Introduction
Today, I participated in an online webinar organized by Pamoja Trust (PT) and Kenya Land Alliance (KLA). This was a very information session considering that there were high caliber experts on the panel.
The panel was graced by the High Court Judge Professor Justice John Ngugi (Chairperson of Alternative Justice System Taskforce), who is currently serving in Nakuru; Mr. Gerishom Otachi Bw’Omanwa, the Chair National Land Commission (NLC), Ms. Husna Mbarak of FAO’s Land and Natural Resources Programme, Achar Truphosa (Chair, Working Group on Implementation of Community Land Act) and Dr. John Chumo Kipkorir (Secretary of National Environmental Complaints Committee and a scholar on environmental matters).
Ms. Husna Mbarak of Food and Agriculture Organization discussed about the issue of elevating justice and conflict in the community, national and international debates. Further, she called for strengthening of the Gender Dimension in the Alternative Justice Systems (AJS).
Access to justice gap
Prof. Joel Ngugi talked about three main gaps in the judiciary system in Kenya. First is the access to justice gap where only 21% of Kenyans actually have access to the courts. Comparatively the professor indicated that over 50 percent of all people around the world do not have access to justice.
Situated Justice Gap
The second challenge is the situated justice gap. This is where citizens feel alienated when they visit the courts. This is because the courts use foreign languages, they are considered to be cumbersome and adversarial.
Various forms of Alternative Justice Systems
Prof. Justice Joel Ngugi classifies AJS into main main types:
- Autonomous
A number of Alternative Justice Systems (AJS) are highly organized and even have constitutions and rules of procedure. One such type of AJS is found in Narok, Kenya. However, other AJS are less formal but quite organized.
2. Third Party Annex
These are Alternative Justice Systems (AJS) which are created around institutions such as the Police Department, Children Department, Chiefs and Non-Governmental Organizations (NGOs) such as Kituo Cha Sheria, FIDA and KELIN among others.
3. Court Annex
The Court Annex is another type of Alternative Justice System. These is where courts have arrangements for AJS. These systems are available in Isiolo, Kericho, Kitui, Othaya and Karatina among others.
4. Regulated Alternative Justice Systems (AJS)
This is the final type of AJS according to Professor Justice Joel Ngugi of Nakuru High Court. These AJS are created by regulations. A good example is the Land Ordinances Act of 1990s.
Challenges facing Alternative Justice Systems in Kenya
According to Prof. Justice Joel Ngugi, the Alternative Justice Systems in Kenya face the challenge of the “imperial appetite of the judiciary.” What was he saying here, he means that there is need for the judiciary to understand that particular kind of disputes do not have to be taken to the courts.
The good professor and judge of the High Court, points out to us that there are dangers associated with the AJS. Once is the possibility of promoting patriarchal nature of the alternative justice systems. The second danger is that of social inventions which violates human rights. A good example in this context is Kikuyu Doctrine of ‘Muramati’.
Prof. Joel Ngugi advises that Kenya should embrace human rights framework according to Article 259 (1) (c). The Judiciary must promote AJS but that must be in line with the rule of law and the Bill of Rights.
Duty to Respect
Care must be taken in determining the kind of cases which the judiciary must let Alternative Justice System to prevail. The judiciary is expected to respect the right of others to choose Alternative Justice System.
Duty to Protect
The state has the duty to protect the rights enjoyed by the citizens. The courts must learn how to generate knowledge from Alternative Justice System (AJS) sessions. The knowledge gained should be disseminated.
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