29 November 2018

Kenya's Kaya Elders Stick to Traditional Courts

Kenya's overloaded court system often delivers justice only after plaintiffs have spent years waiting. Traditional courts like the one Diana Wanyonyi visited in Kilifi County could be an alternative.

The lush green Kaya Forests of Kilifi County in coastal Kenya are spread over some 200 kilometers (124 miles). They contain the remnants of numerous fortified villages, or kayas, of the Mijikenda people.

Built in the 16th century, the kayas were abandoned by the 1940s. They are regarded as ancestral homes and are maintained by councils of elders. The Mijikenda community tends the forests around the kayas to protect the sacred sites. These are now almost the only remains of a once extensive coastal lowland forest.

This is the backdrop to the proceedings of the Rabai traditional court which is commonly known by the Mijikenda name Mwembe Wa Mwaruga. The proceedings are conducted under a huge tree and all present sit on the ground. Among the rules to be followed: women must cover themselves with a cotton cloth commonly known as a leso and all participants must leave their shoes two meters (6.5 feet) away from the court.

Court in session

Aisha Juma, one of the women prosecutors, welcomes me with a broad smile and tells me to wrap a leso around my waist and shoulders. She escorts me to the court area and asks me to sit.

As the court proceeding starts, every one is quiet. Only Aisha and a male kaya elder talk, informing those present about recent cases.

"We have a kind of alerting system which is called Isimilani. Once someone says that word, everyone has to keep quiet and listen to what this person says," Aisha tells me.

On this occasion, a plaintiff sits on one side of the judge while the accused sits opposite him. The case has been brought by a man who accuses a women of driving his son crazy. After hearing the case, the judges decide there is not enough evidence to prosecute the woman who expresses relief that the matter has finally been resolved.

Praying to the ancestors

Harry Chivuto has been the chief judge for more than 30 years. His white hair and wrinkled face pay tribute to his experience in delivering justice. Clad in traditional red and white regalia, Chivuto told me me about the origins of the Mwembe Wa Mwaruga court system.

"We are seated here because of our ancestors. This is a Mijikenda parliament. What we say here is what is delivered to us in the kaya forest. When we go there we pray for greatness, during drought we pray for rainfall and abundance of food. We also pray for an end to bad things," he said.

There are no written laws; the elders use their wisdom to make their judgments which should be without bias. They do not handle cases of murder, gender-based violence or capital offences. Their fee is 250 Kenyan shillings (€2.16,$2.4).

Chivuto explains: "If both parties come to an agreement, the accused has to give something small to the plaintiff as a way of saying sorry. After we have resolved the matter they give us 250 shillings. Then both parties are taken to a place where they shake hands as a sign that the matter has been resolved."

Modern courts suffocating

Courts like Mwembe Wa Mwaruga could help Kenya's formal judicial system which is suffering from a crippling backlog. Statistics indicate that more than 100,000 cases are waiting to be dealt with, all of them more than five years old.

The authorities are aware of the problem. Speaking in Mombasa recently, Kenya's Chief Justice David Maraga said: "There is no doubt that the perennial problem of case backlog denies justice to victims. We have cases where an accused person sometimes remains in remand in the trial process for longer than the sentence or period of imprisonment that he is likely to receive in the event of a conviction."

One way in which such a backlog could be reduced would be for the government to engage with citizens on how to use traditional courts to solve minor cases.

Prosecutor Juma says that many locals in Kilifi County prefer to have their cases heard in the traditional court rather than in modern, Western style courts because matters are resolved faster.

"Many Mijikenda people have embraced this court system because it unites them instead of dividing them," she said.

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