The Integration of the African Justice Systems (AJS) into the Judicial System in Kenya and its Challenges

The vision of the Constitution on the African Justice Systems

The Constitution of Kenya, 2010, which deals with the issues of spirituality, language, and culture, also deals with how African Justice Systems (AJS)* can be part of access to justice for all. The current demand for recognition and validation of AJS was formed as part of the people’s demands in the Kenyan constitution making processes. AJS’s major feature lies in the value of restorative justice that decries the limitations of adversarial justice systems. Data and my experience as Chief Justice show that less than 10 percent of the Kenyan population take their disputes to the formal courts. Among the reasons for this situation are the expense of access to the formal courts and the Kenyan colonial experience of the formal justice system being tantamount to gross injustice, immorality, domination, oppression, and exploitation of the people of Kenya.

Lawyers will remember the infamous “repugnance clause” of the colonial era, where customs, cultures, and AJS were routinely denounced as repugnant to British justice and morality. In the same colonial vein, African Traditional Religions (ATRs), African culture, and language were seen as Satanic and backward. Although the colonial government in Kenya allowed Native Courts, as appendages of the formal justice system, their decisions were subject to the repugnant clause. The native courts were abolished in 1965, two years after Kenya’s independence. The African Elders who heard cases in those courts were retired, while their clerks became District Magistrates. AJS did not die with the abolition of Native Courts. Indeed, AJS existed during and after the colonial period, and was validated and decreed by the Constitution. The existence of AJS, notwithstanding its oppression, is a great example of resistance to ensure people’s justice is not erased.

The Challenges

The struggle to integrate the AJS into the formal justice system in Kenya is one of the many sites of struggle within the Constitution of Kenya, 2010. The Judiciary of Kenya, since the promulgation of the Constitution, decided that this integration had to take place. Three Judiciary Transformation Frameworks on this issue have managed to get the process to the stage where decisions under the AJS can be filed in courts, thereby giving them the required judicial power for their implementation. This is a great milestone in the struggle for access to justice for all Kenyans.

There are, however, challenges that have to be addressed. It has become clear that the AJS must be accompanied by the translation of the Kenya Constitution, 2010 into our national languages. At the moment the Constitution is in English. We also have a draft in the other official national language, namely, Kiswahili. A debate continues on whether the translations into national languages of all communities in Kenya should be direct from the English version of the Constitution.

There has been a long tradition, since the colonial period, of the translation of the Bible into our national languages directly from the English Bible. The Holy Quran was first translated into Kiswahili from Arabic by the Chief Kadhi Abdalla Saleh Farsi in 1969. The Almaddyya Muslim sect in East Africa has translated the Holy Quran into some of our national languages from Urdu. The late Professor Mbiti translated the Greek Bible into the Kiikamba language. Chief Kadhi Kassim Mazrui translated four chapters of the Quran into Kiswahili from Arabic. 

The Constitution itself decrees that if there is a dispute between versions of the translated Constitution in national languages and the English version, the English version would trump those other versions. Indeed, there is a debate about the supremacy of the English version as the sole version from which the translations will be done. It has been suggested that a person who is well versed in the three languages, namely, English, Kiswahili, and one of the other national ones, can translate from English and Kiswahili two versions of the third national language and see how the two versions enrich each other. Ultimately, it seems the consensus will be the use of these approaches for a start and then debate the various versions in a conclave of the experts that will be involved in making the final decisions. The Offices of the Former Chief Justices will spearhead this project of the translations.

Without a doubt the AJS has resulted in building a critical following for the Judiciary. This following is critical for the independence and integrity of the Judiciary. The Executive and the Legislature routinely demean the power of the Judiciary, as decreed by the Constitution, on the basis that judges are not elected and that they have no popular following. This position by the Executive and the Legislature has been invoked to deny the Judiciary resources it needs. Both arms of the state believe they are entitled to all resources of the nation, an argument that has no constitutional basis. The critical following underway through the AJS will strengthen the constitutional reality of the equality of the arms of government and the necessity for equal access to state resources for their respective functions. The AJS will continue to build on this following as versions of the Constitution are available in all national languages. 

Professor Ngugi wa Thiong’o has written extensively on the development of our national languages. He has taken the lead in writing several books in the Gikuyu national language which have been translated into the English language. This is a great example of reverse learning between languages. In the language of our Constitution there should be equity, equality, and inclusiveness in all our languages in the struggle for social transformation.

In Lieu of a Conclusion

It would appear that the politics of the sites of struggle in breathing life into our transformative Constitution need to be taken seriously. Gen Z, the Millennials, and recently the Alpha Generation, have clearly shown us how we can make serious political demands from provisions of the Constitution where these sites of struggle are located.

*African Justice Systems comprise courts and adjudicatory structures outside of European-type court arrangements that settle disputes and deliver justice to African peoples through an African palaver system of consultation that is inclusive in resolving disputes. AJS is anchored in restorative justice, and never adversarial justice. It also reflects African values of humanity/Ubuntu/Utu.

Willy Mutunga was the Chief Justice & President of Kenya’s Supreme Court, 2011-2016. Since 2021, he has been an Adjunct Professor in Public Law at Kabarak University Law School.