‘Alternative Justice Systems’ in Kenya : The Taskforce’s Conceptual Minefield

Abstract

This paper critiques several fundamental concepts conceived and introduced into the discourse on Alternative Justice Systems (AJS) in Kenya by the Judiciary’s ‘Taskforce on AJS’. To attain this objective, the authors highlight the lack of clarity on the concepts of Access to Justice (A2J), AJS, mechanisms and methods, customs and norms, law
and legal systems, and repugnancy as used by the Taskforce. This paper provides clarity on the concept of A2J as ‘socio-economic justice’, AJS as a ‘justice system’ within the general legal system and serves only as an alternative to a dispute resolution mechanism, ‘mechanisms’ as a broader framework which contains ‘methods’, customs and norms which are not analogous with, and may or may not be part of, the ‘law and legal system’, and the ‘repugnancy clause’, which is innocuous and has no content until applied within a specific space-time. Within the discussion on AJS, the authors also clarify the distinctions among the concepts of ‘legal system’, ‘justice system’ and the ‘judiciary’; ‘state or formal’ and ‘non-state or informal’ institutions and processes; ‘judicial’ and ‘non-judicial’ institutions and processes, and ‘traditional’, ‘community’, ‘customary’, ‘African’ or ‘indigenous’ systems. The paper concludes that the Taskforce’s report applies these concepts in a manner that is confusing or conflated, hence, leading to a conceptual minefield.