Promoting and Reforming Kenya’s Customary Justice Systems in Criminal Cases

Authors

Daniel S. McConkie Jr.

Abstract

Kenya’s indigenous customary justice systems developed over time to administer African justice rooted in local community harmony. British Colonialists imposed a foreign legal system, and Kenya formally retained that system even after gaining independence in 1963. Nevertheless, ordinary Kenyans today continue to resort to customary justice systems for their legal problems, including many crimes. The 2010 Constitution requires the judiciary to promote customary justice systems because they are trustworthy and accessible. Paradoxically, though, the Constitution also forbids these customary justice systems from contravening other constitutional provisions. Therein lies the difficulty. Customary justice systems’ procedures do not always comport with the 2010 Constitution or international human rights standards. For example, the right to remain silent is foreign to and sometimes even antithetical to many customary justice systems. To reconcile this discrepancy, the Kenyan judiciary has developed policies, called the Alternative Justice Systems Policy Framework and Baseline Policy, to accommodate and recognize customary justice systems while simultaneously seeking to reform them. The judiciary’s policies emphasize education and training, hoping for voluntary compliance with the Constitution.

These policy challenges are not unique to Kenya. Many former British colonies find themselves in a similar situation, seeking to strengthen and reform their customary law systems to relieve overburdened state systems, provide greater access to justice, and promote human rights.

Recommended Citation

Daniel S. McConkie Jr., Promoting and Reforming Kenya’s Customary Justice Systems in Criminal Cases, 38 Emory Int'l L. Rev. 343 (2024).
Available at: https://scholarlycommons.law.emory.edu/eilr/vol38/iss2/2