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Why Kenya’s System is Crumbling Down so fast!

It is business as usual again!

Comparing Kenya and Rwanda, the latter has just come out from a troubled past while the former has had history of long unreconciled past. When President Paul Kagame took power after the unfortunate genocide of 1994, the first thing he did was to give reconciliation priority. Rwandese government, under Kagame, has managed its differences and has sought realistic mechanism of restoring justice through the Gacaca traditional courts. Such are open courts where communities shall own the process of administration of justice along side the formal court system.

The Republic of Kenya, during President Jomo’s administration, African courts had already been abolished by the colonial regime and the whole traditional justice system was moved to administrators such as paramount chiefs to deal with disputes. In 1967, the judicial system did away with most of the trends of African customary law including the African courts also known as Kangaroo courts. This move did not do well to the restorative justice system in Kenya and brought about the beginning of the end of restorative justice.

Restorative justice involves truth telling, justice, and reconciliation mechanisms. The new constitution of 2010 does not highlight African customary law but heeds the traditional dispute resolution system that are reconciliatory, mediatory and peaceful. However, still, there are no such things as African courts under the statutory law in Kenya. People and their communities are on their own to deal with restorative justice. Formal courts make reference to statutes and the constitution in matters related to civil and criminal justice. The leading application of retributive justice in criminal procedure has nothing to do with restorative justice. It is all adversarial in kind and common law is given the upper stage in the administration of justice.

The question of truth telling has become a big problem. Adversarial system is not meant for truth telling but legal skills, technicality, procedure and expediency. Judges presiding over cases have no legal framework other than Art. 3 of the Judicature Act of 1967 providing that African customary law shall be used by the High Court as a guiding principle in cases in which either one party or both are affected by such law, and in civil matters only. Such restrictive law has weakened the development of restorative justice in Kenya to an extent of nullity.

The is risks are high. Kenyan people are disconnected with history of their legal culture. There is no possibility of reconciling individuals and communities using common law court system. For instance, the historical injustices remain with the people for ever. It is in this framework Kenyans live as divided people. No Kenyan is willing to face the truth and tell it in public plathora. They prefer gossiping among their close friends mostly from their ethnic groups. There is no reconciliation that can take place in such trend.

The Truth, Justice and Reconciliation Commission was engaged to come up with a comprehensive report that would be implemented by the government. The report had been doctored but even the remaining parts have never been implemented. There is no political good will to do so till today. The reason of such reluctance is not within the coverage of this blog story but subject for further debates.

There is no way people can reconcile if there is no truth and there is no justice. What is left is suspicion, witch-hunting and politics of divide and rule. There is hatred and malicious oaths against whoever has the history of the country and may bring people to open dialogue with the past. Such dialogue should not be construed as against peace process but as part of restorative justice. People forgive when the truth is known. People reconcile well when they forgive and are forgiven. Reconciled people can live in peace and accept dialogue. It is in this sense that many Kenyans do not engage in genuine fact finding debates. It is in this sense the ideology is to kill teaching of history in Kenya so to make the generations blind about the past, ignorant of their sufferings and skeptical about the future!

Is this about politics? The answer  is yes! Political ideologies in Kenya are bent to form mediocrity and to prevent populace from knowing the truth! It is hegemony of power. It is backed by very powerful individuals and communities that dominate the system. Such individuals and communities shall never allow anybody to teach history or, better, open discussion on social justice! The reason is based on self interest and interest of communities. It is in this framework that Kenyans still see themselves in their communities.

Failure to come up with restorative justice system is a recipe to bad governance, bad politics, and weak development. Culturally, Kenyans are known as people who cannot be entrusted with funds or power. Kenyans are aggressive and ready to take risks. The most affected lot are the youth, or better, the future leaders. They have no clue about where they come from, where they are and, most importantly, where they are going to! Such leaders are not only dangerous but security risks. They can do anything or take any wrong decision. They fear intellectuals or better, those who think. They prefer professionals whose work is to deal with symptons of the problem but not the problem.

This is where we go wrong as a country. Restorative justice is the core basis of the failure Kenya is faced with. It affects the public administration and national vision. Individuals who are professionals will always find themselves in the cages of historical injustice yet they cannot provide the avenue or clear solution to problem. Such professionals have endorsed corruption, hatred, and bad governance. After all, such domains belong to some few moralists and Kenyans of good will. Unfortunately, such men and women are the minority. They have no power, no money but good ideas that they cannot implement.

Inflation is too high, economic growth is stagnant, and cost of living is sky rocketing in Kenya. Many Kenyans have no purchase power and supermarkets are the first casualties. Uchumi chain of supermarkets has closed down most of its branches and Nakumatt is following suit. This is a sign of many job losses, more poverty, and poor economic performance in general.

About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

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