For the vast Wajir County — with a population of over 600,000 and covering 55,841 square kilometres — to be served by only one court is sufficient reason for the people to seek alternative dispute resolution systems.
And due to continual marginalisation, northern Kenya residents fear interacting with the law enforcers and formal dispute resolution mechanism.
Maslah system is a Somali traditional dispute resolution mechanism which gives priority to compensation of the victim’s clan as opposed to punishment of the perpetrator.
I am a strong proponent of alternative dispute resolution (ADR). In a country whose judicial system is struggling with a backlog of cases and its prisons hold inmates beyond twice their capacity, it is only fair to promote and facilitate ADR — especially for petty offences, which constitute more than 70 percent of convictions.
Article 159 (2) (c) of the Constitution encourages the Judiciary to promote the use of alternative dispute resolution. For instance, reconciliation, mediation, arbitration and traditional dispute resolution mechanisms are acknowledged by the supreme law of the land.
However, Article 159 (3) cautions against the use of traditional dispute resolution in instances where the method contravenes the Bill of Rights, is repugnant to justice and morality and/or is inconsistent with the Constitution or any written law.
Section 179 of the Criminal Procedure Code provides that the court may promote reconciliation and facilitate the settlement in an amicable way of proceedings for common assault or other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or others approved by the court and may order the proceedings to be stayed or terminated.
Rwanda has embraced a traditional dispute resolution mechanism known as Abunzi in a bid to facilitate faster access to justice. In Kenya, most cases can be resolved through ADR and traditional dispute resolution mechanisms — save for offences such as murder, sexual offences, crimes against humanity and war crimes.
But Maslah is counter-productive. Mainly presided over by men from the community, it has for a long time been an impediment to accessing justice, infringing on the victims’ right to a fair trial and fails to deter crime. The culprit is not punished but their clan bears the duty of compensating the victim’s in cash and/or using camels.
From my interaction with the residents, I learnt that Maslah has been used to demand payment by insincere ‘elders’ from the perpetrator’s family to keep the case away from the courts. A portion of the money is paid to silence the victim’s family and the remainder shared among the negotiation team.
The most renounced cases resolved through Maslah, and which contravenes the law, is sexual offences. For fear of family ridicule and embarrassment, victims suffer physical and psychological torture not only at the hands of the perpetrator but also illegal application of a traditional dispute resolution method.
Due to the patriarchal nature of the community, victims of sexual offences, mainly women, have no option but to adhere to the ruling, which can be as absurd as the perpetrator being ‘punished’ to marry the victim!
Maslah can be useful, however, especially for minor offences, if it is regulated. The community should be informed of the thin but key line between culture and the law.
Also, the National Council on the Administration of Justice (NCAJ) should vet the elders who constitute the Maslah ‘courts’. They must be people of high integrity and with understanding of ADR.
The Judiciary should also look into appropriate interventions to enhance accessibility of formal methods of dispute resolution.
Inasmuch as out-of-court dispute resolution mechanisms should be encouraged, we should not allow discriminatory cultural practices to continue.
Mr Muthuri is the Legal Aid Manager at African Prisons Project. [email protected] @MuthuriKathure