Proposed law to alternative dispute resolution
By Rawlings Otieno
| October 31st 2019
Courts will no longer have to hear all civil cases should a new Bill tabled at the Senate be passed into law.
The Alternative Dispute Resolution Bill 2019, sponsored by nominated Senator Sylvia Kasanga, seeks to put in place a legal framework for the settlement of certain civil disputes through conciliation, mediation and traditional dispute resolution.
According to Ms Kasanga, if passed, the law will apply to certain civil cases, especially disputes involving the national government, county governments or State organs.
The Bill has laid out the procedure to be followed during mediation; the role that the mediator will play and how the opposing parties will conduct themselves during the mediation process.
Kasanga argues that effective dispute resolution mechanisms usually guarantees peace, they spur trade and contribute to the political development of a country.
In an interview, she said that in Kenya, disputes are mainly resolved through the court process which is costly and does not always end up reconciling the conflicting parties.
“Article 48 of the Constitution obligates the State to ensure access to justice, the ability of people to seek and obtain a remedy for their grievances, in line with human rights standards,” reads part of the Bill.
According to Kasanga, the Bill seeks to implement Article 48 and 159(2) (c) of the Constitution with respect to promoting the use of alternative dispute resolution mechanisms in resolving disputes.
However, if passed, the law will not apply to disputes that are subject to the Arbitration Act.
These are disputes that have a tribunal established to handle them. They include boundary and election disputes.
It will also not apply to disputes involving the interpretation of the Constitution. These are disputes involving denial of fundamental rights and freedoms and cases where public interest is involved.
The Bill also provides for accreditation and registration of conciliators and mediators. This is to ensure professionalism and to protect citizens from quacks.
“A person shall not practice as a conciliator or a mediator under this Act unless that person has been accredited and registered as a conciliator or mediator by the Committee,” reads part of the Bill.
“A person who intends to practice as a conciliator or a mediator shall submit an application in the prescribed form together with the application fees to the Committee for accreditation and registration.”
The proposed law seeks to provide for a recourse to court if recognition and enforcement of a settlement agreement by by the parties involved is not observed.
It also sets out the duties of an advocate during a mediation process, and explains the grounds one party can refuse to honour a settlement agreement.
If the Bill is enacted into law, the parties involved will have power to suspend the limitation period of the agreement.
It also sets out alternative dispute resolution costs.
”The Chief Justice may make rules of practice and procedure, and regulations regarding to any provisions of this Act,” the bill reads in part.
It also proposes the amendment of the Civil Procedure Act, with a view to rename the Mediation Accreditation Committee to the Alternative Dispute Resolution Committee.
The Bill further provides that the Chief Justice may make rules of practice and procedure, and regulations generally for the better implementation of any provisions of this Act.
The Bill has been presented to the Senate Committee on Justice, Legal Affairs and Human Rights.
It was introduced to the House in August this year and first read on September 19, 2019.
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