SDG16+ Champions of Change
A New Role for Traditional Justice: Kenya’s pioneering Alternative Justice System policy
Champions of Change is an initiative started by the Pathfinders to highlight advocates who have made an impact in their communities and helped to create peaceful, just and inclusive societies (SDG16+). It provides an opportunity to feature individuals, businesses, and organizations doing extraordinary things to empower and inspire members of their communities.
In this Pathfinders Champions of Change interview, justice sector consultant, Susan Lee explores how the AJS Policy was ushered through the Kenyan Constitution — from its conception to the current implementation.
We hear from Retired Chief Justice of the Republic of Kenya, Dr. Willy Mutunga, on the context in which the policy was developed, as well as his advice for other justice leaders seeking to stimulate the shift towards people-centered justice.
Reflecting the ethos of collaboration found within AJS policy, the interview also includes insights from the Executive Director of Kituo Cha Sheria, Dr. Annette Mbogoh. Kituo Cha Sheria is a civil society legal advice center that is contributing to the AJS Policy’s implementation. It is also Kenya’s oldest legal aid organization. Dr. Annette expands on reasons for the policy’s success and explores the future needs to deepen and sustain its impact.
The Justice for All report’s call for a people-centered approach to justice includes the exploration and implementation of alternative and less adversarial pathways to justice. Kenya’s Alternative Justice Systems (AJS) Policy serves as an innovative example of implementing a people-centered approach to achieving access to justice for all and provides many important lessons for other countries.
For centuries, Kenyan communities practiced their own justice mechanisms broadly rooted in reconciliation and restoration of harmony. Although customary and informal justice mechanisms have evolved through interactions with colonization, capitalism and modern values, they remain vital sites for dispute resolution in a country where as few as 3 percent of people with legal problems seek justice in the courts.
Customary and informal justice mechanisms can provide durable resolutions that are more affordable, faster, less adversarial and responsive to culture and circumstances. For example, community elders may preside over a sitting in which both parties to a dispute are provided time to air their grievances, often in a public setting. The elders may ask questions to clarify issues, guide discussion around remedies sought, and invite other community members to speak on the matter. The elders will deliberate and propose what they believe to be a win-win resolution to both parties. If an agreement is reached, a symbolic ritual of reconciliation — an embrace, handshake or other act — seals the deal. Breaking such an agreement may incur social penalties imposed by the elders or the community. Typically, disputes can be resolved within one to two months. Such mechanisms can significantly reduce the burden on formal justice institutions.
Kenya’s 2010 Constitution ushered in an era of extraordinary reform in the justice sector, calling for a transformation of formal justice institutions. It also mandated the promotion of alternative dispute resolution mechanisms, a responsibility the judiciary embraced. Kenya’s AJS Policy, launched in 2020, is emerging as a successful model for ensuring equal access to justice for all and bridging the gap between state-operated and customary and informal justice systems.
Susan Lee: Why did you feel that the promotion of alternative justice systems in Kenya was so important, given the many competing priorities in Kenya over the past several decades?
Willy Mutunga: I think it was our realization, not just mine, but the new judiciary in Kenya after the 2010 constitution, that 95 percent of Kenyans did not go to formal courts. They couldn’t afford lawyers and they didn’t believe they would get justice in formal courts because of the colonial history of being unfairly treated by them.
So, we had both to make the formal courts more friendly and accessible and less aloof, and we needed to develop the alternative justice systems that the Constitution had decreed. We also needed to see how we could integrate the two systems.
Susan Lee: And how did you start?
Willy Mutunga: We started by establishing what we called the Judiciary Transformation Framework 2012–16. We set up a Taskforce on Alternative Justice Systems that evaluated traditional and informal justice mechanisms in the country via research, field visits, and consultations with stakeholders. This resulted in a draft policy which we called “Justice as Freedom: Traditional, Informal and Other Mechanisms for Dispute Resolution in Kenya.” This was the roadmap for what became the Alternative Justice Systems Policy.
Access to justice for social transformation continues to be central to judicial reform processes today
Susan Lee: The Constitution obligates the judiciary to promote alternative forms of dispute resolution, including traditional dispute resolution. I’m curious, based on the many decades of discussion about how to incorporate alternative justice systems and engage with the state-operated system, about what were the strongest arguments for and against this kind of engagement.
Willy Mutunga: I don’t remember, during the Constitution-making processes that there were any serious arguments made against engaging traditional African justice systems. During the colonial era, we had a dual judicial system — there were “native courts” that had jurisdiction over civil matters, and the criminal justice system ran parallel to that. In 1965, the native courts were abolished and integrated into the mainstream judicial system. Many of the customary systems that arbitrated disputes were done away with as the judicial system was centralized. But there was a lot of resistance to that, which is why Article 159 of the 2010 Constitution restores those systems.
Article 159 also makes it clear, however, that the traditional systems are subject to the Constitution, because they do have limitations. For example, women and youth used to be marginalized by traditional systems — the male elders decided that they represented everyone in the community, and they would make all decisions themselves. So according to the Constitution, traditional systems must consider values like equity, equality, gender, inclusiveness, non-discrimination, human rights, and social justice. That was the compromise in the Constitution-making processes.
The role of justice data in the development of AJS
Susan Lee: You mentioned that 95 percent of Kenyans don’t go to formal courts. What role did justice data, or data about the actual practices and experiences of ordinary Kenyans, play in the development of the policy, as well as in persuading people inside the formal justice system such as judges and lawyers to get behind engagement with alternative justice systems?
Willy Mutunga: We didn’t have the capacity to collect much data ourselves, so we worked with experts from The Hague Institute for Innovation of Law (HiiL), which was a very effective collaboration. This is how we came up with the 95 percent figure, which was so important in persuading government and justice system stakeholders of the need for reform.
Susan Lee: I think that’s a great entry point to ask Dr. Mbogoh to speak to. One of the things that I found in my research on Alternative Justice Systems (AJS) policy development and implementation is the degree to which it is multi-disciplinary and involves multiple stakeholders. I wonder if you could tell us a little bit more about collaboration on AJS, and if you can share some examples of the advantages of having a multi-disciplinary approach, that would also be great.
Annette Mbogoh: I think the implementation of the AJS policy in our country defied a number of cultural notions about collaboration. The first of these is the notion that civil society and government cannot work together and that we are antagonistic towards one another. The second is the notion that the judiciary cannot be open to the public or come down to the grassroots, which is what AJS requires.
We had a multi-stakeholder task force that developed the framework for AJS and after that we had a multi-stakeholder steering committee that was tasked with implementing the policy. Even now, as we roll out the policy, we are seeing that a number of different players have been invited to that space and are playing a very active role in implementation.
I think defying these notions has been made possible because of how AJS is conceptualized. AJS is “from the people, by the people and for the people.” So the only way we can effectively implement it is through a collaborative effort. Organizations like ourselves, for example, as Kituo, have had a role as facilitators and as mentors and trainers of AJS practitioners. But we don’t do this in isolation — we do it in conjunction with the judiciary through its steering committee on AJS.
Susan Lee: Are there any other examples of collaboration?
Annette Mbogoh: Yes, we used a multi-stakeholder approach to pull together resources to conduct conferences where action plans were developed — I don’t think this would have been possible if we didn’t have this approach where everyone is investing in one particular process.
Collaborating with the Open Government Partnership has helped, too, because it exerted pressure on the government to implement the policy.
Challenges faced during the AJS policy process
Susan Lee: Have there been any challenges?
Annette Mbogoh: One challenge is the temptation to formalize or codify customary law. Kenya has a history of customary law being a source of law, but it’s not codified, and there were conversations in conferences about whether there is a need to codify customary law. This raises questions of what it means when you restrict the evolution of customary law into a codification. This might risk making customary law less flexible and adaptable.
Another challenge is that we haven’t yet documented the impact of AJS on justice outcomes and the administration of justice. We need to decide how to document that impact, not just through oral means, but also through written success stories and reports.
The other challenge is the issue of resources. AJS is led by empowered grassroots communities, but it doesn’t mean they don’t need resources. We often find that even where resources are available to the judiciary, they’re not really trickling down to those communities that are working with AJS on the ground. It’s important to find sustainable ways in which we can invest in AJS as a critical tool that can promote access to justice.
Susan Lee: On this point about sustainable resources, what actions can be taken by the government of Kenya to sustain these efforts, or what might be other sources of sustainable resourcing that you’ve considered or are advocating for?
Annette Mbogoh: In 2020, through the Open Government Partnership platform, we began to work with the judiciary and other stakeholders within the justice sector to push for the enhancement of the budgetary allocation to the judiciary. Among the three arms of government, the judiciary is the most underfunded. So we started asking if there were ways we could push for an increment in the judiciary allocation. This didn’t just mean allocating more funding to the judiciary, but also ensuring that these funds are used for people-centered approaches such as AJS. State-allocated funds should not just go towards building more courts but towards educating communities, supporting AJS practitioners to collect statements and hear disputes, and also just supporting their running costs.
I think another approach would be to encourage development partners to allocate resources to AJS, because it’s a very sustainable form of justice and we are seeing a lot of excellent results. But we don’t find many development partners investing in this area.
Keys to Kenya’s successful approach
Susan Lee: What do you think differentiates Kenya’s approach to AJS from those of other countries? What makes it successful?
Annette Mbogoh: I think what makes our approach unique is that our framework doesn’t try to formalize customary law, which means there is still a lot of room left for the organic evolution of AJS without interference by the state. There is clear recognition of the autonomy of AJS — the community runs the show. And I think leaving this space open for the people is very important, because we’ve seen as civil society actors that whenever the state gets involved, it feels the need to over-regulate.
The other thing that is unique is the multi-stakeholder approach. This is one of the few times you see civil society, government and the people — including people with disabilities, women, and youth — all working together towards implementation of the policy.
I think also that having a court annex model, which annexes AJS mechanisms to formal courts, is useful, as it enables the judiciary to tap into the success of AJS. There are many delays when it comes to hearing cases in formal courts, but now, through the court annex program, you can have cases resolved very quickly through the Alternative Justice System and they will still be recognized as having been resolved by the judiciary itself, which improves its case resolution statistics.
There is also great flexibility in how the AJS system approaches different cultures. There has been an expansion of how we view culture. Culture can be the culture of a particular group, like motorbike taxi drivers, for example — what we call boda-boda riders. They have a particular culture in the way they conduct their business, and recognizing culture in such a broad sense makes AJS applicable in almost all settings. Dispute resolution doesn’t necessarily have to be led by community elders as it has been in the past — we now also recognize that young people can play a critical role in implementing AJS within their particular spaces.
Next steps for accessing justice in Kenya: strengthened implementation/increased implementation of policy
Susan Lee: What do you see as the next steps in terms of access to justice in Kenya?
Annette Mbogoh: We have very beautiful policies and laws [surrounding AJS], but I think the challenge comes with implementation. We have the Constitution, the Legal Aid Act, and the AJS policy, but we want to see these implemented. And I think the only way we as civil society can convince the government is through having reliable data that can help them see things from another perspective. We need to show the government that funding justice is cheaper than funding health or funding education and that justice is the foundation of the socioeconomic growth of the country.
Another next step would be to see how we can link the successes that are happening at the grassroots level on AJS with the broader national, regional, and global justice agenda, so that the AJS practitioner working in a small county in Kilifi, for example, feels and sees that they are contributing towards the national and global justice agendas.
Susan Lee: Thank you so much for that. Finally, turning back to Dr Mutunga, is there anything else you would like to add to what Dr Mbogoh has said?
Willy Mutunga: I’d like to talk about the political challenges we face. Politicians in Kenya are always asking what the judiciary is up to. They sometimes see the judiciary as a kind of opposition, and that’s when funds are denied and court orders disobeyed. Securing political buy-in is therefore difficult. Even when they don’t see us as opponents, issues around social justice, human rights, and justice for all are abstract to many of our political leaders. They don’t understand its importance, so they don’t fund it.
Susan Lee: Can you share any lessons you’ve learned during your time as Chief Justice about managing the political dynamics around justice sector reform? So that politicians don’t see the judiciary and judicial reform as the opposition, but rather as a partner in achieving justice for all.
Willy Mutunga: When I joined the judiciary, the budget was KES 3 billion (USD 33.8 million). We needed more money, and I talked to the then-president about it. I realized that in order to convince him I would have to anchor my arguments to what would be his legacy when he stepped down from power a few years later. So, I told him we still have colonial laws, we are still not doing anything about the 95 percent, and we needed much more money if we were to address these problems.
Therefore, the government increased the annual judiciary to KES 17 billion (USD 191.7 million). But the budget currently keeps seesawing because governments and politicians basically think that the public resources belong to them and they can starve any institution of public resources. If a decision is made against someone powerful or well-connected and they are angry about it, parliament or the executive can deny funds to the judiciary. That’s why civil society is so important for pressuring governments when this kind of thing happens. It’s a political process. You have to convince these people that this is important and that it’s in their interest.
To counter the risks posed by politicians’ ever-changing interests, the Constitution provided for the establishment of a Judiciary Fund. This gives the judiciary financial independence — once the money goes into the fund it can’t be withdrawn. In the past, if the judiciary did not spend the money, they had to give it back to the exchequer, but that has now changed. And the idea of the judiciary having a fund for AJS is also important in making it sustainable.
Another factor in persuading politicians is that AJS is popular with the people. So when they start asking what the judiciary is up to, the judiciary can say that it’s working with the grassroots and using what is a very popular approach. I think AJS is an idea whose time has come. It can’t be extinguished now.
