Strathmore Law School

African traditional justice systems (hereinafter ‘TJS’) refer to all those mechanisms that African peoples or communities have applied in managing disputes/conflicts since time immemorial and which have been passed on from one generation to the other. TJS have also been described using other tags such as community, traditional, non-formal, informal, customary, indigenous and non-state justice systems. All these tags have often been used interchangeably in existing literature to describe localized and culture-specific dispute resolution mechanisms amongst peoples. Although, they have a huge potential for enhancing access to justice (particularly amongst groups that have been excluded from the formal justice system) in Africa, strengthen the rule of law and bring about development among communities,1 numerous challenges arise in operationalizing them. In recent times, however, they have been recognized in law subject to some limitations making it difficult to describe them using some of the stated tags. Such recognition is borne out of the increasing acceptance of their validity and legitimacy,2 as they are home-grown, culturally-appropriate, operate on minimal resources and are easily acceptable by the communities they serve.3 Formal justice systems such as litigation and arbitration, employ legal technicalities and complex procedures, are expensive, not expeditious and are located in major towns, and are therefore not easily accessible by a majority of the people particularly the poor.

This paper discusses African TJS, their nature, current manifestations and challenges in Africa using Kenya as a case study. The paper contains seven (7) parts. Part 1 is this introduction which offers a definition of TJS and a general overview of the paper. Part 2 discusses the nature of African TJS and is followed by examples of institutions that entrench TJS in Africa in Part 3. The principles that undergird dispute resolution in Africa are explained in Part 4 of this discourse whilePart 5 discusses the Kenyan legal landscape and how it seeks to regulate TJS. Part 6 assesses some of the teething problems in dealing with TJS while Part 7 provides a conclusion and offers some recommendations on the way forward.