In Summary
  • Using human rights as a core content of juridical philosophy is a resource that can be used to change AJS mechanisms and the Judiciary.
  • It is the duty of the State to protect the AJS and its mechanisms against third parties, whose action and philosophy may deprive rights-holders of their access to justice.

Today is International Human Rights Day.

Besides being the 71st anniversary of the Universal Declaration of Human Rights, it presents to Kenya an opportunity to engage with both advances and negation of human rights.

Over the past two decades, human rights have become accepted as a lingua of governance and societal relations in Kenya.

However, we are where we are out of enormous struggles by ordinary citizens and middle-class elite led mainly by academics and civil society activists, who have positioned human rights as a process and sort of tool to check the excesses of the State and also private actors.

After 2002, human rights became a language of policy, thanks largely to the Governance, Justice, Law and Order Sector (GJLOS) project.

As a result, the language of human rights is used in numerous policy documents.

DISPUTE RESOLUTION

But that has been more of sprinkling human rights grammar and flavour rather than its much-required use of realising its transformational impact and surge in Kenya towards a human rights state.

Therefore, when the Constitution imposes an obligation on the Judiciary to promote traditional methods of dispute resolution — which we have named as Alternative Justice Systems (AJS) — it must be read as a requirement for deepening the application of human rights in Kenya.

This requirement links the juridical philosophy with the advancement of the notion and practice of human rights.

Doubtless, using human rights as a core content of juridical philosophy is a resource that can be used to change AJS mechanisms and the Judiciary.

An example is the work of the Task Force on Traditional, Informal and other Mechanisms used to access Justice in Kenya (the AJS Taskforce).

For three years, the task force has been thinking through how the Judiciary can undertake its obligation to promote AJS.

PROPER PROBE

It suggested that such an undertaking can be done by understanding the obligation in Article 159(2c) of the Constitution as imposing three interrelated duties to the Judiciary and other stakeholders.

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