2nd December 2022
Kenya has called for the adoption of the increased use of arbitration and mediation to solve domestic and international disputes amongst Commonwealth member states and sought for the establishment of an action-oriented Commonwealth Taskforce on Arbitration. The Taskforce would promote the adoption of arbitration throughout the Commonwealth while member states would ratify the United Nations Convention on International Settlement Agreements Resulting from Mediation (‘Singapore Convention’) which entered into force on 12 September 2020.
The call was made during this year’s Commonwealth Law Ministers, Attorneys General, and Senior Officials meet in Balaclava, Mauritius held between 22 – 25 November 2022. This was the first time the Law ministers from the Commonwealth were meeting in person since the COVID 19 Pandemic.
During the three-day meeting, the Ministers shared experiences in delivering broad access to justice within their jurisdictions including the implementation of various schemes such as conciliation; court annexed mediation; small claims courts; legal aid schemes in criminal and civil matters; victim protection schemes; use of specialised courts including customary courts; family and children’s courts; and access to justice bureaus. They also articulated the diverse challenges in the delivery of access to justice such as limited or strained resources, the need for adequate training, and the need to harness technological innovation in the early stages of dispute resolution. It was noted there was need to accord priority to women and youth in the delivery of access to justice.
Of particular interest during this year’s meeting was recognition of the shift by many countries from physical to online mechanisms for cost and time efficiency in ensuring access to justice. Kenya in its submission confirmed that the justice system had adopted asynchronized hearings, online legal information services, and extension of court services through public-private partnerships. Further to this, the use of artificial intelligence across the Commonwealth could not be ignored.
The head of Kenya’s delegation to the Commonwealth meeting, Mrs. Mary Wairagu posited on the opportunities presented by technology and the importance of ensuring that these new technologies respect, and safeguarded the independence of the judiciary while remaining cognisant of the risk attendant in the application of such technology.
On the substantial issue of people centred justice programming; the meeting was informed that citizens and justice practitioners were increasingly demanding that justice systems deliver justice to as many people as possible in a sustainable manner, requiring a shift to more evidence-based, data-driven justice solutions. The need to implement community-based targeted justice solutions using both formal and informal modes of prevention and dispute resolution such as the establishment of justice centres, user friendly contracts, one-stop shop tribunals, and online legal information services and advice were recognised as playing a critical role in simplifying justice delivery.
During discussions on the freedom of expression and the role of the media in good governance, Kenya in particular expressed appreciation for the role the media continued to play in good governance, enhancing access to information by the public and transparency. The country was commended in setting the pace in televising many public interest cases touching on corruption and misuse of public resources as well as interpretation of laws and the Constitution. The Head of the Delegation however observed that emerging issues of misinformation, the right to privacy; and balancing public interest and promoting safety of journalists and media workers remained fundamental for media freedom.
The Head of Delegation took members through a raft of Kenyan laws that had been enacted to enhance access to information on all public interest matters. She highlighted the live coverage by the judiciary of the country’s presidential election petitions which paved a way for transparency in the electoral processes, an aspect that was being emulated by other jurisdictions.
Also deliberated was the on-going research on the use of mutual legal assistance schemes for the Commonwealth and the need for building and maintaining effective international cooperation frameworks on criminal matters, including the incorporation and use of the Commonwealth Network of Contact Persons (CNCP) and Commonwealth Electronic Evidence Focal Points (CEEFP) systems.
The Ministers recognised the importance of international cooperation as a catalyst for the advancement of the rule of law and the protection of human rights noting further that solving social and economic challenges ought to be a priority in order to combat root causes of crime.
It was observed that strengthening the rule of law through effective legal frameworks, law, policy and strong institutions, and commitment to the principles of equality, justice and human rights would help member countries to achieve cooperation in a wide range of areas including humanitarian law, climate change, cybercrime, mutual legal assistance and extradition.
The meeting confirmed that achieving United Nations Sustainable Development Goals (SDG) 16 of promoting equal access to justice for all by 2030 would be undertaken through several measures which included, the development of an access to justice toolkit and a small claims court app, the Commonwealth legal knowledge exchange portal, the implementation of people centred justice projects, the development of the 100-day toolkit for Justice Ministers, the integrated family court project and model contracts in investment, energy and extractives.
Attendant to this and following the 2021 meeting of Senior Officials of Law Ministries, a Commonwealth Law Ministers Action Group (LMAG) would be established whose mandate would be to provide guidance and advice to the Secretary-General of the Commonwealth on strategies to strengthen the rule of law and equal access to justice as outlined under the United Nations Sustainable Development Goal (SDG) 16 and the Law Ministers Declaration on Equal Access to Justice (adopted in Colombo, Sri Lanka in November 2019).
The Ministers adopted the proposal for the establishment of the Law Ministers Action Group and agreed that the member governments of United Republic of Tanzania, Namibia, Mauritius, Malaysia, Samoa, Bangladesh, Jamaica, St Kitts and Nevis, Malta (for one year followed by the United Kingdom for another year) and ex officio, the Chair-in-Office, (currently Rwanda) would serve on the LMAG.
By. I. Agum