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Types of Disputes

Article 50(1) of the Constitution of Kenya, 2010 provides that every person has the right to have ANY DISPUTE that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal. It would therefore appear, at face value, that any dispute that can be resolved by the application of law can be brought for resolution before independent and impartial tribunals or bodies other than a court. Nevertheless, the reality in law is not the seemingly unlimited jurisdiction as would appear at face value.

Article 50(1) itself provides the limiting phrase “if appropriate”, implying that there are circumstances when it is not appropriate that disputes capable of resolution by the application of law be decided by independent and impartial tribunals or bodies other than a court. So what circumstances are these that make it inappropriate for disputes capable of resolution by the application of law to be resolved by tribunals or bodies other than a court?

Article 50, encapsulating the fair hearing right, is one of the rights and fundamental freedoms within the Bill of Rights contained in Chapter Four of the Constitution of Kenya, 2010. Article 19(3) of the Constitution provides that the rights and fundamental freedoms in the Bill of Rights – (a) belong to each individual and are not granted by the State; (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised and conferred by law, except to the extent that they are inconsistent with this Chapter; and (c) are subject only to the limitations contemplated in this Constitution. Consequently, unless the fair hearing right at Article 50 is limited as contemplated in this Constitution, it is not subject to any other limitation.

Article 24(1) provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of the rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

Article 24(2) provides that despite clause (1), a provision in legislation limiting a right or fundamental freedom – (a) in the case of a provision enacted or amended on or after the effective date (27^th August, 2010), is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; (b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and (c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

Article 25 provides that despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited – … (c) the right to a fair trial … The right to a fair trial is captured in Article 50(2). It provides, in part, that every accused person has the right to a fair trial, which includes the right – … (d) to a public trial before a court established under this Constitution. Consequently, as independent and impartial tribunals or bodies other than a court are not courts established under this Constitution, such tribunals or bodies may NOT entertain criminal proceedings in which accused persons are brought before them. As an accused person has this right to be tried in public before a court established under this Constitution, and this right may not be limited, any tribunal or body that is not a court so established may not try an accused person in criminal proceedings! In other words, in the language of Article 50(1), it is not “appropriate” for criminal disputes capable of resolution by the application of law to be decided before tribunals or bodies that are not courts established under this Constitution.

Article 163(3)(a) provides that the Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of the President arising under Article 140. Article 140(1) provides that a person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. Therefore election disputes challenging the election of a President-elect may only be heard and determined by the Supreme Court, and not by any other tribunal or body, including any other court. Therefore, in the words of Article 50(1), it is not “appropriate” for tribunals or bodies other than the Supreme Court to hear and determine electoral disputes challenging the election of a President-elect!

Now these two types of disputes – criminal proceedings and electoral disputes challenging the election of a President-elect, are the only two types of disputes that independent and impartial tribunals or bodies not a court are expressly limited by this Constitution from resolving. Any other limitation on the type of dispute that may be heard and determined by such tribunals or bodies must comply with the provisions of Article 24, already considered above. Outside these considerations, it must be remembered that Article 2(1) provides that this Constitution is the supreme law of the Republic of Kenya and binds all persons and all State organs at both levels of government. Article 2(3) provides that the validity or legality of this Constitution is not subject to challenge by or before any court or other State organ. Article 1(3)(c) provides that State organs include both the Judiciary and independent tribunals. And Article 260 provides that “State organ” means a commission, office, agency or other body established under this Constitution. Consequently, independent tribunals established under this Constitution, such as under legislation, including, for example, arbitral tribunals established under the Arbitration Act, 1995, can resolve any dispute capable of resolution by the application of law except for criminal disputes and electoral disputes challenging the election of a President-elect. All other types of disputes can be resolved by independent tribunals, unless the limitation provisions in Article 24 are applicable to a specified type of dispute.

Aluochier Dispute Resolution, as an arbitral institution, administers arbitrations and mediations for all types of disputes save for criminal proceedings and electoral disputes challenging the election of a President-elect.