The 1963 constitution of the Republic of Kenya is based largely on English law, though it incorporates elements of Kenyan statutory law, Kenyan and English common law, Islamic law, and customary law. The formal court system consists of Resident and District Magistrates' Courts, a High Court, and a Court of Appeals. While there are no recognized customary courts in Kenya, the Judicature Act of 1967 permits the use of the customary law of an ethnic group in civil cases are long as it does not conflict with statutory law and is not "repugnant".
Many Kenyans pursue their grievances and conflicts through alternative justice systems. They include traditional systems, peace or reconciliation forums, Islamic courts, and interventions of the local chiefs. The latter are part of the Provincial Administration and they are mandated to maintain law and order in their communities. They employ statutory as well as customary or informal conflict resolution methods to resolve conflicts. The interface of these different avenues can be challenging for those seeking justice, as people are forced to navigate multiple, and often conflicting, justice and rule systems. Different socio-political aspects or values impact their choices of forum. Several government-led activities and reform programs either aim to support conflict resolution at the local level or focus on providing improved access to justice by improving the formal system. The Provincial Administration is currently training chiefs in conflict resolution. The National Steering Committee on Peacebuilding and Conflict Management, coordinated from within the Office of the President, is in the process of developing a policy framework with the aim to coordinate and harmonize peacebuilding and conflict management interventions. A multi-donor ‘basket’ fund, which was established in 2004, the ‘Governance, Justice, Law and Order Reform Program (GJLOS)’ is aiming at reforming the official justice sector, among other sectors. In mid-2006, Kenya was selected as one of the J4P project countries in Africa after initial research and field visits confirmed that the socio-political situation, vibrant civil society, and ongoing governmental reforms presented an opportunity for the development of a bottom-up approach to justice sector reform that seeks to incorporate understanding of local socio-political and value systems. Main Objectives
J4P in Kenya seeks to provide high-quality research where gaps exist in order to: Understand how justice systems function at a local level, and how individuals and communities navigate those systems in order to resolve grievances. Inform Bank projects and justice sector reform, using well-defined, operationally-linked analytical work, in order to support access to justice for the poor and marginalized. Link access to justice initiatives with community development interventions. Build the capacity of a local partner institution and a team of local researchers to design and implement high-quality research, to disseminate findings, and to use such findings to inform ongoing policy reform.
Project I: Assessment of Access to Justice among the Pastoralist Communities in the Arid and Semi Arid Lands (ASAL) of Kenya North/Northeast Kenya’s predominantly pastoralist communities live detached from governmental institutions and services. This disconnect is particularly problematic during the frequently occurring droughts, which often result in a rise in cattle rustling. Combined with conflicts over access to grazing land and water, cattle rustling contributes to grievances that can result in larger raids and unrest. Justice for the Poor has been implementing qualitative field research in three ASAL districts, namely Isiolo, Baringo/East Pokot and Garissa, since July 2007. The assessment mainly focuses on: 1) Grievances over natural or biological res ources Grievances in the pastoralist areas are often connected to natural resources and multiple ideas of ownership and usage of such. Grievances are based on two different features: a) ideas of ownership have shifted and the state has introduced new rules of ownership that contradict with local views, and b) neighboring communities often base their understanding of ownership on different value systems. Both, the intra- and inter-communal level will be a focus. Though grievances are different in their nature, they can be linked to increasing poverty. 2) Grievances triggered by Development Projects/Funds A more ‘modern’ cause of conflict are grievances about community funds. Although external actors often assume that the community speaks in a single voice, who has access to community funds can be highly disputed within the communities. Externally imposed participatory mechanisms can further marginalize the powerless. To support better access to available funds, and their transparent and accountable management, light needs to be shed on community power structures, what constitutes the community, how decisions are taken and who the marginalized are. Community funds are externally introduced and their processes and objectives are therefore based on a different value system altogether. The Bank’s ‘Arid Lands Resource Management Project (ALRMP)’ focuses on natural resource and drought management, community-driven development, and local economic development. Conflict resolution activities were added as a theme after the first phase of the project. The J4P assessment is linked to the ALRMP project, in order to analyze the ongoing mechanisms of conflict resolution, their role in the provision of justice to the poor and marginalized, as well as the potential of the CDD institutions to act as a broker in supporting access to justice. In addition to research on the ALRMP’s project components, J4P has been studying locally-developed conflict resolution and justice mechanisms, as well as the existing peace committees – supported by the NSC - as a key to determining how these and other mechanisms gain legitimacy and authority, and how they provide access to justice for the poor. Research results are currently analyzed and a series of thematic papers are being drafted. This research is being implemented in partnership with the Legal Resource Foundation (LRF). Project II: Women’s Access to Land and Labor Rights in Kenya
Both labor rights and access to land ownership and user rights are extremely important for women’s economic empowerment in Kenya. In most rural areas of Kenya, access to land provides the basis of economic sustenance, ensures greater security and leads to higher investments for increased productivity. Although under official law women have the right to inherit land from their fathers and deceased husbands, cultural, informational and institutional barriers often prevent women from claiming their rights. As a result, women are increasingly marginalized and pushed into extreme poverty, negatively affecting their contribution to Kenya’s economic growth. While women in Kenya are well represented in the labor market, gender discrimination in the formal labor sector persists because women’s earnings are less than men’s, women and men are occupationally segmented, women often work under poor conditions, and holidays or leaves are rarely granted. Fear of losing their only source of income often prevents women from seeking legal redress against their employers. Traditional notions of women’s role in society, which often confine women to the ‘inner’ sanctuary of the house while men interact with the ‘outside’ world, mean that women’s understanding of their rights is often limited. At the same time, the institutions charged with protecting their rights often reflect and perpetuate women’s marginalization from local power structures. Consequently, their legal needs are not taken seriously or are indeed ignored. As many of these needs link to economic livelihood, lack of access to justice sends women into an inescapable cycle of poverty and/or dependence. To overcome these problems, women need to be equipped with increased knowledge of their rights and need to be able to enforce these rights through responsive justice institutions. Experience from successful legal literacy programs suggest that gender issues need to be approached in culturally appropriate ways so they are actually understood by the recipients. Similarly, dissemination programs need to be designed in a way that they actually reach women. This includes considerations of how women in different parts of the country best receive messages. Both aspects- the formulation of the message and the design of an efficient dissemination strategy- require thorough understanding of local socio-cultural structures and values. Building on the Justice for the Poor analytical base, an assessment is planned, funded by the World Bank’s Gender Action Plan, to help identify existing local principles of fairness and cultural values, which can inform the design of community outreach campaigns on women’s rights. This would ensure that interventions enjoy the legitimacy of local authorities and structures, and are executed in an encompassing and non-alienating way. Preparations for the project are currently underway and a concept note will be made available on this website shortly. The overall aim of the assessment is to promote the design of interventions that enhance women’s ability to claim their economic rights, in particular their rights associated with access to land and labor. The Women’s Access to Land and Labor Rights project will establish and work from an empirical knowledge base about women’s role in and access to the formal justice system, and the role that the formal justice system plays in protecting women’s access to land and their labor rights. Such knowledge will provide the basis for informing the ongoing design and implementation of the Bank’s Judicial Performance Improvement Project (JPIP), seeking to improve mechanism to protect women’s right and increase their access to such mechanisms- thereby enhancing their ability to access and protect economic resources. In particular, the assessment’s key objectives are: - Build an empirical knowledge base of women’s awareness of economic rights and the legal process, and their access to the formal justice system.
- Use the knowledge base to inform the ongoing design and implementation of JPIP to enable it to serve as a tool for women’s legal empowerment and the enforcement of women’s rights to land and labor.
Project III: Kenya Judicial Sector Assessment The Kenya Country Progress Reports (2004-2008) provide for the preparation of a judicial sector assessment as one of its analytical pieces. The objective of the Kenya Judicial Sector Assessment (KJSA) is to focus on a specific problem area in the Kenyan judiciary and make some recommendations to address the problem. Preliminary literature review indicates that limited empirical data exists on the magistrate level. A recent stakeholder workshop, organized by the Chief Justice, has also shown that there is need for increased training and guidance for magistrates on how to deal with the specific social context of their area of deployment.  Kenya combines a variety of different ethno-linguistic groups, reaching from pastoralists to farmers, and with multiple languages. As a result, magistrates have to deal with a broad spectrum of social contexts, depending on the region they serve. Such regional socio-cultural differences are also reflected in the different types of cases filed, posing different challenges to the work of the magistrates. For judges and magistrates, understanding the socio-cultural background of court cases can be crucial to successfully implementing the law and providing for equality.
Since little data about magistrate courts exists, this assessment will focus on the magistrate level. It will focus on: (a) the type of cases filed in different regions, (b) judicial decisions made and extent to which they are effected by the “social context,” (how much can magistrates take ‘social context’ into account?), (c) the links to other local authorities such as the police and the effect those have on the operation of the courts, (d) challenges stemming from the ‘social context’, and (e) general hurdles magistrates face in their work. The assessment sets out to inform policy makers working on judicial reforms at the magistrates level in Kenya; and inform the World Bank-financed ‘Judicial Performance Improvement Project (JPIP). The project is currently under preparation and a concept note is currently being prepared. Capacity Building and Partnerships One crucial component of the J4P Kenya Program is cooperation with a local research institution or NGO and capacity building of local researchers. The purpose is to invest in thorough training in qualitative research methods and data analysis. Design of the study, hiring of researchers and implementation and analysis of field research are implemented in partnership between the Bank and selected local organizations. Currently the World Bank is cooperating with Kenya’s Legal Resource Foundation (LRF) on the implementation of Project I. Publications and Reports Partnerships Arid Lands Resource Management Project Legal Resource Foundation (LRF) Judicial Performance Improvement Project World Bank, Kenya Office Contacts For further information on J4P Kenya, please contact: Tanja Chopra
Program Coordinator, Kenya
The World Bank
Hill Park Building, Upper Hill
P.O. Box 30577 - 00100
Nairobi, Kenya |
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