One in five Kenyans who encounter a legal problem does not take any action to resolve it regardless of their income status, reveals a new study.
Moreover, about half (48 per cent) of the people attempt to settle their legal disputes through informal ways including friends, family, church leaders and elders rather than take the formal route.
People gave various reasons for their passive response when confronted with legal grievances, according to the Justice and Needs Satisfaction in Kenya 2017 survey. The top reason given for inaction was the belief that acting would not help, a view that was held by a third of the respondents.
The second most frequent rationale was that the other party was more powerful (20 per cent) than the complainant. Three in 10 Kenyans from the lowest income group say they did nothing because the other party was more powerful compared to one in 10 people in the highest income group. The numbers imply that the justice system is not seen as an equalising force by a sizable part of the population and that the experiences of those who sought legal services differed depending on income levels.
Other excuses given for doing nothing include not knowing what to do (19 per cent), an ineffective justice system and fear of aggravating the relationship (14 per cent each) and lack of money (11 per cent).
Dr Steve Ouma the deputy director for research and policy at the Judiciary Training Institute says that the realisation that a majority of Kenyans do not use the law courts to solve their legal disputes is a pointer that key reforms need to be carried out. “Wherever she is Wanjiku has embraced a justice system that works for her. The challenge to the providers of justice is to find out which systems are familiar and closer to her and to build upon them,” he says.
The poor (a quarter) report slightly more often than the rich (15 per cent) that they did not know what steps to take to resolve a grievance. Understandably, lower income Kenyans are also more likely to say that they did not pursue justice because of a lack of money (16 per cent) compared to those in the high income groups (nine per cent).
The findings suggest that there is need to strengthen the links between informal and formal justice systems and to pay special attention to the most vulnerable by providing affordable and accessible justice journeys.
Kenyans are most likely to attempt to solve their problems through informal channels when faced with issues related to land and family, with more than two-thirds of the respondents taking this kind of action. People are most likely to opt for formal avenues when faced with public service, accident, and business related problems.
The preferred institutional third party arbitrator is a chief with about quarter of people opting for them. They are followed by the police (18 per cent) and courts (10 per cent). The chief is twice as popular in rural areas (28 per cent) as in urban areas (14 per cent). In contrast the police and lawyers are more frequently used by urbanites than rural residents.
Overall, two-thirds of adults have experienced legal problems in the past four years.
One in four (28 per cent) adults who had experienced legal problems during the four years under review had given up on finding resolution. About the same number were still going through the process to resolve the issue while almost half (46 per cent) had their problem completely or partially resolved.
An earlier Newsplex review of the Judiciary Annual Report 2016/2017 also found out that the wheels of justice in Kenya turn slowly. One in six or 52,352 cases had been in the court system for over 10 years since they were filed, according to the report. A fifth or 66,214 cases remained unresolved for between five and 10 years, a third or 113,766 suits were undetermined for two to five years and a quarter or 83,046 cases had languished in the justice system for one to two years.
Figures from the survey, which was done by The Hague Institute for Innovation of Law, reveal that crime was the most frequently occurring legal problem in the everyday lives of Kenyans. One in five people who report one or more legal problems had to deal with crime. It is followed by land (17 per cent) and family matters (15 per cent). Complaints around employment, money and disputes with neighbours are less prevalent but still affect many Kenyans.
Land problems are more common among rural inhabitants representing 17 per cent of all their legal problems, while the proportion is lower in urban areas (nine per cent). Socio-economic status does not affect the risk of experiencing a land problem considerably.
The findings of the study mirror those of the Kenya Integrated Household Budget Survey 2015/2016 which found that the leading grievances by households were on succession and inheritance (26 per cent), followed by land (16 per cent) and religious/witchcraft offences (14 per cent).
There are visible gender differences, according to the survey that was supported by the World Bank and the Judiciary. Women tend to encounter more family problems, domestic violence and violent crime than men. A fifth of women who reported legal problems say they had to deal with a serious and impactful family dispute compared to seven per cent of men. This suggests that women significantly more often than men need the law to protect their personal integrity.
Men, on the other hand, experience legal issues related to crime (as victims), land disputes, public services, accidents, employment, and obtaining ID documents more often than women. This gender difference clearly shows that men and women need protection from the law for different situations.
According to the study, different age groups also encounter different types of legal problems. People over age 64 are 10 times more likely to report experience of a land problem than people in their early twenties.
Predictably, land disputes occur twice as often in rural areas than in urban areas.
Younger Kenyans significantly more often report being victims of crime and problems with obtaining ID documents. Young adults (25-39) experience elevated risk of getting involved in crimes, family disputes or employment disagreements.
One in six legal feuds is with family members. Strangers, neighbours and public authorities were the other parties also common in disputes which mirrors the composition of the most prevalent problems experienced in Kenya.
The data shows that seven out of 10 Kenyans who encountered a legal problem sought some sort of information and advice. Respondents with a higher level of formal education or wealth are more likely to seek information and advice.
A higher level of formal education or perceived wealth status is strongly related to going to a court, the police or a lawyer. Respondents with a lower level of formal education or perceived wealth status are more likely to go to the chief.
Urbanites are more likely than rural residents to go to the court of law, police, or a lawyer. Rural residents are more likely than their urban counterparts to go to the chief.
The chief is considered the most helpful for dispute resolution, followed by contacting the other party directly and going to the police. Filing a claim in a court or informing police are particularly popular among people with a higher level of formal education, higher perceived wealth status and living in urban areas.
The chief, on the other hand, is mostly engaged in dispute resolution by those with a lower level of formal education, lower perceived wealth and living in rural areas.
The respondents expressed the highest amount of trust in nongovernmental legal aid institutions and traditional justice mechanisms. Trust in public sector institutions, such as courts, the government, and especially the police, is significantly lower.
A majority of Kenyans report extreme stress or mental health problems as a result of encountering a justice problem. Also prevalent are losses of time and income, and problems with relationships.
Men report more loss of time and income than women, while women report more stress and problems with relationships than men.
The findings suggest that there is a need to strengthen the links between informal and formal justice systems and to pay special attention to the most vulnerable by providing affordable and accessible justice journeys.
Dr Ouma says the Judiciary should ride on the backs of the Alternative Dispute Resolution and Alternative Justice System taskforces that are working to mainstream the alternative justice systems to bring about the necessary reforms that will make justice accessible to all.