News & Analysis

Legal, Policy and Institutional Framework for Gender Equality in Kenya

Published

2 weeks ago

September 16, 2023

Admin

By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 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).

Kenya has been on a journey towards achieving gender equality and equity, a goal that has remained elusive over the years. There have been policies aimed at promoting the same and they have always been reviewed or replaced by new ones in a bid to improve on the framework and address any gaps. There have been positive steps that have been realized along the way such as recognition of equality of men and women rights to own property or inherit property and fair labour practices, among others. Despite this, Kenya cannot boast of an impressive track record as gender inequality is still manifest.

Constitution of Kenya 2010

The Constitution of Kenya 2010 was the culmination of the recognition of the need to streamline gender issues in the country’s development agenda. It not only guarantees equality and nondiscrimination of all persons regardless of gender, but also has outlined some remedial measures to address the existing inequality in the country. It forms the basis of all other efforts since the year 2010.

National Policy on Gender and Development, 2000

Notably, the first National Policy on Gender and Development was adopted in 2000 and was meant to provide a legitimate point of reference for addressing gender inequalities at all levels of government and by all stakeholders, and further provided an avenue for gender mainstreaming across all sectors in order to generate efficient and equitable development outcomes for all Kenyans. The National Policy on Gender and Development of 2000 has since been reviewed in order to align it to the new legal framework including the Constitution of Kenya. This was superseded by the Sessional Paper No. 2 of 2006 on Gender Equality and Development which was meant to promote women empowerment and mainstreaming the needs of women, men, girls and boys in all sectors of development in Kenya so that they can participate and benefit equally from development initiatives.

National Policy for Prevention and Response to Gender Based Violence, 2014

The National Policy for Prevention and Response to Gender Based Violence’s main purpose was to put in place a framework to accelerate implementation of laws, policies and programmes for prevention and response to Gender Based Violence (GBV) by state and non – state actors for the realization of a society where men, women, boys and girls are free from all forms violence. This Policy sought to achieve the following objectives: to facilitate a coordinated approach in addressing GBV and to ensure effective programming; to improve enforcement of laws and policies towards GBV prevention and response; to increase access to quality and comprehensive support services across sectors; and to improve sustainability of GBV prevention and response interventions. The Policy also acknowledged that while it is women and girls who suffer the greatest share of GBV in the country, men and boys also experience the same. Land Laws such as the Land Act and Land Registration Act acknowledge the right of women to acquire, inherit and hold or dispose land. However, the reality on the ground is that women and girls are still being dispossessed of property especially when it comes to inheritance.

National Gender and Equality Commission

The National Gender and Equality Commission is established under the National Gender and Equality Commission Act, 2011 which was enacted to establish the National Gender and Equality Commission as a successor to the Kenya National Human Rights and Equality Commission pursuant to Article 59(4) of the Constitution; to provide for the membership, powers and functions of the Commission, and for connected purposes. The functions of the Commission are, inter alia, to: promote gender equality and freedom from discrimination in accordance with Article 27 of the Constitution; monitor, facilitate and advise on the integration of the principles of equality and freedom from discrimination in all national and county policies, laws, and administrative regulations in all public and private institutions; act as the principal organ of the State in ensuring compliance with all treaties and conventions ratified by Kenya relating to equality and freedom from discrimination and relating to special interest groups including minorities and marginalized persons, women, persons with disabilities, and children; and co-ordinate and facilitate mainstreaming of issues of gender, persons with disability and other marginalised groups in national development and to advise the Government on all aspects thereof.

State Department for Gender Affairs

The State Department for Gender Affairs falls under the Ministry of Public Service, Youth and Gender Affairs. The Ministry of Public Service and Gender was created under the re-organization of the National Government in November 2015. The mandate of the State Department of Gender is hinged on the Constitution of Kenya and Executive Order of June, 2018. It is responsible for: Gender Policy Management; Special Programmes for Women Empowerment; Gender Mainstreaming in Ministries, Departments and Agencies (MDAs); Community Mobilization; Domestication of International Treaties and Conventions on Gender; and Policy and Programmes on Gender Violence.

Gender and Development in Kenya: The Challenges

The 2014 National Policy for Prevention and Response to Gender Based Violence identified the following as the greatest contributing factors to GBV in Kenya: unequal power relations between men and women; socio-cultural norms that normalize GBV, discriminatory practices and changing gender roles; poverty; illiteracy; breakdown of the family unit and support systems; insecurity; alcohol and substance abuse; uncensored media content; and conflict; political instability as well as poor enforcement of laws and policies. While it is worthy pointing out that the 2014 Policy was geared towards dealing with GBV, the above factors contribute to much more than just GBV; they hamper the equal participation of both men and women in development matters in the country. Indeed, one of the guiding principles of the 2014 Policy was recognition of the importance of gender equity and gender equality in national development.

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012]eKLR, the advisory opinion related to two discrete elements in respect of which the Attorney-General thus moved the Court: “The Advisory Opinion of the Court is sought on the following issues: A. Whether Article 81(b) as read with Article 27(4), Article 27(6), Article 27(8), Article 96, Article 97, Article 98, Article 177(1) (b), Article 116 and Article 125 of the Constitution of the Republic of Kenya require progressive realization of the enforcement of the one-third gender rule or requires the same to be implemented during the general elections scheduled for 4th March, 2013? B. Whether an unsuccessful candidate in the first round of Presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution?”

Regarding the one-third gender rule, the Attorney-General moved the Supreme Court seeking an opinion as to whether the terms of Article 81(b) apply in respect of the very next general elections, to be held on 4 March 2013, or on the contrary, apply progressively over an extended period of time. The Supreme Court observed as follows: [47] This Court is fully cognisant of the distinct social imperfection which led to the adoption of Articles 27(8) and 81(b) of the Constitution: that in elective or other public bodies, the participation of women has, for decades, been held at bare nominal levels, on account of discriminatory practices, or gender-indifferent laws, policies and regulations. This presents itself as a manifestation of historically unequal power relations between men and women in Kenyan society. Learned counsel Ms. Thongori aptly referred to this phenomenon as “the socialization of patriarchy”; and its resultant diminution of women’s participation in public affairs has had a major negative impact on the social terrain as a whole. Thus, the Constitution sets out to redress such aberrations, not just through affirmative action provisions such as those in Articles 27 and 81, but also by way of a detailed and robust Bill of Rights, as well as a set of “national values and principles of governance” [Article 10].

While there was no unanimous decision on whether implementation of the one-third Two-thirds gender rule was to be realized immediately or progressively, Kenya is still grappling with the question of gender representation in the elective posts in Kenya, with the recent advisory opinion from the Chief Justice directed to the President on the need to dissolve Parliament for failure to uphold the gender equity constitutional requirements complicating the debate even further. The Deputy Chief Justice has since appointed a special bench of judges to decide on the constitutional status of the advisory opinion as issued by the Chief justice. The upshot of the above is that despite Kenya’s progressive constitutional and statutory framework on achieving gender mainstreaming, the country is far from enjoying gender equality and equity especially in relation to women’s position in leadership and national development roles, with representation of women in Kenya’s Parliament remaining minimal over the years despite the promulgation of the current Constitution of Kenya in 2010.

Indeed, despite its leading economic position in the East African region, Kenya ranks the lowest among the East African countries when it comes to the place of women in leadership positions. For instance, in 2016, it was reported that women held 64 percent of seats in the lower house of Rwanda’s national legislature, the largest share of any country. However, despite this commendable state of affairs in Rwanda, there are conflicting reports on the status of women rights in everyday life, with some reporters saying that the political state of affairs is very different from every day community life of women in Rwanda. It is therefore possible to have a politically empowered group of men and women but without guaranteeing them enjoyment of other fundamental rights. As things stand, it is therefore safe to argue that the problem of gender inequality and inequity in Kenya goes beyond availability of statutory and constitutional framework. It is for this reason that the 2019 National Policy on Gender and Development was drafted in order to enable the stakeholders take practical steps towards addressing the existing challenges.

*This is article is an extract from an article “Actualizing the National Policy on Gender and Development in Kenya,” by Dr. Kariuki Muigua, 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 Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). 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 Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 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.

References

Flowe, H. D., and Others, “Sexual and Other Forms of Violence During the COVID-19 Pandemic Emergency in Kenya.” (2020), available at: https://psyarxiv.com/7wghn/ (Accessed on 16 September 2023).

In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012]eKLR, Advisory Opinions Application 2 of 2012.

Jagoe, K., and Others, “Sharing the burden: Shifts in family time use, agency and gender dynamics after introduction of new cookstoves in rural Kenya.” Energy Research & Social Science 64 (2020): 101413.

Kenya Law, ‘Chief Justice’s Advice to the President on Dissolution of Parliament for Failure to Enact the Gender Rule,’ Available at: http://kenyalaw.org/kenyalawblog/chief-justices-advice-to-the-president-on-dissolution-of-parliament/ (Accessed on 16 September 2023).

KEWOPA, ‘Actualization and Implementation of the “Two-Thirds Gender Principle” in Kenya, Available at: http://www.kewopa.org/wp-content/uploads/2017/11/TwoThirdsJourneyReport.pdf (Accessed on 16 September 2023).

Muigua, K., “Actualizing the National Policy on Gender and Development in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2020/ 10/Actualising-the-National-Policy-on-Gender-and-Development-in-Kenya-Kariuki-Muigua-Ph.D-October-2020.pdf (Access on 16th September 2023)

National Gender and Equality Commission Act, 2011, Laws of Kenya.

Njogu, K., and Orchardson-Mazrui, E., “Gender inequality and women’s rights in the Great Lakes: Can culture contribute to women’s empowerment.” New York: UNICEF (2013).

Ogila, J., ‘DCJ Mwilu Forms Five-Judge Bench to Hear Maraga’s Parliament Dissolution Advice’ (The Standard) https://www.standardmedia.co.ke/nairobi/article/2001390110/mwilu-forms-judge-bench-to-hear-cjs-parliament-dissolution-advice (Accessed on 16 September 2023).

Osoro, J., ‘5 Judges Appointed to Hear Petitions on CJ Advise to Uhuru to Dissolve Parliament » Capital News’ (Capital News, 14 October 2020), Available at: https://www.capitalfm.co.ke/news/2020/10/5-judges-appointed-to-hear-petitions-on-cj-advise-to-uhuru-to-dissolve-parliament/ (Accessed on 16 September 2023).

Republic of Kenya, Sessional Paper No. 02 of 2019 on National Policy on Gender and Development, October 2019.

Republic of Kenya, National Policy for Prevention and Response to Gender Based Violence, November, 2014, http://psyg.go.ke/docs/National%20Policy%20on%20prevention%20and%20Response%20to% 20Gender%20Based %20Violence.pdf (Accessed on 16 September 2023).

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News & Analysis

Legal and Policy Framework for Energy Transition in Kenya

Published

18 mins ago

September 28, 2023

Admin

Energy plays an important role in Kenya and is one of the key drivers of socio-economic development. This has been recognized under the Vision 2030 development blueprint which identifies energy as one the key factors in spearheading economic, social and political development in the country. Kenya considers access to competitively-priced, reliable, quality, safe and sustainable energy as an essential ingredient for the country’s social –economic development. It has been argued that access to energy is a Constitutional right in Kenya. Although the Constitution does not expressly provide for the right to access to energy, it recognizes energy as part of the natural resources in Kenya. To this extent, the Constitution provides that natural resources mean the physical non-human factors and components, whether renewable or non-renewable, including inter alia rocks, minerals, fossil fuels and other sources of energy.

The Constitution also enshrines the principle of Sustainable Development. Enhancing universal access to affordable, reliable and modern energy services including renewable sources of energy is an essential part of the Sustainable Development agenda. The Energy Act, 2019 was enacted to consolidate the laws relating to energy, to provide for National and County Government functions in relation to energy, to provide for the establishment, powers and functions of the energy sector entities; promotion of renewable energy; exploration, recovery and commercial utilization of geothermal energy; regulation of midstream and downstream petroleum and coal activities; regulation, production, supply and use of electricity and other energy forms; and for connected purposes. The Act mandates the government to facilitate the provision of affordable energy services to all persons in Kenya. It also establishes national energy entities including the Energy and Petroleum Regulatory Authority, the Rural Electrification and Renewable Energy Corporation and the Nuclear Power and Energy Agency which are vital in enhancing energy access in Kenya.

The Energy and Petroleum Regulatory Authority is mainly tasked with regulatory activities related to inter alia the generation, importation, exportation, distribution and supply of electric energy, petroleum and petroleum products, renewable energy and other forms of energy. The Rural Electrification and Renewable Energy Corporation is tasked with overseeing the implementation of the rural electrification programme and promoting the use of renewable energy and technologies among other functions. The Nuclear Power and Energy Agency is tasked with inter alia implementation of the nuclear energy programme and promoting the development of nuclear electricity generation in Kenya. The Energy Act also mandates the government to promote the development and use of renewable energy technologies in Kenya including but not limited to biomass, biodiesel, bioethanol, charcoal, fuelwood, solar, wind, tidal waves, hydropower, biogas and municipal waste. This is a vital step in accelerating energy transition in Kenya.

Sessional Paper No. 4 on Energy seeks to promote equitable access to quality energy services at least cost while protecting the environment. It acknowledges that the development objectives of the country are only feasible if quality energy services are made available in a sustainable, cost effective and affordable manner to all sectors of the economy ranging from manufacturing, services, mining, and agriculture to households. The Sessional paper identifies several measures that are critical in accelerating energy transition in Kenya including the development and adoption of renewable sources of energy, enhancing rural electrification, research and development, regional trade and cooperation and fostering energy conservation and efficiency. Further, the National Energy Policy recognizes energy as a critical component for the socio-economic development of Kenya.

The policy seeks to achieve several objectives in the energy sector including improving access to affordable, competitive and reliable energy services, promoting energy efficiency and conservation and promoting diversification of energy supply sources in Kenya to ensure security of supply. It contains several proposals towards the use, development and conservation of energy sources in the country such as coal resources, renewable energy and electricity. The Policy also contains energy efficiency and conservation measures aimed at reducing energy consumption without sacrificing productivity or increasing costs. Actualizing this Policy is therefore vital in accelerating energy transition in Kenya. Kenya joined the Sustainable Energy for All (SE4ALL) Initiative in 2014 and developed its national SE4ALL Action Agenda and Investment Prospectus. The national SE4ALL Action Agenda specifies the country’s targets for achieving universal access to modern energy access services, doubling the global rate of energy efficiency improvements, and doubling the share of renewable energy in the global energy mix by 2030. Kenya’s SE4All seeks to achieve 100% universal access to modern energy services, increase the rate of energy efficiency and increase to 80% the share of renewable energy in Kenya’s energy mix, by 2030.

Energy transition in Kenya is also a pertinent concern under the Climate Change Act. The Act seeks to combat climate change in Kenya by enhancing national responses to climate change and promoting low carbon climate development. The Act encourages the government to put in place measures for the elimination of climate change including reduction of greenhouse emissions and use of renewable energy. The Act recognizes the role of energy in combating climate change and urges the state to enhance energy conservation, efficiency and use of renewable energy in industrial, commercial, transport, domestic and other uses. Accelerating energy transition is therefore vital in confronting climate change in Kenya.

*This article is an extract from published article “Accelerating Energy Transition in Kenya,” by Dr. Kariuki Muigua, PhD, 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 Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). 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 Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 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.

References

Muigua, K. “Accelerating Energy Transition in Kenya,” Kariuki Muigua & Co. Advocates Publications, September 2023, Available at: http://kmco.co.ke/wp-content/uploads/2023/09/Accelerating-Energy-Transition-in-Kenya.pdf (accessed on 28th September 2023).

News & Analysis

Disruption of Arbitration by Online Dispute Resolution (ODR)

Published

7 hours ago

September 28, 2023

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*

The Coronavirus disease (COVID-19) pandemic unsettled not only the global economy but also many professions and they are all seeking to stay afloat during the pandemic. Due to the preventive measures recommended by the World Health Organization which included social distancing among others, it became almost impossible for professionals to operate from their traditional physical offices. The legal profession was not spared either. The legal practice in many parts of the world including the African continent had been by way of physical attendance in courtrooms where the judges and magistrates, advocates and witnesses physically present their cases. The physical presence of employees in law firms also become difficult.

Court hearings shifted to being conducted virtually via online platforms. Arguably, this has disrupted dispute resolution systems in a way not experienced before. Apart from the effects of pandemic, the changes in the dispute resolution sector have also been largely attributed to the ascendancy of information technology, the globalization of economic activity, the blurring of differences between professions and sectors, and the increasing integration of knowledge. Technology has greatly impacted the way dispute resolution is done in many ways.

The shift to online hearings has not only affected litigation but also ADR practice and specifically arbitration, which had ordinarily operated like litigation though physical hearings. Notably, the world has experienced new business trends through electronic transactions, e-banking, e-commerce, crypto currency, artificial intelligence, financial technology and arguably, dispute resolution has also grown beyond physical meetings to Online Dispute Resolution (ODR), a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties through online-mediation, online-arbitration and online-negotiation, among others. In a variety of methods, the parties can use the internet and web-based technology. ODR can be completed wholly online, via email, videoconferencing, or both.

Covid-19 led to unprecedented advancement in the use of technology as a tool for enhancing accessing to justice for all. Many countries around the world were forced to rethink their approach to administration of justice both quickly and efficiently in order to ensure that, where possible, hearings can proceed. This led them to adopt virtual hearings – conducting hearings remotely in order to minimise the risk of transmission of COVID-19 and ensure the health of all parties in attendance is maintained. While the danger of the pandemic has passed, stakeholders of access to justice are rethinking physical hearings and increasingly thinking about investing in virtual hearings. For instance, in Kenya, it is commendable that the Judiciary recently embarked on enhancing the use of technology in judicial proceedings in all courts, especially during the COVID19 pandemic period, including the use of: (a) e-filing; (b) e-service of documents; (c) digital display devices; (d) real time transcript devices; (e) video and audio conferencing; (f) digital import devices; and (g) computers in the court.

With increased globalisation, ADR Practitioners are tapping technology from the comfort of their homes or offices regardless of the geographical location or distance to engage in dispute resolution. The result is that ADR practitioner are using technology to tap into the ever growing international alternative modes of Dispute Resolution such as international arbitration, mediation and Online Disputes Resolution (ODR) especially in the face of rapidly growing networking and borderless legal practice, with the introduction of diverse social media platforms that allow interconnectivity beyond the national boundaries and enabling cross-border relationships between clients and their lawyers and law firms amongst themselves.

Going into the future, technology will lead to tremendous growth of international trade, interstate deals, bilateral and multilateral treaties. In turn, dispute resolution will increasingly continue becoming global and smart ADR practitioners must therefore up their game with international best practices as with the advent of internet, telecommunication systems. As a matter of fact, ADR is no longer limited to one jurisdiction or regions as e-commerce increase the amount and size of cross-border transactions. Thus, as it has rightly been pointed out, ‘the COVID-19 pandemic may prove a catalyst for justice system players including ADR practitioners to fully embrace technology and reduce their reliance on in person hearings and hard copy documents, particularly for dispute management purposes, even after the pandemic. However, even this brings in its wake numerous privacy challenges and especially due to possibilities of leakage of documents due to cyber insecurities. But all the same, the ADR fraternity had better get ready for a future where Online Dispute resolution is the main thing.

*This article is an extract from the Book: Settling Disputes Through Arbitration in Kenya, 4^th Edition (Chapter Thirteen), Glenwood Publishers, Nairobi, 2022 by Dr. Kariuki Muigua, PhD, 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 Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). 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 Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 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.

References

Muigua, K., Settling Disputes Through Arbitration in Kenya, 4^th Edition, Glenwood Publishers, Nairobi, 2022, p. 335 to 340.

News & Analysis

Difference between Traditional ADR Versus Digital Disputes Resolution

Published

15 hours ago

September 28, 2023

Admin

A perusal through many of the African countries’ legal, policy and institutional frameworks on Alternative Dispute Resolution (ADR) practice reveal that most of them are still focused on the traditional arbitral processes that are mainly physical in nature. However, with technological evolution, there has been emergence of new areas of commerce which naturally also come with related disputes. One such area is the digital commerce platforms. Consumer behavior and business models have changed dramatically as a result of digitalisation and technological disruption, which was expedited by the effect of the COVID-19 pandemic. Apart from pandemic impacts, the rise of information technology, globalization of economic activity, blurring of distinctions between professions and sectors, and increased integration of knowledge have all contributed to developments in the legal sector. Technology has greatly impacted the way law and legal experts are operating in this era as far as enhancing efficiency is concerned.

Further, the rise of platforms and apps with multiple integrated services ranging from transportation to finance and telemedicine has altered how services are consumed, with businesses increasingly relying on electronic transactions and digital solutions for everything from sourcing to invoicing and payments. Secure and smooth cross-border data transfers are critical for the digital economy’s growth and the protection of consumers’ interests. The traditional legal and institutional frameworks on arbitration cannot, arguably, respond to the related disputes as they currently are. There is thus need for African countries to respond to the digital and technological evolution by putting in place corresponding infrastructure to address the disputes that are bound to arise from the same.

ADR procedures have been linked to a number of benefits over litigation, including being quicker, cheaper, and less restrictive on procedural norms. In the twenty-first century, alternative dispute resolution (ADR) aims to develop a faster, more cost-effective, and more efficient approach than litigation, which is time-consuming and expensive. Foreign investors prefer mediation or arbitration over the national court system because they are concerned about the effectiveness of national courts in cross-border conflicts. In the context of cross-border commerce, dispute resolution through arbitration/ADR is not just a domestic but also an increasingly rising worldwide phenomena.

Contemporary ADR methods and procedures are thought to be more efficient and constructive than traditional schemes for managing conflicts and settling disputes because they help parties collaborate by reducing animosity and diminishing competitive incentives during the process, and in part, allows for a more satisfactory process through the conflict management expertise of professional negotiators and state-of-the-art in the field. The features of flexibility, cheap cost, absence of complex processes, collaborative issue solving, salvaging relationships, and familiarity with the general public are the core selling points of ADR methods.

Digital disruption has been felt across all modes: digital versions of products or services compete with physically embodied versions, and digital distribution/facilitation business models compete with conventional distribution business models. Technology has also crept into the realm of alternative dispute resolution thanks to advancements in the field. There is now online mediation, online arbitration, and even block chain arbitration, which employs the same block chain technology as cryptocurrencies. Alternative conflict resolution, sometimes known as “online dispute resolution,” is becoming more popular.

The United Kingdom’s Digital Dispute Resolution Rules provide for an automatic dispute resolution process which means a process associated with a digital asset that is intended to resolve a dispute between interested parties by the automatic selection of a person or panel or artificial intelligence agent whose vote or decision is implemented directly within the digital asset system (including by operating, modifying, cancelling, creating or transferring digital assets). It is, however, worth pointing out that these Rules have also created room for the traditional ADR mechanisms by providing that ‘any dispute between interested parties arising out of the relevant contract or digital asset that was not subject to an automatic dispute resolution process shall be submitted to arbitration in accordance with the current version of these rules at the time of submission; however, any expert issue shall be decided by an appointed expert acting as such rather than as an arbitrator’.

The emergence of Online Dispute Resolution (ODR) as a supplement to Alternative Dispute Resolution (ADR) might result in a meaningful paradigm shift in how conflicts are resolved outside of conventional court systems. It has been argued that the traditional court system is incapable of administering justice ‘on a large scale,’ and that ADR and ODR are more appropriate because they provide the architecture and tools to handle online disputes and can more proportionally handle functions that judicial authorities can no longer handle. International commercial disputes may quickly grow into huge trade disputes with significant political and economic ramifications, necessitating the greater use of extrajudicial dispute settlement rather than litigation in national courts. As a result of globalization, effective and dependable systems for resolving commercial and other general issues involving parties from several jurisdictions have become not only desirable but also essential.

*This article is an extract from the Article “The Evolving Alternative Dispute Resolution Practice: Investing in Digital Dispute Resolution in Kenya” by Dr. Kariuki Muigua, PhD, 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 Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). 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 Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 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.

References

Muigua, K., “The Evolving Alternative Dispute Resolution Practice: Investing in Digital Dispute Resolution in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2022/04/The-Evolving-Alternative-Dispute-Resolution-Practice-Investing-in-Digital-Dispute-Resolution-in-Kenya-Kariuki-Muigua.pdf (accessed 28^th September 2023).