GRIEF,PAIN & LOSS

(pic by April Wambui/Docubox)

The year 2020  is tortuously  winding itself to an end. In the recent memory of  most  people it is the year of grief, pain and loss. For once in a long time, there has been a shared theme, touching people all over the world and forcing each one of us to react in an individual way to the various losses  forced on us by an invisible organism difficult to acknowledge that it exists but bowed down by the undeniable backwash  as it  spreads  killing, maiming and disorganising all over.

For some, it is the economic losses causing unimaginable despair, to most, it is the paralyzing fear of what will happen when it knocks on your door;  for many, it is the loss of loved ones leaving overwhelming grief in their hearts that can neither be described nor shared.  It is a wound that festers before healing;  the pain at times taking over the whole person and blocking any sense of joy, any hope or any faith. This is where the kind of society we live in matters. Can we see, connect and empathise with the one who is suffering and react  in a way that gives some strength, lets a bit of light penetrate the darkness and be a voice of hope that says although it is a difficult and long walk to the end, there is an end to the tunnel.

While we sit around isolated by the social distancing phenomenon that is the hallmark of Covid-19, life still goes on as we find ways to cope counting on the humanity of each one of us to extend understanding in this time of shared hardships. This is also the time to look around and appreciate those people who have used their personal wounds to face the pain, walk with it, reach a place where hidden strength resides and turn their lot  into a mission to ignite compassion.

(pic by April Wambui /Docubox)

 An organization called  Empower Mama Foundation started in Kenya by a startlingly young, courageous woman called Vivian Gaiko, who has suffered the most heartrending loss  that only those who have experienced the same can relate to. I had the opportunity in late October to attend an event graced by Vivian and her organization members, associates and support  teams that brings to light the possibility that a great pain, a great loss and deep grief is the universe’s way to bring out great feeling, great empathy and love that our wayward universe needs to start a journey of consciously seeking healing for many  of our ills that are somehow intertwined.

The event was the screening of a documentary, Utapata Mwingine, casting the walking together of the Empower Mama members in remembering the children that died in infacy and others in the womb shattering the sweet dreams of every mother whose joy and pride is to give the greatest gift to the world-another life that  has purpose, potential and unknown blessings to deliver. Those brave women’s bundle of joy turned into a bundle of grief.

The film skillfully illustrates within the shortest time how the world is mostly uncomfortable with giving attention to its members who are going through unique difficulties that cannot be healed by things  but by compassion. There is surprisingly a lot that can be learnt from sitting quietly and listening to those whose  situation does not call for clever rejoinders but getting into that uncomfortable zone where you may feel the despair of not knowing what to say. Just listen to those feelings without trying to control the situation or to be a hero of the moment, just be unobtrusive and trust the natural course to give you a lead.

Utapata Mwingine shows those women understand that togetherness is a great foundation for finding the way forward. It is together with the non-judgmental, the ones who probably  see tears as welcome relief and give space to cry, separately and together. The most significant part seems to be the keeping memories alive. When you watch the documentary and after the women lighting candles calling out the names of their loved ones, you somehow get a distinct feeling of the lost one having had a presence, showing up through their mothers. What a great love it is to love and feel so deeply that a dead one momentarily comes alive. There is a clever construct of activities and the clear arresting voice of Vivian that moves the audience to feel.

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As a society, we have lost  the greatest asset that would ensure the world being a place that nurtures everyone to get to their point of strength no matter the circumstances. Empower Mama and all those partnering with them are playing their role in  sharing their stories and vulnerabilities to make the world feel again through every heart that is still beating.

The Empower Mama foundation is doing a lot more than remembering the babies gone too soon, according to a bit of what I took away from the event, they are creating awareness about the insensitivity to mothers generally whose situations diminish the joy of motherhood. The attitude of employees to maternity leave or any other distraction that that situation creates is one glaring example.

Lack of sensitization on the words that deepen the wound is another urgent concern. So the documentary captures the insensitivity of “ Utapata Mwingine” which is a Swahili word meaning “ you will get another one” To my thinking, this can stretch beyond the loss of babies to the perception that human beings are interchangeable. Each individual is unique, is important and matters; we have to approach every single person with that respect. The greatest lesson on the individual’s worth can be taught by mothers and anyone with  instincts akin to motherhood. Those who were created with the ability to penetrate the mystery of creation and to participate in it through willingness to love till it hearts or to put their lives on the line for a child to live. The greatest demolition of fear is in giving birth.

There are many ways of giving birth, creativity gives birth to ideas that enrich the earth. It is a tragedy that the communication coming through to people from the media  often ignore stories that  would remind us of what it is to be human. It is therefore  really great to have other media that support such stories. Docubox  and World media who are the sponsors of  “Utapata Mwingine “ documentary are among those who are spreading the light.

It is also great to have a young woman , proprietor of Film & Laundry , Lydia Matata take the risk of leaving mainstream media to venture into telling stories like this one hoping and trusting someone will listen to the message. Such stories come to life through the support  of other self giving individuals who give support to make it come to life, focusing more on the value of the message than the trendiness of the conversation, they take the path that few  dare to tread.

http://gotravel17.blogspot.com/2016/09/the-path-less-traveled.html
(pic by April Wambui /Docubox)

The healing path: spread the light, be compassionate and heal the world.

(pic by April Wambui /Docubox)

THE WORLD IS POSITIVELY HESITATING

With the new work style, courtesy of Covid 19, at least one gets some space to reflect. My reflections of the day brought me to consider the essence of hesitation.
Once upon a time, in African villages, our people lived on farms graced by amazing flora and fauna with no forbidden fruits, only innate knowledge of interacting with nature.
The old and the wise could fore caste the weather from the feelings in their bodies and knew all about climate, revering it knowing our lives depended on its moods.
There was then, an open door policy to all neighbours who shared fruits of harvest and formed each other’s ad hoc labour force. The greatest wisdom was to know that people needed each other.
Leisure, work, essential education and therapy could all be rolled into one, and that is where essential wisdoms like the art of positive hesitation could be passed on. When I checked dictionary meanings given to the word hesitant, they generally put a negative interpretation.
The Oxford dictionary called it: pause in indecision, unsure and traced its origin to 17th century Latin and I quote:
‘Stuck fast, left undecided; from haesitare, haerere ‘stick, stay’
I said no, hesitation can be a positive thing, if you consider it from the now ‘deceased’ African philosophies represented in different proverbs or sayings of our wise elders.
These words were not empty rhetoric but were applied in the people’s way of being.
Positive hesitating is when you pause to consider whether what needs to be done is right, if right, whether it is the right time or the right way to do it, and the consequences of doing it. It is being cautious not about self, but the universe that we all ought to be of service to.
Elaborate cultural rites on birth and death celebrated that understanding, and was full of appreciation that you did right, you cared and no wonder your life’s story was sought in nature’s acquiescence; if it rained at your funeral, it was a good sign.
As one Ugandan saying goes; “Do not just fall into things foolishly” mostly used in Uganda.

Haraka Haraka, Haina Baraka. Pinterest.com

 

Look Before You Leap. Mycustomers.com
Look Before You Leap. Mycustomers.com



The African belief in positive hesitation has been labelled retrogressive, fear of risk taking and laziness, instead of a wise assessment of new ways.
We are fully aware of the consequences especially now, when the world has been forced to hesitate. So we look at the lost ways of the Africans of old and realise it would have been good to hesitate instead of moving forward to quickly and getting stuck in new, but negative ways. Hesitation would also have helped in the process of seeking to understand each other and the world around us. Partly because of a lack of understanding, we are caught up in a global crisis with signs that if we are not cautious, we shall be the ultimate sacrifice.
If we just analyse the acclaimed wise people of our time, it becomes clear that we listened without voicing what was really vital for us, as we had sacrificed the unified voice we could have had.
It is sad to hear about Rosewood Trees being smuggled from Gambia all the way to China, with the connivance of those we would call wise.
The education that wholly replaced traditional education systems produces the very wise that without hesitation, participate in signing away essential rights to the existence and welfare of our people.
The rights to freely farm the lands and plant that which is in harmony with our unique ecosystems went to alien plant breeders.
In similar fashion, Africans are beaten in the game of patents and copyright because they now hesitate negatively because knowledge is limited and there are cost implications. The taboo system no longer works as we traded our innate knowledge of good and evil for laws that are not organic.
The state of the world hesitating gives us a rare opportunity to re activate all the positive things we used to do.
All those who subscribe to the oneness of mankind, let us have conversations together no matter where you are from. Together we can heal the world even if we take slow, measured steps, positively hesitating.


What Covid – 19 has taught me

Photo from Edwin Hooper on Unsplash

If there is one thing this disease will be remembered for, apart from its bizarre origins and unprecedented causalities, is that it has given new impetus to diverse philosophies themed as: spiritualism, Humanism, Satanism, introspectionism, intellectualism and a variety of other isms. 

This is quite obvious as one considers that Covid-19 is coupled with many other challenges that threaten humanity’s very existence; locusts in the East African Region are on the rampage; Ebola in the DRC is yet to be eradicated; bushfires in Australia followed by floods  and several other devastating   disasters all overshadowed by the global pandemic.

Tai S captures on Unsplash

Our minds are working overtime to address work through this unprecedented crisis. Although our thought processes may veer in different paths, they all intersect at the point of the most basic human need – survival. Not just of the body, but the soul and spirit as well.

A common thread of thought that can be gleaned from the proponents of different- isms is that we have realized that life happens, loss and damage is inflicted, we mourn, we learn we change, move on and thank whatever or whoever we credit for keeping us alive OR, we blame, get bitter, invite the devil and assign it a personality and get stuck in our lies and endless destruction continues.

I would choose change for everyone; that way, we all take responsibility. No one is so perfect that they have nothing to change.

I have been reminded in this time of social distancing, not to be judgmental. Being judgmental blocks the togetherness we need to move on. Let us honour each person’s humanity.

Covid – 19 reminds us that humanity is, above all else, immortal. We must therefore live our lives knowing that whatever we are doing at any moment, might be the last thing we do. Keep others safe and trust they will do the same for you. Create hope and envision a better future whether you will be in it or not. Create memories that endure from simple acts of caring.

I have also been reminded that there are things one cannot change, especially people and we waste a lot of otherwise useful energy and get frustrated. One needs a dose of spiritualism in such case, and the right antidote may not be in existence yet, for we invent different kinds of biases all the time, some generational others futuristic. All biases are ultimately harmful, in so far as they drive people apart like Covid 19 has done socially.

We need to seek the truth that helps in solving the problem and not to dwell on conspiracies that create unfounded fears that distract from purposeful living. 

We need wise leaders that will inspire the right reactions to the problem, those that will empower the process of change and determination.

Looking at all the calamities happening about the same time as Covid 19, the underlying problem is the environment. This should be the theme for the way forward. There is no better champion of the environment than Pope Francis who made it the focus of his Encyclical – Policy document to all the heads of catholic churches, about 5 years ago. He called it ‘Care For Our Common Home’.

What happens or ought to happen when life’s circumstances stop us in our tracks, is to figure out whether there is something we ought to have done that we failed to do and whether we can retrace our steps and take the right path. From those who God truly called to serve we can find direction.

There are so many who have revealed the truth that pertains to human survival but we never listen. Listening should be a major theme as we sit in isolation freed from the chaotic lifestyle that prevents us from having depth, from self-reflection and from appreciation of the divine plan which was a perfect blueprint for harmony, peace and a fulfilling life.

As Ms. Maya Angelou once said;  “We allow our ignorance to prevail upon us and make us think we can survive  alone, alone in patches, alone in groups, alone in races, even alone in  genders”

 

The Global Ground Rules In Times Of Covid-19.

Rule No. 1 : wash your hands.

(M. M. Mekonnen et al. Four billion people facing severe water scarcity, Science Advances (2016). DOI:)

In mediation we always put emphasis on ground rules before one proceeds to mediate a problem involving two or more parties. The ground rules protect the process, and the process is sacrosanct. In brief, the ground rules ensure commitment and cooperation of the parties as they focus on the problem.

Metaphorically speaking, let the covid-19 problem that all countries are working together to resolve be equated to a mediation process. The process in this case is about saving lives, and human life is sacrosanct.

I can reasonably state that the ground rules to manage covid-19 efficiently and in the interests of humanity as a whole derive from the provisions of the Universal Declaration on Human Rights.

The following is an extract from the United Nations Charter known to all nations but implemented by some,if at all,  in total disregard of  its spirit.

3.To achieve international cooperation in
solving international problems of an economic,
social, cultural, or humanitarian character, and in
promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4. To be a center for harmonizing the actions
of nations in the attainment of these common ends.”

The same charter emphasizes equal treatment for all peoples. I guess equal treatment relates to  being availed the opportunities to enjoy all the human rights provided under the charter.

Covid- 19 is threatening the entire world, and the ground rules are highlighted by the World Health Organisation(WHO).

RULE 1: Wash your hands frequently for 21 seconds:

https://www.youthkiawaaz.com/2017/03/indias-water-crisis-in-10-images/

Rule no.1 becomes hurdle number one for some people. The hand sanitizers  are also out of stock for some and out of reach for others.

Today we are faced with a challenge that calls for a shift in our thinking, so that humanity stops threatening its life-support system. We are called to assist the Earth to heal her wounds and in the process heal our own – indeed to embrace the whole of creation in all its diversity, beauty and wonder. Recognizing that sustainable development, democracy and peace are indivisible is an idea whose time has come”
― Wangari Maathai

GLOBAL INTERESTS

When  does the globe become one global?, when one city catches a cold and everyone holds their breath trying not to sneeze?

You-re-gonna-catch-a-cold-jar-of-hearts-21180630-500-446.jpghttp://www.fanpop.com/clubs/jar-of-hearts/images/21180630/title/youre-gonna-catch-cold-fanart

So it is with the Corona virus that erupted from  the China City of Wuhan, a place some of us not in the global business had never heard of and even if we had heard the name, we were not even remotely interested in knowing who lives there and what they eat.

After becoming the birthplace of the virus, it is probably the most watched and talked about city (or city state) in the “Global Village ”

I was browsing the net when I came across a CNN news  piece,2-02-2020, on Wuhan by Nectar Gan.

What chilled me was how the people of Wuhan are dabbed “ the unwanted faces of  China’s Corona virus outbreak” It  would appear that there are repercussions for belonging to that city. I have called it a city state as it is now on its own; according to the news, the people from Wuhan are shunned, resented and discriminated upon by fellow Chinese. Unfortunately but for good reason, the Chinese are generally not welcome anymore in other regions.

Being a mediator, you can sense a problem and deeper problems from miles away. What I know is that treating people badly for something that they are victims of can create bitterness, hostility and a desire to hit back. It can also create so much hopelessness that they no longer care whether they die or live, they may feel  ashamed  and wish to hide or lie about the situation. It is a heavy burden to carry when everywhere else people are at risk, they point fingers blaming it on the Wuhan Chinese and their eating habits. The blame game will compound the situation; whereas empathy may invoke positive response to the situation.

It is also a chilling revelation that authorities in Wuhan tried to clamp down information about the outbreak, leading to the inference that had they not done that, the crisis would not be as bad. This goes to show, that as the world reacts to this situation, be minded that there are different categories of people with different levels of responsibility. They are those whose lives are at the mercy of circumstances and can only depend on the good will of authorities and influential entities to safeguard their interest or to expose them to risk. Then there are those whose principal concerns are superpowerism and they can afford to sacrifice the welfare of the masses to achieve sinister objectives. In the case of Wuhan, internet sources indicate that  the Doctors who sounded the alarm in December were allegedly arrested on account of spreading rumors. Let me add that one is now rumored dead even before I can finish writing this post.

One wishes that the issue was just what kind of virus this is and how it spreads. There are more serious underlying issues that need to be addressed.

sneeze.pnghttp://noxeo.com/search/how-far-does-a-sneeze-travel.html

What are the interests of the entire world right now?:

Interests are normally categorized as long term and short term, my guess on the interests in this situation  would be as follows:(note that all the listed interests are from my imagination and no official  or any other source)

The short term global interests:

  •       To stop or significantly prevent the spread of the virus.
  •       To get the necessary facts that can help the scientific community in containing          the  situation.
  •       To develop a vaccine or  any sort of cure as soon as possible.
  •       To have proactive response from all people everywhere so as to achieve the above.

The Short term China (Wuhan)

All the above(identifiable common interests) and in addition:-

  • To get a humane reaction from the world community.
  • To have the world community focus on what needs to be done urgently to alleviate the suffering of the people.
  • The  wish that the ego may suppress is to have the rest of the world act like we are one People. That for once, the Christian philosophy that a good part of the world is wont to postulate  could be seen to be guiding the reaction to this crisis.
  • That compassion  especially in a situation like this that even Jesus personally alluded to  be evident: Mathew 25:36 (American Bible Version):

naked, and ye clothed me; I was sick, and ye visited me; I was in prison, and ye          came unto me.”

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The Long term:

To get to the bottom of the recurrence of the related viruses

To secure the cooperation of the Chinese Government and people in eradicating the practices that cause this virus attacks to recur.

Look at the possible contribution or connivance of the rest of the world.

Long term for China (Wuhan)

The whole nightmare to be gone and forgotten.

In mediation terminology, the situation probably calls for empathy and the Chinese people need to know that the world stands with them, is praying for their recovery and working hard to find a solution. Lock down  is necessary and hard enough but knowing you are now stigmatized is another form of virus attack which can outlive this Corona virus.

The repercussions of the antagonism can be deadly, it happened with HIV early cases when people thought that no cure was possible, some maliciously started spreading  it; things changed when the society’s attitude changed. The hardheartedness of some was softened when donors committed significant funding. That artificial heart softener is also a problem.

The same way I would feel empathy for  a party, by looking at him or her as a fellow human being is the same way to look at China which is very much part of the so called Global Village.

The above does not mean that  the world ignores the huge responsibility China has to bear for this apocalyptic mess which has happened severally putting lives of its  business partners and members of the human family in jeopardy.

For China to expect a positive reaction from the rest of the world, it has to concede  that it has an obligation while carrying on its legitimate business including enjoying its special cuisine, to consider how its  actions  may affect the rest of the global family. Evidence abounds that certain practices have caused epidemics in the past; therefore, it was very easy for China to predict this would happen again as the very practices that caused  previous similar epidemics are still very much alive squeaking and crawling.

Once this monster called globalization emerged as an offspring of advanced technologies in both information, communication  technology (ICT), Transportation  and all modes of connectivity, movement of people to conduct joint economic ventures increased dramatically. In fact the Chinese presence in parts of Africa makes them a new tribe. It is therefore a no brainer that  China may be the leading beneficiary from the global economy. Benefits come with huge responsibilities, top of which is to ensure the welfare of those you voluntarily patterned with and avoid actions that are known to cause harm.The best way for a nation to keep partners safe is always to ensure its own people are healthy, secure, happy and loving.

There must be international laws and standards to be observed in dealing with people across borders,  oceans, airs paces  and cultures. Those laws respect or should respect a common culture, one which recognizes that you cannot benefit from the people you harm whether directly or indirectly by engaging in thoughtless, reckless acts. You cannot violate nature without nature returning it to you in kind.

There is no special  concept to apply, but laws of conscience and morality which have often found their way into the law. The renowned case of Donoghue  V Stephenson [1932] A.C 562  had this to say :

“ You must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

Whereas in that case it was consumer protection issue for a manufacturer , I posit the neighborhood principle applies to situations where we consume each other’s consequences of environmental abuse that cause harm and loss to those we should have in contemplation in whatever we do.

If you are looking at this from a mediator lens,  the environmental problem becomes a common  problem, as  lack of respect for nature is worldwide. Locusts ravaging the African continent right now did not necessarily  come because of what the affected people did; it is a climate change issue and innocents have got to pay the price.

So there would be need to list problems facing the world because some people are obsessed with economic growth at the expense of everything else. The desecration of the earth and all the natural beings within is affecting the safety of innocent people and the authorities that are meant to intervene are  busy working out power equations.

We are left with the cries of the victims to raise the conscience of the good people the world over. Therefore, Chinese should not be judged as if to be Chinese is equivalent  to a  plague carrier. There must be some very good people who need the empowerment of the global community to bring about the change that must happen during and after this Corona virus crisis. The change would not be for China only but the whole world. When it becomes all of us against the problem and the underlying issues are all brought out then there can be hope for the Chinese to take care of their part of the problem.

On change, there is a quote from “People Of the Lie-the hope for healing human evil” which is apt:

    “ Our capacity to choose changes constantly with our practice of life. The longer we continue to make the wrong decision the more our hearts harden; the more often we make the right decision, the  more our hearts soften-or better perhaps, comes alive…Each step in life which increases my self-confidence, my integrity, my courage, my conviction also increases my capacity to choose the desirable alternative, until eventually it becomes more difficult for me to choose the undesirable action. On the other hand, each act of surrender and cowardice weakens me, opens the path for more acts of surrender and cowardice, and eventually freedom is lost. Between the extreme when I can no longer do a wrong act and  the extreme when I have lost my freedom to right action, there are innumerable degrees of freedom of choice. In the practice of life the degree of freedom to choose is different at any given moment. If the degree of freedom to choose the good is great, it needs less effort to choose the good. If it is small, it takes a great effort, help from others, and favourable circumstances… most people fail in the art of living  not because they are inherently bad or so without will that they cannot lead a better life; they fail because they do not wake up and see when they stand at a fork in the road and have to decide. They are not aware when life asks them a question, and when they still alternative answers. Then with each   step along the wrong road, it becomes increasingly difficult for them to admit that they are on the wrong road, often only because they have to admit that they must go back to the first wrong turn and must accept the fact that they have wasted energy and time.” By M.Scott Peck.

The mediator’s approach is always to focus on the problem but try to understand the people and give due regard to all parties involved. In this case almost all people are interested parties as evidenced by social media comments and official media briefs.

One of the ways to avoid negative criticism is to try and find more information about the affected . I confess that the Information regarding the ordinary people of Wuhan is quite endearing.

The initial impactful message comes from the resilience under the situation. It is unlikely that the great feat of constructing two huge hospitals without help from outsiders and completing one in the shortest time possible, ten days, can be replicated anywhere else. So a positive for the Wuhan people – they are hardworking.

The second positive is the discipline. Telling people to stay confined would cause riots in some places, it is remarkable that in Wuhan people are off the streets.

There is a history of courage and love of freedom as Wuhan led a revolution around 1911 to 12 which is recorded as worker’s industrial action.

There was also the Nationalist / communist struggle in the history of the people.

Wuhan is blessed with iron ore, coal  and varied agricultural produce.

It has a remarkable history of a civilization built along the rivers Yangtze and Han. It has always been a center of commerce and like all significant places in history, it attracted the interest of  the powers then France, Great Britain, Russia and Japan.

It is the political, economic and cultural center of China.

It is a center of research and innovation especially in technology.

It  is a leading producer of  Steel and heavy machinery, in addition to electronics and many others.

It is referred to as a “ City of  Cherry Blossoms”

It is a hub of water and rail transport and boasts amazing constructions like a bridge under the river and other wonders equivalent to wonders of the world.

While  reading various articles full of positive things about  Wuhan from various sources, including online Britannica, I had almost forgotten about the Corona Virus; that happens when one focuses on the positives In a situation, then the new insights help in approaching the problem with humility and humanity.

From all that information, one wonders why almost in all places blessed with nature’s bounty both minerals, food stuffs, water bodies and above all hard working people, evil finds a place at the high table and the people are relegated to the status of hopelessness that lead to dangerous habits.

In Thorn Hartman’s book “The last hours of ancient Sunlight”, he captures Modern slavery as follows:

 “.. few people report that they feel even remotely “free” in our modern society: we are modern-day slaves, held captive by ‘slave-holders’ of our culture. The slave holders use the chains of the mortgage owed to the bank, the loan on the car, the unpaid credit card bills ad requirement to pay property tax if you own a home, and many other subtle and not so subtle forms of economic and cultural pressure to extract the majority of your life’s time and use it to their ends.”

He goes on to talk about addictions to relieve pain and confusion. He also compared today with a time when it was normal for people to share food and water and to give shelter to those in need.

What is described by the writer cannot be possible today, because exploiting the natural resources including the people to serve the interests of megalomaniacs has put priorities upside down. Remarkable from what I have personally observed  in today’s commercial practices in most African countries are the following:

What we were naturally blessed with for our health and general well being like fruits and vegetables that  grew naturally and in plenty are now focused on export living the  children  and elderly malnourished weak, and sickly. Healthy foods that remain for the local market are extremely expensive and not affordable for the majority of people in the cities. Even people’s staple foods have become scarce after commercialization.

Some fruits like  avocados are exported and imported back as cosmetics to give the skin the vitamins the entire body could have had naturally by eating the fruit fresh.

There are tax free zones for manufacturing where workers voices against conditions are muted. It is possible the land could have been more useful  if used for farming.

To create artificial bounty, fertilizers and all manner of agrichemicals are applied even in the face of scientific studies that indicate they cause cancer. We have foods that if grown naturally used to stay for long but now they rot over night and develop spots that ooze unsightly liquid giving us signals that what we are consuming is like a deadly virus, but there is no choice. The current fear is to afford  the rotten produce.

There is also a disheartening situation of engineering competition between local producers and unnecessary imports of food.

It is disheartening to be told by the fishmongers that fresh fish is from China, given that the Corona virus is suspected to have originated from a sea food market. Do governments inspect and put standards before allowing some supplies to be imported? The reason I have highlighted the plight of Africans is because I have seen in the media some concerns over countries with poor health systems who will not survive the epidemic, if it comes to that.

The World Health Organisation (WHO) is very visible updating and advising, at least its chief has commended China’s reaction. The question is, given the interactions in the global economy, is there an effort to prevent pandemics before they occur? Even Governments everywhere,  invest so much in people falling sick instead of keeping people safe and enforcing cleanliness everywhere at all times. Is it not possible that resources spent on collecting taxes from small traders would save a lot on the cost of medical care if spent on enforcing cleanliness and healthy leaving? Should washing hands, sneezing into a handkerchief  and the like wait for an epidemic to remind people?

The poor people of China may have a story to tell on  whether eating what is claimed to have caused the epidemic  resulted from historically harsh unavoidable circumstances at some point? They to reflect on man’s interconnection with the rest of creation and come up with the problems and solutions that address expansive moral issues.

May all the infected get well soon, and may the eyes of the world open up to the realities of how man is his own worst enemy.

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Inspirational Quotes About Recovery

 

 

IS MEDIATION AN ANSWER TO HUMANITY’S COLLECTIVE PRAYER?

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Photo by Edwin Andrade on Unsplash (thank you).

I must give a disclaimer right away, that I do not mix religion with mediation; but prayer is every man’s deepest desire whether asked for through an actual petition to the divine or silent longing.

However, I chose the topic of this article when a prayer was sent to me on whatsApp, titled Global Day for Prayer & Fasting. Reading the text( I do not usually read all prayers forwarded to me except those that command my attention), part of it says :

God please rain down: Light to replace Darkness; Grace to replace judgment, fear, bitterness….;

Peace to replace anger, pride, desperation, selfishness;

Hope to replace hopelessness, compassion to replace rejection, loneliness, gossip, bullying;

Unity to replace division, hatred and misunderstanding…;

Others…..

The  prayer found me contemplating something  mediation and it occurred to me that after all is said and done, peaceful resolution of disputes brings all that God is being asked to rain down in that prayer.

When I read replace judgment with Grace, I remembered a particular motor insurance claim I was defending which is a good representation of a judgment devoid of  Grace.

The accident had involved three vehicles insured  by different companies, one of which was  under statutory management and therefore  moratorium, the other vehicle was for the deceased whose estate was the party represented in the case and was innocent in the cause of the accident, it was collateral damage in reckless driving craze.

We offered to negotiate with a view of settling amicably, as the quantification of damages exchanged before the hearing was very high. The plaintiff’s lawyer was not at all willing to accept any concession on liability and was a bit arrogant when I proposed negotiation. I am sure he was anticipating a big win as I was fearing heavy loss.

On my part, I  had some challenges as there was no witness for the defense and the instructing client’s investigation report was not forthcoming. In the Insurance claims, by reason of the provisions of Insurance (Motor Vehicle Third Party Risks) Act(CAP.405), Insurance Companies expect that eventually the liability to the extent of the cover, will ultimately be borne by the insurer. Therefore, instructions are given to the insurer’s firm of advocates to defend the cases that fall under Cap. 405, and quite often, they accept service of summons without any other information about the accident, and because they lack essential updated and correct customer Data, they cannot get the vehicle owners to get the facts. Insurance Investigators are what are relied on to verify facts of the incidents but some delay the reports beyond the Court’s tolerance.

The plaintiff called the Widow to the deceased as 1st witness; and for eyewitness testimony, the Son to the deceased who was about 14 years at the time of the accident and almost 16 at the hearing, as he was with the father on the fateful day  and as I later figured out, still traumatized.

The lawyer had chosen to sue the owner of only one of the two vehicles entangled in the incident, that is the party I was representing because apart from the deceased’s vehicle this was the only vehicle with insurance, the other one involved in the collision did not have Insurance Cover. It is so difficult to follow individuals for recovery of damages, and that is the reason for  the law that makes it compulsory for vehicle owners to have third party cover. Those days, some vehicle owners, especially those rarely on the road would not comply.

What the plaintiff’s lawyer had not anticipated was the only weakness in his case, that the young innocent son to the deceased was a very truthful witness. His testimony fully absolved the driver of the vehicle whose owner was sued and totally blamed  the driver of the vehicle whose owner was not put in the case because the lawyer figured without  insurance, there was no point, he also banked on the difficulties defence lawyers often encountered in getting witnesses to testify years after the incident.

During recess, waiting for a business colleague of the deceased to testify to his worth, I got to talk to the widow, and it was at that time that the son came over and since they had both testified, we started chatting. The young man talked emotionally on how witnessing the accident had ruined his life, occasioning many nightmares. He remembered the accident so well and he had just started getting over it and managing relatively peaceful sleep until when he was required to prepare to testify . The horrors came flooding back to him, I was overcome with sorrow for the family. The two had both testified, the mother on the husband’s support for the family, he was a successful man and a good provider.

I was very gentle in cross examination but I was still uncomfortable because I knew that in good faith the son told the whole truth,  the right thing to do, but a mistake for the case.

It is good that the Judgment was delivered in absence of the parties as they lost the case because the party blamed in the evidence was not party to the suit. The reckless driver of the uninsured vehicle in a very dangerous overtaking maneuver was about to collide with the vehicle whose owner I was defending, then suddenly swerved to avoid an inevitable head on collision with it, a vehicle bigger than his and hit the deceased’s smaller vehicle then somehow swerved again and hit the vehicle he had tried to avoid colliding with. The judge a lady, expressed empathy but could not rule against the evidence.

I hoped that my instructing client would out of the goodness  of  their collective conscience make an ex gratia payment, and I did request. I was told in clear terms couched in good business language that companies have no hearts and indeed they were not a charity.

The plaintiff’s lawyer told me  he would appeal but that is the last I heard of it. Unfortunately, he was still entitled to his fee as of right, same way it  happens when a hospital client dies. You pay the hospital charges and the morgue fee.

I  really felt so bad for the unfortunate success, all  I would have wanted was the mother and her traumatized son not to have been dragged through the experience for nothing at all save for opening of healing wounds.

What that judgment represented was grief, despair, bitterness, anger, hopelessness on the one part,  and pride, heartlessness and darkness on the other. I  do hope they, especially the son, recovered eventually to enjoy a peaceful sleep and the joy of the rising sun. In litigation, there is no follow up(In court annexed mediation as well).

Sometimes one can uselessly say, I will pray for them to be okay. That would be a totally empty gesture, the more I think about prayer these days, the more I view it as a call to envision good happening in the world and use whatever comes your way  to bring about even the tiniest bit of good that you can, in whichever situation you find yourself in.

Mediation would probably not have given the victims any money but empathy and understanding. The son would not have testified and opened the wound with the mother there to relive  the horror.

They did not deserve false promise of appeal, as given the evidence, that would have been useless. You do not console the bereaved by telling them you will open the coffin and see if their loved one will raise up. Some judgments are nails in the coffin, they are as disastrous as accidents.

Those are the issues that mediation can address; with its emphasis on empathy and the most viable solutions for given circumstances, mediation would be a prayer in action.

LAWYER’S ROLE:

Only lawyers know that it is not easy to take on the load of making decisions for clients. Every decision is a risk, and many people, in fact many of us are  averse to taking risks. We have grown up in a society that protects us from our own responsibilities.

The law as it has been hitherto practiced puts the lawyer in the unenviable role  of deciding for others, at times unsure of  all the variables, they promise a course of action will  succeed based on the need to keep the client. What some litigators are after, is a victory over issues that have nothing to do with the case at hand. For some , it may just be to prove their, I  never loose in life mentality, which is good in certain circumstances but takes a toll on those employed to help them succeed in some circumstances, especially, if the success has to meet pre-determined ingredients, like elements of a tort or establishing certain facts for that success to be honest and true.

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The above quote is  one way and some feel  it may be the powerful way, but not the only way.

Our justice system is now tainted with cries of foul regarding how ‘the must win’ is sometimes realized.

There is a greater search for global peace and an indication that it could ultimately give a more lasting shared success.

Here is a different view captured in brainy quotes:

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I  believe all the different views are answering individual prayers. What is being advocated, is Humanity’s collective prayer to be answered by the right choices we make that do not grate   on our conscience.

In  court cases, there is peace of mind  for everyone involved to be considered, including the judge or magistrate who see injustice perpetrated through a nice twist in the wording and previous interpretation of the law and they have no way of preventing it. I believe, Judiciaries  are advocating mediation for much more than clearing backlogs.

The lawyers on both sides need outcomes that they can live with, so they are choosing mediation for more than a settlement, but their contribution to answering the humanity prayer.

Thanks to good reads quotes for the following closing:

The Destiny of Man is to unite, not to divide. If you keep on dividing you end up as a collection of monkeys throwing nuts at each other out of separate trees.”
― T.H. White, The Once and Future King

AND

“ONE BUT MANY
One God, many faces.
One family, many races.
One truth, many paths.
One heart, many complexions.
One light, many reflections.
One world, many imperfections.
ONE.
We are all one,
But many.”
― Suzy Kassem, Rise Up and Salute the Sun: The Writings of Suzy Kassem

(https://www.goodreads.com/quotes/tag/unity).

Mediation cares about strengthening relationships to make all that is  in Suzy’s quote possible.

QUALITY MEDIATION BELIEVES IN QUALITY MEDIATORS & QUALITY MEDIATORS BELIEVE IN SUPPORTIVE LAWYERS.

I was delighted to attend the 11/11  ADR/MEDIATION event that  was organized under the auspices of the Honourable Chief Justice David Kenani  Maraga .

The event organized with support from IDLO was graced by other Honorable judges of the High Court of Kenya,Honourable Deputy registrars and the ADR task force  and worthy of note, Honorable Adan A. Mohammed, Cabinet Secretary(CS)- Ministry of East African Community & Regional Development.

The theme was ease of doing business in Kenya, so understandably some High Court  Commercial Court Division judges were  in attendance including  Honourable Justice Fred Ochieng all of whom in mediation lingo, were actively present.

When considering mediator quality in a specified context like this the discussion must also be contextual. In that case, I paid attention to the CS who gave the short overview of what ease of doing business is all about. In short, from that address, it is the measure of compliance with index set by the World Bank to rate ease of doing business in a given country. Kenya is not doing badly out of the 190 countries.

An online source, “economictimes.Indiatimes.com” gave a similar definition, that it is an aggregate figure that includes different parameters which define the ease of doing business in a country. Also mentions the regulatory best practices as parameter and that observations of performance are made across time.

Among the indicators are Construction permits, registration, getting credit, tax payment mechanisms, and of course as the CS  indicated, the best dispute resolution scores which in effect is the performance of the Judiciary.

Therefore, it is no wonder that our Judiciary has invested a lot in Judicial Transformation initiatives of which mediation is just one. Some progressive politicians  like Senator Sylvia Kasanga who was in  attendance have also put their weight behind the initiative.

I believe, that for an undertaking to succeed, it requires a lot of input from diverse disciplines whose values intersect. I therefore checked a bit more on what some others have said about the topic.

These indicators are not just listed but have been elaborated by economists. The originators of the Idea are  said to be top economists Simeon Djankov & Gerthard Pohl  from central Eastern sector of the World Bank. Similarly leading economists especially in participating countries have analysed the initiative.

An article from the Nairametics, September 13 2019,by Abiola Odutola talked about how multiplicity of taxes may have affected  his countries rating on ease of doing business index. To quote his words, he said:

  “While tax is the lifeblood of any economy, it is also important that it should not become a burden to businesses as such development would further pull the rating of the country in the ease of doing business.”

He continues:

“…..taxes are meant to ensure entrepreneurs remain in business by providing basic infrastructure to ease production and not to frustrate them with same or similar taxes at different levels.” 

The countries being rated are 190, and a favorable rating obviously attracts investors to the country, uplifts the economy, provides jobs and generally  and hopefully  helps the nation to fulfill the commitments to its people, particularly Kenya which touts one of the most progressive, democratic and people centric Constitution of 2010.

This is where the lawyers come in. They are the champions of rights for all people and lawyers featured prominently, in consultative capacity and otherwise in the drafting.

The 2010 Constitution, right from the preamble is so democratic and progressive that it guarantees rights hitherto unrecognized including shelter, economic rights, minority rights, access to justice, social justice and the rule of law. Those provisions remain static until those in the business of the law which in short involves practices and rules of conduct of a community that are binding, give them life. The vital role of the lawyers is to have clarity on the rationale behind every provision of the law that they are interacting with closely in their practice.

Article 159(2)(d) of the Constitution that provides “ justice shall be administered without undue regard to procedural technicalities” which has become part of every lawyer’s preamble to applications. It has been such a welcome provision and they won’t let each other forget it. That is an example of a provision that is alive.

The same article 159(2)(c) of the same Constitution, provides for alternative dispute resolution including mediation, arbitration and TDRM.

Arbitration and TDRM have been in operation; one legislated and another anchored in customs and beliefs. They have gained respect and they have not been perceived as a threat to litigation. This may be because they operate in private save for when courts have to intervene, support or give necessary directions.

Mediation on the other hand is new on the scene but because of its acknowledged added benefits in satisfying the access to expedited justice constitutional requirements, it has garnered support from those who look at these issues wholesomely, mainly the judiciary.

While many lawyers have opened up to the challenge of adopting to new ways of doing things, a few are still pursuing the stumbling block agenda in regard to Mediation. Mediation is being promoted within the precincts  of the courts, operates within the  courts and is taking over cases filed in court.

So  lawyers who have  embraced some sub articles of  the Constitution and have picked areas of practice arising from the new  Constitution  like the revised more flexible method of enforcing the Bill of Rights under Article 22 and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and procedure rules that are frequently resorted to address Lacunas in administration of justice, are yet to fully embrace mediation.

In the Dispute Resolution area, the country has invested a lot in mediation as the option that has  been adopted by the rest of the economic partners as viable. It promotes access to justice in a manner that seeks to create an equitable playing ground for parties, to promote relationship building between disputing parties and generally enhancing a philosophy that propagates peace. The focus is on facilitative mediation that empowers parties, is cost friendly and engenders respect for all. To me, it is a measure of real freedom at individual level.

Why am I focusing on this? Because of the fear that lawyers may continue to be a stumbling block to enhancement of efficacy  of court annexed mediation.

In view of the lawyer’s role above stated in promoting  the constitution that has put a new flavour to the whole notion of justice,  opposing mediation without really taking time to understand it is some kind of duplicity.

Practitioners are many and a few may not even have had an exposure on the topic of mediation and exactly why and how it appeared on the legal practice scene.

It therefore behoves those promoting mediation to educate and sensitize in a manner that catches the attention of practitioners. This should be done in a manner similar to the law topics which required us to read  all manner of  ancient philosophies that underpin legal theories.  The incomprehensible Greek laid a foundation for some of the ideas we see in the modern Constitution:

Socrates: elucidated on virtues

Plato: Author of “The Republic” dwelt on the order and character of a just city state, theory of ‘good’ and Ethic.

Aristotle: Great on Ethics , below is a lovely quote of Aristotle:

   Excellence is never an accident. It is always the result of high intention, sincere    effort, and intelligent execution; it represents the wise choice of many alternatives – choice, not chance, determines your destiny.

— Aristotle ( by Quincy Seale)

Another popular one is:

    “ Knowing  yourself is the beginning of  all wisdom”

The reason we had to struggle with all that  in law school was to prepare us for situations like the present.

Without  the support of the Lawyers whose training  prepared  them for wise  interpretation of  the  times, any initiative  would  flounder.

Identification with commitment to  serve society  requires deep foundational knowledge. No wonder one of the requirements to accredit universities offering Law has always been a suitable Library.

So I pose this for every lawyer blindly opposed to mediation: What is your purpose and what should be in your career obituary? Successful Stumbling Block to change?

Lawyers  have been helped out by having a body that guides and directs, Law Society of Kenya whose mission statement is:

To empower the legal profession with quality member services and promote the rule of law, through advocacy and good governance.

The resultant core values are:

  •        Rule of law and administration of justice; Democracy and good governance;
  •        Prudence and probity in the use of resources; Learning and growth.

We have modern philosophers or just intelligent human beings that we would wish to emulate whose words enable us to put life in the mission and core values. Examples

      “The purpose of life is to contribute in some way to making things better.”
― Robert F. Kennedy

What  some might quip as learned colleagues  are wont to do is that they are busy earning a living, which is true but isn’t there more? I respond to this with another quote:

  “It does not matter how long you are spending on the earth, how much money you have gathered or how much attention you have received. It is the amount of positive vibration you have radiated in life that matters,”
― Amit Ray, Meditation: Insights and Inspirations

We were as lawyers trained to think and act individually instead of cooperatively because for those who intended to practice, the open courtroom is like the Arena. After a lot of research even by those in the same profession, the world has reached a conclusion that  the adversarial way cannot be the only way, it can be enhanced by introducing alternatives that are suitable for certain cases, it is faster, cheaper and more appropriate for the  clients who accept that option. Choice is their right.

Lawyers have helped in coming up with the Consumer laws that we at times hold against others only to forget, that as service providers, we can also be taken to task on observance of consumer laws. Those laws demand consumer education and advice on the choices available.

Even without laws, we should be awake to the demands of the times. Humanity has evolved through many stages and in this particular stage, the silent theme is doing the best for all and the all will give back to you. At least this came true for the man here below, a lawyer:

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We  also have a responsibility to society to try and understand that  which will eventually benefit all.

It demands just a bit of willingness to be open to learning and to be open to the possibility that  eventually our best interests lie in supporting the mediators and participating in making them better than they are now prepared to be. Mediators will grow organically if not pressed into a corner.

 

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“But beware of this about callings: they may not lead us where we intended to go or even where we want to go. If we choose to follow, we may have to be willing to let go of the life we already planned and accept whatever is waiting for us. And if the calling is true, though we may not have gone where we intended, we will surely end up where we need to be.”
― Steve Goodier

A MELTING POT OF ALTERNATIVE DISPUTE RESOLUTION(ADR) MECHANISMS

 

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I was happy to attend a recent forum to discuss the ADR (Zero Draft) Policy developed by the joint efforts of the Judiciary, and the Nairobi Centre for International Arbitration.

In my lighthearted approach to things, after seeing the diversity of parties in attendance and the views; and after listening to the presentation of the policy and the able defense of  the contents thereof, an image of melting pot came to mind.

Then I had to check dictionary meanings of the phrase to confirm it is a suitable title. Colins Cobuid advanced English Dictionary had this precise meaning:

“ A melting pot is a place or situation in which people or ideas of different kinds gradually get mixed together”

From what I observed, there is a lot of mixing to do  and the best place to start is the diversity of Ideas:

There are those who are deeply entrenched in ADR practice especially at community level who posit that the courts are the alternative, so the policy should reflect that. That is a good ideal but at the end of the day there was concerted effort to persuade that we take things as they are instead of  what we think  they ought to be. That it is enough to focus on making the alternative the better option.

There are those who feel that you cannot put the various categories of ADR, for example mediation and Arbitration under the same legislation and regulatory control. Therefore, a legislation for mediation should be considered especially when there is an Arbitration Act that is being retained under  the propositions in the policy.

Others opine that trying to regulate the existing practice is not such a good idea, that the state should only provide the means for enforcement. That  all the practitioners belong to various bodies who regulate their conduct through the standards and codes of ethics set for the particular institution.

It was also to be noted that other practitioners are in this as a commercial practice that impliedly follow dictates of commerce. These ones look  for objective solutions to problems in a manner conducive to the ease of doing business in Kenya.

Unlike mediation, Arbitration has affinity to litigation; borrowing a phrase from Michael Alberstein- “ The Jurisprudence of Mediation”  he talks of “Legal Formalism” which I think is more visible in Arbitration than mediation. Arbitration is like an efficient, expeditious, well focused process conducted in highly conducive environment in private facilities. It has demonstrated ability to keep high standards of practice. I opine this is possible due to the fact that the training institutions are associated to International bodies who ensure adherence to best  practices. In this region, it is one of the earliest institutionalized  ADR practices which was recognized by the judiciary as capable of producing credible outcomes. The fact that the disputes are allocated to those with knowledge and expertise in the subject matter of the dispute is a big advantage.

The reservations regarding Arbitration are, among others, that it is expensive, it is more like private  litigation, it is elitist and does very little in power balance between the big corporations that use standard agreements with Arbitration clauses and the small parties they contract with. Then again we have to note that guidelines on consumer protection in different sectors have tried their best to address this through the Consumer Protection Act which was enacted pursuant to Article 46 of the constitution. Article 48 of the constitution also provides that the state shall ensure access to justice for all persons and if any fee is required, it shall be reasonable and shall not impede access to justice. The issue though, is whether prescribed fees should apply to private dispute resolutions which are not in court.

It is against this background that in implementing the 2010 constitution, mediation seems to have been given emphasis as ADR option to invest in, but we were told that  the other ADR practitioners who have been dispensing un-institutionalized justice to communities are not happy, it appears they too would like their services to be recognized and financed. It is also common to wrongly apply the description of all such processes as the mediation envisaged  under the civil procedure rules  2010 .

From my observations, there is a lot more to understand about mediation especially the conflicting perceptions that it is now the gateway to judiciary ADR practice for all. This is understandable, as the other ADR options like Arbitration, and Tribunals demand qualifications and expertise the majority of informal ADR practitioners cannot meet. However, to say that they can easily transform into professional mediators is a fallacy that has been gaining ground unchecked; thus the reason why I and hopefully most people who attended the forum welcome the Idea of an umbrella body, designated the National Council of Alternative Dispute Resolution, which will hopefully address the points of concern and the misapprehensions in addition to marshaling resources. This will, if approved, be the melting pot.

The ADR practitioners to be put in the melting pot have to have the characteristics that can withstand the heat, reach the melting point without total evaporation and be free of impurities so as not to resist the melting. Each  has  its own melting point  but in the end it is the purity of the end result that matters; pure but distinct.

It therefore behooves us all to see what goes in and what does not. After the liquid point, the heat stays on to maintain an acceptable state of equilibrium(maintain standards). Borrowing from our great African leader Nelson Mandela whose spirit still guides, I reproduce his sentiments in a quote here below:

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So, what goes into the pot?

The policy consideration is to have informal dispute resolution practitioners  assist in resolving disputes and be able to stem the backlog at the judiciary among other things. There is therefore need for moderation or we might take seriously what Chief Justice (emeritus) Willy Mutunga said, in jest I guess, at Kiambu Law courts, that he had told his people that even witch doctors could help them to resolve their disputes before taking each other to the overburdened courts.

According to the Policy presenter, there is the Constitutional threshold to meet. This would lock out many who offer dispute resolution services to the public from traditional set up and peculiar beliefs of some communities.

Looking again at mediation, it was suggested we restrict ourselves to the Judiciary definition. That definition would exclude certain mediations which are authoritative, for example Mediations by Chiefs, the police and Faith based mediation. There is an ongoing authoritative relationship with the parties which will hamper self empowerment. Just their titles work on the mind of the parties to make them tune out instead of tuning in.

In addition, there are Clan heads who command subservient behavior from their people, in addition to traditional elders whose retinue of members have a a somewhat pecking order formation.

The suggestion was that for those others to qualify as professional ADR practitioners, they should go for training and be accredited as professionals.

The same to apply to emerging informal ADR especially in the social arena, neighborhood forum and groups referred to as “emergent affinities”, and age-mate mechanisms.

There is also recognition of Traditional Dispute Resolution Mechanism(TDRM) employed by ethnic communities which are receiving consideration outside the other ADR services. The concern expressed in the Draft Policy is lack of legislative framework for TDRMs and there is therefore a proposal for legislation that would provide institutional framework for promotion of these mechanisms. What I understood as the intention of the policy is to forge some sort of collaboration with the TDRMs

That is the part I find singularly challenging. These TDRMs based on tradition and belief are probably as diverse as the indigenous communities they represent and even one community can have some slight differences at the micro level. One has to recognize the unique “jurisprudence” of each to realize that institutionalizing and/or regulating the practices especially by none community members may be a mistake.

I chose to look at several as case studies, the first being the Masaai Elders. In an article by South World, Culture August 2014 titled Kenya- The Masaai Elders, I glimpsed into how truly awesome the Masaai elder’s  institution is.

The elders status is approved, it is like a graduation ceremony or in ADR  terminology, accreditation. The presiding members are senior elders. There are rituals that the candidates must undergo before approval for the status.

These rituals seem to be focused on harnessing blessings, and this can be something an institutionalized framework can neither give nor comprehend. The first ritual involves an ox  killed by suffocation, blood is mixed with milk and drunk. Meat is ritualistically roasted and eaten. Parts of the meat , for example breast are rubbed on the forehead for blessings. Further blessings are conferred with sour milk, a ring from the soft part of the breast of the ox is made. White paint is smeared by senior elders on the incoming elders.

Herd staffs are also blessed through putting them in fire and thereafter plunging them into cow urine.

The Ox skin is ritually spread out and an elder respected by all, plants  a green sprout at each entrance to the Manyatta.

The 2nd Ritual is described in the South World article as “ The Ox That Wounds”. This is a purification ceremony. The candidate elder is escorted by a senior ‘elder without defect’. There is beer and honey consumed and blessing ceremony continues.

The most respected elder is called the Laibon. In determining suitability, the personality of an individual is paramount. Qualities revered are wisdom, intelligence and modesty.

The roles of the elders among others include acting as spiritual counselor and judges. That they are proud to be conscience of society, guardians of its laws and spiritual traditions. They observe discipline and decide on severity of punishment. That they love truth and eloquence and are truly the wisdom that supports the various pillars of society.

It is indicated that during meetings, a few of the elders separate themselves from the rest of the group for private discussion called ‘Engilepata’(which  reminds one of caucusing).

That they act as mediators in disputes and they maintain harmony in generations. That the elders can sit under an Acacia tree for a whole day until they reach a final decision.

That they are an impartial body and tradition is their constitution.

I particularly looked for Masaai elders as their people have done a great job in preserving their traditions. With the entrance of religions that did not see the traditional practices as being in alignment with their teachings, many would be traditional elders changed the standards to suit new beliefs. Whereas that can be seen as  some sort of  human evolution or civilization, it destroyed the traditional foundation for social recognition, Identity and authenticity. Whereas in our times we need to draw up standards and codes, the organic traditional dispute resolution practitioners had ingrained skills and they radiated their authority as  if it was innate.

These elders do things purposefully, they have undergone rituals which may have appeared barbaric to those not part of it, but to them those practices had a deep psychological impact. In addition to that, resolving disputes was enabled by a thought process that focused on togetherness, the Ubuntu philosophy:

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https://www.etsy.com/listing/190401854/ubuntu-i-am-because-we-are-african.

If such philosophy existed in the society today, mediation would have very few hurdles.

Most of the current practitioners dubbed elders are similar to GMO foodstuffs. They may not be  genetically modified but personality modified by economics.

The modification did not exactly begin with colonialism, it started with greed when some elders decided that the offerings of goats, cows, chicken and oxen could make them rich, so the more disputes to preside over the better, regardless of whether social cohesion was maintained. The cohesion is possible when everyone is accorded the basics of life to make individual development possible. The true traditional communities knew how to shape character, but the GMO  ones shape a culture of exploitation.

It is greed that led to pronouncements, supposedly from the spirits which created gender inequities. Some practices in African societies focused on empowering one gender and dis-empowering the other. Children became more of an economic asset than  gifts from the gods meant to be nurtured to their full potential.

The gods became angry and a lot of the peace building efforts have failed to work, both on individual level and community level.

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For the gods to be appeased, there must be alignment with the God character which looks out for the collective which  includes sustainable economy. Resolutions that open up a gateway for exploitation and destruction instead of preservation have led to the current undesirable developments.

We have justice systems that were entrusted with  justice, but some of their ways though practical do not speak to the wisdom of ages.

My 2nd case study is the Njuri Ncheke: A somewhat modern institution of elders preserving some of the traditions.

This is a traditional setup that  presides over matters of their people only, The Ameru People. According to an article by David Muchiri, Nation Wednesday May 2019, the Njuri Ncheke is about 800 years old.

They are elected council of elders which is hierarchical. From online sources, I gathered that their work requires great wisdom, personal discipline and knowledge of traditions.

It is the Apex of the Meru traditional judicial system and their elders apply and execute community laws, they are custodians of traditional culture, and they have  ranks.

The qualifying elders are mature, composed, respected and incorruptible.

From some of their activities reported in the media, they too use rituals. In a nation media article , July 21st 2018, they are shown in a ritual to invoke a curse on people who are behind the burning of schools.

Most interesting, in an article by Gerald Mutchie reported in The Star online, a Catholic Priest decided to call upon the Njuri Ncheke to put a curse on thieves who raided and stole maize from Nekero farm for orphans. That the Priest, Fr. Limo Riwa decided a curse would suffice and provide the easiest route to justice. The Elders Council took it up and promised that the curse was imminent.

There are therefore much shorter and effective routes to justice but if you do not know how they work, I would suggest they be left alone, no modification is necessary and collaboration may become aberration.

Not everything melts easily  so not everything is fit for the melting pot.

 

INSURERS & MOTOR VEHICLE REPAIRERS SPARE PARTS MISUNDERSTANDING-IDEAL FOR MEDIATION.

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WHO  SHOULD  SUPPLY MOTOR VEHICLE  SPARE  PARTS FOR REPAIR PURPOSES?

The Insurance Motor Industry and the Motor Vehicle repairers can be likened to brothers in business. The relationship is such that each needs the other to be able to meet their promises to their investors and to the  public to which they offer  services in their respective capacities.

The vehicle repairers in an effort to streamline operations came together under an umbrella body called Kenya Motor Repairers Association (KEMRA). This association is aimed at protection and promotion of members business through advocacy and instilling professionalism. It claims inspected and accredited motor repair centres and its vision is promotion of efficiency, effectiveness, safety, functionality and satisfaction.

The insurance industry also has an umbrella body called Association Of Kenya Insurers (AKI) which according to its website, has undergone metamorphosis since 1960s when it had various independent industry associations including Motor Association of East Africa .In 1987  the current association AKI was registered as a society being a non profit, consultative and advisory body . It purports to champion insurance growth and excellence; professionalism is one of its corporate values. The members are governed by a constitution with a Governance structure that executes its decisions through various committees the  motor committee being one of them.

Insurers are risk underwriters who manage the premiums collected from the insuring public so that enterprising members of society can go about their businesses without the burden of worrying about uncertainties of life. Motor  vehicle risks in Kenya are always on an upward spiral as a result of a vibrant economy ; a consequence of  a people with an uncommon enterprising spirit. The insurance the people want is one whose premiums are affordable and so well managed that if a risk occurs, indemnity is assured and there is timely resolution of all pre settlement requirements.

In  motor insurance, the insurers depend on expertise from different fields; examples being, insurance intermediaries,(agents and brokers) who sell insurance and explain what is covered plus recommending to the customer the Principal (insurer) who can underwrite the risk,  motor vehicle assessors and repairers to ensure that the damage is assessed and handled as per the agreed terms in the policy, barring any disqualifying factors. The insuring public, by transferring the risk to the experts in risk management,  has legitimate expectations.

The insurance industry has experienced some very low moments when some Insurers with high motor portfolio  collapsed, with only one managing a comeback  but still performing dismally.

The reaction to bad incidents affecting some insurers  has to some extent been a lot of finger pointing. Unfortunately this has resulted in sour relationships with crucial business partners;especially when perceived partner malpractices are managed  by implementing policies that are designed to tame the culprits. On the other hand,the partners insist that insurers should tame inside out by adhering to clearly set out principles that recognise professionalism and Insurance Laws and Regulations.

To a mediator this is an Ideal situation for intervention and requires the skills that can help both parties to come to the table,really listen to each other and view  the situation differently as a common challenge for mutually satisfactory win-win solutions. The spare parts misunderstanding is ideal as it has identifiable parties and each side is able to articulate its concerns.

From the objectives of both AKI & KEMRA, it is clear that  they agree on so many things a fact  a mediator can capitalise on. Common stated objectives and ideals provide the perfect reason to believe these particular disputants can cooperate and  be them against the problem.

The interests of both are really easy to pinpoint; the repairers want to offer quality services to  clients like the insurers and insurers want professionalism that engenders cost effective services to the customers.

The misunderstanding seems to have been borne out of mistrust which at times originates from wrong attitude to the issues especially, viewing problems as insurmountable. The mediator’s role is very good at digging up sources of mistrust which often turn out to be mere perceptions.

What is of particular significance in the spares debate, is the fact that there are other interested parties with a keen interest in seeing the issues resolved. This problem goes to safety of motor vehicles. Repairs not done up to standard do not just affect the insured party, but also the other road users  who can become collateral damage. A vehicle repaired under acrimonious circumstances is very likely to fall short of being returned to a reliable pre accident condition. The Government whose mandate it is to ensure safety, would be an interested party especially through the ministry of transport, and infrastructure which for this particular purpose works through the National Transport  & Safety Authority whose functions among others is national road safety management, motor vehicle inspection and maintenance of security on the roads.

Meru-accident.jpg                                                                                   (from Nairobi News .nation.co.ke)

If  either of the warring parties were told by the public that spare parts issues  could be a factor in an accident like the above, they would most likely react with  indignant denials, yet if you analyse causation of past incidents, it is very possible.

It  is therefore my view, that in a mediation, looking at  options in this kind of case would take on a wider scope and even pushing  legislative intervention would avail an avenue to workable solutions.

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The grisly images like the above which are frequent in Kenya media would also be an invisible catalyst to drive the parties in reaching  the right solutions.

Why have I suggested Mediation to end such a conflict:

  1. The parties have an interdependent relationship.
  2. These are business people who have little time to waste either in litigation or  in prolonged conflict.
  3. There are both service industries under public scrutiny and both are crucial services.
  4. There is power balance between the parties.
  5. There are opportunities to be resourceful and together build something better and mutually beneficial.
  6. There is room to help each other in better management of their respective industries which would minimise loss and maximise profits on either side.

What would be  the suitable mediator position?

  • Be neutral, understand the dynamics of the dispute and facilitate the process.
  • Endeavour to be trusted and acceptable to both sides.
  • Be capable of letting parties clearly bring out the interests underneath the party positions and also to establish common interests.
  • Be good with directing proper internal reflection and minimising emotional outbursts.
  • Be skilled at nudges that are designed to let each admit to its contribution to the dispute.
  • Be good at reality checking and guiding parties to offering viable options.
  • Validate both sides outlook and have them appreciate how much good they can do through consensus.
  • Appreciate this cannot be resolved in one day sitting and that it may require a lot of innovation from each side and from the mediator.

Unlike dealing with 2 disputants, the mediator has to appreciate these are two powerful industries which are also regulated.At the end of all the posturing and wish listing, the parties should  be referred to their legal advisers to get clarity on some issues.

The relevant legislation which touches specifically on the issue at hand is the Consumer Protection Act No. 26 of 2012 Sections 44 to 52. The wordings in that section seem to have had the issues between Insurers and motor vehicle repairers in contemplation. The entire section is titled ” Repairs to Motor Vehicles and Other Goods”. It may not be addressing all the issues to this dispute, but maybe  it does give guidelines on how to address the issue of repairs and spare parts. Section 44 definitely addresses repair fee, but I am more interested in  the repairer warranty sections:

  1. Warranty for vehicles

(1) On the repair of a vehicle, every repairer shall be deemed to warrant all

new or reconditioned parts installed and the labour required to install them for a minimum of ninety days or five thousand kilometres, whichever comes first, or for such greater minimum as may be prescribed.

(2) The warranty in subsection (1) is in addition to the deemed and implied

conditions and warranties set out in section 5.

(3) The person having charge of a vehicle that becomes inoperable or unsafe

to drive because of the failure or inadequacy of work or repairs to which a warranty under this section applies may, when it is not reasonable to return the vehicle to the original repairer, have the failure or inadequacy repaired at the closest facility available for the work or repairs.

(4) When work or repairs are made under subsection (3), the person entitled

to a warranty under this section is entitled to recover from the original repairer the original cost of the work or repairs and reasonable towing charges.

(5) A consumer who subjects any vehicle part to misuse or abuse is not entitled

to the benefit of the warranty on that part.

(6) No repairer shall refuse to reimburse a consumer because of the operation

of subsection (5) unless the repairer has reasonable grounds to believe that the

part under warranty was subjected to misuse or abuse.

(7) A consumer who is seeking reimbursement under this section shall return,

upon the request and at the expense of the original repairer, the defective parts to the original repairer unless, in the circumstances, it is not reasonably possible for the consumer to do so.

(8) An original repairer who is required to make a payment under this section

is entitled to recover from the supplier of a defective part any amount paid to the consumer under subsection (4).

 The issue in dispute between insurers and repairers is on who provides the spare parts. Some  insurers have started sourcing  spares directly from parts suppliers and contracting the repairers for labour only. Upon reading the provisions of the law above, there seems to be an intention, to  put the responsibility of guaranteeing repairs and the quality of spare parts  used on the repairers. This section would definitely protect the insurers on the issue of repairs and section 46 does protect on the issue of charges.

When this section is read together with section 5(3) of the same Act which is reproduced here below, then it makes me wonder whether motor repairer labour agreements only are an option at all.

  1. Quality of goods and services

(3) Any provision, whether part of the consumer agreement or not, that purports

to negate or vary any implied condition or warranty under the Sale of Goods Act

(Cap. 31) or any condition or warranty under this Act is void.

(4) If a term or acknowledgement referenced in subsection (3) is a term of

the agreement, it is severable from the agreement and shall not be evidence of

circumstances showing intent that the deemed or implied warranty or condition

does not apply.

The relevant part in the above states that any provision in the agreement that purports to negate any condition or warranty under the Consumer Protection Act is void. So when Insurers buy spare parts and give to the repairers, the repairers cannot give a valid guarantee of the quality of spare parts fitted in a vehicle. If such guarantee cannot be given, then it would   negate the whole of section 51 of the  Act cited above.

That could be the guidance the lawyers would give. The only problem is that winning a legal score does not end a conflict; we would therefore go back to the mediator to help parties seek solutions. The solutions would depend among other things, on the facts,  worries and apprehensions identified plus weaknesses or strengths displayed in the process. The mediation process  seeks to  balance positions and also to address each party’s interests by engineering to have each side see the situation from the other’s side.

All issues are tabled by the parties and not the mediator, if the debate is on mark-ups by the garages or poor quality of parts supplied through the insurers, all has to be stated by the actual parties and not lawyers or mediators.

I refer back to where I discussed other stakeholders and Government being one of them  through its relevant institutions.

One bone of contention is that  fixed prices/premiums are affected by the Competition Act of Kenya. This  seems to have an overall negative effect on the ability of AKI to standardise the terms of players in the insurance industry .

The competition authority  under section 3(d ) in objects is to protect consumers.

Whereas section 21 (1) prohibits Restrictive Trade practices which among other things are such acts as would lessen  competition in Goods and Services, together the insurers and business partners can lobby for exemption under section D of the part on restrictive practices. The reasons would probably be that it is in the interests of the consumers of insurance services and in harmony with objective under section 3(d) of  the Competition Act   which is consumer protection.

Again, together with all stakeholders, the disputants can lobby to  have Government enforce membership to the lead Associations in the dispute so that all vehicle repairers can be members of KEMRA if they wish to be providers of insurance services. This would serve the insurance industry in that, the officials on both sides can have fruitful continuous discourse with each other. Both parties would be able to promote professionalism and maintain the highest standards which would be a marketing point for both sides.

The Matatu industry sets  a precedent where Government intervened to force membership to  Saccos in order to qualify to operate in public service vehicle arena.The important consideration from Government side was the public.

The current situation is really not serving either side and it is hurting the consumers of their respective services.

B8npQV0.jpg                                                                                    (reddit.com)

 

 

Daily lessons in Mediation.

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As Court Annexed Mediation becomes  more and more entrenched in Kenyan Jurisprudence, we are learning a bit more and more on mediation practices, challenges and our own local  best and worst practices.

Our “launching pad” so to speak , was emulating the best international practices.

We have applied the practices by reason of  -the no need to re-invent the wheel philosophy. Having done that, we all know that we at least have to set our own wheel thread size  that fits our terrain.

It is up to us to identify the potholes and rougher surfaces  and do what needs to be done to get a smoother ride, respecting the welfare of passengers(parties) on board.

For example, we may not always have the proper mediation rooms, but we can make the rooms feel right by our actions that will impact the mindset of the parties. The mediator should reach early and survey the room, adjust furniture to desired style and act like she is in the grandest boardroom.

When something is new  and trendy, the public will pay attention and want to hail it. There is a danger of turning anything welcomed with great anticipation into a passing fad unless the initiators are willing to stay the course.

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There must be a clear  vision of  where the destination is and  the road or roads that  will lead there.

As human beings, we sometimes look for shortcuts and the court annexed mediation process is apparently not spared this human frailty. Observance of the mediation process fully by a mediator from  essential preliminaries, ensuring the conducive environment, respecting the parties’ time, duly observing the  bits that identify the process as a court managed process, explaining everything that needs to be explained, getting commitment and necessary consents, ensuring party understanding and trust in you and the process, and purposing to guide the parties in reaping all acclaimed benefits of mediation is much more exhilarating than getting a settlement or non compliance certificate by hook or crook.

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The above quote summarises for me what my feelings about our court  annexed mediation are at the moment. We have the million thumbprints (best international practices) which should be respected and not tarnished or violated in any way; but we are also taking control and handling new challenges in accordance with our circumstances and adding fingerprints to the delicate clay.

Mediation is indeed a delicate process managed by skills that bring back humanity to business transactions and relationships. Active listening for instance cannot happen without empathy, respect, and  understanding being embedded in the process. The mediator may not be able to bring respect to the process without respecting self  by being competent, authentic, and generally ethical in a way that is obvious to the parties.

In  most of our writings advocating mediation, our mediators and the process, we invariably  cite international best practices as our standards, which is a very good thing. Even as we look at what is happening elsewhere to set standards, I highly subscribe to the idea that it is in applying and striving to meet the standard and marking our scorecard that we can truly learn.

We must assess ourselves and the process we have conducted at all times. We must identify peculiar circumstances and not only deal with them but bring them to the right forums to be dealt with.

Mediation is not  bound by procedural requirements of the law but is a consensual decision of the parties who are guided by  a neutral party(mediator) in a fair process that ensures all the party’s  interests pertinent to the matter in question have been listened to and the solution is owned by the parties.

So there is need for a mediator to desist from being totally detached, that  is not the meaning of neutral.

It therefore behoves mediators to read the case summary, to quickly appraise oneself of the nature of the dispute instead of stating:

“This is your dispute, you are in full control, I am a neutral party here, so I will leave you to it. Kindly be fair to one another observe the ground rules, no walk away as you have signed the statement of understanding, there could be penalties by the court  if you do, please talk and try to finish   in about 45 minutes, we started late, so the room might not be available to us beyond that. It belongs to the Judiciary; we mediators have no adequate space, that is one of our problems, so try to  reach a settlement, am sure it will serve you well not to have to come here again”

Unless  you do a lot of  listening to self, you will deny that anything like that can pass your confidential lips. Do not glory in the fact that the process is confidential and parties’ lips are sealed.

“Your conscience is the measure of the honesty of your selfishness. Listen to it carefully.”     ~~~Richard Bach                   

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