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- By Alvin Kosgei, Advocate of the High Court of Kenya
Access to justice is a term that philosophically goes beyond access to courts for dispute resolution and conflict management. Properly understood, it entails the ease with which ordinary citizens can make use of the law. Under this understanding, a plethora of opportunities open up.
This publication, therefore, attempts to describe the means through which informal justice systems can be utilized to enable the ordinary Kenyans to make use of the law. This quest is justified in that one of the yardsticks of measuring the level of development is the ease with which the citizens can access the law for ordinary matters such as inheritance, crimes, civil debts and family disputes.
The Amkeni Wakenya United Nations Development Programme (UNDP) Project (“Amkeni Wakenya”), among other things, focuses on legal aid and assistance to the marginalized. The marginalized are people who cannot access the legal and institutional framework that is in place for dispute resolution and protection of rights. The project has more than 30 Civil Society Organizations (CSO) that are on the ground effectuating the project. These organizations are now going beyond the traditional objective of helping the poor access courts but are also training the members of the communities and strengthening local justice systems. It is the premise of this article that access to justice can be enhanced through the use of informal justice systems. The legitimizing laws include the National Legal Aid Act and the Constitution.
Informal justice systems are part of the broader category of alternative dispite resolution (ADR) mechanisms. According to Nyamu-Musembi, they are all justice systems that are not state initiated. The term is broad enough to cover all categories of dispute resolution mechanisms that may be employed by marginalized people groups in peace building initiatives to family gatherings. Their utility enhance if because of geographical exclusion or poverty, the marginalized cannot access formal courts. Article 159 (2)(c) of the constitution enjoins the courts to apply forms of ADR including reconciliation and traditional dispute resolution mechanisms (TDRM). On the other hand, the National Legal Aid Act provides, inter alia, that the Act is meant to support community legal services by funding justice advisory centres, education and research. It also provides that the Act is meant to support ADR mechanisms that enhance access to justice.
Other relevant legislations include the Community Land Act and the Protections of Traditional Knowledge and Cultural Expressions Act (TKCE Act) which evidence the policy a shift. Hitherto, the systems that are outside the formal legal system have been deemed to be unlawful and generally backward and repugnant. However, the informal is now being formalized in many areas of the law. Okoth sees this formalization as the path to economic emancipation of the communities that have existed for many years outside formal law. Chopra on the other hand assesses the use of informal justice systems in northern Kenya.
INSTITUTIONALIZATION OF INFORMAL JUSTICE SYSTEMS
From the foregoing, it is the case, therefore, that the law supports the use of informal justice systems as part of ADR. The critical question therefore is how their use can be realized. Under the Community Land Act, it is recognized that a community’s by- laws can be used or mediator can be appointed to resolve a dispute. Community under the law includes communities of interest. In this case informal justice systems can be modified to apply to people living in the same area but not of the same tribe. Therefore, the marginalized can, with the assistance of CSOs and the government, establish structures and systems among themselves for dispute resolution. These can be based on customary laws or the formal law. In any event, a recognizable individual or group of individuals who are knowledgeable in the affairs of the relevant people can be the “court.”
The case study of the South African presents us with vital lessons. Traditional leaders are allowed to administer and govern access to natural resources, security and safety. 40 % of the members of this adjudicative tribunal are elected whereas 60% are meant to be appointed by the senior most traditional elder. This helps to ensure that the people who cannot easily access formal courts are not forcefully subjected to the courts but find a way of providing mechanisms on their own. The same is also seen in Australia where there is a synergy between the formal and the informal justice systems, albeit in the context of land disputes. The Native Title Tribunal is established under the Native Titles Act. The tribunal does adjudicate on matters touching on Native Title to land. They also help the Natives to come up with agreements that help them to utilize the land.
The foregoing examples show that tribunals can be created in the communities of tribe or interest to facilitate the hearing and determination of all types of cases. Other than the example of R v Mohamed Abdow, research has shown that community based approaches to criminal justice can engender better results in punishment and reformation. The CSOs engaged in legal aid can, therefore, focus on building the capacity of the communities to handle their disputes by facilitating institutionalization of informal justice systems.
It is proposed that the same can take the form of hybrid ad hoc tribunals. It being the case that there is funding for the work of these CSOs, they can engage members of the legal fraternity to sit in these ad hoc tribunals. This can help by bringing expertise while at the same time align the law applied with both customs and the formal law as may be necessary. The other members can be trained through apprenticeship and seminars to enable them discharge their duties better. Where necessary, the provincial administration can also be roped in to assist in enforcement.
The challenges that may arise include gender balance, constitutionality of some of the clauses, weak accountability mechanisms and conflict with some of the human rights such as the equality clause under Article 27. However, these can be resolved through deliberate steps by the members and the facilitating CSOs to minimize the impact of these challenges. For instance, the election of the members of the panels or tribunal must include at least a third of each gender. Moreover, the linkage with the local administration can engender accountability. To further enhance accountability, the tribunal can be given the mandate to screen cases and determine which ones should find their way to a formal court in the event that parties fail to agree as appeals.
From the above, it is clear that informal justice systems can be utilized to enhance access to justice. Access to justice must not be restricted, under this typology, to the access by the marginalized to formal courts. If the CSOs, including those working under the Amkeni Wakenya initiate an assist the people to make use of the law, then the right of access to justice is realized. It is already being seen that such CSOs are moving away from merely facilitating access to the courts to assisting the communities to set up institutions that can enable them to make use of formal and informal laws. Further, since these will be the initiatives of the people, they will be malleable in order to accoodate the interests of the people. Evidently, the concept of justice for the marginalized may be different from that of the people using formal law as is illustrated by the case of R v Mohamed Abdow.
 UNDP, “Amkeni Wakenya - Civil Society Organization (CSO) Facility,” UNDP, available at https://www.ke.undp.org/content/kenya/en/home/projects/amkeni-wakenya.html accessed on 6/3/2020
 Ibid, Nyamu- Musembi 2003, note 5, see also Kamau W. "Women, Law and Dispute Resolution in Kenya: The Impact of Legal Pluralism." Presented at the LSA/RCSL International Conference on Law and Society held in Humboldt University, Berlin; 2007.See also generally by the same author, "Law, Pluralism and the Family In Kenya: Beyond Bifurcation of Formal Law and Custom.". (2009).
 Young L , Kipkorir S, Land, Livelihoods and Identities: Inter-Community Conflicts in Eastern Africa (London, Minority Rights Group International; 2011) available at //www.minorityrights.org/download.php@id=1076">http://www.minorityrights.org/download.php@id=1076
 See Republic V Mohamed Abdow (2013) eKLR and also Kariuki F, Applicability of Traditional Dispute Resolution Mechanisms in Criminal Cases in Kenya: A case Study of R v Mohamed Abdow, in Chartered Institute of Arbitrators Kenya, ADR, Vol No. 2(1) 2014 at 203
 Section 3 (d)
 Section 39 of the Community Land Act provides that communities may use TDRM or mediation to resolve community land disputes. On the other hand, the TKCE Act recognizes customary law and alternative dispute resolution under sections 12(3), 30(1) & 40. They acknowledge the fact that there are certain instances where alternative means of dispute resolution can be utilized.
 See generally Kariuki F, Customary Law Jurisprudence from Kenyan Courts: Implications for Traditional Justice Systems available at http://www.kmco.co.ke/attachments/article/137/TDRM%20and%20Jurisprudence.pdf, see also Article 159 (3) of the 2010 Constitution.
 Okoth-Ogendo, H. W. O. "Formalising" informal" property systems: The problem of land rights reform in Africa." Paper prepared for the Commission on the Legal Empowerment of the Poor(2014), available at https://learning.uonbi.ac.ke/courses/GPR203_001/document/Property_Law_GPR216-September,_2014/Articles/formalising_the_informal.pdf accessed on 3rd June 2020
 Chopra, T Building Informal Justice Systems in Northern Kenya (December 2008, Paper done in the Auspices of World Bank on the need for Justice)
 Section 37
 Article 63 as read with Section 2 of the Community Land Act
 Regardless of the tribal affiliations, if they live in the same area, they are then a community of interest
 It is imperative however, that for purposes of legitimacy, the people appointed must be of impeccable integrity so that they can command respect. Furthermore, in order to avoid the disadvantages of formal justice systems, the elders can be slowed to fashion their own procedure that is simple.
 Section 28
 Section 20
 Section 86 B as read with Section 251.
 Kras Kimberly, Community- Based Justice Systems, Oxford Bibliographies, 2017 available at https://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0216.xml accessed on 3rd June 2020.