The European Union and the United Nations Office on Drugs and Crime (UNODC) have welcomed the launch by Chief Justice David Maraga of a major policy to mainstream customary forms of justice. The two were key partners in the policy’s development.
The Alternative Justice Systems (AJS) Baseline Policy and associated policy framework were symbolically released on Katiba Day on the 10th anniversary of the promulgation of the Constitution of Kenya.
The Constitution obligates the Judiciary to promote traditional methods of dispute resolution.
For the past two years, the EU and UNODC have supported the Judiciary and its multi-stakeholder Task Force on the Traditional, Informal and Other Mechanisms for Dispute Resolution in Kenya (AJS Task Force) with formulating the policy and determining the viability and concrete means of mainstreaming AJS.
Speaking at the launch at the Supreme Court, the Chief Justice, David Maraga said: “The formulation of the Policy marks an important milestone in Kenya’s endeavour towards the fulfillment, respect, observance, promotion and protection of the right to Access to Justice. The Policy gives effect to Article 159(2)(c) of the Constitution, which is the legal and constitutional framework on the multiple systems for dispute resolutions in Kenya.”
EU Ambassador to Kenya, Mr. Simon Mordue said he hoped the AJS Policy would have far- reaching consequences in fostering effective access to justice for all Kenyans.
“What’s being launched today is a cornerstone policy for Kenya, one that will ultimately bring customary and traditional means of dispute resolution from the periphery into the mainstream and recognize the legitimate place of alternative systems in contemporary justice administration in this country,” Ambassador Mordue said.
“I urge decision makers to put the necessary structures in place to ensure the success of AJS mechanisms and processes, as envisioned in the Constitution and underscored by the Taskforce,” he added.
As key partners to the Judiciary in this policy’s development, the EU and UNODC have provided wide-ranging support through the Programme for Legal Empowerment and Aid Delivery in Kenya (PLEAD).
This has included engaging several expert consultants who reinforced the Task Force and assisted with the policy and framework drafting processes, staging more than eight working retreats and discussion forums, and communications support including video production, graphic design and printing services.
In upholding international standards and norms, UNODC has taken great interest in the policy’s intent and content, for example, on such aspects as protection of the most vulnerable and the nature of cases appropriate for AJS, including contributing to the debate on cases of sexual and gender-based violence.
“It’s been a privilege for UNODC to partner with the AJS Task Force and the EU in the complex process of developing the baseline policy and framework,” the UNODC regional representative for Eastern Africa, Dr Amado Philip de Andrés, said.
“The process of mainstreaming AJS has received a boost today, but much remains to be done to ensure the policy is fully adopted and that the strategic objectives and overall recommendations of the Task Force are addressed. UNODC remains committed to supporting the full adoption of the policy,” Dr de Andrés added.
Kenyans from all walks of life have contributed to shaping the AJS Baseline Policy, including councils of elders, civil society organisations and court users committees, and are now expected to be instrumental in operationalising it.
A Justice Needs Survey conducted in 2017 suggested that up to 95% of disputes in Kenya were resolved through informal and non-state-based means outside the confines of courts. These informal means include a myriad of dispute resolution processes of which AJS is just one.
One specific PLEAD target is to achieve a 50% reduction in the backlog of criminal cases by 2022. By dealing with appropriate disputes quickly and more cost-effectively, AJS is seen as an effective mechanism for reducing case backlog in the courts.
AJS may be defined as the administration of justice by the people using their culture, customary law, practices and beliefs to resolve disputes. It is a form of restorative justice, aims to ensure social inclusion, and is generally more affordable, participatory and more expeditious than court processes.
Alternative justice processes help to reduce the burden on courts and are meant to strengthen the links between formal and informal justice systems rather than replace the reliance on courts.