Access To Justice: Paving The Way For Alternative Dispute Resolution Mechanisms

  • Josephine Wairimu
  • 11 Jun, 2020
Access To Justice: Paving The Way For Alternative Dispute Resolution Mechanisms

Justice is a fundamental concept that is engraved in our social, political and cultural ways of life which entails impartiality and fairness to persons when rendering decisions. It has long been argued that the administration of justice has not been satisfactory. Roscoe Pound argues that as much as the law was intended to regulate relationships between individuals, its implementation by the law makers has largely resulted in injustice.  He argues that there has been immense dissatisfaction with the court system as well as the lack of respect for the law. The causes of dissatisfaction extend to matters of bureaucracy, length of time, distrust of the judicial officers by the public, and expenses to be incurred.

This 2-part series seeks to demystify the concept of access to justice and ADR mechanisms and how they play a vital role in the attainment of justice.

Introduction

The concept of access to justice has been enshrined in the Constitution under article 48 which states “The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.” This has ensured that opportunities to access justice are equal, fair to all persons and affordable. Article 159(2) recognizes that justice must be done to all on an equal basis, it shall be expeditious, and shall not have undue regard to procedural technicalities.  In this regard, Article 159 gives effect to the use of ADR mechanisms in dispute resolution. These include: reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. However there is a qualifying proviso in article 159(3) with regard to traditional dispute resolution mechanisms. It states that they must not: contravene the Bill of Rights; be repugnant to justice and morality in its outcomes or have that general effect; and be inconsistent with the Constitution or any written law.  Failure of such mechanisms to meet certain criteria will render the method inapplicable for use. 

In a 2014 commentary by Chief Justice (Dr. Willy Mutunga), he expressed concern about the need for and the use of ADR mechanisms which will in turn save time and reduce workload for the courts.  He mentioned that such methods are inexpensive and would save time in arriving at an amicable solution. The law also gives power to the court to refer disputes to ADR methods and any agreement arising from it shall be enforceable by the courts.  

I. Reconciliation/Negotiation

Reconciliation/ negotiation is the process by which two parties who are opposing each other are made to resolve their dispute amicably and restore the broken relationship. Fisher and Ury in “Getting To Yes” state that negotiation forms a big part of our day to day lives in that we use it in both formal and informal settings.  It is largely controlled by both parties to arrive at an amicable solution while engaging in discussions to determine the issues between them. One major example given is the Camp David negotiations conducted between the Israeli Prime Minister and Egypt’s President during the Six Day War of 1967.  

In Northern Kenya, negotiation has proved to be quite important since access to formal systems of justice may prove to be difficult and the state apparatus in the region is weak and largely unable to prevent, respond or resolve these conflicts.  The communities living here are nomadic; as such the never-ending conflicts revolve around scarcity of resources like water and pasture as well as conflicts brought about by cattle rustling and highway banditry.  In order to resolve conflicts there have been various peace initiatives that have been adopted as “peace committees” which consist of elders and influential community leaders representing various ethnic groups in the area.  As a result, there have been various successes in resolving disputes which have culminated into the drafting of “Declarations” and “Agreements” which resemble a law with sanctions for law-breakers. The ‘Modogashe-Garissa Declarations’ was a document resulting out of a peace initiative whose aim was to spell out solutions arising out of frequent conflicts in the area and provides methods of how to deal with the disputes. 

These initiatives have received various support from NGOs and Donors and have been adopted by the Office of the President, leading to the establishment of the National Steering Committee for Peacebuilding and Conflict Resolution, an umbrella body for all peace initiatives.  The Wajir Peace and Development Committee (WPDC) was formed by a group of educated Somali women in a bid to resolve conflict.  It began with a dialogue group, Wajir Women for Peace which discussed conflict prevention and later grew to Wajir Peace Group. The group continued their peacebuilding efforts with religious leaders, youth, and civil servants. It was formalised in 1995 as the WPDC, and was integrated as a sub-committee of the District Development Committee. 

In the case of Republic v Mohamed Abdow Mohamed,  the court discharged the accused after an application was made by the family of the deceased to the Director of Public Prosecutions, asking for the case to be withdrawn after the two families had arrived at a settlement after negotiations usually conducted pursuant to their customary practices. The accused had been charged with the murder of Osman Ali Abdi. According to their customary practices the families had arrived at a settlement after certain rituals were performed.  The learned Judge considered the application and made note of Article 157 of the Constitution giving the Director of Public Prosecutions the authority to discontinue criminal proceedings at any stage. This case however has elicited debate on whether this has now opened a Pandora’s box with regard to subjecting criminal cases to the ambit of ADR in attaining justice. 

II. Traditional Dispute Resolution

This method seeks to solve disputes by turning back to cultural means of resolving disputes. This may involve the parties seeking the assistance of the council of elders or chiefs in resolving disputes. In Kenya examples include Njuri Ncheke of the Meru, Kokwo of the Pokot and Oo-Olpaiyan of the Samburu.  This may be adopted but it is subject to certain qualifications that safeguard the human rights of the parties and seeks to uphold the rules of natural justice.  If the nature of the proceedings or the outcome(s) are contrary to any laws the decision is null, void and unenforceable. This method is used to solve family and land related disputes and it may extend to petty criminal offences. However the ambit of criminal jurisdiction is now conferred upon the courts by the Judicature Act. 

The dispute is presented to the council of elders who then summon the accused and a hearing date is set where the parties may also bring witnesses to testify in the case. A verdict will be delivered and enforced by the elders. One such example is the case of Republic v Mohamed Abdow Mohamed  where the case was withdrawn from the courts as the parties arrived at a settlement under Islamic Law and Customs. Compensation was paid by form of camels, goats and ornaments and a ritual performed to pay for the blood of the deceased to his family. Other examples include the Wajir Peace and Development Committee and Isiolo Peace and Reconciliation Committee which consist of multi-ethnic members and seek to resolve inter-community disputes by customary means.


References

[1] Roscoe Pound, “The Causes of Popular Dissatisfaction with the Administration of Justice”, Presented at the annual convention of the American Bar Association in 1906, at pp 1

[2] Constitution of Kenya, Art 159(2) (a), (b) and (d)

[3] Ibid, Art 159(3)

[4] Daily Nation “Witchdoctors can resolve your issues, CJ Willy Mutunga says” March 26 2014 http://mobile.nation.co.ke/counties/witchdoctors-Chief-Justice-Willy-Mutunga-/-/1950480/2258620/-/format/xhtml/-/gprajfz/-/index.html

[5] Civil Procedure Act  Cap 21 Laws of Kenya section 59C

[6] Roger Fisher and William Ury, “Getting To Yes: Negotiating An Agreement Without Giving In” Second edition by Fisher, Ury and Patton, Random House Business Books at pp 6

[7] Ibid at 24

[8]  Tanja Chopra, “Building Informal Justice in Northern Kenya” Legal Resources Foundation Trust (LRF) December 2008 at pp 1

[9] Ibid                                                     

[10] Ibid at pp 15

[11] Ibid at pp 2

[12] Ibid at pp 14

[13] Case 86 of 2011 [2013] eKLR

[14] Pravin Bowry “High Court opens Pandora’s Box on criminality” Standard Digital, June 12 2013 available at http://www.standardmedia.co.ke/?articleID=2000085732&story_title=high-court-opens-pandora-s-box-on-criminality&pageNo=2

[15] FIDA-KENYA, “Traditional Justice Systems in Kenya: A Study of Communities in Coast Province, Kenya” at pp 4

[16] Constitution of Kenya 2010, Art 159(3) as read with Art 27, 50,

[17] Judicature Act Cap 8, Laws of Kenya,  Section 3

[18] Case 86 of 2011 [2013] eKLR