presentation on access to justice and adr at lsk seminar in eldoret
TRANSCRIPT
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8/18/2019 Presentation on Access to Justice and ADR at LSK Seminar in Eldoret
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By Dr. Otiende Amollo, EBS – Chairperson ofthe Commission on Administrative Justice
A Presentation made at the Law Society of
Kenya Seminar on the theme ‘AlternativeDispute esolution Spectrum!
Eldoret, "th Octo#er $%&'
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8/18/2019 Presentation on Access to Justice and ADR at LSK Seminar in Eldoret
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Set of approaches and techniques aimed atresolving disputes in a non-confrontationalway
Advantages of ADR:• ost and time-e!ective
• "on-confrontational and #e$i%le
• &ocuses on restorative 'ustice as opposed to
retri%utive 'ustice• Appreciates the cultural conte$ts and
addresses the root causes of disputes
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8/18/2019 Presentation on Access to Justice and ADR at LSK Seminar in Eldoret
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Ar%itration (ediation ) *A+ ,. / 0102 onciliation ) *A+ ,. / 0102 "egotiation ) *A+ ,. / 0102
Reconciliation ) *S+ 03 Land Act2 4ntermediary ) *A+ 13567 / S+ 88 4RA2 Ad'udicator ) *S+ 09 A Act2 ;raditional dispute resolution methods )
*A+ ,1.5075c72 ;ruth and ustice
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8/18/2019 Presentation on Access to Justice and ADR at LSK Seminar in Eldoret
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"ecessity of access to 'ustice for the rule oflaw / realisation of civil li%erties
Access to 'ustice connotes adequate dispute
resolution process ) of theonstitution of Kenya? 03,32
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Pre-colonial traditional 'ustice system%ased on restorative 'ustice
onventional mode of disputes resolutionof the traditional 'ustice system
;ransplantation of @nglish legal systemand relegation of the traditional 'usticesystem to the periphery+
Resilience of the traditional 'ustice system
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&irst statute in ,.,> ) Ar%itration rdinance %ased on
the @nglish Ar%itration Act of ,.
Amendments in ,.9? ,..1 and 033. ) Lateramendments %ased on the model of the Bnited "ationsommission on 4nternational ;rade Law of ,.1+
ther relevant laws include the onstitution?@mployment Act? La%our Relations Act? La%our4nstitutions Act? ivil Procedure Act? @nvironment andLand Act? ommission on Administrative ustice Act?"ational Land ommission Act and "airo%i 4nternationalentre for Ar%itration Act+
Role of other actors such as the hartered 4nstitute ofAr%itrators 5Kenya hapter7 and the entre forAlternative Dispute Resolution+
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Article ,1.507 ) Principles of e$ercise of 'udicial
authority ) 7 and ,1.587 of the onstitution
Article 965075f7 ) Power to the "ational Landommission
Article ,,8 ) (ediation ommittees %etween the"ational Assem%ly and the Senate
Article ,.5>7 ) Resolution of 4nter-governmentaldisputes
Article 0105,75%7 ) ADR powers for s and 4s
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8/18/2019 Presentation on Access to Justice and ADR at LSK Seminar in Eldoret
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Ar%itration Act
"airo%i 4nternational entre for Ar%itration Act
ivil Procedure Act
@nvironment and Land ourt Act
ommission on Administrative ustice Act
4nter-governmental Relations Act
"ational =overnment o-ordination Act
@mployment Act
La%our Relations Act
La%our 4nstitutions Act
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Alternative Dispute Resolution: A misnomerF
ADR: A threat to the 'udicial systemF Di!erentiation in con#ict conte$ts ADR is appropriate for con#ict management
e+g+ P@G in Kenya / inter and intra state
con#icts? / non-'usticia%le disputes ourt sanctioned vs 4ndependent ADR 5A?
"L? K"HR / K"HR7 omplementary of mechanisms
onstitutional approach of appropriateness ofcon#ict resolution instead of alternative+ Shared responsi%ility in administration of 'ustice
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8/18/2019 Presentation on Access to Justice and ADR at LSK Seminar in Eldoret
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aseload for the udiciary further necessitates
need for complementarity &or instance? in 03,0I,8 &J? the total num%er of
cases handled %y the udiciary 5new andpending7 stood at >6?18 out of which ,.3?3.8
were resolved leaving 916?693 pending+
;he population ratio per 'udicial ocer:• Kenya - ,: 6?333
• Rwanda ) ,: >0?333
• @uropean Bnion ) ,: ,?133
• hinaIapanI4ndia ) ,: ,3?333
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4nsucient legal framewor Knowledge of ADR
Acceptance of ADR
• ourts ) Perception of competition /reluctance to refer matters to ADR
• Lawyers ) Lac of clear remuneration scheme
• Pu%lic ) %session with court orders
Lac of clarity on place and relationshipwith pseudo-statutory ar%itration
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ce of the m%udsman esta%lished under Art+ 1.5>7 of
the onstitution and A Act+ (andate includes:
(aladministration
Administrative 4n'ustice
(isconduct and 4ntegrity 4ssues
Advisory pinions and Recommendations
;raining of Pu%lic cers
Performance ontracting
Alternative Disputes Resolution
Special Rights
Shared role on onstitutionalism Persons in ustody
4mplementation of Recommendations of ommissions and ;as&orces
Powers of the High ourt
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8/18/2019 Presentation on Access to Justice and ADR at LSK Seminar in Eldoret
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Mor with di!erent pu%lic institutions to promote ADR
on matters a!ecting pu%lic administration *s+ 5f72+
Article 0105,75e7 of the onstitution - powers forconciliation? mediation and negotiation
Part G of the A Regulations on ADR (andate in dispute prevention through systems
investigations and proposals on improvement of pu%licadministration *Section 5a7?5%7?5d75e7 and 5f7 of theAct2+
Take Remedial Action ) A+ 1.5075'7 / S+ 5c7 )
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(ediation to the ;ruth? ustice and
Reconciliation ommission on the dispute%etween the hairperson and theommissioners
(ediation %etween the "ational =ender and@quality ommission and the Salaries andRemuneration ommission
(ediation %etween the "ational Land
ommission and the Salaries andRemuneration ommission
(ediation %etween the "ational Police Serviceommission and the 4nspector-=eneral of Police
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(ediation %etween Kenya Power and (adiany
Mater and Sanitation Pro'ect
(ediation %etween