Evaluating the Place of Alternative Justice Mechanisms as a Form of Restorative Justice in Kenya: Interrogating Best Practices From the South Africa’s Criminal Justice System

Abstract

Restorative justice is one of the many modern approaches to justice that are geared towards addressing the justice needs in the criminal justice systems. Its objective is to offer the affected parties a chance to dialogue by identifying the cause of the crime in question, the parties’ needs arising from that crime, and how to best remedy the situation. This expands room for a people-centred process thus advancing the course of justice. Alternative justice systems, exhibit restorative justice principles and objectives which are geared towards achieving reparation, rehabilitation, and reintegration. These objectives eventually translate to deterrence which is one of the objectives of criminal law. This research has discussed alternative justice systems as an embodiment of restorative justice principles and its understanding within the Kenyan context. The research found that restorative justice is an old idea of justice whose application has been dynamic to accommodate the legal requirements and social changes. It is no longer confined to the traditional dispute resolution model but has numerous other forums that are constituted based on religion, family, local administrative units, civil rights groupings etcetera, with all being referred to as the informal justice systems. The alternative justice elements have further been traced in the Kenyan legal and institutional structures, with Article 159(2)(c) forming a bedrock on which all are anchored and from which other laws and institutions of AJS draw their strength. The centre of focus in this research has been the practice of AJS in courts and the emerging jurisprudence as envisaged in the constitution.1 However, uncertainty exists on the part of the courts on how they should treat negotiated settlements in cases classified as felonies. To cure this situation, the research borrows from the practice in South Africa and recommends to the Kenyan parliament to enact a law or laws that implement the constitution as well as legislating on diversion which has been described as a restorative justice tool. There is currently no statutory backing that is specific to diversion a fact that hampers its effective application. A law on diversion will be specific in making provisions on alternative to trial. In addition to legislation, the judiciary has a role to interpret the law in a way that promotes human rights.2 This is an opportunity for courts to develop progressive jurisprudence on matters of AJS to harmonize, clarify, and create uniformity in practice thus enhancing trust to the justice system as a whole.