Role of Alternative Dispute Resolution (ADR) in Management of Environmental Conflicts

 

Courtesy of UNEP

Introduction

It is among the Sustainable Development Goals to achieve a clean and healthy environment globally. It is impossible to secure a clean and healthy environment where there are conflicts emanating from different angles of the environment. The Environmental Management and Coordination Act defines the environment under Section 2 to include inter alia, all physical factors surrounding human beings such as; land, water, atmosphere, biological factors of animals, and plants. The concept of environmental conflicts is not new in Kenya, this attributes to the fact that citizens always compete for access to environmental components for survival, which begets conflicts between them.

Kariuki Muigua in his book Exploiting Conflict Management in Environmental Matters defines environmental conflicts to denote the contests that exist as a result of the various competing interests over access to and use of natural resources such as; land, water, and forests. Environmental conflicts are exacerbated by climate change implications such as drought resulting from notorious rainfall variability threatening food security and the survival of livestock in some parts of Kenya.

For instance, some communities in Baringo were conflicting over land and resources due to drought and the presence of invasive species in the area. If these conflicts are not resolved at the initial stages, they may end up harming the environment and the survival of the human population, for are long period people have prioritized litigation in solving conflicts of this nature before ADR proved to be more instrumental.

ADR is defined by Kariuki Muigua in his book Alternative Dispute Resolution and Access to Justice in Kenya, as a set of mechanisms that are utilized to manage disputes without resorting to the often-costly adversarial litigation.  The ADR mechanisms in Kenya are provided for in the Constitution of Kenya under Article 159(2)(c) and they include; mediation, arbitration, negotiation, reconciliation, and Traditional Dispute Resolution (TDR) mechanisms.

Legal framework basis for resolution of environmental conflicts through ADR in Kenya

The application of ADR in the resolution of environmental disputes in Kenya obtains its basis from the Constitution of Kenya 2010. Article 60 makes it among the principles of land policy to encourage communities to settle land disputes through recognized local community initiatives provided that, such initiatives are consistent with the Constitution.

The Constitution further calls upon the courts and tribunals exercising judicial authority to be guided by among other principles, the principles of ADR. They are set to include mediation, arbitration, negotiation, reconciliation, and Traditional Dispute Resolution (TDR) mechanisms.

TDR mechanisms are not to apply only when they are inconsistent with the Constitution, contravene a right provided for in the Bill of Rights, or where they are repugnant to justice and morality.  Recognition of ADR in the resolution of environmental conflicts came along with the suspicion that the post-election violence of 2007-2008 was not only caused by ethnicity but majorly by the conflicts of the utilization of environmental resources such as land.

For instance, the resort to mediation in Kenya was a result of the Koffi Annan initiative that came along to deal with among other issues the conflicts arising out of the 2007-2008 post-election violence.

Relevance of ADR mechanisms

ADR is the alternative form of conflict resolution which are cost-effective and which takes care of the liberty of parties. Take for instance mediation, conciliation, and mediation; these mechanisms give parties the right to participate and the autonomy to come up with a mutually agreed long-term solution.

Kariuki Muigua in his book, Managing Natural Resources Conflicts in Kenya through Negotiation and Mediation, states that autonomy of parties, flexibility, inclusivity, informality, and acceptability by all being a feature of most ADR mechanisms can be used in developing important solutions to concerns of the environment.

Additionally, Kariuki Muigua in his other book, Natural Resources and Environmental Justice in Kenya, correctly stated some of the reasons that make ADR more relevant in the resolution of environmental conflicts. According to him ADR mechanisms such as negotiation, facilitation, and mediation address the root cause of the conflict and allow for creative solutions and personal empowerment. Thus, more effective in solving conflicts emanating from environmental concerns. ADR is also faster and more hospitable to unique solutions that do not consider the material interest of the parties to the conflict.

Contemporary issues and challenges

Despite ADR being instrumental in resolving environmental conflicts it is affected by corruption among mediators and arbitrators, which undermines the main goal of ADR.  Intervention by courts is another persisting problem caused by the informal and non-binding nature of some of the TDR mechanisms.

Some parties ignore their participation role in mediation processes, and for ADR mechanisms such as mediation to succeed it requires the active participation of parties. Society’s unawareness also defeats the main goal of ADR in the resolution of environmental conflicts. Lastly, ADR is not well-packed and instrumental in dealing with complex conflicts a good example being the long-lived Luo-Nandi border conflict.

Recommendations

The instrumentality of ADR in the resolution of environmental conflicts is indisputable. However, to make it more effective there is a need for county governments to formalize and document some of the procedures used in traditional dispute resolution mechanisms to bridge the gap that may arise in procedure. There is also a need for strict measures to handle corruption to help in capturing public confidence in ADR. Lastly, there is a need for advocacy to enlighten society on the advantages of ADR in the resolution of environmental-related conflicts.

Conclusion

The future of ADR in the resolution of environmental conflicts appears to be more certain, more so because the practice takes note of the existing conflict management systems of society. It is also because lawyers in the field have accepted the practice and are slowly turning into arbitrators and mediators.

Shaibu Mwangolo is a final-year student at the University of Embu