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Peacebuilding and Conflict Prevention through ADR and TDRMs in Kenya

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

Sustainable Development Goal 16 calls on State Parties to promote just, peaceful and inclusive societies. The associated relevant Targets require States to, inter alia: promote the rule of law at the national and international levels and ensure equal access to justice for all; by 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime; develop effective, accountable and transparent institutions at all levels; ensure responsive, inclusive, participatory and representative decision-making at all levels; broaden and strengthen the participation of developing countries in the institutions of global governance; ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements; strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime; and promote and enforce nondiscriminatory laws and policies for sustainable development.

SDG 16 is premised on the fact that ‘sustainable development cannot be achieved without peace, stability, human rights and effective governance, based on the rule of law’. It is worth pointing out that while some conflicts call for use of formal systems such as national courts to deal with them, especially where criminal activities are concerned, there is a need to explore and exploit non-violent and/or non-confrontational approaches, in the spirit of Article 159(2)(c) of the 2010 Constitution of Kenya which ‘encourages of communities to settle land disputes through recognized local community initiatives consistent with this Constitution’, and requires that ‘in exercising judicial authority, the courts and tribunals should be guided by, inter alia, the principles of alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)’.

Indeed, in recognition of the important role that Alternative Dispute Resolution (ADR) and Traditional Dispute Resolution Mechanisms (TDRMs) can play in not only addressing internal conflicts but also doing so in ways that enhance sustainable peace rather than dividing people further as would be the case with adversarial court mechanisms, Kenya’s Judiciary has been making strides towards promoting and encouraging their use in the country, while working closely with other stakeholders in the sector. This is because, more often than not, the court process fails to address the underlying real issues that brought the conflict in the first place. This has been attributed to the fact that since the official law is based on a different understanding of justice, it is rarely effective in creating stability and societies are, therefore, more interested in solving conflicts through informal means – although they may ask the police to trace their cattle and the local administration to help in negotiating peace.

Arguably, local leaders prefer to deal with the conflicts of their communities as they are convinced that they have better solutions than the state can provide. In Geoffrey Muthinja Kabiru & 2 Others -vs- Samuel Munga Henry & 1756 Others (2015) eKLR, the Court of Appeal stated as follows regarding use of ADR and TDRMs:- “It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts…This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

Use of ADR and TDRM mechanisms in addressing ethnic tensions and other intergroup conflicts in Kenya has a potential to bring the country closer to attaining sustainable peace as a step towards achieving SDG 16. Indeed, the Draft Alternative Dispute Resolution Policy, 2019 has acknowledged that ‘ADR, through its reconciliatory and non-adversarial nature is a major contributor to peace and cohesion in the country. It also acknowledges that ‘the rule of law is essential for democracy and economic growth and is the backbone of human rights, peace, security, and development’. The importance of these mechanisms is also acknowledged in Kenya’s National Policy on Peacebuilding and Conflict Management, 2011 which calls for capacity building through, inter alia, training various stakeholders in relevant areas such as alternative conflict resolution mechanisms.

It has been argued that where there have been harsh and violent conflicts, there is usually firstly the temporary management of the conflict; which typically involves negotiation, meditation and arbitration, and rests on leaders and elites, although it still requires support by the general population, while secondly, deeper, level involves reconciliation which requires change in the societal repertoire shared by society members. This is because reconciliation involves the formation or restoration of genuine peaceful relationships between societies and that this requires extensive changes in the socio-psychological repertoire of group members in both societies. In addition, reconciliation is associated with socio-psychological processes consisting of changes of motivations, goals, beliefs, attitudes and emotions by the majority of society members. This is the kind of approach that is recommended for such conflicts as the one involving Pokot and Turkana communities, among others. It is, however, acknowledged this should be accompanied with poverty eradication projects by the State since poverty and limited sources of livelihood can aggravate competition for scarce natural resources thereby contributing to instability.

The State’s involvement in addressing natural resources scarcity through climate change mitigation measures as well as adopting a participatory approach to resource management can potentially help in alleviating poverty and consequently address the insecurities that these communities face as far as food security and access to resources are concerned. County peace committees should be empowered through capacity building because, as some commentators have argued, County governments have better local knowledge and are likely to enjoy greater local legitimacy thus placing them at a better position to address conflicts and promote peace, in partnership with the National Government. Based on the foregoing, it is thus important for the State to continually promote and strengthen the use of local leadership and community peace groups in efforts to reach sustainable peace solutions in Kenya.

This is an extract from Kenya’s First ESG Law Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

References

‘Diamonds in Sierra Leone, A Resource Curse?’ available at http://erd.eui.eu/media/wilson.pdf [Accessed on 17/5/2019].

‘Wangari Maathai-an excerpt from the Nobel Peace Prize Winner’s Acceptance Speech,’ Earth Island Journal. Available at http://www.earthisland.org/journal/index.php/eij/article/wangari_maathai_an_excerpt_from _the_nobel_peace_prize_winners_acceptance_sp/ [Accessed on 17/5/2019].

Alao, A., Natural Resource Management and Human Security in Africa, in Abass, A., Protecting Human Security in Africa (ISBN-13: 9780199578986, Oxford University Press, 2010).

Asaduzzaman, Mohammed & Virtanen, Petri, “Governance Theories and Models”, 2016, in A. Farazmand (ed.), Global Encyclopedia of Public Administration, Public Policy, and Governance, DOI 10.1007/978-3-319-31816-5_2612-1.

Ballet, J., et al, ‘Social Capital and Natural Resource Management: A Critical Perspective,’ The Journal of Environment & Development, Vol. 16, No. 4, December 2007, pp. 355-374, p. 367.

Billion, P., Wars of Plunder: Conflicts, Profits and Politics, (New York: Columbia University Press, 2012).

Bollig, M., “Ethnic Conflicts in North-West Kenya: Pokot-Turkana Raiding 1969— 1984.” Zeitschrift Für Ethnologie 115 (1990), pp. 73-90. http://www.jstor.org/stable/25842144. [Accessed on 17/5/2019].

Boyd, D.R., ‘The Effectiveness of Constitutional Environmental Rights,’ Yale UNITAR Workshop, April 26/27, 2013, available at https://environment.yale.edu/content/documents/00003438/Boyd-Effectiveness-ofConstitutional-Environmental-Rights.docx?1389969747 [Accessed on 23/07/2016].

Cosens, B.A., Craig, R.K., Hirsch, S.L., Arnold, C.A.T., Benson, M.H., DeCaro, D.A., Garmestani, A.S., Gosnell, H., Ruhl, J.B. and Schlager, E., “The role of law in adaptive governance,” Ecology and society: a journal of integrative science for resilience and sustainability 22, no. 1 (2017): 1, p.1.

Daly, E. & May, J.R., ‘Comparative environmental constitutionalism,’ Jindal Global Law Review, April 2015, Volume 6, Issue 1, pp 9–30.

Free the Slaves, ‘Congo’s Mining Slaves: Enslavement at South Kivu Mining Sites,’ Investigative Field Report, June 2013. Available at https://www.freetheslaves.net/wp-content/uploads/2015/03/Congos Mining-Slaves-web-130622.pdf [Accessed on 17/5/2019].

Galtung, J., “Violence, peace, and peace research,” Journal of peace research, Vol. 6, no. 3 (1969): 167-191.

Herath, O., “A critical analysis of Positive and Negative Peace,” (2016), p.106. Available at http://repository.kln.ac.lk/bitstream/handle/123456789/12056/journal1%20%281%29.104- 107.pdf?sequence=1&isAllowed=y [Accessed on 16/5/2019].

Homer-Dixon, T.F., “Environmental scarcities and violent conflict: evidence from cases,” International security 19, No. 1 (1994): 5-40 at p. 6.

IDLO, “Sustaining Peace, Building Justice: Discussion Note,” available at https://www.idlo.int/system/files/event-documents/IDLO%20IN%20- %20Sustaining%20Peace-Building%20Justice%20NO%20CONTACTS.PDF [ Accessed on 17/5/2019].

Institute for Economics and Peace, ‘Pillars of Peace: Understanding the key attitudes and institutions that underpin peaceful societies,’ IEP Report 22, p. 5. Available at https://www.files.ethz.ch/isn/169569/Pillars%20of%20Peace%20Report%20IEP.pdf.

International Alert, “What is Peace Building?” Available at https://www.internationalalert.org/what-we-do/what-is-peacebuilding [17/5/2019].

International Alert, “What is Peace Building?” Available at https://www.internationalalert.org/what-we-do/what-is-peacebuilding [17/5/2019].

International Alert, “What is Peace Building?” Available at https://www.internationalalert.org/what-we-do/what-is-peacebuilding [17/5/2019].

IUCN Resolution 3.012 on Governance of natural resources for conservation and sustainable development adopted in Bangkok, Thailand in 2004. Available at https://portals.iucn.org/library/sites/library/files/resrecfiles/WCC_2004_RES_12_EN.pdf [Accessed on 16/5/2019].

IUCN, Environmental Law: Governance and MEAs, available at https://www.iucn.org/theme/environmental-law/our-work/governance-and-meas [Accessed on 16/5/2019].

Johannes, E.M., et al, ‘Oil discovery in Turkana County, Kenya: a source of conflict or development?’ African Geographical Review, Vol. 34, No.2, 2015, pp.142-164, p. 142.

Kinniburgh, C., ‘Beyond “Conflict Minerals”: The Congo’s Resource Curse Lives On,’ Dissent Magazine, Spring 2014, available at https://www.dissentmagazine.org/article/beyond-conflict-minerals-thecongos-resource-curse-lives-on [ Accessed on 12/08/2018].

Lawson, T. R. & Greestein, J., ‘Beating the resource Curse in Africa: A global Effort,’ Africa in Fact, August 2012. Available at http://www.cfr.org/africa-subsaharan/beating-resource-curse-africa-global-effort/p28780 [Accessed on 17/5/2019].

Lohde, L.A., The Art and Science of Benefit Sharing in the Natural Resource Sector, (International Finance Corporation, February 2015), p. 55. Available at https://commdev.org/wpcontent/ uploads/2015/07/IFC-Art-and-Science-of-Benefits-Sharing-Final.pdf.

Maiese, M., ‘Social Structural Change,’ in G. Burgess & H. Burgess (eds), Beyond Intractability, (Conflict Information Consortium, University of Colorado, Boulder, July 2003), available at http://www.beyondintractability.org/essay/social-structural-changes [Accessed on 17/05/2019];

Maphosa, S.B., Natural Resources and Conflict: Unlocking the Economic dimension of peace-building in Africa. ASIA Policy brief Number 74, 2012.

Martin, P., Boer, B. and Slobodian, L., (Eds.), Framework for Assessing and Improving Law for SustainabilityIUCN, Gland, Switzerland, 2016, xii + 126 pp at p. 1. Available at https://www.iucn.org/sites/dev/files/framework_for_assessing_and_improving_law_for_susta inability.pdf [Accessed on 16/5/2019].

Martin, P., Boer, B. and Slobodian, L., (Eds.), Framework for Assessing and Improving Law for Sustainability IUCN, Gland, Switzerland, 2016, at p. 1.

Martin, P., Boer, B. and Slobodian, L., (Eds.), Framework for Assessing and Improving Law for SustainabilityIUCN, Gland, Switzerland, 2016, at p. 3.

Martin, P., Boer, B. and Slobodian, L., (Eds.), Framework for Assessing and Improving Law for SustainabilityIUCN, Gland, Switzerland, 2016, at p.ix.

Moore, P., et al, Natural Resource Governance Trainers’ Manual, (IUCN, RECOFTC, SNV, Bangkok, Thailand, 2011), p. 119.

Muigua, K., Kariuki, F., Wamukoya, D., Natural Resources and Environmental Justice in Kenya, Glenwood Publishers, Nairobi, 2015.

Muigua, K., Kariuki, F., Wamukoya, D., Natural Resources and Environmental Justice in Kenya, Glenwood Publishers, Nairobi, 2015.

Muigua, K., Kariuki, F., Wamukoya, D., Natural Resources and Environmental Justice in Kenya, Glenwood Publishers, Nairobi, 2015. 61 United Nations, The Sustainable Development Goals Report, 2018, p.15. Available at https://unstats.un.org/sdgs/files/report/2018/TheSustainableDevelopmentGoalsReport 2018- EN.pdf [Accessed on 17/5/2019].

Mwenda, A. & Kibutu, T.N., ‘Implications of the New Constitution on Environmental Management in Kenya,’ Law, Environment and Development Journal, Vol. 8, No. 1, 2012, p. 78.

Nafees, A., “The Role of Civil Society Institutions in Environmental Governance in India: Post-colonial Context and Human Rights Challenges in the Environmental Justice,” International Journal of Legal Studies and Research, Special Issue-June 2018, pp. 16-39, at p. 16.

Okidi. C.O., “Concept, Function and Structure of Environmental Law”, in C.O Okidi, P. Kameri -Mbote and Migai Aketch (eds.), Environmental Governance in Kenya; Implementing the Framework Law, (East African Educational Publishers, 2008), pp. 142–182: 146.

Peace Building Initiative, “Introduction: Justice, Rule of Law & Peacebuilding Processes, 2009” available at http://www.peacebuildinginitiative.org/indexe33f.html?pageId=1844 [Accessed on 17/5/2019].

Saboe, N.T., ‘Benefit Sharing Among Local Resource Users: The Role of Property Rights,’ World Development, Vol. 72, pp. 408–418, 2015, p. 408.

Samndong, R.A. & Nhantumbo, I., Natural resources governance in the Democratic Republic of Congo: Breaking sector walls for sustainable land use investments, (International Institute for Environment and Development Country Report, February 2015), p. 11. Available at http://pubs.iied.org/pdfs/13578IIED. pdf [Accessed on 17/5/2019].

Sigam, C. & Garcia, L., Extractive Industries: Optimizing Value Retention in Host Countries, (UNCTAD, 2012). Available at http://unctadxiii.org/en/SessionDocument/suc2012d1_en.pdf [Accessed on 12/08/2018].

Spring, Ú.O., “Peace and Environment: Towards a Sustainable Peace as Seen from the South.” In Globalization and Environmental Challenges, Springer, Berlin, Heidelberg, 2008, pp. 113-126.

Tsani, S., Natural resources, governance and institutional quality: The role of resource funds,’ Resources Policy, 38(2013), pp.181–195, p. 184.

Turkana County –United Nations Joint Programme 2015-2018, (Executive Office, Turkana County Government, Lodwar, Turkana UN Resident Coordinator Office, Nairobi, Kenya), p. 4. Available at https://info.undp.org/docs/pdc/Documents/KEN/ProDoc%20TurkanaUN%20Joint%20Programme%20final%205th%20%20March%202015- binder%20%282%29.pdf [Accessed on 17/5/2019].

UN General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1.

United Nations Conference on Environment & Development Rio de Janeiro, Brazil, 3 to 14 June 1992.

United Nations Development Programme, Local Governance In Fragile And ConflictAffected Settings: Building A Resilient Foundation For Peace And Development, A UNDP how-to guide, 2016.

United States Institute of Peace, Natural Resources, Conflict, and Conflict Resolution, A Study Guide Series on Peace and Conflict for Independent Learners and Classroom Instructors, 2007, p.8.

United States Institute of Peace, Natural Resources, Conflict, and Conflict Resolution, A Study Guide Series on Peace and Conflict for Independent Learners and Classroom Instructors, 2007, p.8. 48 Alstine, J.V., et al, Resource Governance Dynamics: The Challenge of ‘New Oil’ In Uganda, Resources Policy, Vol. 40, 2014, pp.48–58.

Wiebelt, M., et al, ‘Managing Future Oil Revenues in Uganda for Agricultural Development and Poverty Reduction: A CGE Analysis of Challenges and Options,’ (Kiel Working Paper No. 1696, May 2011). Available at https://www.ifw-members.ifw-kiel.de/publications/managing-future-oil-revenues-in-ugandafor-agricultural-development-and-poverty-reduction-a-cge-analysis-of-challenges-andoptions/kap-1696.pdf [Accessed on 17/5/2019].

News & Analysis

Book Review: Climate Finance, Carbon Markets and Environmental Justice in Africa

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By Prof. Kariuki Muigua SC, OGW, PhD, FCS, FCIArb, Ch.Arb, Managing Partner Kariuki Muigua & Co. Advocates, Member Permanent Court of Arbitration (PCA) and Member Asian International Arbitration Centre Court of Arbitration

Introduction

Climate Finance, Carbon Markets and Environmental Justice in Africa (March 2026) by Hon. Prof. Kariuki Muigua is a timely and comprehensive work examining the intersection of climate finance, carbon markets, and environmental justice on the African continent. The book’s central thesis—that climate responses must be designed and implemented in a manner that safeguards rights, promotes fairness, and ensures benefits are equitably distributed—provides a sophisticated framework for understanding how financial flows, market-based mechanisms, and regulatory frameworks intersect with law, policy, and community realities across Africa. Situated within the broader discourse on climate justice, this volume interrogates both opportunities and emerging risks associated with climate action in a continent that contributes minimally to global emissions yet bears disproportionate climate impacts.

Overview

The volume comprises twelve chapters organized into four thematic parts. Part I establishes foundations for fair and equitable climate finance. Chapter One examines climate finance through an environmental justice lens, arguing that access to timely, adequate, and equitable climate finance is vital for the Global South. The chapter analyses how prevailing financing structures may reinforce dependency and inequality, with climate finance often delivered through loans on unfavourable terms that contribute to Africa’s growing debt crisis. Prof. Muigua argues that avoiding debt traps, narrative injustice, and recolonization of the Global South requires developed countries to fulfil their climate finance commitments and enhance the voice of developing countries in global decision-making processes.

Chapter Two rethinks climate finance in Africa within the continent’s debt and development realities. The chapter observes that despite Africa’s extreme vulnerability to climate change, the continent receives only around two percent of total global climate finance. Furthermore, climate finance is linked to the debt crisis, with debt constituting nearly forty percent of climate finance flows to African countries already experiencing debt distress. Prof. Muigua calls for overhauling the international climate finance system to make it fairer, including through enhanced access to grants and concessional finance, elimination of bureaucratic hurdles, and implementation of the Loss and Damage Fund.

Chapter Three examines climate finance and equitable benefit sharing with particular focus on indigenous and local communities. These communities are disproportionately impacted by climate change due to their dependence upon and close relationship with the environment, yet they are often sidelined in climate finance decision-making processes. Prof. Muigua argues that fully and effectively engaging indigenous peoples and local communities in the design, development, and implementation of climate finance activities is essential for upholding their rights, respecting their cultural needs, and addressing their unique vulnerabilities.

Chapter Four explores unlocking climate finance for sustainable development in Africa, examining structural and institutional pathways for mobilising finance. The chapter highlights the need for innovative financial tools including green bonds and debt-for-nature swaps, strengthening governance frameworks, and implementing global commitments including the Loss and Damage Fund and Kunming-Montreal Global Biodiversity Framework.

Part II addresses carbon markets, projects, and justice. Chapter Five examines carbon projects through the lens of justice and equity, focusing on access to information, Free, Prior and Informed Consent (FPIC), and equitable benefit sharing. The chapter argues that while carbon projects can strengthen climate action and provide co-benefits including job creation and ecosystem restoration, poorly designed projects can cause human rights violations and environmental damage. Ensuring good governance in carbon projects is imperative for fostering climate justice.

Chapter Six analyses participation and governance in carbon projects, exploring how environmental democracy—comprising access to information, public participation, and access to justice—can be integrated into carbon project governance. The chapter observes that carbon projects can undermine environmental democracy when investors fail to obtain FPIC, when transparency and accountability concerns arise, and when disputes over land rights emerge. Fostering environmental democracy requires enhanced access to information, meaningful public participation, access to justice through both litigation and Alternative Dispute Resolution, and equitable benefit sharing.

Chapter Seven develops a conceptual framework for carbon justice in Africa, examining principles of fairness, rights, and sustainability in carbon governance. The chapter identifies carbon injustices including transparency challenges, inequitable benefit sharing, and violation of indigenous land rights. Applying carbon justice tenets requires meaningful involvement of stakeholders, strengthening land tenure rights, ensuring transparency, fostering equitable benefit sharing, and ensuring access to justice.

Part III focuses on carbon disputes and enforcement. Chapter Eight introduces disputes arising in carbon markets, examining risks including greenwashing, information asymmetry, misleading conduct, insider trading, and price manipulation. The chapter analyses available dispute management mechanisms including arbitration, litigation, and conciliation, arguing that arbitration offers particular advantages including party autonomy, flexibility, expertise, transnational applicability, and enforceability of awards.

Chapter Nine examines dealing with carbon disputes for green growth and sustainability. The chapter argues that carbon disputes—whether arising from carbon accounting challenges, pricing fluctuations, or land disputes between investors and indigenous communities—can undermine the effective functioning of carbon markets. Managing carbon disputes through both litigation and ADR processes is essential for ensuring carbon markets contribute to green growth and sustainable development.

Chapter Ten focuses on arbitrating carbon disputes, examining arbitration’s role in managing disputes arising from carbon markets. The chapter argues that arbitration is a viable mechanism due to its ability to accommodate specialized expertise, ensure neutrality in cross-border disputes, maintain confidentiality for commercially sensitive information, and provide enforceability through the New York Convention. Addressing challenges including transparency concerns and costs requires building capacity and awareness among arbitration practitioners and adopting specialized rules tailored to carbon markets.

Part IV addresses decarbonization and future directions. Chapter Eleven examines policy pathways for achieving green growth and carbon neutrality in Africa, analysing sustainability strategies and their implications for development. The chapter argues that green growth—growth that is environmentally sustainable, low-carbon, and socially inclusive—and carbon neutrality—balancing carbon emissions with carbon removal—provide efficient pathways toward sustainable development. Achieving these goals requires considerable investment in renewable energy, low-emission transport, energy-efficient building, sustainable agriculture, and forest management.

Chapter Twelve examines decarbonizing energy for climate action and justice, evaluating how decarbonization pathways can support inclusive and sustainable development. The chapter argues that while energy is a vital resource enabling human progress, the energy sector is the dominant contributor to climate change, accounting for nearly two-thirds of global greenhouse gas emissions. Decarbonizing energy through shifting from fossil fuels to renewable sources including wind, solar, and geothermal, coupled with improving energy efficiency across all sectors, is fundamental for climate action and social justice.

Key Themes

Climate Justice and Environmental Justice. The book advances climate justice as a key ideal for upholding equity, fairness, inclusivity, and human rights in climate action. Prof. Muigua argues that climate change is a major cause of injustices and inequalities, with people and communities who have contributed the least being affected the most. Climate justice acknowledges that climate change effects are not evenly felt and focuses on protecting the most vulnerable including the poor, women and girls, youth, indigenous peoples, and local communities. Environmental justice encompasses the right to access natural resources, not to suffer disproportionately from environmental policies, and to have environmental information and participation in decision-making processes.

Fair and Equitable Climate Finance. The book critically examines the climate finance landscape, arguing that access to adequate and timely climate finance is a matter of justice for the Global South. Prof. Muigua demonstrates how current financing structures may reinforce dependency and inequality, with climate finance often delivered on unfavourable terms that contribute to debt crises. The principle of common but differentiated responsibility requires developed countries to provide financial resources to assist developing countries responding to climate change. Reforming the international financial system to make climate finance more affordable and adequate for developing countries is essential for environmental justice.

Carbon Markets and Environmental Democracy. The book explores how carbon markets can strengthen climate action while also raising critical concerns relating to environmental democracy. Prof. Muigua argues that carbon projects can undermine democracy when investors fail to obtain FPIC, when transparency and accountability concerns arise, and when disputes over land rights emerge. Fostering environmental democracy in carbon projects requires enhanced access to information, meaningful public participation, access to justice, and equitable benefit sharing. The three mutually reinforcing rights of environmental democracy—access to information, participation in decision-making, and access to justice—provide a framework for ensuring carbon projects serve people and planet.

Free, Prior and Informed Consent and Equitable Benefit Sharing. The book places FPIC and equitable benefit sharing at the centre of just carbon governance. FPIC is a fundamental right of self-determination ensuring participation by all people with particular focus on indigenous peoples and local communities in development projects. It allows communities to give or withhold consent to projects affecting their territories and to withdraw consent at any stage. Equitable benefit sharing ensures both monetary and non-monetary benefits from carbon projects are enjoyed by all stakeholders including indigenous peoples, landowners, and local communities who contribute significantly to project success.

Dispute Management in Carbon Markets. The book provides comprehensive analysis of disputes arising in carbon markets and mechanisms for their management. Prof. Muigua identifies causes including lack of clarity in carbon accounting, greenwashing claims, pricing fluctuations, and land disputes between investors and indigenous communities. Arbitration emerges as a preferred mechanism due to party autonomy, flexibility, expertise, neutrality, transnational applicability, and enforceability of awards. However, the book also recognises the importance of negotiation, mediation, and conciliation for preserving relationships and ensuring the long-term viability of carbon projects.

Conclusion

Climate Finance, Carbon Markets and Environmental Justice in Africa is a seminal work elevating discourse on climate action from African perspectives. Prof. Muigua demonstrates that confronting climate change requires not only technical solutions but also fundamental attention to justice, equity, and human rights. The book argues that climate finance must be restructured to avoid debt traps and recolonization, carbon markets must be governed through environmental democracy principles including FPIC and equitable benefit sharing, and disputes must be managed through effective mechanisms that preserve relationships and ensure accountability. This volume is essential reading for legal practitioners, policymakers, scholars, development practitioners, and all committed to advancing climate justice and sustainable development in Africa.

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News & Analysis

Book Review: Securing Our Destiny through Effective Management of the Environment

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By Prof. Kariuki Muigua SC, OGW, PhD, FCS, FCIArb, Ch.Arb, Managing Partner Kariuki Muigua & Co. Advocates, Member Permanent Court of Arbitration (PCA) and Member Asian International Arbitration Centre Court of Arbitration

Introduction

Securing Our Destiny through Effective Management of the Environment (Second Edition, 2026) by Hon. Prof. Kariuki Muigua is a comprehensive work examining the role of law, governance, and institutions in promoting sustainable environmental management in Kenya and Africa. The book’s central thesis—that effective environmental governance requires integrated approaches combining legal frameworks, participatory processes, indigenous knowledge systems, and accountability mechanisms—provides a sophisticated framework for addressing contemporary environmental challenges while advancing sustainable development.

Overview

The volume comprises fourteen chapters organized into four thematic parts. Part I establishes foundations of environmental governance and law, examining the role of law in environmental management, constitutional provisions on natural resources, corporate environmental responsibility, and environmental democracy. Prof. Muigua argues that law must strike a balance between anthropocentric and ecocentric approaches, serving not merely as a regulatory tool but as a means of achieving social justice. The analysis demonstrates how courts play a crucial role in safeguarding environmental rights through judicial activism, public interest litigation, and promoting sustainable development principles. The discussion of environmental democracy highlights three mutually reinforcing rights: access to information, public participation in decision-making, and access to justice in environmental matters.

Chapter Two explores effective environmental governance in Africa, arguing for incorporating dialogue, Ubuntu philosophy, and democracy into governance frameworks. Prof. Muigua observes that Africa’s environmental governance challenges—weak institutions, poor enforcement, inadequate investment, and exclusion of vulnerable groups—undermine sustainability. Ubuntu, as an African philosophy emphasising interconnectedness and communal responsibility, provides an Afrocentric approach requiring humans to use natural resources responsibly and non-exploitatively for the greater good of humanity. Dialogue fosters inclusive, participatory approaches essential for sound environmental governance.

Chapter Three examines implementing constitutional provisions on natural resources and environmental management in Kenya. The Constitution establishes state obligations including sustainable exploitation, utilisation, management and conservation of the environment, achieving ten percent forest cover, equitable benefit sharing, and establishing environmental impact assessment systems. Prof. Muigua identifies disconnects between constitutional promises and implementation, particularly regarding community participation, which remains largely top-down despite constitutional guarantees. Achieving sustainable and inclusive approaches requires empowering communities through information access, decentralised governance, and meaningful participation in decision-making.

Chapter Four analyses corporate environmental responsibility, examining legal frameworks holding corporations accountable for environmental harm. The Constitution and EMCA impose both civil and criminal liability on corporations and their officers for environmental breaches. Environmental management tools including Environmental Impact Assessment, Strategic Environmental Assessment, environmental audits, and public participation provide mechanisms for ensuring corporate compliance. The chapter examines the Natural Resources (Classes of Transaction Subject to Ratification by Parliament) Act 2016, which requires parliamentary ratification of natural resource exploitation agreements, promoting transparency and accountability.

Chapter Five addresses realising environmental democracy in Kenya, exploring how access to information, public participation, and access to justice can empower communities. Prof. Muigua examines practical mechanisms including demonstrations, picketing, petitions, media engagement, civil society activism, and proactive judicial roles in environmental justice.

Part II examines natural resource governance and sectoral environmental management. Chapter Six provides a comprehensive analysis of Kenya’s extractives industry regulatory framework, examining the Mining Act 2016, Petroleum Act 2019, and associated regulations. The chapter discusses the Extractive Industries Transparency Initiative and its potential to promote open and accountable management of oil, gas, and mineral resources, helping Kenya avoid the “resource curse” that has afflicted other resource-rich African nations.

Chapter Seven explores the blue economy, examining challenges and opportunities for harnessing Kenya’s marine and freshwater resources for sustainable development. Challenges include illegal fishing, piracy, maritime terrorism, illicit trade, environmental degradation, border disputes, and lack of capacity. Recommendations include entering mutually beneficial partnerships, curbing pollution, supporting communities to venture into seafood business, and adopting integrated approaches to coastal zone management.

Chapter Eight examines benefit sharing from natural resources exploitation, discussing legal frameworks including the Natural Resources (Benefit Sharing) Bill 2018, Mining Act 2016, and Petroleum Act 2019. Prof. Muigua draws lessons from Ghana’s mineral royalty distribution system and Nigeria’s resource curse experience, recommending foundations and trusts, enhanced local accountability, capacity building, access to environmental information, devolution, public participation, and addressing corruption.

Chapter Nine examines carbon projects and climate justice, arguing that while carbon projects can promote climate justice by strengthening climate action and protecting ecosystems, poorly implemented projects can cause human rights violations and environmental damage. Ensuring access to information, Free, Prior and Informed Consent (FPIC), and equitable benefit-sharing is essential for designing and implementing carbon projects sustainably.

Part III addresses integrated environmental management and accountability frameworks. Chapter Ten examines integrated approaches to environmental management, arguing for entrenching ecocentric approaches alongside anthropocentric perspectives. The chapter highlights the neglected link of safeguarding pollinators for sustainable development, discussing threats including habitat loss, pesticide use, and climate change, and recommending integrated pest management, environmental education, scientific research, and traditional knowledge integration.

Chapter Eleven examines strengthening environmental liability regimes in Kenya, discussing civil and criminal liability, environmental impact assessment, strategic environmental assessment, environmental audits, and sustainable development principles. Recommendations include encouraging proactive corporate compliance, cultivating environmental ethics through due diligence, and promoting environmental insurance.

Part IV explores indigenous knowledge, environmental justice, and peace building. Chapter Twelve examines mainstreaming traditional ecological knowledge in Kenya, arguing that indigenous knowledge systems offer valuable insights into sustainable resource stewardship. International and national legal frameworks recognise traditional knowledge, but implementation remains weak. Mainstreaming requires integrating indigenous knowledge with scientific approaches, ensuring meaningful community participation, and strengthening local democracy.

Chapter Thirteen examines the nexus between environmental governance and peace building, arguing that effective environmental management contributes to lasting peace by addressing resource scarcity, preventing conflicts over natural resources, and promoting equitable benefit sharing. SDG 16 recognises that sustainable development cannot be achieved without peace, and peace cannot be sustained without sustainable development. Recommendations include using alternative dispute resolution mechanisms, adopting inclusive and participatory approaches, and promoting education for sustainable livelihoods.

Key Themes

Integrated Environmental Governance. The book emphasises that effective environmental management requires integrated approaches combining legal frameworks, participatory processes, indigenous knowledge, and accountability mechanisms.

Environmental Democracy and Procedural Rights. Access to information, public participation, and access to justice are essential for empowering communities and ensuring environmental justice.

Corporate Environmental Responsibility. Corporations bear both civil and criminal liability for environmental harm, requiring proactive compliance, due diligence, and adherence to sustainable development principles.

Indigenous Knowledge Systems. Traditional ecological knowledge and African philosophies like Ubuntu provide valuable insights for sustainable environmental governance.

Environmental Justice and Peace Building. Effective environmental management contributes to peace by addressing resource conflicts, ensuring equitable benefit sharing, and protecting vulnerable communities.

Conclusion

Securing Our Destiny through Effective Management of the Environment is a seminal work that elevates discourse on environmental governance from Kenyan and African perspectives while engaging seriously with international frameworks. Prof. Muigua demonstrates that securing our environmental destiny requires integrated approaches balancing environmental, social and economic interests through effective legal frameworks, participatory processes, indigenous knowledge systems, and accountability mechanisms. This volume is essential reading for legal practitioners, policymakers, scholars, and all committed to advancing environmental governance and sustainable development in Kenya and beyond.

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Book Review: Resolving Conflicts Through Mediation in Kenya: Law and Practice (Third Edition)

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By Prof. Kariuki Muigua SC, OGW, PhD, FCS, FCIArb, Ch.Arb, Managing Partner Kariuki Muigua & Co. Advocates, Member Permanent Court of Arbitration (PCA) and Member Asian International Arbitration Centre Court of Arbitration

Introduction

The third edition of Prof. Kariuki Muigua’s comprehensive work arrives at a pivotal moment in Kenya’s justice sector evolution. Since the second edition in 2017, court-annexed mediation has expanded beyond Nairobi to stations nationwide, constitutional recognition under Article 159 has gained deeper traction, and questions about balancing institutionalisation with accessibility have gained urgency. Prof. Muigua, recipient of multiple awards including ADR Practitioner of the Year (2021) and Lifetime Achievement from CIArb-Kenya, brings decades of practice as mediator, arbitrator and scholar to this updated edition, which incorporates new discussions on access to justice, family mediation, professional ethics, and alternative justice systems.

Structure and Scope

The sixteen chapters are organised into four thematic parts. Part I (Chapters 1-4) establishes conceptual foundations. Chapter One introduces mediation’s attributes—voluntariness, party autonomy, confidentiality, flexibility, informality, cost-effectiveness—distinguishing mediation in the political process (leading to resolution) from mediation in the legal process (leading only to settlement). The survey of other ADR mechanisms provides essential context. Chapter Two examines traditional conflict resolution mechanisms among African societies, documenting principles of common humanity (Ubuntu/Utu), reciprocity and respect, and institutions including the family, clan, council of elders, age-set systems, and mechanisms such as kinship ties, joking relations, consensus approaches, and the role of elders. The chapter argues that realising access to justice requires enhanced application of traditional forms, which remain part of Kenyan society and hence their constitutionalisation.

Chapter Three examines mediation’s attributes in depth, providing a comparative table demonstrating that political process mediation has fifteen positive attributes while legal process mediation has only five, explaining why the former leads to enduring outcomes addressing root causes while the latter produces only superficial settlements. Chapter Four distinguishes conflicts (non-negotiable needs and values) from disputes (negotiable interests), arguing conflicts require resolution through non-coercive mechanisms like mediation while disputes can be settled through coercive mechanisms like litigation.

Part II (Chapters 5-9) examines practical dynamics. Chapter Five explores mediation as “assisted negotiation” where a mediator with no decision-making authority facilitates communication. Chapter Six analyses settlement (power-based, temporal, addressing only surface issues) versus resolution (addressing root causes, producing enduring outcomes). Chapter Seven examines the three-phase mediation process: pre-negotiation, negotiation (active listening, reframing, caucusing), and post-negotiation implementation. Chapter Eight examines the mediation paradigm—parties, constituents, third parties, and societal factors. Chapter Nine examines psychological issues, arguing all disputes involve injury to feelings and mediators must address emotional needs through empathy and creative problem-solving.

Part III (Chapters 10-11) examines legal frameworks. Chapter Ten traces mediation’s evolution from the 2009 amendments through the Constitution to court-annexed mediation, providing detailed analysis of the pilot project’s statistics (421 referrals, 61 settlements, 28.5% settlement rate, 66 days average duration) and external evaluation recommendations. The chapter critiques court-annexed mediation as potentially sacrificing core attributes—voluntariness, informality, party autonomy—at the altar of legalism. Chapter Eleven examines mediation and access to justice, analysing environmental conflicts (involving actors, resources and stakes) and family mediation, noting that while the Marriage Act 2014 contemplates reconciliation, there are no clear guidelines for divorce, custody, or property division mediation.

Part IV (Chapters 12-16) examines contemporary developments. Chapter Twelve examines entrenching family mediation, arguing it empowers parties to negotiate mutually agreed decisions, reduces post-divorce conflict, and promotes children’s best interests. It examines standards of practice, power imbalances, and cross-disciplinary training. Chapter Thirteen examines mediation and alternative justice systems, analysing their efficacy (rooted in culture, accessible, affordable, focused on reconciliation) and challenges (patriarchal values, procedural fairness concerns). It examines the Alternative Justice Systems Framework Policy’s interventions for mainstreaming AJS while addressing human rights concerns.

Chapter Fourteen provides comprehensive analysis of ethics: impartiality, independence, competence, confidentiality, disclosure of conflicts, quality of process, costs and fees, and termination. It examines professional standards from UNCITRAL, Singapore Convention, ICC, CIArb, NCIA, and Kigali International Arbitration Centre, identifying ethical dilemmas and proposing enhanced training and institutional enforcement. Chapter Fifteen reflects on mediation’s future, examining opportunities in access to justice, environmental democracy, and sustainable development. Recommendations include facilitative frameworks bridging traditional and formal mechanisms, embedding mediation in devolved administration, multi-door courtrooms, mediator training, codes of conduct, institutionalising women’s role, and appropriate accreditation committee composition. Chapter Sixteen concludes that mediation’s future success depends on maintaining balance between institutionalisation and accessibility while preserving core attributes.

Critical Assessment

Strengths. The book’s comprehensive scope is its greatest strength. Sixteen chapters trace mediation from foundations through practice to contemporary developments, integrating traditional mechanisms, legal frameworks, psychological dimensions, ethics, and future trajectories. This breadth, combined with depth drawing on Kenyan case law, statutory provisions, institutional rules, comparative experience, and empirical research, makes the volume indispensable.

The integration of traditional conflict resolution mechanisms is particularly valuable. Rather than treating mediation as imported Western innovation, Prof. Muigua grounds analysis in Kenya’s traditions of community-based resolution, documenting institutions and mechanisms that provide essential foundation for understanding mediation’s cultural resonance and constitutional recognition under Article 159.

The analysis of court-annexed mediation is both thorough and critical, documenting pilot project implementation and evaluation while questioning whether institutionalisation preserves mediation’s core attributes. The consistent distinction between political process mediation (leading to resolution) and legal process mediation (leading only to settlement) provides a framework for evaluating institutionalisation efforts.

The treatment of psychological issues adds distinctive depth, examining how mediators must address emotional needs through empathy and creative problem-solving. The ethics chapter provides comprehensive guidance on fundamental responsibilities and professional standards, identifying dilemmas and proposing practical responses.

Limitations. The collection format has produced repetition of foundational concepts across chapters. While thorough, some topics might benefit from deeper empirical engagement with comparative data. The length may challenge readers seeking concise introduction.

Contribution to Scholarship and Practice

The book provides comprehensive documentation of Kenyan mediation law and practice, invaluable for practitioners and scholars. It advances understanding of mediation’s constitutional foundations under Article 159, examining how constitutional imperatives shape mediation’s role. It offers sophisticated analysis of traditional conflict resolution mechanisms, arguing mediation in Africa is not imported innovation but continuation of longstanding cultural traditions. It provides practical guidance for practitioners while maintaining scholarly rigour. It contributes to policy development by analysing court-annexed mediation implementation and proposing reforms. It advances understanding of emerging areas—family mediation, AJS, ethics—reshaping Kenyan practice.

Conclusion

Prof. Muigua’s Resolving Conflicts Through Mediation in Kenya (Third Edition) is a monumental contribution to mediation scholarship and practice. Its central thesis—that mediation’s strength lies in transforming conflict into dialogue, and its future depends on balancing institutionalisation with accessibility while preserving core attributes—is timely and persuasive. For practitioners, scholars, policymakers and students, this book is essential reading, ensuring Prof. Muigua’s authoritative work remains at the forefront of mediation scholarship, responsive to emerging developments while grounded in enduring principles and Kenya’s rich traditions of community-based conflict resolution.

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