On 27th August 2020, the Judiciary led by the Chief Justice (Hon. David Maraga) launched the Alternative Justice Systems Baseline Policy and Policy Framework (AJS Policy), which seeks to “align AJS Mechanisms and Judiciary to the Constitution of Kenya (2010) and the Judiciary’s Framework for Sustaining Judicial Transformation”. The launch of the AJS Policy was the culmination of the work of Taskforce on Alternative Justice Systems, formed in March 2016 to examine the legal, policy, and institutional framework at Alternative Justice Systems (AJS) (i.e., traditional, informal, and other mechanisms). This is to give effect to the Judiciary’s constitutional mandate under Article 159(2) (c): “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted."
The AJS Policy recognizes the importance of justice systems outside the court system, based on the Justice Needs and Satisfaction in Kenya survey (by the Judiciary, together with the Hague Institute for Innovation of Law), which found that only 10% of Kenyans use the formal justice system to resolve their disputes. This means that about 90% of Kenyans result in traditional, informal, and other mechanisms to resolve their disputes. Nevertheless, the existing traditional and informal disputes resolution models were coupled with various challenges such as:
i. Lack of formal recognition.
ii. Gender injustices against women as the majority of the decision-making bodies are male-dominated and do not provide room for women decision-makers.
iii. Exclusion of marginalized and vulnerable groups
iv. Lack of proper regulation and thus limited accountability.
Therefore, the formalization and institutionalization of AJS underscore the significance of AJS in facilitating speedy and cost-effective access to justice and significantly reducing the backlog of the cases that have embedded the Judiciary for ages. Furthermore, the institutionalization of AJS in the Judiciary will significantly promote, preserve, and protect the marginalized and vulnerable groups' fundamental human rights and further the principle of public participation as enshrined in Article 10 of the Constitution. AJS will also preserve, promote, and protect cultures among the people in this modern era. Besides, AJS will enhance the concept of diversion, allowing perpetrators of petty offences to be dealt with outside the criminal justice system, thus reducing the reliance on incarceration. This will have a two-fold effect:
i. To promotes restorative justice rather than retributive justice, as AJS is not adversarial.
ii. To alleviates the burden from the overcrowded prison system.
Below are highlights of the AJS Policy.
This analyses 4 models of AJS, which are pre-existing in most societies:
i. Autonomous AJS Institutions: These are run fully by the community who will be responsible for the selection and approval of ADR professionals and the creation of processes and procedures to guide the dispute resolution process.
ii. Autonomous Third-Party AJS Institutions: These fall into 2 categories- state-mandated institutions (i.e., chief, police, village elders, etc.) and non-state mandated institutions (i.e., religious leaders, social group leaders from NGOs and CSOs).
iii. Court-Annexed AJS Institutions: These are under the Court's guidance and partial involvement, which uses mechanisms from the community-based model and the formal justice system.
iv. Regulated AJS Institutions: These are created and regulated either entirely or partially by statute. The creation and regulation through statute mean that these AJS institutions are part of the State-based dispute resolution systems. The third parties involved are, in certain instances, remunerated by the State. Examples of these practices of AJS can be found in South Sudan, South Africa.
Accordingly, the policy recommends that only the first 3 AJS models should be used, respected, preserved, and promoted in Kenya and that the Regulated AJS Institution should not be introduced in Kenya. The conclusion was based on collected data, discussions by the Taskforce, the lived realities and practices of Kenyans, and the opinions of experts on AJS.
Operational doctrines of interaction between Courts and matters determined by or before AJS institutions
The policy also acknowledges that in the operationalization of the 3 AJS models, there will be an inevitable interaction with the already established formal justice system (i.e. the court system). However, such interaction will further promote access to justice as encapsulated in Article 48 and enhance the right to fair hearing as envisioned in Article 50. As such the two systems will inevitably lead to speedy access to justice and the promotion of our constitutional values and principles. Further, the interaction of the two systems promotes the need to develop an appropriate balance between civic autonomy and constitutional values.
Consequently, the AJS Policy advocates that to ascertain the nature of the interaction of the AJS models and the court system and the appropriate recourse, it is critical to establish and affirm the agency of the individual involved. The guiding question in establishing the agency is whether the individuals in an AJS-based dispute have voluntarily submitted themselves to the jurisdiction of the AJS institution or not. If the answer to this question is in the affirmative, then the Court interacting with AJS has to confirm that the process and outcome adhere to the following parameters:
i. The protection, respect, and fulfillment of fundamental rights in the Bill of Rights;
ii. Commitment and adherence to constitutional values under Article 10 of the Constitution;
iii. Promotion, protection, respecting, and transformation of AJS (hence the ‘Respect, Protect and Transform’ framework), and;
iv. “Applying the Reasonable and Justifiable Standard Test contextually" or, in other words, "A Contextual Repugnancy Text."
Notwithstanding the above, the Courts will still need guidance on how to interact with AJS disputes in a consistent, transparent, and transformational manner with a view of striking the appropriate balance between civic autonomy and constitutional values.
Accordingly, the policy establishes six standards of interactions between Courts and AJS processes and how the interactions should be addressed. These are:
i. Avoidance: This applies in instances where the Courts ignore previous AJS proceedings and awards. This is deemed contrary to Article 159 of the Constitution, which requires the Courts to promote traditional and other dispute resolution forms.
ii. Monism: This is when awards from the AJS mechanism appeal to the Courts (De novo review of both facts and law). The Courts should respect the workings of AJS forums and realize that parties in an AJS forum come up with solutions to their dispute, and Courts should only be concerned with procedural propriety and proportionality of the process without interfering with party autonomy.
iii. Deference: This is where the Courts review AJS cases for procedural propriety and proportionality only. This is the most appropriate interaction between the Courts and AJS.
iv. Convergence: In such instances, the Courts defer to the AJS process only when both parties agree. Parties have a right to have their dispute heard by a Court of law and only when they agree to have their dispute resolved in a separate forum should the Courts direct them to go there. However, this approach would fetter the Courts' duty to promote AJS. There is a need to acknowledge that AJS is a dispute resolution forum just like the Courts: the end game is getting a dispute is satisfactorily resolved. It would be necessary to give judicial officers the freehand in assessing matters in the docket and encourage parties to give AJS a chance in appropriate cases even where one party is not agreeable.
v. Recognition and enforcement in the mode of arbitral awards: It applies to cases where the award made by an arbitrator is final and binding on the parties to it. Either party can file the award in Court for recognition and enforcement. In that sense, the Court only ensures that the award conforms to the requirements of a valid and enforceable award and does not delve into the arbitrator's facts and findings unless the award is totally unconscionable or offends public policy. If the Court declines recognition for any reason, it does not substitute the arbitrator's decision with its own decision. Instead, it refers to the award back to the arbitrator to do the correct thing and issue an award that conforms to legal requirements—this interaction between Courts and AJS decisions received from autonomous AJS forums.
vi. Facilitative interaction: This occurs where AJS awards/processes are taken as providing evidence for the parties in the Court process. The parties could have attended an AJS forum, e.g., a clan's dispute resolution meeting where the elders made a decision. That decision then comes to Court, not as an award by the elders for enforcement, but as evidence supporting the resolution of a dispute pending before Court in consonance with the recommendations contained in the clan elders' minutes.
In such an instance, the Court will still have to play its role in determining such evidence's weight and relevance before making its own decision. This is a common interaction between Courts and AJS. The Court should admit the same after confirming procedural propriety was adhered to during the local meeting where such reports or minutes are presented.
Strategic policy intervention areas
The Policy acknowledges that despite Article 159, which provides Kenya's opportunity to promote alternative forms of dispute resolution, Kenya has not developed a policy and legal framework to adopt and implement traditional justice mechanisms. Accordingly, it creates a methodology for formalizing AJS in Kenya and operating within the Constitutional framework through 5 Strategic Interventions as discussed below.
Recognition and identification of the nature of cases AJS can hear
The policy mandates the Judiciary to formally recognize Alternative Justice Systems as an access to justice tool and widen the scope of AJS for the provision of the full spectrum of access to justice while ensuring that there are safeguards that will recognize the rights of individuals who seek redress. The policy outlines various interventions that will aid in the achievement of this strategic goal such as; Designing and operationalizing a framework that promotes appropriate interactions between the Judiciary and the various models of AJS to give effect to the constitutional use of alternative justice mechanisms, Outline and gazette guidelines that recognize and adopts the three models of AJS, Promote AJS as a forum of the first instance for appropriate cases, Train Judicial Officers on appropriate applications of the agency principle on the jurisdiction of AJS Mechanisms and the operational doctrines of interaction Train Practitioners of AJS and the public on the appropriate jurisdiction for AJS Mechanisms among other interventions.
Strengthening the processes for selection, election, appointment and removal of AJS practitioners
In collaboration with other government agencies in the justice sector, the Judiciary shall work in partnership with AJS mechanisms to enhance AJS practitioners and judicial officers' competence and accountability. This will be achieved through various interventions, including; establishing objective systems that guarantee all-inclusive AJS panels, designing appropriate application processes and eligibility standards to ensure the inclusion of women, youth, and persons with disabilities as AJS practitioners, building the capacity and empower AJS practitioners and judicial officers in functionality and basic fundamental principles touching on cross-cutting issues, developing procedures and guidelines on the principles of the Constitution and standards for human rights for AJS practitioners and establishing a quality assurance framework and a regulator for AJS practitioners. Whilst it is imperative to acquire AJS professionals who are competent and have an appropriate skill set, they will be required to demonstrate knowledge of local languages and their customs. They will be required to take an oath, which will be administered by the relevant judicial officers.
Develop procedures and AJS jurisprudence
The AJS mechanisms and the Judiciary shall co-operate and deliver substantial and procedural justice, through the application of customary law in compliance with the Constitution and human rights principles. This will be done through intervention such as; identifying cultural and social practices in conflict with the Constitution and human rights standards, operationalizing AJS through the development of a Standard Operating Procedures Guidelines that will enhance compliance with the Constitution and human rights principles, facilitating the adoption of the following Operational Doctrines of interaction between Courts and AJS processes: Deference, Recognition and Enforcement, Facilitative Interaction, and Convergence. These procedures will be created with the following considerations:
i. Minimum procedural requirements for AJS sessions.
ii. The procedural requirements to be codified in the law.
iii. The balance between constitutional values and traditional practices that may be considered "harmful."
iv. Preserving the development and growth of African Customary Law.
It is important to note that the legitimacy and acceptance of the procedure would go far in securing support for the AJS and its continuity.
Facilitate effective intermediary interventions
All individuals or groups and communities using AJS mechanisms shall have the right to representation. However, it was found that the use of lawyers and paralegals has been seen to be a stumbling block to accessing justice due to high costs and complicating the issues at hand. This will be actioned through; developing and adopting guidelines for intermediaries (other than lawyers and paralegals), developing a Code of Conduct and ensuring that all accredited AJS practitioners in the country have the skills required to provide such services professionally and ethically, developing infrastructure to encourage the use of intermediaries.
Strengthened and sustainable resource allocation and mobilization
The policy obligates the State in collaboration with other stakeholders to facilitate resource mobilization and management for the development and enhancement of AJS mechanisms. The interventions include; promoting a philosophy of self-sustenance by the AJS mechanisms, developing a targeted budget for AJS mechanisms, leveraging domestic resources, enhancing coordination for resource mobilization among the different actors, including multilateral and bilateral partners.
The Judiciary's launching of the Alternative Justice Systems Baseline Policy and Policy Framework signifies a new dawn for our justice sector. It marks the official formalization and integration of the traditional and the informal and other methods of resolving disputes in our justice system, therefore, breathing the required life to Article 159(2) (c) of our Constitution. Undeniably, it will help expeditious and cost-effective access of justice at every corner of the country; reduce the congestion and the cases backlogs in our courts and help resolve disputes while promoting, protecting, and respecting our fundamental human rights, cultures and ethos.