News & Analysis

Way Forward in Effectively Combating Environmental Degradation

Published

10 months ago

March 20, 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 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)*

One of the key approaches towards combating environmental degradation is the restoration and rehabilitation of damaged or degraded ecosystems. These are practices aimed at returning ecosystems to a healthy state as was before such ecosystems were degraded. Restoration has been defined as a process of improvement of degraded land and ecosystems on a large scale that rebuilds ecological integrity and enhances people’s lives. It aims to recover the ecological functionality and enhance human well-being in deforested and degraded landscapes and ecosystems.

Rehabilitation on the other hand seeks to reverse ill effects on the environment and natural resources as a result of illeffects such as loss of biodiversity, land capability loss, landscape destabilization, nutrient impoverishment, overgrazing, and soil organic carbon loss among others. These processes are essential in the recovery of ecosystems that have been degraded or destroyed, as well as conserving the ecosystems that are still intact.

It has been noted that healthier ecosystems, with richer biodiversity, yield greater benefits such as more fertile soils, bigger yields of timber and fish, and larger stores of greenhouse gases. It is therefore necessary to restore and rehabilitate degraded ecosystems in order ensure a healthier, cleaner, and safer, and sustainable environment. This can be achieved through approaches such as restoring forest landscapes through reforestation, agroforestry, embracing regenerative agricultural practices, improved protection and management of landscapes and ecosystems, eliminating invasive species in order to curtail their impact on ecosystems, and planting endangered vegetation.

In addition, it is imperative to transform food systems to become more sustainable and resilient in order to reverse environmental degradation, restore ecosystems and ensure food and nutritional security. It has been noted that agriculture has altered the face of the planet more than any other human activity. For example, the use of pesticides and fertilizers has resulted in serious air and water pollution.

It has been argued that current food systems have been following the “cheaper food paradigm”, with a goal of producing more food at lower costs through increasing inputs such as fertilizers, pesticides, energy, land and water. This approach leads to a vicious circle: the lower cost of food production creates a bigger demand for food that must also be produced at a lower cost through more intensification and further land clearance. This has resulted in environmental degradation due to over cultivation, deforestation in order to acquire more land for farming, loss of biodiversity and the threat of climate change with the global food system estimated to account for nearly thirty per cent of total human produced emissions.

Therefore, it is necessary to change global food systems through measures such as changing global dietary patterns, protecting and setting aside land for nature, and farming in a more nature-friendly and biodiversity-supporting way in order to combat environmental degradation arising from agricultural practices. It is also necessary to combat land degradation and desertification. The phenomenon of desertification has been identified as one of greatest environmental challenges of our time.

It has been noted that desertification is not necessarily the natural expansion of existing deserts but rather the degradation of land over time due to practices such as over- cultivation, overgrazing, deforestation and poor irrigation techniques. Further, it has been observed that although desertification is primarily man-made, it is exacerbated by the extreme weather, such as droughts as a result of climate change.

Desertification is a major problem that results in environmental degradation through loss of biodiversity, loss of productive land resulting in poverty and hunger, and climate change. It is therefore vital to address the problem of desertification. This calls for rehabilitation of land to restore soil fertility, embracing sustainable water management practices, curbing land degradation through tree-planting efforts, and restoring degraded land. In addition, it has been observed that there is need to halt and reverse biodiversity loss.

The loss of biodiversity has been identified as among the triple planetary crisis alongside pollution and climate change. It has been noted that biodiversity is the baseline for everything on the planet and its loss impacts food supplies and access to clean water therefore impacting the survival of both humanity and nature1. According to UNEP, species are now disappearing hundreds, or even thousands, of times faster than the natural background rate of extinction.

The loss of biodiversity impacts food security, availability of medicines, fresh air and water, shelter, and a clean and healthy environment in which to live. It is therefore critical to halt and reverse the loss of biodiversity. There is an urgent need for all countries to place biodiversity at the heart of the environment and development decisionmaking to enable enlightened choices for people and the planet. There is also need to tackle pollution. This problem results in environmental degradation by straining ecosystems and reducing or even eliminating populations of sensitive species.

Further, it has been noted that contamination as a result of pollution may reverberate along the food chain causing mass environmental destruction. For example, the use herbicides and pesticides in agricultural land may result in these chemicals being absorbed into rivers that flow through protected areas, causing poisoning of wildlife and fish. It has been noted that air pollution is already the most significant environmental health risk and a major cause of death and disability, and its future impact is likely to be even worse without adequate measures.

It is estimated that outdoor air pollution may cause between 6 million and 9 million premature deaths a year worldwide by 2060, and cost 1 per cent of global Gross Domestic Product (GDP) as a result of sick days, medical bills and reduced agricultural output. Pollution is therefore a major cause of environmental degradation which affects food security and safety, air and water quality, and the health of humanity and nature.

Addressing pollution is therefore not only an environmental priority, but also a prerequisite for the achievement of the SDGs. It is therefore necessary to tackle pollution through approaches such as effective waste management, enforcement of laws and policies on pollution, public empowerment and participation, and embracing incentive-based approaches. Tackling pollution is an important approach in combating environmental degradation.

Finally, there is an urgent need to combat climate change which is the most pressing issue facing humanity today. The impacts of climate change are already being manifested all over the world through increased intensity and severity of droughts, water scarcity, wildfires, rising sea levels, flooding, melting polar ice, catastrophic storms and declining biodiversity. It has been noted that climate change is likely to exacerbate gradual processes of environmental degradation and the frequency and intensity of natural disasters, both slow-onset (such as desertification, drought, coastal erosion) and sudden onset (including tropical storms, flash floods).

Further, it has been correctly asserted that climate change and environmental degradation each occur in parallel, as well as the relationship between them becoming a vicious cycle, with climate change inducing environmental degradation and biodiversity loss, which then further exacerbates climate change. It is therefore necessary to tackle climate change in order to combat environmental degradation. Combating environmental degradation plays a key role in tackling climate change. SDG 13 urges all countries to take urgent action to combat climate change and its impacts. It is therefore necessary for all countries to embrace and strengthen climate change mitigation and adaptation actions in order to combat environmental degradation.

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

References

Africa Union., ‘Agenda 2063: The Africa we Want’ Available at https://au.int/sites/default/files/documents/33126-docframework_document_book.pdf (Accessed on 08/03/2024).

African Union., African Convention on the Conservation of Nature and Natural Resources., Available at https://au.int/sites/default/files/treaties/41550- treatyCharter_ConservationNature_NaturalResources .pdf (Accessed on 08/03/2024).

Constitution of Kenya., 2010., Government Printer, Nairobi.

Earth. Org., ‘Desertification: Causes, Effects, And Solutions’ Available at https://earth.org/what-is-desertification/ (Accessed on 08/03/2024).

Environmental (Impact Assessment and Audit) Regulations, Legal Notice No. 101, Government Printer, Nairobi.

Environmental Degradation., Available at https://www.eionet.europa.eu/gemet/en/concept/15154 (Accessed on 07/03/2024)

Environmental Management and Co-Ordination (Waste Management) Regulations 2006, Legal Notice No. 121.

Environmental Management and Co-Ordination (Water Quality) Regulations, 2006, Legal Notice No. 120, Government Printer, Nairobi.

Environmental Management and Co-Ordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations, 2009, Legal Notice No. 19, Government Printer, Nairobi.

Environmental Management and Co-ordination Act, No. 8 of 1999, Government Printer, Nairobi.

Food and Agriculture Organization., ‘Agriculture and the Environment: Changing Pressures, Solutions and Trade-Offs’ Available at https://www.fao.org/3/y4252e/y4252e14.htm (Accessed on 08/03/2024).

Food and Agriculture Organization., ‘The Key Role of Forest and Landscape Restoration in Climate Action.’ Available at https://www.fao.org/documents/card/en/c/cc2510en (Accessed on 08/03/2024).

International Organization for Migration., ‘Climate Change, Environmental Degradation, and Migration’ Available at https://www.iom.int/sites/g/files/tmzbdl486/files/jahia/webdav/shared/shared /mainsite/ microsites/IDM/workshops/climate-change2011/background_paper.pdf (Accessed on 08/03/2024).

Lee. W. H., Husaini. D. H., & Lean. H. H., ‘The Renewable Energy-WaterEnvironment Nexus’ Fundamentals, Technology, and Policy (2024) pp 177-203.

Maurya. P. K et al., ‘An Introduction to Environmental Degradation: Causes, Consequence and Mitigation’ Available at https://www.aesacademy.org/books/edcrs-vol-1/01.pdf (Accessed on 07/03/2024)

Mentis. M., ‘Environmental Rehabilitation of Damaged Land’ Forest Ecosystems., Volume 7, No. 19 (2020).

Mentis. M., ‘Environmental Rehabilitation of Damaged Land’ Op Cit 81 United Nations Environment Programme., ‘Decade on Ecosystem Restoration’ Available at https://www.unep.org/explore-topics/ecosystems-andbiodiversity/what-we-do/decade-ecosystem-restoration (Accessed on 08/03/2024).

Muigua. K., ‘Reconceptualising the Right to Clean and Healthy Environment in Kenya’ Available at https://kmco.co.ke/wp-content/uploads/2018/08/RIGHT-TOCLEAN-AND-HEALTHY-ENVIRONMENT-IN-KENYA.docx-7th-september2015.pdf (Accessed on 08/03/2024).

Muigua. K., ‘Safeguarding the Environment through Effective Pollution Control in Kenya’ Available at https://kmco.co.ke/wpcontent/uploads/2020/09/Safeguarding-the-Environment-through-Effective Pollution-Control-in-Kenya-Kariuki-Muigua-28th-SEPT-2019.pdf (Accessed on 08/03/2024).

Organisation for Economic Co-operation and Development., ‘Air Pollution and Environmental Degradation’ Available at https://www.oecdilibrary.org/sites/ede592e3-en/index.html?itemId=/content/ component/ede592e3- en (Accessed on 08/03/2024).

United Nations Climate Change., ‘What is the Triple Planetary Crisis?’ Available at https://unfccc.int/news/what-is-the-triple-planetary-crisis (Accessed on 07/03/2024).

United Nations Convention to Combat Desertification., Available at https://catalogue.unccd.int/936_UNCCD_Convention_ENG.pdf (Accessed on 08/03/2024).

United Nations Development Programme., ‘Climate Change, Environmental Degradation, Conflict, and Displacement in the Arab States Region’ Available at https://www.undp.org/sites/g/files/zskgke326/ files/202306/climate_environmen tal_security_rbas_policy_brief_may_2023.pdf (Accessed on 08/03/2024).

United Nations Economic and Social Commission for Western Asia., ‘Environmental Degradation’ Available at https://archive.unescwa.org/environmental-degradation (Accessed on 07/03/2024)

United Nations Environment Programme., ‘Beat Pollution’ Available at https://www.unep.org/beat pollution/ (Accessed on 08/03/2024).

United Nations Environment Programme., ‘Facts about the Nature Crisis’ Available at https://www.unep.org/facts-about-nature-crisis (Accessed on 08/03/2024).

United Nations Environment Programme., ‘From Chile to China: The Global Battle against Desertification’ Available at https://www.unep.org/news-andstories/story/chile-china-global-battle-againstdeserti fication#:~:text=For%20nearly%2050%20years%2C%20UNEP,take%20coordin ated%20action%20against %20desertification. (Accessed on 08/03/2024).

United Nations Environment Programme., ‘In Africa, Restoring Ecosystems is Central to Green Recovery’ Available at https://www.unep.org/news-andstories/story/africa-restoring-ecosystems-central-green-recovery(Accessed on 08/03/2024).

United Nations Environment Programme., ‘Land Degradation’ Available at https://www.unep.org/gef/focal-areas/landdegradation#:~:text=UNEP%20has%20been%20a%20world, best%20to%20restore%2 0degraded%20lands. (Accessed on 07/03/2024).

United Nations Environment Programme., ‘Our Global Food System is the Primary Driver of Biodiversity Loss’ Available at https://www.unep.org/news-andstories/press-release/our-global-food-system-primary-driver-biodiversity-loss (Accessed on 08/03/2024).

United Nations Environment Programme., ‘UNEP and Biodiversity’ Available at https://www.unep.org/ unep-and-biodiversity (Accessed on 08/03/2024).

United Nations General Assembly., ‘Transforming Our World: the 2030 Agenda for Sustainable Development.’ 21 October 2015, A/RES/70/1., Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustainabl e%20Development%20web.pdf (Accessed on 08/03/2024).

United Nations General Assembly., ‘Transforming Our World: the 2030 Agenda for Sustainable Development.’ 21 October 2015, A/RES/70/1. Sustainable Development Goal 13.

United Nations Office for Disaster Risk Reduction., ‘Environmental Degradation from Conflict’ Available at https://www.undrr.org/understanding-disasterrisk/terminology/hips/so0005 (Accessed on 07/03/2024).

United Nations., ‘Convention on Biological Diversity.’ Available at https://www.cbd.int/doc/legal/cbd-en.pdf, (Accessed on 08/03/2024).

United Nations., ‘The Sustainable Development Agenda’ Available at https://www.un.org/sustainabledevelopment/development-agenda/ (Accessed on 08/03/2024).

United Nations., ‘World Day to Combat Desertification and Drought, 17 June’ Available at https://www.un.org/en/observances/desertification-day (Accessed on 08/03/2024).

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News & Analysis

What is Carbon Markets?

Published

6 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

9 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

10 months ago

March 24, 2024

Kariuki Muigua & Company

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.

References

Bercovitch. J., ‘Conflict and Conflict Management in Organizations: A Framework for Analysis.’ Available at https://ocd.lcwu.edu.pk/cfiles/International%20Relations/EC/IR403/Conflict.ConflictManagementinOrga nizations.pdf (Accessed on 01/03/2024).

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

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

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

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

Diana. M., ‘From Conflict to Collaboration’ Available at https://www.pmi.org/learning/library/conflict-collaboration-beyond-projectsuccess-1899 (Accessed on 01/03/2024).

Food and Agriculture Organization., ‘Collaborative Conflict Management for Enhanced National Forest Programmes (NFPs)’ Available at https://www.fao.org/3/i2604e/i2604e00.pdf (Accessed on 01/03/2024).

International Organization for Peace Building., ‘Natural Resources and Conflict: A Path to Mediation.’ Available at https://www.interpeace.org/2015/11/naturalresources-and-conflict-a-path-to-mediation/ (Accessed on 01/03/2024).

Isenhart. M.W., & Spangle. M., ‘Summary of “Collaborative Approaches to Resolving Conflict” ‘ Available at https://www.beyondintractability.org/bksum/isenhart-collaborative (Accessed on 01/03/2024).

Kaushal. R., & Kwantes. C., ‘The Role of Culture and Personality in Choice of Conflict Management Strategy.’ International Journal of Intercultural Relations 30 (2006) 579– 603.

Leeds. C.A., ‘Managing Conflicts across Cultures: Challenges to Practitioners.’ International Journal of Peace Studies, Volume 2, No. 2, 1997.

May. E., ‘Collaborating Conflict Style Explained In 4 Minutes’ Available at https://www.niagara institute.com/blog/collaborating-conflict-style/ (Accessed on 01/03/2024).

Miroslavov. M., ‘Mastering the Collaborating Conflict Style In 2024’ Available at https://www.officernd.com/blog/collaborating-conflictstyle/#:~:text=It’s%20one%20of%20the%20strat egies,their%20underlying%20needs %20and%20interests. (Accessed on 01/03/2024).

Muigua. K & Kariuki. F., ‘ADR, Access to Justice and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/ADR-access-tojustice-and-development-inKenyaRevised-version-of-20.10.14.pdf (Accessed on 01/03/2024).

Muigua. K., ‘Alternative Dispute Resolution and Access to Justice in Kenya.’ Glenwood Publishers Limited, 2015.

Muigua. K., ‘Reframing Conflict Management in the East African Community: Moving from Alternative to ‘Appropriate’ Dispute Resolution.’ Available at https://kmco.co.ke/wpcontent/uploads/2023/06/ Reframing-ConflictManagement-in-the-East-African-CommunityMoving-from-Alternative-toAppropriate-Dispute-Resolution (Accessed on 01/03/2024).

Muigua. K., ‘Resolving Conflicts through Mediation in Kenya.’ Glenwood Publishers Limited, 2nd Edition., 2017.

Quain. S., ‘The Advantages & Disadvantages of Collaborating Conflict Management’ Available at https://smallbusiness.chron.com/advantagesdisadvantages-collaborating-conflict-management-36052.html (Accessed on 01/03/2024).

Samuel. A., ‘Is the Collaborative Style of Conflict Management the Best Approach?’ Available at https://www.linkedin.com/pulse/collaborative-style-conflictmanagement-best-approach-samuel-ansah (Accessed on 01/03/2024).

United Nations., ‘Land and Conflict’ Available at https://www.un.org/en/landnatural-resources-conflict/pdfs/GN_ExeS_Land%20and%20Conflict.pdf (Accessed on 01/03/2024).

Weiss. J., & Hughes. J., ‘Want Collaboration?: Accept—and Actively Manage— Conflict’ Available at https://hbr.org/2005/03/want-collaboration-accept-andactively-manage-conflict (Accessed on 01/03/2024).

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