Q. What lessons have you learnt in the course of your work and perhaps want to share, now that Kenya is going into an election?
I have learnt a number of lessons: Election related violence occurs because of a number of factors, mainly: political tensions, false expectations harbored by the electorate, economic hardship and ethnic tensions, driven by the erroneous perception that if a person from my community is elected, my life will change for the better. These factors give room for electoral violence and crime.
Kenya can address this by stepping up voter/civic education to help manage expectations and increase accountability so that those elected are held accountable.
Voter education helps the electorate know their rights. Voters have the right of recall but because of ethnic attachment and erroneous perception that if a person from my community is recalled then we as a community are under attack, this right is not exercised.
Kenya can change that by making national leaders aware of their responsibilities toward the electorate. The electorate must in turn demand accountability from their leaders.
Q: Do you think dragging some Kenyan political leaders before the ICC and charging them with crimes against humanity following the 2007 post election violence, will deter would be purveyors of violence in this 2022 election cycle?
Yes to a degree. Having dealt with electoral offences in 2013 and 2017, I would say there has been some deterrence. If you look at what happened in 2007 and equate it to 2017, there was a marked decline in election related violence.
The 2017 ruling in Kisumu that held police accountable for the murder of Baby Samantha Pendo also served to deter police. The command responsibility principle as applied by the court, in this case, made police commanders aware that they would be held accountable for the actions of those under their command incase of violence when on duty. They therefore needed to do what was right.
Q. Has there been positive change at the top since top political leaders were charged at the International Criminal Court?
Yes. Because top government officials, those in the civil service, lawyers and even some media workers were charged at the ICC after the violence in 2007, everyone is now very cautious and very careful not to perpetuate violence.
Q. What are you doing to ensure that upcoming elections will be peaceful?
We have had targeted training on election security awareness. There has also been increased collaboration between the government, civil society and other bodies to ensure that we have a peaceful election.
Through the Judiciary Training Academy we have been able to train judicial officers on customary justice systems and in collaboration with funding from the National Government, we will this July, train administration officers (NGAO) on alternative dispute resolution mechanisms. County government officials have been trained on how best to enhance access to justice for all.
Q. President Kenyatta, his Deputy, William Ruto and others were charged before the ICC following violence in 2007. These cases have yet to be concluded more than ten years later. In your view, is justice delayed denied?
This is part of the reason why I advocate for alternative justice systems. Court cases drag because of technicalities. In Informal justice systems there are no technicalities. The language used is the language of the people. Costs are lower and enforcement is swift because enforcement is done at the community level. There is no police involvement.
In some cases, justice is delayed because some people think that if a case is rushed, ‘I am likely to be found guilty and sentenced’.
- Delaying of cases not only at The Hague Court but, generally, could be deliberate to help people forget and focus on other issues. In Kenya for instance, when an issue is in the media, it becomes hot and emotive but when something else comes up, the earlier issue is forgotten and people move on.
- We are going in to the 4th election cycle now but no one is talking about The Hague. Prosecutors have been changed and everything is cool.
- Delay in itself is not necessarily a bad thing because it has given rise to alternative justice systems like in Rwanda, where when the tribunal hearings in Tanzania began to drag, Rwandans came up with the Gacaca Courts, where people came before the court and said, ‘I am the one who did this and I am ready to pay the price.’ Within no time, the hearings were done.
- The informal courts were able to fast track hearings and allow people to forgive one another and reconcile.
Why Advocate for Alternative Justice Systems in Kenya?
We want to change the justice system in Kenya to a community justice system where people sit as a community, talk about their concerns and find solutions. These include, land disputes, tension because of scarcity of opportunities, tension over grazing lands- We want people to talk about it at the community level and resolve these issues there and then. If the issue is about leadership, some communities will even come up with power sharing agreements and by so doing, enhance cohesion and minimize violence.
How has AJS been received by the Kenyan public?
People are ready and rearing to go the AJS way. Recently, I trained 130 faith-based organizations on AJS.
How do you make sure that the resolutions reached in an informal setting stand?
Because the people themselves have chosen to use this dispute resolution mechanism, they are often ready to abide by the rules and because the elders command respect, the people have an obligation to do as their elders decide. That is not the case with court decisions.
How is AJS working So Far?
It is doing very well in ISiolo, North Eastern Kenya, in Kericho and Kajiado where elders deal with land disputes, we have been able to hear and conclude many cases.
- By February 2022 elders in Kajiado had resolved 56 land cases in two months, compared to formal courts, which could take years to resolve a single case.
- We have also been able to neutralize the Mungiki menace in Nyeri Central Kenya where elders, with the help of the local administration have been able to identify and help members of the proscribed society reform.
- In Ruai, Nairobi County, where criminal gang members have been found to rape and violate elderly women in the misguided belief that doing so gives them supernatural protection from arrest and police shooting, we are using AJS to discourage the youth from these activities. This is done with the help of Nairobi County authorities, with a modicum of success.
Currently working with the Kenya national steering committee on the implementation of alternative justice systems, with the mandate to develop guidelines on AJS implementation and developing a training manual for AJS practitioners. She is also mandated with training AJS practitioners countrywide.