Different dispute resolution approach now needed in Kenya

President Mwai Kibaki (left) with Prime Minister Raila Odinga and Archbishop John Njue after attending a church service at the Holy Family Basilica in Nairobi on February 28, 2010. The Grand Coalition Government was a product of international mediators. Currently Kenya needs a different dispute resolution mechanism. PHOTO | STEPHEN MUDIARI | NATION MEDIA GROUP

What you need to know:

  • The 2010 Constitution triggered a vital conversation which brought to life institutions, strengthened separate arms of government and also entrenched devolution.

  • But our national discourse must continue to enable us to sustain the interrogation of our constitutional framework.

  • Open debates about our social contract as manifested in the laws, is a solid endeavour to neutralise the defeatist and negative voices of alienation, and similar characters who hold and entertain such hideous expressions and intentions.

Whether or not Kenya holds the fresh presidential election on October 26, it will obviously not solve the political and legal problems our country is going through.

Whereas legal problems easily get redress in courts of law, political problems are best addressed through Alternative Dispute Resolution (ADR) mechanisms.

In other words, the way to solve Kenya’s political problems is to have a national conversation.

Our national conversation ought to address questions of identity and direction.

We should also explain to ourselves our national desires and how to achieve them.

CONVERSATION

Why should we continue crawling, walking or even running together?

The 2010 Constitution triggered a vital conversation which brought to life institutions, strengthened separate arms of government and also entrenched devolution.

All these attempted to spread out the various centres of power.

But our national discourse must continue to enable us to sustain the interrogation of our constitutional framework.

This doesn’t mean that the Constitution has failed.

DIALOGUE

It simply means that as a country, we are well aware that there is no perfect constitution in the world, nor is there a perfect set of laws in any country.

To sustain the national dialogue is the expression of Kenyans to refine and improve the Constitution.

Open debates about our social contract as manifested in the laws, is a solid endeavour to neutralise the defeatist and negative voices of alienation, and similar characters who hold and entertain such hideous expressions and intentions.

It is, therefore, prudent to unpack our political crisis within the context of positive nation building, strengthening national institutions and building stable social, economic and political systems that work.

CRISIS

The first step is to acknowledge that we have a crisis.

Secondly, it is crucial to consider the design and development of structures that are alive to our ethnic realities.

This requires the intervention of a bipartisan and multi-sectoral approach to a negotiated and mediated agreement.

Experts or organised bipartisan groups like the religious fraternity may be invited to intervene.

Such structured discussions would interrogate the difficult questions that threaten Kenya’s social fabric, the economic prospects and the political stability.

ETHNIC DIVERSITY

Some of the pressing questions that cry out for immediate address, include why we continue to embrace the concept of the “winner takes all”, and the “loser loses everything”, in our political contests.

In an ethnically diverse country, tribal emotions can trigger some of the worst forms of suspicion, hatred and hostilities.

Obviously, such strong passions cannot be adequately addressed in the gladiatorial format of the formal judicial court systems.

It’s not a secret that our politics is organised around the tribe as the vessels for political mobilisation. This means that political actors represent ethnic aspirations and fears.

Consequently, election victories and losses assume ethnic interpretations, and perceptions of inclusion or exclusion.

CONFER

It is important to confer legitimacy to democratic ideals of free, fair, transparent and credible elections.

But it’s equally crucial to confer dignity and respect to election losers, who are obvious vessels of ethnic identities, hopes and fears.

Such hopes and fears can only be adequately canvassed within the framework of negotiated settlements, devoid of legalisms and idealism, which are the hallmarks of the conventional western-style court systems, which Kenya inherited from colonialism.

Alternative Dispute Resolution, or Appropriate Dispute Resolution (ADR) mechanisms, come in many forms including mediation, negotiations, arbitration, conciliation among others.

UNIVERSAL ACCEPTANCE

Evidently, ADR is the embodiment of ways and means of resolving disputes or conflicts outside the judicial process (formal litigation).

This has gained universal acceptance, both within the formal and informal dispute-resolution spheres.

In fact, Article 159(3) of Kenya’s Constitution expressly confers authority to ADR. 

The alternative mechanism is approved so long as it does not contravene the Bill of Rights, or is repugnant to justice and morality, or is inconsistent with the Constitution or any written law.

MEDIATION

In the Kenyan context, the two dominant political formations can opt for negotiations or mediation.

Mediation has been tested and implemented in Kenya before. 

The Grand Coalition Government of Mwai Kibaki and Raila Odinga of 2008, was a direct product of international mediators led by Kofi Annan.

The critical pillar of ADR is the consensual approach that inspires confidence, restores security and reaffirms the dignity of the parties concerned.

 The author is a Public Policy Analyst at Public Research and Development Consultants [email protected]