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SHOULD ALTERNATIVE JUSTICE SYSTEMS BE USED TO TRY CRIMINAL CASES?


While the potential impact and consequence of Alternative Justice Systems are undisputed, their reach and applicability within a litigation propelled legal system remains questionable. In particular, its applicability to criminal cases raises great contention.


What are Alternative Justice Systems?


Alternative Justice Systems are essentially systems put in place in order to drive the use and formalization of customary law methods of dispute resolution pursuant to Article 159(2)(c) of the Constitution of Kenya. Thus, AJS is synonymous with traditional, informal and other mechanisms used to access justice in Kenya.


The initial propagation of such a system was first performed through a directive issued by the previous Chief Justice, Hon. (Dr) Willy Mutunga in 2015 in regards to the creation of a taskforce that would study the legal, policy and institutional framework of around the area and thereafter create an AJS policy that would be able to embellish the AJ system and formalise it for greater use. However, even within the creation of this policy, its applicability to criminal cases remained unanswered and undetermined.


Why it is easier to solve civil cases through the method of AJS as opposed to criminal cases?


The contention raised on the applicability of the criminal justice system to Alternative Justice Systems (AJS) arises because of two main reasons:

  1. The purpose of the criminal justice system- Its purpose is to punish and rehabilitate; in some instances, even deter. Allowing criminal cases to be solved through the AJS is complicated since it may lead to a surge of belief that crimes such as murder, rape and defilement can be sorted out through ‘less harsh means’ which may be deemed as not retributive enough.

  2. The parties that bring the cases- In a civil case, the parties in dispute usually bring their cases to court to solve them. However, in criminal cases, the state is the party that brings the case to court, not the victim of the case. Thus, it is usually up to the state to decide how to charge and prosecute the accused and with what means. This means that the state would have to allow criminal cases to be solved through other means of dispute resolution. The victim’s family or the victim would usually not be able to make such a decision.

An example of a successful criminal case solved through AJS


The first instance in which customary law was applicable to a criminal case is highlighted in R v Mohamed Abdow Mohamed. Within this case, the accused was charged with murder towards Osman Ali Abdi. When asked to take a plea, he pled not guilty. However, as the trial progressed, the deceased victim’s family asked that the charge be withdrawn against the accused due to a settlement that had been reached between the parties. This was affixed through Islamic law, traditional law and customs through the paying of blood money and the performance of rituals to satisfy the crime committed.


This was an unprecedented case because it led Judge Lagat-Korir to decide between the punitive purpose of the criminal justice system and its function in aiding the potential victim and their family achieve justice for the ills faced.


After the settlement request made by the family, the judge was initially hesitant to allow the case to be settled through informal means- knowing the effect that her action would have in further criminal matters that may arise that would have a solution within AJS. However, as a consequence of the adamance of the victim’s family, no witnesses agreed to testify against the accused- stating that as the matter was solved between the community, there was no need for their interference in


formal court. Thus, Judge Korir decided that in the interests of justice and the pursuance of such, that as the matter was sorted and solved between the interested parties in the case, it only made sense to discharge the accused and allow the matter to be solved in a manner other than through formal litigation.


The potential disadvantages of allowing criminal cases to be solved through AJS


The main disadvantage is fundamental conflict between dispute resolution mechanisms. This means that there could be a potential undermining of the role of the court if AJS is encouraged in some cases. However, it is important to note that AJS is conducted systematically and it has been formalised consequent to the policy released by the taskforce appointed by Dr Willy Mutunga.


The potential advantages of allowing criminal cases to be solved through AJS


There are several advantages that may come about as a result of AJS. These are less case backlog within the judiciary, the appreciation and understanding of the roles of traditional methods of dispute resolution and informal methods of access to justice within the Kenyan society, a step towards decolonisation and the lessening of state monopoly on the law.


Case backlogs would be reduced since there would be further dispute resolution mechanisms put in place to solve crime other than mere judicial court systems. Additionally, the Kenyan legal system is currently heavily influenced by British colonial laws. Thus, the encouragement of AJS would ensure that the citizens of Kenya are being judged by their own customs and traditions and not those of their colonisers and it would lead to peer-led judgement as opposed to state-imposed judgement that can sometimes be of arbitrary nature. As a result, there would a consequent decolonising of the criminal justice system because of the perpetuation of AJS.


Recommendations

As capital offences will always be in contention, the court should encourage the use of AJS in petty criminal offences. However, if it is shown that AJS will be more successful in a certain case, the judges should allow themselves to be open minded to the concept if they believe that it will aid in the access to justice. All judges should therefore undergo training on AJS to enable them to correctly identify cases that may benefit from them.


However, as also highlighted in the policy, sexual offences should mostly be tried in a formal litigation setting as such cases are usually sensitive and when community driven, may potentially lead to injustice. Thus, while AJS should be encouraged in petty criminal cases, it should be analysed on a discretionary, case to case basis by the judges involved to ensure the fulfilment of justice.


Furthermore, a system of court-annexture may be introduced for criminal cases- as it is already applicable within civil cases, allowing the courts to consider traditional customs when making their decisions but not wholly forgetting the role of the courts in making the final judgement in regards to the case.


The future of AJS


While AJS does have several advantages, it does demonstrate the availability of a disadvantage too. However, as stated above, it may lead to a justice system that fully embodies the traditions and cultures of its citizens.


What do you think? Do you believe that AJS is a system best left to civil cases or do you believe, as I do that despite the potential conflicts, its integration within the criminal justice system is needed for our country to proceed and develop further into its next stage of actualization and development?


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Name: Tasneem Zoher Pirbhai

Division: Criminal Justice System

Strathmore Law Clinic

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