Today is International Human Rights Day.
Besides being the 71st anniversary of the Universal Declaration of Human Rights, it presents to Kenya an opportunity to engage with both advances and negation of human rights.
Over the past two decades, human rights have become accepted as a lingua of governance and societal relations in Kenya.
However, we are where we are out of enormous struggles by ordinary citizens and middle-class elite led mainly by academics and civil society activists, who have positioned human rights as a process and sort of tool to check the excesses of the State and also private actors.
After 2002, human rights became a language of policy, thanks largely to the Governance, Justice, Law and Order Sector (GJLOS) project.
As a result, the language of human rights is used in numerous policy documents.
But that has been more of sprinkling human rights grammar and flavour rather than its much-required use of realising its transformational impact and surge in Kenya towards a human rights state.
Therefore, when the Constitution imposes an obligation on the Judiciary to promote traditional methods of dispute resolution — which we have named as Alternative Justice Systems (AJS) — it must be read as a requirement for deepening the application of human rights in Kenya.
This requirement links the juridical philosophy with the advancement of the notion and practice of human rights.
Doubtless, using human rights as a core content of juridical philosophy is a resource that can be used to change AJS mechanisms and the Judiciary.
An example is the work of the Task Force on Traditional, Informal and other Mechanisms used to access Justice in Kenya (the AJS Taskforce).
For three years, the task force has been thinking through how the Judiciary can undertake its obligation to promote AJS.
It suggested that such an undertaking can be done by understanding the obligation in Article 159(2c) of the Constitution as imposing three interrelated duties to the Judiciary and other stakeholders.
These are to respect, to protect and to transform the alternative justice systems in Kenya.
Respect: This entails the duty of the Judiciary to respect AJS and mechanisms and to put in place the necessary management structures to forestall any regressive action diminishing AJS mechanisms and processes.
The Judiciary has a legal duty to examine the circumstances of all violations or alleged violations of rights protected in Article 159, even where it had, in good faith, endeavoured to prevent violations.
The investigation must entail serious efforts on the part of the Judiciary.
The intervention here includes the duty to sanction violators of human rights in the AJS process and prevent violations of rights of the AJS entities and processes.
Protect: This is the duty of the State to protect the AJS and its mechanisms against third parties (including individuals, states, lawyers and various levels of courts), whose action and philosophy may deprive rights-holders of their access to justice that is possible under AJS.
The intervention here includes a duty to contribute to the body of knowledge that can set a precedent of practices by AJS entities and processes; to monitor the AJS entities and processes to ensure that they adhere to and advance provision of Article 159(3)(a-c); to conduct impact studies on activities of AJS actors and mechanisms; to remove structural obstacles to the work of AJS mechanisms, and not to take regressive action diminishing AJS mechanisms and processes outside what is allowable in the Constitution’s Article 24.
Transform: Judicial and AJS mechanisms need to be developed and reinforced to be consistent with human rights to improve defence against human rights infringements and other requirements of Article 159(3)(a-c).
More so, all justice mechanisms should transform towards the directions suggested in the Constitution, which entail the duty to facilitate rights-holders’ access to and utilisation of AJS; to ensure that the AJS mechanisms have the minimum core content anticipated in Article 159(2)(a-c).
The Judiciary must make the AJS system work! Thus, it has to take a positive role as part of its duty to remedy the gaps in the AJS entities and processes.
It must also work towards sustaining the AJS institutions by fulfilling its duty to make jointly with the AJS mechanisms a plan of action for furtherance of AJS.
Finally, the obligation to transform the AJS mechanisms requires that the Judiciary and AJS mechanism fulfil jointly and in their different spheres of influence the duty to implement the plan of action in good faith.
Dr Akoth is vice-chairperson, Judiciary Task Force on Traditional, Informal and other Mechanisms for Dispute Resolution in Kenya. [email protected]