Alternative Justice Systems in Kenya

An Access to Justice Novelty or Institutional Co-optation?

Abstract

The Judiciary’s Task Force on Alternative Justice Systems introduced into the Kenyan judicial system what it referred to as novel ways of achieving access to justice (A2J) called, in its terminology, Alternative Justice Systems (AJS). This paper is a critique of these systems as proposed by the Task Force and implemented by the Judiciary. The paper begins by providing a brief overview of the development of the concept of Access to Justice (A2J) since the 1970s, from what has been referred to as rule of law orthodoxy (the focus on reforms in the judicial system), through social justice (the attempt to connect A2J to other aspects of the society in which it operates), to legal empowerment (use of the legal system to tackle socio-economic issues affecting the society, especially the poor). It briefly discusses the concept of A2J as it is applied in Kenya in its Rule of Law orthodoxy form, and the various models of AJS the Task Force identified; its recommendations regarding the models of AJS that should be introduced and how they should be implemented; the constitutional context of AJS, and the statutory basis and process of adoption of AJS as an approach to A2J. In the critique, the paper argues that the Task Force did not have a basis for deriving AJS from the constitutional context; that models of AJS being implemented are dispute resolution mechanisms and do not address disempowerment; that their conceptualisation and implementation are Judiciary-driven and
are not organically developed, and that the implementation will be heavily influenced by the Judiciary and, therefore, make AJS simply a mechanism of the Judiciary for resolving its challenges in relation to A2J. The final critical comment the paper makes is that any claim by the Task Force and the Judiciary that adoption of AJS represents a paradigm shift and a novelty is not borne out in reality, since AJS does not confront the social problems of socio-economic disempowerment engendered by the capitalist system in Kenya, and within which the Judiciary operates and attempts to enhance A2J.