In his address on 19th, June 2012 to the cohort of advocates who had signed the roll of advocates as part of the elaborate ceremony for admission to the bar, the then Chief Justice, Hon. Dr. Willy Mutunga, challenged members of the bar and judicial officers reflect deeper on the need for a situated jurisprudence and judicial practices that would advance the quest for access to justice for the larger majority of people in Kenya. It is in pursuit of this intent that, on 29th February 2016, the Hon. Chief Justice Dr. Willy Mutunga appointed the Taskforce on Alternative Justice Systems to look at the various Traditional, Informal and Other Mechanisms Used to Access Justice in Kenya (Alternative Justice Systems).[1]  Later, on 4th March 2016, the Taskforce was gazetted via Gazette Notice No. 1339.[2] The tenure of the Taskforce was subsequently extended by Chief Justice Hon. David Maraga to end of June, 2018.

We, the Chair and Vice-Chair to the Taskforce, appreciate that the mandate and task of the Taskforce came at a time when the formal judicial institutions in the country are manifestly challenged to find novel and practical ways to ensure a fairer society by revolutionizing the concept of justice and access to justice. This option embraces the call in the preamble of the Constitution of Kenya, 2010, namely pride in “…our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation”.  We have followed this instructive phrase alongside the obligation imposed on the Judiciary through Article 159(2)(c) of the Constitution by advancing the vision of a tolerant and pluralistic society as envisaged. Thus, the work of the Taskforce may alternatively be viewed as a labour Diversity, Dialogue and Dignity. This is the path less travelled, away from the thankless option of continuing with the sterile debate on needs and merits of AJS, but without action or outcome. We believe that our work has provided a provocative and convincing argument that can offer the much-needed fresh start.

We believe that, through this report, we have looked at access to justice and the judicial imperative of intervening in criminal and civil matters through the multiple lens of both the ordinary people and judicial officers (the bench, bar and administrators). In so doing, we have also attempted to dismantle the illusionary hierarchies in ease of access to justice and thus risen above the capture by any particular constituency. This gives us confidence that we have faithfully captured and conveyed the hopes and fears of our shared quest for justice in Kenya. We are keen to recognize and make real the opportunities for a better life that are presaged by the Constitution of Kenya, 2010. We believe that these aspirations are imminently realizable if our justice system embraces inclusive and accountable processes coupled with an earnest desire and action for preservation and promotion of human dignity as the ultimate paragon of justice and dispute resolution.

It is not possible to propose a panacea for the fractured and diverse modes of judicial thinking that abounds locally and abroad, but we believe that this Report can respond to the current trend where the Judiciary risks being left behind in the quest for innovative models of seeking justice. In effect, the Judiciary itself seems to be leaving the various AJS mechanisms behind in its jurisprudence and institutional design.  The approach of the Taskforce moves beyond the current casual talk and requires the Judiciary to effectively implement its constitutional and pragmatic imperatives. The Chief Justice and President of the Supreme Court, Judicial Service Commission (JSC) as well as the National Council for Administration of Justice (NCAJ) are thus called upon to ensure that this proposed Policy is implemented.

Our proposals focus on various levels. Beginning with the need for empowerment of local AJS in the various communities, we call for improved dialogue as well as effective accountability of all stakeholders. Our proposals are not grand: we believe that the grand proposals have been made in the transformative Constitution of Kenya, 2010. Ours are a series of small actions which, if taken together, will set off a cumulative process capable of, activating, enhancing and consolidating a critical network and mass of people, ideas and institutions that can only result in an effective justice system in Kenya. 

It was a pleasurable and uniquely enriching experience for us to work with the Taskforce, which comprised such a distinguished and immensely committed group of Kenyans. We wholesomely thank each and every Member of the Taskforce for their dedication, contribution and cooperation. We thank the very capable Secretariat of the JTI for hosting us and our work and the Strathmore Law School faculty that kept all records of our sessions and empowerment workshops. In the course of our work, we were joined and supported by numerous consultants whose thought and outlook greatly impacted our work, and we gratefully acknowledge them. We thank the Chief Justice for the decision to constitute the Taskforce and for entrusting us with the honour and responsibility to lead it.

[1] Mutunga, Willy Dr. “Remarks by the Chief Justice at the formal launch of the Isiolo Law Courts’ court-annexed alternative justice system and formal launch of the task force on alternative justice system”. Sportsman Arms Hotel, Nanyuki”. 2015.

[2] The Kenya Gazette Vol. CXVIII-No.21, 4TH March 2016, P. 838.

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