ADR, access to justice and development in Kenya
Date
2014-05
Authors
Kariuki, Muigua
Kariuki, Francis
Journal Title
Journal ISSN
Volume Title
Publisher
Kariuki Muigua and Company
Abstract
Development is not feasible in a conflict situation. Conflicts and disputes must be
managed effectively and expeditiously for development to take place. Formal mechanisms for
conflict management have not always been effective in managing conflicts. Mechanisms such as
courts have been inaccessible by the poor owing to technicalities, complex procedures, high
costs and delays. There has been a shift towards informal mechanisms for conflict management,
including alternative dispute resolution (ADR) and traditional dispute resolution mechanisms
(TDRM).
ADR and TDRM processes contribute to enhanced access to justice by all, and in
particular among the poor people. Enhanced access to justice strengthens the Rule of Law.
Existing literature in development studies has shown a correlation between the Rule of Law and
levels of development. ADR and TDRMs are thus quintessential from a developmental
perspective. The Kenyan legal framework has recognized the role of ADR and TDRM in
development. Existing laws require the use of ADR and TDRM in resolving a myriad of disputes
such as those relating to land, family matters, commercial and political questions.
In this paper the authors argue that the recognition of ADR and TDRMs within the legal
framework in Kenya, will contribute towards economic, social, cultural and political
development. This recognition expands the array of mechanisms that parties to a dispute can
employ in ventilating their disputes. Enhanced access to justice will also contribute to respect for
the rule of law, which is an essential precondition to development. ADR is also becoming a
lucrative economic venture with many professionals now working as full-time or part-time ADR
practitioners. In addition, a number of organisations have established ADR centres. Some of
these centres are expected to be major attractions for foreign investments in the country as they
will handle international arbitrations. ADR is also being taught in schools and in universities,
and is thus expected to contribute to social development.
Description
Keywords
Justice, Development, Kenya, Law