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The resilience of traditional legal systems in addressing social injustice in Kenya
(University of Pretora)
Paper long abstract:
In Africa, law and society are intertwined in a complex relationship. Pre-colonial communities had developed elaborate dispute resolution mechanisms that were geared towards enhancing justice. Achieving justice was a means to ensuring that there was harmony, stability and prosperity in society. Colonialism imposed foreign laws and legal structures that severely disrupted the organization of pre-colonial societies. After independence, while African states maintained the imposed legal system and structures, the traditional legal system was also retained but relegated to a low status. In promoting social justice, African governments enacted new constitutions and infused liberal values in old constitutions. They constitutionally entrenched a number of independent offices and they significantly expanded the bills of rights. However, recent events have shown that the executive, judiciary and legislature are engaged in conflicts that are adversely affecting the stability of African societies. Of concern is that these conflicts could jeopardise these formal institutions' capabilities to address social injustice. Consequently, traditional justice mechanisms appear to offer alternative approaches to achieving social justice. In Kenya, the values in traditional African legal systems have now been recognized in the 2010 Constitution and statutory law. These principles are drawn from values shared by most Kenyan communities. In addition, Kenya's Constitution mandates the courts to encourage alternative dispute resolution mechanisms, especially those based on traditional legal systems. Therefore, traditional African justice mechanisms have proved resilient under the onslaught of foreign legal systems. Because communities in urban areas are not completely divorced from their rural ties, the same traditional justice mechanisms are still used. As such, many disputes are solved at the family, clan or community level without being escalated to the formal justice mechanisms. At the same time, when disputes that have been addressed through traditional mechanisms end up in the formal justice system, there is a possibility of the two systems reaching divergent results. With globalization, national courts are engaged in a dialogue with international courts, resulting in new norms that influence domestic norms. Therefore, the norms that the formal justice system applies may differ from those of the traditional justice system. This paper argues that there are important principles that could be extrapolated from such traditional legal systems in order to secure justice in "formal" (legal) institutions.
Disciplinary trends in Africa: legal and socio-legal studies