Proposed law seeks alternative dispute resolution

Kenyans will no longer have to file all their cases at the courts and wait for years to get justice if a new bill providing for alternative dispute resolution is enacted.

The Alternative Dispute Resolution Bill, 2021 provides a legal framework for the settlement of certain disputes by conciliation, mediation and traditional dispute resolution.

If passed, the law will apply to certain civil disputes including where the National government, a county government or a State organ is a party.

“Effective dispute resolution mechanisms in a country will guarantee peace, is an enabler of trade and investment, and contribute to economic, social and political development of the country,” the bill read in part.

The proposed law, which will ease burden on the courts which are struggling with case backlog, is sponsored by Nominated Senator Sylvia Kasanga.

It’s been introduced for First Reading in the Senate.

The Bill sets how persons can use conciliation or mediation, the roles of the parties and the conciliator or mediator, and all the steps that must be taken right from the time parties begin the process up to the end.

It provides for accreditation and registration of conciliators and mediators which is aimed at ensuring professionalism and to protect the citizens from quacks.

“A person shall not practice as a conciliator or a mediator under this Act unless that person has been accredited and registered as a conciliator or mediator by the committee,” the bill states.

Kasanga in her bill argues that in Kenya, disputes are mainly resolved through the court process which is costly and takes longer for disputes to be resolved.

This, she argued, has resulted in case backlog in courts and that parties are not in control of the outcome of a dispute and does not always result in reconciling the parties.

“Article 48 of the Constitution obligates the State to ensure access to justice, the ability of people to seek and obtain a remedy for grievances in line with human rights standards, for all persons,” reads part of the bill.

According to Kasanga, the Bill seeks to implement Article 48 and 159(2) (c) of the Constitution with respect to enhancing access to justice and promoting the use of alternative dispute resolution mechanisms in resolving disputes.

However, if passed, the law shall not apply to disputes subject to arbitration under the Arbitration Act, disputes where a tribunal established under written law has exclusive jurisdiction and election disputes.

If enacted, the law will not apply to disputes involving the interpretation of the Constitution, a claim for a violation, infringement and denial of a right or fundamental freedom in the Bill of Rights.

It will also not apply in disputes where public interest involving environmental or occupational health and safety issues are involved.

“A person who intends to practice as a conciliator or a mediator shall submit an application in the prescribed form together with the application fees to the committee for accreditation and registration.”

“The bill further provides that the Chief Justice may make rules of practice and procedure, and regulations generally for the better carrying into effect of any provisions of this Act,” the bill reads in part.

The bill further provides that the Chief Justice may make rules of practice and procedure, and regulations generally for the better carrying into effect of any provisions of the Act.

-Edited by SKanyara