by Geoffrey Imende & Esther Moraa
Introduction
Former United Nations Secretary General, the late Kofi Annan, was involved in international interventions in post-conflict regions such as Rwanda, the Balkans, and Sierra Leone. He appreciated that the international criminal justice system is insufficient in addressing the complex, localized needs of these societies. Instead, he suggested, local actors and institutions must be deeply involved in the process from the beginning to ensure the reforms are contextually appropriate, culturally sensitive, and sustainable. He is quoted as saying that;
“We must take a comprehensive approach to Justice and the Rule of Law. It should encompass the entire criminal justice chain—police, lawyers, prosecutors, judges, and prison officers—as well as issues beyond the criminal justice system. But a ‘one-size-fits-all’ approach does not work. Local actors must be involved from the start. The aim must be to leave behind strong local institutions when we depart.” [1]
Kofi Annan emphasized the importance of exploring alternative avenues for dispute resolution before engaging the formal judicial system. When such alternatives are available, judicial involvement should only occur when absolutely necessary and after those avenues have been fully explored.
In pre-colonial Kenya, disputes were primarily resolved by community councils of elders. However, with the introduction of formal legal structures by the British colonial government, these traditional methods were sidelined. Following independence, Kenya’s alternative justice systems continued to be marginalized.
In recent years, however, the Kenyan courts have recognized the value of Traditional Dispute Resolution Mechanisms (TDRM) as a complementary system to the formal judicial process. Former Chief Justice David Maraga, on August 28, 2020, launched the Alternative Justice System (AJS) policy aimed at reducing case backlogs and promoting culturally appropriate solutions to disputes[2].
What is Alternative Justice System (AJS)?
The Alternative Justice System (AJS) is the use of traditional, informal, or other non-judicial mechanisms to resolve disputes in Kenya. Operating outside the formal courts, AJS is deemed more legitimate when it emerges organically among the disputing parties. Article 159(2)(c) of the Kenyan Constitution explicitly recognizes Alternative Dispute Resolution (ADR) methods, including reconciliation, mediation, and arbitration, provided they do not violate the Bill of Rights, justice, morality, or the Constitution. Additionally, Article 11(1) of the Constitution acknowledges culture as a fundamental building block in Kenya’s nationhood.
Recognition of AJS by Kenyan Courts
Kenyan courts have increasingly integrated AJS into their processes. For example, on July 29, 2024, the High Court in Meru issued interim conservatory orders halting the impeachment proceedings against Governor Kawira Mwangaza. The court directed the parties to seek arbitration from the Njuri Ncheke Supreme Council of Ameru Elders before a specific deadline, recognizing the value of traditional dispute mechanisms. The court made it clear, however, that any resolution must align with constitutional principles, highlighting that judicial oversight remains the final authority.
In another landmark ruling in Constitutional Petition No. E013 of 2024, Justice Linus P. Kassan reiterated that decisions arising from AJS processes, while valuable, must not contravene basic principles of justice or humanity. For example, if the elders recommended a public whipping, the courts would reject such a resolution as retrogressive and inhumane.
AJS in Action: A Landmark Case
A recent ruling by Justice F. Gikonyo at the High Court in Narok sheds light on the practical application of AJS in Kenya. The case (Succession Cause No. 3 of 2022) involved a dispute over the division of property among the deceased’s three wives. The parties requested to resolve the matter through AJS, and on October 24, 2023, a resolution was reached.
However, a fraction of the family, unhappy with the outcome, convened another meeting and attempted to file a new resolution in court. The court upheld the initial AJS decision, condemning the act of excluding some family members from subsequent proceedings and stressing that dissatisfied parties should seek legal review rather than convening separate AJS sessions.
AJS Jurisdiction
In the ruling, the court outlined the key criteria for determining whether a matter qualifies for AJS:
- Agency Theory – AJS is valid when the parties authorize representatives, such as legal counsel, to act on their behalf during negotiations. This ensures that the parties’ interests are adequately represented and the resulting agreements are seen as beneficial.
- Constitutional, Statutory, or Public Policy Exclusions – Courts will not refer a dispute to AJS if constitutional, statutory, or public policy grounds prohibit it. In this case, there were no such barriers, allowing the AJS process to proceed.
Remedies for Aggrieved Parties
The court highlighted that if a party is dissatisfied with the outcome of an AJS process, they cannot unilaterally initiate a separate session. Instead, they should seek a legal review based on procedural impropriety or lack of proportionality. The court ultimately upheld the AJS resolution from October 2023, finding no evidence of impropriety.
A comparative study of “gacaca” in Rwanda.
Following the 1994 genocide in Rwanda which resulted in the death of approximately 800,000 people, the UN Security Council established the International Criminal Tribunal for Rwanda, which sought to prosecute persons accused of organizing of the crime of genocide, while the low-level suspects remained in the Rwanda prisons. However, the Rwandan government soon realized that the conventional judicial system would be unable to handle the overwhelming number of cases within a reasonable timeframe. Consequently, it introduced gacaca courts, a form of community-based justice rooted in customary law to adjudicate genocide-related cases. The gacaca courts were designed to involve local communities in the administration of justice. [3]
The first gacaca trials commenced in 2005, with the initial expectation of concluding before 2008; however, the process extended until 2010 when the last gacaca trial was completed. While these courts faced criticism for procedural deficiencies, including concerns about the fairness and consistency of judgments, the gacaca courts succeeded in adjudicating a vast number of cases that the conventional courts would have been unable to handle. The gacaca courts were instrumental in holding tens of thousands of individuals accountable for their participation in the genocide. It also contributed to the restoration of peace and reconciliation within the affected communities.[4]
Conclusion
While AJS is not explicitly established by the Kenyan Constitution, it is recognized under Article 159(2)(c), which promotes its role in dispute resolution. AJS was designed to complement the formal court system, easing case backlogs and offering culturally relevant resolutions. Courts generally uphold decisions made through AJS unless contested and varied through legal channels.
As Kenya continues to explore the potential of AJS, there is a need for the judiciary to invest in comprehensive training for AJS practitioners to ensure legal standards are maintained. Additionally, allocating resources to AJS and establishing accountability mechanisms will help prevent abuses of power and ensure the system remains effective. Public education on the benefits of AJS could further promote its use, making justice more accessible, especially for marginalized groups.
- UNDP. Access to Justice. Practice Note. (March 9, 2004). Remarks by the former Secretary -General of the United Nations, Kofi Annan at the Ministerial meeting of the Security Council on Justice and the Rule of Law. Available at: https://www.undp.org/sites/g/files/zskgke326/files/publications/Justice_PN_En.pdf ↑
- Judiciary of Kenya. Alternative Justice System Framework Policy, Traditional, Informal and other mechanisms used to access Justice In Kenya (Alternative Justice Systems). (August 2020). Available at AJS_Policy_Framework_2020_Kenya.pdf (unodc.org) ↑
- Shannon E. Powers. American Society of International Law; Rwanda’s Gacaca Courts: Implications for International Criminal Law and Transitional Justice (June 23, 2011). Available at Rwanda’s Gacaca Courts: Implications for International Criminal Law and Transitional Justice | ASIL ↑
- Human Rights Watch, Justice Compromised; The legacy of Rwanda’s Community- Based Gacaca Courts. (May 31, 2011). Available at: Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts | HRW ↑