Article by Prof. Kenneth Wyne and Kim Caesar
Zambia’s ADR Bill: A Single Step in a Thousand Miles – Comparing Reform Efforts with Kenya
Moments of legal reform, especially in ADR, are rare and deserve careful attention. The formal handover of Zambia’s Alternative Dispute Resolution Bill is one of them. Delivered by the Zambia Law Development Commission and received on behalf of the Ministry of Justice, the Bill represents something long anticipated: a unified legislative framework for arbitration, mediation and construction dispute resolution in one of Southern Africa’s most important infrastructure markets.
The timing makes the development even more interesting. Just to the north, Kenya is undertaking a remarkably similar reform exercise. In May 2025, Kenya’s Attorney General published three draft statutes for public comment: the Arbitration (Amendment) Bill, the Dispute Resolution Bill and the Construction Payments Adjudication Bill. Submissions were invited until June 2025. The two countries are, therefore, moving through parallel reform processes. Looking at them side by side reveals where African ADR systems are heading and where the more difficult policy choices lie.
Zambia’s Bill in a Nutshell
The Zambian Bill operates across three areas at once.
First, it modernises arbitration law and aligns Zambia’s framework with widely accepted international standards. For investors and contractors operating under FIDIC and other standard form contracts, certainty about the enforceability of arbitral awards is fundamental. Without that assurance, commercial confidence erodes quickly.
Second, the Bill establishes a statutory framework for mediation. This is particularly important for micro, small and medium-sized enterprises. These businesses frequently encounter commercial disputes but rarely have the financial capacity to pursue arbitration, which comparatively, may not offer the same affordability and flexibity as mediation does.
Third, and perhaps most significant for the construction sector, the Bill introduces a framework for construction dispute resolution. If implemented effectively, these provisions could give dispute board decisions in Zambia something approaching statutory support. That would move the country closer to the model introduced by the United Kingdom’s Housing Grants, Construction and Regeneration Act 1996, which transformed construction dispute resolution by giving adjudication decisions real enforceability.
What Kenya Is Doing
Kenya has chosen a more segmented approach. Instead of a single comprehensive statute, three separate bills each address a specific area. All three are grounded in Sessional Paper No. 4 of 2024, which established Kenya’s National Alternative Dispute Resolution Policy.
The Arbitration (Amendment) Bill 2025 updates the Arbitration Act 1995. That Act is already well established and is based on the UNCITRAL Model Law. Amendments in 2009 and 2010 strengthened it further. The current proposals refine the framework rather than reconstruct it. They introduce clearer definitions, an object clause emphasising fair and expeditious dispute resolution, revised timelines for interim orders and a new fast track procedure for domestic arbitration. Kenya has been a party to the New York Convention since 1989, so the enforcement of international arbitral awards already rests on a solid foundation.
The Dispute Resolution Bill, on the other hand, provides a statutory framework for mediation and conciliation. It establishes a National Dispute Resolution Council that will oversee accreditation of mediation bodies, develop ethical standards and certify practitioners. Mediation proceedings are confidential by default. The Bill also provides a structured response where mediated settlements are ignored. A certificate of non-compliance may be filed and the matter can then be brought before a mediation registrar within fourteen days.
The Construction Payments Adjudication Bill will have the most immediate effect on the construction industry. Drawing heavily from the United Kingdom’s 1996 legislation, it creates a statutory right to adjudicate payment disputes in any construction contract performed wholly or partly in Kenya. An adjudicator must be appointed within seven days after a dispute is referred. A decision is then issued within fourteen days after the response is received. Crucially, adjudication certificates become enforceable as judgments of the High Court. That gives adjudication decisions the legal force that has made the system so effective in the United Kingdom.
The Same Problem, Different Starting Points
The comparison between the two countries becomes particularly instructive at this point.
Zambia begins with a relatively limited statutory ADR framework. The new Bill, therefore, performs foundational work. It establishes systems that have not previously existed in a comprehensive legislative form. In the construction sector, dispute resolution currently depends almost entirely on contractual mechanisms. If a FIDIC contract includes a dispute board, the parties have access to adjudication. If the clause is removed, particularly in public sector contracts where one party holds stronger bargaining power, the contractor may be left without an effective rapid remedy.
Kenya begins from a more developed base. The Arbitration Act has been in operation for three decades. The Nairobi Centre for International Arbitration was established by statute in 2013 and has built credible institutional capacity. Kenyan courts have also integrated court-annexed mediation into the judicial system. As a result, Kenya’s current legislative exercise largely fills gaps and refines existing structures rather than constructing them from the ground up.
One of those gaps is adjudication. In Kenya, adjudication remains dependent on contractual inclusion. Where a construction contract does not provide for it, the parties have no statutory fallback. The Construction Payments Adjudication Bill addresses that problem directly.
Zambia faces a similar issue, though at an earlier stage. Dispute board clauses are sometimes removed from public sector contracts by parties with greater bargaining power. The effectiveness of Zambia’s Bill will depend on whether the new adjudication framework is robust enough to withstand that pressure and provide a genuine baseline right for contractors.
Enforcement: Kenya Has Moved Further
The most visible difference between the two frameworks concerns enforcement.
Kenya’s Construction Payments Adjudication Bill explicitly states that an adjudication certificate may be enforced as a judgment of the High Court. This is the mechanism that has made adjudication effective in jurisdictions such as the United Kingdom. Once the certificate is issued, the successful party can proceed directly to enforcement without reopening the underlying dispute.
Zambia’s framework is still less clear on this point. Statements surrounding the Bill have suggested that dispute board decisions might eventually be enforceable in a manner similar to arbitral awards. The details will determine whether the reform achieves its intended impact. If adjudication decisions still require an additional arbitration step before reaching court enforcement, the practical gains in speed and efficiency may be limited.
At present, enforcement in Zambia can follow a lengthy path. A dispute board decision may be ignored. The successful party then initiates arbitration to enforce the decision. Once the tribunal issues an award, that award must still be taken to court for enforcement. Each stage introduces delay and cost. Kenya’s proposed system shortens that chain considerably.
Governance and Institutional Oversight
Both reform processes also raise questions about governance.
In Kenya, consultations organised by CIArb Kenya highlighted concerns about the relationship between the Nairobi Centre for International Arbitration and the proposed National Dispute Resolution Council. Practitioners questioned whether the regulatory structure might compromise institutional independence or limit party autonomy in selecting dispute resolution forums.
Zambia’s framework will create institutions rather than reorganising existing ones. Governance questions may therefore emerge later as the system develops. Issues such as appointment procedures, institutional independence and protection from political influence will require careful design as the legislation progresses.
Accessibility and Cost
The speech delivered during Zambia’s handover ceremony addressed another issue directly: affordability. Arbitration loses its value if parties cannot afford to use it.
Kenya has faced similar concerns. The fast-track arbitration procedure proposed in the Arbitration Amendment Bill requires completion within two months and applies only to domestic arbitration. That may limit its practical usefulness in more complex disputes. Kenya’s Construction Adjudication Bill partly addresses the cost issue by regulating adjudicator fees and allowing a construction adjudication body to resolve disputes over those fees.
Zambia will likely need comparable safeguards if adjudication is to remain accessible beyond large infrastructure disputes.
Stakeholder Participation
Both countries have also faced challenges with stakeholder engagement.
In Kenya, the consultation period for the three draft Bills lasted only thirty days. Some practitioners have expressed concern that important industry perspectives may not have been fully captured. Construction professionals also noted that the proposed adjudication governance structures did not sufficiently represent engineers, quantity surveyors and other built environment specialists.
Zambia faces a similar challenge. Legislative reform succeeds when professional communities engage early and consistently. The consultation window remains open, and participation will shape how the final framework operates in practice.
What Each Country Can Learn
Kenya’s institutional infrastructure offers useful lessons for Zambia. The Nairobi Centre for International Arbitration provides an example of how a statutory institution can develop practical capacity and credibility.
Zambia’s approach also carries lessons. By placing construction dispute resolution within a broader discussion about infrastructure delivery and investment confidence, the reform process has engaged actors beyond the legal profession. Ministries, infrastructure agencies and the judiciary all have a stake in how the system operates.
What Comes Next
Passing legislation will only be the beginning. The real test comes in implementation. Practitioners must understand the system, institutions must function effectively and dispute resolution professionals must be trained to operate within the new framework.
Kenya now faces the task of guiding its three Bills through Parliament while addressing governance concerns raised during consultation. Zambia faces the equally significant challenge of building institutions capable of implementing the framework its new legislation will create.
Across the region, these developments signal an important shift. The debate about whether African construction markets require statutory ADR frameworks has largely been settled. Attention has now turned to how those frameworks should be designed and implemented. That is a far more productive conversation to be having.
