By Ebel Smidt, international mediator
Climate change and population pressure are challenges in the realization of the National Strategy of Transformation. To make Rwanda a middle-income country human and natural resources need to be mobilized as efficient as possible. Disputes over use of natural resources or liabilities for damage caused by the interaction between nature and society also need professional solutions provided by mediation, arbitration and court ruling. Each method deserves its specific place. The role of arbitration and mediation in this field is still relatively new in Rwanda and deserves more test cases and dissemination of its benefits.
Extreme events and questions on liability
The first wet season of 2017 showed extreme high rain intensity leading to floods and landslides with 112 deadly casualties and thousands of houses destroyed and huge damage on roads and bridges. The Government of Rwanda rapidly reserved 50 billion RWF (about 50 million US$) to solve the most acute problems. Real expenditures might have reached the double amount. Every wet season shows at least a couple of extreme events leading to damage to houses and infrastructure.
In most cases it will be obvious that these extreme events are part of the unpredictable character of nature. But in other cases, human interventions help mother nature. For example: steep unprotected roadside are vulnerable places for landslides after heavy rains. Bridges or river protection works that narrow the passage of water might cause extra flooding. And agricultural practices, if not well managed, can also contribute to landslides. Examples are bare new terraces or poorly constructed or maintained drainage channels in terracing projects. In all such cases the question might be raised on responsibilities and parties might accuse each other of liabilities and start legal procedures.
Improved regulation leads to more transparent conflicts of interests
In general, it holds that an increase of governmental laws and bylaws leads to an increase of the number of conflicts of interests among private sector entities and between the private sector and the governmental sector. In the Rwandan case of natural resources management at least three developments illustrate this development:
- Land registration: the strongly improved new land registration system diminishes the risk of vague conflicts over land ownership and empowers registered land owners to defend their interest in case of societal interests as housing projects, roads and other infrastructure projects.
- Mining permits: despite the improvement of Environmental Impact Assessments in the permitting system for mines, enforcement of its recommendations and other environmental laws in the mining sector is still subject to development and interventions of different projects. There are good examples of attempts to introduce sustainable mining in Rwanda and a covenant between the mining sector and the Ministry of Environment is in development, but not in all cases this will bridge the different interests of the mining sector and other stakeholders.
- Water permits: the new water permit system is presently disseminated in the country. Those entities that have a permit deserve the protection of the government concerning the quantity and quality of the water and entities that use water without a permit need to be attracted or obliged to apply for a permit.
When to use mediation, arbitration and court?
The main difference between the instruments of court ruling, arbitration and mediation concern the role of a third party. In case of the court ruling it is most commonly known that the judge or judges provide a legal verdict on an issue between parties. There are clear rules to which level the verdict of a judge can be questioned. There will be a final say by the legal system and backed by that system.
In the case of arbitration parties agree not to go to court and accept the ruling of an independent arbiter. Arbitration is an internationally accepted method and arbiters are certified as well as their organizations. The Kigali International Arbitration Center (KIAC) is such an organization established in 2012 as a private entity and legalized by the Law on Arbitration and Conciliation in Commercial Matters of 2008 and the Law on the Establishment of KIAC and its Structure, Functioning and Competence (2011). In comparison to a court ruling arbitration is faster and, in most cases, cheaper for all parties involved than court procedures. Professional arbiters will also try to help parties to prevent issues in future by analyzing the underlying causes of the difference of opinion.
Mediation differs fundamentally from arbitration and court ruling as parties express their willingness to solve their issues themselves with the help of an independent external party, the mediator or group of mediators. The mediator has a strictly guiding and supporting role in that process. In the world of conflict management mediation is seen as the method that allows most to clarify origins of a conflict and solve a conflict at a deeper level. It can be faster and cheaper than arbitration due to the empowering function of the process, but it can take also longer and result in a larger investment than arbitration. Compared to the costs of court rulings mediation is generally cheaper.
In practice mediation is especially useful in complex conflicts with many parties involved and when relations between parties are important. Arbitration is most successful in conflicts over ‘technical’ issues where an independent expert is trusted by all parties involved. And court processes are most logical when a strong embedding in the legal system of a ‘solution’ is needed.
Let us investigate two cases based on the reality in Rwanda.
With permits and under pressure of the local authorities a contractor starts the construction of a new road in an urban area during the rainy season. To construct a drain besides the new road an existing slope is cleaned of its vegetation and steepened. Above that steep slope houses exist, most of them with a land title and permit to construct a house. Due to heavy rains about 30% of the houses near to the edge are completely or partially damaged during that rainy season. All house owners had been informed by the municipality two years ago that the area would be redeveloped within the coming three years and that either a new house would be offered, or financial compensation rules would apply. Such a case is ideal for mediation. A quick solution is needed, parties do have a historical relation already and both the contractor and the governmental agencies are probably willing to assist the victims of the happenings more in a mediation process than when it would go to a court process. The a-priori needed acceptance of an expert ruling is probably not present under the group of house owners, making arbitration not a viable way.
Upstream of a long existing tea production area in a peat valley artisanal gold mining has been developed under the umbrella of a mining company. The erosion caused by the mining leads to clogging of the drainage system of the tea area. Experts have proposed technical solutions that never were fully implemented due to unclarity over who will pay the costs. Such a case is ideal for arbitration. Parties are willing to accept an expert ruling as it will concern the best technical solution and distribution of its costs. The more fundamental issue of how to protect the natural value of the area for the future might be dealt with by mediation between all stakeholders or parties might go to court over that question. The application of all instruments for parts of the problem is viable.
Need for training of mediators in the field of natural resources management
Rwanda has a rich experience in reconciliation processes. In much of these processes mediation techniques have been frequently used and improved. Leading center in that development is the Kiagal International Arbitration Center (KIAC). Although the name suggests a focus on arbitration it is also specialized in mediation and is actively promoting this instrument. A team of Rwandan and international mediators is already available. Further dissemination of the strength of the instrument especially in management of natural resources is a new field to be set up by a specialized group of experts.
Court rulings, arbitration and mediation are instruments to solve issues of differences of interests and conflicts. In the sector of natural resource management arbitration and mediation in Rwanda need further development. Organizations like KIAC support these processes.