The Pertinence of restorative justice in Kenya’s penal laws

Abstract

Restorative justice processes are key in the achievement of criminal justice. Their aim is to involve victims and community members more intimately in repairing the harm done by criminal offenders while maintaining social ties. These processes may be viewed as an apt alternative to retributive justice systems which involve the punishment and seclusion of offenders by imprisonment. Various countries in the world have established statutory frameworks recognizing restorative justice practices. These are used either as diversionary measures by police and courts or as sentencing options by judges and magistrates. Most States utilize restorative justice practices when dealing with juvenile offenders but some cases involving adult offenders are also quite common. Kenyan legislation provides opportunities for the application of restorative justice mechanisms. Though some statutes explicitly provide that they be used in specific civil disputes, others leave the door open for its application in criminal disputes, including the Constitution of Kenya (2010) under Article 159(2). Paper begins with an analysis of Kenya's role in promoting restorative justice subsequent to the colonial administration. The paper argues that much remains to be done to embrace restorative justice in order to maintain social harmony in the realization of criminal justice among the community-driven Kenyan people. It then delves into the use of restorative justice programmes by four States and its success in the achievement of criminal justice in each. A case study of its use by Rwanda following the 1994 genocide is also presented. Finally, recommendations on an optimal framework of restorative justice in Kenya's criminal justice system are provided.