The Jurisprudential Basis of Traditional Justice Systems as an Enabler of Legal Aid and Access to Justice in Kenya

Abstract

This paper examines the role of traditional justice mechanisms in enabling access justice and function of Legal Aid towards achieving access to justice to the extent that it is germane. The import of administration of justice denotes the possibility for an individual to bring a claim before a Court for adjudication, nevertheless, at its core, access to justice is premised on the ability of court users to understand the process in which they participate and to be meaningful participants in the justice system. Access to justice catered for only by means of formal justice systems suffers, since the formal systems alone cannot provide adequately for this public good. Therefore, it is not a surprise that alongside formal Court processes, the emerging issue is the place of traditional dispute resolution mechanisms in enhancing access to justice is fast gaining a reawakening. Access to justice cannot remain only an object of formal justice mechanisms. Access to justice in the narrowest sense may mean a guarantee to remedial mechanisms such as access to court or alternative dispute resolution bodies; however, this position is anomalous since the prerequisite for the so-called alternative dispute resolution presupposes a pretentious superficial substitute. Access to justice in the context of alternative dispute resolution mechanisms enables the enforcement of rights in the context of social and cultural milieu. Conversely, access to justice in the broader sense, denotes an engagement with the wider social context of the indigenous governance systems. Extant evidence demonstrates that access to justice is undermined by lack of legal literacy and in most cases indigence. The paper will explore the place of Legal Aid in promoting access to justice in its broader connotation, in all judicial and quasi-judicial fora and other fora afforded by traditional systems. This paper will examine access to justice in the context of the Constitution of Kenya 2010 and such Laws as have been enacted to undergird legal aid.