Achieving Access to Justice Through Alternative Dispute Resolutions: a Critical Analysis on Kenyan Legal Framework

Abstract

Kenyan courts are required to promote alternative forms of dispute resolution and safeguard timely administration of justice by ensuring timely disposal of proceedings and efficient disposal of their businesses. It is assumed that ADR is an effective tool of achieving these objectives and clearing case backlog. However, despite various judiciary-driven initiatives designed to institutionalize ADR, the Judiciary continues to demonstrate that case backlog remains a major challenge to the timely administration of justice in Kenya. Thus, the study sought to investigate the legal challenges that impede the use of ADR as a tool for achieving timely administration of justice in Kenya. The study employed doctrinal and comparative research methodologies. The study reveals that Kenya lacks a substantive statute on ADR and a national policy. The existing framework is characterized by piecemeal legislations on ADR and the sectoral approach which have occasioned coordination challenges, legal gaps and disharmony amongst normative rules and the established institutions. In addition, TDRMs and TJS disregard principles of natural justice, human rights, equality and the non-discrimination. Further, the efficacy of ADR has also been compromised by antagonism between the formal legal system and the informal legal system. Lastly, culture is equally to blame as Kenyans have litigious tendencies, a negative attitude against ADR mechanisms and advocates discourage their clients from resolving to ADR. By way of comparison, South Africa has a better legal and institutional framework designed to enhance professionalism, competency and institutional jurisprudence. The study recommends the enactment of a single unifying statute to regulate and monitor ADR mechanisms, standardization of TDRMs so as to uphold natural justice, non-discrimination and gender balance. Other recommendations include demystifying TJS, Rethinking the role of advocates, developing a policy framework and conducting civic education to detoxify Kenyans‟ litigious culture.