This is my 100th article so I thought I should dedicate it to my newfound interest, Alternative Justice System (AJS).
Chief Justice Emeritus Dr Willy Mutunga appointed the Taskforce on the traditional, informal and other mechanisms for dispute resolution to examine the constitutional, legal, and policy options available to comply with Article 159(2)(c) and 159(3) of the Constitution.
This provision requires courts and tribunals while exercising judicial authority, to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms so long as they do not contravene the Bill of Rights; are repugnant to justice and morality or results in outcomes that are; or are inconsistent with the Constitution or any written law.
This taskforce successfully collected and collated relevant materials, which were used in development of the AJS Framework Policy, launched by retired Chief Justice David Maraga in 2020.
This policy is the key document that governs AJS. It states that AJS is based on freedom, equality, non-discrimination, dignity, and equity, as envisaged in the Constitution, and describes AJS as initiatives that can be taken to attain equality and equity for all members of a particular culture, and political and social identity. The policy outlines a number of benefits. These include helping the Judiciary deal with backlog of court cases. It is also cheap, you don’t need a lawyer and you don’t pay court-related fees like filing fees, etc. Cases can be fully resolved within a short period of time as each is handled separately to conclusion and unlike the Judiciary which determines an outcome that can go through appeals for a long time.
It is inclusive and promotes a win-win outcome. Unlike the Judiciary, it does not lead to losers and winners. It also restitutes parties and can lead to genuine conciliation and reconciliation. Its approach is more inquisitorial rather than the adversarial one assumed by our courts and tribunals.
In a meeting co-hosted by the Judiciary (Kitui) and International Commission of Jurists (ICJ) that I attended on AJS, key stakeholders and users of AJS shared wonderful experiences and some success stories. Voluntarism, the willingness of parties to embrace AJS and its basis on honesty, good faith and goodwill guarantees outcomes that are rarely contested. AJS does not do well with revenge, vindictiveness, malice and dishonesty.
We learned the relevance of AJS, some challenges, and duties that we all have towards it, to respect, protect and transform. We also learned types of AJS and their corresponding institutions. The types are first, autonomous, an independent mechanism run entirely by the community, which determines the decision-makers, and processes to be followed.
The second type, autonomous Third-Party can be State-sanctioned, chiefs, the police, probation officers, child welfare officers, village elders under the county government, Nyumba Kumi groupings, church leaders, Imams, and Sheikhs among Muslims, and others such as social groups like Chamas, NGOs, and CSOs.
However, the State and non-state third parties are not part of any State judicial or quasi-judicial mechanisms. The third type known as the Court-Annexed AJS refers to processes used to resolve disputes outside the court, under the guidance and partial involvement of the court. They work closely with the court and court officers in the resolution of disputes through a referral system between the court, court users committees, the AJS processes, and other stakeholders such as the Director of Public Prosecutions, the Probation Office, and Children’s Office.
This method of dispute resolution involves community-based mechanisms and the formal justice system. In addition, there are also regulated AJS institutions, created, regulated and practised either entirely or partially by State-based law or statute. An example is the short-lived Land Disputes Tribunals.
Traditional African communities relied almost entirely on AJS to resolve disputes because it leads to restorative justice.
AJS decreases the recidivism of offenders where there is almost no chance of re-offending and therefore helps in their integration into the community.