The Judiciary’s Approach to incorporating the African Justice systems (AJs) into the formal Justice system: Challenges and Opportunities

Abstract

The incorporation of African Justice Systems (AJS) into Kenya’s formal legal system began during the colonial times, when native courts, administered by elders knowledgeable in African customs, operated alongside formal colonial courts. Clerks assisted by recording proceedings to align them with the African context-specific realities. The 1965 Magistrates’ Court Act integrated these native courts by appointing clerks as district magistrates, preserving traditional dispute mechanisms such as the Kithitu Oath of Ukambani, a powerful community-witnessed truth-telling process. Over time, however, High Court rulings curtailed court involvement in such traditional practices, requiring their application outside formal courts, though consent judgments could follow. Reviving these practices could involve formal recognition of elders’ decisions in courts, with paralegals supporting as clerks once did. So far, African Justice Systems have persisted, and they are constitutionally recognized under article 159(2)(c) of the 2010 Constitution, which promotes alternative and traditional dispute resolution subject to human rights safeguards in article 159(3). These constitutional safeguards ensure traditional mechanisms align with Kenya’s Bill of Rights and moral values enshrined in the preamble, articles 10, 20(4), and 259, ensuring cultural integrity complements constitutional justice. To support this integration, the judiciary formulated the Alternative Justice Systems Policy Framework, operationalized through the National Steering Committee on the AJS Policy (NaSci-AJS) and the rollout of county-specific Action Plans on AJS. These initiatives aim to mainstream traditional dispute resolution into the broader justice system, enhance access to justice, and affirm the cultural and constitutional validity of African Justice Systems in Kenya. To this end, this