By Harrison Mbori
Before giving comments on the ADR Bill, 2019, this essay will paint an introductory context for the conceptualization of Alternative Dispute Resolution (ADR) processes in Kenya. These introductory comments will help readers understand the essay’s critical assessment of the Bill in its entirety. The Constitution of Kenya, 2010 recognizes and legitimizes the use of Alternative forms of disputes resolution in Article 159(2)(c) and (3). These provision states as follows in the pertinent part:
In exercising judicial authority, the courts and tribunals shall be guided by the following principles…..
- alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause(3);
Clause (3) then provides as follows:
Traditional dispute resolution mechanisms shall not be used in a way that:
- contravenes the Bill of Rights;
- is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
- is inconsistent with this Constitution or any written law.
These are the most important constitutional provisions for any stakeholder interested in assessing the legal underpinnings of ADR in Kenya. ADR has been taunted as beneficial towards access to justice for its many prudential benefits. These modes of ADR have been taunted as great successes in the global North as modes that are expeditious and efficacious in resolution of disputes. In this heritage you would hear concepts such as ‘win-win outcomes’, speedy resolution of disputes, confidentiality, less cost involved, lack of procedural technicality, and the ultimate prudential reason, the reduction of caseloads from courts (docket clearing efficiency). But if these positives are to be experienced, why would you have the same entity that is the source of the problems as the ultimate gatekeeper of such processes? I am mainly concerned here of the judiciary being granted the ubiquitous mandate to “promote” (this a concept borrowed from the human rights obligations framework) these systems. Accordingly, this essay argues that it is this hole that has made us conjure up the ADR bill, 2019 in a hurried and non-incremental manner without appropriate and widespread stakeholder and public participation. The formal systems normally ignore and disregard any forms of regulation outside of binding positive law. This means that the judiciary as part of the State, with the advice and resources from rule of law-based law and development partners, and supported by highly paid consultants have concluded that legislation is the best way to fulfill the mandate of promoting ADR in Kenya.
With this background, this essay will give comments to the ADR Bill, 2019. Overall, the essay argues that the Bill as drafted is a gigantic mistake. Instead, the essay strongly recommends a general policy or administrative framework regulations for this nascent (constitutionally and legislation wise) area in Kenya. Generally, since this area is informal, the less intrusion by State actions the better for the private thriving of autochthonous ADR. Let private contestations and processes stir up the need for any future sector-based policy but not legislative interventions. This essay offers four reasons: First, regulation through an Act of Parliament seems undesirable for a category called “ADR” which is not clearly defined; Second, the Bill is limited, it only seems to capture mediation, conciliation, and traditional dispute resolution: categories it does not adequately define; Third, The Bill seems to intend to monopolize, through state action, the practice of mediation and conciliation; Fourth the judiciary/state is again using this idea of centrifugal force to regulate practices that seek to be non-state related.
- Regulating ADR through an Act of Parliament is undesirable
The ADR Bill, 2019 in its long recital states that it is An Act of Parliament to provide for the settlement of certain civil disputes by conciliation, mediation and traditional dispute resolution mechanism; to set out the guiding principles applicable; and for connected purposes. In section 2 it defines “alternative dispute resolution” as “conciliation, mediation, traditional dispute resolution or any other mechanism of resolving disputes in which a person assist parties to resolve a dispute otherwise than through the normal judicial process or arbitration.” Apart from the obvious grammatical error in the definition of ADR, there are couple of issues here that warrant commentary. First, the choice of limiting the named processes to conciliation, mediation, and TDRMs and then opening the definition at the other end to include any other mechanism that involves a person assisting parties other than the judicial system or arbitration seems ill informed. The problem here is the many processes that the Act purports to cover in this blanket manner yet in section 2 it only defines mediation and conciliation. Does this mean that the Act covers organizational models of resolving disputes like the ombudsperson? or the United States of America (US) import called the mini-trial? What about construction adjudication? Or Dispute Review Boards or Dispute Adjudication Boards found in World Bank or FIDIC contracts? Where do you draw the line on this open-ended definition that only manages to define two modes of ADR? What about quasi-institutional dispute resolution done by chiefs or the police?
Secondly, the Bill defines mediation as a “facilitative and confidential structured process in which parties attempt by themselves, on a voluntary basis, to reach a mutually acceptable settlement agreement to resolve their dispute with the assistance of an independent third party, called a mediator” and conciliation as “an advisory and confidential structured process in which an independent third party, called a conciliator, actively assists parties in their attempt to reach, on a voluntary basis, a mutually acceptable settlement agreement to resolve their dispute.” This is a great attempt at defining these two ADR processes that are normally quite difficult to define and demarcate. The definitions capture the main elements of mediation: voluntariness, confidentiality, neutrality, and mutually acceptable solutions. It also fairly distinguishes mediation from conciliation by granting the conciliator advisory capacity which the mediator does not have. The theory and practice in the global North will support this demarcations and definitions with Americans sometimes calling the conciliator “an evaluative mediator.” The problem for Kenyan purposes is quite simple: these are imports of this definition that are imported, borrowed, and applied lock, stock, and barrel to Kenyan legislation. No one bothers ask whether our economic, political, and cultural realities support this kind of transplantation. This might explain the general failure of these processes in both commercial and non-commercial dispute resolution in Kenya. Many are times mediation students, (judicial officers, lawyers, psychologists, religious practitioners) find this idea of facilitation for mediation quite preposterous. Additionally, the leading book for many years in the Global North of the facilitative model is Harvard’s Negotiation Project Getting to Yes by William Ury and Roger Fisher. The same ideas are transplanted into the Kenya commercial and non-commercial disputational scenes without trainers, practitioners, stakeholders, and ADR students asking questions of cultural compatibility or incompatibility.
Since an Act of parliament will invariably have to define these processes in order to regulate them and the difficulties involved in offering an acceptable and all-encompassing definition, such a process is bound to be riddled by serious controversy and impracticalities. That is why some jurisdictions have limited their legislations to framework legislations (this is a general statute that does not attempt to define or set out any specific standards or modes of regulation of practice but allows for wide self-regulation with a few exceptions) that only cover some regulatory aspects of mediation like mediator confidentiality and its limits especially as a witness in a court of law.
Additionally, the objects of the Bill are also suspect. The Bill in section 3 purports to seek the following objectives, to: give effect to Article 159(2)(c) of the Constitution; provide an effective mechanism for amicable dispute resolution; promote a conciliatory approach to dispute resolution; facilitate timely resolution of disputes at a relatively affordable cost; facilitate access to justice; enhance community and individual involvement in dispute resolution; and foster peace and cohesion. At first sight these objects look benign but upon close scrutiny it is easier to they are merely platitudes that the Act or generally positive legislation cannot fulfill. The important question here is whether Kenya needs an Act of parliament to achieve these objects. Many would answer that such objectives can be achieved by other means. The objectives can be achieved in many other ways than through the enactment of an Act of parliament that will further complicate private means of dispute resolution that does not need any further intrusion from the State. It is only the Kenyan malady of over-regulation and over-legislation that can explain this kind of undesirable intervention.
It is surprising how little we have learnt from this over-legislation in other areas and the and the dire consequences this has had for the rule of law in Kenya. An example should suffice here in the area of corruption. This is a big social catastrophe in Kenya and the State has enacted numerous statutes to tackle the menace: Ethics and Anticorruption Commission Act 2011; Anti-corruption and Economics Crime Act 2003; Government Financial Management Act 2012; Public Procurement and Disposals Act 2015; Witness Protection Act 2006; Proceeds of Crime and Anti-Money Laundering Act 2009 (revised 2016); Leadership and Integrity Act, 2012; Public Audit Act, 2012; Bribery Act 2016; and the Central Bank of Kenya Act, (Cap 491). Not specifically naming the international treaties dealing with corruption directly and indirectly ratified by Kenya that have direct effect domestically. All these yet corruption sours by the day. Prudentially, legislation does little to regulate behavior in Kenya, maybe even in Africa generally. This is the knowledge that law and development experts had realized in the 1970s when the export of “rule of law” become fanciful.
Then comes section 4 on the scope of application of the Bill. Here the Bill circumscribes its scope by delimiting the kinds of disputes that the Act applies to. The first limitation is obviously arbitration which is covered by the Arbitration Act No. 4 of 1995. Second disputes where tribunals with established jurisdiction under written law have jurisdiction, election disputes, disputes involving the interpretation of Constitution, a claim for a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights; or disputes where public interest involving environmental or occupational health and safety issues are involved. The first general concern here is why election disputes or human rights-based claims and environmental-based claims are exempted? If the resolution of the 2007/2008 elections dispute is anything to go by and if the process involved were to be appropriately called mediation, one wonders why such an exemption is present in the Bill. Additionally, the judicial review power of constitutional interpretation is so strongly in the public domain that it is strange one would think that a private dispute resolution system would proffer a binding interpretation of the constitution. On the bill of rights exemption, many private disputes ordinarily would involve direct or indirect infringement fundamental rights and freedoms in the Constitution and exemption such without another theory of exclusion is also undesirable.
The Guiding principles in section 5 would also warrant some examination. The first principle is voluntary participation in the alternative dispute resolution process and that a party may withdraw from alternative dispute resolution process at any time. Of course, this might conflict with the entire theory of court-annexed mediation which requires good faith participation in the process and not a carte blanche voluntariness. Then section 5(c) has the principle of confidentiality but not for traditional dispute resolution. One wonders what the policy reason for such exemption is. Is it that TDRMs do not warrant the same privacy that the other processes require? Is it that the nature of TDRMs are such that this kind of privacy is undesirable? Then there is the principle of impartiality which also covers mediation. While this is an important principle and if mediation remains just a facilitative process, there can’t be a closed requirement in impartiality since unlike the conciliator the mediator does not offer any advice. Finally, section 5(f) states that a “conciliator, mediator or traditional dispute resolver shall facilitate disputes which he or she is competent to facilitate.” The obvious concern here is what does this principle cover in terms of competency? Does any of these processes require legal competency or moral competency? How do you justify this competency requirement for village elders who resolve disputes of all kinds including criminal disputes? But more importantly how do you monitor compliance with such competency?
2. A general ADR Bill/Legislation will always face serious normative and structural limits.
The Bill faces some normative and structural limits that will make its implementation difficult if not impossible. The first is the substantive limits of what areas the Bill allows its limitedly defined ADR to be used. The Bill says that it will cover “certain” civil disputes. The normative claim of a class of “certain” civil that is not adequately circumscribed is problematic. What about areas that are limited by Acts of Parliament such as the Succession. What about criminal misdemeanors that have been one of the sources of the backlog of cases in Kenya? If the Act does not allow for coverage of such disputes how can it purport to serve the aim of facilitating the timely resolution of disputes? Additionally, the Bill will face the structural limit of legislating or regulating areas that the State cannot easily offer any kind of enforcement. Unless the parties involve the courts, many private individuals and organizations resolve their disputes using mediation in their daily endeavors. Religious institutions through priests, pastors, imams, nuns, rabbis among others are involved in dispute resolution daily. Psychologists, CEOs, managers, life coaches, family therapists, school advisors, and parents organizational group leads will tell you that they resolve disputes of various magnitudes daily.
Section 7 of the Act requires individuals who intend to practice as mediators or conciliators to apply for registration as such to the Dispute Resolution Committee established under section 59A of Civil Procedure Act. The concern here is that outside of court-annexed mediation parties who voluntary seek mediation (see section 12) may not have any contact with the Dispute Resolution Committee and might not be aware of any registered mediators or conciliators. Would such a mediation be unlawful under the Bill? Additionally, these prospective mediators are required to fulfill certain conditions for accreditation and registration. Under section 7(1) the ADR Committee has both powers of accreditation and registration, yet the Bill doesn’t offer any distinction between accreditation and registration. Does this mean that the ADR Committee will also train mediators since accreditation is associated more with training institutions than with regulatory institutions? Additionally, the ADR Committee is empowered to later set up educational and professional qualifications for mediators and conciliators over and above fulfilling the requirements of section chapter 6 of the 2010 Constitution. What would these educational and professional requirements look like? Will it be a university degree? Secondary education? What about the professional requirements? The nature of mediation and conciliation is such that any stringent educational and professional requirements should be highly discouraged. This lends to the realistic limits of legislative rules that cannot be safely implemented on such matters. The idea here should be to lay out broad framework rules that allows everyone who wants to be involved to be voluntarily involved. Let everyone who wants to mediate or conciliate disputes practice it. Let the law recognize the outcomes of these processes unless their violations of fundamental rights and freedoms. This is the pluralism and centripetal model that is applied in other jurisdictions.
3. The Bill/legislation further monopolizes & formalizes justice dispensation
This might be one of the biggest indictment of the Bill all together. Section 6(1) provides that a person cannot practice as a conciliator or a mediator under the Act unless the person has been accredited and registered as a conciliator by the ADR committee. There are three interrelated and vital points here that stem from the 2010 Constitution itself: first, the 2010 Constitution grants the judiciary the central focus when it comes to the dispensation of justice. It is the judiciary that is the repository of legitimate power granted by the people of Kenya to dispense justice. Second, a good faith interpretation of Article 159 (2) above may lead to a conclusion that any other institutions or systems that claims a share of this legitimate power must be linked to, generated, and supervised by the judiciary. The two main contenders for this publicly sanctioned judicial power are the justice dispensing systems generated from African customary law (referred to under Article 159(2) as traditional dispute resolution systems (TDRMs) but which should be appropriately labelled Alternative Justice Systems (AJS)) and religious laws (the best example for Kenyan purposes is Sharia). Third, the 2010 Constitution refuses to constitutionally acknowledge Kenya’s Triple Heritage; that the disputational experiences, especially pertaining to private law, of Kenyan’s are at the confluence the Indigenous, Western, and the Religious. This has led to the elevation of the formal judicial systems over other equally legitimate justice dispensing systems. Consequently, and while lauded, the various modes of ADR above are presented as “principles” that guide the exercise of judicial authority, thus are part and parcel of the judicial mode of justice dispensation. This is the centrifugal force that the constitution creates for the Judiciary as the center of justice with other modes revolving faithfully around it like the planets genuflect around the sun.
Consequently, this essay argues that the 2010 Constitution of Kenya constitutional architecture and structure on ADR is problematic for an additional historical reason: courts as we know them today are an import of the dubious British venture of colonialism couched as ‘civilization’. The formal courts are a recent phenomenon if we were to zoom out the history of the peoples of Africa by just a few centuries. Thus, the acquisition by the judiciary of the legitimate power over the dispensation of justice should be viewed from the critical angle of transplantation of legal systems by imperial powers for imperialistic and self-serving reasons. While this seems benign and perhaps “a passed by events” argument, the history, legacy, and content of the British mode of justice dispensation is a present reality in Kenya today. The point here is that the judicial system mapped under our Constitution of Kenya, 2010 is far from autochthonous. It is not only a recent phenomenon, but it also completely uprooted and dislodged existing, legitimate, and effective justice dispensation systems that were present among Kenyan nations for a millennia. These are the modes that are now referred to in the Constitution as traditional dispute resolution mechanism (TDRMS) are limited by the Bill of Rights, the dubious notion of repugnancy and positive law.
 David M. Trubek & Marc Galanter, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States” (1974) 4 Wisconsin Law Review, 1064-1103.
 Law of Succession Act, Cap 160, sec 2(1) (stating that “Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after, the commencement of this Act and to the administration of estates of those persons”).
 2010 Constitution of Kenya, Article 159 (1) (Stating that Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution).
 Ali Mazrui, The Africans: A Triple Heritage (Greater Washington Educational Telecommunications Association 1986) (Arguing that the Africa’s experience of State formation should be understood at the confluence of Africa broader triple heritage of history and culture: encompassing the indigenous, the Islamic, and Euro-Christian).
 See Kariuki Muigua, ‘Heralding A New Dawn: Achieving Justice Through Effective Application Of Alternative Dispute Resolution Mechanisms (ADR) In Kenya’ (2013) 1:1 Alternative Dispute Resolution, 40-68;Paul Musili Wambua, ‘The Challenges of Implementing ADR as an Alternative Mode of Access to Justice in Kenya’ (2013) 1:1 Alternative Dispute Resolution, 23 (arguing that the Constitutional anchoring of ADR in the constitution emphasizes the importance the drafters of the Constitution placed on ADR).
 See Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton; New Jersey, Princeton University Press, 1996) (Arguing that the British imperial power used the courts as the beacons of “civilization”); for an incisive analysis on international law see Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2004).
 James Thuo Gathii, ‘Imperialism, Colonialism, and International Law’ (2007) 54: 4 Buffalo Law Review, 54 (Arguing that he imposition of colonial rule went hand in hand with the imposition of English rules of property, tort and contract which in turn facilitated the expansion of industrial and commercial capitalism).