News & Analysis

Book Review: Combating Climate Change for Sustainability by Dr. Kariuki Muigua

Published

1 year ago

October 22, 2023

Admin

By James Njuguna, LLM, MCIArb (Advocate), Lecturer of Law at University of Embu Faculty of Law.*

Climate change is considered one of the major global challenges that countries have to contend with in their efforts towards achievement of the sustainable development agenda. Climate change affects not only national and global economy but also has a direct effect on the livelihoods of communities. It is for this reason that there have been global calls on governments and all other stakeholders to put in place climate change mitigation measures and ensure that their economies become resilient. Indeed, climate change is one of the main environmental goals under the United Nation’s 2030 Agenda for Sustainable Development Goals as captured under Sustainable Development Goal 13 meant to help countries achieve resilience and build adaptive capacity. However, due to their development activities and approaches, both developed and developing countries have not managed to curb climate change. It is also acknowledged that due to their differing economies and unique challenges, developing countries have far much been affected by climate change compared to the developed countries.

In the book, Combating Climate Change for Sustainability, Dr. Kariuki Muigua, PhD offers a compilation of his latest twenty (20) recent peer-reviewed and critically-acclaimed articles and book chapters on combating climate change and the quest for sustainability. The book, informed by the need to combat climate change for sustainability, offers a sound discussion on the main causes and manifestations of climate change. It also discusses the main institutions and approaches designed for combating climate change for sustainability. It not only adds to the already existing debates in this area but also offers solutions for combating climate change for sustainability and also explores the global and regional approaches on the same. Academics, students, researchers and decision-makers, among others, will find the book a useful addition to their collection of literature on climate change and sustainability.

The book author, Dr. Kariuki Muigua, PhD, is a Member of the National Environment Tribunal (NET) and the Permanent Court of Arbitration at The Hague representing the Republic of Kenya. He is one of the foremost Environmental and Natural Resources Lawyers and Scholars in Africa. He is ranked in Band 1 among the Top 5 Arbitrators in Kenya by Chambers and Partners in 2023. Dr. Kariuki Muigua is Africa’s CIARB Trustee Emeritus (2019-2022) and won the African Arbitrator of the Year 2022 and African ADR Practitioner of the Year Award 2022 last year. He has authored more than dozen books in the areas of Environmental and Natural Resources Law, Dispute Resolution and Conflict Management. The Lawyer Africa named Dr. Kariuki Muigua the Top Arbitrator in Kenya in 2023.

The first Paper “Combating Climate Change in Kenya for Sustainable Development” adds to the existing literature in this area on how the country can successfully combat climate change in its bid to achieve sustainable development. The major argument is that for the country to combat climate change, there is a need for an integrated approach that meaningfully involves all the stakeholders. The Government alone cannot possibly achieve this task. Climate change mitigation is an important step towards achieving sustainability in the country, without which the realisation of both the country’s Vision 2030 and the United Nation’s 2030 Agenda for Sustainable Development will remain a mirage.

“Actualizing Africa’s Green Dream” critically discusses the concept of ‘green economy’ in Africa. It argues that green growth is vital in Africa in the wake of the threat of climate change among other concerns. It further asserts that green growth in Africa can aid in achieving Sustainable Development by striking a balance between human development, environmental conservation and economic development. The paper examines the progress made towards achieving green growth in Africa. It further explores the challenges facing realization of green economy in Africa. The paper also proposes solutions towards actualizing Africa’s green dream.

“Linking Alternative Dispute Resolution (ADR) and Environmental, Social and Governance (ESG) Tenets for Sustainable Development” focuses on the nexus between Alternative Dispute Resolution (ADR) mechanisms and Environmental, Social and Governance (ESG) tenets. It argues that linking ADR and ESG tenets can foster the realization of the Sustainable Development agenda. The paper gives an overview of the concepts of ADR, ESG and Sustainable Development. It then critically examines the relationship between ADR mechanisms and ESG tenets and highlights some of the fundamental concerns thereof. The paper further suggests measures through which ADR mechanisms can be linked with ESG tenets in order to achieve Sustainable Development.

The Paper “Taking Urgent Action to Combat Climate Change” probes the global response towards climate change. It examines measures adopted towards combating climate change at the global, regional and national levels including legal, institutional and policy approaches. It also explores the idea of climate action and the role of other stakeholders in confronting climate change. The paper further discusses the efficacy of the measures adopted towards tackling climate change and suggests recommendations towards enhancing the global response to climate change.

“Strengthening Environmental Rule of Law for Sustainability,” critically discusses the concept of environmental rule of law. It defines environmental rule of law and examines its salient principles. The paper further examines progress made towards promoting environmental rule of law at the global, regional and national levels. It also explores some of the challenges facing the realization of environmental rule of law and suggests measures towards strengthening environmental rule of law for sustainability.

“Rule of Law Approach for Inclusive Participation in Environmental, Social, and Governance (ESG) Accountability Mechanisms for Climate Resilient Responses” argues a case for the rule of law approach for inclusive participation in Environmental, Social, and Governance (ESG) accountability mechanisms for climate resilient responses. It defines the rule of law. The paper further critically examines how the rule of law advances inclusive participation in ESG accountability mechanisms for climate resilient responses. The paper also explores the challenges facing the rule of law towards this end and offers solutions towards strengthening the rule of law approach in enhancing ESG accountability mechanisms for Sustainable Development.

In the paper “Exploring Alternative Sources of Energy in Kenya” Dr. Kariuki Muigua, PhD notes that the Kenyan Government has been preparing to set up nuclear reactors in the country as an alternative source of energy to add to the national grid as part of the plans to meet the country’s development blueprint, Vision 2030 and the Big Four Agenda. He adds that Nuclear energy, while a plausible source of energy, comes with its good share of challenges. The paper proceeds to critically evaluate the viability of different sources of energy including nuclear energy by drawing lessons from other countries where these sources have been explored and either succeeded or failed. The paper also offers recommendations on the possible sources of energy that are worth exploring in the Kenyan context.

“Actualizing Gender Equity for Environmental Sustainability” critically appraises the role of gender equity in fostering environmental sustainability. It examines the disparities between men and women in environmental governance and management and how these differences have hindered realization of environmental sustainability. The paper further evaluates the progress made towards promoting gender equity in environmental matters and challenges thereof. It also proposes reforms towards actualizing gender equity for environmental sustainability towards Sustainable Development.

“Combating Climate Change Through Sustainable Forests Management for Current and Future Generations” discusses how taking care of forests can positively contribute to climate change mitigation as part of achieving sustainable development for a better tomorrow. Arguably, continued deterioration of forest areas and the ever-growing threat of climate change is likely to affect human life, thus creating the need for combating both. The author argues that taking care of forests is not only important in climate change mitigation but also a key step towards conservation of the rich biodiversity to be found in forest areas and preserving source of livelihood for the people.

“Promoting Climate Litigation in Kenya for Sustainability” makes the observation that although this trend may not yet have gained momentum in Kenya, it is only a matter of time as more and more people become aware of their environmental rights and expect more from the government and other actors in their reaction to climate change-related effects on their life. This paper also makes the observation that while this trend may not yet have gained traction in Kenya, it will do so soon. As part of the process of ensuring that sustainable development is brought to fruition, the author contends that encouraging climate litigation in Kenya may be a significant component in addressing this worldwide challenge.

“Unlocking Climate Finance for Development” succinctly examines the idea of climate finance. It posits that climate finance is vital in fostering Climate Justice since it recognizes the inequalities between countries with developing countries which are most vulnerable to the effects of climate change requiring financial resources to aid their mitigation and adaptation programmes. The paper discusses global, regional and national levels towards unlocking climate finance. It further points out challenges hindering effective access to climate finance. Finally, the paper offers some suggestions towards unlocking climate finance towards enhancing development.

“Reflections on Managing Natural Resources and Equitable Benefit Sharing in Kenya” explores the concept of benefit sharing in natural resources exploitation in Kenya. The author argues that benefit sharing should be interpreted in its various forms, namely monetary and non-monetary since a narrower conception is likely to create confusion, potential conflict between investors and local communities as well as diminished hopes of improving the livelihoods of communities. The paper highlights the international best practices in the area of benefits sharing in natural resources exploitation and briefly looks at Nigeria and Ghana to draw lessons on the likely effects of mismanagement of natural resources. The author gives viable suggestions on some of the ways that Kenya can ensure that communities reap maximum benefits from exploitation of natural resources, including the recently discovered oil in the Northern part of the country.

“Fostering Climate Justice for Sustainable Development” explores the concept of Climate Justice. It highlights and discusses some of the justice concerns arising from the effects of climate change. The paper further examines global, regional and national efforts towards fostering Climate Justice. It also considers the challenges affecting the attainment of Climate Justice and proposes measures towards fostering Climate Justice for Sustainable Development.

“Redefining the Role of Lawyers in Climate Justice” explores the role of lawyers in promoting Climate Justice. The paper conceptualizes Climate Justice and posits that it is a fundamental element of the Sustainable Development agenda. It analyzes the enabling legal framework for Climate Justice at the global, regional and national levels. The paper then delves into practical ways through which the legal profession can contribute towards promoting the ideal of Climate Justice as a precursor of Sustainable Development. The overall argument in the paper is that achieving Climate Justice is crucial in attainment of the ideal of Sustainable Development.

“The Role of Climate Change in Environmental Conflicts” notes that the impacts of Climate Change have been felt across many dimensions of society, including the environment, economy, politics, and even society’s social fabric. It has also brought about disputes and conflicts that have been related with Climate Change, both directly and indirectly, since it is considered as a conflict multiplier. These disputes and conflicts have been brought about by Climate Change. This paper analyses the disagreements that arise from the consequences of Climate Change and how such disagreements may be resolved via the implementation of efficient climate change mitigation strategies. The author contends that it is essential to address the climate change-related incentives that may lead to an increase in conflict in order to successfully mitigate the effects of Climate Change via strategies such as adaptation and the construction of resilience.

“Greenwashing: A hindrance to Achieving Sustainability?” discusses the concept of greenwashing as a strategy used by the corporate world and other players to create the impression that they are compliant with Environmental, Social and Governance (ESG) while hiding the true level of compliance, through marketing. The author argues that it is necessary to ensure that all corporations and businesses, whose operations have the potential to impact the environment, are included and held accountable for any detrimental consequences on both human beings and the environment, through stricter enforcement of corporate governance and environmental legislation aimed at curbing violation of ESG rules and greenwashing in particular. These efforts are aimed at attaining sustainability in Kenya and Africa as a whole.

“Realizing Environmental Justice through Litigation” critically appraises the role of litigation in realizing Environmental Justice in Kenya. It examines relevant case law on Environmental Justice and the jurisprudence that has emanated from courts on the same. The paper highlights and discusses the principles of Environmental Justice that have been upheld by courts through litigation. The paper further explores the prospects and challenges of litigation as a tool of realizing Environmental Justice and proposes the way forward.

“Accelerating Energy Transition in Kenya” notes that energy is a fundamental human right that is vital in the realization of the Sustainable Development agenda. However, the energy sector is facing several challenges including increasing energy demands due to population growth and the threat of climate change. As a result of these challenges, there is need for the world to transition to sustainable energy systems. The paper critically examines the progress made towards energy transition in Kenya. It argues that Kenya must expedite its journey towards energy transition in order to meet the growing energy demands and tackle environmental challenges including climate change. The paper discusses the challenges hindering the energy transition in Kenya and suggests recommendations towards accelerating energy transition in Kenya in order to achieve Sustainable Development.

“Embracing Sustainable Mining in Africa” critically explores the idea of sustainable mining in Africa. It argues a case for embracing sustainable mining in order to achieve Sustainable Development in Africa given the abundance of mineral resources in the continent. The paper discusses the concept of sustainable mining and the progress made towards its realization in Africa. The paper further examines some of the challenges hindering sustainability in the mining sector in Africa. It then suggests recommendations towards embracing sustainable mining in Africa.

“The Place of Human Rights in Environmental and Natural Resources Conflicts Management in Kenya” notes that the Constitution provides for and envisages the enjoyment of the right to clean and healthy environment and other environmental rights therein, realization of sustainable development and outlines national values and principles of governance which are geared towards protection of the human rights of all persons, environmental protection and the creation of a peaceful society. This paper argues that it is possible, in the application of some of the environmental conflict management mechanisms, to achieve undesired results that violate or fail to protect the rights of the target groups in a given conflict. The author offers insight on how the conflicts may be addressed in a way that upholds the various rights of groups in a conflict. The paper argues for adoption of a rights-based approach to environmental protection and conflict management.

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News & Analysis

What is Carbon Markets?

Published

5 months ago

July 8, 2024

MMA Advocates LLP

Written by Faith Nyambura Kabora, Advocate.

Carbon markets are a mechanism designed to reduce greenhouse gas emissions which are essentially gases that trap heat in the atmosphere and contribute to the negative impacts of climate change such as prolonged drought and rising of sea levels.

Carbon markets operate on the principle of putting a price on carbon emissions to create commercial/economic incentives for public and private entities to reduce their carbon footprint and invest in cleaner, sustainable practices.

Ideally, by putting a price on carbon, the carbon markets encourage sustainable environmental practices and help counties meet their emission reduction targets under international treaties, like the Paris Agreement, which Kenya is a signatory to. For a broader understanding, here is how a carbon market works;

A Government establishes a limit on the total amount of greenhouse gas emission/pollution is allowed within its geographical limits;
A grant, say permissions are created and distributed to eligible participants. This allowance represents the right to emit a certain amount of greenhouse gas;
The participants can then buy and sell the allowances. Ideally, those who reduce their emissions more efficiently sell their surplus allowance to those who find it more challenging to reduce the emissions. If a company pollutes a lot, they need to buy more permissions, and if they do not pollute as much, they can sell their extra permissions.
Entities are required to hold enough allowances to cover their actual emissions. If they exceed allocated allowances, they face penalties or, as expounded above, they buy additional allowances. This is the part where compliance becomes mandatory for all the key players.
The price of the allowances fluctuates based on supply and demands and reflects the cost of emitting greenhouse gases. It is essentially like paying for pollution.

A carbon market plays a pivotal role in advancing climate action and promoting sustainable practices by incentivizing companies to reconsider their pollution practices, which can result in financial consequences as pollution becomes a costly endeavor. In Kenya, the introduction of a Carbon Market is imperative as the world confronts the dire consequences of climate change. Furthermore, it offers a commercial opportunity for investors considering the growing demand for environmentally friendly and carbon neutral products and services.

As mentioned above, the Paris Agreement is one of the most important international treaties dedicated strengthen global response to the negative impact of climate change. Ultimately, the Agreement’s goal is to motivate countries to limit global emissions and more importantly, to hold them accountable for their actions around reducing their carbon footprints.

Kenya as a signatory to the Paris Agreement has made significant contributions towards fulfilling the obligations under the Paris Agreement of limiting global temperature. The Climate Change (Amendment) Act 2023, nudges Kenya towards the realization of Article 6 of the Paris Agreement by introducing provisions and regulation of and participation in carbon markets.

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As one of the top law firms in Nairobi, MMA Advocates is renowned for its proactive strategy and innovative legal lawyer advice. Our firm is committed to delivering strategic assistance that not only tackles current difficulties but also equips clients for future legal trends and advancements. As top lawyers in Nairobi Kenya, we take great satisfaction in our ability to combine in-depth legal knowledge with creative problem-solving. We keep a close eye on business trends and legal advancements to deliver timely guidance that enables our clients to make wise choices.

Our main goal as MMA Advocates is to establish long-lasting partnerships based on integrity, decency, and reliability. Since every client’s circumstance is unique, our best advocates in Kenya offer timely service and individualized attention at every stage of our collaboration. We make sure our clients are informed and empowered throughout their legal journey because we value openness and transparency in communication. In every case we take on, we are deeply committed to obtaining positive results and client satisfaction. This is just one aspect of our unwavering commitment to quality.

Whether you are a startup negotiating regulatory obstacles, an established corporation expanding, or a private citizen seeking legal assistance on personal problems, our Best Corporate Lawyers in Kenya are dedicated to becoming your legal partner. Our expertise include Commercial Litigation, Real Estate & Development, Fintech, Public Procurement (Public Private Partnerships), Project Finance, Public Law Litigation, Legal Audits & Compliance Advisory and Crisis Management.

We hope to arm you with the legal know-how and strategies needed to achieve your objectives. Our team enjoys taking on challenging legal matters with creativity and strategic understanding, protecting your rights and effectively achieving your goals. With a thorough comprehension of both regional laws and global norms, we are prepared to confidently and competently lead you through the complexities of corporate law.

In the intensely competitive legal arena, our tailored legal and strategic solutions distinguish us. We value depth over breadth, guaranteeing our clients our full dedication and unparalleled efficiency. Where many spread themselves wide, we narrow our focus to a select few of the most challenging cases. We tread the path less traveled.

To find out more about how MMA Advocates in Nairobi Kenya can help you with your legal issues, get in touch with us. With our team of committed professionals and our standing as one of the top law firms in Nairobi, we are well-positioned to offer outcomes that surpass expectations and guarantee your success in a legal environment that is always changing.

News & Analysis

Review: Alternative Dispute Resolution (ADR) Journal, Volume 12(3), 2024

Published

7 months ago

April 28, 2024

Kariuki Muigua & Company

The Alternative Dispute Resolution (ADR) Journal, Volume. 12, No.3, 2024 covers pertinent and emerging issues across all ADR mechanisms. This volume exposes our readers to a variety of salient topics and concerns in ADR including Building Peace in Africa, Public Policy as a Ground of Setting-Aside an Arbitral Award, Ethics, Integrity and Best Practice in Mediation, Accessing Justice in Kenya, Sports Arbitration, ESG Arbitration, Arbitration of Investor-State Dispute in Kenya, Article 159(2) of the Constitution of Kenya 2010 and issuance of interim measures by Arbitral Tribunals. The ADR Journal is a publication of the Chartered Institute of Arbitrators, Kenya Branch. It provides a platform for scholarly debate and in-depth investigations into both theoretical and practical questions in Alternative Dispute Resolution.

The journal is edited by Professor of Law at the University of Nairobi, Faculty of Law Hon Prof. Kariuki Muigua, a distinguished law scholar, an accomplished mediator and arbitrator with a Ph.D. in law from the University of Nairobi and widespread training and experience in both international and national commercial arbitration and mediation. Prof. Muigua is a Fellow of Chartered Institute of Arbitrators (CIArb)- Kenya chapter and also a Chartered Arbitrator. He is a member of the Permanent Court of Arbitration, The Hague. He also serves as a member of the National Environment Tribunal. He has served as the Chartered Institute of Arbitrator’s (CIArb- UK) Regional Trustee for Africa from 2019 -2022.

In the paper “Building Peace in Africa through Alternative Dispute Resolution” Hon. Prof. Kariuki Muigua critically discusses the role of Alternative Dispute Resolution (ADR) mechanisms in peace building in Africa. The paper argues that ADR mechanisms can play a fundamental role in building peace in Africa. The paper further posits that ADR mechanisms are able to enhance sustainable peace in Africa due to their focus on reconciliation and restorative justice. It proposes solutions towards building peace in Africa through ADR.

In “the Emergence of the International Commercial Court: A Threat to Arbitration of Investor-State Dispute in Kenya” Marion Injendi Wasike and Dr. Kenneth W. Mutuma argue that the proliferation of international commercial courts, including their introduction in Kenya, necessitates a thorough analysis of their implications on arbitration’s role in investor-state disputes. By juxtaposing these emerging judicial entities against traditional arbitration paradigms, the discussion aims to unravel the complexities and potential shifts in dispute resolution preferences, highlighting the balance between innovation in legal adjudication and the sustenance of arbitration’s revered position in the international legal order.

Kamau Karori SC, MBS in “Striking a Balance: A Delicate Dance Between Sanctity and Scrutiny” notes that the continuing debate —between upholding the inviolability of arbitral awards and judicial intervention in cases of egregious injustice points to the need for delicate balancing between non-interference and the need to correct unmistakably unjust awards. The urgency of this discourse is informed by the need to prevent consumers or potential consumers of arbitration services opting to exclude arbitration clauses due to perceived deficiencies. The article seeks to navigate the genesis of the debate, delicately dissect the different perspectives, and draw comparisons with global practices.

The article “Reforming Kenya’s Law on Probation and Aftercare Services to Promote Alternative Dispute Resolution” by Michael Sang engages in a comprehensive exploration of Kenya’s Probation of Offenders Act within the context of the growing role of Alternative Dispute Resolution (ADR) principles in the nation’s criminal justice system. Drawing inspiration from international legal instruments such as “The Beijing Rules,” “Bangkok Rules,” and “Tokyo Rules,” the study evaluates the Act’s provisions, strengths, and limitations. It concludes with a call for thoughtful reforms that align Kenya’s criminal justice system with international standards, emphasizing a balanced and compassionate approach to justice.

The “Upholding Ethics, Integrity and Best Practice in Mediation” by Hon. Prof. Kariuki Muigua, OGW critically discusses the need for standardization of mediation practice in Kenya by adopting best practices. It examines some of the challenges facing mediation practice in Kenya. It is also explores measures adopted towards fostering best practices in mediation at both the global and national level. The paper further suggests recommendations aimed at upholding ethics, integrity and best practice in mediation. In “Exploring the Role of Mediation in Promoting Small and Medium Enterprises (SMEs) and Fostering Economic Growth in Kenya” Atundo Wambare offers an in-depth analysis of the use of mediation in promoting the growth of small and medium enterprises (SME’s). He makes recommendations on how best mediation can be harnessed as a tool for economic growth in Kenya.

James Njuguna and Nyamboga George Nyanaro in “Compulsory Resolution or Autonomy Erosion? The Debate on Mandatory Sports Arbitration delve into the contentious issue of mandatory sports arbitration, questioning its role as a potential future pathway for dispute resolution. Their research examines the implications of compulsory arbitration on athletes’ autonomy, juxtaposing it with the benefits of expedited dispute resolution.

Paul Ngotho in “Constitution of Kenya 2010 Article 159.2.(c): Ancestry, Anatomy, Efficacy & Legacy” traces the rather odd origin and everlasting effect of the often-cited Article 159.2.(c) of the Constitution of Kenya 2010. It acknowledges the central role played by two members of the Chartered Institute of Arbitrators Kenya Branch, quietly and privately, away from the mainstream constitution making process. One of them chairman of the Branch, the other the Minister of Justice, National Cohesion and Constitutional Affairs.

David Onsare in “Navigating The ESG Maze: Emerging Trends in Arbitration and Corporate Accountability” embarks on a timely exploration of the dynamic interplay between Environmental, Social and Governance (ESG) factors and arbitration, a field gaining critical importance in the realm of corporate accountability. By offering a comprehensive view of the complexities and practical implications of ESG in arbitration, the article serves as a crucial guide for legal professionals navigating the evolving landscape of corporate responsibility and arbitration. In “Public Policy as a Ground of Setting-Aside an Arbitral Award: Musings on the Centurion Engineers Civil Appeal Judgment”

Ibrahim Kitoo argues a case for upholding of public policy as a ground for the nonrecognition, non-enforcement and setting aside of an arbitral award in cases where to recognise and enforce such awards proves to be a clear violation of the law and against the public good. Juvenalis Ngowi in “Arbitral Tribunals: Do they have the power to issue interim measures during the proceedings?” discusses the powers of the Arbitral Tribunal to grant such orders and examines some procedural rules which empower arbitrators to issue such orders, the scope of those powers, and the factors to be considered when granting interim measures in the arbitral proceedings.

In “Examining the Efficacy of Mediation as A Tool for Accessing Justice in Kenya: Opportunities, Challenges, and Future Perspectives” Murithi Antony undertakes a thorough examination of mediation as a form of ADR in the Kenyan context. He identifies opportunities arising from the integration of mediation into the country’s legal system and explores barriers impeding its widespread adoption. The article concludes with a resounding call to action for all stakeholders to champion the use of mediation collaboratively and proactively, given its proven efficacy in dispute resolution.

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Kariuki Muigua & Company Advocates is a Top-Tier Kenyan law firm situated at the heart of Nairobi city in Kenya. We are a broad-based practice with a reputation for offering a full range of quality services to our domestic and international clients.

At KM&CO, we take pride in offering personalized attention to our diverse clientele. Our practice aspires to offer efficient and cost-effective legal solutions that meet our esteemed clients’ needs in a timely and competent manner.

KM&CO was founded in 1993 by the current senior Advocate, Dr. Kariuki Muigua. It is based in the Central Business District of Nairobi at the Pioneer Assurance House located opposite 7th August Bomb Blast Memorial Park enjoying the convenience of close proximity to major financial, commercial and governmental institutions.

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.

News & Analysis

Way Forward in Applying Collaborative Approaches Towards Conflict Management

Published

9 months ago

March 24, 2024

Kariuki Muigua & Company

By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, March 2024)*

It is necessary to embrace and utilize collaborative approaches in managing conflicts. These techniques include mediation, negotiation, and facilitation. These mechanisms are effective in managing conflicts since they encourage parties to embrace and address disagreements through empathy and listening towards mutually beneficial solutions. Collaborative approaches also have the potential to preserve relationships, build trust, and promote long term positive change. They also ensure a win-win solution is found so that everyone is satisfied which creates the condition for peace and sustainability. These approaches are therefore ideal in managing conflicts. It is therefore important to embrace collaborative approaches in order to ensure effective management of conflicts.

In addition, it is necessary for third parties including mediators and facilitators to develop their skills and techniques in order to enhance the effectiveness of collaborative approaches towards conflict management. For example, it has correctly been observed that mediators and facilitators should listen actively and empathetically in order to assist parties to collaborate towards managing their dispute. Therefore, when a dispute arises, the first step should involve listening to all parties involved with an open mind and without judgment. This should entail active listening, which means paying attention to both verbal and nonverbal cues and acknowledging the emotions and perceptions involved.

It has been observed that by listening empathetically, a third party such as a mediator of facilitator can understand each person’s perspective and start to build a foundation for resolving the conflict through collaboration. In addition, while collaborating towards conflict management, it is necessary to encourage and help parties to focus on interests and not positions. It has been pointed out that focusing positions can result in a standstill which can delay or even defeat the conflict management process. However, by identifying and addressing the underlying interests parties can find common ground and collaborate towards coming up with creative solutions towards their conflict.

Mediators and facilitators should also assist parties to look for areas of agreement or shared goals. Identifying a common ground can build momentum and create a positive environment for resolving the conflict. Further, in order to ensure the effectiveness of collaborative approaches in conflict management, it is necessary to build strong collaboration. It has been asserted that strong collaboration can be achieved by establishing a shared purpose, cultivating trust among parties, encouraging active participation by all parties, and promoting effective communication.

Strong collaboration enables parties to develop trust between and among themselves and strengthen communication channels between the various parties. It also helps to generate inclusive solutions that arise from wider stakeholders’ views. Therefore while applying collaborative approaches, it is necessary for parties to foster strong collaboration by identifying common goals, building trust, ensuring that all stakeholders are involved, and communicating effectively in order to come up with win-win outcomes.

Finally, while embracing collaborative approaches in conflict management, it is necessary for parties to consider seeking help from third parties if need arises. For example, negotiation is always the first point of call whenever a conflict arises whereby parties attempt to manage their conflict without the involvement of third parties. It has been described as the most effective collaborative approach towards conflict management since it starts with an understanding by both parties that they must search for solutions that satisfy everyone.

It enables parties to a dispute to come together to openly discuss the issue causing tension, actively listen to each other, and come up with mutually satisfactory solutions. However, it has been correctly observed that negotiation may fail especially if the conflict is particularly complex or involves multiple parties due to challenges in collaborating. In such circumstances, where negotiation fails, parties should consider resorting to other collaborative approaches such as mediation and facilitation where they attempt to manage the conflict with the help of a third party. A mediator or facilitator can assist parties to collaborate and continue with the negotiations and ultimately break the deadlock.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024) by Hon. Prof. Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 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 and the Top Arbitrator in Kenya in 2023.

References

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Bercovitch. J., ‘Mediation Success or Failure: A Search for the Elusive Criteria.’ Cardozo Journal of Conflict Resolution, Vol. 7, p 289.

Bloomfield. D., ‘Towards Complementarity in Conflict Management: Resolution and Settlement in Northern Ireland,’ Journal of Peace Research., Volume 32, Issue 2.

Burrell. B., ‘The Five Conflict Styles’ Available at https://web.mit.edu/collaboration/mainsite/ modules/module1/1.11.5.html (Accessed on 01/03/2024).

Demmers. J., ‘Theories of Violent Conflict: An Introduction’ (Routledge, New York, 2012).

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