analysisBy Jedidah Wakonyo Waruhiu, Florence Gachichio And Ezra Rotich
Kenya has for many years been running two legal systems in parallel, the common law and community justice systems. With the country in need of 'common guidelines' around the administration of community justice, Jedidah Wakonyo Waruhiu, Florence Gachichio and Ezra Rotich discuss the challenges facing the system.
ACCESS TO JUSTICE
Access to justice is now a fundamental human right in the administration of justice in Kenya. Article 48 provides that, 'The state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice'. The high costs in litigation, hiring lawyers, managing cases and filing fees in the Common Law System are some of the impediments to accessing justice by a majority of Kenyans especially the poor, vulnerable and marginalized. Further, distances to court houses, huge case backlog, complicated court procedures, the language used, understaffed judicial officers especially at magistrate level and prison congestion further complicates judicial effectiveness and peoples participation in the administration of justice. This has eroded the human dignity of many court users in violation of Article 28 that 'Every person has inherent dignity and the right to have that dignity respected and protected'.
Due to the ineffectiveness, inefficiency and non responsiveness of the Common Law system popularly known as the judiciary, many people have opted for alternative forms of justice or injustice like community justice, abandoning their claims or mob injustice to seek remedies. Indeed, only 15% of the aggrieved persons are managing their cases in the Common Law System begging the question; where are the rest? A recent example is during the post election violence in 2007/8, in many areas especially the Rift Valley, Coastal and Central regions, instead of people (including politicians) resorting to the security and judicial agencies for protection and dispute resolution, many reverted to self help methods and community justice elders for guidance and protection, to counter violence or settle disputes. The courts were not an option in such extreme times!
WHAT IS A COMMUNITY JUSTICE SYSTEM?
Kenya for many years has been running two parallel judicial systems; the Common Law and Community Justice Systems. This is more so in Northern Kenya where the community justice system is in direct conflict and/or competition with the Common Law System i.e. the Gada system of the Boran community.
The community justice system is inquisitorial and restorative in nature while the Common Law system is adversarial and punitive justice. Community Justice is a peace building initiative that creates community awareness and development in a given community. It is closely linked to culture in terms of thoughts, feelings, attitudes, materials, traits and behaviour of the group of people. These characteristics are manifested and shared by the group through symbols, communication, judicial, economic and social patterns. Where there is a dispute, restoration and community harmony is paramount. However, each Community Justice System differs from one ethnic group to another due to their peculiar historical, social and economic experiences and the environment they live in.
It is due to the above cultural notions that Community Justice is premised on the principles of restorative justice which encompasses justice that seeks to correct historical or past wrongs committed against individuals with an impact on the community. Restorative justice implies that the existing wrong has disrupted or impaired the community relationships in the society between those directly implicated or affected by the wrong (that is the perpetrator and victim) and the entire community. It is fundamentally concerned with restoring social relationships and re-establishing equity based on its values. It therefore punishes the individual while reconciling the entire group or community concerned. The aim is to attain both equity and equality before the traditional law and offer remedies that are deterrent and progressive to all. This brings healing, action by self which may lead to individual punishment and also civil remedies like restitution.
For example in Kipkeleon Constituency which was one of the areas that was worst hit by the post election violence in 2007/8, the justice system was activated on 6th October 2008 to respond to the community needs and frustrations of reconstruction, reconciliation and restitution. Principles of human rights and natural justice were injected by the Community Paralegals to enrich the system and create a more accountable governance and justice system due to the mixed ethnic community. This strengthens the Community Justice Systems of the Kalenjin Community known as Kok, Kikuyu Community known as Kiama Ki Athuri, Meru Community known as Njuri Njeke, Kamba Community known as Nthome and Luo Community known as Bunch Biny. This initiative facilitated community cohesion, peace, reconstruction and access to justice for a majority of the community members.
CONSTITUTIONAL DAWN AND FOUNDATIONAL COMMUNITY JUSTICE FRAMEWORK
The new Constitution has an unprecedented inclusion of Article 44 (1) which provides that 'Every person has the right to use the language and to participate in the cultural life, of the person's choice' and Article 159 (2) (c) provides that 'alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute mechanisms shall be promoted...' These articles begin to form the Constitutional framework for Community Justice Systems which are culturally based and act as an incentive to negotiate cultural justice notions with those who do not belong to that particular cultural heritage.
Article 159 (3) provides bench marks that, 'traditional dispute resolution mechanism shall not be used in a way that -
(a) Contravenes the Bill of Rights;
(b) Is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
(c) Is inconsistent with this Constitution or any written law.
These Constitutional provisions are critical because; firstly they are located in Chapter Ten (10) as part of the judicial mechanism within the administration of justice; secondly, this is the first Constitutional recognition of Community Justice Systems (traditional dispute) mechanism in Kenya, because previously during the colonial period they were banned and unlawful; and thirdly, it provides a strategic platform for their administrative and immediate operationalisation to complement the Common Law system of justice.
Interestingly, Article 60(1) (g) begins to mandate the Community Justice Systems to manage land disputes. It provides 'encouragement of communities to settle land disputes through recognized local community initiatives consistent with this Constitution'. These provisions build a strong case for parliamentary legislation in respect to Community Justice Systems in Kenya to enhance access to justice.
WHAT IS THE ROLE OF COMMUNITY JUSTICE SYSTEMS?
Community Justice Systems have a similar role like the Common Law System which is to settle or solve disputes by protecting, defending, reconciling and preserving community culture, values and norms. Disputes are resolved at various levels but do not have an administrative hierarchy and rarely an appeal system like in the Common Law system where you have the Lower, High, Appeal and now Supreme Courts. The adjudicators in the Community Justice System act as mediators, conciliators; give penalties and make decisions that impact on the whole community as they are the community voice.
WHO ARE THE STAKEHOLDERS?
There are various stakeholders engaging with the Community Justice System and these differ from area to area. They include the village elders (wo/men), elderly persons, Provincial Administration, religious leaders, civil society organizations (including national and community based organizations), National Police Service, youth, women, people living with disability, HIV and AIDS. It should be noted that the core team is usually led by the village and elderly persons with administrative blessings from the Provincial Administration and this composition differs from community to community. In many instances, women only play a role when matters concerning children are in dispute, and as witnesses in a particular case(s).
NATURE OF CASES HANDLED BY THE COMMUNITY JUSTICE SYSTEM
Community Justice Systems deal with both civil and criminal matters which are interrelated and interchangeable. The nature of disputes varies from community to community due to their experiences, environment, access to and impact of the Common Law System. Some of the disputes include gender based violence (domestic, rape and defilement), land, inter-ethnic conflict, marriage, child abuse, succession and inheritance, theft, murder and family feuds among others.
WHAT ARE THE CHALLENGES FACING THE COMMUNITY JUSTICE SYSTEM?
There are various challenges where Community Justice Systems are practiced including lack of positive publicity among the intellectuals especially the legal academia and practitioners, limited deliberate linkage with the Common Law System, no financial state allocations even those that operate under the Provincial Administration known as the Wazee wa Chief, most of the elders have no legal or human rights knowledge; they discriminate against women, persons living with disability and children; no recording of proceedings except where the area Chief is pro-active and they handle serious criminal matters like murder, rape and defilement in contravention of the written law under the Penal Code and the Sexual Offences Act to the detriment of the female victim/survivor(s). Despite these challenges many people continue to use them due to their ease in procedure, minimal costs, language and accessibility.
THE PARALEGAL APPROACH TO COMMUNITY JUSTICE SYSTEM
To enrich the administration of justice, pre-empt the inbuilt or potential challenges and human rights violations while practicing Community Justice, some communities have included Community Paralegals as advisory stakeholders. The Community Paralegals play the role of drafting and documenting the proceedings; monitoring human rights in the area; providing basic legal advice and assistance, counselling and popular education on the written law and the nature of cases that should be referred to the Common Law System. They also network and refer matters to relevant government agencies like probation, police and civil society organizations to complement the Community Justice role. This has begun to take effect and have positive impact in Machakos, Nakuru and Uasin Gishu Counties.
The use of community systems as alternatives to the Common Law System is widespread in Kenya including where court stations are near i.e. Kibera Law Courts where the Nubian community have opted for their form of Community Justice System. The judicial system in the administration of justice has historically ignored the place and role of the Community Justice Systems and legislated against repugnancy to justice and morality. The question usually asked by many community members is whose justice and morality! Of course there are aspects of the Community Justice System that are of human concern, for example discrimination and differing decisions on some matters that impact on individuals i.e. the Gada system in matters of death determine 50 and 100 camels from wo/men respectively. Due to such issues, a hybrid Community Justice Systems is critical to respond to modern trends, realities, mixed cultural communities. This hybrid system is being explored in Kipkeleon, Yatta, Masinga, Morgotio and Masinga Constituencies where Legal Resources Foundation Trust (LRF) in conjunction with the community leaders is providing paralegal education to enrich and facilitate the Community Justice System.
Now that Community Justice Systems are Constitutional, there is need to document the various ethnic and inter ethnic experiences of dispute resolution mechanisms and consolidate the best practices. This will provide baseline information to develop common guidelines for administrative and judicial parameters within the administration of justice. Further model sites should be earmarked, studied and replicated nationally like was the case with the Gacaca Courts in Rwanda which were responding to the genocide case backlog.
Legal and civic learning in schools, colleges and universities should build in a comparative study on Community Justice Systems coupled with popular education on the positive notions of Community Justice Systems especially among the elite, legal practitioners and academia. This will open and enrich dialogue in the administration of justice especially during Court User Committees towards the development of effective, efficient and responsive justice delivery mechanisms. These complementary mechanisms are urgent and critical for judicial reforms in Kenya to restore judicial confidence among a majority of the people of Kenya. The people's sovereignty must be respected at all times per Article 159(1).
Jedidah Wakonyo Waruhiu is executive director of Nairobi City County. Florence Gachichio is a prison paralegal at Nyeri Women Prison (Nakuru County). Ezra Rotich is a community justice member of Kipkeleon Constituency (Baringo County), Legal Resources Foundation Trust (LRF).