The new Kenyan Constitution of 2010 replaced the 1963 Independence Constitution and deals directly with issues surrounding access to justice. For example, Article 159(2)(c) has provided the framework for mediation by mandating the judiciary to promote Alternative Dispute Resolution int he administration of justice. Section 59 (B)(1)(a)(b) and (c) of the Civil Procedure Act give effect to this article of the constitution.
The Kenyan government also published a Mediation Bill in 2020. Once enacted by parliament, it will serve a number of purposes, including:
- Promoting the settlement of all civil disputes through mediation
- Specifying the principles applicable to mediation
- Providing for the establishment and recognition of a mediation committee that will provide reports to the Attorney General regarding mediation in Kenya
- Providing for accreditation and registration of mediators
- Providing for a process of submission to mediation as an alternative to the institution of civil action or to the continuation of civil actions that have been instituted
- Providing for the recognition and enforcement of a settlement agreement
Mediation in Kenya
Prior to the enactment of the new constitution in 2010, mediation had already been the subject of various workshops and seminars to generate community awareness. The Dispute Resolution Centre, established in 1998, was the first independent organization to promote mediation in Kenya as a separate track from arbitration. It was an early champion of mediation through its 40-hour training module and has recently formed an alliance with Strathmore University to create the Strathmore Dispute Resolution Centre. This center offers training in dispute resolution to law students and to professionals in other sectors of the economy including banking, mainstream government, and the judiciary through its training arm, the Judiciary Training Institute (JTI).
Presently, mediation is provided under a pilot court-annexed program with the aim of rolling out similar programs to the 47 county courts throughout Kenya. The Mediation Accreditation Committee (MAC) accredits mediators who have attained a 40-hour mediation training from various organizations such as the Strathmore Dispute Resolution Centre, Chartered Institute of Arbitrators (Kenya Chapter), Mediation Training Institute (MTI), Federation of Women Lawyers (FIDA-Kenya), and the ADR Committee of the Law Society of Kenya. As of July 1, 2020, MAC has accredited over 700 mediators.
Within the government, parliament has a standing committee on mediation, and other notable dispute resolution bodies exist including the Political Parties Dispute Resolution Board and the National Cohesion and Integration Commission.
Arbitration in Kenya
Arbitration is administered by the Kenyan Chapter of the Chartered Institute of Arbitrators (CIArb) and the Nairobi Centre for International Arbitration (NCIA). The NCIA was established in 2013 as a center for the promotion of international commercial arbitration and, through its efforts, has positioned Kenya as a hub for international arbitration in the Eastern and Southern Africa region.
Support from Courts
The courts in Kenya have fully embraced mediation and other forms of ADR as alternative justice mechanisms and as a means to expand access to justice. The foundational objective of the Kenya Civil Procedure Act is to facilitate just, expeditious, proportionate, and affordable resolutions to civil disputes. This enjoins the court and advocates to work toward expanding access to justice through mutual assistance. With this in mind, the Chief Justice issued a practice direction on mediation in 2018 with the objective of encouraging parties to arrive at an amicable settlement which shall be enforceable as a judgment or order of the court.
Recognition and Enforceability of Mediation Agreement
The Civil Procedure Act provides that an agreement reached in mediation shall be binding. Similarly, the mediation bill gives effect the Civil Procedure provision by providing that a settlement reached in mediation shall be binding and a court will only refuse recognition and enforcement on similar grounds for avoiding a contract and specifically (a) if the subject matter of the dispute is not capable of settlement by mediation under the law of Kenya or (b) the recognition or enforcement of the settlement agreement would be contrary to the public policy of Kenya.
Mediation is continuing to develop in Kenya. Some challenges have emerged including quality standards and apathy from the lawyers and advocates in embracing mediation, as well as issues surrounding technology. There is need for additional trainings for new mediators focused on skill development to further develop the practice of mediation. There is also a need for increased engagement with lawyers and other stakeholders in the justice sector in order to debunk negative myths surrounding mediation and other alternative justice mechanisms. The COVID-19 pandemic has also taught us to mediate differently and the judiciary in Kenya has developed a virtual dispute resolution manual to guide court-annexed mediation.
By Kennedy Odhiambo, Senior Fellow – Kenya, Weinstein International Foundation