Introduction
Justice is attained through effective and expeditious resolution of disputes. Dispute resolution mechanisms should be accessible to all both geographically and economically. Procedures, technicalities and costs should be kept at the minimum to avoid creating a barrier against the poor from accessing justice. In most cases, courts do not offer this. They are bedeviled with complex procedures, high fees, legalese, physical inaccessibility in terms of distance and delays owing to a backlog of cases.[1] Accordingly, the court system alone is not sufficient to ensure the administration of justice. There is need to bring justice closer to the people and make it more affordable.
Alternative dispute resolution (ADR), which includes traditional dispute resolution mechanisms (TDRM), offers the best solution for realizing effective and expeditious management of disputes. It is not just alternative to the courts but complementary[2]. Such mechanisms, especially TDRM, are simple, quick, less formalistic, flexible and familiar to the common people.[3] For this reason they are more accessible to the poor compared to the formal judicial system because in the former, parties do not need legal fees and can represent themselves.
In this spirit, the Constitution under Article 159 provides for the use of ADR to resolve disputes. Notably, traditional dispute resolution mechanisms are primordial. Arbitration, mediation and negotiation have also existed before the Constitution of Kenya, 2010. For instance, the Arbitration Act 1995 precedes the Constitution, and thus Article 159. What therefore Article 159 envisages is a deliberate undertaking to restore confidence in, improve on and promote the existing mechanisms to enhance their effectiveness.
Article 159 is however only declaratory. Clause 2 (c) merely requires courts and tribunals to promote alternative forms of dispute resolution. It does not and nowhere else does the Constitution provide how the promoting shall be done. Yet the mere recognition of the same without much does not give disputants an incentive to choose ADR over litigation. What the constitution has not taken care of is;
- Procedure to be followed in alternative dispute resolution – in any process of resolving disputes there has to be a procedure to be followed. A keen examination of the Judicial Proceedings in Kenya recognizes procedure as a very important aspect in declaring any act as illegal or unlawful. For example Judicial Review and employment (unfair dismissal proceedings) look more in to the procedure than the substance of the matter. In the case of Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited (2008)eKLR it was held that;“The remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself.
- The scope of Alternative dispute resolution– does it envisage both criminal and civil cases? If it can be used in criminal cases, then does it extend to criminal cases? In the case of REPUBLIC v MOHAMED ABDOW MOHAMED [2013] eKLR for example, the court released an accused person who had been accused of murder on the basis that the families had traditionally reached conciliation. Yet, it is argued by some scholars that capital offences should not be resolved by alternative means of dispute resolution.
- Who should officiate alternative dispute resolution proceedings– for example what are the qualifications of an arbitrator? Who should preside over community mediations and other such questions.
Article 189 (4) of the constitution is a clear indication that we need a legal and institutional structure to supplement article 159 of the Constitution. It provides that national laws shall provide for the procedures to be followed in settling intergovernmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.
This article in using the word “shall” bestows a mandatory duty upon the parliament to enact legislation to provide for the said procedures.
There is therefore need to establish a legal framework to lend legitimacy to alternative forms of dispute resolution and address the issues that have over the years caused its decline. Such framework should concentrate on restoring confidence on ADR but must guard against introducing changes that may lose the defining features of ADR, such as accessibility, simplicity, expedience, and non-formalistic, which make it desirable. Caution should in particular be had against raising the same barriers that bedevil courts, which impede access to justice by the poor. The object should be to formalize recognition of ADR, not formalizing the procedures.
Legislation enacted in Kenya to supplement article 159 of the constitution.
There is various legislation enacted by the government of Kenya prior to and after the promulgation of the Constitution of Kenya 2010 to provide for alternative dispute resolution mechanisms. These include among others;
- Arbitration Act 1995(as revised in 2012) to define the scope, responsibilities and limitations of arbitral tribunals so as to allow parties to determine disputes in a manner that is consistent with the law. It provides for the form of an arbitration agreement, composition and jurisdiction of arbitral tribunal, conduct of arbitral proceedings, conduct of arbitral proceedings, arbitral award and termination of arbitral proceedings, recourse to high court against arbitral award, recognition and enforcement of awards and questions of law arising in domestic arbitration inter alia.
- Fair Administrative Action Act 2015 to give effect to article 47 of the constitution, and for connected purposes. Article 47 of the constitution provides for fair administrative action and provides that parliament shall enact legislation to provide for review of administrative action by a court or, if appropriate, an independent and impartial tribunal. It provides for administrative action affecting public, procedure, judicial review and principles and rules of natural justice to be adhered to inter alia.
- Land Adjudication Act 1968(as revised in 2015) to provide for the ascertainment and recording of rights and interests in community land, and for purposes connected therewith and purposes incidental thereto. It provides for the adjudication officers and their staff, adjudication committees and arbitration boards, ascertainment of interests in land and preparation of adjudication register inter alia.
- Chiefs Act 1937(as revised in 2012) to make provision in regard to the powers and duties of chiefs and to provide for matters incidental thereto. It provides for powers of the chiefs to issue orders and their conduct inter alia.
- The Civil Procedure Act at section 59 also recognizes alternative dispute resolution and provides that all references to arbitration by an order in a suit, and all proceedings there under , shall be governed in such a manner as may be prescribed by rules. Order 46 of the Civil Procedure Rules provides that at any time before judgement is pronounced, interested parties in a suit who were not under any disability may apply to the court for an order of reference whenever there is a dispute.
- The Criminal Procedure Code at section 204 provides that:
“ If a complainant, at any time before a final order is passed in a case under this Part, satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw it and shall thereupon acquit the accused.”
In most circumstances where this section applies, the parties go through alternative dispute resolution such as mediation or traditional dispute resolution and reach an amicable agreement before the complainant applies for withdrawal of the case. This was the case in the Mohammed Abdow Mohammed case quoted above.
- Section 12 (9) of the Labour Institutions Act provides that;
“The Industrial Court may refuse to determine any dispute before it, other than an appeal or review, if the Industrial Court is not satisfied that an attempt has been made to resolve the dispute through conciliation.”
Implementing article 159 of the constitution on Alternative Dispute Resolution
Article 159 (2) (c) of the Constitution provides that courts and tribunals shall, in exercising their judicial authority, inter alia, promote alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. Clause (3) however gives a proviso that traditional dispute resolution mechanisms should be applied only to the extent that they are consistent with the Constitution and the Bill of Rights, and are not repugnant to justice or morality.
Notwithstanding, Article 59 generally seeks to deemphasize litigation and instead encourage resolution of disputes through other forms. In doing so, it prefers the courts and tribunals as the prime actors to promote ADR. Courts are expected to determine the kind of cases that may be suitable for ADR and refer them accordingly. But courts can only make determinations on matters that have been submitted to them. Without enabling legislation therefore, Article 159 makes promoting ADR only reactive. It purely subordinates ADR to litigation leaving unfettered discretion on courts to determine which kinds of disputes are suitable for ADR.
This however cannot be the spirit of the Constitution. What is envisaged is a functional ADR system that is not merely alternative to courts but one that supplements the courts in promoting access to justice in accordance with Article 48. Indeed, Article 11 recognizes culture as the cumulative civilization of the people and the nation. Notably, traditional dispute resolution mechanisms are entwined in culture.[4] There is thus need to put in place a legal framework to guide the implementation of Article 159. Such framework should in particular define matters such as what kind of disputes may be referred to ADR, how government may help enforce resolutions from ADR and the relationship (if any) between the courts and ADR.
- Scope of ADR
Article 159 does not define the range of disputes that can be submitted to ADR. This raises the concern whether ADR should encompass criminal offences and if yes, which category of offences. For instance, it is argued that trial by ADR is inconsistent with the right to a fair trial as defined under Article 50 of the Constitution. Clause 1 however provides:
Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.[5]
Article 50 thus also envisions trial bodies other than courts. What therefore remains to be determined is the category of offences suitable for ADR. It would be thought that such offences should exclude capital offences but in Republic v Mohamed Abdow Mohamed[6], the court released the accused person in a murder charge on the basis that the families had traditionally reached conciliation. There is therefore need to clearly define the scope of ADR to ensure certainty of recognition of ADR resolutions before parties engage in the same.
- Recognizing customary law
One of the greatest challenges facing ADR is lack of recognition by courts of resolutions reached. Especially in cases involving TDRM, it may be either that courts do not recognize the law (usually customary law) applied or simply be of the opinion that the resolution is not consistent with morality and justice. This contempt for TDRM is entrenched in Article 3 (2) of the Judicature Act on sources of law which allows courts to apply customary law only to the extent that it is not repugnant to justice and morality. The repugnancy clause is curiously reproduced under Article 159 of the Constitution in exact terms.
Traditional dispute resolution mechanisms are rooted in culture[7]. They apply the customary law of the concerned communities. Any attempt to promote TDRM must therefore start by recognizing customary law without a vague repugnancy proviso. This is not to say that Article 159 should be amended to expunge the repugnance clause but rather Parliament should endeavor to define what amounts to repugnancy against morality and justice. It should be noted that the repugnancy clause as is was the catapult employed by colonial courts to shoot down TDRM on grounds that the same were uncivilized. The measure of repugnancy was often Western ideals which over time led to overemphasis on litigation. The result has been a backlog of cases in courts and in some instances, such as the tribal clashes in the Northern region, courts have been completely defeated in providing a lasting solution. This has led to adoption of an almost parallel legal system in those regions with the declaration of ordinances which resemble the Penal Code in offences that are already covered by statute.[8] This vindicates TDRM and in extension customary law as not just being alternative but sometimes the most appropriate in providing enduring resolutions to disputes.
Accordingly, government should put in place a legal framework clearly providing for the range of permissible attributes of customary law, which is the substratum of TDRM. It may be argued that the same should be left to the courts to determine what amounts to repugnancy. However, in view of the fact that courts are bound by precedent and there being no recent case where courts have overtly acknowledged and endeavored to interpret the repugnancy clause, such would be to leave the realization of the spirit of Article 159 at the mercy of time.
- Enforcing ADR Resolutions
Alternative dispute resolution such as arbitration and mediation face little enforcement challenges. In particular, arbitration is comprehensively legislated on under the Arbitration Act which provides for, inter alia, recognition and enforcement of an award[9]. So inviolable is the award that an appeal to the court to set it aside may only be entertained on serious grounds expressly enumerated under the Act[10]. This recognition and protection does not however extend to other alternative forms of dispute resolution. Outcomes of negotiation and mediation are generally nonbinding. It also is not certain when courts will recognize and enforce a resolution by traditional dispute resolution mechanisms. This denies them the legitimacy and respect that they need to be preferred by parties. If parties cannot be certain of the courts’ attitude to an ADR resolution, they definitely will prefer litigation.
There is therefore the need to lay down a legal framework for recognizing and enforcing ADR resolutions. Some scholars have suggested that such resolutions should be submitted to the area resident magistrate to sign. But in view of the fact that courts are geographically inaccessible in some areas, pegging the legitimacy of resolutions on courts would make ADR inaccessible. In addition, some parties are intimidated by the formality of courts and there may be a language barrier since judicial officers are randomly posted based on merit and not language harmony with the local population. This will ultimately erect the same barriers that bedevil courts and work counterproductively against ADR. Our suggestion is that resolutions should be registered with the local chief who is readily accessible and familiar to, and most probably speaks the same language as the parties.
On recognition, a resolution registered at the chief’s office should be deemed valid and bearing the court’s authority provided the aggrieved party has not appealed to court. The State may then, depending on the nature of dispute involved, utilize community policing personnel, the clan elder or the local chief to ensure compliance. In aggravated disputes such as criminal offences, the State may utilize the police at the request of the chief to enforce the resolution. The purpose is to ensure that the process is owned by the people at the local level and try as much as possible not to lose its distinctive qualities.
- Popularizing ADR
As noted earlier, the use of ADR declined with the advent of colonialism. Colonial masters conducted a deliberate campaign to cast African traditional dispute resolution mechanisms as retrograde, uncivilized and antagonistic to a progressive society They elevated and overemphasized litigation, wholly subordinating ADR to it. Most resolutions under TDRM were spurned and rejected by courts under the repugnance clause[11] and over time, people came to lose confidence in them. [12]
Government needs to respond to this long-serving fallacy against ADR by taking deliberate steps to restore confidence in the system. The first response should be through laying down a policy framework that emphasizes the use of ADR and giving policy guidelines to courts and tribunals. Government should in particular endeavor to mainstream the prevailing principles of human rights in the various communities’ customary law through continuous civic education of the local representatives elected or appointed to serve in those committees. Those representatives will in turn underscore and enforce those ideals through their decisions to ensure that customary law evolves with society. Viz., government should interfere neither with who presides over TDRM nor how the proceedings are conducted but it should endeavor to ensure that retrograde practices and customs are dropped and the current standards of human rights are observed. This will guarantee that TDRM retain their informal and simplistic appeal to the poor and marginalized communities while appealing to the literate and middle class by being in tandem with the prevailing ideals.
Besides the criteria discussed above, there are many other reforms that have been suggested for implementing ADR as envisaged under Article 159. We have chosen to consider these reforms last for we think employing them will strip ADR of its distinctive qualities that make it simple, accessible, affordable and quick. It is worthy calling to mind that Article 159 is only declaratory and does not provide more. It states:
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles_
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);
(3) Traditional dispute resolution mechanisms shall not be used in a way that_
(a) contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice and or morality; or
(c) is inconsistent with this Constitution or any other written law
As evidenced above, Article 159 only authorizes the application of ADR. It does not set down the formulae of implementing it. For instance, it does not provide for ADR rules of procedure, the criteria of selecting people who shall serve in ADR tribunals, the rules of appeal, inter alia. The omission of these nitty-gritties from the Constitution is however understandable against the backdrop that the Constitution is essentially a legal framework whose prime function is to define the boundaries of legislation. The question therefore is whether Parliament should enact a law to regulate/formalize the same.
- Proceedings
Procedure is rudimentary in dispute resolution. It should be clear to both the parties and those presiding over how trials shall be conducted. Matters such as how a dispute is reported, the manner of collecting evidence and fees (if any) must be clearly set out. For this reason, it has been suggested that government should enact legislation to govern these rudiments to ensure fair and just determinations. Our opinion is however that government should not interfere with the conduct of ADR proceedings. Setting down procedural rules will divest ADR of its informal character and flexibility to suit the circumstances of each case. It should be noted that procedural technicalities are the greatest monster against the administration of justice. Indeed, Article 159 (2) (d) provides that justice shall be administered without undue regard to procedural technicalities. It would therefore be imprudent to found in ADR the very hitches decried by the Constitution and which Article 159 is projected to address.
- Presiding over ADR
Gakeri K. Jacob, in his article “Placing Kenya on the Global Platform: An Evaluation of the Legal Framework on Arbitration and ADR”[13], proposes the professionalization of arbitration and prescription of qualifications to serve as an arbitrator, inter alia. Notably, he defines arbitration to include TDRM[14]. Our view is that such endeavor will lose the essence of ADR. ADR is fundamentally supposed to be an informal means of resolving disputes. Its substratum should not be formality but flexibility. While it is desirable to employ umpires who have relevant training, it is equally important to acknowledge that such requirement may be counterproductive as trained personnel tend to focus more on formalities rather than the unique circumstances of the dispute. Yet it is the ability to consider such circumstances that distinguishes ADR from formal justice. It is for this reason that TDRM are able to provide a lasting solution to disputes by unearthing the underlying conflict. Besides, TDRM draw respect from the fact that it is normally the senior people held in high regard by the community that serve in the tribunals.[15] Additionally, in most marginalized communities literacy levels are very low. It may prove difficult to get trained personnel to serve in the tribunals.
Conclusion
Article 159 of the Constitution envisions means of dispute resolution that are quick, efficient and accessible. It mandates the courts to promote alternative forms of dispute resolution, which are undeniably more accessible and quicker than litigation. It however does not stipulate the means of reaching this ideal. There is therefore the need to put in place a legal and institutional framework to ensure full implementation of ADR. Legislation on the same should however stay clear from interfering with the uniqueness of ADR that makes it more efficient that the court system. It should not aim at popularizing and promoting the efficiency of ADR, not formalizing it.
Our opinion is that formalizing ADR in the strict sense will overhaul its distinctiveness and replace it the formal justice system together with its technical hitches. It will erect the same barriers that bedevil courts and eventually deny the poor and marginalized communities of their fundamental dispute resolution mechanism. Instead of bringing justice closer to the people, government would have instead brought impediments to accessing justice closer to the people. That way, we shall be in a worse situation than we were before Article 159. Accordingly, a legal and institutional framework should be laid down against the cautions considered above.
[1] Kariuki Muigua & Kariuki Francis, ADR, Access to Justice and Development in Kenya, pp 11.
[2] Kariuki Muigua [2014], Effective Justice for Kenyans: Is ADR Really Alternative? Pp 9- 14.
[3] Kariuki Muigua & Kariuki Francis, pp 3
[4] Kariuki Muigua & Kariuki Francis, pp 4
[5] [Emphasis ours]
[6] [2013] eKLR
[7] Kariuki Muigua & Kariuki Francis, pp 4.
[8] Tanja Chopra [Dec 2008], Building Informal Justice in Northern Kenya, Legal Resources Foundation Trust, pp 2
[9] Arbitration Act 1995, s. 36 & 37
[10] Arbitration Act 1995, s. 35
[11] Judicature Act……. S. 3 (2)
[12] Kariuki Muigua [2014], pp 4
[13] [June 2011] International Journal of Humanities and Social Science, Vol. 1 No. 6, pp 241
[14] Gakeri J Jacob [June 2011], at pp 240: “… we have demonstrated that customary arbitration and mediation, though not described by such charismatic terms…”
[15] Tanja Chopra [Dec 2008], Building Informal Justice in Northern Kenya, Legal Resources Foundation Trust, pp 3.
