In my recent field studies in Mathare and Korogocho within Nairobi, Isiolo and Turkana counties, one thing that stands out is the large number of people who use mechanisms outside the courts to pursue their quest for justice. It is, however, not easy to determine what percentage of people use alternative mechanisms to the formal courts. Yet the Governance, Justice, Law and Order Sector research conducted in 2006 suggested that only four per cent of the population ever submit legal disputes to law courts and the rest prefer informal means.
While there has been an upsurge in numbers of Kenyans seeking redress in the courts since 2010, the number still constitutes a small proportion of the total number of litigants. This calls for a broader understanding of access to justice as more than the inclusion of rights in the law – awareness and understanding of the law, easy availability of information about one’s rights, equal right to the protection of one’s rights by the legal enforcement agencies, easy entry into the official justice system, ready physical access to the legal infrastructure, affordability of adjudication, cultural appropriateness and a conducive environment within the judicial system, timely processing of claims, and timely enforcement of decisions. These multi-layered factors associated with access to justice explain why even though our official law regime does provide for customary law, many people still seek justice of a 'customary' sort outside the courts.
There is no doubt that the customary justice system is much preferred by the majority of the poor, especially in the rural areas. The reason why most litigants shun the customary law as practised by the official courts is because it has been practised as some sort of static legal code. In response, numerous councils of elders, informal groups and even ‘traditional elders' have positioned themselves as actors who promote ‘justice'. This system has over the years been strengthened with an infusion of principles of human rights and principles of justice through the work of non-governmental and faith-based organisations.
It is for the reasons listed above that the constitution of Kenya recognises not just customary law, but the place and use of non-formal mechanisms as legitimate institutions for access to justice. This acceptance of non-formal courts systems is highlighted in the constitution under Article 159. This provides that judicial power is "derived from, and vests in the people"; it recognises alternative forms of justice, traditional dispute resolution mechanisms and other less formal conflict management systems; and promotes access to courts by relaxing procedural technicalities. Article 171 requires the inclusion of two lay persons as members of the Judicial Service Commission.
Article 159 in the constitution is partly about public participation, but more about access to justice through traditional or informal dispute resolution systems. In fact, seeking judicial remedies outside the formal courts is older than the constitution of Kenya 2010. What the constitution has done is formally to recognise these mechanisms, enjoining courts and other adjudicating authorities to promote and encourage reconciliation, mediation, arbitration and other alternative dispute resolution methods in settlement of disputes. The 11 commissions created under the constitution are also empowered to apply conciliation, mediation and negotiation to resolve the issues that people bring before them (Art 252(1)(b)).
Other laws following the constitution including the Civil Procedure Rules encourage Alternative Dispute Resolution (ADR), which encourage the courts to refer cases to ADR, such as arbitration, mediation and conciliation.
We should distinguish ADR from what we can call "Alternative Access to Justice". ADR embraces techniques voluntarily adopted, usually with the help of neutral third parties, to resolve formal legal disputes. It is broadly understood to include, but not be limited to negotiation, arbitration, mediation, conciliation, mini-trials, or early neutral evaluations. Arbitration is perhaps the most formal type, involving independent – often expert – adjudicators, and is used in resolving commercial disputes, and employment disputes especially. Arbitration is often provided for in advance of disputes, by contract or by law, and various types are regulated by law, like the Arbitration Act.
Mediation and conciliation are less formal methods, but are also supported by law, including the new Marriage Act, which encourages conciliation of matrimonial disputes.
Alternative Justice Systems on the other hand include mechanisms that deal not only with legal disputes but also quests for everyday justice. The idea is that rather than remain entangled with the narrow notion of "disputes" implied in the expression ADR, we should speak of "justice" and move our description to Alternative Justice System (AJS). Justice in this understanding of AJS is broad. It is conceptualised not as a route to an end result but as bundle and continuum. It involves not just recognition of the rights of persons, but protection, opportunity to vindicate, restoration and restitution. Perhaps even harmony.
Looking at the matter this way suggests that unwillingness to use the formal justice system may not be just a matter of poverty or lack of awareness. The mechanisms that are engaged outside the judicial system are not just about disputes but more about different sorts of contestations within our social order, and with ideas of what is 'fair' which are captured by the notion of ‘justice’, but not always by the processes of the law.
To achieve a multiple justice system, AJS must engage dispute resolution by chiefs, district officers, land disputes tribunals and so on with the support of local elders. The actions of the chiefs, district officers, and elders have often been viewed as unjust and illegitimate due to their abuse of the dispute resolution mechanisms and processes. For this reason, the success of AJS in Kenya will require reorganising the framework for the various traditional methods, and for the relationships between them and the judiciary that should manage, but not control them. There is need to develop laws and rules for AJS. There is also need to sensitise court users and communities on AJS as a mechanism for enhancing public participation and facilitating true access to justice.
It is suggested that, through the Rules Committee, the judiciary make rules requiring an attempt at AJS before litigation in appropriate cases such as family disputes. Besides, the judiciary should conduct a mapping of community-based dispute resolution mechanisms and create systems for referring cases to these mechanisms in suitable cases. Within communities, there is need for restorative justice approaches – community based AJS may be used in addressing minor breaches of the law, including neighbourhood disputes and anti-social behaviour. And, judiciary through Court Users Committees in all counties could partner with community-based dispute resolution structures as part of community safety strategies.
Ultimately, even where councils of elders remain a critical constituency, they must be engaged not as some timeless African "survival" but as institutions that reflect contemporary socio-political process rather than as a historical truth. In the same vein, AJS should be engaged as knowledge and experience situated within a context, which is often contested and in a state of never-ending negotiation. This approach is likely to lead us back to a more Pan-Africanist nationalism that promotes inclusivity.
Dr Steve Ouma Akoth is a trained anthropologist and executive director of Pamoja Trust