The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

Authors Joseph Sergon and Prof Albert Mumma

ISSN: 2521-2613
Affiliations: LLB, LLM (University of Nairobi). Justice of the High Court of Kenya and PhD Candidate, University of Nairobi, Kenya; LLB, LLM, PGDip Legal Studies, PhD. Professor, Faculty of Law, University of Nairobi
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 149 – 171
https://doi.org/10.47348/ANULJ/v8/i1a7

Abstract

The constitutional recognition of traditional dispute resolution mechanisms (TDRMs) legitimises them as complementary avenues to access to justice in Kenya. However, the lack of clarity regarding the scope of these mechanisms makes it difficult to integrate them with the formal justice systems. An understanding of how the mechanisms work is critical in addressing this lacuna. Using a case study approach, this Article discusses the typology of TDRMs in Kenya, and the disputes involved based on examples from the Kipsigis community. It also outlines the Kipsigis TDRM procedures in both criminal and civil cases. The article also discusses the issue of jurisdiction, various reporting and trial stages, whether there are any appellate bodies, enforcement of awards, compensation, and whether any cases have been referred to courts and vice versa. The purpose of the study is to lay a basis for the analysis of TDRMs from a natural justice perspective with the Kipsigis community as the point of focus. The study found that the Kipsigis TDRMs are considered effective avenues for access to justice for those who lack the means to access courts. The community finds the TDRMs fair as they listen to the parties in an open forum and community members are welcome to participate, unlike judicial processes, which are typically adversarial. Yet, a question arises whether TDRMs, by their nature, meet the principles of natural justice and the rule of law, particularly the threshold set for the protection of the right to a fair trial and equality. This article examines the extent to which the Kipisgis TDRMs blends with the principles of natural justice or procedural fairness, and the rule of law.

Promoting water infrastructure investment to accelerate access to water in Tanzania: A legal analysis

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

Promoting water infrastructure investment to accelerate access to water in Tanzania: A legal analysis

Author JS Ombella

ISSN: 2521-2613
Affiliations: LLB (Mzumbe University), LLM (UWC) SA. Lecturer at the Faculty of Law, Mzumbe University-Tanzania
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 172 – 198
https://doi.org/10.47348/ANULJ/v8/i1a8

Abstract

Access to water in Tanzania is reportedly low. However, Tanzania is endowed with plenty of water resources both on the surface and underground. Notably, the uneven occurrence and natural distribution of such water resources limit many communities’ access to water. To guarantee access to water, there is a need to invest in the relevant infrastructures for extraction, treatment and supplying of water from water resources-rich areas to water-scarce areas. Investments in such infrastructures require a sound investment climate, finance, and technological expertise, which seem to be lacking in Tanzania and many other African countries. The absence of a robust legal framework that will cater to the promotion of investment in the water sector seems to be a contributory factor on poor infrastructure in the water sector leading to low access to water. This is because the poor legal framework limits private sector involvement and investment in the water sector due to fear of the risks involved, the lack of awareness of such investment opportunity, and the unclear framework of their participation to name but a few challenges. This article reviews the African regional (African Ministerial Council on Water Declarations) initiative on investment in the water sector and relevant domestic laws on water sector investments. The review reveals that Tanzania’s policy and legal framework is desirous to foster private water infrastructure investment. However, there are legal challenges in respect of the absence of water sector-specific investment incentives, inadequate data on the water sector and investment opportunities, limited human resources, narrow scope of domestic resource mobilisation and overlapping mandate of the established institutions, among others. To guarantee improved access to water Tanzanian water sector laws must address these challenges inhibiting the potential of private sector investment.

Insecurity and economic marginalisation in Marsabit County

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

Insecurity and economic marginalisation in Marsabit County

Author Muthoni Nyuguto

ISSN: 2521-2613
Affiliations: TBC
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 199 – 211
https://doi.org/10.47348/ANULJ/v8/i1a9

Abstract

Ten years after the inauguration of the Constitution of Kenya 2010, the communities of Marsabit County are still living on the periphery of society. They remain systemically excluded from the nation’s mainstream social, political, economic, and cultural activities. Communities living within the North Frontier Districts (as it was known then) and within the Counties of Mandera, Wajir, Garissa, Isiolo and Marsabit are still considered ‘hostile tribes’ by the ruling elite since colonialisation and are treated as such. The colonial government enforced this isolation by enacting a series of Ordinances between the years 1901 to 1933 that systemically isolated and marginalised communities from this geographical area. The Ordinances largely criminalised the community’s main economic activity of pastoralism by allowing arbitral seizure and detainment as well as collective punishment for offences of members of the community. This negative and suspicious perception, systemic exclusion by the laws and policies, condensed economic activities limited to pastoralism, political under-representation, poverty, distance and inaccessibility have exacerbated the marginalisation of the communities living within Marsabit to date. Unfortunately, independence did not liberate these communities within the Northern Frontier Districts from systemic exclusion. They were still treated as a ‘special group’ within the context of section 19 of the Kenya Independence Order in Council. This section provides for the modification, qualifications and exceptions of laws and policies to be applied in respect of these communities. The state felt there was a need to subject these communities to screening, profiling, and overregulation in these areas in comparison to the rest of the nation. State institutions were further unable and unwilling to penetrate these areas. The application of different laws to these communities was carried forward during the post-independence where the Presidency was granted the power to govern these communities by decree. Despite the goodwill of the Constitution 2010 to reduce the levels of marginalisation within this county, there is a need to carry out a case study to assess whether the current legal, political, social and economic frameworks have reduced marginalisation within Marsabit which has been for a long time an ungoverned territory.