International Development Law Organization

Enhancing access to justice through alternative dispute resolution in Kenya

Following the adoption of a new Constitution in Kenya in 2010, its implementation has seen significant improvements in the promotion and protection of human rights, gender equality and access to justice. Nonetheless, sustainable development of the country and strengthened public confidence in the judiciary continue to be key priorities requiring ongoing reforms.

IDLO supported the National Alternative Dispute Resolution Stakeholders Forum from 12 – 13 April in Nairobi together with the Kenyan Judiciary’s Taskforce on Alternative Dispute Resolution and the Nairobi Centre for International Arbitration (NCIA).

Supported by the Embassy of the Kingdom of the Netherlands and the Danish International Development Agency, the forum convened over 200 participants from the government, private sector, civil society and academia to discuss various ways to enhance alternative dispute resolution (ADR) mechanisms for improved sustainable development, economic growth and access to justice for Kenyan citizens.

“The Constitution of Kenya 2010 envisions a multifaceted, pluralistic judicial operative that recognizes the coexistence of alternative dispute resolution and alternative justice systems within and alongside the formal justice system,” remarks Hon. Deputy Chief Justice Philomena Mwilu, speaking at the forum. “The judiciary is committed to realizing this and continues to support and undertake activities towards [operationalizing] alternative dispute resolution throughout the judicial system.”

IDLO has partnered with the judiciary and other institutions offering alternative dispute resolution mechanisms as part of its work in Kenya

“Kenya’s new constitutional order recognizes the symbiotic and equal value of both the formal justice system and the wealth of traditional systems that have been operating in Kenya at the community level for hundreds of years. The forum was necessary to bring together actors across sectors to understand and appreciate the complexity of dispute resolution in Kenya,” remarked Ms. Kimberly Brown, IDLO’s Program Manager in Kenya for Access to Justice and Gender Reforms.

A recent survey on justice needs and satisfaction in Kenya conducted by the judiciary, HiiL and the World Bank indicates that only 10 per cent of Kenyans chose the courts as a way of solving their legal problems. As it can be costly to engage with the formal justice system, a majority prefer other modes of dispute resolution, including traditional mechanisms, mediation, and arbitration.

The use of ADR can reduce the time it takes to resolve disputes, particularly in tribunals and traditional and alternative justice systems, and diminish the backlog of cases experienced by the courts. “To resolve all disputes through litigation is untenable, particularly as it may unnecessarily burden the formal legal system,” commented Hon. William Cheptumo, MP Baringo North and Chair of the Justice Legal Affairs Committee in Parliament.

What’s more, a faster dispensation of disputes can serve to improve sustainable development and stimulate economic growth by building confidence in foreign investors. The World Bank’s Ease of doing business rankings considers ADR in Kenya as an indicator towards the enforcement of contracts, and the use of ADR in international commercial contracts in the country is expected to increase. 

Benefits notwithstanding, a lack of consistency and standardization of practices across ADR mechanisms can deter private sector engagement, and there is a need for better coordination between actors.

In response, the National Alternative Dispute Resolution Stakeholders Forum discussed the experiences of various stakeholders on the current status of ADR, capacity development needs and coordinated strategies for institutionalizing ADR across all sectors.

Along with forum discussions, a baseline assessment of ADR in Kenya with recommendations for action, commissioned by the Judiciary and supported by IDLO with the NCIA, will inform the creation of a roadmap for the development of the national ADR policy framework, including on issues for the commercial justice sector and the nuanced needs of traditional justice systems.

“Even as stakeholders continue moving in their own particular sectoral niche, as Kenya begins conceptualizing the policy road map for ADR, we must appreciate and tap synergies, risks and opportunities to ensure harmonization,” Ms. Brown continued. “IDLO looks forward to continuing to support strengthening ADR in Kenya.”