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 Sustainable Development Goals are integrated and indivisible and balance the three dimensions of sustainable development: the economic, social and environmental. From this assertion, it is arguable that sustainable development cannot be achieved without ensuring that all the three dimensions are taken care of. In addition, the Sustainable Development Goals (SDGs) recognise the connection between peace and development and thus provide that sustainable development cannot be realized without peace and security; and peace and security will be at risk without sustainable development.
The SDGs Agenda also recognizes the need to build peaceful, just and inclusive societies that provide equal access to justice and that are based on respect for human rights (including the right to development), on effective rule of law and good governance at all levels and on transparent, effective and accountable institutions. Factors which give rise to violence, insecurity and injustice, such as inequality, corruption, poor governance and illicit financial and arms flows, are addressed in the Agenda. The aim is to redouble the efforts to resolve or prevent conflict and to support post-conflict countries, including through ensuring that women have a role in peace building and state building. Peace building generally goes beyond conflict management measures, as it involves developing institutional capacities that alter the situations that lead to violent conflicts.
In traditional African society, people engaged in acts that promoted peace through the various activities they engaged in. The alternative justice systems, traditions, customs and norms of a particular community played a pivotal role in conflict resolution. Traditions, customs and norms were highly valued and adhered to by the members of the community. Disregard of some of these beliefs could attract the wrath of the gods, ridicule and reprimand from members of the society hence ensuring that persons shunned conflict-causing conduct. Thus, when such traditions, customs and norms were used in environmental conflicts management, they helped in inculcating environmental ethics into a community. However, traditions, cultural norms and practices that may be considered repugnant and contrary to written laws and that hinder the participation of women in conflict management, should be discarded.
A critical look at the cultures of most of African or Kenyan communities reveals that the role of women as compared to men in conflict management activities was and is still negligible. For instance, among the Pokot and the Marakwet, women act as reference resource people but cannot challenge or influence decisions adopted by the male-dominated council of elders, the Kokwo. Among the Samburu, women are supposed to merely convey their suggestions through their male relatives. Such information may or may not be conveyed at all to the council of elders. Women empowerment is essential to enable them participate in the various conflict resolution fora as they are the majority of the victims of conflicts. Their role as carriers of life and agents of peace has not changed in modern society.
As such their participation in conflict resolution activities should not be curtailed by the adoption of formal dispute resolution mechanisms or adherence to traditions hindering their role on the same. Women have the capacity to negotiate and bring about peace, either directly or through creation of peace networks, among warring communities. Their participation in conflict resolution should thus be enhanced for realisation of sustainable and lasting peace solutions. Resort to courts searching for justice when peace is what is needed may thus destroy relationships rather than build and foster them in the Kenyan case. In such cases, reconciliation, negotiation, mediation and other traditional mechanisms that are ordinarily participatory in nature would be the better option.
The SDGs Agenda also calls for further effective measures and actions to be taken, in conformity with international law, to remove the obstacles to the full realization of the right of self-determination of peoples living under colonial and foreign occupation, which continue to adversely affect their economic and social development as well as their environment. Thus, conflict management should be one of the key issues that should be addressed in the quest for sustainable development. Thus, sustainable development is not possible in the context of unchecked natural resource based conflicts. In recognition of this fact, Sustainable Development Goal (SDGs) aims to ‘promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’.
It is also noteworthy that SDGs seek to promote participation of local communities in natural resource management. The process of managing natural resource based conflicts is an off-shoot of the right to access to environmental justice and by extension, environmental democracy. The right of access to justice is essential as it affords the means by which the public challenge application of and implementation of environmental laws and policies. Environmental democracy which involves giving people access to information on environmental rights, easing access to justice in environmental matters and enabling public participation in environmental decision making, inter alia, is desirable in the Kenyan context.
In The Matter of the National Land Commission [2015] eKLR, the Supreme Court observed that the dominant perception at the time of constitution-making was that the decentralization of powers would not only give greater access to the social goods previously regulated centrally, but would also open up the scope for political self-fulfillment, through an enlarged scheme of actual participation in governance mechanisms by the people thus giving more fulfillment to the concept of democracy. An environmental conflict has been described as a particular social conflict characterized by: the qualitative or quantitative reduction of available environmental resources (water, biodiversity, arable land, raw materials and other finite common goods) due to the imposition of profitable projects by multinational companies and/or inappropriate policies by Governments, International financial organisations; and the escalation of protests by local residents and/or larger opposition movements in civil society, in an effort to protect the environment, common goods and people’s rights.
*This article is an extract from the Article “Managing Environmental Conflicts through Participatory Mechanisms for Sustainable Development in Kenya” 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., “Managing Environmental Conflicts through Participatory Mechanisms for Sustainable Development in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/ 2018/08/Managing-Environmental-Conflicts-through-Participatory-Mechanisms-for-Sustainable-Development-in-Kenya-Kariuki-Muigua-August-2018.pdf (accessed 22 April 2022).