One of the objectives of access to justice is to ensure that all citizens can, on the bare minimum, enjoy a mode of adjudication of issues that is easily accessible. Article 159 (2) (c) of the Constitution recognizes that one of the principle of access to justice that should be promoted is the alternative forms of dispute resolution. These include, but are not limited to, reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. These forms of dispute resolution mechanisms are also engulfed in the human rights discourse. In fact, in the recent years, there has been recognition on the importance of the informal justice system. Organisations such as the UNDP, UNODC, and LRF among others have supported government in both the formal and informal system. This move being a need expressed by the court users. The need for the informal system of justice was occasioned by the challenges court users constantly face when seeking access to justice through the courts, tribunals and other judicial mechanisms. These challenges which are considered perennial have been documented to include:
- Long delays;
- Prohibitive costs of using the system;
- Lack of available and affordable legal representation;
- Legal systems that fail to provide preventive, timely, non-discriminatory, adequate, just and deterrent remedies;
- Inadequacies in existing laws that effectively fail to protect women, children, poor and other disadvantaged people, including those with disabilities and low levels of literacy;
- Lack of de facto protection, especially for women, children, and men in prisons or centres of detention;
- Lack of adequate legal aid systems; and
- Avoidance of the legal system due to economic reasons, fear, or a sense of futility of purpose.
All these challenges, for a developing countries such as Kenya, pose deterrent growth in economic and social services. Resultantly, most players in the justice system have embraced the spirit of the Constitution, to ensure justice for all without due regard to technicalities.
The use of ADR has gained momentum over the last five years through Court Users Committees (CUCs). Through CUCs the justice system has taken steps towards employing ADR to reduce case backlog. Case backlog, which is occasioned by delays in the formal justice system, has been identified by most analysts and human rights defenders, as one of the most notorious impediments to access to justice. In order to alleviate the situation, efforts have been made through inter agency support towards CUCs. Various court stations have CUCs proffering need based trainings on ADR especially for succession and land disputes. These trainings target chiefs, police, local community organisations and elders being the most accessible authorities at the ward level. These trainings ensure that the employment of ADR is within the confines of acceptable laws as they are done in the most effective way. The trainings are then followed up by approaches through community engagements that invite litigants to try court sanctioned ADR in the first instance. This approach is governed by rules upholding fairness and equality for all who attempt it. It is envisaged that ADR will invariably lead to a reduction of case backlog particularly petty offences and administrative disputes thereby decreasing the number of cases pending. The approach easily acceptable by local communities that understand ADR as compared to the formal court process. ADR mechanisms were historically used by communities as the primary resolution of disputes. Each community had a recognised ADR system well known to them and practised. The familiarity of the system therefore ameliorates its sustainability in resolution of disputes that do not necessarily need court intervention. It is therefore imperative for the justice sector to works in synchrony with CUCs that are advancing ADR by providing support and accountability. ; gearing towards a just outcome.
Finally, informal justice systems have come full cycle. This is evidenced by history documenting the existence of an operational justice system pre colonization in Kenya. The formal justice system was just introduced by the colonialist because they did not understand it the informal justice system and furthermore needed the colonised yield to a sort of control. The situation spread and existed for over a century and continues to exist. That system with continuous gaps that the Constitution through wanjiku recognised and chose to correct. It is now our place as Advocates, judicial officers, chiefs, police, probation officers and non-governmental organisations to advance the movement. It when we embrace that which we nurture, that we improve, and apply our local solutions to local problems for a just society.
Published in LSK The Advocate March 2019