Heralding a New Dawn: Achieving Justice through effective application of Alternative Dispute Resolution Mechanisms (ADR) in Kenya

Abstract

This paper explores the possibility of efficiently accessing justice through alternative dispute resolution mechanisms. Access to justice is now well entrenched in the current constitution of Kenya 2010 (hereinafter the constitution) as one of its fundamental pillars. Access to justice by majority of citizenry has been hampered by many unfavourable factors which are inter alia, high filing fees, bureaucracy, complex procedures, illiteracy, distance from the courts and lack of legal knowhow. Alternative Dispute Resolution (ADR) is used to refer to the management of disputes without resorting to litigation. ADR has the potential to ensure access to justice for the Kenyan people. This potential should be exploited. ADR mechanisms such as negotiation, conciliation and mediation bear certain attributes that can be tapped and lead to justice and fairness. These attributes include party autonomy, flexibility of the process, non-complex procedures and low cost. The author argues that where they have been used in managing disputes they have been effective since they are closer to the people, flexible, expeditious, foster relationships, voluntary and cost-effective and thus facilitate access to justice by a larger part of the population. This paper starts with a brief background and then proceeds to examine the effect of Article 159 of the Constitution, the range of alternative dispute resolution mechanisms, implementation of alternative dispute resolution mechanisms, the challenges and opportunities and ends with a short conclusion.