The Council of Elders Bill, 2024, sponsored by Kimilili MP Didmus Barasa, seeks to establish a legal framework for alternative dispute resolution within communities.
Defying a decision by the Council of Elders could soon land you in jail for six months and a fine of Sh50,000 if a bill currently being debated in Parliament is passed.
The Council of Elders Bill, 2024, sponsored by Kimilili MP Didmus Barasa, seeks to establish a legal framework for alternative dispute resolution within communities, to be administered by councils of elders in each clan.
"Traditional local leaders, including male and female elders, play a key role in conflict management and natural resource-related disputes. The resolution of disputes by the council of elders is based on processes that are well understood and accepted by the community so that people are able to abide by their decisions," the bill states.
The Bill is in line with Article 159 of the Constitution, which recognises the cultural role of elders in resolving social disputes.
The proposed law seeks to explore the use of alternative dispute resolution as a mechanism to decongest the courts.
Mr Barasa argues that while the Bill will not decongest the courts, it will be cost-effective and provide easy access to justice for many aggrieved Kenyans.
The proposed Council of Elders will consist of a chairperson, a deputy chairperson, a secretary, a woman leader, a youth leader and a chief whip.
The Council of Elders will be elected by the community for a term of three years, renewable once.
The Council of Elders will have the power to settle disputes, summon any person to give evidence in relation to matters before it and also issue directions in relation to matters before it.
The bill proposes an allowance of Sh24,500 for the elders.
In June, Interior Principal Secretary Raymond Omollo told a parliamentary committee that it would cost taxpayers Sh2.7 billion every month to keep village elders on the government payroll if the National Government Coordination (Amendment) Bill, 2024 is passed by Parliament.
Dr Omollo argued that if the government employs at least five village elders in each sub-county at a monthly salary of Sh5,000, it will cost the government Sh226 million monthly, amounting to Sh2.7 billion a year.
The bill empowers the chief justice, police and chiefs to refer cases to the council, with the chief justice making rules on cases referred to the council.
If passed, the bill will cement the place of the council of elders in society as a vital governing body representing clans and sub-clans.
In today's communities, especially in rural areas, councils of elders play an important role in ensuring social cohesion within communities, preserving cultural heritage and mediating complex societal disputes.
For example, in 2016, some 60 elders from Nyeri County were engaged to assist the judiciary in resolving minor cases, mostly involving family and land disputes.
The engagement of the elders resulted in the resolution of 100 cases, which improved family relations.
Although the Constitution does not explicitly recognise elders or the Council of Elders, it contains provisions that can be interpreted as ensuring their continued existence and expanding their role in alternative dispute resolution.
Article 159 encourages traditional dispute resolution mechanisms provided they do not conflict with the Constitution or existing laws.
The Constitution, under Article 176(2), also provides a framework within which the role of elders could be expanded at county level.
The county administrative system, as defined in the County Government Act of 2012, includes sub-county administrators for sub-counties, ward administrators for wards and village administrators for villages.
In Kenya, Chiefs and Assistant Chiefs are salaried government officials, representing the lowest rank in the national government administration.
Their main function, as outlined in the Chiefs Act, is to maintain law and order in their areas of jurisdiction.
Chiefs are mostly recruited from the communities they serve and work closely with local groups, including village elders.
Article 7 of the Chiefs' Act allows chiefs and deputy chiefs to employ persons under their jurisdiction to assist them in carrying out their duties.
The Parliamentary Budget Office, in its analysis of the Bill, said that formal legal recognition of elders will provide closer service delivery to the people.
However, the Bill will only be published and formally introduced for first reading in Parliament if the Budget and Appropriations Committee takes into account the views of the Treasury CS.
The committee is expected to report on the proposal within 30 days.
In Africa, Botswana, South Africa, Ghana and Zimbabwe have enshrined the role of elders in dispute resolution.
