Experts hail alternative justice systems

As the Judiciary launches the Alternative Justice System, it is emerging that involving community elders in dispensing justice could hold the key to solving the problem of cases backlog.

While Section 159 (b) of the Constitution states that justice should never be delayed, there are hundreds of cases that have continued to drag on for years, a situation that prompted the judiciary to explore other alternative mechanism as provided for in law.

Budget cuts

The situation has been worsened by budget cuts, where mobile courts were suspended hindering effective delivery of justice for people living in far-flung areas and cannot access established law courts.

A pilot project on Alternative Justice System (AJS) started in Isiolo County in 2012 has recorded a degree of success with beneficiaries hailing it as the best ways to reduce workload in courts, decongest prisons and promote harmony among the parties in dispute.

Respected elders from five dominant communities in Isiolo have been dispensing justice fast through use of traditional dispute resolution mechanism with the cases referred to them by the court, police stations or the aggrieved party. 

However, murder, defilement and rape cases cannot be arbitrated through the alternative dispute mechanism.

“Parties at the village level may refer the case to the elders and avoid taking the matter to court or the Officer Commanding Police Station may refer the dispute to the elders. For the court, it might analyse a case brought before it and decide it will best be solved by the elders,” says Isiolo Principal Magistrate Evanson Ngigi.

Records at the Isiolo Law Courts indicate that a total of 30 cases were referred to the elders by courts and concluded conclusively while this year nine cases have been successfully arbitrated.

Pilot project

In this pilot project, each of the five elders deals with cases involving people from his community who understands traditional ways of resolving conflicts and disputes. The communities include Borana, Meru, Turkana, Somali and Samburu.

Mr Patrick M’Emara from Meru Community and who sits in the Nchuri Ncheke Council of Elders says each year he arbitrates on average 50 cases.  This he has done for free since there no fees charged for the service.

“Most of the cases I have handled have been referred to me by the court. I then reach out to the parties separately plan for a meeting to hold dialogue. We hold our sittings in the prison in case a suspect is an inmate or we choose a neutral place like a hotel for those out on bond,” explains M’Emara.

One of the latest beneficiaries of the AJS is Joseph Mwenda, 38, who walked out of Isiolo GK Prison a free man mid this month, only two weeks after taking a plea in court.

He had been charged with malicious damage to property where his mother was the complainant. After pleading not guilty, he was released on a cash bail of Sh10,000 which he could not raise and was hurled to the remand prison.

The matter was referred by the court to Mr M’Emara who reached out to the accused and the mother. A sitting was conducted in the prison where the mother forgave his remorseful son who in return promised to reform his lifestyle and keep away from alcohol and miraa (khat) chewing.

Murder case

Mr Abdikadir Sharif, Chair, Somali Council of Elders says he successfully arbitrated in a murder case where a herder was killed following a dispute over pasture pointing that depending on the circumstances, elders are at times allowed to handle murder cases.

“Traditionally, Somalis pay 100 camels to the family of the aggrieved party whenever a person is killed. In this case, we negotiated and the family was given 35 cows and some money. Through this mediation process, the two families have remained friends unlike in a situation where the matter was taken to court,” said Sharif.

According to Mr Ngigi, the principal magistrate, Alternative Justice System has several advantages. Top on the list is that they are speedy, less costly and leaves the parties in dispute satisfied.

The chairman of the National taskforce on AJS Justice Joel Ngugi said elders continue to play a crucial role in the speedy resolution of cases that would otherwise take longer in court.

Justice Ngugi who spoke during a visit to Isiolo Law Courts last month revealed that recent statistics show that 86 percent of cases in the country are being decided by elders and through other alternative means.

He cited Isiolo as among the counties where AJS is very successful, adding that the taskforce is looking into other means that Kenyans were using to solve cases out of court that are in line with the Constitution so that they are incorporated into the judicial system.

Chief Justice David Maraga is expected to launch Alternative Justice Systems Policy on Thursday. Once launched the policy is expected to address some of the teething problems that face Alternative Justice Resolution Mechanism.

“In arbitrating the cases, we work voluntarily without an office or facilitation to visit the parties in dispute. Our verdicts must be typed and filed in court and hence we have to meet these costs from our pockets,” says Nicholas Asurani, the chairman of Turkana Council of Elders.

Mr Ngigi says once the policy is launched a formal point of reference will be established and probably it will be spelt on how the elders would be facilitated to perform their duties effectively.

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