Alternative Justice Systems

What is Alternative Justice Systems?

Alternative Justice Systems (AJS) is both a philosophical concept as well as a process for accessing justice. As a philosophical concept, and consistent with the human rights school of thought, it is based on the following fundamental ideas: freedom, equality, non-discrimination, dignity, and equity. All these are contained in the Constitution of Kenya. As a process for access to justice, AJS refers to initiatives that can be taken to attain equality and equity for all members of a particular political economy. Practices within the AJS regime pre-date colonization. But, as the historical record demonstrates, they became manifest during the colonial era, owing to attempts by colonialists to stifle them. Endeavors by colonialists to classify AJS as a native system failed to bear any fruit. Paradoxically, these steps gave the AJS regimes prominence within the political societies that they were found. As a matter of fact, AJS is a constant, dynamic, living and often situated series of actions and modes of thought that seek to rewrite the historical record, which the colonial political project attempted to distort. AJS is the lived experience of the people it seeks to serve. As a process, AJS actively works towards structural equality.

AJS in Land Sector

In determining how Alternative Justice Mechanisms should be promoted in solving land disputes the following questions needs to be considered;

  1. Constitutional Underpinnings and Jurisdiction

  1. How to infuse Constitutional values into AJS? (Chapter 5 of CoK & Article Article 10)

  2. How can we infuse Constitutional principles?

  3. How can the rights of women and children be protected?

  4. What about cultural practices in conflict with the provisions and spirit of the constitution?

  5. How do you control for quality and increase capacity for justice?

  1. Agents /Stakeholders

  1. Who are the elders?

  2. How are they appointed?

  3. Who should appoint them?

  4. What criteria should be used to appoint them?

  5. How do we ensure the inclusion of women and marginalized groups?

  1. Application in Land Sector

  • Mapping of resources
    • How is land an issue
    • Where is it an issue
    • When is it an issue
    • Why is an issue
    • What is the issue
  • In what circumstance do land related disputes arise
    • Control
    • Ownership
    • Access
    • Compensation
    • use

 

  1. Resolution Points/centres
  • Where do people report most land questions/disputes?
  • Who do they report to?
  • How are the cases resolved?
  1. Remedies
  1. What kind of remedies do people seek when raising land complaints?
  2. What actions/interventions do the following take
  • Elders
  • Provincial Administration
  • Religious Leaders
  • Family member
  • Paralegals
  • Courts
  • Party involved in disputes