Authored By: Eshirera Kimberly
Riara University
ABSTRACT
Kenya’s Alternative Justice Systems (AJS) Policy 2020 envisions a more humane, restorative path for resolving non-violent family disputes. However, a significant gap persists between its promising goals and the reality for many Kenyan families. This paper argues that the Policy’s potential is critically undermined by unresolved challenges in procedural fairness, gender inclusion, and the legal enforceability of agreements. While court-annexed mediation offers a robust enforcement mechanism, community-based AJS outcomes remain in a legally precarious state. Through a critical analysis of the Kenyan framework and a comparative study of South Africa’s integrated model, this paper proposes a concrete blueprint for reform. Key recommendations include enacting a substantive AJS Act, mandating gender-balanced panels, and creating a simplified pathway for converting community agreements into enforceable court orders. By adopting these reforms, Kenya can build a trusted AJS system that genuinely blends community wisdom with constitutional principles, delivering dependable and equitable justice for all.
1.0 INTRODUCTION: THE PROMISES AND SHORTCOMINGS OF ALTERNATIVE JUSTICE SYSTEMS IN KENYA’S FAMILY LAW
In Kenya, the tendency to resolve disputes by “going to court” is strongly ingrained, but the formal justice system faces delays, high costs, and complexity, making it ineffective for the subtle realities of non-violent family disputes. These conflicts, which include child custody, maintenance, division of matrimonial property, and inheritance and succession, need solutions that restore relationships rather than worsen hostility. The 2010 Constitution, under Article 159, supported Alternative Justice Systems (AJS), opening the door for a more comprehensive, people-centered, and restorative justice system.
Kenya introduced the AJS Policy (2020), an initiative designed to empower parties and promote context-aware resolutions. However, a paradox emerges: while aiming to ease the burdens of the formal system, the policy’s current framework risks reproducing its inequities. Its potential is critically undermined by unresolved structural and implementation challenges, including issues of gender and inclusion, procedural fairness—particularly concerning the best interests of the child— and the enforcement of outcomes.
This paper argues that the well-intentioned AJS Policy 2020 is currently hampered by deficits in procedural fairness, gender inclusion, enforceability, and predictability. These are not isolated issues but interconnected pillars that must be addressed to fulfil the policy’s full potential. Consequently, this study asks, how must Kenya’s framework for non-violent family disputes be re-envisioned to resolve this paradox and strengthen constitutional principles of equity, dignity, and access to justice? Through a critical analysis of the Kenyan policy and a comparative study of South Africa’s rights-based model, this paper aims to generate evidence-based, contextually attuned recommendations for a strengthened AJS model that delivers not only efficiency but also rights-compliant and enforceable outcomes for non-violent family disputes in Kenya.
2.0 A RATIONALE OF THE ALTERNATIVE JUSTICE SYSTEM IN KENYA’S NON-GBV FAMILY DISPUTES
The formal court system, with its rigid procedures, is profoundly ill-equipped to resolve non violent family disputes. At the heart of matters such as parental responsibility or child custody lies a web of fractured relationships that requires mending and not a winner-takes-all contest. The main issue lies in the system’s inherently adversarial nature that forces grieving families into the roles of claimant and respondent, which automatically hardens battle lines1and requires parties to aggressively disprove each other’s cases. This process inflicts lasting relational damage, hence making future cooperation nearly impossible.2 The child’s best interests, a paramount principle, can become a secondary consideration to the tactical processes of litigation.3
Apart from the relational harm, the formal system imposes financial and emotional costs. Litigation is expensive time time-consuming due to postponing dates and depleting the very assets being disputed.4Additionally, the slow, public process exacerbates stress, anxiety, and trauma for all the parties involved.5 Overburdened courts lead to long, frustrating delays, leaving families in a state of pain and uncertainty for years.6
In contrast, Alternative Justice Systems (AJS) offer a pathway designed not to declare a winner, but to heal a family. AJS is a framework that prioritizes empowerment, restoration, and practical sustainability. It empowers parties through party autonomy and participatory justice. Unlike a judge-imposed verdict, processes like mediation place the power to come up with outcomes directly into the hands of those most affected. 7This participatory approach allows parents to design creative, tailored solutions that a formal court would never order. This fosters ownership and agreements. This leads directly to preserving relationships by encouraging communications and cooperative problem solving. The Alternative Justice Systems helps to de-escalate conflict and build a foundation for future co-parenting.8 This is arguably its most significant benefit for children, who are shielded from the direct conflict of litigation and are provided with the stability of having parents who can still communicate.
Furthermore, Alternative Justice Systems are efficient, resolving matters in weeks or months, not years, at a substantially lower cost, making justice accessible to a broader population who would otherwise be priced out of the formal system.10Its informal and flexible nature allows it to be responsive to the cultural and social realities of the parties, incorporating community elders and protecting family dignity through private processes.11 Ultimately, AJS is not an alternative but an essential pillar for restoring humanity to family justice in Kenya.
3.0 ANALYSIS OF UNRESOLVED CHALLENGES IN KENYAS ALTERNATIVE JUSTICE SYSTEMS POLICY 2020
3.1 First challenge: procedural fairness
The AJS Policy 2020 emphasizes informality and flexibility, while well-intentioned, it carries a dangerous flaw that is a potential for justice to become arbitrary. By failing to establish clear, mandatory procedural safeguards, the Policy creates a vacuum where consistency and fundamental rights, especially those for children, can easily vanish.12 This risk is more acute in child custody and maintenance disputes, where the informality meant to help families can undermine the substantive constitutional principle paramount to all decisions: the best interests of the child.
The Policy itself acknowledges the peril of upholding ‘unconstitutional values’ due to a lack of ‘minimum procedural requirements’.13 In practice, this means outcomes may depend not on a child’s documented needs, but on the mediator’s personal views, a parent’s persuasiveness, or deeply embedded cultural biases.14 A father might be granted custody based on tradition rather than his caregiving abilities, or a mother might be pressured into unfair financial concessions to secure time with her child.15 This ad hoc approach turns justice into a lottery of values, where the child’s welfare becomes a bargaining chip rather than the central, non-negotiable focus.
Without a structured framework means there is no guarantee that the child’s voice is heard as required under the Children’s Act and the Constitution of Kenya.16 Life-altering decisions are left to the mediator’s intuition, not expert input or evidence. As a matter of fact, this is not flexibility rather it is a dereliction of the state’s duty to protect its most vulnerable citizens.17 An agreement may be reached, masking a deeply unjust outcome that a formal court, bound by the strict evidentiary requirements of the ‘best interest’ principle, would never countenance.18 In essence, the Policy creates a paradox: seeking to provide families access to justice, it systematically risks denying it to the children within them by confusing the absence of conflict for the presence of fairness, and by doing so, betrays the constitutional values it purports to uphold.
3.2 Second challenge: patriarchal bias and gender imbalance
The alternative justice systems policy acknowledges a critical threat, deep-seated patriarchal biases that undermine its legitimacy, particularly in disputes affecting women’s economic security and dignity. Traditional forums are often male-dominated, risking perpetuating unfair outcomes that violate the Constitution.19 This is evident in matrimonial property, inheritance, and succession cases where pre-existing power dynamics and cultural norms collide with Kenya’s transformative 2010 Constitution.
In practice, the AJS can entrench the very inequalities it aims to resolve. Panels may undervalue women’s non-financial contributions like domestic chores, dismissing them as mere marital duties, despite the Supreme Court of Kenya having unequivocally held that contribution to matrimonial property includes domestic work and management of the matrimonial home20. Similarly, patriarchal notions of ownership and titles such as “head of the house” often prevail, disregarding evidence of women’s financial input or the constitutional principle of equal sharing. 21 In inheritance and succession disputes. Despite the clear provisions of the Law of Succession Act22, which grants equal rights to daughters and widows, AJS forums may illegally apply discriminatory customary rules. This not only violates statutory law but also contravenes Article 27 of the Constitution.
The core problem is not the AJS model itself, but its unchecked operation without robust safeguards. The Policy identifies these risks but offers no enforceable solutions, leaving women vulnerable to forums where they may not even be allowed to represent themselves, forcing them to rely on male spokespersons who may be ignorant of or indifferent to their rights. 23 To bridge this, disconnect structural changes are essential. Mandatory gender balanced panels are not merely a symbolic gesture of fairness but an operational necessity. Including women as elders introduces perspectives that understand and value domestic labour, recognize economic coercion within households, and align customary principles with constitutional equality. 24This reform would transform the AJS from a potential instrument of oppression into a genuine forum for equitable justice.
3.3 Third challenge: enforcement and predictability
The AJS Policy 2020 directly identifies a critical flaw that is the lack of legal enforceability and predictability of its outcomes.25 This gap is acutely felt in family disputes involving land, family debts, and payment of dowry, where informal agreements remain vulnerable to violation. For instance, a mediated land boundary agreement holds no weight at the land registry, and a debtor may ignore a repayment plan brokered by the elders. Additionally, dowry agreements remain culturally binding but legally unenforceable.26 Therefore, without formal recognitions, these hard won resolutions can easily dissolve, forcing parties to go back to the courts they sought to avoids, rendering the whole AJS process futile.
There is a key disconnect that exacerbates this problem; while court-annexed mediation successfully converts settlements into consent judgments, this mechanism only applies to cases that are already filed in court.27 The majority of AJS decisions, those that are made in communities entirely outside the formal courts, remain stranded in a legal no man’s land. We do not have standardized, accessible pathways for these agreements to gain legal force.
For AJS to be a key pillar and not an alternative, it must offer not just a resolution but a reliability, bridging the gap by integrating the traditional with the legal forums, creating a clear bridge for community agreements to enforceable laws.
4.0 THE SOUTH AFRICAN MODEL AS A BLUEPRINT FOR INTERGARTION
4.1 South Africa’s legislative framework
The South African legal framework offers Kenya a robust, rights-based model for integrating traditional justice into a modern constitutional democracy. It firmly anchors alternative dispute resolution in legal legislation and further subjecting it to constitutional scrutiny, South Africa has created a justice system that not only respects cultural practices but also protects individual rights. Kenya’s Alternative Justice Systems policy has yet to achieve this balance.
Unlike Kenya’s Alternative Justice systems policy only, South Africa’s approach is deeply embedded in its legal architecture, enshrined in Section 211(3) of the South African Constitution explicitly recognizes the institution, status, and role of traditional leadership according to customary law, but crucially subjects it to the Constitution 28 This establishes a clear hierarchy:
cultural flexibility is permitted, but not at the expense of fundamental rights. This constitutional foundation is operationalized through statutes like the Children’s Act 38 of 2005, which explicitly recognizes mediation and family group conferences as valid forms of dispute resolution concerning children, provided their outcomes serve the child’s best interests.29 This structured, legislated integration ensures that traditional justice is not a parallel, unregulated system but a complementary one working in concert with national laws.
4.2 Addressing Procedural Fairness
South Africa directly addresses the risk of arbitrary outcomes by imposing standards on traditional processes. The Children’s Act, for instance, provides guidelines for mediators, emphasizing impartiality and the best interests of the child.30 Furthermore, the South African Law Reform Commission has extensively researched traditional courts, recommending measures to ensure fairness, such as the right to be heard and the right to appeal.31 This creates a system where informality does not mean a lack of accountability. Traditional forums are encouraged to operate, but are kept in check by the overarching requirement to adhere to procedural justice and human rights norms. For Kenya, this demonstrates that establishing “minimum procedural requirements” is not an alien concept but a necessary safeguard to ensure AJS decisions are consistent, reasoned, and fair.
4.3 Addressing Gender and Inclusion
A particularly powerful aspect of the South African model is the clear pathway it provides for challenging discriminatory AJS outcomes. The Constitution’s Bill of Rights empowers individuals to take biased decisions from traditional forums directly to the formal courts for review.32 This is not a theoretical right. Landmark cases like Gumede v President of the Republic of South Africa saw the Constitutional Court invalidate customary law provisions that discriminated against women in marital property, applying the Constitution directly to customary unions.33 Additionally, vibrant civil society organizations provide legal aid and advocacy, empowering women to navigate between systems to claim their rights.34 This creates a critical safety net missing in Kenya, where women often lack the resources or knowledge to challenge unfair AJS rulings, leaving them without recourse.
4.4 The Model for Legal Enforceability
The most transformative feature of South Africa’s system is the mechanism for converting AJS agreements into legally enforceable instruments. In family mediation, particularly in children’s matters, a successfully mediated agreement can be presented to a court to be “made an order of court.”35 This process involves a judge conducting a brief review to ensure the agreement is lawful and constitutional and not reopening the merits of the case. Once endorsed, the agreement carries the full weight and authority of a court judgment. This means that a breach of the terms, such as a failure to pay maintenance or adhere to a custody arrangement, can be enforced through standard court mechanisms like garnishee orders or warrants of execution.36
This mechanism is the key to solving Kenya’s central challenge of predictability and enforcement. It transforms a fragile moral understanding into a secure legal reality. A Kenyan parent relying on an AJS maintenance agreement currently has only a promise; under a South African-inspired model, they would possess a court order. This provides the certainty needed for families to plan their futures and makes AJS a credible, reliable alternative to litigation, rather than a risky preliminary step. By creating this simple, accessible bridge between the informal and formal systems, Kenya can ensure that justice achieved through AJS is justice that lasts.
5.0 POLICY RECOMMENDATIONS FOR KENYA
The challenges within Kenya’s AJS Policy 2020 reveal a system at a crossroads: it can either perpetuate informal injustice or evolve into a cornerstone of a modern, rights-based justice system. The following recommendations are an interdependent blueprint for a comprehensive reform in the alternative justice systems. This holistic approach ensures that the AJS delivers not just any resolution, but one that is fundamentally fair, equitable, and durable for all Kenyan families.
5.1 Mandating Procedural Fairness and Gender Equity
Before any agreement can be considered for enforcement, its very formation must be just. Building on the foundational efforts of the Alternative Dispute Resolution Bill of 2021, this paper’s first recommendation is to enact a standalone AJS Act of Parliament.37This Act must first codify non negotiable minimum standards, moving the system from aspirational policy to justifiable law. Institute a mandatory Child-Centric Protocol, requiring mediators to actively document how every custody or maintenance agreement serves the child’s best interests, incorporating the child’s voice in an age-appropriate manner, as envisioned by the Children’s Act.38 Concurrently, while the AJS rightfully identifies the need for gender inclusion, its implementation remains ad hoc. This paper recommends codifying a mandatory rule to ensure gender-balanced panels with a minimum 40% female representation for all disputes involving maintenance, matrimonial property, or succession and inheritance.
5.2 Creating a Bridge to Legal Enforceability
With a fair agreement secured, the core failure of the current system is the lack of enforceability, which must be addressed. While the Court Annexed Mediation program provides a successful model for legal enforceability, it is currently limited to court-referred cases. This paper’s central recommendation is to establish a new, separate legal pathway to extend this function to all community-based AJS agreements inspired by South Africa’s successful model.39 The law must provide a clear pathway for AJS agreements to be lodged with and adopted as consent orders by the Magistrates’ Courts. Upon a simple, swift review for basic lawfulness and constitutionality, and not a re-litigation of the merits but a magistrate would endorse the agreement. This transforms a fragile social agreement into an immediately enforceable court judgment, providing the predictability that makes AJS an essential pillar allowing families to rely on the resolutions they work so hard to achieve.
5.3 Institutionalizing Oversight and Accountability
To ensure this new framework does not become stagnant or corrupt, ongoing oversight is essential. The commendable work of the National Steering Committee on the implementation of AJS provides a foundation for the establishment of a formal, independent AJS monitoring and evaluation directorate within the judiciary. 40This permanent body would be responsible for maintaining a national registry of certified mediators, collecting and publishing anonymized data on AJS outcomes disaggregated by gender and dispute type, and serving as a complaints body for parties who believe their rights were violated during the process. This provides a critical safety net and creates a feedback loop for continuous evidence-based system improvement.
By implementing this cohesive blueprint, Kenya can transform it’s AJS from a well-intentioned idea into a trusted, effective, and integrated pillar of justice that truly serves its people.
6.0 CONCLUSION
This paper has argued that the Alternative Justice Systems Policy 2020 represents a profound opportunity to reimagine justice for Kenyan families, but its immense potential remains locked behind unresolved challenges. Without critical reforms to ensure procedural fairness, eradicate patriarchal bias, and guarantee legal enforceability, the AJS risks becoming a second-class system that delivers second-rate justice, particularly for women and children. The analysis reveals that informality, without minimum safeguards, breeds arbitrariness, and that tradition, when unchecked by constitutional values, can perpetuate inequality.
This is a call to action to enact the proposed blueprint, hence establishing a statutory foundation with clear standards, mandating gender-balanced panels, creating a simple court adoption mechanism, and instituting robust oversight. A refined AJS framework is a bold, forward-thinking move towards a more humane and effective justice system that promises a future where resolving a family dispute does not mean choosing between a costly, adversarial court and an unpredictable, potentially unjust informal process. Instead, Kenyans can have access to a truly integrated system that honors community wisdom while firmly upholding the principles of the constitution.
Reference(S):
1John Eekelaar, ‘Family justice: ideal or illusion?’ (2015) 45 family law 840, 842.
2 Ministry of public service, gender and youth, Alternative Justice Systems (AJS) Policy (Government of Kenya 2020)11.
3In re G (children) [2006] UKHL 43, [2006] 1 WLR 2305 [1] (Lord Nicholls)
4 Hazel Genn, ‘Why the privatization of civil justice matters’ (2012) 39 Journal of Law and Society 1, 810
5Judith T. Younger, ‘light, shadow and the democratic vision: a perspective on alternative dispute resolution movement’ (1987) 3
6 Maryland law review287, 295
7 Nadja Alexander, the mediation metamodel: understanding practice (2008) 26 conflict resolution quarterly 97, 105
9 Transforming the relationship from a marital one into a managerial one is essential for the long-term well-being of the entire family unit.
8Julie Macfarlene, the new lawyer: how settlement is transforming the practice of law (2nd edn, UBC Press 2017) 729 Linda C. Neilson, ‘The theory of the (non-) reactive family and dispute resolution processing systems’ (2019) 57 Family Court Review 33,40.
10 Ministry of public service, gender and youth, alternative justice systems (AJS) Policy (Government of Kenya 2020) 9.
11 Michael A. Agbakoba, ‘alternative dispute resolution and the philosophy of African justice’ in T.M.I.M. Tundu and A.M. Akiwumi (eds), the future of African customary law (Cambridge University Press 2014) 345. 12 Michael A. Agbakoba, ‘The informal justice systems and the challenge of rights’ (2018)
12 Journal of African law 145, 150
13 Alternative justice stems policy,2020
14 Anne Helium and Bill Derman, ’Balancing pluralism: the quest for fairness and equity in African customary law, 32.
15 Patricia kameri mbote, the operation of plural legal systems in Kenya: a cultural and constitutional duel?’ (20218) 4 Strathmore Law Journal 1, 19.
16 Constitution of Kenya 2010, art 53(2); children act no 8 of 2022, 4(2)-(3)
17 In the matter of baby A (minor) [2014] EKLR, petition No 266 of 2013[45]
18 In re G (Children) [2006] UKHL 43, [2006] 1 WLR 2305 [1] (Lord Nicholls).
19 The alternative justice systems (AJS) policy (the judiciary, Republic of Kenya, 2010)21 20 [2019] eKLR (Supreme Court of Kenya) para 60
21 Patricia Kameri Mbote, ‘gender dimensions of law, colonialism and inheritance in East Africa: Kenyan women experiences ‘(2005) 5(1)
22 Law of succession act (cap 160, laws of Kenya).
23 AJS policy, 2020
24 Winfred Kamau, reforming traditional justice systems: a gender perspective in J.M. Mbae and J.B. Nyamu (eds) Alternative Justice Systems in Kenya (Strathmore University Press 2021) 145.
25 The Alternative Justice Systems policy (the judiciary, Kenya 2020) 21
26 Jane F. Barrett and Rafaela C. Leite, ‘Informal justice: the challenges of accountability’ (2019) 14 Journal of Dispute Resolution 89, 95
27 Mediation (court annexed) rules (2016), rule 21
28 Constitution of the Republic of South Africa, 1996, s 211 (1) (2) (3)
29 Children’s Act 38 of 2005 (South Africa), s 68
30 Ibid, s 70
31 South African law reform commission, report on traditional courts and judicial function of traditional leaders’ (project 90, 2003), s 67
32 Constitution of the Republic of South Africa, 1996, s 38
33 Gumede (born Shange) v President of the Republic of South Africa 2009 (3) BCLR 243 (CC) [47].
34 Women’s legal center, annual report 2021 (cape town 2021) 12.
35 Children’s Act 38 of 2005 (South Africa), s 67 (4)
36 Du Preez v Du Preez [2009] JOL 23690 (SCA) [12].
37 The alternative dispute resolution bill, 2021 (Kenya), cls 4,12
38 Children Act, no 8 of 2022, s 4(2) (3)
39 Judiciary of Kenya, court annexed mediation: guidelines and procedure (2016) 5; South African law reform commission, report on traditional courts and judicial function of traditional leaders (project 90, 2003) 154 (recommending a similar system for customary law agreements).
40 National steering committee on the implementation of AJS (NaSCI-AJS).; INAUGURAL WORK PLAN REPORT (2022)7-9
