The Honourable Chief Justice of the Republic of Kenya,
The Honourable Justice Joel Ngugi Chairperson of the National Steering Committee on AJS,
The Honourable Judges and Magistrates present,
Distinguished guests,
All protocols observed,
Ladies and Gentlemen
Good morning.
Today I stand here as an actor of justice and a promoter of the Alternative Justice systems. The question of access to justice in Kenya is a constitutional matter and a priority for all arms of government since the advent of multipartyism. The National Legal Aid Service (NLAS) is mandated to establish a national legal aid scheme aimed towards enhancing access to justice to the indigent, marginalized and vulnerable members of the society. The Preamble of the Legal Aid Act, 2016 states that the Act gives effect to articles 19(2), 48, 50(2)(g) &(h) of the Constitution, to facilitate access to justice and social justice. Further the Service is required to promote alternative dispute resolution mechanisms. To this end NLAS plays a critical role in promoting AJS.
This year’s theme for the conference “Alternative Justice Systems as culture and innovation in accelerating social transformation through access to justice” highlights the transformative potential of alternative approaches to justice.
Ladies and Gentlemen, I am encouraged to note the many efforts by different state and non-state actors in coming up with different roadmaps, strategic plans and work plans, all aimed at creating shared approaches and responsibilities towards ensuring that access to justice is not a matter of rhetoric but a reality. This cooperation will form a foundation for the sector’s wide approach to access to justice and ensure that there are more synergies between and among institutions while reducing duplication. It will also contribute towards cross-fertilisation on approaches that are working and how the current and future programming should look like. NLAS is delighted to be part of the stakeholders and we come with a listening ear and a learning hat.
Culture is dynamic and inherently anticipates readiness to adapt to changing times. This, in our opinion, is not changing fast enough in relation to women and children and many other marginalised groups.
NLAS plays a significant role towards access to justice for all Kenyans, especially for women, the vulnerable and marginalized population segments while respecting culture and informing it to also be dynamic.
Ladies and Gentlemen; Allow me to say that the term ‘access to justice’ had all along been perceived as an individual’s pursuit for justice through the established legal bodies. Today, the meaning is more than that, and has gained new meaning in development agenda. It is obvious that access to local justice is now regarded as a fundamental instrument of ensuring human rights, good governance, inclusive and sustainable development as well as a process of tackling poverty, inequality, lawlessness and discrimination. Moreover, the quest for access to justice in Kenya and elsewhere in Africa has historically been rooted in the formal and informal structure of local justice mechanisms. The evidence suggests that there is an urgent and necessary need for sectoral policy framework which is aimed at ensuring the most accessible, affordable, convenient and viable route to justice reform. Therefore, Alternative Justice Systems that are in continuous dialogues with the indigent’s cultures is needed to promote and tackle broader structural, social and economic issues of the country.
Ladies and Gentlemen; Justice sector reforms are not a new issue for development cooperation in Kenya, but the priorities and approaches have changed over time. Previously, aid to the justice sector was concerned with the administration of justice, especially criminal justice, legal education and law reform. This ‘law in development’ approach was based on the assumption that legal reform and improvements in judicial institutions would spur economic development.
The need to strengthen the ability of citizens, especially disadvantaged people, to access legal institutions was included in these early programmes. However, access to justice was narrowly identified with legal aid, representative (class) action and alternative dispute resolution.
The advent of the multiparty democracy meant a different emphasis by the international community on the rule of law, which was now seen to underpin structural and fiscal reforms that would create domestic economic environments conducive to foreign investment and trade and, therefore, national economic growth and integration into the global economy.
Of particular concern in this context were the enforceability of property laws and contracts, the regulation of the banking sector and private enterprises, and prosecutions for corrupt practices. At the same time, human rights and social justice activists pursued a parallel strand of rule of law interventions focused on civil society organisations. On the same vein, transitional justice efforts to seek justice for the victims of human rights violations through authoritarian regimes, such as the Human Rights Commission, was pursued by a separate set of indigenous movements and institutions.
It is now very timely and informative that we are seeking to go back to the origins of human societal engagements expressed in cultural norms and values. This conference will give us new insights to share what needs to be improved in the access to justice narrative in order to resonate with the needs of our country.
Moreover, legal and judicial systems are not restricted to formal, “modern” laws and institutions: they include informal and traditional law and procedures, and culture is one of them.
It is a fact that Alternative Justice Systems are deeply rooted in our cultural practices and traditions. Embracing these systems as part of a society’s culture acknowledges the values and diverse ways of resolving disputes; and promoting social harmony.
Ladies and Gentlemen; By incorporating cultural perspectives into the design and implementation of alternative justice mechanisms, social transformation becomes more contextually relevant and inclusive.
Thinking about innovation; AJS fosters innovation by encouraging new ideas, methods, and practices in solving various disputes that are drawn from the various cultural and traditional practices. This challenges the conventional notions of justice and explores creative approaches to conflict resolutions which are more efficient, effective, and accessible to the needs of diverse communities within our environment. This notion is also key in advancing legal aid services hence giving impetus to the National Legal Aid Service, the state agency required to finds ways in which legal aid is accessible, effective and efficient. Ladies and Gentlemen; AJS has provided that platform.
It is also important to note that AJS addresses the issue on access to justice by providing options that are more accessible and affordable for marginalized, indigent and vulnerable persons. It bridges the gap between formal legal systems and individuals who face barriers such as financial constraints, language barriers, or cultural unfamiliarity. By expanding access to justice, alternative systems contribute to a more equitable society.
Ladies and Gentlemen; AJS emphasizes community involvement and decision-making. It empowers individuals and communities by allowing them to actively participate in the resolution of conflicts. This participatory approach strengthens social bonds, encourages collective problem-solving, and promotes a sense of ownership over justice outcomes.
AJS also takes a holistic approach to justice, considering the social, emotional, and psychological aspects of disputes. It prioritizes healing, restoration and reconciliation rather than solely focusing on legal outcomes.
This Approach addresses underlying causes of conflicts, promotes empathy and contributes to broader social transformation.
Ladies and Gentlemen: AJS offers the opportunity for customized and context-specific solutions. This system takes into account the unique circumstances and the needs of the parties involved in a dispute, hence allowing for more tailor made resolutions which are not only mutually acceptable and sustainable to the parties, but is also a contributing factor to long-term social change.
Ladies and Gentlemen; by embracing alternative justice systems as a culture, this encourages continuous learning, adaptation, and collaboration within the communities, as it prompts the exchange of knowledge and best practices among different communities, organizations and justice stakeholders.
Ladies and Gentlemen; allow me to emphasize that a collaborative environment fosters innovation, promotes shared learning, and accelerates social transformation through collective efforts. Alternative justice systems offer opportunities for transformative change, increased access to justice and the development of more inclusive and effective solutions to societal conflicts.
Before I conclude allow me to state the obvious: our courts which are closer to people in rural areas, and who are mostly the poor, are often poorly resourced, and offer a limited range of services either because of jurisdiction or other reasons.
Additionally, communities in rural settings prefer traditional mechanisms of conflict resolution compared to formal courts. This is attributed by several factors including; lack of familiarity and awareness of the roles and purpose of the Judiciary, as most people do not know the kind of cases to bring to the attention of the courts, and most communities do not regard the court as relevant to their needs.
Secondly, there is lack of support services for example, paralegals, police officers and prosecutors who can generate quality work for magistrates.
In addition, lack of trust in the above-mentioned institutions. NLAS wishes to enjoin the sector stakeholders in order to find working arrangements that espouse cultural norms and practices being used in the various communities to ensure access to justice for all. Culture, in our view, is a key component in entrenching the precepts of access to justice for all.
Ladies and Gentlemen; In conclusion, I must say that it is an honour to be among such accomplished individuals to present my perspectives before all of you.
Thank you and have a good day.