Pouring Old Wine into New Wine skins: The Alternative Dispute Resolution Movement in The Postcolonial State

Abstract

Disputes have existed since time immemorial. In any community, it is inevitable that mechanisms need to be put in place to aid in the resolution of these disputes. Before colonialism, there subsisted methods of resolving conflicts in Kenya that dealt with civil and criminal cases which arose among members of any given community. During colonialism, the court system was introduced as a more formal and ‘superior’ dispute resolution mechanism as a part of the Civilising Mission. In post-colonial Kenya, the court system took root as the mechanism that was suitable to the African circumstances. However, while the court system has had many positive contributions, it is marred with difficulties and suffers from case backlog. This has led to the introduction of Alternative Dispute Resolution (ADR) as a movement that will complement the courts in dispute resolution. This article examines the dispute resolution mechanisms which existed before colonialism and the introduction of the court system in Kenya. The authors argue that the colonial encounter shaped the structures utilized for dispute resolution in the postcolonial state with manifest subjugation of African methods of dispute resolution in favour of Western methods. The article analyses the shortcomings of the court system and argue that in the post-colonial state, its superiority is a fallacy. The authors posit that the introduction of ADR is not a new concept which has been introduced into the Kenyan justice system but is indeed reminiscent of mechanisms of dispute resolution utilized by indigenous institutions. The article concludes that ADR can be viewed as repetition being introduced as reform which perpetuates the legacies of colonialism; a shiny new pin which should be adorned even though greater scrutiny reveals that it is indeed, an heirloom.