Government should bring back arbitration to solve cooperatives disputes

One of the key reforms introduced in the judicial system by the 2010 constitution was the implementation of Alternative Dispute Resolution mechanisms (ADR), which aimed to settle disputes in various sectors, including cooperatives.

During the era of the Cooperative Societies Act, 1966, I vividly recall how cooperative disputes were resolved through a process known as “Arbitration”.

This involved the appointment of arbitrators by the Commissioner of Cooperatives, whose decisions were legally binding on the involved parties.

Arbitration was a form of ADR that was prevalent before the enactment of CSA, No.12 of 1997 (Amendment 2004), which established the Cooperative Tribunal (under section 77), a body that remains in force today.

The adoption of ADR mechanisms including mediation, conciliation, negotiation and arbitration was mandated by Article 159(2)(c) of the 2010 constitution to complement the traditional courts of law and tribunals for dispute resolution.

This concept is enshrined in the National Cooperative Policy of 2019 and is further outlined in the Cooperative Bill of 2022, specifically in the section 146.

Looking back, a consultative team consisting of members from the National Cooperative Organizations (NACOs), a representative from the State Law Office, and the Cooperative Tribunal deliberated on how to operationalize this constitutional requirement.

They decided to establish a Worker/Service cooperative to facilitate ADR implementation, a move that was highly anticipated to reduce the backlog of “small cases” through expeditious mediation, aligning with global best practices.

This initiative took shape in early 2020, amid the backdrop of the Covid-19 pandemic.

Unfortunately, there has been limited information available about this cooperative since its registration as “Cooperative Mediation Services Ltd” (CMS) in February 2020.

Regrettably, I don’t have the copy of the amended bylaws as it was a work-in progress in digital form.

From my perspective, this cooperative had the potential to be a game-changer.

Therefore, it is essential to take measures to recruit members who posses the enthusiasm and dedication needed to activate and drive this initiative forward.

As the saying goes, “Mindset is everything”.

We should draw aspirations from individuals like Fred Obachi Machoka, who at the age of 70, remains as agile as ever.

Am aware that some colleagues have already expressed their interest in joining CMS Ltd to continue serving the cooperative sector.

It’s crucial to act promptly because if we don’t, others may step in to fill the void.

Accreditation for mediators through short training by the Cooperative Tribunal or the Judiciary, as appropriate, is a feasible step, considering that some of us are already trained mediators.

The floor is open to cooperative experts for their insights and thoughts in this matter.

By Fred Sitati

The author is a respected consultant in the SACCO movement.

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