June 2018

Article 159(2) (c) of the Constitution provides firm foundation for ADR by mandating courts and national tribunals to promote “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanism”, the Constitution contemplates submission to such ADR mechanisms in the context of judicial proceedings in exercise of judicial authority vested in the Judiciary. However, in their bid to promote ADR, courts are required by sub-article (3) to guarantee the protection of fundamental human rights and freedoms guaranteed under the Constitution.

The question as to the suitability of ADR in statutory crimes and crimes against the State is largely dependent on our societal values that shape our conception of justice. The extent to which our society is prepared to apply ADR mechanisms in criminal law is dictated by our conventional approach to sanctions in criminal law, which is in turn informed by our conceptions of justice – the choices we make as between redressive, restorative, distributive, preventive, corrective and retributive justice.

My paper titled “The Place of ADR in Intergovernmental Disputes” published online last week was one of the subject of discussion at the momentous meeting between the Senate and members of the Chartered Institute of Arbitrators (Kenya Branch) on 14th June 2018. At the meeting, members of the Institute urged the legislators to consider alternative dispute resolution as a critical feature of legislation in which dispute resolution is contemplated. The Institute highlighted the glaring gap in legislative instruments with regard to the pressing need to incorporate ADR mechanisms and recognize the role of such institutions as the Chartered Institute of Arbitrators…

1. Introduction   The Constitution of Kenya, 2010 establishes a devolved system of government comprised of the national and forty-seven county governments. According to article 6(2) of the Constitution, The governments at the national and county levels are distinct and inter-dependent. They are mandated to conduct their mutual relations on the basis of consultation and