The next frontier of justice

In Kenya and other African countries, TDRs constitute the most basic and fundamental dispute resolution process

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By Emmanuel Ekiru

In his famous lecture delivered at Fort Hare University, South Africa – The 2010 constitution of Kenya and its interpretation: Reflections from the Supreme Court’s decisions –Emeritus Chief Justice Willy Mutunga underscored the fact that the Constitution has restored “traditional dispute resolution (TDR) mechanisms” with constitutional limitations. He said, “We live in our country where courts are not the only forums for the administration of justice.

Traditional disputes resolutions mechanisms keep these institutions as free as possible from the lawyers, ‘their law’ and the ‘law system of the capital’.” Dr Mutunga’s arguments pointed to the fact that the Constitution of Kenya has broadened the scope of dispute adjudications in various spheres and courts are not the only avenues for determination of those conflicts.

Indeed, a high percentage of disputes in Kenya are resolved outside courts or before they reach courts by use of TDRs, or Alternative Disputes Resolution (ADR). The election of these mechanisms in resolving conflicts comes as result of their flexibility, cost-effectiveness, expeditiousness, non-coerciveness and essence of fostering strong relationships among the warring parties. The method also offers satisfactory outcome to the disputants at the end. They are recognised as the most appropriate methods for bringing justice closer to the people and reducing case backlogs.

TDR mechanisms are now entrenched in the Constitution of Kenya as effective tool for dispensation of justice. The use of traditional dispute resolution mechanisms in resolving disagreements have been found to be effective in dealing with an array of issues – both anti-social behaviour and criminal in nature. However, the methods can properly be suited in issues related to marriage, family cases including wife inheritance, gender based violence, clan disputes and the child welfare. Other serious crimes such as murder, manslaughter, robbery with violence, grievously bodily harm and sexual offences have been left to the purview of the courts.

To guarantee justice for Kenyans, the Constitution embraces dynamism in justice systems by encouraging the utilization of formal and informal justice systems. In this regard, Article 159(2) (c) will continue serving as a compass pointer for the use of TDRs and ADR mechanisms alternatively to the court process. Article 159 (2) envisages the exercise of judicial authority in Kenya. Clause 3 thereof provides limitations of traditional disputes mechanisms applications – TDR mechanisms shall not be used in a way that contravenes the Bill of Rights, be repugnant to justice and morality, or be inconsistent with the Constitution. The Constitution is silent to what is repugnant to justice and morality, thus it would be difficult to ascertain when a mechanism or an action is said to be repugnant to justice and morality.

In Kenya as well as many other African countries, TDRs constitute the most basic and fundamental dispute resolution process. From time immemorial, even before the transplantation of the English legal system in Kenya, communities used to resolve disputes through traditional justice systems. In most African communities, TDRs derive their validity from the customs and traditions and are deemed to be the primary pillar of the justice system in an African context.

Former Chief Justice Dr Willy Mutunga is an advocate of Alternative Dispute Resolution.

Background and application

Historically, conflict resolution among the traditional African societies was anchored on the ability of the people to negotiate. However, with the introduction of colonial legal systems, Western notions of justice such as the principles of the common law of England, were introduced in Kenya.

The formal courts, being adversarial in nature, greatly eroded TDR mechanisms. The principal aspects of TDR and other ADR mechanisms, which make them unique and community oriented, is that they focus on the interests and needs of the parties to the conflict as opposed to positions, which is emphasized by formal common law and statutory regimes.

Objectively, TDR in African societies is intended to resolve emerging disputes and foster harmony and cohesion among the people. TDRs derive their validity from customs and traditions of the community in which they operate. The diversities notwithstanding, the overall objective of TDR is to foster peace, cohesion and resolve disputes in the community. The practice of TDR is not recorded in any form of documentation or record keeping but the rules are handed down generation to another.

In most African set-ups, a council of elders acted as third parties for settlement. The disputants needed to have confidence in them, and submit to their jurisdiction.

Consequently, disputants could be reconciled amicably by the elders and close family relatives, being advised on the need for peaceful coexistence and harmony.

In South Africa the concept of Ubuntu was invented as a fundamental value for cooperation, communalism, compassion and respect for human worth, even at the time of social order break-down, and it has been innovatively incorporated into the formal systems in the resolution of conflicts.

The entrenchment of ADR and TDR under Article 159 of the Constitution is a restatement of the customary jurisprudence of Kenya. This is because TDRs existed from time immemorial and are therefore derived from the customs and traditions of the communities in which they operate.

Unlike the formal court process which delivers retributive justice, TDRs encourage resolution of disputes through restorative justice remedies.

Redefining the repugnancy clause

The genesis of the repugnancy clause is encapsulated in Section (3) of the Judicature Act, which decrees that African customary law will only apply or be deemed valid as long as it is not repugnant (contradictory) to common or any written law.

The subjection of customary law to the repugnancy test was founded on the contention that there are certain aspects of customary law that do not augur well with human rights standards. This has resulted in continued subjection of customary laws to the repugnancy clause by courts, undermining, in the process, the efficacy of traditional justice systems.

The incorporation of English foreign law in the Kenyan legal system watered down the African traditional disputes mechanisms and subjected them to Western legal order, which was hostile to African traditions, labelling them “ineffective, archaic, backward, retrogressive, uncouth, outdated and uncivilized”.

Professor Okoth Ogendo, in “The tragic Africans commons: A century of Expropriation, suppression and subversion”, lamented the neglect and suppression of traditional indigenous jurisprudence by formal systems. The attempt to exclude African customary law in resolving disputes posed a big challenge to the formal courts in determining controversy emanating from customs and traditions of Kenyan Africans.

In such a way, most judgments resulted in great injustices since African disputes which could have been better resolved by application of customary law, were determined on the basis of notions and jurisprudence of a foreign law. This led to resistance and contempt by Africans against the colonial courts which prompted the colonial administration to integrate customary laws within the formal legal system but they were subordinated to English laws.

In an attempt to address the dominion of the foreign order in the settlement of disputes even in maters that can be dealt with by traditional resolutions forms, scholars in the academia fields have posited the need to recognise customary law in the hierarchy of norms as of equal footing and status. There is also need to redefine the repugnancy clause to enable the courts to change their attitude by elevating the place of customary law in formal systems. Failing this, African jurisprudence will continue to suffer from a grievous misconception of justice and morality from the view of Western moral codes. 

Implementation of TDR

Prior the promulgation of the Constitution of Kenya, 2010, it was argued that one of the barriers to accessing justice was an enduring failure to broaden the scope of justice dispensation. Traditional dispute resolution mechanisms are now recognized by the constitution. The rationale of this constitutional recognition is to validate alternative forums and processes that provide justice to all Kenyans.

Article 159(1) envisages that judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this constitution. Access to justice is the overall goal of TDR. Imperatively, Article 48 envisages the right to access justice, and it further echoes the fact that the State shall ensure access to justice for all people and if any fee is required, it shall be reasonable and shall not impede justice. Article 27, which mirrors the demands of Article 159, strongly advocates equality of all persons before the law, equal protection and equal benefit of the same law.

In his essay, “Incomplete Transformation of judicial Review”, Prof James Thuo warns the Kenyan judiciary against developing a two-tracked system – old cases influenced by the common law, on the one hand, and cases that are decided under the 2010 Constitution’s principles on the other. He laments that the two tracks are likely to undermine the establishment of a vibrant tradition as required by the Constitution.

The judiciary must deploy creativity and innovativeness by encouraging the effective use of traditional mechanisms to facilitate access to justice for all regardless of their status. The entrenchment of TDR in the Constitution in the mode of adjudicating disputes without undue regard to procedural technicalities. Most disputes reaching the court can be resolved without resort to court if conflict resolution mechanisms can be applied and linked up properly with the justice system.

There is need to nurture and encourage utilisation of traditional disputes resolutions in the administration of justice as they will catalyse development of indigenous jurisprudence in our legal discourse. (

manu.ekiru@gmail.com

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