Assessing access to justice through the integration of traditional justice systems in Kenya within the formal legal framework

Abstract

This research explores the existence of traditional justice systems in the Kenyan legal system, focusing on the impact of the repugnancy clause on traditional mechanisms. While the CoK,1 recognizes culture as the foundation of the law and provides for the utilization of TDRMs under certain conditions, the repugnancy clause has historically marginalized traditional systems. The research aims to inform policy reforms aimed at fostering greater recognition, protection, and integration of traditional justice systems within the broader legal framework. Employing a doctrinal legal research methodology, the research analyzes legal rules from primary and secondary sources, drawing insights from cases, statutes, and existing literature. By emphasizing the necessity for institutional links between formal legal systems and traditional mechanisms, the research aims to facilitate a referral system, appeals, and reviews, ultimately targeting lawmakers and marginalized communities for positive change in the legal landscape.