News & Analysis

The Way Forward in Strengthening Intra-African Trade

Published

7 months ago

February 1, 2024

Admin

Photo Courtesy: AfCFTA

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 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) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

In order to strengthen intra-African trade, there is need to accelerate implementation of the AfCFTA and the Action Plan on Boosting Intra-African Trade. It has been argued that accelerating implementation of the AfCFTA presents an opportunity to create a borderless Africa a situation that will unlock trade and development in the continent66. According to the African Union, the establishment of the AfCFTA and the implementation of the Action Plan on Boosting Intra-African Trade provide a comprehensive framework to pursue a developmental regionalism strategy.

It is therefore imperative for all stakeholders to accelerate the implementation and advanced usage of the existing operational tools that facilitate the realization of commercially meaningful trading under the AfCFTA through the conclusion of the AfCFTA Phase One and two Protocols which provide a legal basis to advance the operationalization of the trading system under the agreement, development of the AfCFTA guided trade initiative, operationalization of the AfCFTA adjustment fund among other measures. The implementation of the AfCFTA and the Action Plan on Boosting Intra-African Trade will strengthen intraAfrican trade for Sustainable Development.

In addition, it is necessary to dismantle trade barriers including tariff and nontariff barriers in Africa in order to strengthen intra-African trade. It has been observed that the growth of intra-African trade is hindered by non-tariff barriers including costly non-tariff measures, infrastructure gaps, and market information gaps. There are disproportionately high barriers to African goods travelling to other countries within the continent which take the form of physical barriers, tariffs, product regulations, quotas, among other restrictions. There is need for sound policies to eliminate these barriers in order to foster greater integration of supply chains within Africa and allow goods to travel more freely. It has rightly been asserted that cross-border trade in Africa can be promoted through appropriate trade policy towards the elimination of intra-regional trade and non-trade barriers.

Further, there is need to ease cross-border payments in order to boost intraAfrican trade. It has been argued that the expense and difficulty of making payments across borders is among the major reasons that trade among Africa’s 55 countries amounts to only about 15 percent of their total imports and exports compared to an estimated 60 percent in Asia and 70 percent within the European Union. Further, it has been pointed out that since African countries’ currencies mostly can’t be directly exchanged in international transactions, the dollar remains the most widely used currency in trade, even between African countries therefore exposing African countries to currency shocks among other challenges in the international currency market a situation that threatens trade in the Continent.

Easing cross-border payments and embracing local currencies is therefore key in strengthening intra-African trade. The AfCFTA seeks to establish the Pan African Payment System (PAPSS), a centralised Financial Market Infrastructure enabling the efficient and secure flow of money across African borders. The system aims to link African central banks, commercial banks, and fintechs into a network that would enable quick and inexpensive transactions among any of the Continent’s 42 currencies. It is therefore necessary to actualize the PAPSS in order to ease cross-border payments a move that will strengthen intra-African trade.

Another key measures towards strengthening intra-African trade involves embracing local content policies. Local content has been defined as a policy framework aimed at optimizing the economic value to be derived from the development of natural resources through domestic linkages while giving regard to the country’s development goals, vision for a given sector, trade competitiveness and the financial viability of the natural resource being leveraged. The objective of a local content policy is to ensure that a high proportion of project inputs are sourced from the host country without compromising the economics of the project or sector being leveraged.

It has been argued that local content clauses in contracts assure that the exploitation of local natural resources has a trickle-down effect on the local economy, through job-creation and training. Furthermore, it has been pointed out that local content policies can accelerate the growth of African natural resources sectors including the oil and gas and renewable energy sectors a move which can strengthen intra-African trade in these sectors. African countries should therefore adopt the right local content policies in order to add value to their products and boost the competitiveness of Africa’s commodity exports towards strengthening intra-African trade.

It is also important for African countries to curb illicit trade which is a major hindrance to intra-African trade and financial flows. According to the African Economic Outlook, Africa has lost more than $1 trillion in illicit flows over the last 50 years, and it is likely that Africa will still lose about $89 billion annually, if corrective action is not taken. It points out that illicit financial flows typically originate from corporate resource leakages, organized crimes, corruption, and bribery. Drivers of illicit financial flows in Africa include high tax rates on natural resources, low institutional capabilities, political instability, and poor regulatory quality.

The African Development Bank further asserts that illicit trading in natural resources erodes the economic benefits accruing to the larger African society. It asserts that there is high incidence of illicit trade in Africa’s natural resources including minerals, fisheries, forestry, oil, and wildlife resulting in economic loss and social challenges therefore threatening intra-African trade in these sectors. UNCTAD further opines that Africa is estimated to lose substantial resources through illicit financial flows. It points out that these flows originate from several sources such as revenues from illegal activities, tax avoidance, abusive profit-shifting, trade mis-invoicing, corruption, and others. It is important to combat illicit financial flows and illicit trade in Africa in order to strengthen economic development and accelerate intra-African trade.

Finally, there is need to strengthen regional integration in order to boost intraAfrican trade. RECs in Africa including the COMESA, ECOWAS, SADC, and EAC have been vital in fostering economic integration, trade and development in Africa. It has been pointed out that African countries will trade more with each other if they upgrade their productive capacities in dynamic sectors of the economy and support the development of regional enterprises and value chains. The AU Action Plan for Boosting Intra-African Trade urges African countries to create regional and continental value chains in order to increase local production and trade in goods produced in Africa.

Regional economic integration in Africa is an important driver for building productive capacities and achieving structural transformation for sustained development. African countries have been urged to pursue stronger regional integration in order to reap the benefits of larger markets and take advantage of economies of scale; and to tackle regional and global challenges such as climate change, pandemics, and fragility. It is therefore necessary for African countries to enhance regional integration in order to strengthen intra-African trade. Through the following among other measures, intra-African trade will be strengthened for Sustainable Development.

*This is an extract from the Book: Promoting Rule of Law for Sustainable Development (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 2022) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. 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 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 and the Top Arbitrator in Kenya in 2023.

References

United Nations Economic Commission for Africa., ‘Intra-African Trade: A Pillar of Development.’ Available at https://repository.uneca.org/handle/10855/6028 (Accessed on 14/12/2023).

African Development Bank Group., ‘Intra-African Trade is Key to Sustainable Development – African Economic Outlook.’ Available at https://www.afdb.org/fr/newsand-events/intra-african-trade-is-key-to-sustainable-development-african-economic-outlook17022 (Accessed on 14/12/2023),

United Nations Conference on Trade and Development., ‘Intra-African Trade: Unlocking Private Sector Dynamism.’ Available at https://unctad.org/system/files/officialdocument/tdb60d4_en.pdf (Accessed on 14/12/2023).

African Union., ‘Expanding Opportunities for Intra African Trade.’ Available at https://au.int/sites/default/files/newsevents/workingdocuments/31884-wdaep_brochure_theme_2_trade.pdf (Accessed on 14/12/2023).

Brixiova. Z., Meng. Q., & Ncube. M., ‘Can Intra-Regional Trade Act as a Global Shock Absorber in Africa?’ Available at https://docs.iza.org/dp9205.pdf (Accessed on 14/12/2023).

African Economic Outlook 2023., ‘Mobilizing Private Sector Financing for Climate and Green Growth in Africa.’ Available at https://www.afdb.org/sites/default/files/documents/publications/afdb23- 01_aeo_main_english_0602.pdf (Accessed on 14/12/2023).

Africa Union., ‘Action Plan for Boosting Intra-African Trade.’ Available at https://au.int/web/sites/default/files/newsevents/pressreleases/26498-praction_plan_for_boosting_intra-african_trade_f-english.pdf (Accessed on 14/12/2023).

African Union., ‘Agreement Establishing the African Continental Free Trade Area.’ Available at https://au.int/sites/default/files/treaties/36437-treatyconsolidated_text_on_cfta_-_en.pdf (Accessed on 14/12/2023).

United Nations., ‘Africa’s Free Trade on Track, More Efforts Needed.’ Available at https://www.un.org/africarenewal/magazine/january-2023/africa%E2%80%99sfree-trade-track-more-efforts-needed#:~:text=lies%20ahead%2C%20though.-,Presently%2C%20intra%20Africa%20trade%20 stands%20low%20at%20just%2014.4 %25%20of,day)%2C%20according%20to%20UNCTAD (Accessed on 14/12/2023).

The World Bank., ‘The African Continental Free Trade Area.’ Available at https://www.worldbank.org/en/topic/trade/publication/the-african-continentalfree-trade-area (Accessed on 14/12/2023).

Africa Union., ‘Regional Economic Communities.’ Available at https://au.int/en/recs#:~:text=The%20purpose%20of%20the%20RECs,the%20Abuja%20Tr eaty%20(1991). (Accessed on 14/12/2023) 48 Ibid 49 Common Market for Eastern and Southern Africa., Available at https://www.comesa.int/our-success stories/#:~:text=COMESA%20established%20a%20Free%20Trade,intra%2DFree%20Trad e%20Area%20States.&text=By%202018%2C%2098%25%20of%20NTBs,since%202008% 20had%20been%20resolved. (Accessed on 14/12/2023).

South African Development Community., ‘SADC Major Achievements and Challenges.’ Available at https://www.sadc.int/sites/default/files/2021- 12/Achievements_booklet.pdf (Accessed on 14/12/2023).

East African Community., ‘Intra-EAC Trade Hits the US$10 billion Mark as EAC Readies to Send out Verification Mission Team to Assess Somalia’s Readiness to Join the Bloc.’ Available at https://www.eac.int/press-releases/2706-intra-eac-trade-hits-the-$10- billion-mark-as-eac-readies-to-send-out-verification-mission-team-to-assess-somalia-sreadiness-to-join-the-bloc (Accessed on 14/12/2023).

United Nations., ‘Africa’s Free Trade on Track, More Efforts Needed.’ Op Cit 55 Mo Ibrahim Foundation., ‘African Continental Free Trade Area (AfCFTA): IntraContinental Trade still the Lowest Globally.’ Available at https://mo.ibrahim.foundation/news/2023/african-continental-free-trade-area-afcfta-intracontinental-trade-still-lowest-globally (Accessed on 14/12/2023).

Njuki. J., ‘Intra-Africa Trade: Status and Growth Prospects.’ Available at https://agriculture.ec.europa.eu/system/files/2021-06/fourth-au-eu-conference-intra-africatrade_en_0.pdf (Accessed on 14/12/2023).

United Nations Conference on Trade and Development., ‘Key Statistics and Trends in Regional Trade in Africa.’ Available at https://unctad.org/publication/key-statisticsand-trends-regional-trade-africa (Accessed on 14/12/2023).

African Union., ‘CFTA – Continental Free Trade Area.’ Available at https://au.int/en/ti/cfta/about (Accessed on 15/12/2023).

Africa Union., ‘Theme of The Year 2023: “Acceleration Of AfCFTA Implementation’ Available at https://au.int/en/theme/2023/acceleration-of-afcfta-implementation (Accessed on 15/12/2023).

United Nations., ‘Africa’s Free Trade on Track, More Efforts Needed.’ Op Cit 71 Global Development., ‘Trade in Africa: Formal Barriers, Informal Networks, and Global Prospects.’ Available at https://globaldev.blog/trade-africa-formal-barriers-informalnetworksandglobalprospects/#:~:text=These%20can%20take%20the%20form,goods%20to%20travel %20more%20freely. (Accessed on 15/12/2023).

Njinkeu. D., & Fosso. B., ‘Intra-African Trade and Regional Integration.’ Available at https://www.afdb.org/fileadmin/uploads/afdb/Documents/Knowledge/09484259-EN- INTRA-AFRICAN-TRADE-AND-REGIONLA-INTEGRATION.PDF (Accessed on 15/12/2023) 74 Wellisz. C., ‘Freeing Foreign Exchange in Africa.’ Available at https://www.imf.org/- /media/Files/Publications/Fandd/Article/2022/September/digital-journey-africa.ashx (Accessed on 15/12/2023).

World Economic Forum., ‘Africa Embraces Local Currencies for Cross-Border Payments.’ Available at https://www.weforum.org/agenda/2023/12/africa-local-curenciescross-border-payments/ (Accessed on 15/12/2023).

African Natural Resources Centre., ‘An ANRC Step-by-Step Guide for Local Content Policy Formulation and Implementation.’ Available at https://www.afdb.org/fileadmin/uploads/afdb/Documents/Publications/anrc/ANRC_A_stepbystep_guide_for_local_content_policy_formulation_and_implementation.pdf (Accessed on 15/12/2023).

Africa Oil Week., ‘The Role of Local Content in Building Africa’s Oil, Gas and Renewables Energy Mix.’ Available at https://africa-oilweek.com/Articles/the-roleof-local-content-in-building-africas (Accessed on 15/12/2023).

African Development Bank., ‘Illicit Trade in Natural Resources in Africa.’ Available at https://www.afdb.org/fileadmin/uploads/afdb/Documents/Events/IFF/Documents_IFF/ANR C_ILLICIT_TRADE_IN_NATURAL_RESOURCES.pdf (Accessed on 15/12/2023).

United Nations Conference on Trade and Development., ‘Defining, Estimating and Disseminating statistics on Illicit Financial Flows in Africa.’ Available at https://unctad.org/project/defining-estimating-and-disseminating-statistics-illicit-financialflows-africa (Accessed on 15/12/2023).

Africa Union., ‘Action Plan for Boosting Intra-African Trade.’ Op Cit 94 Ibid 95 The World Bank., ‘Regional Integration Removes Barriers to Development in Africa.’ Available at https://www.worldbank.org/en/results/2023/12/08/regional-integrationremoves-barriers-to-development-in-africa (Accessed on 15/12/2023).

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News & Analysis

What is Carbon Markets?

Published

2 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.

MMA Advocates LLP

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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

5 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.

Kariuki Muigua & Company

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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

6 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.

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