Abstract:

This article explores the burgeoning reliance on Alternative Dispute Resolution (ADR) mechanisms in Kenya to address the numerous challenges afflicting the formal justice system. The article delves into the constitutional provisions and statutory frameworks that support ADR and Traditional Dispute Resolution Mechanisms (TDRM) as well as the problems plaguing the formal justice system. It presents a balanced examination of the advantages and disadvantages of ADR in Kenya, and concludes by proposing reforms to optimize the justice system.

Introduction

Since the implementation of the Constitution of Kenya 2010, significant strides have been made in promoting human rights, access to justice, and gender equality. A key aspect of this development is the focus on Alternative Dispute Resolution (ADR) and Traditional Dispute Resolution Mechanisms (TDRM) in managing conflicts and disputes. Article 159{C} of the Constitution of Kenya expressly promotes the utilization of ADR, including negotiation, reconciliation, and arbitration, as guiding principles for courts and tribunals. However, excessive reliance on ADR to resolve the issues plaguing the justice system may not be the ultimate solution. This article examines the advantages and disadvantages of ADR and emphasizes the need for a balanced approach to enhance access to justice.

I. The Legal Framework for ADR in Kenya

Kenya’s legal framework, particularly the Constitution and associated statutes, encourages the use of ADR and TDRM in conflict resolution. Article 159(1) of the Constitution of Kenya 2010 establishes the foundation for judicial authority vested in both formal courts and alternative dispute resolution mechanisms. Furthermore, the Constitution encourages communities to settle land disputes through recognized local initiatives, aligning with the principles of ADR. Various statutes have been enacted or amended to support ADR, such as the National Co-ordination Act , Intergovernmental Relations Act and the Nairobi Centre for International Arbitration , establishing the Arbitral Court.

II. Challenges Within the Formal Justice System

The Importance of ADR in Alleviating Formal Justice System Problems

The formal justice system in Kenya faces several challenges that threaten the realization of the right to access justice. These issues include:

1. Backlog of Cases: The courts grapple with a backlog of cases due to the increased number of suits filed and limited human resources, leading to delays in access to justice.
2. Budgetary Constraints: The judiciary faces challenges regarding unstable government funding, resulting in delays and inadequate performance.
3. Broken Relationships and Dissatisfied Parties: Formal litigation often leaves parties with broken relationships and dissatisfaction, potentially leading to revenge. ADR, on the other hand, aims at an enduring, mutually satisfying resolution that addresses the root cause of the conflict.
4. Complex Procedures: The formal court system may require parties to be represented by litigators, creating barriers for those unfamiliar with court processes.
5. Privacy Concerns: While courts are open to public scrutiny, this compromises the right to privacy, leading to societal stigma, even for individuals acquitted of allegations.
6. Inaccessibility: Courts may be inaccessible to a vast population due to the limited number of courts serving large areas.
7. Political Influence and Corruption: Despite being constitutionally independent, courts can be politically influenced or corrupted, undermining the principles of justice.

III. Advantages of ADR

1. Win-Win Outcomes: ADR aims for a win-win situation, promoting cooperation and reducing the adversarial nature of litigation.
2. Cost-Effectiveness: ADR methods such as mediation and arbitration often involve fewer meetings and are less costly than traditional litigation.
3. Flexibility and Responsiveness: ADR allows parties greater control over the resolution process, promoting mutually satisfying outcomes tailored to their needs.
4. Confidentiality: ADR proceedings are generally more confidential than court processes, safeguarding privacy and public image.
5. Clearing Backlog: ADR can significantly reduce case backlogs in courts, enhancing the efficiency of the justice system.

IV. Disadvantages of ADR

1. Inequality: ADR may disadvantage weaker disputants, especially in cases of power and wealth disparities, resulting in unequal bargaining power.
2. Intrusiveness: Some forms of ADR, like mediation, may penetrate deeply into the personal lives of disputants, potentially exposing unrelated issues.
3. Limited State Involvement: ADR lacks access to state machinery, potentially leading to inequality, especially when enforcement of outcomes is required.
4. Potential for Abuse in Criminal Cases: ADR mechanisms like TDR may be abused in criminal cases, allowing perpetrators to evade appropriate punishment.
5. Lack of Defined Rules: ADR’s lack of specific rules may cause difficulty in the dispute resolution process, affecting the quality and satisfaction of the outcome.

V. Achieving a Balanced Approach

To enhance access to justice in Kenya, it is essential to strike a balance between ADR and the formal justice system. Reforms should include:

1. Comprehensive Policy and Legislation: Establishing comprehensive policies and legislation to guide ADR and ensure its effective enforcement.
2. Elder Involvement: Involving elders through a legal platform to assist in advising on current laws and customary law.
3. Review of Evidential Rules: Simplifying evidential rules to accommodate informal dispute resolution systems and focus on substantive justice.
4. Mitigating Prejudice: Implementing rules to reduce prejudice and ensure a fair and unbiased ADR process.
5. Public Value Considerations: Using ADR for suitable cases while forwarding disputes with broad societal dimensions to the court system.

VI. Conclusion

Access to justice in Kenya is a fundamental human right, and both the formal justice system and ADR mechanisms play crucial roles in its realization. Striking a balance between the two is vital to ensure expedient, fair, and accessible justice. Reforms, guided by comprehensive policies and legislation, are imperative to harness the potential of ADR effectively while addressing its limitations, thereby advancing the constitutional goal of justice for all.

Joshua Kimani ACIArb ,

Legal Researcher at Kimani, Kiarie & Associates.