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.*
Conflicts do not occur in vacuum, and to a large extent, they are dependent on the context. Indeed, it has been argued that the governance of natural resources is especially important in the context of divided societies because control over the benefits from local natural resources is often a chief motivator of ethnic or identity-based conflicts. Natural resource based conflicts also are, directly and indirectly connected to and/or impact human development factors and especially the quest for social-economic development.
The Constitution of Kenya outlines the national values and principles of governance which must bind all State organs, State officers, public officers and all persons whenever any of them: applies or interprets the Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. These values and principles include: patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non- discrimination and protection of the marginalised; good governance, integrity, transparency and accountability; and sustainable development.
Similarly, so as to realize sustainable, equitable, efficient and productive management of land, the constitution provides for the encouragement of communities to settle land disputes through recognized local community initiatives consistent with the constitution. The Constitution of Kenya requires the State to, inter alia: ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; encourage public participation in the management, protection and conservation of the environment; and utilise the environment and natural resources for the benefit of the people of Kenya.
Further, every person has a constitutional duty to cooperate with State organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. It has rightly been argued that giving voice to communities and explaining the details of these conflicts helps them regain power in decision-making process and create a model of active democracy enabling them to help protecting their own territory and environment. It is against this background that this paper offers some thoughts on the place of participatory conflict management mechanisms in the sustainable development agenda and ways of effectively managing them as part of efforts towards achieving sustainable development.
Participatory approaches are defined as institutional settings where stakeholders of different types are brought together to participate more or less directly, and more or less formally, in some stage of the decision-making process. Participatory mechanisms in resource management and conflict management are preferred because they do the following: facilitate effective cooperation, communication, and participation of different interest groups; help identify and raise awareness of cross-sectoral issues of management; and strengthen and empower local institutional capacity, indigenous knowledge networks, and adaptive capacity. This discourse is thus centred on the active participation of communities in decision making in not only management of resources but also management of any related conflicts.
Notably, one of the principles of land policy as envisaged in the Constitution is encouragement of communities to settle land disputes through recognized local community initiatives consistent with the Constitution. The implication of such provisions is that before a matter is referred for court adjudication, communities are required to make legitimate attempts to resolve the matter using the most appropriate mechanisms available to them. This is also reinforced by the fact that one of the functions of the National Land Commission is to encourage the application of traditional conflict resolution mechanisms in land conflicts. This is a significant provision considering that land conflicts form the bulk of natural resource based conflicts reported in the country, and the land issue is an emotive one.
Natural resource based conflicts can, arguably, involve three broad themes: actors (or stakeholders, groups of people, government structures and private entities), resource (land, forests, rights, access, use and ownership) and stakes (economic, political, environmental and socio-cultural). As a result, it is contended that conflicts can be addressed with the actor- oriented approach, resource-oriented approach, stake-oriented approach or a combination of the three. Despite this, there are key principles such as, inter alia, participatory approaches, equitable representation, capacity building, context of the conflict and increased access and dissemination of information, that must always be considered.
Natural resource based conflicts are sensitive considering that they arise from the need for people to satisfy their basic needs. To them, justice would mean affording them an opportunity to get what they feel entitled to and anything less, means that they resort to other means of possessing the same. This way, conflicts become inevitable. Conflict resolution mechanisms that are participatory in nature such as negotiation and mediation afford the parties an opportunity to negotiate and reach a compromise agreement, where all sides get satisfactory outcome. This is particularly important in ensuring that there will be no future flare-up of conflict due to unaddressed underlying issues.
Arguably, attributes of party autonomy, flexibility, all-inclusiveness, informality and acceptability by all parties can be exploited to come up with acceptable solutions to environmental problems and natural resource based conflicts. It has compellingly been suggested that mediation, through the intervention of an impartial third party into a dispute, deals well with significant value differences, which are considered extremely difficult to resolve where there is no consensus on appropriate behaviour or ultimate goals. Further, ADR, drawing on the strengths of mediation techniques such as identification and reframing, can address value conflict, through specific techniques which include: transforming value disputes into interest disputes; identifying superordinate goals (both shortand long-term); and avoidance.
*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).