News & Analysis

International Legal Instruments Relating to 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).

Article 2(5) and (6) of the Constitution of Kenya 2010 provides that ‘the general rules of international law shall form part of the law of Kenya’ and that ‘any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’ respectively. In Re The Matter of Zipporah Wambui Mathara [2010] eKLR the High Court held that by virtue of the provisions of Section 2 (6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya has ratified, were imported as part of the sources of the Kenyan Law and thus the provisions of the International Covenant on Civil and Political Rights (ICCPR) which Kenya ratified on 1st May 1972 were part of the Kenyan law.

The court went on to hold that the provisions of the ICCPR superseded those contained in the Banking Act. It is in line with the country’s international obligations on human rights and gender issues that Article 59 (2) (g) of the Constitution of Kenya provides that one of the functions of the Kenya National Human Rights and Equality Commission is to act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights. It is however noteworthy that the National Gender and Equality Commission Act, 2011 has since established the National Gender and Equality Commission as the successor in title to the Kenya National Human Rights and Equality Commission established by Article 59 of the Constitution, pursuant to clauses (4) and (5) of that Article. Its functions however remain the same.

It is in line with the Commission’s mandate on international treaties and conventions that the Sessional Paper No. 02 of 2019 on National Policy on Gender and Development outlines the national agenda for gender equality and how Kenya intends to realize these ideals; details the overarching principles, which will be adopted and integrated into the National and County Government sectoral policies, practices and programmes and by all state and non-state actors; and it specifically takes cognizance of, inter alia: international and regional treaties on gender equality that Kenya has ratified such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Maputo Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights guarantees that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. It also provides that each individual is entitled to enjoy their rights and freedoms ‘…without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Article 7 therein also guarantees that ‘all persons are equal before the law and are entitled without any discrimination to equal protection of the law’.

Convention on the Elimination of All Forms of Discrimination against Women

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) defines the term “discrimination against women” to mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. CEDAW also provides that States Parties should condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation.

CEDAW also obligates States Parties to take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. CEDAW also provides that States Parties should take all appropriate measures: to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

CEDAW also provides that States Parties should take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development. Thus, the CEDAW covers civil rights, the legal status of women, the dimension of human reproduction and the impact of cultural factors on gender relations. Unlike other legal instruments, it acknowledges that different factors affect the relationships and interactions between men and women and thus outlines some obligations for State Parties to address all these factors.

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) guarantees that ‘all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. ICCPR also provides that each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In addition, ICCPR provides that the States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. Article 26 of the ICCPR further provides that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.

Nairobi Forward looking Strategies for the Advancement of Women

The Nairobi Forward looking Strategies for the Advancement of Women captured the concern that the resources available to the programme on the advancement of women of the Secretariat were insufficient to ensure adequate support to the Committee on the Elimination of Discrimination against Women and effective implementation of other aspects of the programme, especially the preparations for the Fourth World Conference on Women, held in 1995.

The delegation that called again upon Member States to give priority to policies and programmes relating to the subtheme “Employment, health and education”, in particular to literacy, for the empowerment of women, especially those in the rural areas, to meet their own needs through self-reliance and the mobilization of indigenous resources, as well as to issues relating to the role of women in economic and political decision-making, population, the environment and information. The delegates also emphasized, in the framework of the Forward-looking Strategies, the importance of the total integration of women in the development process, bearing in mind the specific and urgent needs of the developing countries, and calls upon Member States to establish specific targets at each level in order to increase the participation of women in professional, management and decision-making positions in their countries.

Fourth World Conference on Women, Beijing Declaration and Platform for Action

The Fourth World Conference on Women met in Beijing, China, from 4 to 15 September 1995 where delegates discussed and adopted the Beijing Declaration and Platform for Action. The objective of the Beijing conference was to review the achievement of the goals of equality, development and peace, as outlined in the Nairobi Forward Looking Strategies for the Advancement of Women to the Year 2000 in 1985, and to establish a strategy for removing the remaining obstacles to the achievement of these goals. The Declaration recognized that the status of women had advanced but that inequalities and obstacles remained. It reaffirmed commitments to: equal rights in a number of existing agreements; ensuring full implementation of human rights of women and the girl child; and empowerment and advancement of women, including the right to freedom of thought, conscience, religion and belief.

Delegates also stated their conviction that: women’s empowerment and full participation are fundamental to equality, development and peace; equal rights and responsibilities are critical to families; women’s involvement is required to eradicate poverty; peace is linked to the advancement of women; and gender-sensitive policies are essential to foster women’s empowerment and advancement. Governments also affirmed their determination to: intensify efforts to achieve goals from the Nairobi strategies; ensure the full enjoyment by women and the girl child of human rights; eliminate discrimination and remove obstacles to equality; encourage men to participate in actions towards equality; promote women’s economic independence; promote sustainable development and education; prevent and eliminate violence against women and girls; ensure full participation; and ensure equal access to economic resources.

United Nations Declaration on the Elimination of Violence against Women

The United Nations Declaration on the Elimination of Violence against Women (DEVAW) provides that women are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. These rights include, inter alia: the right to life; the right to equality; the right to liberty and security of person; the right to equal protection under the law; the right to be free from all forms of discrimination; the right to the highest standard attainable of physical and mental health; the right to just and favourable conditions of work; the right not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment. DEVAW also obligates States to condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.

*This is article is an extract from an article “Actualizing the National Policy on Gender and Development 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

David Njoroge Macharia v Republic [2011] eKLR, Criminal Appeal 497 of 2007.

Doran, P. and Others, “Summary of the Fourth World Conference on Women: 4-15 September 1995.” Earth Negotiations Bulletin 14, no. 21 (1995): 1 < https://enb.iisd.org/download/pdf/enb1421e.pdf> (Accessed 13 October 2020).

National Gender and Equality Commission Act, No.15 of 2011, Laws of Kenya.

Organization for Economic Co-operation and Development, “The Implications Of The Fourth World Conference On Women for Bilateral Development Co-Operation: Report From The DAC Expert Group On Women In Development Seminar, Held In Paris On 25-26 January 1996, Working Party on Gender Equality, DCD/DAC/WID(99)4, Available at: http://www.oecd.org/officialdocuments/publicdisplay documentpdf/?cote=DCD/DAC/WID(99)4&docLanguage=En > Accessed 13 October 2020.

Orinde, H., ‘Survey Reveals How Kenyans Are Ignorant of Their Human Rights’ (The Standard) accessed 14 October 2020.

Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others Sup. Ct. Application No. 2 of 2011; [2012] eKLR.

Treaty-Making and Ratification Act, No. 45 of 2012, Laws of Kenya.

UN General Assembly, Declaration on the Elimination of Violence against Women, 20 December 1993, A/RES/48/104.

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). 15 Universal Declaration of Human Rights, Article 1.

UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13.

UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

UN General Assembly, Implementation of the Nairobi Forward-looking Strategies for the Advancement of Women: resolution / adopted by the General Assembly, 16 December 1991, A/RES/46/98.

United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20 and A/CONF.177/20/Add.1 Date of adoption: 15 September 1995.

United Nations. Gender Mainstreaming an Overview. Office of the Special Adviser on Gender Issues, 2002 < https://www.un.org/womenwatch/osagi/pdf/e65237.pdf> Accessed 9 October 2020.

UN General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1. 9 ‘Sustainable Development Goal 5: Gender Equality’ (UN Women) accessed 15 October 2020.

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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

14 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).

News & Analysis

Navigating the Digital Dispute Resolution Landscape: The Opportunities

Published

24 hours ago

September 27, 2023

Admin

Technology is a disruptive phenomenon that has the capacity to end traditional business models, to cast whole industries into oblivion, and to destroy traditional crafts, arts, and professions. Rapid digitalization is affecting all aspects of life including the way we interact, work, shop and receive services as well as how value is created and exchanged. Technology has impacted the nature and practice of the legal profession in Kenya and across the globe in the 21st century. Despite its relatively slow progress in embracing technology, the legal profession has in the recent past been more adaptive to technology as a matter of necessity due to ascendancy of information technology, the globalization of economic activity, the blurring of differences between professions and sectors, and the increasing integration of knowledge. The expansion of digital trade and digitally enabled transactions has been tremendous in Kenya, and digitization has become a vital element of a wide range of daily activities and service delivery.

With more and more individuals throughout the globe engaged in immediate cross-border exchanges of digital commodities, and as the infrastructure that supports the Internet increases, obstacles of distance and cost that previously appeared insurmountable have begun to fall away. This, therefore, calls for investment in institutional frameworks that will ably overcome the challenges that come with digital economy, as far as management of the digital trade disputes is concerned. Digital transformation has also affected the resolution of disputes and the enforcement of claims. The disruptions caused by the COVID-19 pandemic have brought to light, the impact of technology on modern legal practice and led to the adoption of practices such as virtual court sessions, electronic filing of pleadings and online delivery of judgments and rulings.

The use of technology has also permeated into the field of Alternative Dispute Resolution (ADR) with practices such as online mediation, online arbitration, smart contracts and block chain arbitration being embraced. It has been argued that the traditional court system is incapable of administering justice on a large scale in light of the digital transformation and there is need to embrace digital dispute resolution in order to effectively manage technology related disputes. Digital dispute resolution has been described as the process of managing disputes on the internet through the use of suitable technology or platforms. It involves the use of technology to facilitate the rapid, cost effective and specialised resolution of disputes involving digital technology including crypto assets, cryptocurrency, smart contracts, distributed ledger technology, and fintech applications.

Digital Dispute Resolution is often compared to Online Dispute Resolution (ODR) which refers to a set of processes that allow for the resolution of disputes via online mechanisms such as the internet or some form of technology that allows for virtual communication. Technology has the ability to make dispute resolution more efficient. It has been observed that technology is transforming the landscape of dispute resolution by generating an ever- growing number of disputes and at the same time challenging the effectiveness and reach of traditional dispute resolution avenues such as courts. Technology holds the promise for an improved dispute resolution landscape that is based on fewer physical, conceptual, psychological and professional boundaries, while enjoying a higher degree of transparency, participation and change. Technology could be used to ensure that every case has a single data set that can be used at every stage of the dispute resolution process in order to avoid the repetition of the same facts and issues in pleadings, witness statements, expert reports, skeleton arguments and opening and closing written submissions.

The United Kingdom has made progress towards embracing digital dispute resolution by adopting the Digital Dispute Resolution Rules which are meant to facilitate the rapid and cost-effective resolution of commercial disputes, particularly those involving novel digital technology such as crypto assets, cryptocurrency, smart contracts, distributed ledger technology, and fintech applications. The Rules must be agreed upon in writing by both parties, either before or after a disagreement arises. The Rules provide language for use in a contract, a digital asset (such as a crypto asset, digital token, smart contract, or other digital or coded representation of an asset or transaction), or a digital asset system. Further, the United Nations Commission on International Trade Law in its Dispute Resolution in the Digital Economy Initiative recognizes the importance of technology in enhancing the efficiency of dispute resolution but with emphasis on the need to take into account the disruptive aspects of digitalization, in particular with respect to due process and fairness.

In Kenya, the Digital Economy Blue Print envisages the use of digital dispute resolution mechanisms such as Online Dispute Resolution to enforce contracts, resolve disputes and protect consumers. These are some of the initiatives adopted towards embracing digital dispute resolution. Some of the technological innovations that have enhanced digital dispute resolution include the use of block chain technology and Artificial Intelligence (AI) programs such as smart contracts and Chat GPT. Block chain technology has facilitated Block chain Dispute Resolution (BDR) which provides a platform for management of disputes arising out of block chain and smart contract transactions or for traditional disputes that are not related to block chain transactions. Further, it has been contended that technologies such as AI could be used to quickly sift through the mass of complex facts to identify the key issues at the heart of each dispute thus enhancing the efficiency of dispute resolution.

Smart contracts have also been embraced in the field of digital dispute resolution. These are programs stored on a block chain that run when predetermined conditions are met. They are often used to automate the execution of an agreement so that all participants can be immediately certain of the outcome, without any intermediary’s involvement or time loss. Smart contracts can also automate a workflow, triggering the next action when conditions are met. Smart contracts are versatile and can be embraced in digital dispute resolution in order to enhance speed, efficiency, accuracy, transparency and cost effectiveness. Indeed, smart legal contracts are being adopted which execute automatically when conditions have been met. These include digital wills and legal agreements between organizations.

Further, it has been asserted that programs such as Chat GPT have the potential of enhancing efficiency and expeditiousness in dispute resolution in areas such as legal research and formulating legal opinions. It can provide quick and convenient solutions to many legal research and contract analysis tasks. Chat GPT can also foster dispute resolution mechanisms such as International Commercial Arbitration in areas such as language translation in disputes involving parties from different nationalities. It can also be used in text summarization and production of relevant case notes thus aiding the process of dispute resolution. Due to its ability to save time and effort by automating tasks and creating documents and communication quickly, Chat GPT and similar platforms will continue to have a significant impact on the legal landscape including dispute resolution. It is thus evident that there is immense potential for digital dispute resolution. However, despite its potential, digital dispute resolution raises several challenges.

*This article is an extract from the article “Navigating the Digital Dispute Resolution Landscape: Challenges and Opportunities,” 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.