ADR, access to justice and development in Kenya

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. Mechan isms 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 tradit ional 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 con tribute 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 ru le 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 cen tres. 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 de velopment.