News & Analysis

Access to Justice and Achieving Right to Clean and Healthy Environment and Sustainable Development in Kenya

Published

8 months ago

March 21, 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)*

Access to justice is a fundamental pillar achieving the right to clean, safe and healthy environment and Sustainable Development, and the Constitution of Kenya makes it the responsibility of the government to facilitate access to justice for its citizens. It has been argued that enhancing access to justice in Kenya can ensure strong legal frameworks and effective institutions, coupled with greater levels of legal empowerment for the poor and marginalized, which ensures right to clean, safe and healthy environment and the Sustainable Development objectives are achieved.

Access to justice is at the core of the Sustainable Development paradigm, driving efforts to correct artificial and harmful imbalances in economic growth, to remedy the miseries of lives lived in extreme poverty, and to ensure that natural resources and habitats are preserved for present and future generations. Enhancing access to justice in Kenya can foster the realization of all three dimensions of Sustainable Development being economic growth, social progress and environmental protection.

Access to justice ensures effective legislative frameworks and enhanced institutional capacity to adjudicate commercial disputes which is vital in helping to level the playing field for economic actors, and promote the growth of entrepreneurship, small and medium sized enterprises, and innovation therefore promoting economic growth. In addition, access to justice can foster social progress by ensuring the presence of transparent and participatory dispute resolution mechanisms that allow individuals and groups to claim their rights to equal opportunity, education, health, land and other economic and social rights towards combating poverty and marginalization. Further, access to justice ensures environmental protection through initiatives such as public participation and access to information in environmental and sustainability decision-making and legal redress in case of breach of environmental rights.

The Constitution of Kenya sets out constitutional safeguards that are important in realizing the right of access to justice in Kenya. In addition to article 48 which sets out the right of access to justice in Kenya, the Constitution provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. The Constitution also embraces the right of equality and freedom from discrimination which is vital in realizing access to justice and provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.

In addition, the Constitution of Kenya envisages access to justice in environmental matters and stipulates that if a person alleges that a right to a clean and healthy environment recognised and protected under article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter. Another fundamental provision of the Constitution geared towards enhancing access to justice is chapter ten which sets out judicial authority.

Article 159 sets out several principles that are supposed to guide the administration of justice in Kenya. These principles are to the effect that justice shall be done to all, irrespective of status; justice shall not be delayed; alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted; justice shall be administered without undue regard to procedural technicalities; and that the purpose and principles of the Constitution shall be protected and promoted.

There have been efforts towards enhancing access to Kenya as envisaged by the foregoing provisions of the Constitution towards fostering Sustainable Development. The Judiciary notes that access to justice is vital for Sustainable Development since it is essential in realizing the Social Transformation through Access to Justice (STAJ) vision particularly for the poor, marginalized, and vulnerable.

According to the Judiciary, several initiatives have been undertaken towards promoting access to justice in Kenya for Sustainable Development. These include improving physical access through construction of more court infrastructure, operationalizing mobile courts in remote areas to enhance access to justice for the marginalized and vulnerable groups, embracing court circuits aimed at deploying judges and judicial officers to specific court stations with high caseloads in order to accelerate the determination of disputes, administration of pro-bono schemes, simplification of court procedures, embracing electronic filing (e-filing) of court documents, and the establishment of specialized courts including tribunals and small claims courts.

In addition, enhancing access to justice for Sustainable Development in Kenya is being realized through Alternative Justice Systems(AJS). Alternative Justice Systems refer to the administration of justice by the people using their culture, customary law, practices and beliefs to resolve disputes. They are a form of restorative justice that aims to ensure social inclusion, and are generally more affordable, participatory and more expeditious than court processes. They have been described as a useful avenue of responding to the challenge of backlog of court cases.

The idea of Alternative Justice Systems embraces Alternative Dispute Resolution (ADR) mechanisms in the quest towards access to justice. ADR denotes a wide range of dispute management techniques that function outside but may be linked to formal court processes. ADR has also been defined as a set of processes that are used to manage conflicts without resort to courts. The term ADR encompasses many dispute resolution techniques including negotiation, mediation, arbitration, conciliation, adjudication, early neutral evaluation, expert determination, minitrials, traditional justice systems among others.

ADR mechanisms play a fundamental role in enhancing access to justice for Sustainable Development. These mechanisms are rooted in the culture and values of Kenyan people and emphasize harmony, humanness and togetherness over individual interests therefore creating a conducive environment for economic, social, cultural and political development towards realizing the Sustainable Development agenda.

Promoting ADR mechanisms is therefore necessary in enhancing access to justice for Sustainable Development in Kenya. The Constitution of Kenya requires the Judiciary to promote ADR mechanisms including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The Judiciary notes that progress has been made towards embracing Alterative Justice Systems and ADR mechanisms in Kenya through measures such as the adoption of the Alternative Justice Systems Policy, capacity building on Alternative Justice Systems through training, and the continued implementation of the Court Annexed Mediation programme. There is need to widely embrace Alternative Justice Systems in Kenya in order to enhance access to justice for Sustainable Development in Kenya.

Further, progress has been made towards enhancing access to justice for Sustainable Development in Kenya by promoting Environmental Justice. Environmental Justice entails the right to have access to natural resources; not to suffer disproportionately from environmental policies, laws and regulations; and the right to environmental information, participation and involvement in decision-making. Environmental justice can be fostered through measures such as public participation, access to information and access to justice.

Courts and tribunals including the Environment and Land Court and the National Environment Tribunal are playing a pivotal role in enhancing access to justice in environmental matters for Sustainable Development in Kenya. It has rightly been pointed out that the Environment and Land Court and the National Environment Tribunal are key actors in the Sustainable Development discourse in terms of developing environmental jurisprudence geared towards environmental protection and conservation. These judicial entities have discharged this mandate through orders aimed at enhancing Sustainable Development and promoting environmental conservation in Kenya. In particular, it has been pointed out that the National Environment Tribunal (NET) facilitates both distributive and procedural justice by providing a framework through which the right to a clean and healthy environment can be enforced.

Through some of its decisions, the Tribunal has ensured that the state’s obligations in respect of the environment enshrined under the Constitution have been undertaken. The tribunal further promotes access to justice by providing an avenue through which persons who are aggrieved by some of the decisions of the National Environment Management Authority (NEMA) can seek recourse. NET and the Environment and Land Court therefore play an important role in enhancing access to justice in environmental matters for Sustainable Development. Despite the progress made towards enhancing access to justice for Sustainable Development in Kenya, realizing this ideal is hindered by several challenges.

The right of access to justice in Kenya has hitherto been hampered by many unfavourable factors such as high court filing fees, bureaucracy, complex legal procedures, illiteracy, distance from formal courts, backlog of cases in courts and lack of legal knowhow. In addition, it has been pointed out that access to justice in Kenya, especially by the marginalized, poor, uneducated and underprivileged in the society, is hindered by several factors including lack of infrastructure, high advocacy fees, illiteracy, lack of information, long distance to the courts and the long durations of time it takes to resolve disputes in courts. It is vital to address these concerns in order to enhance access to justice for Sustainable Development in Kenya.

*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

Ako. R., ‘Resource Exploitation and Environmental Justice: the Nigerian Experience,‘ in F.N. Botchway (ed), Natural Resource Investment and Africa’s Development, (Cheltenham, UK: Edward Elgar Publishing, 2011), pp. 74- 76.

Cerezo. L, & Garcia. G., ‘Lay Knowledge and Public Participation in Technological and Environmental Policy.’ Available at https://scholar.lib.vt.edu/ejournals/SPT/v2n1/pdf/CEREZO.PDF (Accessed on 05/01/2023).

Constitution of Kenya, 2010, Government Printer, Nairobi

Dereymaeker, G.,‘Formalising the Role of Paralegals in Africa: A Review of Legislative and Policy Developments. Cape Town: Dullah Omar Institute (CSPRI), Open Society Justice Initiative and Paralegal Advisory Service Institute, (2016) pp.1-32.

Environmental Management and Coordination Act, No. 8 of 1999, Government Printer, Nairobi.

International Development Law Organization., ‘Access to Justice in Kenya.’ Available at https://www.idlo.int/what-we-do/initiatives/access-justice-kenya (Accessed on 04/01/2024).

International Development Law Organization., ‘Doing Justice to Sustainable Development: Integrating The Rule of Law into the Post-2015 Development Agenda.’ Available at https://www.idlo.int/sites/default/files/pdfs/publications/Doing%20Justice%20t o%20Sustainable%20 Development.pdf (Accessed on 05/01/2023)

Judiciary of Kenya., ‘Alternative Justice Systems Baseline Policy and Policy Framework.’ Available at https://judiciary.go.ke/download/alternative-justicesystems-baseline-policy-and-policy-framework/ (Accessed on 05/01/2024).

Judiciary of Kenya., ‘State of the Judiciary and the Administration of Justice Annual Report 2022/2023’ Available at https://judiciary.go.ke/sojar-2022-2023-2/ (Accessed on 05/01/2023).

Ladan, M. T., ‘Access to Justice as a Human Right Under the ECOWAS Community Law.’ https://www.researchgate.net/publication/272246292_Access_to_Justice_as_a_Hu man_Right_Under_the_Ecowas_Community_Law (Accessed on 04/01/2024).

Muigua. K., & Kariuki. F., ‘ADR, Access to Justice and Development in Kenya.’ Available at https://kmco.co.ke/wp-content/uploads/2018/08/ADR-access-tojustice-and-development-in-Kenya-Revised-version-of-20.10.14.pdf (Accessed on 05/01/2023).

Muigua. K., ‘Access to Justice and Alternative Dispute Resolution Mechanisms in Kenya’ Available at https://kmco.co.ke/wp-content/uploads/2018/09/ACCESS-TOJUSTICE-AND-ALTERNATIVE-DISPUTE-RESOLUTION-MECHANISMS-INKENYA-23rd-SEPTEMBER-2018.pdf (Accessed on 05/01/2023).

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

Muigua. K., ‘Mainstreaming Alternative Justice Systems in Africa.’ Available at https://kmco.co.ke/wp-content/uploads/2023/11/Mainstreaming-AlternativeJustice-Systems-in-Africa.pdf (Accessed on 05/01/2023).

Muigua. K., ‘Mainstreaming Alternative Justice Systems in Africa.’ Op Cit 43 Uwazie. E., ‘Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability.’ Africa Security Brief, No. 16 of 2011

Muigua. K., ‘Realizing Environmental Justice through Litigation.’ Available at https://kmco.co.ke/wp-content/uploads/2023/07/Realizing-EnvironmentalJustice-through-Litigation.pdf (Accessed on 05/01/2023).

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

Muigua. K., ‘Towards Meaningful Public Participation in Natural Resource Management in Kenya.’ Available at http://kmco.co.ke/wp- content/uploads/2018/08/TOWARDSMEANINGFUL-PUBLICPARTICIPATIONIN-NATURAL-RESOURCEMANAGEMENT-IN-KENYA.pdf (Accessed on 05/01/2023).

Muigua. K., Kariuki. F., ‘Towards Environmental Justice in Kenya.’ Available at https://kmco.co.ke/wp-content/uploads/2018/08/Towards-EnvironmentalJustice-in-Kenya-January-2015.pdf (Accessed on 05/01/2023).

Muigua. K., Kariuki. F., ‘Towards Environmental Justice in Kenya.’ Op Cit 53 Muigua. K., ‘National Environment Tribunal, Sustainable Development and Access to Justice in Kenya.’ Available at https://kmco.co.ke/wpcontent/uploads/2020/03/National-Environment-Tribunal-Sustainable Development-and-Access-to-Justice-in-Kenya-1.pdf (Accessed on 05/01/2023)

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

Ojwang. J.B, “The Role of the Judiciary in Promoting Environmental Compliance and Sustainable Development,” 1 Kenya Law Review Journal 19 (2007), pp. 19-29.

Organisation for Economic Co-operation and Development., ‘Leveraging the SDGs for Inclusive Growth: Delivering Access to Justice for All.’ Available at https://www.oecd.org/gov/delivering-access-to-justice-for-all.pdf (Accessed on 04/01/2023).

Save Lamu & 5 others v National Environmental Management Authority (NEMA) & Another, Tribunal Appeal No. NET 196 of 2016, (2019) eKLR.

SDG Resource Centre., ‘Access to Justice.’ Available at https://sdgresources.relx.com/tags/access-justice (Accessed on 04/01/2023)

The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters., Available at https://unece.org/DAM/env/pp/documents/cep43e.pdf (Accessed on 05/01/2023).

The United Nations Educational, Scientific and Cultural Organization (UNESCO)., ‘From Promise to Practice: Access to Information for Sustainable Development.’ Available at https://www.unesco.org/en/articles/promise-practice-access-informationsustainabledevelopment#:~: text=Access%20to%20information%20(ATI)%20is,about%20decisions%20 affecting%20their%20lives. (Accessed on 05/01/2023).

United Nations Development Programme., ‘Strengthening Judicial Integrity through Enhanced Access to Justice.’ Available at https://www.undp.org/sites/g/files/zskgke326/files/migration/eurasia/Accessto-justice.pdf (Accessed on 05/01/2023).

United Nations General Assembly., ‘Report of the United Nations Conference on Environment and Development: Rio Declaration on Environment and Development.’ A/CONF. 151/26 (Vol.1), Principle 10.

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 04/01/2023).

United Nations Office on Drugs and Crime., ‘Partners Welcome move to Mainstream Alternative Justice Systems in Kenya.’ Available at https://www.unodc.org/easternafrica/en/Stories/partnerswelcome-move-tomainstream-alternative-justice-systemsinkenya.html#:~:text=AJS%20may%20be%20defined %20as,more%20expeditious%20 than%20court%20proc esses (Accessed on 05/01/2024).

United Nations., ‘Access to Justice.’ Available at https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-lawinstitutions/access-to-justice/ (Accessed on 04/01/2024).

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News & Analysis

What is Carbon Markets?

Published

5 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

7 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

8 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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