Access to justice, impunity and legal pluralism in Kenya

Abstract

The acknowledgement that non-access to justice and impunity are widespread in Kenya is an important motive behind the present judicial reforms undertaken in Kenya. Building upon and further developing Viñuales' distinction between functional and structural aspects of impunity, this article discusses cases of urban mob-justice and conflicts over land in the Southern Rift Valley. It argues that in Kenya's situation of empirical legal pluralism reforms of the judiciary aimed at facilitating access to justice are suitable to address cases of functional impunity if such reforms manage to restore the trust of people in state institutions but that they are likely to fail where the reasons for impunity and its underlying conflicts are structural in nature.

Keywords:

• access to justice
• impunity
• Kenya
• legal pluralism
• land conflicts
• Maasai
• mob-justice
• Ogiek

Acknowledgements

This research has been supported by SNIS/Swiss Network for International Studies (call for projects 2010).

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. These data were provided by Prosper Nobirabo and refer to the year 2011.

2. Most of these interviews were undertaken during meetings organized by the international NGO ProMara (USAID/Kenya´s Mau-Forest Initiative) between July and September 2011 in the following areas: Narok North district (Narok town, Lemek estate, Majengo estate and Olpopongi estate) and neighboring districts: sub-locations of Olulunga, Mulot and Mara (Narok South district); sub-location of Kirindoni (Transmara district) and sub-location of Kuresoi/sub-division of Molo (Nakuru district).

3. 240 out of a total of 500 questionnaires in Swahili distributed to community members at the meetings referred to in endnote 2 were returned (110 from Narok North district areas, 70 from Narok South district areas and 40 from Transmara and Nakuru districts). A further 40 answers came from the questionnaire distributed on the road in Narok North business centre. A second questionnaire in English addressed the public administration (in particular Regional and District commissioner Offices, Police security Office and Courts) and was answered by 27 officials in North and South Narok. Although questionnaires are a somewhat unreliable source of data, they nevertheless may complement the data gathered by the participant observation and semi-structured interviews.

4. However, there are (and have been) attempts to settle inter-ethnic conflicts through negotiation. But these peace pacts (ekisil) during the dry season usually only last until the beginning of the rainy season (Pkalya, Adan, and Masinde 2004: 53–57, 60). Various NGOs are attempting to strengthen this traditional mechanism to settle inter-ethnic conflicts (see Leff 2009; Menkhaus 2008).

5. Observations provided by Prosper Nobirabo and referring to the year 2011. Victims of mob justice are not always executed. The kind of crime and its seriousness also matter whether the culprit is killed or survives after a severe beating.

6. The Mau Forest complex is the largest remaining near-contiguous bloc of Montane forest in East Africa. It covers an approximate area of 350,000 ha and is situated about 170 km north-west of Nairobi and stretches west bordering Kericho District, Narok District to the south and Nakuru to the north and Bomet to the south-west.

7. In this regard, two recent developments regarding the Ogiek case are particularly interesting and may indicate how this could happen. On 14 March 2014, the Environment and Land Court at Nairobi decided that the right to life and the economic and social rights as enshrined in the new Kenyan Constitution guaranteed the Ogiek a right to livelihoods and that these rights were violated by their eviction from the Mau Forest Complex without proper resettlement (Republic of Kenya, 2014).

In a case involving another group of Ogieks, the African Court, a tribunal established by the African Union, ordered on 13 March 2013 Kenya to reinstitute a previous ban on transactions over former Ogiek land that has been transferred to private owners in order not to prejudice the outcome of a pending case before the African Court on the Ogiek land rights (African Court 2013). This case has been brought by the African Commission on Human and People's Rights against the Republic of Kenya on the basis of its findings that the Ogiek evictions were in violation of multiple individual and collective rights as enshrined in the 1981 African Charter on Human and Peoples’ Rights (African Commission on Human and Peoples’ Rights 2010).

As the judgment of the Environment and Land Court is presently being appealed and the order of the African Court is just a first step in a longer proceeding, it is too early to tell whether the claims of the Ogiek will be recognized on the basis of Kenyan constitutional law and African human rights law.