Traditional dispute resolution mechanisms and access to justice for women in Kenya
The right to Access to Justice is not only enshrined in our Constitution but also under international human rights instruments. It is a tool through which one is able to ensure the protection of other fundamental rights. It is also an essential component of the rule of law.Kenyan history shows an over emphasis on the court system as the only means through which persons can access justice. However, the court system was plagued with a numerous challenges which left majority of Kenyans at a gross disadvantage.In an effort to undo these injustices, the Constitution of Kenya (20I 0), under Article 48 recognizes the Right to Access Justice. Article 159 recognizes that in order for the state to enhance access to justice, other forms of dispute resolutions must be promoted. This includes Alternative Dispute Resolution and Traditional Dispute resolution Mechanisms (TDRMs). This paper examines the role of TDRMs in enhancing access to justice for women in Kenya.However, customary laws that govern these mechanisms are known to be discriminatory against women and women rarely participate in these processes. The repugnancy test set forth in Article 159, recognizes that TDRMs should not be applied if they are contradicting the Bill of Rights. If subjected to this test, the paper fmds that, TDRMs as they are now, lead to the infringement of women's rights especially those concerning equality and fair trial. Therefore, for TDRMs to become a viable means through which women in Kenya can access justice, the author suggests modifications that can be made to ensure that women's rights are not infringed.