The African family, unlike its Western counterpart, has historically been an extensive, multi-layered social unit. It comprises not only the nuclear family but also extended relatives, unborn children, and departed relatives. For Africans, the family is the cornerstone of society and is the basic sphere of action from which an individual becomes integrated with the wider community. Palpably, actions taken by an individual are therefore often guided by considerations of family welfare, reflecting the centrality of family to African identity and social cohesion.
As societies evolved, disputes inevitably arose, particularly around property and succession. Historically, property, especially land, has held profound cultural significance. Land was not merely an economic asset, it was considered to be property held in common by the community, passed down lineally and intertwined with identity and belonging. Consequently, to date, succession disputes often carry more than economic weight; they imply cultural continuity. These disputes are among the most emotionally charged disputes within African communities because they cut across personal, familial, and cultural dimensions that formal legal proceedings sometimes fail to address in entirety.
Given this context, mediation emerges as a particularly appropriate mechanism for resolving such disputes. This is more so the case as mediation aligns with African traditions of consensus-building, preservation of relationships, and community-based problem-solving. Unlike litigation, which often results in win-lose outcomes, mediation is a collaborative process by which the parties autonomously participate in generating solutions. Put simply, mediation is defined as an alternative dispute resolution process that functions as a tool of conflict management, where parties come together to seek solutions with the assistance of a neutral third party who aids in facilitation of the discussions, and subsequently, streamlining the process of reaching an agreement.
Mediation in Kenya has been promoted as a recognised, confidential, voluntary process of an alternative form of dispute resolution in law under Article 159(2)(c) of the Constitution. The constitutional endorsement is a demonstration that justice may not necessarily be administered solely through adversarial, litigious processes. It acknowledges and gives deference to mediation where appropriate, that will provide parties with a platform to engage in dialogue in resolution of their dispute.
However, for mediation to be truly effective in succession matters, it must adopt a culturally sensitive approach. This requires extensive awareness of both the law, particularly the Constitution of Kenya and the Law of Succession Act, and the social context within which these succession disputes arise. In essence, while the Act may provide a guiding legal framework for inheritance and the apportionment of property thereof, families often have additional considerations, such as the role of specific members, that may be linked to their cultural identity and subsequently, the distribution of property within that family.
Mediation must therefore come in as a tool to extend and give deference to the members of that family to express their autonomy in distribution of family property, with the added caution of non-derogation from mandatory provisions of the Law of Succession Act, in coming to agreements. The dual focus on both cultural realities and utilisation of fair, non-discriminatory principles mandated by the law within mediation, enhances the durability of agreements reached within succession disputes.
A practical illustration of the effectiveness of mediation in creating a more just society, can be evidenced in Kenya, where non-discriminatory succession laws coexist with patriarchal cultural practices that often limit women’s land ownership. Despite the legal framework, some women voluntarily forgo inheritance for the sake of maintenance of familial harmony. Mediation allows these tensions to be confronted openly. It creates a forum in which parties can explore their interests, examine cultural values critically, and thereafter reach outcomes that honor both family cohesion and legal protection.
A culturally aware mediation process not only serves as an alternative to strenuous litigation processes but is a mechanism of dispute resolution that serves as a protection of broader interests such as familial relationships and identities. By engaging in mediation, families and individuals can solve disputes more efficiently and in doing so, protect the integrity of societal structures leading to a more cohesive community of individuals.
Article by :
Rasmeet Kaur Gurbux,
SDRC Research Intern.
