The Chief Justice has in the past caused a stir by requesting the public to resolve disputes through village elders and witchdoctors instead of rushing to the courts. The remarks as reported are not entirely true but nonetheless they did stir up something surprisingly enlightening for me. On 18th January 2016, during an admission ceremony for new advocates at the Supreme Court building in Nairobi, the Chief Justice, his lordship Hon. Dr. Willy Mutunga, clarified that the earlier statement was only made to implore litigants to first attempt other forms of legal dispute resolution before approaching the courts. Certainly, dispute resolution touches on the very fabric of our society. Dispute is as old as man. The human society is marred with conflict and the Kenyan one is no exemption. In my assessment, this is as a result of our biological intuition to interact. Conflict in this context therefore relates to disputes arising out of normal interaction with others in our surroundings. In an attempt to resolve conflict, various methods have been used in the past to the present. From sitting under a tree in a baraza where the elders’ word was law, to the current institutionalized dispute resolution agencies. It is amazing and commendable how far and fast we have come as a nation in such a short period.
The Judiciary is no doubt an important pillar to a democratic society. If our society was an automotive petrol powered engine then the Judiciary can only be best described as the oil that lubricates the engine. Without it, the engine may run but it will eventually fail. We have witnessed this in our past and dread it. Nevertheless, such lessons must be eternally remembered lest our forgetful nature overcomes our fear.
The Judiciary’s importance is often undermined mostly only until one finds that a judge’s hammer or the courts’ seal are their only salvation. Yet this in no way suggests that such importance is not sort by a considerable number in the society. On the contrary, the current Judiciary case backlog tells a different tale. The Judiciary, through the National Case Audit and Institutional Capacity Survey launched on 20th February 2015 has defined backlog as cases not concluded within 12 months. The bar has undoubtedly been set high. Yet it is not lost to us that we have plenty of disputes piling up in our Court system. The Judiciary estimated the backlog at 420,000 as of 2014 meaning that it would take the High Court 12.5 years, the magistrates’ courts 2.4 years and the Kadhi’s courts 1.9 years – all working in synchrony, to clear this backlog. Unfortunately, the case numbers may have increased since then in as much as there has been recruitment at the Judiciary for more judges and magistrates. As worrying as this may sound, the solution to easing up the case backlog in our courts has already been crafted.
Kenyans in their multitudes received the Constitution in the year 2010 marking a new age in the upholding of rule of law and effective administration of justice. Article 159 of the Constitution provides that judicial authority vests with the people. This power is to be exercised following certain principles. The principles include justice shall be done to all, justice shall not be delayed and in so doing, embracing alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution(ADR) mechanisms. There lays the silver bullet.
ADR in Kenya has evolved within a very short time. In formal dispute resolution, Arbitration has more recognition including statute, but nevertheless the other forms of dispute resolution have been used and continue to be used effectively in resolving disputes. Despite this, very few in our society can claim to know the difference between mediation and arbitration and even fewer, the benefits of one compared to the other.
In a nutshell, mediation can be described as a process where parties to a dispute attempt to resolve a dispute aided by an impartial mediator. Mediation may be formal or informal. Arbitration in contrast is structured formally; here parties present their cases before an independent arbitrator of their choice. The arbitrator is tasked with making a decision to resolve the dispute. The final decision is referred to as an award and is binding upon the parties. In this setting, efficiency is a priority and disputes are as a result resolved faster than they would have taken in the courts.
Comparisons with other Jurisdictions portray that our justice system is on the right direction in embracing ADR as a form of dispute resolution mechanism. The European Commission recently conducted a Public Consultation on Directive 2008/52/EC from 18th September to 11th December 2015. Directive 2008/52/EC is a cross border civil and commercial mediation directive that provides guidelines for adopting Mediation as the first recourse for dispute resolution among the EU countries excluding Denmark. At the EU level, the directive is voluntary and parties can opt not to include mediation as their first attempt at resolving a dispute before resulting to the courts or arbitration. Surprisingly, its effectiveness is worrying as only one percent of the cases in the EU have opted for mediation despite it being adopted five and a half years ago. It is not all sad for Mediation at the EU level as its efficiency is not in doubt. The average number of days in a mediation at European level is 43 days whereas the average number of days in court proceedings is 566 days. Compared to the Kenyan proposed structure of a maximum of 60 days under the recently gazetted Mediation Pilot Project Rules 2015, we are not doing badly especially noting that we have around 11 cases filed between 1960 and 1970 still in our courts. The cost factor is also an important consideration in embracing ADR. At the EU level, it is estimated that should mediation systematically precede any trial in civil disputes, annual cost savings could be between €15 billion and €40 billion. It is not surprising that the EU therefore want Mediation to be a mandatory step in dispute resolution and have made proposals to that effect.
At the East Africa level, mediation was introduced as a compulsory level for civil disputes in Tanzania as at 2001 while in Uganda in the year 2004. Back home, despite lagging behind, I am glad we have taken up these lessons and continue to adapt to the current trends in effective administration of Justice. It is time the Kenyan populace embraced ADR as part of their normal relationship guidelines. Whether in corporate commercial agreements or normal everyday laymen contracts, it is important to include an ADR clause to escape the cunning antics of lawyers in their best arena, the Court room. ADR offers a smile on everyone’s face. For the public, an effective and harmonious dispute resolution mechanism is now achievable. Justice should never be delayed. For the lawyer, a shorter and certain period to assist our clients and of course a predictable period to claim fees is desirable. For the judge and magistrate, cases that will later be settled by consent of parties which now unnecessarily increase the workload will significantly decrease. Lastly for the nation, a new mindset in amicable and peaceful resolution of disputes could go a long way in how we relate after a dispute and perhaps extend to how governance is perceived. An example by Rwanda in the use of the Gacaca courts should serve as a guide on how peaceful and amicable alternative dispute resolution can heal a nation. Perhaps then, we can all get along.
By Kimani Rucuiya, ACIArb
The author is an Advocate and a member of the Chartered Institute of Arbitrators-Kenya Branch.