Effect alternative justice beyond tokenism

A few days ago, the Judiciary launched an alternative justice policy to provide anchorage and mechanisms for mainstreaming and upholding alternative and traditional mechanisms practised by communities in resolving their disputes.

The policy underscores the fact that it is not seeking to create but recognise and provide space by which these practices can continue to be utilised to resolve disputes and their existence and outputs not just appreciated but respected by the formal justice system.

The background to the policy is traced to the decision of the first Chief Justice under the Constitution, retired Chief Justice Willy Mutunga. Following a meeting with elders from several communities, he made a pronouncement of his deep belief that traditional dispute resolution mechanisms were a fundamental part of the justice system and needed to be given greater prominence.

In 2016, he then appointed a task force to give meaning to Article 159 (2)(c) of the Constitution, which mandates the Judiciary to promote alternative justice systems(AJS). The policy, which was developed and launched, defines alternative justice systems as, “both a philosophical concept as well as a practice for accessing justice”. As a practice, it is seen as referring to “initiatives that can be taken to attain equality and equity for all members of a particular cultural, political and social identity.” AJS operates outside the formal justice system comprising largely of courts.

The adoption of the policy marks a fundamental shift in the conceptualisation of justice as that dispensed by courts. It enables our policy to match our reality, a reality that has a majority of disputes being resolved outside court systems. Despite the importance of the Judiciary as one of the three arms of government and being the one responsible for resolving disputes, statistics demonstrate that its work accounts for around only 10 per cent of all disputes handled in the country. To the mainstream, the avenues that account for the remaining 90 per cent is a laudable step.

This recognition also speaks to a larger point, which is the need to decolonise our legal philosophies and practices. For long, arguments have been made to demonstrate that we over-glorify Western practices and rules and disregard our cultural norms.

Consequently, our lived realities do not inform our laws and policies. Departing from this approach that ghettoises our cultures is a fundamental step towards improving not just our systems but our democracy.

However, the policy must be translated into practice. We must see a concerted effort at delineating cases to be resolved through alternative justice systems. This will not only help in reducing case backlog but it will also enhance confidence in the justice system since communities will see their dispute resolution structures and their outcomes respected and utilised to resolve matters that sometimes lie in courts for long unresolved.

Resources are going to be critical. The Judiciary’s yearly budget is closer to Sh20 billion, even though this is less than what it annually requests. From the percentage of cases it resolves, it means that by using AJS more centrally we must realise that the financial implication is such that if these matters were to go to court we may require nine times more in allocations to the Judiciary. When land disputes were being handled by land disputes tribunals, one of the challenges was a lack of finances. Tribunals also do not receive commensurate budgetary allocations. The passage of the policy must lead to reasonable financial allocations to enable AJS to be operationalised and utilised.

In rolling out AJS, as the policy correctly recognises, we should not over-glorify it. It has its shortcomings. Its past application has at times suffered from complaints of human rights violations and non-accommodation of gender concerns. This should be reformed so that its application conforms to the constitutional dictates, which call for fairness and objectivity and equity. This should not be a basis for continued ossification of customary practices but their reform in application to address this past shortcoming.

The responsibility for breathing life into the policy transcends the Judiciary and requires the engagement of many stakeholders and actors, including the other two arms of government.

In the process though, we should ensure that we maintain the unique features of Alternative justice systems and customary rules which include flexibility, being ingrained in community realities and activities and their non-codified nature. If we over-formalise them, they run the danger of suffering the disadvantages of the court system, including costs, formalities, and slow speed. Already some of the accusations have been raised about some of the alternative dispute resolution (ADR) mechanisms. AJS must not go the same route of trying too hard to ape the court processes for to do so will deny it its unique features that make it the avenue for resolving majority of the disputes that citizens face in the country.