A lot of the time the discussions and efforts focus on how to improve the performance of the Judiciary while critical statistics demonstrate that a majority of disputes are handled outside the formal court system.
It is important that improvements in the environment for resolving disputes focus equally on alternative dispute resolution forum and outside-court mechanisms.
Resolution of disputes is a critical indicator of the annual World Bank Ease of Doing Business survey and rankings. Kenya has been improving steadily on the rankings over the last few years. It is important that such momentum be maintained.
A lot of the time the discussions and efforts focus on how to improve the performance of the Judiciary while critical statistics demonstrate that a majority of disputes are handled outside the formal court system.
It is important that improvements in the environment for resolving disputes focus equally on alternative dispute resolution forum and outside-court mechanisms.
Despite the Constitution recognising the place of tribunals as critical avenues for dealing with disputes, they have not received as much attention as they deserve.
By design tribunals are supposed to be fast, specialised and less formal in their modes of operations. This is to enable them to deliver justice quickly.
For the last decade though there have been constraints to the realisation of the full advantages that these dispute resolution mechanisms provide. First is their alignment with the Constitution. On June 23, 2014, the then Attorney-General Githu Muigai appointed a committee to review the rationale for the establishment of tribunals in Kenya following the adoption of the 2010 Constitution.
The committee submitted its report on December 20, 2015, highlighting the challenges facing tribunals and the required adjustments, including the question of whether all tribunals were part of the Judiciary, financial constraints, and the need to consolidate their operations. It proposed a Tribunals Bill to help address some of the structural and operational challenges.
For its part, the Judiciary too has attempted to address the required adjustments to align the operations of tribunals, including appointing a Registrar of Tribunals to coordinate their affairs, budgeting for tribunals which have transited to the Judiciary, appointing members of some tribunals through the Judicial Service Act and contributing to thoughts on a clear Tribunals Bill.
Despite the above measures, there are lingering challenges that inhibit these innovative entities in the dispute resolution architecture from delivering to their full potential. The transition process continues to be unclear, contested and haphazard.
While the report of the task force appointed by the Attorney-General estimated that there were around 60 tribunals as of 2015 — the number has since increased — only 17 have transited to the Judiciary.
That process continues to raise a lot of controversy, with debate about what is meant by local tribunals under the Constitution, the reluctance by the Executive and some tribunals to move to the Judiciary. Some tribunals moving back to operate under their parent ministry having initially come under the ambit of the Judiciary.
Justice Antony Mrima in a case filed by Okiya Omtatah recently ruled that local tribunals are part of subordinate courts, and that the appointment of their members by the Executive compromises independence of the Judiciary and violate the principle of separation of powers.
The court directed that the Tribunals Bill be finalised to ensure alignment of the operations of tribunals to the ethos and dictates of the Constitution.
Despite the court ruling the problems persist. During a symposium co-organised by the office of the Registrar Tribunals on enhancing efficiency of tribunals last week, these issues were animatedly discussed.
It is, therefore, important that the transition process receives urgent and comprehensive attention to avoid the current situation where tribunals pick and choose where to belong depending on their preference.
Unfortunately, that preference is sometimes guided by the levels of facilitation they will receive and less by principle.
The question of facilitation and entitlement should thus be addressed once and for all so that it stops being the carrot that determines where tribunals are anchored.
A much more fundamental question that the transition process has addressed sufficiently is that of mode of operations. Unfortunately, most of the rules of procedure are quite complex.
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