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Customary and Informal Justice and Alternative Dispute Resolution in the East, Southern and Horn of Africa

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Customary and Informal Justice and Alternative Dispute Resolution in the East, Southern and Horn of Africa Customary and Informal Justice and Alternative Dispute Resolution in the East, Southern and Horn of Africa Report of the 10th "Geneva" Forum of Judges and Lawyers, Nairobi, Kenya, 2-3 March 2020 EAST, HORN AND SOUTHERN AFRICAN REGIONAL FORUM ON ALTERNATIVE DISPUTE RESOLUTION & CUSTOMARY AND INFORMAL JUSTICE Forum Theme: “Advancing SDG 16 and Pathways to Justice” March 2nd – 3rd 2020 Safari Park Hotel Nairobi, Kenya While this report seeks to reflect the range of views shared during the Forum, it does not necessarily include every point expressed by every individual participant, nor should the inclusion of anything in this report be taken to indicate the unanimous agreement of participants or the particular agreement of any specific participant. The views of participants reported here are their own and do not necessarily represent the views of the International Development Law Organization (IDLO), its Members Parties or the International Commission of Jurists (ICJ). The Forum was made possible with support from the Government of the Netherlands and the Republic and Canton of Geneva, Switzerland. ii TABLE OF CONTENTS LIST OF ACRONYMS............................................................................................................................................................... v 1. INTRODUCTION .................................................................................................................................................................... 1 1.1. Background to the Forum ............................................................................................................................................... 1 1.2. Rationale and Objectives of the Forum .................................................................................................................. 2 1.3. Outcomes of the Forum ................................................................................................................................................3 2. FORUM PROCEEDINGS .................................................................................................................................................. 4 2.1 Thematic Areas of Discussion ...................................................................................................................................... 4 2.2 Methodology ...................................................................................................................................................................... 4 3. FORUM PROCEEDINGS ...................................................................................................................................................5 3.1. Day One, Monday 2nd March 2020.........................................................................................................................5 3.1.1. Opening remarks .................................................................................................................................................5 3.1.2. Keynote address by H.E. Chief Justice and President of the Supreme Court of Kenya, Hon. David K. Maraga ................................................................................................................................................... 7 3.1.3. High level panel discussion to set the context in relation to national legal and policy frameworks on CIJ and ADR mechanisms to advance SDG 16 .................................................................. 9 3.1.4. Exchange of information and perspectives on national legal and policy frameworks on ADR and CIJ to advance SDG 16 ............................................................................................................................ 13 3.1.5. Practical challenges to accessing justice through alternative systems ..................................... 16 3.1.6. Recommendation for a framework to monitor the use of ADR and CIJ in advancing SDG 16………………….................................................................................................................................................................... 22 1.3.7. End of day one remarks by the overall moderator .......................................................................... 25 3.2. Day Two- Tuesday 3rd March 2020 ................................................................................................................. 26 3.2.1. Recap of day one activities ......................................................................................................................... 26 3.2.2. Relevant international and regional rule of law and human rights standards and mechanisms .................................................................................................................................................................. 27 3.2.3. Review of ADR and CIJ experiences and contributions to access to justice in line with Agenda 2030 SDG 16 Targets ................................................................................................................................ 31 3.2.4. Experience sharing through parallel break-out groups ................................................................. 33 3.2.5. Round Table Interview with a Judge, an ADR expert and a justice seeker representative…………. ................................................................................................................................................. 39 4. CLOSING REMARKS ....................................................................................................................................................... 42 iii 4.1. Closing Remarks by Dr. Justice Mavedzenge .................................................................................................... 42 4.2. Closing Remarks by Ms. Teresa Mugadza ......................................................................................................... 42 4.3. Closing Remarks by Justice Fred Ochieng’ ........................................................................................................ 42 5. KEY OUTSTANDING ISSUES AND RECOMMENDATIONS FROM THE FORUM ................................ 44 ANNEXES .................................................................................................................................................................................. 46 1. Forum Agenda ................................................................................................................................................................... 46 2. Moderator Concluding Questions to Key Stakeholders – Fire Side Talk .................................................. 52 iv LIST OF ACRONYMS ACHPR African Commission on Human and People’s Rights ADR Alternative Dispute Resolution AG Attorney General AJS Alternative Justice System(s) AU African Union CAM Court Annexed Mediation CIJ Customary and Informal Justice COVID-19 Coronavirus Disease 2019 CSO Civil Society Organization FIDA Federation of Women Lawyers ICJ International Commission of Jurists ICCPR International Covenant on Civil and Political Rights IDLO International Development Law Organization JLOS Justice, Law and Order Sector MOJ Ministry of Justice NGO Non-Governmental Organization SDGs Sustainable Development Goals SGBV Sexual and Gender-Based Violence TAWLA Tanzania Women Lawyers Association TOT Training of Trainers ULS Uganda Law Society UN United Nations UNDP United Nations Development Programme v 1. INTRODUCTION 1.1. BACKGROUND TO THE FORUM The ability to access justice is a crucial component of securing peaceful, just, and inclusive societies where effective and accountable institutions govern at all levels, as recognized by Sustainable Development Goal (SDG) 16 of the 2030 Sustainable Development Agenda. As noted in the recent report of the Task Force on Justice, a global justice gap affects 5.1 billion people globally and 4.5 billion are excluded from the social, economic, and political opportunities that the law provides, while 1.5 billion have a criminal, civil, or administrative justice problem that they cannot solve. Another 253 million people live in extreme conditions of injustice, without any meaningful legal protections.1 Countries in the East, Southern, and Horn of Africa are confronted by this justice gap and a key challenge for countries in achieving the 2030 Agenda as well as the African Union’s Agenda 2063, is to adopt and implement legal and policy frameworks that ensure equal access to justice for all. In September 2019, the Secretary General at the United Nations SDG Summit called for accelerated implementation of SDG 16. Key declarations such as the Declaration on Equal Access to Justice for All by 20302, the G7 Access to Justice for All in Conflict-Affected Countries Declaration and Joint Action Plan3 aim to help advance a Decade of Action for SDG 16. The Task Force on Justice made three key recommendations for accelerated action: (i) place justice at the heart of sustainable development; (ii) put people at the center of justice systems; and (iii) move from justice for the few to justice for all. While the demand for justice is great, pathways to justice are diverse and there are many complex challenges in the architecture, supply, and financing of justice. As efforts advance to prioritize and accelerate action, governments and other stakeholders must pay regard to the potential contributions of the full range of justice providers, in each local context, to meet international standards and goals. There is need for greater awareness
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