Utilizing The Traditional Justice System To Guarantee The Right To Security Of The People Of Marsabit County Under The 2010 Constitution

Abstract

The Constitution of Kenya 2010 bestows upon the government the mandate to guarantee the rights and fundamental freedoms of the people of Kenya under the Bill of Rights. The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings. Marsabit County has suffered its share of conflicts with most being the constant struggle over scarce resources of pasture and water especially during the dry-spell that leads to drought in most cases. The communities have also had their interpersonal and social trust undermined by conflicts that have afflicted them destroying their social norms, values, and institutions that mitigated and resolved them for the common good of the community. The conflicts have resulted in numerous casualties, due to the neighboring unstable countries like Somalia and Sudan, the proliferation of small arms and ammunitions that have made cattle raids complex and sophisticated and commercialization of livestock rusting. It has led the state to fail to guarantee the right to security of the people of Marsabit County. Due to the County’s marginalization, most public institutions are not adequately equipped, staffed or facilitated to handle their service delivery to the people. The State Agencies are unable to prevent or adequately respond to these conflicts. The judicial institutions lack the capacity to try perpetrators making them have a less deterrent effect. The work of both the judicial and enforcement agencies is undermined as the legal processes have been unable to stem conflicts. This study examined how the right to security of the pastoralist communities in Marsabit County has been violated by successive governments both pre and post-independence. The study xiii explored how such violation has led to the recurrence of conflicts that have escalated and intensified over the years leading to loss of lives, massive destruction of property, internally displaced persons (IDPs) and refugees. The study established how the communities in Marsabit used the traditional justice system to restore peace after conflict situations through reconciliation by bringing harmony to the warring communities. The study interrogated the relevance and potential utilization of the traditional judicial system to manage and resolve current conflicts in the region, which have in most cases contributed to a violation of their right to security. The study utilized the case study of the Borana justice system to illustrate the potential use of the traditional justice system with government as its custodian to guarantee the right to security of the people of Marsabit County. The study recognized the central role and importance the government plays in the provision of human security, hence its position to act as the custodian of the right to protection of the nomads. The causes of violent conflict in Marsabit County, the dynamics of conflict and their impact are well researched by both Peace and security experts and academicians. Most of these researchers have focused on strategies and mechanisms used to prevent, mitigate and transform violent conflict in Marsabit County. However, there has been insufficient analysis on how such strategies and tools can be effectively utilized to minimize the recurrence of conflicts to guarantee the right to security of the people of Marsabit County