In Summary
  • The Constitution desires intelligibility between the courts and non-state mechanisms, so it’s not about formalising AJS or incorporating it in the Judiciary.
  • Justice is an outcome that promotes and preserves human dignity. It also ought to encompass how people navigate and are treated in the many relations and transactions.

The Task Force on Alternative Justice Systems is mandated to examine the legal, policy and institutional framework for the furtherance of the endeavour by the Judiciary to exercise its constitutional mandate under Article 159(2)(c).

It should also further the Judiciary’s plans to develop a policy to promote Alternative Justice Systems (AJS) as a strategy for enhancing access to and expeditious delivery of justice. This was reaffirmed and expanded by Chief Justice David Maraga.

The team of 15 men and women was appointed by the then Chief Justice, Dr Willy Mutunga, in 2015.

In framing Article 159 (20)(c) as an AJS provision, the task force has reviewed and engaged with mechanisms that deal not only with redress of disputes, but also those that explore and enable quests for everyday justice.

Justice, in the understanding of AJS, is broad and co-joined in Article 48, on access to Justice, Article 1, on the centrality of the people of Kenya, and Article 11, on rights to culture.

It is an outcome that promotes and preserves human dignity. It also ought to encompass how people navigate and are treated in the many relations and transactions.

AVAILABLE OPTIONS

Justice must be understood in the context of national values articulated in Article 10.

In this sense, it is cognisant of our national values and involves not just recognition of the rights of persons, but protection, opportunity to vindicate, restoration and restitution.

The task force is now ready to release its report. An outstanding proposal is that since AJS cannot be treated as an omnibus and totalising system, it has identified four major categories of mechanisms that are manifested in Kenya and similar jurisdictions.

The first such AJS institution is the autonomous one — processes and mechanisms run entirely by the community.

Here, justice questions and disputes are resolved according to the laws, rules and practices that govern communities.

These are the most common AJS mechanisms in Kenya and are often managed by a group largely known as elders.

An ‘elder’ is often used to signify authority and symbol of power rather than masculinity or advanced biological age.

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