Drafts by Francis Kariuki
African traditional justice systems (hereinafter ‘TJS’) refer to all those mechanisms that Africa... more 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.
Papers by Francis Kariuki
SSRN Electronic Journal
The Centre for Research on Financial Markets and Policy was established by the Kenya Bankers Asso... more The Centre for Research on Financial Markets and Policy was established by the Kenya Bankers Association in 2012 to offer an array of research, commentary, and dialogue regarding critical policy matters that impact on financial markets in Kenya. The Centre sponsors original research, provides thoughtful commentary, and hosts dialogues and conferences involving scholars and practitioners on key financial market issues. Through these activities, the Centre acts as a platform for intellectual engagement and dialogue between financial market experts, the banking sector and the policy makers in Kenya. It therefore contributes to an informed discussion that influences critical financial market debates and policies. The Kenya Bankers Association (KBA) Working Papers Series disseminates research findings of studies conducted by the KBA Centre for Research on Financial Markets and Policy. The Working Papers constitute "work in progress" and are published to stimulate discussion and contribute to the advancement of the banking industry's knowledge of matters of markets, economic outcomes and policy. Constructive feedback on the Working Papers is welcome. The Working Papers are published in the names of the author(s). Therefore their views do not necessarily represent those of the KBA. The entire content of this publication is protected by copyright laws. Reproduction in part or whole requires express written consent from the publisher.
The Constitution of Kenya, 2010 has recognized community land as one of the categories of land. C... more The Constitution of Kenya, 2010 has recognized community land as one of the categories of land. Community land is defined in Article 63(2)(d) to include land lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by hunter-gatherer communities or lawfully held as trust land by the county governments. The book examines how community forests, an important part of community land, can be secured while affording the land rights of forest communities to access them for livelihood. The book seeks to examine the treatment that such lands have received under formal laws in Kenya and the implications of their protection under the Constitution of Kenya, 2010. It also makes proposals and recommendations on how to improve the laws to ensure they adequately protect the land rights of forest communities. This is important because the multiple uses that forests can be put into present a challenge in dev...
Water and sanitation are essential for development and preconditions for poverty reduction, healt... more Water and sanitation are essential for development and preconditions for poverty reduction, health and security (GoK, 2012). However, access to water and sanitation amongst the rural and urban poor in Kenya remains very low, (UNDP, 2007) making significant the fact that approximately 80% of all communicable diseases are water-borne (UNDP, 2007). The situation might, indeed, be worse: reports indicate that 65.9% of the Kenyan population will be living below the poverty line by 2015 (GoK, 2005). According to the Joint Monitoring Programme, 1 access to safe water supplies throughout Kenya is 59%. Out of the Kenyan population of 45 million, 17.5 million lack safe water (Water.org, 2014). In Kenya, as elsewhere in Africa, the burden of fetching drinking water from outdoor sources falls disproportionately on women and girls 1 See Joint Monitoring Programme for Water Supply and Sanitation of WHO Report 2012. See also the 2008 report which revealed that 59% of Kenyans (83% in urban areas and 52% in rural areas) had access to improved water sources. 19% of Kenyans (44% in urban areas and 12% in rural areas) were reported as having access to piped water through a house or a yard connection. Water is Life 82 (UNICEF, 2012). In Sub-Saharan Africa, people spend 40 billion hours every year just walking to collect water, with women bearing two-thirds of the burden of drinking water collection. This leaves less time for other socioeconomic activities (UNICEF, 2012). In Kenya, collecting water takes longer than 30 minutes per trip for more than a quarter of the population (UNICEF, 2012; Maoulidi and Salim, 2011). 2 The average distance people travel to reach water sources in rural Kenya ranges from two to 12 kilometers which is further than the 1,000 metres recommended by WHO. Apart from the distance, concerns about the quality of the water arise since the consumers share water points with animals, which can result in contamination. In urban areas like Nairobi, the time spent collecting water is much less than that spent in rural areas, especially where there is piped water. (Uwazi, 2010). The cost of water in urban areas is, however, not affordable for the poor who are likely to pay much more than the middle-class in urban areas of Kenya (Uwazi, 2010), as explained below, thus inhibiting their enjoyment of the right to water. The inadequacy in quantity and quality of water is also a problem that calls for action on the part of the government in order to achieve the Millennium Development Goal (MDG) by 2015 and the post-2015 development agenda. It is notable that water laws and policies have not promoted access to water services and sanitation provision for the rural and urban poor. Informal settlements have not been recognized in urban plans and, as such, lack water and sanitation supply infrastructure. Local authorities are not involved in water and sanitation services' supply arrangements and this has created room for other actors to bridge this gap (GoK, 2005). Worse still, water and sanitation service provision has been linked to land tenure, thus denying millions of landless people access to water. Consequently, the poor have to access water from unregulated water providers where water tariffs are 5-20 times more than tariffs applying to metered facilities. 2 This considerably reduces the time that women and girls have for other activities such as childcare, income generation and school attendance. See also Maoulidi and Salim (2011), who note that women in Kisumu spend a disproportionate amount of time on household tasks, which leaves them with less time to engage in income-generating activities. The average distance to the nearest water point in Kisumu is one kilometre. They further add that in poor urban areas, establishing water points near homes is very beneficial because it not only provides safe water for the whole community, but also alleviates girls' and women's workloads.
The existing intellectual property (IP) regime is, by and large, inapt and inadequate for the pro... more The existing intellectual property (IP) regime is, by and large, inapt and inadequate for the protection of Traditional Ecological Knowledge (TEK). One of the reasons behind the IP regimes inappropriateness in protecting TEK, is its anchorage in notions of ‘ownership’. Thus, there is need to examine the notion of ownership in protecting TEK. This article articulates the challenges that are bound to arise in Kenya by applying the concept of ‘ownership’ to TEK protection. An extensive review of literature on TEK and IP is done before an analysis of the Protection of Traditional Knowledge and Cultural Expressions Act of 2016 of Kenya is conducted to illustrate the incongruences, complexities and contradictions that ensue with the usage of the concept of ownership. The article finds that since TEK is holistic, and TEK holders are merely custodians on behalf of past, present and future generations, customary law and traditional governance structures are more suitable in protecting those ...
SSRN Electronic Journal
Colonialism impacted the social, cultural, political and economic life of Africans in a very sign... more Colonialism impacted the social, cultural, political and economic life of Africans in a very significant and radical manner. With it, a western legal tradition, premised upon an Anglo-American jurisprudential thought was imposed on Africans. African values, norms and beliefs, which provided the normative and undergirding framework for conflict resolution, were severely weakened, undermined and disregarded. Withal, the resilience of African justice systems across African States, illustrates that they still occupy a central place in the world of dispute resolution in Africa as exemplified by their recognition in laws and policies. The paper assesses the institution of elders in conflict resolution. Using examples across the African continent, the author examines some of the successes and challenges faced by elders, and opportunities offered by the institution in enhancing access to justice amongst African communities.
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The Constitution of Kenya 2010, provides a firm legal basis for the application of traditional di... more The Constitution of Kenya 2010, provides a firm legal basis for the application of traditional dispute resolution mechanisms. It presents courts and tribunals with the opportunity to apply these mechanisms in a wide array of disputes, including in criminal cases. Traditional dispute resolution systems are anchored and firmly embedded in the customs and traditions of communities and thus being part and parcel of their lives. These processes have been applied by communities in settling disputes of a civil and criminal nature. Consequently, they have the potential to enhance access to justice and strengthen adherence to the rule of law as they promote social justice and foster harmonious co-existence. Using the court decision in Republic v Mohamed Abdow Mohamed [2013] eKLR, as a springboard, the paper examines the applicability and/or appropriateness of traditional dispute resolution mechanisms in settling criminal cases. The paper argues that the scope of Article 159 of the Constituti...
Natural resources are vital for human survival. They are sources of livelihood for most communiti... more Natural resources are vital for human survival. They are sources of livelihood for most communities in Africa. However, access to, control and use of natural resources in most of Africa has been limited, denied or undermined by laws and policies carried over from the colonial period. Using some examples from the colonial era, the paper argues that current environmental injustices in Kenya have roots in colonial laws and policies. It also explores the provisions of the Constitution of Kenya 2010, and some of the sectoral laws enacted under it on environmental justice. The conceptual parameters of environmental justice adopted in this discussion are to assess whether the laws, policies and regulations under study distribute environmental burdens proportionately; whether they have adequate provisions for all to participate in environmental decision-making and whether they allow all to have access and enjoy a fair share of natural resources. * Ph.D in Law, LL.B, LL.M (Env. Law, Nairobi)...
Land Tenure Systems in the Pre-Colonial Era…………………………………………...35 2.3 Colonial Policies and Legal ... more Land Tenure Systems in the Pre-Colonial Era…………………………………………...35 2.3 Colonial Policies and Legal Instruments and their Impact on Communal Land Tenure…………………………………………….………………..37 2.3.1 Land Alienation……………………………………………………………………….…38 4 2.4 Land Management in the Native Reserves………………………………………………41 2.4.1 Implication of Colonial Laws and Policies on Communal Landholding in the Reserves…………………………………..…………….45 2.4.2 Land Reforms in the Reserves and their Implications on Native Lands…………………47 2.4.3 Effects of Reforms on Native Lands……………………………………………………..51 2.5 Efforts to Secure Community Land……………………………………………………...52 2.5.1 Community Land Law…………………………………………………………………...56 2.6 Interactions between Land, Tree and Forests Tenure………………………………...….58 2.7 Forest Tenure and its Relationship with Land and Tree Tenure……………………...….60 2.8 Land Tenure vis-à-vis Land Use……………………………………………………...….
The lack of a constitutional guarantee to a clean and healthy environment was widely seen as the ... more The lack of a constitutional guarantee to a clean and healthy environment was widely seen as the main setback towards achieving an integrative and harmonious policy and legal framework for sound environmental management in Kenya. The clamour for an integrated framework resulted in the enactment of the Environmental Management and Co-ordination1 and more recently the Constitution.2 This paper appraises the constitutional basis of environmental rights in ensuring that they are observed, respected, protected, promoted and fulfilled. The scope of the right to a clean and healthy environment will be examined. Equally the authors examine the efficacy and the role of procedural rights such as access to information, access to justice and public participation in decision-making in the promotion, protection and fulfillment of environmental rights. The enhanced role of the courts under the constitution in promoting and safeguarding environmental rights through their judgments, declarations and...
A journal article by Kariuki Muigui and Kariuki Francis, published in Strathmore Law Journal, SLJ... more A journal article by Kariuki Muigui and Kariuki Francis, published in Strathmore Law Journal, SLJ - Volume 1, Number 1, June 2015.
The paper examines the role of traditional knowledge (TK) holders’ institutions in the realisatio... more The paper examines the role of traditional knowledge (TK) holders’ institutions in the realisation of components of Sustainable Development Goals (SDGs)-9 and 16. Using two case studies, from the kaya elders (Mijikenda community) and Mbeere traditional potters, the study found that TK holders’ institutions are essential, and can play pivotal roles in attaining aspects of the said SDGs. As key drivers of, and essential governance frameworks for innovation, they contribute to the creation, diffusion and application of innovation (a component of SDG 9); while the innovation they generate continues to replenish and strengthen them. Additionally, their role in promoting peace and justice, and an inclusive and practical approach to gender means that they can be instrumental in strengthening formal institutions, especially the intellectual property (IP) institutions (a component of SDG 16). As data repositories and governance frameworks, they have an impact on the prevalence, type and natu...
The legal framework in Kenya on community, customary and traditional justice systems, provides fo... more The legal framework in Kenya on community, customary and traditional justice systems, provides for these mechanisms as if they are similar. The terms ‘traditional,’ ‘customary’ and ‘community’ have also been used interchangeably as if they are synonymous. However, these terms have nuanced meanings, are value-laden and the normative content of the respective justice systems they describe are different to some extent. This paper discusses how the law uses the terms ‘traditional,’ ‘community’ and ‘customary’ in describing the different justice systems. It also highlights the conceptual parameters, juridical content, scope, conflicts and overlaps in the use of the mechanisms in the legal framework. Further, the paper explores the appropriate terminology in describing informal justice system. 1.0 Introduction Community, customary and traditional justice systems have for a long time operated outside the formal justice system without adequate recognition and protection in law. They have be...
For a long time, the jurisprudence emanating from Kenyan courts has treated African customary law... more For a long time, the jurisprudence emanating from Kenyan courts has treated African customary law as an inferior source of law in comparison to formal laws. Consequently, certain customary practices and traditions that can foster social justice and peaceful coexistence amongst communities such as traditional justice systems had not been formally recognized in law. However, the 2010 Constitution recognizes customary law and the use of traditional dispute resolution mechanisms in resolving disputes. It also protects the culture and other cultural expressions of the people. This recognition is important because of the close interlink between traditional justice systems and customary law. In this paper, an examination of previous court decisions dealing with customary law is attempted to glean courts approach to customary law in the past and whether it can influence the application of traditional justice systems in enhancing access to justice. The paper posits that the way courts have i...
This is a publication that is a must read for all that respect the ideal that Natural Resources s... more This is a publication that is a must read for all that respect the ideal that Natural Resources should not be a source of woe and misery, but should fully benefit humankind and for those who cherish the dream of Environmental Justice for All. The book examines Kenya’s policy, legal and institutional framework relating to the management of natural resources under the Constitution of Kenya 2010. Principles of governance including Environmental Justice, Environmental Democracy, sustainable development and Climate Change are part of the running themes in this text. The authors reiterate the need for public participation, transparency and accountability in the management of the revenue or benefits accruing from natural resources exploitation to foster Environmental Justice. Sound management and utilisation of natural resources is an imperative whose time is now. The push towards Environmental Justice for All is on. The authors hope that the book will be useful to researchers, lecturers a...
Colonialism impacted the social, cultural, political and economic aspects of Africans in the most... more Colonialism impacted the social, cultural, political and economic aspects of Africans in the most fundamental and radical way. With colonialism, a western legal tradition premised upon an Anglo-American jurisprudential thought was imposed on Africans. African values, norms and beliefs, which provided the normative and undergirding framework for conflict resolution, were severely weakened, undermined and disregarded. However, the resilience of African justice systems across African States, illustrates that they still occupy a central place in the world of dispute resolution in Africa. This explains the move among African State towards recognizing them in laws and policies. The paper assesses the institution of elders in conflict resolution. Using examples across the African continent, the author examines some of the successes and challenges faced by elders, and opportunities offered by the institution in enhancing access to justice amongst African communities.
At the core of the concept of sustainability is the need to take into account the social, economi... more At the core of the concept of sustainability is the need to take into account the social, economic and environmental concerns in development. Sustainability ensures that economic growth takes into consideration social and environmental issues. In the financial sector, sustainability is necessary due to the critical role played by the sector in national development. In Kenya, financial institutions are financing investments in the agricultural, manufacturing, housing, infrastructural, energy and extractive industries. These investments have significant environmental and social impacts creating the need for adoption of sustainable finance. In spite of this, initiatives aimed at sustainability in the sector, are diverse and uncoordinated, and are therefore not likely to result in tangible long term benefits for society, environment and the business community. A synergistic approach to sustainability in the industry is thus imperative. The paper proposes the adoption of a hybrid approac...
Equity, particularly intergenerational and intragenerational equity, is central to the concept of... more Equity, particularly intergenerational and intragenerational equity, is central to the concept of sustainable development. The rhetoric of equity has been incorporated in sustainable development instruments and is already part of customary international law. In Kenya the right to a clean and healthy environment which inter alia includes the right to have the environment protected for the benefit of present and future generations has been codified in the legal framework and the courts have had occasion to interpret this right in the Kenyan context. Kenya has however adopted an anthropocentric definition and approach to sustainable development, which places a lot of emphasis on human beings thus ignoring the ecological perspective in sustainable development. The authors argue that the environment has a right to be safeguarded and protected not necessarily for the benefit of human beings but for ecological reasons. This paper critically examines the principle of equity (intergeneration...
Strathmore Law Journal
The Constitution of Kenya, 2010, envisions a prominent role for alternative dispute resolution, i... more The Constitution of Kenya, 2010, envisions a prominent role for alternative dispute resolution, including traditional dispute resolution mechanisms. This is in addition to other legislative frameworks which provide for non-formal methods of dispute resolution. A thesis is made that formal forums such as litigation through courts of law have various disadvantages including complexity, high costs, and technical procedures, delays, amongst others, which make a strong case for the usually convenient and available ADR mechanisms. Put to good use, these mechanisms have potential to spur economic development through enhanced access to justice and the rule of law. The authors, indeed, argue that there is a golden thread that weaves across the themes of rule of law, human rights and access to justice and development.
SSRN Electronic Journal
The Constitution of Kenya 2010 recognises customary law and the use of traditional dispute resolu... more The Constitution of Kenya 2010 recognises customary law and the use of traditional dispute resolution mechanisms (hereinafter 'TDRMs'), which are informal and culturallyappropriate justice systems in resolving disputes. Whereas several African countries have promoted the use of customary law by establishing customary courts, Kenya retains a system where both customary law and state law are subject to interpretation by state courts. The Kenyan Constitution cements this position by stipulating that TDRMs are to be promoted and encouraged by the Judiciary. This chapter examines how Kenyan courts have treated decisions emanating from TDRMs highlighting attributes of citizenship such as urbanisation and equality. It notes that the constitutional position creates doubts as to the future development of customary law and TDRMs in Kenya owing to the divergent and conflicting approaches taken by the judiciary over the years in interpreting customary law.
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Drafts by Francis Kariuki
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.
Papers by Francis Kariuki
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.