DECOLONIZING DISPUTE RESOLUTION: REVITALIZING INDIGENOUS APPROPRIATE JUSTICE SYSTEMS (AJS) FOR GREATER ACCESS TO JUSTICE IN KENYA

Abstract

The pursuit of access to justice remains a critical challenge in Kenya, significantly hampered by the enduring legacy of colonial legal structures that often marginalize majority of the population. This paper interrogates the shortcomings of the formal, state-centric judicial system, characterized by its procedural complexities, high cost, geographical inaccessibility, and cultural alienation for many Kenyans. The argument put forth is that enhancing access to justice lies in the decolonization of conflict resolution mechanisms through the conscious revitalization and integration of Indigenous Appropriate Justice Systems (AJS). These systems are rooted in the various cultural and normative systems within Kenya’s communities, producing culturally relevant, accessible, affordable, and often restorative mechanisms for dispute resolution. Drawing upon historical inquiry, legal anthropology, socio-legal studies, and constitutional interpretation, it explores the philosophical underpinnings, operational modalities, and inherent potentials of AJS. In addition, it offers a critical assessment of the challenges facing their revitalization, including potential human rights conflicts, among others. The author espouses an innovative, nuanced approach to revitalization that balances respect for indigenous epistemologies and constitutional imperatives, particularly in upholding human rights. The paper proposes practical strategies for documentation, capacity building, forging synergistic relationships with the formal system, and leveraging on technology. Ultimately, this paper asserts that the revitalizing AJS is not only an alternative dispute resolution strategy, but also a fundamental act of legal decolonization, critical for realizing substantive justice and fostering a more inclusive and equitable legal framework in Kenya.