What you need to know:
- AJS now stands out as one of the most important contributions to the transformational intents of the Constitution.
- Justice is not just about the occasional and spectacular performance before an official font such as the court but more so about the everyday relational practices within the community.
The drafters of the 2010 Constitution realised that the people have innovated and entrenched practices of the imagined and future Kenya that transcend the then-provisions— evidenced in democracy, governance, human rights, regulation of economic activities, spirituality and access to justice, among others.
For the Judiciary and many other users and providers of justice, the numerous processes and practices used to access justice outside the courts were notable.
But although some of these acted in complete violation of the very justice system that they purported to deliver, statistics show Kenyans prefer them.
A Governance, Justice, Law and Order Sector (GJLOS) Programme survey in 2007 on government agencies showed citizens’ confidence in key state institutions, including the Judiciary, as ‘low’. In another one, 10 years later, by the Hague Institute for Innovation of Law, and the Judiciary, ‘Justice Needs and Satisfaction in Kenya’ (Justice Needs Survey), 63 per cent of the citizenry had experienced a situation that called for resolution through a judicial process.
Further, 80 per cent of those with legal problems took active steps to resolve them; 10 per cent used the formal court system and 40 per cent the local administration and the police.
Under these circumstances, and with the constitutional imperative for the Judiciary to promote alternative justice systems, the Chief Justice appointed the Taskforce on Traditional, Informal and Other Mechanisms for Dispute Resolution in Kenya (Alternative Justice Systems, or AJS) in June 2016.
The team’s first task was to clarify that the provisions of Article 159 (2) (c) of the Constitution was neither a nostalgic return to nor salvage project for some old tradition valorised for its longevity and structural fixity.
The article is more than just a dispute resolution clause or a quest for some checklist for culture but for accessing justice. These are initiatives that can be taken to attain equality and equity in terms of process and outcomes for all members of a particular cultural, political and social identity.
For the Judiciary, AJS has become a useful avenue of responding to the backlog of court cases.
AJS now stands out as one of the most important contributions to the transformational intents of the Constitution. Its practices are centred on ordinary citizens. The Constitution explicitly reverses elements of primitivising by the colonial idea of law, citizenship, State and culture.
Human rights quotient
By constitutional dictate, the “traditional” is no longer “irrational” or its ideas of justice presumptively “repugnant” and bereft of human rights quotient.
Justice is not just about the occasional and spectacular performance before an official font such as the court but more so about the everyday relational practices within the community. It is not teleologically dictated by discrete and atomised activities in courts; it is negotiated and remade in everyday life.
Tapping into the intellectual, cultural and situational resources associated with the everyday ideas of justice, particularly those that are largely marginalised by the neo-liberal schemes, is not only cost-effective but also indispensable and sustainable to our wellbeing and advancing our democracy.
In its policy proposal launched by Chief Justice David Maraga on Thursday to commemorate the 10th anniversary of the Constitution, the taskforce argues that AJS has been engaged as living pluralism, which, like multiculturalism, is a framework for managing and engaging differences.
It has shown the various ways in which people and the courts identify, classify and make use of “traditional” and “informal” justice systems as part and parcel of the larger body of justice.
It seems the idea of pluralism in the Constitution is the quest for freedom. To allow people to access justice through ‘many doors’ is to give them the freedom to maintain their identity and agency while adhering to the dictates of a republican Constitution.