KPTJ – Proposed benchmarks of accountability for the mediation process – 27 Jan 08

Proposed benchmarks of accountability for the mediation process

Pambazuka News

Kenyans for Peace through Truth and Justice: Mediation Process Accountability Benchmarks and Principles

The Benchmarks:

Benchmark 1: Clarity of Mandate

[There is need for agreement by all parties on the problem, proximate and historical. The mediation process should identify, frame and address the salient issues in the crisis in a manner that conforms with international/universal standards of democracy, good governance and human rights. Both Parties should formally submit themselves acknowledging the mandate of the Mediation Team. Clarity in this regard needs to be made on terminology: Dialogue? Negotiation? Mediation?
Reconciliation?]

– It is imperative that the terms of reference of the Mediation Team are unequivocal beforehand to all parties, stakeholders and the Kenyan public.
– Do the stakeholders know of the mandate of the mediation process?
– What issues did the parties and other stakeholder identify as contested?
– In what way did the mediation process address/resolve all these issues?
– What are the universally accepted international best practices in addressing these issues?
– How does the determination/agreement from the mediation process compare with the universally accepted best practices?
Benchmark 2: Accessibility

[The mediation[1] process makes itself readily and equally available to both the major protagonists and also as wide a cross-section of the different interest extant in Kenya by promoting knowledge of its existence, being easy to engage with and having no cost barriers]

– How equally accessible is the mediation process to the main protagonists?
– How accessible is the mediation process to as wide a cross-section of Kenyans as possible?
– Has a mapping been done of the different legal, political, social, economic and cultural players to ensure wide accessibility?
– What mechanisms have been put in place to make aware/communicate the existence of the mediation process to the above two categories?
– Do all these stakeholders know how to access the mediation process?
– Do the stakeholders know of the restrictions of the mediation process?

Benchmark 3: Independence

[The mediation process is independent and seen to be independent of any of the stakeholders in the Kenyan Crisis, and shall not act or be seen to act under the direction and control of any stakeholder]

– Are the mediators wholly responsible for managing and driving the mediation process?
– Are the mediators appointed for a clear, specified term?
– Do the mediators and its secretariat have any financial or filial or professional relationship with the stakeholders in the Kenyan crisis which would give rise to a perception/reality of a conflict of interest, direct or otherwise?
– Is the venue for the mediation process and talks sufficiently neutral?

Benchmark 4: Fairness and Equality of Arms

[The mediation process produces decisions that are fair and seen to be fair by observing the principles of procedural fairness, by making decisions on the information before it and by having specific criteria upon which its decisions are based]

– Can both parties put their case/arguments equally to the mediators?
– Do the contesting parties know the arguments or have sufficient knowledge of the case of the other party?
– Do the contesting parties have the opportunity to rebut the arguments of, and information provided by, the other party?
– Have both parties been told the reasons for any decision/determination?
– Have the competing parties been told the reasons why an argument/case/complaint is outside the jurisdiction or is otherwise excluded?
– In cases involving a third party, is the confidentiality/privacy of that third party safeguarded?

Benchmark 5: Accountability

[The mediation process publicly accounts for its operations by publishing its determinations and information about complaints and arguments and highlighting any systemic problems]

– Are the rules of engagement known by all parties and stakeholders?
– Is there any sanction for those in breach of the rules of engagement?
– Does the mediation process regularly written reports of determinations to stakeholders?
– Does the mediation process ensure that subsequent mediation builds on antecedent agreements?
– Does the process avoid reopening matters agreed upon?

Benchmark 6: Effectiveness/Timeliness

[The mediation process operates in a manner that is not unduly prolonged as to nullify its impact]

– How quickly does the mediation process engage with contesting parties and stakeholders?
– How quickly does the mediation process deliver determinations/agreements?
– In cases of delays, are the causes of these communicated?
– What are the given causes of any delays?

Benchmark 7: Enforceability

[The mediation process can muster rewards and sanctions at all levels, local and internationally, through incentives or disincentives to anyone failing to honor resultant agreements/determinations]

– Does the mediation process offer any (dis)incentive locally and/or internationally? What are these (dis)incentives?
– Are these (dis)incentives proportionate?
– Are these (dis)incentives known by all stakeholders?
– When does the mediation process engage with (dis)incentives?

Benchmark 8: Outcome(s)

[The mediation process produces an outcome(s) that conforms with international best practices in regard to the issues it identifies and addresses]

– What is the outcome of the mediation process?
– Is the outcome of the mediation process based on sustainable peace, truth, justice and respect for democratic and human rights principles?
– On what basis was this outcome arrived at?
– Does the outcome address the issues identified as the trigger and causes of the political crisis?
– What is the outcome measurement used?

Benchmark 9: Purview

[The mediation process has the mandate to ensure that it has authority to address/enforce all stages of the crisis and its agreements/determinations]

– Does the mediation process have authority (powers, privileges, resources)
to oversee/engage at all stages of the conflict? (If the conflict were mapped into stages the stages of conflict eruption, conflict escalation, conflict dialogue, conflict determination/resolution, and enforcement of conflict, does the mediation have authority over all these?)
– What are the restrictions of the mediation process?

KENYA: PROPOSED PRINCIPLES OF ACCOUNTABILITY FOR THE MEDIATION PROCESS

To enhance its chances of success, some broad principles for the mediation process are suggested:

1. Mediators should be seen to be independent, credible, impartial, neutral, and non-partisan. They need the political acceptance of all parties (where all parties include non-political actors).
2. Mediation should be based on trust, commitment to the national interest, lack of intimidation, coercion or any other undue influence, absence of posturing and shunning of parochialism.
3. That international human rights standards are respected and enforced across the board.
4. That the process and outcome of the mediation will be founded on truth and justice.
5. That there is a commitment to non-violence by all parties.
6. That all parties regard one another as equal and legitimate agencies for the negotiation of this dispute.
7. That all parties show commitment to the mediation process by not engaging in acts/omissions that compromise/undermine/jeopardize/harm/derail/subvert it.
8. That the mediation process be ratcheted, benchmarked and time-bound; that mediators take into consideration not only parties’ and stakeholders views but also best international practices in each of the areas identified for resolution.
9. A winner-take-all outcome is avoided. There must not be seen to have been outright winners and losers in the negotiation as this would only breed further resentment/hostilities.
10. The rules of engagement be agreed upon upfront by all parties
11. The decision(s) of the mediators be binding with sanctions at all levels imposed on anyone reneging on the compromise
12. Confidentiality be maintained during the negotiations to protect the integrity of the process, but does not diminish the need for accountability; that mediators separately meet with all parties and stakeholders before seeking any collective meetings, agreements and resolutions.
13. That there should be regular and institutionalized communication on the progress of the mediation process to the greater public by the Mediation Team.
14. Stalemates be resolved by consensus and in the absence of this, arbitrators’ decisions become binding.
15. Implementation of mediation decision(s) should be ratcheted, benchmarked and observed by independent, credible, impartial, neutral, and non-partisan team throughout existence of implementation phase.
Kenyans for Peace through Truth and Justice: Mediation Process Accountability Benchmarks and Principles

Implementation phase also be enforced through power of sanctions across the board.

27th January 2009

[1] Mediators refers not only to the principal mediators but also any of the staff assisting the principals Kenyans for Peace through Truth and Justice: Mediation Process Accountability Benchmarks and Principles

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