The Potential of Traditional Justice Systems in Enhancing Access to Child-Friendly Justice

Abstract

Although the constitution of Kenya 2010 and other international human rights instruments provide for the right of access to justice, the same remain unattained for the most part especially among vulnerable groups. Children represent one of the groups which experience the highest number of human rights violations. Despite legislative and other policy attempts to secure children’s access to justice, many children do not report violations partly because their violators are usually their immediate guardians. The formal justice system fails to provide adequate safeguards to protect children from victimization should they report any violation by their guradians. Similarly, the formal justice system does provide sufficient redress for children in conflict with the law are also exposed to harsh penal systems that lack sufficient child sensitive procedures. Such systems increase their propensity to commit crimes in the future as opposed to the intended deterrent effect. As one of the vulnerable groups in society, children encounter various hurdles in their quest to access justice within the formal justice system. In particular, many children: lack the requisite knowledge and resources to pursue a legal claim; lack legal capacity to initiate legal proceedings on their own; face financial constrints; suffer from language constraints; have to travel long distances to access formal justice institutions; fear ostracism by going to court; some find the formal justice system harsh and undesirable; do not see themselves victims; face heightened risk of stigmatization and retaliation; face the risk of institutionalization in the formal justice system; face pressure from failies to settle disputes out of court; and the fact that family support is essential to the successful participation of children in the justice system-all mean that the formal justice sytem is not well suited for processing disputes involving children thus hampering their access to justice.The Potential of Traditional Justice Systems in Enhancing Access to child… 148 This state of affairs impels the need of exploring alternatice justice system that can potentially provide child friendly justice procedure. Traditional justice systems, which are recognized under article 159 of the constitution of 2010, are closer to people and do not have the stringent formalities that are found in the formal justice system and therefore, potentially provide a friendly avenue for children to access justice. Traditional justice system could cure these chllenges by resolving dipsutes in a relatively shorter time and diverting children away from the harsh formal justice system. These systems are also significantly cheaper, more accessible, and less complicated than the formal justice system. In recognition of the need to embrace traditional justice systems in dispute resolution, the chief justice recently launched the Alternative justice systems Policy 2020 which , among other things, seeks to mainstream customary and traditional justice systems that have for long been at the periphery of the Kenyan justice system. This policy document will potentially ease access to justice by children since it will do away with the rigidities of formal justice processes that make it difficult to access child friendly justice and embrace the more flexible and friendly traditional justice system. The access to child friendly justice should afford all children, regardless of their socio-economic background or any other status, with sufficient avenues to obtain redress for any violations. Against this backdrop, this paper argues that Traditional Justice Systems as provided for under article 159(c) of the Constitution and the Alternative Justice Systems Policy can potentially avail a child-friendly justice system thereby actualizing the right of access to justice enshrined under article 58 of the Constitution.