Alternative Justice Systems and the katiba: Judge Ngugi’s keynote

On the 20th of April we held a workshop on Cultural Rights in Action: from global policy to local practice at the BIEA, Nairobi.  The workshop offered our researchers the chance to tell our Kenyan contacts and colleagues about the work they’ve been doing. It also gave us the chance to hear what they think about cultural rights issues.

We were very pleased that High Court Judge Joel Ngugi agreed to give the keynote address.  His paper Operationalization of Alternative Justice System: Cultural Rights in Action or Cultural Appropriation was about his work on the Taskforce set up by Chief Justice Willy Mutunga in 2016.  Judge Ngugi heads this Taskforce which has 19 other members, including Dr Steve Akoth, a member of our research team.

Article 159 of the constitution states:

(c) alternative forms of dispute resolution including

reconciliation, mediation, arbitration and traditional dispute

resolution mechanisms shall be promoted, subject to clause

(3);

However, it also limits their powers:

(3) Traditional dispute resolution mechanisms shall not be used

in a way that—

(a) contravenes the Bill of Rights;

(b) is repugnant to justice and morality or results in outcomes

that are repugnant to justice or morality; or

(c) is inconsistent with this Constitution or any written law.

The Taskforce is attempting to deal with potential issues and conflicts arising from this part of the constitution.

Judge Ngugi said that historically all communities in Kenya practised some form of African Customary Law and that since colonial times governments have sought to regulate it in several ways.  He argued that the effects of this had been worse than a mere ban because it had caused the law to mutate.  The Taskforce is looking into several complex issues that arise from the formalisation of African Customary Law and Alternative Justice Systems.  For example, how do you ensure that decisions taken through these methods adhere to the values laid out in the constitution? What are the limits of powers of alternative justice, can they be used to settle disputes of any nature or are some issues beyond their remit, if so which ones?  The Taskforce is also keen to ensure that African Customary Law continues to evolve rather than ossify, since there is a danger that by formalising it you remove its flexibility and ability to develop.  Finally, the relationship between alternative forms of justice and the written law needs to be made clear.

We will be following the work of the Taskforce with great interest.

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