Use of Alternative Dispute Resolution to Settle Conflicts From Infrastructural Development Activities: a Case Study of Standard Gauge Railway Project in Nairobi National Park

Abstract

This work looks at the consequences of litigation and alternative dispute resolution to settle conflicts from development activities that impact environmental conservation. Conflicts emerging from implementation of different sustainable development goals have undoubtedly increased over the last decade. specifically, the implementation of SDG 9 that seeks to build resilient infrastructure, promote inclusive and sustainable industrialization, and foster innovation has often times conflicted with the implementation of SDG 15 that seeks to protect, restore and promote sustainable use of terrestrial ecosystems sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss. Alternative dispute resolution mechanisms have steadily spread to be used in resolving environmental matters. Alternative dispute resolution is generally considered a better method of dispute resolution as it saves time and financial resources compared to litigation1. Environmental disputes often arise because of conflicting views over what constitutes sound policy for the environment. Often, stakeholders have different stakes in the outcome regarding the environmental conflict. Equally, stakeholders in environmental conflict have different ideas of how the resources should be managed and allocated2. The main purpose of this study is to evaluate the use of alternative dispute resolution to settle conflicts from development activities in the Nairobi National Park. The study assessed the level of application of ADR in conflict resolution involving sustainable development disputes. The analysis revealed that ADR has not been applied to resolve the disputes resulting from the SGR development in the NNP. These findings are similar to those of a research that looked at the resolution of disputes arising from major infrastructure projects in developing countries whereby it was found that the use of ADR mechanisms is minimal and scanty evidence is available on their application3. In this study, the findings indicate that the various stakeholders involved in the matter have only considered litigation to resolve the issue. Several challenges were found to limit the application of ADR in resolving conflicts emanating from development activities in protected areas in Kenya. The challenges included the lack of proper backing of streamlined ADR utilization in the Kenyan environmental laws, lack of capacity development in terms of ADR experts at high levels of governmental decision making, lack of adequate investment in ADR mechanisms in terms of capacity and financing, lack of avenues and platforms for practicing ADR, and the failure by the Kenyan judiciary to promote the use of ADR in sustainable development disputes in Kenya. Additionally, litigation as a method of dispute resolution primarily focused on procedural issues (such as lack of EIA certification, non-compliance with EIA certificate conditions and lack of public participation). However, the complexities fronted by infrastructural development and indeed infrastructural development in the Nairobi National Park are ecological complexities that affect the integrity of the park’s biodiversity. Such complex issues stand a better chance of resolution through less combative dispute resolution mechanisms such as ADR, where the goal is to find an amicable solution as opposed to winning a court case. 1 Ryan, Michelle. “Alternative Dispute Resolution in Environmental Cases: Friend or Foe?” Tulane Environmental Law Journal, 1997. 2 Ibid 3 Mante, Joseph, Ndekugri, I, and Ankrah, Nii. Resolution of Disputes Arising From Major Infrastructure Projects in Developing Countries. COBRA 2011 - Proceedings of RICS Construction and Property Conference. 104-116 (2011).