Traditional dispute resolution is justice

Access to justice is a fundamental right that the State is obliged to promote by eliminating technical impediments.

The Judiciary is required to adhere to the principles outlined in Article 159 (2) (c) of the Constitution, which include the promotion of alternative forms of dispute resolution.

Traditional or indigenous forms of dispute resolution in Africa predate the advent of colonialism.

Communities resolved conflicts amicably through informal negotiations and mediation, and parties were reconciled by elders.

This model of dispute resolution laid emphasis on brotherhood and unity within the community rather than individual interests.

Conflicts would be resolved amicably without necessarily having winners or losers. This helped to maintain social harmony.

Throughout the colonial era, the indigenous system of justice was segregated and ranked lower than the formal one.

Although the colonial administrators recognised the traditional system, it was cast as backward and denied formal recognition.

The reference to indigenous forms of dispute resolution as being repugnant to justice and morality was a label coined by colonial administrators and it has, unfortunately, found its way into the Constitution.

Despite years of neglect, traditional forms of dispute resolution have remained resilient through their continued wide use among various communities in modern Kenya.

Elders, though largely visible in the context of political contests, continue to play an important role within communities by resolving disputes through established structures.

This model, presented in our times as a product of unequal power relations that is often engendered, generational, racial and class-based, is often neglected and still presented as backward and undeserving of formal recognition.

Yet studies have shown that this model is largely preferred to the formal court system, which is perceived as being more adversarial, expensive and run along rigid rules only appreciated by the elite.

ALTERNATIVE JUSTICE

In addition to cost of access, adjudication in formal court systems produces a winner and a loser, often damaging relationships within families, neighbourhoods, and communities.

Article 11 of the Constitution recognises culture as the foundation of the nation and as the cumulative civilisation of the Kenyan people.

It envisages the management of disputes through traditional and other forms of dispute resolution mechanisms and makes provisions for this under Articles 60 and 67.

In addition, legislation such as the Marriage Act also allows parties married under customary law to undergo a process of conciliation before recourse to the court process.

On March 4, 2016, then-Chief Justice Willy Mutunga appointed a task force on traditional, informal, and other mechanisms used to access justice in Kenya.

The task force is working with the Judiciary Training Institute to examine existing models of court-annexed alternative justice systems in Isiolo and Turkana counties.

Critical role players in the alternative justice system will be convened in order to map and understand its prevalence and use, as well as its intersection with the judicial system and the progress made in infusing it with national and constitutional values.

The objective is to formulate policy on mainstreaming existing mechanisms for justice and develop a framework to increase access to justice through traditional and other mechanisms.

This model is not new to Africa, as countries such as Ghana, South Africa, Botswana, and Uganda, recognise traditional justice mechanisms.

The writer is programme manager, Access to Justice at the Kenyan section of the International Commission of Jurists. [email protected].