BY LADY JUSTICE ASENATH ONGERI
A story is told of an elderly lawyer whose client had a case that dragged on in court for many years. The lawyer’s son finished high school while the case was going on, joined university, graduated from law school and joined his father’s law firm. The case was still unsettled.
One day, the senior counsel sent his young son to court to hold brief for him in the long outstanding case. The young lawyer upon perusing the file grasped all the legal issues at stake.
He realised that the case could easily be settled amicably. He discussed this with the opposing lawyer and consent was recorded. Elated by his achievement, the young lawyer rushed back to the office to share what he perceived to be the ‘good news’ with his senior counsel father.
Upon getting to the office, the young lawyer breathlessly beaming with pride started: “Dad, that longstanding case which has troubled you for many years was finally settled today!”
The response he got from his father was far from what he had anticipated. Instead of being met with congratulatory hugs and a promise of a bonus, the father responded: “You settled the case? You can’t be serious! You know that is the case that provided money for your education and family upkeep… What shall we eat now?”
This story aptly illustrates complexities that often lead to inordinate delays in settlement of cases in court. Conversely, the story also makes a strong case for Alternative Dispute Resolution (ADR). There are many a cases in court which could have been expeditiously resolved had ADR been employed.
In Kenya, ADR is anchored in the Constitution and embracing it will speed up the wheels of justice, decongest the courts and reduce backlog. Article 159(2)(c) of the Constitution sets principles that courts and tribunals, in exercising judicial authority, are to follow and states in part: “That alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be used…”
There is a proviso that traditional dispute resolution mechanisms shall not be used in ways that contravene the Bill of Rights or is repugnant to justice and morality, or results in outcomes that are repugnant to justice.
The sole purpose of ADR is to create active links that allow disagreeing parties to come to some sort of agreement.
The Constitution guarantees that: “Justice shall be applied to all persons, regardless of status; Justice shall never be delayed or denied; Alternative forms of dispute resolution shall be duly adopted within the set framework and existing structures; Justice shall be administered without undue regard to procedural technicalities; Justice shall be applied with due consideration to the purpose and principles of the Constitution, which must be safeguarded at all times.”
ADR is highly beneficial because it fosters cooperation and encourages increased compliance. This creates an active channel for the disagreeing parties to ensure that the dispute is solved satisfactorily.
The complimentary role of ADR under the Constitution go hand in hand to ensure that the right of Kenyan citizens to “have any dispute that can be resolved by the application of law decided in a free and public hearing before a court, or if appropriate, another independent and impartial tribunal or body.”
ADR might be a new system of resolving disputes in Kenya but not so regionally. The practice has been tried and tested in countries like Rwanda using the Gacaca Courts, and in other countries such as Uganda, Zambia and South Africa.
Last but not least, unlike in courts where the system is adversarial, parties resolving their dispute through ADR often remain friends after the case is resolved because ADR seeks to create “win-win” situations where everyone is a winner and therefore ADR can be also used as an effective tool to promote peaceful coexistence.
(The author is a judge of the High Court)