Alternative justice systems can temper State monopoly on law
- The Constitution desires intelligibility between the courts and non-state mechanisms, so it’s not about formalising AJS or incorporating it in the Judiciary.
- Justice is an outcome that promotes and preserves human dignity. It also ought to encompass how people navigate and are treated in the many relations and transactions.
The Task Force on Alternative Justice Systems is mandated to examine the legal, policy and institutional framework for the furtherance of the endeavour by the Judiciary to exercise its constitutional mandate under Article 159(2)(c).
It should also further the Judiciary’s plans to develop a policy to promote Alternative Justice Systems (AJS) as a strategy for enhancing access to and expeditious delivery of justice. This was reaffirmed and expanded by Chief Justice David Maraga.
The team of 15 men and women was appointed by the then Chief Justice, Dr Willy Mutunga, in 2015.
In framing Article 159 (20)(c) as an AJS provision, the task force has reviewed and engaged with mechanisms that deal not only with redress of disputes, but also those that explore and enable quests for everyday justice.
Justice, in the understanding of AJS, is broad and co-joined in Article 48, on access to Justice, Article 1, on the centrality of the people of Kenya, and Article 11, on rights to culture.
It is an outcome that promotes and preserves human dignity. It also ought to encompass how people navigate and are treated in the many relations and transactions.
Justice must be understood in the context of national values articulated in Article 10.
In this sense, it is cognisant of our national values and involves not just recognition of the rights of persons, but protection, opportunity to vindicate, restoration and restitution.
The task force is now ready to release its report. An outstanding proposal is that since AJS cannot be treated as an omnibus and totalising system, it has identified four major categories of mechanisms that are manifested in Kenya and similar jurisdictions.
The first such AJS institution is the autonomous one — processes and mechanisms run entirely by the community.
Here, justice questions and disputes are resolved according to the laws, rules and practices that govern communities.
These are the most common AJS mechanisms in Kenya and are often managed by a group largely known as elders.
An ‘elder’ is often used to signify authority and symbol of power rather than masculinity or advanced biological age.
The second category is the autonomous AJS mechanisms annexed by third-party institutions.
This is common in cosmopolitan areas and involves the use of contextual or cultural norms by third parties to mediate access to justice or in resolving disputes.
A leading example of this is the street justice committees used mainly in informal settlements to resolve rent-related disputes.
Also included here are state-sanctioned institutions like chiefs, the police, probation officers, child welfare officers, village elders under the county government and the function of constitutional commissions in dispute resolution.
They can also be non-state-related institutions like religious leaders, social groups, non-governmental organisations and community justice centres.
The third is the court-annexed ones. This tends to work through a referral system between the court, court users committees (CuCs), the AJS processes and other stakeholders such as the Director of Public Prosecutions (ODPP), the Probation Office and Children’s Office. These are linked to the court’s systems and case management actors.
SOURCE OF LAW
Fourth is the regulated ones, which involve practices where AJS mechanisms are created, regulated and practised entirely or partially by state-based law or statute.
These include traditional courts incorporated in the court system as part of the judicial mechanism or local government. Examples are found in South Sudan, South Africa and, to some extent, Botswana.
Some National Council of Elders members have fronted for the last category, but the task force prefers the rest.
Article 159 (2)(c) recognises that the State has never been the sole source of law although it obliges the Judiciary to promote traditional dispute resolution systems.
The Constitution desires intelligibility between the courts and non-state mechanisms, so it’s not about formalising AJS or incorporating it in the Judiciary.
Dr Akoth is vice-chairman, Judiciary Task Force on Traditional, Informal and other Mechanisms for Dispute Resolution in Kenya.