IFES Practitioner Brief on Alternative Dispute Resolution in Elections Two decades later, the FEC still offers this option for specific cases, which are assigned to the ADR office by commissioners or referred by the Office of the General Counsel, the Report Analysis Division, or the Audit Office. The FEC also provides educational information on its website and developed a guide for complainants, which explains the objective and details of this ADR process. 144 The manual enables disputants to understand the nature of the process, whether it is binding, the relevant timeline, and what to expect from this process. The FEC also provides detailed information on the history of the ADR pilot program. Kenya The experience of the Peace Committees, established by the EMB as a decentralized ADR body, demonstrates the need for an ADR body to have a clear mandate and procedures established in advance. Otherwise, it risks inconsistency in its composition and practices. Kenya also demonstrates the use of ADR by a tribunal composed of magistrates and professionals as a first step in the adjudication of disputes, including inter- and intra-party disputes and party nominations, and the provision of an avenue to file an appeal. Article 159(2) of Kenya’s Constitution encourages the use of ADR mechanisms (although not specifically for EDR), including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms. 145 The Code of Conduct for elections (Schedule II of the Election Act) provides that the Independent Electoral and Boundaries Commission (IEBC) will establish Peace Committees composed of election officials, religious leaders, party representatives, and government officials. The intent was to channel disputes through the Peace Committees for mediation, conciliation, and negotiation prior to filing a complaint with the Code of Conduct Enforcement Committee at the IEBC in Nairobi, which had quasi-judicial powers. But in the 2017 elections, these mechanisms were not properly set up with a clear mandate or rules, and they have remained largely inoperative and ineffective. During the 2013 elections, the IEBC established Peace Committees 146 in each constituency, chaired by the returning officers appointed by the IEBC chair. These committees could issue warnings or liaise with other agencies, such as the prosecutor’s office or security agencies. However, the IEBC issued no specific rules to govern the operation of the Peace Committees. 147 Similarly, in the 2017 elections, the IEBC did not adopt any rules or guidelines to define the roles, responsibilities, or functioning of the Peace Committees. While the Code of Conduct (incorporated in the Elections Act) provides that the IEBC establishes the committees and the returning officer leads them, the IEBC reported that, in some places, county officials took ownership, undermining the role of the election officials and contravening the law. These committees were not established in a consistent manner across Kenya in either 2013 or 2017. For the 2022 elections, IEBC is now considering regulating the Peace Committees to provide a first avenue for 144 Federal Election Commission. (2012, May). Guidebook for complainants and respondents on the FEC enforcement process. https://www.fec.gov/resources/cms-content/documents/respondent_guide.pdf 145 Constitution of Kenya, 2010, Article 159(2)(c). 146 The Elections Act, 2011 (No. 24 OF 2011), Second Schedule §17 (Kenya): “(1) The Commission may establish peace committees in every constituency during an election and referendum period. (2) Every political party, referendum committee, candidate, official and agent shall- (a) acknowledge the activity of peace committee established at the constituency level by the Commission (…).” 147 Pre-election dispute management: Between judicial and administrative dispute management mechanisms. (2012, September 17). http://kenyalaw.org/kenyalawblog/pre-election-dispute-management-between-judicial-and-administrative-dispute-managementmechanisms/ 57