The place of Maslaha in the Kenyan Justice system

The Constitution of Kenya 2010, the supreme law of this land recognizes the place of Alternative Dispute Resolution mechanisms for many reasons including that it is efficient and would go a long way in decongesting the courts. This was further alluded and reinforced by the then Chief Justice, Hon. Dr. Willy Mutunga, during the commencement of ‘the Judicial Marches Week’ in 2012.

Every community in Kenya has some semblance of alternative dispute resolution mechanisms. Alternative Dispute Resolution (“ADR”) refers to any means of settling disputes outside of the courtroom. For instance, the Ameru have a council of elders known as Njuri Njeke, the Borana have the Agabadha as channels through which traditional dispute resolution is delivered.

Maslaha is a term that is foreign to a majority of Kenyans who reside away from Northern Kenya. Indeed, as a young advocate who has recently worked in Garissa County for a short period of time, it has been quite an experience encountering the workings of this informal justice system. Much like other traditional dispute resolution institutions like the Njuri Njeke, Maslaha is a traditional resolution mechanism practised within the Somali community in Garissa County and the larger North-Eastern region to settle feuds and disputes. Male elders act as mediators and use traditional means to solve the problems set before them. Within this regime, compensation is a large aspect of problem solving, whereby ‘payment’ is done by way of money or livestock.

Why is Maslaha preferred by the communities that practice it? For one, Maslaha is a part of the Somali culture. Secondly, it applies a concept of justice that is easily understood. Third, it also advocates for justice that is geared towards reconciliation and community cohesion as opposed to formal justice systems that lay emphasis on retributive justice and punishment. Additionally, Maslaha involves components of monetary compensation which directly benefits the aggrieved parties and offers a form of consolation as opposed to courts of law whereby the incarceration/punishment of the perpetrator of a crime against the aggrieved is deemed sufficient action to resolve the matter. Finally, the formal Kenyan justice system is perceived as complicated, lengthy and often inconclusive. From the foregoing, it is undeniable that Maslaha is instrumental in maintaining peace and cohesiveness through its reconciliatory dispute resolution approach.

Despite the numerous advantages attributed to Maslaha, there are several questionable aspects attached to it. For instance, Maslaha is applied even to murder and sexual offences. This is problematic as there are legal instruments that prescribe what penalties should be attached to such offences. The penal code already sets murder as a capital offence that is punishable by life imprisonment or death while the sexual offences act sets out sexual offences and punishment that accompanies them.

Secondly, Maslaha as a practice is heavily male dominated. There is almost complete non-existence of women in the councils of elders that serve as the decision makers in this institution. This means skewed outcomes and lack of realization of justice when it comes to matters that are gender sensitive eg Gender & Sexual Gender Based Violence and even felonies. For instance, there is a disparity of punishment whereby a larger/smaller amount of livestock should be paid by a perpetrator to a victim’s family based on the deceased’s gender upon their death i.e 50 heads of livestock for the death of a female victim while 100 heads of livestock is paid for the death of  a male victim.

Whilst Maslaha, has and will continue to be invaluable in the realization of justice, the blanket application thereof should be critiqued, as it raises pertinent questions such as what limitations and parameters exist in its application?

The law recognize and support alternative dispute resolution going by Article 159 of the Constitution provides that alternative forms of dispute resolution, however, they shall not be used in a way that contravenes the Bill of Rights or is repugnant to justice and morality, is inconsistent with the Constitution or any written law. The Judicature Act has a similar stance in section 3(2), adding that the use of African customary law in dispute resolution ideally applies only in civil cases.

Whilst the use of traditional resolution mechanisms should be encouraged, the judiciary, the office of the DPP and other non-state stakeholders such as the East African Centre for Human Rights (EACHRights) that operate within the justice sector need to enhance awareness and sensitization on aspects of human rights, gender and the law in communities where traditional dispute are preferred.

Finally, training of elders in traditional dispute mechanisms such as Maslaha on the Constitution and other legal instruments is imperative as they are the custodians of the law in their communities. It is only through direct engagement with them and their subsequent capacity building on the law that justice can be achieved without discrimination. Traditional dispute resolution mechanisms, Maslaha included are certainly viable avenue of justice, if they are practiced within the confines of the law.

Samantha Oswago

Advocate of the High Court & the Legal Officer at the East African Centre for Human Rights (EACHRights).

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