parties must be well informed so as to make sound judgements on environmental issues.
As such inclusion of ADR mechanisms as some of the mechanisms to be employed by courts in the exercise of the judicial authority is thus a recognition of the role of public participation towards realizing access to justice in Kenya. This is because ADR mechanisms such as arbitration, mediation and negotiation are predicated on the principles of party autonomy and voluntariness which give the parties wider roles in decision-making and in resolution of their disputes. Alternative dispute resolution, and particularly mediation, is a reflection of customary jurisprudence and under customary law conflict resolution was people driven and a consensual process involving a party, usually an elder, who acted as a mediator. In this way ADR mechanisms have a lot to do with the public participating at the making of decisions affecting them. This is unlike in the formal court process.
ADR mechanisms allow public participation in enhancing access to justice as they bring in an element of efficiency, effectiveness, flexibility, cost-effectiveness, autonomy, speed and voluntariness in conflict management. Some like mediation and negotiation are informal and not subject to procedural technicalities as does the court process. They are thus effective to the extent that they will be expeditious and cost-effective compared to litigation. Traditional dispute resolution mechanisms are flexible, cost-effective, expeditious, foster relationships, are non-coercive and result to mutually satisfying outcomes. They are thus most appropriate in enhancing access to justice as they allow the public to participate in the managing of their conflicts. This way less disputes will get to the courts and this will lead to a reduction of backlog of cases.
Traditional dispute resolution mechanisms include informal mediation, negotiation, problem-solving workshop, council of elders, consensus approaches among others. The council of elders is a common institution in almost all communities in Kenya. Some refer to it as the institution of Wazee. It is ordinarily the first point of call when any dispute arises in a community and since most Kenyans’ lives are closely linked to environmental resources, it is not surprising that most of the issues the elders deal with touch on the environment. In light of Article 159 (2) and in relevant cases the institution of council of elders should be used in resolving certain community disputes such as those involving use and access to natural resources among the pastoral communities in Kenya.
*This article is an extract from the Article “Access to Justice: Promoting Court and Alternative Dispute Resolution Strategies” by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Access to Justice: Promoting Court and Alternative Dispute Resolution Strategies,” (2022) 10 (2) Alternative Dispute Resolution (ADR) Journal, p. 150.