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The State of Sustainable Mining in Africa

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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)*

Africa is a continent that is richly endowed with a variety of mineral resources, with potential for economic growth and development. The continent is home to approximately 30% of the world’s mineral reserves. The Democratic Republic of the Congo (DRC), for example, produces over 70% of the world’s cobalt. DRC and Zambia together supply nearly 10% of global copper. Botswana and South Africa produce a significant amount of diamond while Ghana and South Africa are significantly endowed with gold deposits. Africa is therefore classified as a major producer of many key mineral commodities in the world, with bountiful reserves of vital metals and minerals including gold, diamond, cobalt, bauxite, iron ore, coal, and copper available across the continent. Some of the major mining countries in Africa are DRC, South Africa, Namibia, and Zimbabwe.

Kenya is also richly endowed with industrial minerals including soda ash, fluorspar, diatomite and gemstones. Further, it has been argued that Africa has an opportunity to emerge as a production hub for ‘rare earths’ with significant deposits being available in the continent especially in eastern and southern countries including South Africa, Madagascar, Malawi, Kenya, Namibia, Mozambique, Tanzania, Zambia and Burundi. Rare earths have been described as the catalysts of industrial societies in the 21st century since they are vital to key products from hi-tech items including smartphones and monitors to energy conversion systems such as wind turbines, photovoltaic panels and electrical machinery and even military equipment including lasers and radar. Sustainable mining is therefore a pertinent concern in Africa in order to ensure that the abundant mineral resources in the continent are able to trigger social and economic development.

The Africa Mining Vision seeks to achieve transparent, equitable and optimal exploitation of mineral resources in Africa in order to underpin broad-based sustainable growth and socio-economic development. It recognizes the need for a sustainable and wellgoverned mining sector in Africa that effectively garners and deploys resource rents and that is safe, healthy, gender and ethnically inclusive, environmentally friendly, socially responsible and appreciated by surrounding communities. The Vision identifies the challenges that riddle the mining industry in Africa including environmental, social and cultural concerns and proposes several solutions to address these challenges. The Vision not only seeks to guide the mining industry in Africa, but it also aims at ensuring sustainable utilization of natural resources in Africa in order to ensure that the continent’s natural resources are used to transform the social and economic development path of the continent.

Further, the Vision seeks to ensure the adoption of an integrated approach in the governance of Africa’s mineral resources and the involvement of all stakeholders in the governance process. The Africa Mining Vision explores how development can be achieved through the creation of local value, driven by the strategic use of mineral resources in Africa. It charts a path for generating and realizing various types of linkages arising from the mining sector through measures such as industrial development and technical upgrading. Further, the Africa Mining Vision recognizes the contribution of Artisanal and Small-Scale mining (ASM) to local economic development, and fosters women’s rights and gender justice. The Vision also establishes a progressive fiscal regime that can curb the financial misuse of the continent’s resources through tax evasion and avoidance and illicit financial flows from the mineral sector.

The Africa Mining Vision also upholds the principle of Free, Prior and Informed Consent (FPIC) for mining-affected communities, and stipulates measures to address the social and environmental impacts of mining. The Africa Mining Vision identifies opportunities that can accelerate benefits from the mining industry in Africa including the use of resource rents, upscaling physical infrastructure, downstream value addition, upstream value addition and technology and product development. The Africa Mining Vision is very integral in enhancing sustainable mining in Africa. It acknowledges that effective management of the mineral resources in the continent is critical to transform the sector in a sustainable manner. Realizing the ideal of the Africa Mining Vision is essential in promoting sustainable mining in Africa.

Agenda 2063 also embraces the concept of sustainable mining and calls for the implementation of the Africa Mining Vision in order to realize this ideal in Africa. Agenda 2063 represents a shared strategic framework for inclusive growth and sustainable development and a global strategy to optimize the use of Africa’s resources for the benefit of all Africans. It stipulates the importance of African and international initiatives for better governance in the mining sector and the extractive industry. According to Agenda 2063, Africa’s natural resources need to be governed effectively to foster transparency and counter illicit resource outflows and unacceptable exploitation of Africa’s natural resources. In this regard, Agenda 2063 calls upon the African Union (AU) member states to fully implement the Africa Mining Vision. Actualizing Agenda 2063 can therefore fast track the implementation of the Africa Mining Vision and realization of sustainable mining in Africa.

The Mining Act of Kenya also embraces the aspect of sustainable mining. The Act enshrines sustainable development as one of the guiding principles in developing the mining sector in Kenya. It also advocates for the development of the mining sector in Kenya in a manner which promotes compliance with international conventions and national policies relating to the sustainable development of the mineral resources and ensures that mining operations take into account local and community values. It further calls upon mining entities to promote sustainable use of land through restoration of abandoned mines and quarries. The Mining Act therefore embraces the concept of sustainable mining by enshrining measures to ensure the protection of the environment, community development, safety of prospecting and mining operations and health and safety of persons undertaking those operations among others.

Sustainable mining is thus vital in Africa. There has been increased demand on the mining industry to adopt more environmentally and socially responsible practices in Africa. It has been pointed out that with shareholders and lenders demanding greenhouse gas emissions and pollution reduction, plus improvements in worker and community welfare, there is a growing belief that it is in the mining industry’s best interests to adopt more responsible practices to increase productivity and avoid adverse publicity. As a result of these concerns, private and public sector led mining activities across Africa have begun to prioritize sustainable techniques to promote environmental sustainability, social responsibility, and good business practices.

In turn, the sustainable mining industry has become an increasingly attractive investment opportunity for global players seeking to enhance their returns on investment while spearheading climate protection and resilience. Sustainable mining can unlock economic and social development in Africa while fostering environmental conservation and confronting the threat of climate change. However, several problems hinder the realization of the ideal of sustainable mining in Africa. It has been pointed out that growth in Africa’s mineral-rich countries is slipping, and inequality and economic fragility are on the rise. Further, many African countries are under pressure to enter into unfair mining deals and contracts with foreign companies, and to hand out tax incentives to such companies a situation that ends up hurting them in the long term. Despite boasting vast mineral wealth, the mining industry in Africa has spawned gloomy tales of the natural resource curse phenomenon.

In Africa, mineral resources are extracted mainly for processing and use outside the continent, and mineral sectors have remained an enclave and disconnected from broader economies. It has been shown that public debt and fiscal stress is rising in several mineral-rich African countries such as Nigeria, Zambia, Angola and Mozambique. Further, Angola, Democratic Republic of the Congo (DRC) and Nigeria are good examples of African countries wellendowed in natural resources that suffer widespread poverty. There has also been prevalence of conflicts linked to natural resources in countries such as DRC. From the foregoing, it is evident that Africa is yet to harness the full potential of its mineral endowments for sustainable and inclusive development. The continent is richly endowed with a variety of mineral resources, with potential for economic growth and development but performance so far has not been consistent with expectations. There is need to embrace sustainable mining in Africa in order to unlock growth and prosperity in Africa.

 

*This is an extract from the article: “Embracing Sustainable Mining in Africa,” 1(2) Journal of Appropriate Dispute Resolution & Sustainability (2024) p. 120 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

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Muigua. K., Wamukoya. D., & Kariuki. F., ‘Natural Resources and Environmental Justice in Kenya.’ Glenwood Publishers Limited, 2015.

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International Labour Organization.,’ Mining (Coal; other Mining) Sector.’ Available at https://www.ilo.org/global/industries-and-sectors/mining/lang– en/index.htm (Accessed on 28/09/2023).

National Academies Press., ‘Evolutionary and Revolutionary Technologies for Mining.’ Available at https://nap.nationalacademies.org/read/10318/chapter/4 (Accessed on 28/09/2023).

Massachusetts Institute of Technology., ‘The Future of Strategic Natural Resources.’ Available at https://web.mit.edu/12.000/www/m2016/finalwebsite/solutions/minin g.html (Accessed on 28/09/2023).

Pan African Resources., ‘Sustainable Mining.’ Available at https://www.panafricanresources.com/sustainablemining/#:~:text=Sustainable%20mining%20refers%20to%20the,generations%20 can%20also%20be%20met (Accessed on 02/10/2023).

Sammour. J., ‘What Exactly is Ethical Mining?.’ Available at https://www.daintylondon.com/blogs/news/what-is-ethicalmining#:~:text=Whether%20mining%20 metals%2C%20diamonds%20or,its%20 workers%20a%20fair%20wage (Accessed on 02/10/2023).

Well Planning Group., ‘At The Heart of Mining Sustainability is Community Engagement.’ Available at https://www.wallplanning.com.au/atthe-heart-of-mining-sustainability-is-communityengagement/#:~: text=You’ll%20likely%20have%20heard,%3A%20Social%2C% 20Environmental%2C%20Economic (Accessed on 02/10/2023).

Mathiba. G., ‘The Incorporation of the FPIC Principle in South African Policy on Mining-Induced Displacements.’ International Journal on Minority and Group Rights., 2023 (1-23).

Muigua. K., ‘Maximising the Right to Free, Prior, and Informed Consent for Enhanced Environmental Justice in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2019/03/Maximising-the-Rightto-FPIC-in-Kenya-Kariuki-Muigua-29th-March-2019.pdf (Accessed on 02/10/2023).

Majer. M., ‘The Practice of Mining Companies in Building Relationships with Local Communities in the Context of CSR Formula.’ Journal of Sustainable Mining, 12 (3): 38-47.

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White & Case., ‘Don’t Let a Crisis Go to Waste: Financing Mining & Metals Projects in Africa in 2023.’ Available at https://www.whitecase.com/insight-ourthinking/africa-focus-summer-2023-financing-mining-metalsprojects#:~:text=Africa%20holds%20a%20remarkable%2030,sector’s%20global %20revenue%20in%202022. (Accessed on 03/10/2023).

United Nations., ‘African Countries Urged to Prioritize Green Value Chains for Minerals.’ Available at https://www.un.org/africarenewal/magazine/february-2023/african-countriesurged-prioritize-green-value-chainsminerals#:~:text=Africa%20is%20home%20to%20many,platinum%20metals%2 C%20lithium%20and%20more (Accessed on 03/10/2023).

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Italian Institute for International Political Studies., ‘The Scramble for Africa’s Rare Earths: China is not Alone.’ Available at https://www.ispionline.it/en/publication/scramble-africas-rare-earths-china-notalone-30725 (Accessed on 03/10/2023).

Africa Union., ‘Africa Mining Vision.’ Available at https://au.int/sites/default/files/documents/30995-docafrica_mining_vision_english_1.pdf (Accessed on 03/10/2023).

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Africa Business., ‘African Sustainable Mining Piques Interest of Global Players.’ Available at https://african.business/2023/09/apo-newsfeed/africansustainable-mining-piques-interest-of-globalplayers#:~:text=While%20clean%2Denergy%20mines%20are,large%2Dscale%2 0projects%20in%20South (Accessed on 03/10/2023).

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Henri. A., ‘Natural Resources Curse: A Reality in Africa.’ Resources Policy, Volume 63, 2019.

News & Analysis

What is Carbon Markets?

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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;

  1. A Government establishes a limit on the total amount of greenhouse gas emission/pollution is allowed within its geographical limits;
  2. A grant, say permissions are created and distributed to eligible participants. This allowance represents the right to emit a certain amount of greenhouse gas;
  3. 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.
  4. 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.
  5. 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.

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.

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

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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 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.

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Way Forward in Applying Collaborative Approaches Towards Conflict Management

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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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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.

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