Alternative justice system way to go

Wednesday, March 27th, 2024 06:00 | By
Court gavel
Court gavel. PHOTO/Pexels

The Kenyan justice system is adversarial. This is a legal regime used in the common law countries where two advocates represent their parties’ positions before an impartial person or group of people, usually a jury or judge, who gives the verdict.

The adversarial system assumes that the best way to get to the truth of a matter is through a competitive process to determine the facts and application of the law.

At the end of the trial of dispute, it renders one of the parties as winner and the other a loser. While one party is vindicated by a decision, the other suffers injury. Judgments are delivered usually after protracted fights in courts, often attracting huge legal fees.

Some cases delay or frustrate investment, sharing of property, pensions and release of compensation to deserving cases of families of deceased persons. Some others drive individuals into penury, despair or even death. This has been pointed out as the major weakness of the legal tradition.

That is why we encourage Kenyans to heed the advise by Judiciary for them to explore Alternative Justice System (AJS) resolution mechanisms.

The move will not only reduce the huge backlog of undecided disputes in courts – some lasting more than three decades – but also speed up administration of justice. The other outcome will be decongestion of prisons for individuals seeking appeals in cases as well as petty offenders.

The AJS system allows litigants in criminal and civil cases to resolve disputes outside the jurisdiction of courts through healthy negotiations. The system is not only supposed to resolve cases but mend broken relationships as parties are given chances to express themselves without restrictions.

Unlike the court system, AJS ensures all parties win and get what they want.
It comprises arbitration, mediation, consent agreements and blood money compensation to resolve disputes.

The arbiters in these cases include elders, prisons in-charge, lawyers, religious leaders supervised by court officials.

While advising Kenyans to pursue the route, a judge cited a succession case that had been in court since 2006 that was resolved in one sitting. Also, over 250 cases for sex workers and 400 disputes in the boda boda sectors were resolved within a short time.

Importantly, the alternative justice mechanism ensures all parties win and reconcile after resolving disputes. And the process is usually supposed to take six months.

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