When Kenyans promulgated the Constitution in 2010, they sought to respond to several concerns, among them an accountable relationship between the government and the governed, erasing of inequalities and hierarchies in personal relationships and social structures, expansion of freedom and re-imagining and building a new community.
The Constitution offers a large menu of immediate and futuristic outcomes. What did not escape its drafters was that citizens had innovated and entrenched practices of a future Kenya that transcended the provisions in the Constitution that were formerly in force. Such practices were in democracy, governance, human rights, regulation of economic activities, spirituality, and access to justice.
For the Judiciary and users or providers of justice, the numerous processes and practices used to access justice outside the courts were notable. These explained their reasons for existence from ethnic traditions, religion, urban culture, and the everyday idea of justice.
While most of them were designed and pursued their actions in a manner consistent with the general principles of human rights and equity, others violated the very justice system that they purported to deliver.
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Statistics from surveys show most Kenyans prefer modes of accessing justice outside the Judiciary.
A 2007 survey, Governance, Justice, Law, and Order Sector Programme on government agencies showed citizens’ confidence in state institutions, including the Judiciary, remained ‘low’.
A decade later, another survey by The Hague Institute for Innovation of Law in co-operation with the Kenyan Judiciary, dubbed the Justice Needs Survey reported that 63 per cent of Kenyans had experienced a situation that called for resolution through a judicial process.
Further, 80 per cent of those with legal problems took active steps to resolve them, 10 per cent resolved their disputes through the formal court system and 40 per cent used the local administration and the police.
Under these circumstances and with the constitutional imperative for the Judiciary to promote Alternative Justice Systems in Kenya, the Chief Justice appointed the Task-force on Alternative Justice Systems (AJS) in 2016.
The task-force's first task was to clarify that the provisions of Article 159 (2) (c) of the Constitution was neither a nostalgic return to nor salvage project for some old tradition valorised for its longevity and structural fixity.
The article is more than just a dispute resolutions clause or a quest for some checklist for culture, it is based on freedom, inclusive equality, non-discrimination, dignity and equity. This is the system that we have called AJS.
AJS refers to initiatives that can be taken to attain equality and equity both in terms of process and outcomes for all members of a particular cultural, political, and social identity.
For the Judiciary, AJS has become a useful avenue of responding to the backlog of court cases. It is a deeply philosophical approach with far-reaching implications to jurisprudence, human relations, governance, teaching, and humanities research.
AJS now stands out as one of the most important contributions to the transformational intents of the Constitution. Its practices are centred on ordinary citizens. The Constitution explicitly reverses elements of primitivism by the colonial idea of law, citizenship, State, and culture.
By constitutional dictate, the 'traditional' is no longer 'irrational'; and its ideas of justice no longer presumptively 'repugnant' and bereft of human rights quotient.
Justice is not just about the occasional and spectacular performance before an official front such as the court, but about everyday relational practices within the community.
It is not teleologically dictated by discrete and atomised activities in courts; it is negotiated and remade in everyday life.
This has shown that tapping into the intellectual, cultural and situational resources associated with the everyday ideas of justice, particularly those that are largely marginalised by the neo-liberal schemes, is not only cost-effective but also indispensable and sustainable to our well-being and advancing our democracy.
Yet, even as it expands these freedoms of the citizens and their AJS mechanisms to be active contributors for access to justice, these institutions must change and embrace the spirit and ethos of the Constitution and its emphasis on adherence to human rights.
To the Judiciary, the AJS provides insights into situations and indigenous juridical knowledge and mechanisms that are capable of providing new paths of the Afrocentric framework of accessing justice and sociological jurisprudence based on the lived realities of the people.
These multiple transformative meanings of AJS have been captured in the policy proposal by the task-force, which argues that AJS has been engaged as living pluralism, a framework for managing and engaging differences.
The task-force has demonstrated the various ways in which people and the courts identify, classify, and make use of 'traditional' and 'informal' justice systems as part and parcel of the larger body of justice.
To allow people to access justice through 'many doors' is actually to give them the freedom to maintain their identity and agency while still adhering to the dictates of a Republican Constitution.
Prof Ngugi is the Presiding Judge of the Nakuru High Court and the chair of the AJS Task-force. Dr Akoth is the vice-chair, AJS Task-force.