AlternativeALTERNATIVE JUSTICE SYSTEMS FRAMEWORKJustice SystemsPOLICY Baseline Policy traditional, informal and other mechanisms used to access justice in kenya (alternative justice systems) August 2020 Copyright © Judiciary of Kenya, 2020 Published by The Judiciary of Kenya P.O. Box 30041 - 00100, Nairobi Tel. +254 20 2221221 First edition: August 2020 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the author or acknowledging the source except for the inclusion of brief quotations in a review. Cover photo: Allan Gichigi/UNODC Design and layout: Amina Darani/UNODC This publication was produced with technical assistance from the United Nations Office on Drugs and Crime (UNODC) and with the financial support of the European Union through the Programme for Legal Empowerment and Aid Delivery in Kenya (PLEAD). Its contents are the sole responsibility of the Judiciary of Kenya and do not necessarily reflect the views of the European Union or UNODC. JUSTICE AS FREEDOM1: TR ADITIONAL, INFORMAL AND OTHER MECHANISMS FOR DISPUTE RESOLUTION IN KENYA August 2020 Alternative Justice Systems Baseline Policy 1 This phrase is borrowed from Amartya Sen,Development as Freedom (Oxford University Press: Oxford, 1999). Accord- ing to Sen (at page 3), development should not be gauged solely from an economic perspective or opportunities that any project is likely to create. Rather, we need to take a transformative approach. This perspective entails reviewing also rights that any initiative promotes or curtails. Aligning AJS Mechanisms and Judiciary to the Constitution of Kenya (2010) and The Judiciary’s Blueprint for Sustaining Judicial Transformation TASK FORCE ON THE TR ADITIONAL, INFORMAL AND OTHER MECHANISMS FOR DISPUTE RESOLUTION IN KENYA Letter of transmittal Date: Friday, 17th August, 2020 Hon. Justice David Maraga Chief Justice and President The Supreme Court of Kenya NAIROBI. Your Lordship, RE: REPORT OF THE TASKFORCE ON THE TRADITIONAL, INFORMAL AND OTHER MECHANISMS FOR DISPUTE RESOLUTION IN KENYA: In line with the directive Your Lordship gave vide The Kenya Gazette (Special Issue) Gazette Notice. Vol. CXVIII-No.21, 4TH March 2016, P. 838. The Taskforce was required to examine the legal, policy and institutional framework for the furtherance of the endeavour by the Judiciary to exercise its constitutional mandate under Article 159(2)(c) and its plans to develop a policy to mainstream Alternative Justice Systems (AJS) with a view to enhancing access to and expeditious delivery of Justice as espoused in both the Judiciary Transformation Framework and Sustaining Judiciary Transformation (SJT), the blueprints for Transformation in the Judiciary. The Taskforce undertook its assignment diligently from April, 2016. We now have the great pleasure and honour to submit our Report to Your Lordship and to thank you for the opportunity to make our humble contribution towards defining the pathway for promoting AJS in Kenya. Accept, Sir, the assurances of our highest regard. Yours faithfully, ……………………………………………… Justice (Prof.) Joel Ngugi (Presiding Judge, Nakuru High Court) Chairperson iv | Alternative Justice Systems Baseline Policy Dr. Steve Ouma Akoth (Executive Director, Pamoja Trust) Vice- Chairperson Hon. Clara Otieno-Omondi, (Magistrate) Member Hon. Florence Macharia (Magistrate) Member Jedidiah Wakonyo (Commissioner, Kenya National Commission on Human Rights) Member Hon. Joan Irura (Magistrate) Member Hon. Justice Joseph Sergon (High Court Judge) Member Julie Matheka (International Commission of Jurists -Kenya (ICJ-K)) Member Kyalo Mwengi National Cohesion and Integration Commission (NCIC) Member Linet Njeri (Strathmore Law School) Member Maina S.N. Njema (Elder, Muranga) Member Alternative Justice Systems Baseline Policy | v Dr. Masha Baraza (Office of the Deputy Chief Justice) Member Morris Kimuli (Representative, Law Society of Kenya) Member Hon. Peter Mulwa (Judiciary/RMC) Member Chief Inspector Peter Thuku, (Kenya Police Service) Member Samuel Nderitu (Chartered Institute of Arbitrators- Kenya Chapter) Member Sheikh Ahmed Set (National Council of Elders) Member Dr. Steve Ouma (Deputy Director, Judiciary Training Institute) Member Timothy Mwichigi (Legal Resources Foundation) Member Tom Chavangi (National Land Commission) Member Vincent Monda (Representative, Office of the Director of Public Prosecutions) Member vi | Alternative Justice Systems Baseline Policy Acknowledgments During the final stages of developing this policy document, a colleague wondered why it should take so many years to develop a policy document. Well, we had no response. However, when the same colleague reviewed the draft that has been presented by the Taskforce, she con- cluded that, indeed, development of the policy document was an endeavour that explored many areas of uncertainty, which necessarily required the indulgence and involvement of diverse ac- tors. The Taskforce had its humble beginnings as a forum of dialogue between the then Chief Justice, Dr. Willy Mutunga and diverse Councils of Elders from all over the country. Shortly after that, the Judiciary incorporated the Alternative Justice Systems (AJS) as a central strat- egy for responding to the internal crisis of backlog within the Judiciary as well as an avenue for realizing the transformative intent of the Constitution of Kenya, 2010. We thus thank Hon. Dr. Mutunga for initiating this process and for his leadership in defining the path of the AJS Taskforce. Yet, the Taskforce would have realized but little had it not been for Chief Justice David Maraga who, upon taking office, extended the tenure of the Taskforce. Justice Maraga further ensured that the AJS were formally captured and in the Judiciary’s Strategic Plan (2017—2021) on Sustaining Judiciary Transformation. In this plan, AJS has been situated as a principal pillar and strategy for realizing the vision of Judiciary Transformation and access to Justice in Kenya. We are delighted the Taskforce completed its work and submitted this Final Report during the tenure of Justice Maraga as Chief Justice. When we set out to undertake this work, the Taskforce had no resources, yet the task at hand was both enormous and momentous. It is the Judiciary Training Institute (JTI) that almost single-handedly took up the enormous financial, administrative and convening obligations of the Taskforce. We were privileged to enjoy support from Retired Justice Paul Kihara (currently the Attorney-General) who was then Director at the JTI at the time of conceptualizing the AJS question and the mandate of the Taskforce. Later, after my tenure at the JTI, my predecessor the Late Justice Prof. Odek and the current Director, Justice Kathurima M’Inoti, continued to ensure that JTI remained the natural home of the Taskforce. The pedagogy of this Taskforce was that of learning and shaping our mandate to suit the path that has long been defined by the AJS actors all over the country. We have worked with mem- bers of Court User Committees, Judicial Officers and Councils of Elders from all parts of the country. To ensure a far-reaching learning and public engagement space, we made an invitation for memorandums from various interested parties. The response was overwhelming, with about 230 submissions received. We thank Kenyans from all walks of life who are justice seekers and providers for the privilege of learning from them and for their critical contribution in shaping this policy. The funding of this initiative brought together various actors who supported us at various stages and sometimes as a basket fund. In that way, they have made an investment that we do hope shall have far-reaching consequences in fostering effective access to justice in our society. At the nascent funding stage, the Taskforce received enormous support from civil society or- ganizations working on social justice, human and legal rights. Amongst those who offered this support were the International Commission of Jurists-Kenya (ICJ-K), the Federation of Women Lawyers of Kenya (FIDA-K), the Legal Resources Foundation (LRF), the Pamoja Trust, Kituo Alternative Justice Systems Baseline Policy | vii Cha Sheria, Usalama Forum, The Legal Resources Foundation, and the Public International Law and Policy Group, the GIZ and the Korogocho Social Justice Centre. We also wish to thank the World Bank for enormously supporting the Taskforce’s work through the Judiciary Performance Improvement Project (JPIP). Similarly, the Ford Foundation, the International Development Law Organization (IDLO), and the United Nations Food and Agriculture Organization (FAO) have given the Taskforce enormous financial support. Throughout the process, however, our core development partner has been the United Nations Office on Drug and Crime (UNODC) through the European Union-funded PLEAD project. We cannot thank UNODC and the European Union enough for both the technical and finan- cial support accorded to the Taskforce throughout the process of the generation of this Policy. In the preparation of this report, we have been very ably helped in different ways by Yvonne Oyieke, Dr. Linda Musumba, Dr. Edwin Abuya, and indeed all the Taskforce members. We deeply appreciate the earnest and scholarly efforts of Dr Steve Ouma Akoth, whose deep insights into the core issues of this field were most instructive. Amos B. Omollo, who did the final editing