The Sustainability of Traditional Dispute Resolution Mechanism in criminal matters in Kenya
Njuguna, Sarah Wairimu
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Traditional dispute resolution mechanisms (TDRMs) have been used since time in memorial to resolves disputes, including criminal matters. However, since independence, they were used less frequently and perceived as inferior, in favour of the formal justice system. The Constitution of Kenya (2010) recognizes TDRMs and their application is provided for in various statutes and case law, but less so for criminal matters. Despite the recognition of TDRMs in the Constitution and various statutes, criminal cases are still largely adjudicated by formal mechanisms, 8 years on. In addition, the application of TDRMs in criminal matters has been met with contrasting jurisprudence and uncertainty in the law. This study evaluates the suitability of TDRMs in criminal cases, more so in murder cases. The study analyses the legal framework, the nature of criminal matters and the challenges and prospects of using TDRMs to adjudicate criminal cases. The study employs a qualitative approach in examining TDRMs and the nature of criminal matters. The review includes a study of TDRMs in relation to its nature, access to criminal justice and human rights. Through case studies of TDRMs in Rwanda, the study brought out the prominent features of TDRMs that make them suitable to resolve criminal matters. The informal, legitimate, community inclusive and restorative nature of TDRMs make them suitable for adjudicating criminal matters in Kenya. In order to ensure that TDRMs are applied effectively to the resolution of criminal cases, the study recommends that the barriers hindering the application of TDRMs be removed. It also suggests that the due process and human rights concerns be addressed by developing a policy on TDRMs. In conclusion, the study makes the finding that TDRMs are suitable for resolving criminal matters in Kenya.