Traditional dispute resolution
This research examines the potential significance of traditional conflict resolution.
In post-colonial countries, notably in Africa, it is challenging to lower the burden of excessive litigation.
In the African context, regulation included more than merely coercive legislation enacted by official government structures.
Other types of dispute resolution are in liking because they had the ability to maintain cohesion even disruptive disputes had occurred.
Elders from the warring communities came together to resolve inter-and intra-ethnic problems.
The introduction of Western legal systems to Kenya with the onset of colonialism and capitalism imposed tight constraints on the use of Traditional Dispute Resolution procedures (TDRMs).
Article 2(b) of the Native Courts Regulations Ordinance, 1897, for example, allows for the employment of TDRMs, which are made up of local chiefs and elders, but are subject to the repugnancy test by Article 52 of the Order-in-Council of 1897.
The Native Tribunals Ordinance of 1930
The Native Tribunals Ordinance of 1930, section 13 (a), gave native tribunals the authority to administer customary law as long as it did not offend justice or morals, and was not in conflict with any Order in Council or other law in force in the colony.
As a result, Africans had little say in what they thought was morally just or just.
When an African customary norm failed to pass the repugnancy test, officials resolved the case on the basis of accepted natural justice.
Some of the conventional customs that the “civilised” administration forbade were the murder of twins and trial by ordeal. The repugnancy test was not based on the African community’s conscience in performing a tradition; rather, it was based on “higher” and more universal British justice and morality norms.
Problems
While TDRMs reflect Kenyan communities’ culture and interests, they are not without flaws.
The Kami of Giriama, for example, have been accused of being influenced by corrupt individuals on a regular basis.
Research findings
TDRMs are the most cost-effective and time-efficient means of obtaining justice. The term “access to justice” refers to a scenario in which persons who have a complaint can obtain effective remedies from a justice system that is cost-efficient, accessible, and can dispense justice fairly and swiftly in accordance with human rights and the rule of law. It could also entail enshrining rights in the law, raising public awareness of and comprehension of the law, providing access to information, and swiftly enforcing judgements. The principles of quick resolution of conflicts, proportionality, equal opportunities in the legal system, procedural fairness, party autonomy, affordability, party satisfaction, and effectiveness of remedies are all included in this study’s definition of access to justice.
Virtues
Factors such as recusal of “adjudicators” on the basis of bias, giving explanations for decisions, and the right to be heard are rarely included in TDRMs, despite their importance for a successful justice system. This is in direct opposition to Rawls’ notion that justice can only be achieved through fair procedures and an equal allocation of opportunity among disputants.
Conclusion & Recommendations
Indeed, official courts have acknowledged the importance of TDRMs, confirming this fact. The repugnancy clause is an attempt to govern TDRM administration by determining whether they are unjust.
However, there is no agreed-upon standard for the repugnancy clause’s justice and morality parts. Different Kenyan communities have their own distinct systems of TDRMs, which may differ from one another, making it impossible to establish a standard of justice and morality application.