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A CRITIQUE OF THE MEDIATION BILL, 2020

On 15th June 2020, the Mediation Bill, 2020 was published vide Kenya Gazette Supplement No. 92 (National Assembly Bills No. 17). The Bill is for an Act of Parliament to provide for the settlement of all civil disputes by mediation; to set out the principles applicable to mediation; to provide for the establishment of the Mediation Committee; to provide for the accreditation and registration of mediators; recognition and enforcement of settlement agreements; and for connected purposes.

The Bill, as it is, raises various contentious issues as regards how mediation is conducted. They are as follows;

1. Mandatory requirement for mediation. 

The Bill ostensibly makes it compulsory to have all civil disputes subjected to mediation. This compulsory requirement is evident in clause four which reads as follows;

           “This Act shall apply to all civil disputes.”

Mediation Bill

The word “shall” connotes a mandatory nature of the Act in that if passed, it will mandatorily apply to all civil disputes. It is noteworthy that clause 5 of the Bill lists the principles of mediation. Among the said principles, one of them is that participation in the mediation process is voluntary, and a party may withdraw from the mediation process at any time. However, the Bill then introduces another contradictory clause (clause 22 (1) (a)) which provides that:

“A party shall take reasonable measures to resolve a dispute by mediation before resorting to judicial proceedings.” 

The Mediation Bill

Moreover, clause 33 provides as follows;

An advocate shall, prior to initiating judicial proceedings, advise a party to consider mediation.”

Additionally, clause 34 mandatorily requires confirmation that mediation has been considered before initiating judicial proceedings. It provides as follows;

  • (1) A party shall file a mediation certificate with the court at the time of commencing judicial proceedings, stating that mediation has been considered.
  • (2) A party entering appearance shall file with the court a mediation certificateat the time that party enters appearance or acknowledges the claim, stating that mediation has been considered.
  • (3) An advocate shall file with the court a mediation certificate, at the time of instituting judicial proceedings, stating that the advocate has advised a party to consider mediation.
  • (4) A court may consider the fact that a party has considered or participated in mediation when making orders as to costs, case management, or such orders as the court may determine.”

Given the foregoing, it is evident that the Bill seeks to make mediation a prerequisite for instituting judicial proceedings. This, therefore, makes it mandatory.

2. Broad Scope of Reference for mediators.

By making all civil matters be subjected to mediation before the institution of judicial proceedings, the Bill, if passed into law, will vest mediators with an extensive scope of reference as they will handle any civil dispute.

3. Vesting the Attorney General with powers which are vested in the Judiciary.

The Bill under PART II establishes the Mediation Committee, which shall be appointed by the Attorney General (Clause 6 (1). This is problematic and unconstitutional for the following reasons:

  1. Article 159 (1) of the Constitution of Kenya, 2010 provides that judicial authority is derived from the people and vests in and shall be exercised by the courts and tribunals established by or under the Constitution. 
  2. Article 159 (2) (c) of the Constitution of Kenya, 2010 further provides that in exercising judicial authority, courts and tribunals shall be guided among other things by the principle;

“alternative forms of dispute resolution, including reconciliation, mediation, arbitration, and traditional dispute mechanisms shall be promoted subject to clause 3.”

This is a clear indication that mediation is under the purview of judicial authority as opposed to the Executive through the Attorney General. This is reflected under section 59A. of the Civil Procedure Act Cap. 21 Laws of Kenya which provide that the Chief Justice shall appoint the Mediation Accreditation Committee.

 3. Clause 8 also vests the Attorney General with the power to appoint a Registrar and other officers. They may be necessary for the effective discharge of the functions of the Mediation Committee. 

4. Clause 12 (c) provides that a person shall cease to be a member of the Committee if such person resigns in writing, addressed to the Attorney General.

5. Clause 40 vests the Attorney General with the power to make rules and regulations.

By virtue of the clauses mentioned above, the Bill would lead to an unconstitutional law that gives the Attorney General powers vested in the Judiciary and exercised by the Chief Justice.

In conclusion, this Bill through the clauses highlighted above, if passed as it is, it would lead to an unconstitutional law that interferes with the right of access to justice by introducing unnecessary barriers, right of parties to a fair hearing over and above Judicial Authority, and thereby violating Articles 48, 50 159 of the Constitution of Kenya, 2010 respectively.

Professor Tom Ojienda (SC) wrote to the Justice and Legal Affairs Committee of the National Assembly on 6th July 2020 and gave recommendations on how the various contentious clauses should be amended.

4 Comments

  1. rupertolipton rupertolipton

    I am not a fan of the Bill for a variety of reasons, but I think I must be reading a different version than the author of this piece. I am left scratching my head.

    Firstly, where does the Bill state that all civil disputes must be subjected to mediation? Certainly not at clause 4. That the Bill will be applicable to all civil disputes is pretty clearly not the same as saying that all civil disputes must be mediated. Where does it say that all civil disputes must be mediated?

    Certainly, the long title of the Bill could be better written in that the phrase: “…to provide for the settlement of all civil disputes by mediation” might confuse one who does not go on to read the Bill in its entirety. In the absence of any substantive clause to the effect that all civil disputes must be mediated, it is reasonably clear that the long title is alluding to no more than a statutory mechanism that regulates mediation of civil disputes when it happens. In any case, the long title does not, on its own have any legislative effect.

    Secondly, mandating that disputants, and their advocates, “consider” mediation is not the same as mandating the undertaking of mediation.

    Thirdly, how can a mediator have any “jurisdiction” in a case? A mediator does no more than assist the parties to negotiate their own resolution. If you are in dispute with your spouse, and your mother helps you settle the matter, would you suggest that your mother has “jurisdiction”? The word “jurisdiction” is derived from the latin for “legal” and “say”. A mediator has no, authority, no constitutional powers and no “legal say”.

    Fourthly, the Constitution does NOT suggest that mediation is under the purview of the Judiciary, it merely mandates that the Judiciary promotes mediation. The Judiciary is also mandated to promote traditional dispute resolution, which is not definitively defined in the constitution or statute but arguably includes negotiation. If two citizens have a disagreement or a dispute, the Judiciary is constitutionally available to them as an institution which will determine the matter IF ASKED TO DO SO. If the parties chose to negotiate a settlement, perhaps with the assistance of a neutral third party, what business would that be of the Judiciary, or indeed the state? The Judiciary’s mandate is quite clearly limited to making adjudications and facilitating the enforcement of its resulting orders. it has no mandate over parties coming to their own resolution.

    Fifthly, the suggestion that requiring disputants to consider mediation, prior to instituting judicial proceedings somehow interferes with their Article 48 right of access to court is not supported by numerous higher and appeal court decisions all over the common law world. That is even the case when mediation IS mandated. In this regard, compulsion to mediate is very different from compulsion to settle.

    My critique or Professor Ojienda’s submission to the Justice and Legal Affairs Committee can be found here:

    http://rupertlipton.com/mediation-bill-2020-a-response-to-professor-ojienda-sc/

    • Dear Rupert,

      Thank you for your feedback.

      In our view, the framing of the Bill clearly makes it mandatory for mediation to be considered before instituting a suit. That is why it has provided for a mandatory mediation certificate when parties are instituting a suit. That is a problem.

      Secondly, mediation should not be under the control of the AG as envisaged by the Bill. As for jurisprudence, Prof. Ojienda highlighted some cases

      • rupertolipton rupertolipton

        Do you accept that there is a difference between mandating disputants to mediate and mandating them to consider mediation?

        • Of course, there is a difference. Be that as it may, you do not mandate parties to consider mediation in ALL civil disputes. You can only advise them to consider it where it is not necessary to institute legal proceedings.

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