THE FUTURE OF JUSTICE IN KENYA
Alternative Dispute Resolution (ADR), though informally, may be considered as an ancient concept in the adversarial Kenyan legal system dating back to the pre-colonial era. This is premised on the fact that African Communities through their religious as well as customary structures embraced reconciliation as opposed to the lengthy and combative court system in resolving their disputes. Notably prior to the promulgation of the Constitution of Kenya 2010 there was no comprehensive legal framework governing the application of ADR in dispute resolution. However with the advent of the Constitution of Kenya 2010 the concept is steadily being incorporated by the Judiciary as a starting point in resolving all civil disputes.
At the International scene for instance the United Nations Commission for International Trade Law (UNCITRAL) has adopted a model law on international commercial conciliation in the spirit of promoting ADR. In the same spirit ,Article 159 (2) (c)of the Constitution of Kenya 2010 provides that in exercising Judicial authority courts and tribunals shall be guided by the principle of promoting ADR as well as Traditional Dispute Resolution Mechanism (TDRM). Article 159 (3) stipulates that the TDRM shall not be used in a manner that contravenes the Bill of Rights, is repugnant to justice and morality or inconsistent with the Constitution and other written laws.
Article 189 as well embraces ADR as a form of resolving intergovernmental disputes in the spirit of fostering good relationship between National and County Governments. The Civil Procedure Act as well provides for the overriding objective being at the center of resolving civil matters as well as embracing ADR. The Judiciary has recently piloted the Court Annexed Mediation within the High Courts in the Commercial and Family Division in Nairobi in the spirit of promoting ADR even as the Task Force on Informal Justice System formulates an appropriate judicial policy on Alternative Justice Systems (AJS).
FIDA Kenya‘s flagship Access to Justice Programme in the bid to facilitate expeditious disposal of cases as well as promote reconciliation of parties has over the years embraced mediation as a form of ADR. With a success rate of over 70% both internal and external mediators have tirelessly embraced the nonaligned third party role to the benefit of thousands of parties.
We therefore proudly say aluta continua!!!!!!