Article by Shirley Akinyi
The past few months in Kenya have been synonymous with immense socio-political awareness among its citizens. Political, social, and economic grievances, brought about by the then-newly proposed Finance Bill 2024, led to months of civil unrest where Kenyans took to the streets calling for the rejection of the Bill. #Rejectfinancebill exposed Kenyans to punitive taxes as well as unnecessary exorbitant government spending. Dubbed the Gen-Z movement, Kenyans from all walks of life came together calling for transparency, accountability, good governance, reduced government spending, and competence-based hiring of civil servants. In response, President Ruto held an X space, after rejecting the Finance Bill 2024, as an avenue for discourse where the citizenry could air out their grievances directly to the head of the executive. In as much as the talks between the government and the citizenry hit a standstill, alternative dispute resolution offers a viable mechanism for resolving civil unrest by fostering dialogue.
Why the talks held in the X space by President Ruto bore no fruits
Efforts by the government to quell the civil unrest led to the President vetoing the Finance Bill and calling for a forum of dialogue with the Gen-Z in an effort to understand their grievances. The direct engagement by the President- much like mediation, negotiation and arbitration in ADR- created an avenue for open dialogue. Open communication by parties on the X space is evidence of the willingness to solve the issue in a non-violent manner as well as the ability to express themselves not from a point of demands and positions but from a point of interest and underlying grievances.
However, these talks proved to be disingenuous in nature for the solutions agreed upon by both parties were not fulfilled wholly. The President’s agreement to dismiss Cabinet and appoint Cabinet Secretaries based on a hiring model that focuses on the employment of qualified technocrats in their relevant fields of training to their correlating ministry fell on deaf ears for the President reappointed some of the fired cabinet secretaries, reshuffled others and hired new Cabinet Secretaries in ministries where they did not hold any qualifications or experience. Furthermore, the agreement to put an end to extrajudicial killings and ensure that the police force, in conjunction with the Ministry of Interior and the Ministry of Defence, take accountability and restore the affected victims was not actualized. Despite the President’s public declaration to fight against extrajudicial killings and address illegal and unethical actions of the police, devious methods of preventing the identification of police officers during protests were employed instead.
This is indicative of failed negotiations for there was a failure to wholly and genuinely fulfill the agreement for the actions of the President rescinded his open, compromising and accommodative attitude that was present during the X space thus creating an unconducive environment for alternative dispute resolution.
Instances where ADR has been successful in resolving civil unrest
Despite this recent failure in quelling civil unrest, there have been previous successes in the use of Alternative Dispute Resolution in resolving similar issues. The South African Truth, Justice and Reconciliation Commission formed in 1995 was founded in the backdrop of a society that dealt with years of discrimination, torment and persecution during the apartheid era. Principles of Alternative Dispute Resolution were present during these talks for there was a genuine willingness from both parties- the victims of apartheid and the perpetrators of apartheid- to reach a point of healing. Moreover, neutral facilitation from the impartial 3rd party Desmond Tutu ensured that the discourse was centered around restoration. This was spearheaded by the acknowledgment of suffering and injustice as well as the need to restore victims and create a harmonious society.
In the same breath, in the 2008 Kofi Annan led mediation during the 2007-2008 post-election violence in Kenya the discourse focused on restorative justice through institutional reform. Through the creation of ethnically inclusive representative panels, an indication of the mediator’s commitment to ensuring transparency, impartiality and fairness, the clashing political parties were compelled to willingly participate in the peace-making process. This resulted in the formation of a coalition government, putting an end to the electoral violence.
It is clear that for alternative dispute resolution mechanisms to be effective there needs to be the application of four key factors; neutral facilitation, inclusion of all aggrieved stakeholders, focus on restoration and the willingness to wholly adopt the solutions suggested by both parties during the talks.
Comparative analysis of the shortcomings of ADR vis-à-vis its benefits
The potential of alternative dispute resolution mechanisms to quell the growing tensions between the government and its citizens is immensely overlooked. Of course, one cannot dismiss the limitations of alternative dispute resolution in this context. The sheer complexity of the issues, lack of trust between both parties due to the avid impunity and history of empty promises pose a threat to the resolution of disputes between the government and the people. This is exacerbated by the existence of a power imbalance that would allow for the government to unfairly exert its influence and force to achieve its own needs. Nevertheless, the benefits of alternative dispute resolution outweigh the possible shortcomings. The speedy manner in which alternative dispute resolution mechanisms are conducted allow for immediate and emerging issues to be dealt with without undue delay that would further exacerbate the dissatisfaction of Kenyans. Similarly, an open forum would allow all parties to discuss their grievances and come up with specific solutions that would not be readily available in the event of litigation. All this would play a factor in ensuring that the dispute is resolved without escalating tensions.
Conclusion
With proper facilitation, inclusive processes and genuine willingness to effect progressive change within the governance model, alternative dispute resolution can be used to foster positive relations between the government and the citizenry resulting in sustainable peace and overall content.
