Alternative Dispute Resolution in the Criminal Justice System in Kenya

Abstract

Under the current Kenyan constitutional dispensation, ADR mechanisms are taken cognizance of under Article 159 so as to promote access to justice in accordance with Article 48 thereof with regard to intergovernmental disputes, communal land disputes and labour disputes. Nonetheless, the issue of the utilization of ADR mechanisms within the criminal justice system has been contentious. According to section 176 of the Criminal Procedure Code, courts can “promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated degree.” However there has been shocking jurisprudence such as in R v Mohamed Abdow Mohamed (2013) e KLR where felonies have been solved through ADR mechanisms. This study therefore sought to establish the boundaries of the application of ADR mechanisms and conclude by making recommendations on the legal, institutional and policy frameworks that would enable the incorporation of ADR mechanism in the criminal justice system. The study found that the boundaries of the application of ADR mechanism are determined by the type of crime, the parties involved and the timing of the application. Furthermore, it established that all applications to apply ADR mechanisms in criminal proceedings must involve the state through the prosecution since the state is also a complainant. Moreover, applications to apply ADR mechanism in criminal proceedings can only be done before a final judgement has been issued, otherwise the application will not be successful since it acceptance would be tantamount to usurping the powers of the courts. The study also found that ADR mechanisms have been applied in criminal proceedings in other jurisdictions such as Australia and Rwanda with great success. This study recommends that in the short term, the National Council on the Administration of Justice issues directions on the boundaries of application of ADR to criminal matters, specifically vi

on where it can or cannot be applied. It should also come up with policy guidelines that delineates the types of criminal matters where ADR mechanisms can be applied and direct such cases there directly with the supervision of the traditional justice system. In the medium term the National Council on the Administration of Justice should confer with various community leaders, especially in marginalized areas so as to make TDRMs non repugnant to justice which will improve their acceptability and application. In the long term the judiciary should apply special ADR mechanisms such as Family Group Conferencing, Victim Offender Mediation and Healing Circles in the juvenile courts so as to ease the backlog and reduce recidivism. Additionally, both the National Council on the Administration of Justice and the Mediation Accreditation Committee of the Judiciary’s pilot programme on Court Annexed Mediation should come up with guidelines that promote the uptake of ADR mechanisms in the Kenyan criminal justice system. This will go a long way in offering restorative justice to the people who need it the most.