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Regional court ‘can resolve Migingo conflict’

By | Published Mon, June 1st 2009 at 00:00, Updated Mon, June 1st 2009 at 00:00 GMT +3

By Nyakundi Nyamboga

Retired judge Justice Kasanga Mulwa is back in Nairobi after an arbitration workshop in Dar es Salaam, Tanzania, last week.

In a candid chat with this columnist, the judge says the arbitration arm of the East African Court of Justice would be moribund unless East African Community member states use it to arbitrate disputes.

Migingo Island: Kenya and Uganda are locked in an ownership row over the island in Lake Victoria. [PHOTO: FILE/STANDARD]

He says: "Even the much-publicised Migingo Island issue could be determined here if member states, under a special agreement, submitted to the arbitration tribunal".

It is unnecessary to consider taking the dispute to a UN dispute resolution forum, he says.

Reiterating a position taken earlier by the EACJ court registrar, Dr John Ruhangisa, the judge notes that the court was yet to decide any arbitration matter although it has experienced personnel.

He observes that member states and individuals could appoint the court as arbitrator over disputes arising from contracts with an arbitration clause.

The EACJ can constitute itself into an arbitration tribunal. The power is vested in the court by the treaty establishing the East African Community whose members are Kenya, Uganda, Tanzania, Rwanda and Burundi.

Rules of arbitration

To discharge this mandate, the court has, since 2004, rules to govern arbitration proceedings.

The court’s registrar told a workshop in Nairobi on May 15 that "no one has appointed it as arbitrator and if any has, there has not been any dispute to resolve".

This is despite the fact that the EACJ has many advantages against other arbitrators.

Even member states have not used the free services of the court as far as arbitration is concerned, but find it easier to go to France or UK for exorbitant arbitration.

The registrar said the court was under-utilised even in its other areas of solving disputes despite touring member states to raise people’s awareness about its jurisdiction in 2003.

Following the education campaign, Ruhangisa said, they received their first case in 2004.

To date, six cases (references), one advisory opinion, ten applications and three bill of costs have been heard by the court.

However, the court is yet to test its arbitration jurisdiction as no matter has been referred to it.

It was against this background the court found it necessary to educate member states on its arbitration jurisdiction.

Justice Mulwa was contracted to lead the exercise. He retired from the court last year after a seven-year stint.

He is a chartered arbitrator of the UK-based Chartered Institute of Arbitrators. He is also a retired judge of the High Court of Kenya.

The campaign targets national bar associations, judicial officers, attorneys-general, business community, civil society, law reform commissions and law faculties.

In 2006, the EACJ organised a seven-day training, conducted by Prof Julian Lew of the London Institute of Arbitrators, to provide judges with arbitration skills. Unfortunately the judges have not arbitrated any matter.

The court will conduct similar training for judges later this month, to familiarise them with recent arbitration issues and skills.

EACJ has two chambers, first instance and appellate division. The first instance chamber is headed by the principal judge and the appellate division has president.

Last month, Ruhangisa told participants at the Nairobi workshop that the court relies on lawyers to advise their clients and get instructions to file cases or disputes in the court registry for adjudication and arbitration.

EAC treaty

The Treaty for Establishment of the East African Community provides that the East African community (its organs and institutions), EAC partner states and any other parties, can bring an arbitration dispute before the court.

The matter or dispute must contain an arbitration clause, conferring jurisdiction to the court or the parties must come up with a special agreement submitting to the court’s jurisdiction.

When exercising the arbitration jurisdiction under article 32 of the Treaty, the court converts itself into an arbitration tribunal.

The tribunal may compose one arbitrator or any number, agreed upon by the parties.

In case of a sole arbitrator, the presiding judge may upon an application or on his own, appoint more than one arbitrator depending on the nature of the dispute. The rules empower the tribunal to make a wide range of orders, among them interim measures to preserve the subject matter, to appoint experts on any specific issue and make the award.

Alternative resolution

Arbitration is considered as an Alternative Dispute Resolution.

It is a judicial process whose procedure is tailored to meet the demands of a case.

Some of its distinguishing characteristics are that it is private and consensual process; parties in dispute agree to present their grievances to a third party for resolution and; the panel or the individual will be chosen directly by the parties.

This is unlike in court litigation where you cannot choose your judge and where the judges are basically experts in law only and not on specialised issues, the type, which often end up in arbitration.

The third party chosen should be knowledgeable in the subject matter and is to render judgement in accordance with the merits of the case.

Arbitration and other alternative dispute resolution mechanisms; mediation, negotiation, adjudication, expert determination and conciliation, have been billed as the panacea to the congestion in the civil registry.

Kenya is taking deliberate steps to review its arbitration laws. The Arbitration (Amendment) Bill, 2009 by the AG proposes to amend Section 4 of the principal Act, to widen the scope of an arbitration agreement that is to be in writing to include email or facsimile transmission; amend Section 3 to clarify the distinction between domestic and international arbitration; amend Section 6 to provide a respondent to a claim in court make an application to refer the matter to an arbitration tribunal on the day he enters appearance or acknowledges the claim; amend Section16 to provide for appointment of chairman or umpire in relation to arbitration proceedings conducted by two or more arbitrators and; the Bill proposes to insert new Section16A and 16B to provide for resignation of an arbitrator and to allow the High Court to cushion him from any liability respectively.

The civil procedure Act is also to be amended to allow for Alternative Dispute Resolution effectively ushering in court annexed arbitration and other alternative dispute resolution mechanisms.