Customary law jurisprudence from Kenyan courts: implications for traditional justice systems

Abstract

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 interpreted customary law since the advent of colonialism may be a barrier to the application of traditional justice systems. A need therefore arises for courts to develop a jurisprudence that is supportive of customary law and traditional justice systems. A change of mindset and perceptions amongst judges, lawyers and the wider citizenry towards customary law is required if traditional justice systems are to contribute to enhanced access to justice for communities in Kenya.