Alternative Dispute Resolution: An important link in achieving user-friendly justice

For centuries, Kenyan citizens have relied on the different avenues availed by culture and the constitution to access justice. However, since a formal constitution was set in place after independence, there has been an over-reliance in the formal justice system which has led to a backlog of cases. Currently, there are over 370,000 cases pending hearing in court and thousands more are added to this pile every day. In an effort to improve this situation, The Kenyan Judiciary commissioned HiiL with the development of a Justice Needs and Satisfaction (JNS) survey to understand the needs of Kenyans regarding legal problems. It was noted that every 4 years the people have to deal with around 18 million legal problems.

It was not all gloom as the report also noted that the channels that Kenyans used to access Justice. It was noted that Kenyans with low incomes go to chiefs for an affordable and speedy justice process. In the past, the Agrarian society especially in Africa was more receptive towards this method to resolve justice needs.

In August 2020, the Kenyan Judiciary launched the Alternative Justice System Baseline policy that promotes different methods of dispute resolution, which is a win as it ensures access to justice is easier. As of 2019, the Afro-Barometer report showed that only one in 20 Kenyans had contact with the judicial system and 35% were certain the corruption had crippled the country’s judicial system. For these people, the introduction of the AJS policy is a welcome move as it ensures different alternatives to seek justice.

The re-emergence of alternative dispute resolution today, is both an advantage and a risk. In a study conducted in 16 counties in Kenya by the Nairobi Centre for International Arbitration, 26.5% of the respondents indicated that they were very satisfied, 16.6% were quite satisfied and 21.5% were somewhat satisfied with ADR services provided by various institutions in the country. The study also found that there is a need to educate people on ADR methods around the country.

While the method helps clear the case backlog in the courts today, there are clear gaps in how ADR is handled in different parts of the country. According to the Alternative Justice Systems Framework policy, there is a concern that the different ADR methods may undercut the expansion of common law by taking away the judicial precedent, due to a lack of consistency and standardisation practices. Due to this, there’s a lack of a proper mechanism for accountability, especially at the grassroot level. Moreover, a perusal through ADR policies in most African countries reveals that a lot of them are traditional practices. The challenge associated with that is the fact that the practice may still be discriminatory towards certain groups of people like women and vulnerable individuals. However this argument only focuses on the structure of the particular institution as opposed to democratic values aligned to the method. For centuries different cultures around the world accepted it as a formal method of resolving disputes and it was only paused to accommodate formal legal processes.

Currently, this speedy and affordable solution is already provided for under Article 159 of the Kenyan constitution which mandates the Judiciary to promote alternative mechanisms of alternative dispute resolution mechanism (ADR) in the administration of justice. The mechanism as the name suggests is using other methods to resolve a dispute or conflict other than going through litigation. The other methods are:

1. Negotiation — this normally is the first method in resolving disputes in our everyday life. It is where two or more parties in a dispute come together, identify the cause of the dispute and try to resolve it. It is an informal process and it is completely controlled by the disputants.One of the fundamentals of a good negotiation exercise is transparency and good communication.
2. Mediation — this is more like assisted negotiation where the disputants get a third party to help them in resolving the dispute. The mediation could be informal where the parties in the dispute get someone who is either a friend, a colleague or a family member or even a chief to help mediate the dispute. The parties could also use the services of a professional mediator. The conversations held during mediation are confidential though the end result (written agreement) is usually binding.
3. Conciliation — this is more like mediation where the disputants get a professional to help them solve their disputes. The proceedings are confidential as well however the end agreement is binding. In conciliation, the conciliator provides parties with a proposal to resolve the issue, and the parties work from there.
4. Arbitration — This is more formal than all the above processes. This is more common in contractual disputes. The reason being that most contracts have a dispute resolution clause that stipulates arbitration should be explored before litigation. Disputants submit their dispute to an arbitrator who renders a decision following the process.

The Dispute Resolution Hub and Utatuzi Center

At HiiL, we work with innovative startups like the Dispute Resolution Hub and Utatuzi Center, that offer arbitration and dispute resolution services in order to reduce the backlog that cripples the court system. They aim to achieve user-friendly justice by availing mediation services at affordable costs. The two startups were both established in 2020 and compared to court systems, their services are more accessible, and faster.

These alternative methods of resolving disputes are cost effective, flexible and faster (these being the main barriers of access to justice) thus this is an avenue that can ensure more people access timely and affordable user friendly justice.

One key impact that the Judiciary seeks to achieve through Alternative Dispute Resolution practices is to reduce the case backlog by at least 50% by the end of 2022. Therefore, the Judiciary, in partnership with other stakeholders in the justice sector need to create mechanisms that can enhance the competence of ADR practitioners to ensure inclusivity and curb existing bias against different groups of people. Secondly, the institution can support innovators that directly deal with ADR in order to create an environment that fosters growth for innovation. If this can be achieved, then the Judiciary can have proof of concept that Alternative Dispute Resolution can play a major role in achieving SDG:16: Access to justice for all.