ADR Case Study: Kenya
The experience of the Peace Committees, established by the EMB as a decentralized ADR body, demonstrates the need for an ADR body to have a clear mandate and procedures established in advance. Otherwise, it risks inconsistency in its composition and practices. Kenya also demonstrates the use of ADR by a tribunal composed of magistrates and professionals as a first step in the adjudication of disputes, including inter- and intra-party disputes and party nominations, and the provision of an avenue to file an appeal.
Article 159(2) of Kenya’s Constitution encourages the use of ADR mechanisms (although not specifically for EDR), including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms.145 The Code of Conduct for elections (Schedule II of the Election Act) provides that the Independent Electoral and Boundaries Commission (IEBC) will establish Peace Committees composed of election officials, religious leaders, party representatives, and government officials. The intent was to channel disputes through the Peace Committees for mediation, conciliation, and negotiation prior to filing a complaint with the Code of Conduct Enforcement Committee at the IEBC in Nairobi, which had quasi-judicial powers. But in the 2017 elections, these mechanisms were not properly set up with a clear mandate or rules, and they have remained largely inoperative and ineffective.
During the 2013 elections, the IEBC established Peace Committees146 in each constituency, chaired by the returning officers appointed by the IEBC chair. These committees could issue warnings or liaise with other agencies, such as the prosecutor’s office or security agencies. However, the IEBC issued no specific rules to govern the operation of the Peace Committees.147 Similarly, in the 2017 elections, the IEBC did not adopt any rules or guidelines to define the roles, responsibilities, or functioning of the Peace Committees. While the Code of Conduct (incorporated in the Elections Act) provides that the IEBC establishes the committees and the returning officer leads them, the IEBC reported that, in some places, county officials took ownership, undermining the role of the election officials and contravening the law. These committees were not established in a consistent manner across Kenya in either 2013 or 2017. For the 2022 elections, IEBC is now considering regulating the Peace Committees to provide a first avenue for addressing disputes about the Code of Conduct through mediation or conciliation, rather than filing disputes directly at the central level with the EDR committee or with the Code of Conduct enforcement committee in Nairobi.
In addition to the Peace Committees lacking defined authority during the 2013 and 2017 elections, there are no records of the cases the committees handled or of decisions they made. In the 2017 elections, due to the lack of training, some returning officers reported taking decisions and imposing sanctions on candidates for breaches of the Code of Conduct. The sanctions reflected a limited understanding of the role of mediation and were both excessive and disproportionate. It can be a challenge to build mediation skills for election officials, such as returning officers and their deputies, who are used to making decisions on election matters. For the 2022 elections, the IEBC, with IFES’s support, developed guidelines and a brochure on the Peace Committees to clarify their composition, roles, and responsibilities and to explain to stakeholders the appropriate avenue for a dispute or grievance should the ADR process fail. The IEBC also trained all returning officers in ADR prior to the 2022 elections. It is crucial to avoid inconsistent resolution of disputes and to clarify the mandate of each mechanism and potential abuse of authority by members to avoid further increasing political tensions during the pre-election phase.
The Political Parties Dispute Tribunal (PPDT), composed of permanent and ad hoc magistrates, advocates, and professionals, is responsible for adjudicating inter-and-intra-party disputes relating to party primaries. It also offers mediation to disputants on a consensual basis. If this initiative is successful, it could present an example of judge-led mediation in pre-electoral disputes.
Political parties are required by law to establish an internal mechanism for dispute resolution (IDRM), but they are free to decide on the types of IDRM in their party’s internal rules. Early in 2022, the Political Parties Act (2011) was amended; it now requires an attempt to file a dispute through this internal mechanism prior to filing with the PPDT (the law previously required resolution through the IDRM). During the 2017 elections, political parties were required to attempt to resolve their disputes internally but, rarely did so, creating a challenge for PPDT when considering the validity of the disputes.148 The PPDT aims to limit lengthy proceedings and encourage parties to settle their intra- party disputes, rather than involving judges. It aims to limit the role of judges in internal party politics and therefore limit increased political pressure on them. Despite model rules adopted by the PPDT to guide the parties and candidates, the parties’ lack of awareness limited the use of ADR in the 2017 elections.
In preparation for the 2022 presidential and general elections, the PPDT reviewed its regulations and guidelines with the support of IFES and further clarified the use of mediation as a first step prior to the adjudication of a dispute. As a guiding principle, “alternative forms of dispute resolution including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms shall be promoted” by tribunal members. The regulations state that the PPDT can offer mediation or conciliation to the parties to a dispute. Consent is required from parties or candidates before mediation is attempted. The regulations are then more specific, providing that, after the close of pleadings, the Tribunal “may hold a scheduling conference to determine the possibility of alternative dispute resolution.” If ADR fails, the tribunal will fix a date for the hearing and decide the case.149
The PPDT is an interesting initiative, as the members of the tribunal include a judge as a chair and are established by the judiciary; therefore, this could present a successful example of judicial mediation in pre-electoral matters for intra- and inter-party disputes. If successfully implemented, this practice could expand to pre-election complaints filed before the judiciary, including hate speech or campaign-related disputes.
145 Constitution of Kenya, 2010, Article 159(2)(c).
146 The Elections Act, 2011 (No. 24 OF 2011), Second Schedule §17 (Kenya): “(1) The Commission may establish peace committees in every constituency during an election and referendum period. (2) Every political party, referendum committee, candidate, official and agent shall- (a) acknowledge the activity of peace committee established at the constituency level by the Commission (…).”
147 Pre-election dispute management: Between judicial and administrative dispute management mechanisms. (2012, September 17). http://kenyalaw.org/kenyalawblog/pre-election-dispute-management-between-judicial-and-administrative-dispute-management-mechanisms/
148 The PPDT provided some guidelines and issued model rules in the 2017 elections to guide political parties’ internal dispute resolution processes. The Office of the Registrar of Political Parties (ORPP) and the PPDT reported to IFES that political parties often failed to set up these first-step ADR mechanisms, preferring to go directly to the magistrates on the PPDT or the commissioners at the IEBC. The PPDT and ORRP are committed to educating parties further on ADR and encouraging them to establish and use their internal dispute resolution mechanisms for the upcoming 2022 elections.
149 Section 15 and 16 of PPDT draft regulations (procedure).