News & Analysis

The Concept of Energy Justice

Published

9 months ago

February 8, 2024

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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)*

It has been asserted that the conceptual sophistication of environmental justice work over the years has spawned efforts to apply lessons to a widening scope of concerns including those in the energy sector. Environmental Justice refers to the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Environmental Justice is attained when every person enjoys the same degree of protection from environmental and health hazards and has access to the decision-making process to have a healthy environment.

Environmental Justice thus seeks to address distributive inequity, lack of recognition, disenfranchisement and exclusion in environmental matters. In turn, the idea of energy justice comes from the concepts of social justice and environmental justice. Energy justice has emerged as a concept that seeks to apply justice principles to energy production, energy consumption, energy systems, energy policy, energy security, and the political economy of energy. Energy justice evaluates where injustices in the energy sector emerge, which sections of the society are affected and ignored, and which processes exist for their remediation in order to reveal, and reduce injustices in the energy sector.

Energy justice therefore offers an opportunity to explore where injustices occur, developing new processes of avoidance and remediation, and recognizing new sections of society. It has been argued that energy justice requires a clear exposition of how energy transition can be achieved globally to support the democratization of energy access. It envisions elements of a global energy system that fairly distributes both energy services’ benefits and burdens and can be used as a framework to identify and remedy energy injustices.

According to the United Nations, energy justice seeks to ensure universal access to safe, affordable and sustainable energy for all individuals, across all areas and to protect individuals from the disproportionate share of costs or negative impacts relating to building, operating, maintaining, generating, transmission, and distribution of energy and to ensure equitable access to benefits from each system. Energy justice has the goal of achieving equity in both the social and economic participation in the energy system, while also remediating social, economic, environmental and health burdens of those disproportionately harmed by the energy system. Energy justice aims to make energy and energy systems accessible, affordable, clean, and democratically managed for all people and communities.

The concept of energy justice thus seeks to apply basic principles of justice and fairness to the inequalities witnessed in the availability, affordability, sustainability and due process in the energy sector. It envisions the ideal of a global energy system that fairly disseminates both the benefits and costs of energy services, and one that has representative and impartial energy decision-making. It further poses a justice and ethical dilemma of allocating the benefits of scarce energy resources among citizens and between the present and future generations. Through energy justice, availability, security, affordability, and sustainability in the energy sector can be achieved for human and economic development.

Energy justice is premised on the tenets of distributional, recognition and procedural justice. Distributional justice recognises both the physically unequal allocation of environmental benefits and ills, and the uneven distribution of their associated responsibilities and represents a call for the even distribution of benefits and ills on all members of society regardless of their status. It assesses issues such as uneven distribution, production and consumption of energy. The location of energy production facilities such as wind power stations, dams and gas power stations could create inequalities in access to energy thus raising justice concerns.

Simultaneously, studies of energy poverty have questioned the distributional burden of rising energy prices. Distributional justice therefore seeks to explore and address injustices in both production and consumption of energy. Recognition justice on the other hand entails the idea that individuals must be fairly represented, that they must be free from physical threats and that they must be offered complete and equal political rights. It is aimed at determining the section of the population ignored or misrepresented in energy access in order to cure such ills.

Procedural justice concerns access to decision-making processes that govern the distributions in the energy sector and manifests as a call for equitable procedures that engage all stakeholders in a non-discriminatory way. Procedural justice is aimed at streamlining the decision- making processes in the energy sector that engages all stakeholder to ensure inclusivity non-discrimination. It further aims at achieving just outcomes through local knowledge mobilization, greater information disclosure, and better institutional representation.

The concept of energy justice therefore envisages that if injustices are to be tackled in the energy sector, it is imperative to identify the concern – distribution; identify who it affects – recognition, and only then identify strategies for remediation – procedure. Energy justice is thus an important concept towards enhancing availability, security, affordability, sustainability and due process in the energy sector.

It is based on certain core principles including the availability principle which urges countries to have sufficient modern energy resources; the affordability principle which argues that all people, including the poor, should get energy at a reasonable cost; the due process principle which requires countries to follow the rule of law and human rights in their production and use of energy; the sustainability principle which places an obligation on states to ensure longterm sustainable energy development with prudent management; the good governance principle which implies that all people should have access to all information regarding energy and environment, and citizens must be able to participate in fair, transparent and accountable forms of the energy decisionmaking process; the principle of intragenerational equity which emphasizes that every person has the right to fair access to energy services to enable them to enjoy a basic standard of well-being; the principle of intergenerational which stipulates that future generations have a right to enjoy a good life undisturbed by the damage our energy systems inflict on the world today; and the responsibility principle that places a duty on all nations to protect the natural environment and its sustainability as well as diminish energy-related environmental threats.

These principles are based on the Rio Declaration on Environment and Development that places an obligation on states to pursue Sustainable Development by striking a balance between exploitation of their natural resources (including energy resources) for development and environmental conservation. It is therefore necessary for all countries to foster energy justice.

*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 2023) 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

Africa Union., ‘Agenda 2063: The Africa we Want.’ Available at https://au.int/sites/default/files/documents/33126-docframework_document_book.pdf (Accessed on 22/11/2023).

Bouzarovski. S., & Simcock. N., ‘Spatializing Energy Justice.’ Energy Policy, (2017) 107. pp. 640-648.

Bradbrook. A., ‘Access to Energy Services in a Human Rights Framework.’ Available at https://www.un.org/esa/sustdev/sdissues/energy/op/parliamentarian_forum/br adbrook_hr.pdf (Accessed on 21/11/2023).

Hafner. M., ‘The Challenge of Energy Access in Africa.’ Available at https://link.springer.com/chapter/10.1007/978-3-319-92219-5_1 (Accessed on 21/11/2023).

Heffron. J.R., & McCauley. D., ‘The Concept of Energy Justice across the Disciplines’ Energy Policy, 105 (2017) 658-667.

Hughes. M., ‘Why Access to Energy Should be a Basic Human Right.’ Available at https://www.forbes.com/sites/mikehughes1/2018/12/10/why-access-to-energy-should-be-abasic-human-right/?sh=1ac8d18145f2 (Accessed on 21/11/2023).

Initiative for Energy Justice., ‘What is Energy Justice?’ Available at https://iejusa.org/ (Accessed on 22/11/2023).

International Energy Agency., ‘Defining Energy Access: 2020 Methodology.’ Available at https://www.iea.org/articles/defining-energy-access-2020-methodology (Accessed on 21/11/2023).

Jenkins. K et al., ‘Energy Justice: A conceptual Review.’ Energy Research & Social Science., Volume 11, 2016, pp 174-182.

Lee. J., & Byrne. J., ‘Expanding the Conceptual and Analytical Basis of Energy Justice: Beyond the Three-Tenet Framework.’ Available at https://www.frontiersin.org/articles/10.3389/fenrg.2019.00099/full (Accessed on 22/11/2023).

Lofquist . L., ‘Is there a Universal Human Right to Electricity?.’ The International Journal of Human Rights., Volume 24, Issue 6., (2020).

Muigua. K., ‘Access to Energy as a Constitutional Right in Kenya.’ Available at https://kmco.co.ke/wp-content/uploads/2018/08/Access-to-Energy-as-a-ConstitutionalRight-in-Kenya-NOVEMBER-2013.pdf (Accessed on 21/11/2023).

Muigua. K., ‘Towards Energy Justice in Kenya.’ Available at https://kmco.co.ke/wpcontent/uploads/2020/02/Towards-Energy-Justice-in-Kenya-00000005.pdf (Accessed on 22/11/2023).

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

Opal. A., & Nathwani. J., ‘Chapter 32 – Global Energy Transition Risks: Evaluating the Intergenerational Equity of Energy Transition Costs.’ Energy Democracies for Sustainable Futures., 2023, pp 301-310.

Sagar. A., ‘Alleviating Energy Poverty for the World’s Poor’ (2005) Energy Policy (2005), 33, 1367.

Schlosberg. D & Collins. L., ‘From Environmental to Climate Justice: Climate Change and the Discourse of Environmental Justice.’ WIREs Clim Change, 2014.

Sovacool. B., & Dworkin. M., ‘Global Energy Justice: Problems, Principles and Practices.’ Cambridge Univ. Press, 2014.

Sovacool. B., ‘Energy Decisions Reframed as Justice and Ethical Concerns’ Energy Justice.’ Available at https://core.ac.uk/download/pdf/42579074.pdf (Accessed on 22/11/2023).

The World Bank, ‘Sustainable Development Goal on Energy (SDG7) and the World Bank Group, available at https://www.worldbank.org/en/topic/energy/brief/sustainabledevelopment-goal-onenergy-sdg7-and-the-world-bank-group (Accessed on 21/11/2023).

United Nations Conference on Trade and Development., ‘Commodities at a Glance: Special Issue on Access to Energy in Sub-Saharan Africa.’ Available at https://unctad.org/publication/commodities-glance-special-issue-access-energy-sub-saharanafrica#:~:text=Access%20to%20energy%20is%20 defined,be%20scaled%20up%20over%20t ime. (Accessed on 21/11/2023).

United Nations Development Programme., ‘Energy Access.’ Available at https://www.undp.org/energy/our-work-areas/energy-access (Accessed on 21/11/2023).

United Nations General Assembly., ‘Report of the United Nations Conference on Environment and Development: Rio Declaration on Environment and Development.’ A/CONF. 151/26 (Vol.1).

United Nations., ‘In Quest of an Energy Justice Framework for Bangladesh.’ Available at https://www.un.org/en/chronicle/article/quest-energy-justice-frameworkbangladesh (Accessed on 22/11/2023).

United Nations., ‘SDG 7: Affordable and Clean Energy.’ Available at https://www.un.org/sustainabledevelopment/energy/#:~:text=Goal%207%20is%20about%20ensuring,%2C%20education%2C%20healthcare%20and%20transportation (Accessed on 22/11/2023).

United Nations., ‘Transforming Our World: The 2030 Agenda for Sustainable Development.’ Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustainable%20Development%20web.pdf (Accessed on 22/11/2023).

United States Environmental Protection Agency; ‘Environmental Justice.’ Available at https://www.epa.gov/environmentaljustice (Accessed on 22/11/2023).

World Trade Organization., ‘Energy Services.’ Available at https://www.wto.org/english/tratop_e/serv_e/energy_e/energy_e.htm (Accessed on 21/11/2023).

Yoshida. T., & Zusman. E., ‘Achieving the Multiple Benefits of a Sustainable Development Goal for Energy’ Available at https://iges.or.jp/en/publication_documents/pub/bookchapter/en/4934/08_Ch8_Achieving _th e_SDG s_.pdf (Accessed on 21/11/2023).

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News & Analysis

What is Carbon Markets?

Published

4 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

6 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

7 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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