The Place of Alternative Dispute Resolution (ADR) in Recovering Assets of 'White Collar Crimes' in Kenya

Abstract

In a civil or criminal justice system, litigation has always been the first option whenever disputes arise. A good number of people have grown up believing or have at least been made to believe that litigation is the best and most trustworthy method of solving disputes. Even as they have progressed and developed critical thinking skills which allow them to gauge the efficacy or otherwise of litigation as the premier dispute resolution mechanism, they keep favoring it because of the unknown benefits of alternative dispute resolution mechanisms. Safe to take the risks with what is known rather than what is relatively unknown. Economic and financial crimes is one such field that has barely employed the use of alternative Dispute Resolution. Economic crimes refer to crimes of a financial nature and in our context, those that in one way or another affect the larger public as one. They involve the unlawful taking of public resources. Criminologists prefer to use the term white collar crimes because of the status and type of individuals who ordinarily commit them. Alternative dispute resolution in the country has over the last years gained notoriety and deservedly because of its potential to not only maintain relationships between disputing sides but the fact that it saves court resources which would otherwise have been spent pursuing the matters in court. The same has slowly found itself in the discourse around economic crimes and has even received the endorsement of the authorities mandated with the investigation and prosecution of such economic crimes. This paper seeks to assess the benefits of the use of alternative dispute resolution in dealing with economic crimes and as such, provide a reference point for those who remain skeptical about the wisdom of using non-litigation measures to deal with people who have been accused of fleecing the public.