The Relationship between Formal Rule of Law and Local Traditional Justice Mechanisms. By: MR. KERIAKO TOBIKO CBS, SC

The Relationship between Formal Rule of Law and Local Traditional Justice Mechanisms By: MR. KERIAKO TOBIKO CBS, SC DIRECTOR OF PUBLIC PROSECUTIONS, KENYA. AT THE 18TH IAP ANNUAL CONFERENCE AND GENERAL MEETING, MOSCOW RUSSIA [8-12 SEPTEMBER, 2013] 1

Table of Contents Distinguished Ladies And Gentlemen,... 3 A. Introduction... 3 B. Tjs And Formal Rule Of Law: Definitions... 3 C. Tjs In Pre-Colonial Africa... 5 D. Tjs In Colonial Africa... 5 E. Tjs In Post-Colonial Africa... 6 F. Tjs In Uganda... 7 G. Tjs In Sierra Leone... 8 H. Tjs In Zambia... 9 I. Tjs In Tanzania... 9 J. Tjs In Kenya... 10 K. Tjs And Formal Rule Of Law : Present Challenges And Opportunities... 12 A) Challenges... 12 I. Failure Of Localizing Received Common Law And Statutes... 12 Ii. Conflicting Conceptions Of Justice Between Tjs And Formal Rule Of Law System.... 13 Iii. Challenges Arising Out Of The Weaknesses Of Tjs.... 15 B) Opportunities And Recommendations... 15 L. Conclusion... 18 Vii. References... 19 2

Distinguished Ladies and Gentlemen, A. INTRODUCTION 1. The role of traditional [informal] justice systems (TJS) in increasing access and delivery of justice to the people has remained an important frontier in modern social and development global policy discourse. 2. Until recently, TJS have relatively remained ignored in the development of rule of law frameworks in many developing countries. The development of rule of law frameworks has hitherto been synonymous with promotion of the formal justice system. 3. This Paper seeks to highlight some pertinent issues that should be addressed in attempts to mainstream TJS to build greater respect for human rights and the rule of law, in Africa. 4. Architecturally, the Paper begins by looking at various definitions of TJS. It then considers TJS in Africa s legal systems, with a specific emphasis to Kenya. Finally, it considers the opportunities and challenges of mainstreaming TJS in Kenya s rule of law framework and offers some suggestions as to the way forward. B. TJS AND FORMAL RULE OF LAW: DEFINITIONS I. Traditional Justice Systems (TJS) 5. So what are traditional justice systems? From the outset, it s worth noting that no attempt at defining TJS and formal rule of law can be precise and broad enough to cover the broad range of systems and mechanisms that comprise them. 6. A recent UN study on Informal Justice Systems 1 defines TJS as: encompassing the resolution of disputes and the regulation of conduct by adjudication or the 1UN Women., UNICEF. UNDP. (2012). Informal Justice Systems: Charting a Course for Human Rights Based Engagement (A Study of Informal Justice Systems: Access to Justice and Human Rights). New York, USA: UN WOMEN, UNICEF, UNDP. Available at http://www.undp.org/content/dam/undp/library/democratic%20governance/access%20to%20justice%20and%20rule%20o f%20law/informal Justice Systems Charting a Course for Human Rights Based Engagement.pdf For a look at the prevalence of TJS in Africa see: Wojkowska, E. (2006). How Informal Justice Systems can contribute. Oslo, Norway: United Nations Development Programme, Oslo Governance Centre. In Liberia, a 2008 Oxford University Survey found that rural citizens took only 4% of criminal cases and 3% of civil cases to the formal courts, See: Flomoku, P., Reeves, L. (2012). 3

assistance of a neutral third party that is not a part of the judiciary as established by law and/or whose substantive procedural or structural foundation is not primarily based on statutory law. 7. This definition underscores the informality of TJS. In this context, they are in essence the non-state justice systems that are tolerated by the state or are state-linked 2. They operate outside the conventional state structures and maybe based on customary law, religious or personal laws. 8. In this Paper, TJS refer to the local approaches that communities use in resolving localized disputes to attain safety and to enhance access to justice. A variety of names are used to refer to TJS, e.g., community justice systems, non-formal or informal; customary, tribal or indigenous justice systems; and non-state justice systems. 9. TJS aim at restoration for both the offender and victim, healing of the community and individual victim and retributive punishments. 10. To achieve these, TJS employs alternative dispute resolution mechanisms such as, reconciliation, mediation, and arbitration. 11. TJS are also considered as forms of restorative justice, which in African legal tradition emphasize on collectivism in the community; mediation of truth; acknowledgement of wrongdoing; forgiveness and reconciliation rather than retribution. 3 II. The Formal Rule of Law 12. In contrast, formal rule of law relates to a legal-political governance system:.in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the Formal and Informal Justice in Liberia. Accord Consolidating peace: Liberia and Sierra Leone. 44 47. Retrieved on 20th August, 2013 from http://www.c r.org/sites/c r.org/files/con1222_accord_23_9.pdf It is also estimated that only 1 in 10 persons in Kenya bother to take their disputes to formal courts of justice. See: Speech (Unpublished) by the Chief Justice of Kenya Dr. Willy Mutunga at the Induction Retreat for Cohesion and Integration Goodwill Ambassadors, Crowne Plaza Hotel, Nairobi on 29th August, 2010. 2Examples include local (customary) courts in Sierra Leone and Zambia, the village courts in Papua New Guinea and Community Courts in Mozambique. See: Ibid. p.9. 3 Hon. Justice Ombija, N.R. Restorative Justice and Victims of Crime in Kenya: A Practitioner s Perspective. Kenya Law Reports Journal. Available at www.kenyalaw.org/klr/index.php?id=788 4

law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." 4 C. TJS IN PRE-COLONIAL AFRICA 13. Prior to colonization of Africa, customary laws governed all affairs of the people of Africa. Customary laws were local in nature and jurisdiction over such laws and the institutions that administer them were historically ascertained on the basis of membership in an ethnic or tribal group. 14. This meant that the affairs of the over eight hundred ethnic or linguistic groups which exist on the continent were governed by an equal number of different customary rites. 5 15. At the time, TJS were therefore the only rule of law system in operation in Africa. The same can be said of other parts of the world prior to their colonization by imperial powers. 16. TJS had customary laws which were both substantive and procedural and reflected the societal mores of the day and were administered by institutions such as councils of elders or tribal chiefs. D. TJS IN COLONIAL AFRICA 17. The colonial experience of Africa began in 1885 after the Berlin Conference, in which Africa was partitioned into European spheres of influence. With the arrival of the Europeans, various ethnic groups were combined within arbitrarily formed territories and subjected to European laws and institutions that operated along the lines of these newly created regions. 4 See: Report of the UN Secretary General on the Rule of Law and Transitional Justice in Conflict and Post Conflict Societies (S/2004/616) available at http://daccess dds ny.un.org/doc/undoc/gen/n04/395/29/pdf/n0439529.pdf?openelement For further reading on the rule of law refer to: Lon L Fuller "The Morality of Law" (Yale University Press, New Haven, 1968) 39; John Rawls "A Theory of Justice" (Harvard University Press, Cambridge, 1972) 235; and A.V. Dicey. (2000). An Introduction to the Study of the Law of the Constitution. Elibron Classics: London. 5 Oba., A. A. (2011). The Future of Customary Law in Africa, In Fenrich, J.,et al. (eds.,) The Future of African Customary Law. Cambridge: Cambridge University Press; p. 60. 5

18. African customary laws and attendant institutions were thus greatly diminished as they were restricted in application to the extent allowed by formal, statesanctioned laws. 6 19. Thus, Africa got a colonial legacy of legal pluralism or dual legal systems borne out of the effects of imposition of foreign laws of colonial powers. 7 These imported foreign laws were applied with limited variations to account for local circumstances and the necessities of colonial rule. The net effect was to marginalize the application of pre-existing African customary law systems. 20. Laws were made restricting the application of customary laws to matters of land disputes and personal law e.g., marriage, divorce, inheritance. Application of customary laws would also be subject to the repugnancy rule, that is, it should not contravene a sense of morality and justice as conceived in western world societies. 8 21. Most Africans felt alienated from the imposed dual system of justice, as the foreign laws were not only culturally alien 9 but also discriminative. There was a justice system for Africans and another for non-africans. 10 E. TJS IN POST-COLONIAL AFRICA 22. At independence, most African countries had foreign laws which were not localized to circumstances obtaining in Africa as required in the reception laws. Nationalist independence African governments were expected to review their legal systems 6 See: Ochich, G. O. (2011). The Withering Province of Customary Law in Kenya, A Case of Design or Indifference, in Fenrich, J.,et al. (eds.,) The Future of African Customary Law. Cambridge: Cambridge University Press; pp. 103, 104; Allott, A.N. (1965). Towards the Unification of Laws in Africa, Int'l & Comp. L. Q. 14(2),366 370. 7 E.g., Botswana, Ghana, Kenya, Lesotho, Malawi, Nigeria, Sierra Leone, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe were all colonized by the British and today have legal systems which combine customary traditional African law and received English laws. Such legal pluralism has its origins in 1772 British India, See: Hooker, M.B. (1975). Legal Pluralism: An Introduction to Colonial and Neo Colonial Laws. Oxford, Clarendon Press; For more on legal pluralism, see: Griffiths, J. (1986). What is Legal Pluralism, J. Legal Pluralism 24 (1), 2 6; Kyed, M. H. (2009). The Politics of Legal Pluralism: State Policies on Legal Pluralism and Their Local Dynamics in Mozambique, J. Legal Pluralism (59), 87 88. 8 See various foreign law reception laws such as Kenya s Judicature Act of 1967, Section 3, available at http://www.kenyalaw.org/downloads/greybook/3.%20judicature%20act.pdf and Nigeria s Supreme Court Ordinance No. 4 of 1876, Section 19, Evidence Act No. 18 of 2011, Section 18, available at http://www.aksjlegalresource.com/resource/laws_of_the_federation%5cevidence%20act%202011.pdf and Supreme Court Act of 1960, Section 17, (rev. ed. 2006), available at http://www.aksjlegalresource.com/resource/laws_of_the_federation%5csupreme%20court%20act.pdf 9 Transplanting laws requires that they be in sync with the culture of the society in which they are received; otherwise the transplanting will not be successful. For a comparative review of the various schools of thought on transplanting of laws, see: Small, R. G. (2005). Towards a Theory of Contextual Transplants. Emory International Law Review, (19) 1431 1455. 10 Ghai, Y. P., &McAulsan, J. P. W. B. (1970). Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from Colonial times to the Present. Nairobi, Kenya: Oxford University Press, at p. 359. 6

and laws and create a more authentic African legal system, blending together African and foreign legal ideas and rules. 11 23. Instead, African governments largely maintained the existing colonial legal regime, with most only attempting to deliver on a less-diluted version of the colonial legal system. This was often justified as being a transitional step towards the creation of "local" laws by the new states and development of a new contextualized body of case law. 12 24. Unfortunately, to date, most African countries have been slow to replace foreign statutes with "homegrown" laws which would incorporate TJS mechanisms. Even where new laws have been made, most African countries have enacted them based on foreign models. 25. In some countries in which indirect rule policies of colonization where applied, an effort was made to formalize customary law systems. In Nigeria, Botswana, Zimbabwe, Malawi, South Africa 13 and Sierra Leone, the African customary courts were given first instance jurisdiction in matters of customary law. Appeal from these customary courts is to the formal judiciary. In such countries there is greater relationship between the formal rule of law system and TJS. 26. In others countries like Kenya and Tanzania, TJS were not formalized and thus operate largely outside the formal rule of law. 27. Examples of these two approaches are highlighted below. F. TJS IN UGANDA 14 28. In Uganda, the British had recognized the traditional Kingdoms and allowed them to exercise judicial power in their courts. However, these kingdoms and their judicial tribunals were abolished in 1966 by the post-independence Government. 11 Ibid. 12 Ibid. 13 See: Boyane, T. (2005). Traditional Justice In Practice: A Limpopo Case Study. ISS Monograph Series No. 115. Pretoria, South Africa: ISS. Available at http://www.issafrica.org/uploads/115full.pdffor examples of formalization of TJS outside Africa, see Australia s Aboriginal case in: Australian Law Reform Commission. (1986). Recognition of Aboriginal Customary Laws: ACLR Report No: 31. Vol. 1 & 2. Canberra, Australia: AGPS. Available at http://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc31.pdf 14 On TJS in Uganda See: Robbin, S. (2009). Restorative approaches to criminal justice in Africa: The case of Uganda. In ISS, The Theory and Practice of Criminal Justice in Africa: African Human Security Initiative. Monograph Series No. 161. (pp.57 84). Pretoria, South Africa: ISS. Available at http://www.issafrica.org/uploads/m161c4.pdf 7

Customary tribunals were reintroduced in 1986 when the National Resistance Movement (NRM) formed the Government and set up the Resistance Committee Councils and Courts at the village level. 29. These courts were later renamed as Local Council Courts (LCCs). The LCCs are an integral part of the Ugandan judicial structure from which cases are escalated to the formal courts and sometimes referred back for parties to apply community alternative dispute resolution mechanisms. G. TJS IN SIERRA LEONE 15 30. Sierra Leone customary law is enshrined in the 1991 Constitution, which states that the common law of the country comprises African customary laws of her various ethnic groups. Customary justice is dispensed in line with the beliefs, customs and traditions of the inhabitants by local courts. 31. The local courts have a limited jurisdiction, regulating marriage and divorce, and adjudicating land disputes and minor criminal cases, limited to a maximum custodial sentence of six months or where a minimal fine is imposed. These Local courts dispose of a significant volume of minor criminal cases. 32. They are presided over by local elders proficient in customary law; no lawyers are present, but customary law officers assist in the proper application of customary law. 33. The law these courts enforce is however unwritten, geographically dependent and often ad hoc. Fines are not standardized across courts, and in some, have become exorbitant. 34. Despite these constraints, however, satisfaction with the courts remains high in both rural and urban areas. 15 For a detailed examination of TJS in Sierra Leone, See: ISS. (2008). Sierra Leone A country review of crime and criminal justice: African Human Security Initiative: ISS Monograph Series No. 160. Pretoria, South Africa: ISS. Available at http://www.issafrica.org/uploads/m160full.pdf;robbin, S. (2009). A place for tradition in an effective criminal justice system: customary justice in Sierra Leone, Tanzania and Zambia. ISS Policy Brief No. 17. Pretoria, South Africa: ISS. Available at http://www.issafrica.org/uploads/no17oct09.pdf. See also: Bowd, R. (2009). Access to justice in Africa Comparisons between Sierra Leone, Tanzania and Zambia. ISS Policy Brief No. 13. Pretoria, South Africa: ISS. Available at http://www.issafrica.org/uploads/no13oct09.pdf 8

H. TJS IN ZAMBIA 16 35. Zambia has two TJS that operate parallel to each other. On the one hand is the customary criminal justice system that refers to the courts of chiefs and headmen which have existed since pre-colonial times, but today have no formal status. 36. On the other hand are the TJS that were established at independence, and termed local courts. These courts stripped traditional leaders of their judicial role and allowed the constitutionally recognized role of customary law to be enforced by a formal mechanism that lacked any connection to the traditional arbiters of custom. 37. Local courts are run by officers of the state who generally lack both the knowledge of customary law of tribal chiefs and the respect given to traditional leaders. The local courts are the lowest courts of the formal system but share a common jurisdiction in customary law matters with the unrecognized chief s courts. 38. Customary courts are generally more preferred than local courts because they are considered fairer (except with regard to gender and age). I. TJS IN TANZANIA 17 39. In Tanzania there are three systems that exist parallel to each other, that is, the formal criminal justice system, customary law and Islamic law. 40. The Magistrates Courts Act of 1963 abolished the criminal customary law, which was jettisoned in favour of English law. The significant role customary law played has been diminished by section 11 of the Judicature and Application of Laws Act which although recognizing the applicability of customary law, limits it to civil matters. 41. Although Tanzania does not have customary law courts, its primary courts may entertain evidence touching on matters of customary law. 16 For a detailed examination of TJS in Zambia, See: ISS. (2009). The Criminal Justice System in Zambia. Enhancing the Delivery of Security in Africa: African Human Security Initiative: ISS Monograph Series No. 159. Pretoria, South Africa: ISS. Available at http://www.issafrica.org/topics/crime and criminal justice/01 apr 2009 monograph no 159 the criminal justice system inzambia. enhancing the delivery of security in africa african human security initiative; Also see: Bowd, R. (2009). Ibid. 17 For a further look at the state of application of TJS in Tanzania, see: Robbin, S. (2009). A place for tradition in an effective criminal justice system: customary justice in Sierra Leone, Tanzania and Zambia. ISS Policy Brief No. 17. Pretoria, South Africa: ISS. Available at http://www.issafrica.org/uploads/no17oct09.pdf 9

J. TJS IN KENYA 18 42. During the colonial period, Kenya had the formal judicial system as well as African Courts applying TJS. These African courts were controlled and run by the Provincial administration. 43. Between 1962 and 1967, administrative and legislative reforms were undertaken which integrated the African Courts into the formal judicial system. This integration had the effect of minimizing the application of TJS since the orientation of the judiciary was towards the formal rule of law. 44. Informal customary law tribunals continue to operate at the level of the village and the community, in several forms, including councils of elders, clan or family tribunals, village associations and the chief s system under the former provincial administration. 45. Section 3 of the Judicature Act 19 which outlines the sources of the laws of Kenya, states that the jurisdiction of the High Court, Court of Appeal and of all subordinate courts shall be exercised in conformity with:.(a) The Constitution; (b) All other written laws...; (c) the substance of common law and the doctrines of equity and the statutes of general application in force in England on 12th August 1897 but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permits. 46. Section 3 (2) of the Act states that the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it. 47. In criminal cases, the law is however different. Section 77 of the repealed Constitution 20 stated that no person shall be convicted of an offence unless the 18 For a further look at the state of application of TJS in Kenya, see: Ghai & McAuslan, supra, n. 10; FIDA Kenya. (2011). Engaging with Informal Justice System. Nairobi, Kenya: FIDA Kenya; ICJ Kenya (2011). Report on Formal and Informal Justice Systems in Kenya. Nairobi, Kenya: ICJ Kenya; Kinyanjui, S. (2010).Restorative justice in traditional pre colonial criminal justice systems in Kenya, Tribal Law Journal UNM School of Law, (10) 1 16, available athttp://tlj.unm.edu/volumes/vol10/kinyanjui.pdf 19 Available at http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/acts/judicatureact_cap8.pdf 10

offence with which he is charged is written down and the penalty thereof prescribed. The interpretation herein is that customary criminal law had been abolished in Kenya. 48. Article 50 (2) (p) of the 2010 Constitution 21 states that an accused person in Kenya has the benefit of the least severe of the prescribed punishments for an offence. The use of the word prescribed punishment again may be interpreted to mean that the same should be in written and thus exclude the application of traditional criminal justice. 49. The 2010 Constitution has made a place for the application of Alternative Dispute Resolution (ADR) and TJS in enhancing access to justice, within the confines of Article 159 of the Constitution. 50. Article 159 (3) of the Constitution places similar restrictions on how TJS can be applied in Kenya as the Judicature Act provisions, i.e. 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. 51. Article 60 of the Constitution also gives mandate to the state to apply TJS in resolving land disputes. It encourages communities to settle land disputes through recognized local community initiatives consistent with the Constitution. 52. Since the application of TJS must not contravene the Bill of Rights, the Constitution, or any written law and must not be repugnant to justice and morality or result in outcomes which are unjust or immoral, it is clear that the framers of the new Constitution contemplated application of TJS to civil matters only in Kenya. 53. Section 176 of Kenya s Criminal Procedure Code (CPC) 22 however allows for limited application of ADR and TJS as the courts can promote reconciliation and compensation in cases of misdemeanors relating to assault or offences of a personal nature. 20 Available at http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/constitution/constitution_of_kenya%28repealed%29.pdf 21 Available athttp://www.kenyalaw.org/klr/fileadmin/pdfdownloads/acts/constitutionofkenya.doc 22 Available at http://www.kenyalaw.org/downloads/acts/criminal%20procedure%20code.pdf 11

54. The practice within communities is however different from the written law. Due to inadequate accessibility and capacity gaps of the formal justice system and greater communal preference for TJS, the latter continues to be applied across Kenya, with application ranging from minor to serious crimes like murder. It is also widely applied in all manner of civil disputes. 55. The challenge then is determining to what extent TJS can be applied in relation to criminal law. Although customary criminal offences have been abolished by written law, nonetheless, a number of traditional communities in Kenya continue to apply their traditional dispute resolution mechanisms to deal with criminal conduct. 56. Even where the formal criminal justice system has been invoked by the state to deal with criminality in such communities, they nonetheless apply TJS and demand that the state should terminate its criminal due process; resulting in what a leading Kenyan criminal lawyer has termed as, intricate and adverse legalities characterized by decision[s] which risks putting the basic purpose [prohibiting purpose] of criminal law in jeopardy. 23 K. TJS AND FORMAL RULE OF LAW : PRESENT CHALLENGES AND OPPORTUNITIES 57. The relational dynamics of TJS and formal rule of law are both negative and positive. The same are considered below. a) Challenges 58. There are various challenges which arise from the retention of the colonial dual systems of justice in Africa. There are also challenges which arise from applying TJS itself in the broader context of rule of law. i. Failure of localizing received common law and statutes 59. The retention of the dual legal systems in Africa and the continued failure to localize received common law and foreign statutes has presented various challenges which hinder the ideal establishment of an authentically African modern rule of law. 23 Bowry, P. (2013, June 12). High Court Opens Pandora s Box on Criminality. The Standard, Available at http://www.standardmedia.co.ke/m/story.php?articleid=2000085732&story_title=high Court opens Pandoras Box oncriminality He question whether a controversial High Court decision applying TJA on a murder case now dictates that in Kenyan criminal law customary law and Islamic law are applicable. He also rhetorically asks if a criminal offence can be excused by law by payment of blood money. 12

60. This was well captured in the famous words of Lord Denning in respect to application of common law in Africa in the Kenyan case of Nyali Ltd v. Attorney General, 24 that,..the common law is to apply subject to such qualifications as local circumstances render necessary. This wise provision should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending. So with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away. In these far-off lands the people must have a law which they understand and which they will respect. The common law cannot fulfill this role except with considerable qualifications. The task of making these qualifications is entrusted to the judges of these lands. It is a great task which calls for all their wisdom. ii. Conflicting Conceptions of Justice between TJS and Formal Rule of Law System. 61. This is a practical challenge which often faces the prosecutor in the relationship of formal rule of law and TJS is their conflicting conception of justice. 62. A case in point from Kenya is Republic v. Mohamed Abdow Mohamed 25 (Criminal Case no. 86 of 2011(Unreported) in which an accused person of Somali extraction was charged with murder. 24 [1956] 1 QB 1, at p. 16. The matter related to a taxation dispute in which the court was obliged to ascertain whether a particular general statute of application and its attendant common law applied in Kenya]. While part of the received laws in colonial countries included statutes of general application, courts routinely gave contradicting decisions, in respect to whether a statute of general application is applicable in various countries with similar reception clauses. For a further discussion on the problems of lack of law reform on received laws in former colonies/protectorates, see: Corrin, J. (2008). Discarding Relics of the Past: Patriation of Laws in the South Pacific. Victoria University of Wellington Law Review, 38(4), 635 658. 25 See: http://www.kenyalaw.org/newsletter1/issue182013.php 13

63. The families of the accused and the victim met and reconciled upon agreeing on compensation terms (i.e. payment of blood money, a number of livestock and some jewelry). 64. Both families made representations to the Office of the Director of Public Prosecutions (ODPP) to have the matter withdrawn on account of their reconciliation. The families indicated that they had done so according to their communal and religious (Islamic) customs and thus the victim s family was under a customary and religious obligation not to pursue the case any further. 65. I declined to have the matter withdrawn on public interest grounds as that would in my opinion be unconstitutional under article 159 (3)and would set a bad precedent where the murder of a person can simply be addressed by payment of compensation to the deceased s family. 66. In response, the witnesses in the case who happened to be family members of the victim s family, willfully refused to attend court and testify for the State. 67. The ODPP then applied and got summons to compel the witnesses attendance in court. Despite all efforts to locate the witnesses over a period of time the summons were not served and the office only got word that the witnesses had fled back to Somalia, where the rest of their kin are. 68. Considering the lack of witnesses and other challenges encountered, I chose to make the matter a test-case by making the necessary application for withdrawal of a case so that the court could pronounce itself on the application of TADRM/ ADR in a murder case within the confines of Article 159. 69. The court astonishingly allowed the application, without substantive analysis of the applicability of TJS in criminal cases. 70. In other instances, there have been cases of the victim of a defilement case being married off to the perpetrator following a traditional cleansing ceremony and compensation to the victim s family. 71. In some communities it is permissible to marry off minors, a situation in direct conflict with national and international legal frameworks on the rights of the child. 72. Female genital mutilation cases also pose unique challenges to the prosecutor. Often times, the culprits are the parents of the child and the prosecutor is then 14

faced with the dilemma of sending the parents to jail and leaving the child destitute or forgoing the matter on public interest grounds. 73. Cattle rustling is another area of conflicting conceptions. While it is considered as stealing in its myriad forms under the formal justice system, it is in some ethnic communities permissible and part of a respected cultural rite. 74. The same can be said of wildlife crimes perpetrators by certain communities. iii. Challenges arising out of the weaknesses of TJS. 75. TJS are not perfect. They are often antiquated, being customs which were developed in the pre-colonial times for a society which was radically different from modern-day Africa. 76. The customs are also diverse and often conflict in cases where the parties are of different ethnic groups. 77. TJS being founded on patriarchal norms are in some respects, discriminative of women both in substantive law content and in their administration. Most a council of elders have an exclusive membership of men. 78. In addition, TJS apply unwritten laws and there is a lack of records of decisions of the TJS adjudicating bodies. 79. There is also a lack of adequate training and supervision of leaders/officials administering TJS and thus miscarriage of justice often arises. 80. There is also lack of state support and ill-definition of the legal status of TJS which impacts on its enforceability especially through state law enforcement mechanisms. 81. But perhaps the greater challenge in mainstreaming TJS would be the issue of standardization of the various TJS in a given jurisdiction. 82. Standardization may lead to loss of certain cultural and community peculiarities. b) OPPORTUNITIES AND RECOMMENDATIONS 83. For all the challenges TJS presents, there are also opportunities to creatively execute interventions which will positively change the application of TJS. 15

84. Tackling these challenges presents a worthwhile platform to also increase the linkages between TJS and formal justice systems for increased access to justice, and promotion of human rights and strengthening the rule of law. 85. The continued retention of the dual system presents Africa with the opportunity of tapping on the best that TJS and formal rule of law system have to offer. 86. To achieve an ideal contemporary African legal system, the following roadmap is proposed for African states:- i. The process of mainstreaming TJS should begin by conducting comprehensive surveys on the status of contemporary African customary laws and institutions administering the laws. ii. iii. Such a study should look into TJS user preferences and factors which inform such preferences. The surveys on TJS should also elucidate the similarities and dissimilarities between different TJS, empirically determine the access levels of TJS, determine in what ways TJS is in conflict with the formal justice system, and make recommendations on how to best mainstream TJS in a country s legal system. Following the recommendations of such surveys, African states should then develop appropriate policies determining the extent to which TJS will apply and how to standardization TJS in their jurisdictions. These policies should propose appropriate monitoring and evaluation systems for the mainstreaming process and identify the resource needs and mobilization/allocation strategies to fund the process. This process of policy formulation should be as consultative as possible. After developing appropriate policy frameworks for applying TJS, it will be imperative to develop legislations which give legal recognition and status of TJS. Such legislations should as much as possible not relegate TJS to the periphery of the legal system of a country. The legal framework for TJS should ensure that TJS will not be discriminative and that it will promote the observance of human rights. 16

iv. In tandem with providing an enabling legislative framework for TJS, it will be necessary to review all foreign received law and assess the extent to which such laws should be applied, repealed or amended. v. African governments should develop enabling support structures for TJS. Such structures should be amenable to the maintenance of the integrity of the character of TJS and the formalization process of TJS in this respect should ensure record-keeping and capacity building of the institutions of TJS, e.g., through training and supervision of TJS adjudications. The support structure should also ensure linkages to systems of formal rule of law such as legal aid, and case referral/appeal system where feasible. vi. Finally, African countries and the international community should consider reengineering the formal rule of law systems to leverage on TJS specialized capacity in conflict management. Due to its emphasis on reconciliation and truth telling, TJS may be more suitable to resolve ethnic conflicts and land/water- based conflicts which Africa is prone to. A case in point is Rwanda. 26 After the 1994 genocide it chose to apply a modernized version of the traditional Gacaca courts to try cases arising out of the genocide. On 18 th June 2012, the Rwandan Government closed the Gacaca courts after 10 years of operation; they had tried just shy of 2 million cases at a cost of $40 million. On the other hand, the Arusha-based United Nation s International Criminal Tribunal for Rwanda (ICTR) has spent $1.7 billion to try only 60 cases in a similar time frame. While it is admitted that the ICTR was meant to try the architects of the genocide and thus dealt with more complex cases, it may be said that 26 Traditionally only men could participate in gacaca. In the modern gacaca, however, women are full participants, serving not only as members of the general assembly but also as judges. For a comprehensive review of the Gacaca Courts, see: Human Rights Watch. (2011). Justice Compromised: The Legacy of Rwanda s Community Based Gacaca Courts. Kigali, Rwanda: Human Rights available athttp://www.hrw.org/en/reports/2011/05/31/justice compromised. 17

from a cost-benefit analysis, ICTR has not been as effective as the Gacaca Courts. The cost per case at ICTR has been $28 million. If the same rate was used by the Gacaca courts, the Rwandan government would have spent $55trillion, not to mention the amount of time it would require to process the amount of caseload handled by the Gacaca courts. The legacy of the Gacaca courts is up for debate, but this one thing is undisputed, in the words of President Kagame, Gacaca has been at the heart of our unity and reconciliation process [of Rwanda] 27. In Uganda, there have been calls to employ TJS in the long-running conflict in the Northern part involving Joseph Kony LRAs using the Mato-Oput rite of the affected Acholi people. 28 There have been similar calls in Kenya to apply TJS and victims reparations to the 2007-2008 Post-Election Violence [PEV], rather than prosecute those accused of involvement at the ICC and locally. This may be of help to a certain extent, as most of the PEV cases lack the requisite evidence to institute and sustain charges in formal courts. L. CONCLUSION 87. This Paper sought to review the place of TJS in advancing the rule of law and has highlighted some of the challenges and opportunities that abound in the process of mainstreaming the application of TJS, particularly in the administration of criminal justice. 88. Given the centrality of TJS for a huge population of our countries, particularly in the developing world, there is an urgent need to reset the focus of our strategies and interventions aimed at advancing access to justice and the rule of law, both for state and non-state actors. 27 Kagire, E. (2012, June 19). Rwanda officially closes Gacaca courts; Kagame scoffs at ICTR. The East African, Available at http://www.theeastafrican.co.ke/news/ /2558/1430934/ /mhavmaz/ /index.html 28 See: Katshung, J. (2006). Mato Oput versus the International Criminal Court (ICC) In Uganda. Pambazuka News, Issue No. 271. London, UK: Pambazuka Press Ltd. Available at http://www.pambazuka.org/en/category/comment/37403 ; 18

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