In Kenya, as in many parts of the world, accessing justice through formal legal channels can be cumbersome, expensive, and time-consuming. As evidenced by a Justice Needs and Satisfaction Survey conducted by the Judiciary in 2017, only a mere 10% of those with justice needs opt for formal justice institutions to address their legal problems. This stark reality underscores the importance of alternative justice systems (AJS) in bridging the gap between the law and the people it serves.

One of the fundamental principles enshrined in the Constitution of Kenya 2010 is the embrace of alternative dispute resolution mechanisms, including traditional justice systems. This principle acknowledges the importance of incorporating indigenous methods of conflict resolution into the legal framework, recognizing their significance within Kenyan society.

Informal justice systems, including customary and traditional dispute resolution mechanisms, offer a more accessible and affordable avenue for resolving disputes within communities. However, these systems are not without their challenges. Issues such as fairness, accountability, and alignment with human rights standards often arise, highlighting the need for their strengthening and regulation.

Recognizing the significance of AJS and in compliance with the constitutional directive outlined in Article 159(2)(c), the Judiciary has taken significant steps to enhance these systems. Central to these efforts is the development and implementation of the Alternative Justice Systems Policy (AJS Policy). Crafted in consultation with various stakeholders, this policy aims to formalize, regulate, and elevate the status of AJS in Kenya.

What is the AJS?

Alternative Justice Systems are the comprehensive organic, non-state mechanisms of laws, norms, customs, social and legal systems which govern and regulate the entire spectrum of activities and lives of individuals from birth to death.

AJS encompass a diverse array of informal mechanisms for conflict resolution deeply rooted in the cultural fabric of Kenyan society. These systems, including customary and traditional dispute resolution mechanisms, offer accessible, community-driven avenues for resolving disputes outside the formal legal framework.

What are the principles of the AJS?

Crucially, the AJS Policy emphasizes the importance of aligning informal justice mechanisms with the principles and values enshrined in the Constitution of Kenya, 2010, as well as international human rights standards. It acknowledges the need for a pluralistic approach to justice that respects the cultural, socio-economic, and geographic diversity of the population.[1]

Central to the Alternative Justice System are principles that prioritize restorative justice, reconciliation, and consensus-building. Unlike the adversarial nature of formal courts, AJS focuses on repairing harm, restoring relationships, and fostering community cohesion. Moreover, these systems often emphasize mediation, dialogue, and the active participation of all parties involved.

What is the impact of AJS so far?

The impact of the AJS Policy on access to justice in Kenya has been tangible. By facilitating the resolution of a significant number of disputes outside the formal court system, it has alleviated the burden on overloaded courts and reduced case backlogs. To further enhance accessibility, the Judiciary has established AJS Suites referred to as “Ukumbi” in various counties, including Isiolo, Kajiado, Nakuru, and Lamu. Additionally, county-specific action plans have been launched in places like Kajiado and Nakuru as part of a nationwide rollout of AJS initiatives.

In conjunction with the National Steering Committee on the Implementation of AJS (NaSci-AJS), the Judiciary organizes an annual AJS Conference aimed at educating Kenyans and stakeholders on the role of informal and traditional justice systems in enhancing access to justice. These initiatives serve to foster greater understanding and collaboration between formal and informal justice sectors, ultimately working towards a more equitable and inclusive legal landscape. KELIN has proudly partnered in these initiatives and been ably represented by the AJS practitioners we collaborate with in the community. Additionally, KELIN has partnered with NaSCI-AJS and Court Users Committees in Kisumu and Siaya to develop specific county action plans, the Kisumu model now awaiting launch.

Indeed, the development and implementation of the Alternative Justice Systems Policy represent a significant stride towards strengthening access to justice in Kenya.[2] By formalizing and regulating informal justice mechanisms, the Judiciary is not only expanding avenues for dispute resolution but also promoting fairness, accountability, and respect for human rights within communities.

What are some of the challenges and opportunities presented by the AJS?

Despite its advantages, the Alternative Justice System in Kenya encounters several challenges. These include gender bias, stemming from the patriarchal nature of land and property rights, as well as the lack of uniformity in decision-making processes, which heavily rely on consensus. Additionally, there is a notable gap in awareness among community members, particularly women, who continue to experience distress despite the potential solutions available to them. Addressing these challenges necessitates ongoing capacity-building efforts, not only for trained practitioners but also for paralegals serving in remote communities. Such initiatives are crucial in enhancing access to justice and bridging the existing gaps in legal awareness and empowerment.

However, these challenges also present opportunities for collaboration among like-minded stakeholders, innovation on how to conduct regular capacity building sessions, and the integration of best practices to enhance the effectiveness and inclusivity of AJS.

Overall, as these efforts continue to evolve, they hold the potential to transform the legal landscape, making justice more accessible, responsive, and inclusive for all Kenyans, and more especially women who continue to face discrimination based on social norms around land and property rights.

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[1] https://ajskenya.or.ke/2022/04/08/justiceineverydaylife/

[2] https://www.unodc.org/easternafrica/en/Stories/alternative-justice-system-as-a-catalyst-for-advancing-access-to-justice-in-kenya.html#:~:text=Alternative%20justice%20processes%20reduce%20the,than%20replacing%20reliance%20on%20courts.

In Kenya, communities have diverse history of advancing cultural and traditional practices relating to land and property rights and the way they impact their progeny. This covers the acquisition of property, use or control and succession. The practices that are intended to ensure family wellbeing, however, progress male microaggression against women ownership of land stemming from implicit and actual biases being a blend of tradition and some colonial practices. The harmful practices have for long impeded women land tenure coupled up with institution barriers some of which unacknowledged despite the Constitution of Kenya 2010 and various national statutes, ostensibly safeguarding women’s rights to land and property. It is on this background that the proponents of equitable enjoyment of land and property rights champion societal evolution reflecting on oppositional notions of social oppression and social equity to formulate a commitment of realizing and sustaining supportive environment operating on a stance of equitable land and property rights.

KELIN in advocating for full enjoyment of health rights, targets all justice stakeholders in the community encompassing right holders and duty bearers including traditional justice actors to promote and protect women’s land and property rights and ultimately their wellbeing.

To achieve this, KELIN conducts research to understand the systemic sources of injustice and what constitutes ideal justice based on the lived realities of the women to promote evidence informed advocacy. A survey on The Impact of Luo Culture to Women’s Land Rights conducted by KELIN found that customary norms often relegate women to secondary positions regarding land ownership and inheritance, tethering their rights to male relatives such as fathers, brothers, or husbands. Consequently, women frequently encounter barriers when attempting to assert their rights to land, facing resistance and hostility from male counterparts within their communities. This inequality extends to matrimonial land and inheritance from paternal homes, where women are frequently displaced or denied rightful ownership. Equally, research on dowry practices in Kenya indicated systemic failures where people consider the token of appreciation as purchase price for the women. The research revealed that dowry positively establishes a woman’s position within the family she has joined, and it also gives her certain authority over family issues [1]. Dowry is also considered a show of commitment and a form of appreciation by the groom’s family. Dowry is perceived as a price for acquiring a wife, as such the women’s rights are relegated to secondary rights. For women, absence of land and property ownership marks the start of economic uncertainty and vulnerability noting most women solely rely on their land for their livelihood and their children. Lack of dowry payment also contributes to the women’s plight since her union to the man is considered to lack legitimacy thus upon the man’s demise, it may seem implausible for a woman to perceive herself as entitled to a share of the man’s property, this has a potential impact on the entire community.

Moreover, gender-based violence remains pervasive, further marginalizing women and hindering their ability to participate in decision-making processes related to land and property ownership. In instances where women do generate income from farming activities, they may be compelled to surrender control over the proceeds to male counterparts, devoid of autonomy in spending.

Since 2010, KELIN has been dedicated to addressing the plight of widows, orphans, and vulnerable children who have been unjustly denied their lawful rights to access and inherit land and property. Despite legal provisions such as Article 27, 40, 45, and 60 of the CoK, which mandates the elimination of gender discrimination in laws and practices, many women still face impediments when claiming their land rights. In cases of widows, they are deemed to only have user rights until their sons reach adulthood. As such, KELIN guided by Article 159(2)(c) of the Constitution of Kenya 2010, innovatively collaborates with traditional cultural institutions such as Councils of Elders to redress injustices through the utilization of traditional justice systems in Kenya.

For the many marginalized women, access to justice through alternative mechanisms has been a lifeline. Through interventions by KELIN alongside AJS practitioners, women have found avenues to challenge discriminatory practices and assert their rights within their communities seeing the resolution of 1463 cases of women’s right to land or property violation. However, challenges persist noting the challenge of enforcing some of the AJS agreements and there remains a collective hope that the wheels of justice will continue to turn in favor of gender equality and women’s empowerment.

The journey towards upholding women’s land and property rights in Kenya requires a multifaceted approach that addresses legal reforms, community empowerment, and the promotion of gender-sensitive policies as well as bolstering the skills of community paralegals, documenting infringements, and facilitating connections between women and nearby Alternative Justice System (AJS) practitioners.

KELIN serves as a catalyst for change and persists in its dedication to empowering women to assert their rights and forge new paths despite entrenched discrimination. AJS stands as a vital instrument for resolving disputes, underlining KELIN’s commitment to reclaiming rights and rebuilding lives.

 

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[1] Dhako en dhiang’ – a woman’s position is equated to the cows given for her dowry