The debate intensely sparked in the country in 2013 when the court, in Republic v Mohamed Abdow Mohamed  eKLR, acquitted the accused, who was charged with murder. In that case, the prosecution counsel orally applied to court for acquittal of the accused based on the fact that the complainant’s family had accepted compensation from the accused family following reconciliation held under Islamic and traditional laws. The prosecution counsel, Mr. Kimanthi, cited article 159(1) of the constitution, which allows courts and tribunals to be guided by Alternative Disputes Resolution, including mediation, reconciliation, arbitration, and traditional dispute resolution mechanisms. The court allowed the application under article 157 of the Constitution, which mandates the Director of Public Prosecutions (DPP) to exercise state powers of prosecution, and in that exercise, the DPP may, at any stage, discontinue any criminal proceedings against any person.
In Republic v Abdulahi Noor Mohamed (alias Arab)  eKLR, the accused was, like in the first case above, charged with murder contrary to section 203 as read with 204 of the Penal Code. However, the court dismissed the Applicant’s/Accused’s chamber summons application, where the accused sought to have the court grant him and the deceased family time to reconcile and settle the matter. The court declined the application because:
a) As the custodian of prosecutorial powers, the DPP was not consulted/involved in the process and thus could not be bypassed. The Accused/Applicant and the deceased’s family reached an agreement to reconcile and settle the matter out of court,
b) The charge against the accused is a felony, and reconciliation as a form of settling the proceedings is prohibited.
c) The request was made too late in the day when the case had been heard to its conclusion.
Before arriving at its conclusion, in the latter decision, the court reasoned as follows:
“…the constitutional recognition of alternative justice systems as one of the principles to guide courts in exercising judicial authority does not exclude criminal cases. This recognition restated the place of alternative justice systems in the administration of justice. Article 11 recognizes culture as ‘the foundation of the nation and the cumulative civilization of the Kenyan people and nation .’As noted above, statutory provisions only limit to a certain category of offenses, which does not extend to capital offenses…” (Emphasis added)
It is worth noting that even though the court recognized that alternative justice systems as one of the principles to guide the court in the exercise of judicial authority does not exclude criminal matters, it still relied on the provisions of section 176 of the Criminal Procedure Code (CPC) and section 3(2) of the Judicature Act3, to disallow the accused’s application. The court was supposed to make great steps towards aligning the said provisions with the constitution in a manner that promotes its principles, values, and ideals.
Clause 7(1) of the transitional and consequential provisions in the sixth schedule to the constitution provides that all law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications, and exceptions necessary to bring it into conformity with this constitution. One
such construction would be the reality that ADR is now applicable to all criminal matters regardless of whether they are misdemeanors or felonies. The court ought to have declared sections 176 of the CPR and 3(2) of the Judicature Act unconstitutional for being inconsistent with the constitution or recommend to Parliament to amend them within a specified period to conform to the constitution. All laws, whether passed before or after promulgation, derive their authority from the constitution.
Further, suppose you look at the case of Republic v Abdulahi Noor Mohamed (alias Arab)  eKLR decision. In that case, the other argument the court made against the use of ADR in felony matters is:“…there are, however, no policy guidelines on how to incorporate the alternative justice systems in handling criminal matters. The court proceeded to note that:
“…There is also no formalized structure on how informal justice systems can be applied to handle criminal matters and their scope of operation. Policy engagement is paramount to provide guiding principles on such aspects as the types of cases that can be determined through the alternative justice systems, the interrelation of such application (if any) with the court process, how and when the alternative process is to be invoked in the course of proceedings among others…”(Emphasis added).
Also, the court said:
“…some efforts are underway with the appointment of the task force on traditional, informal and other mechanisms used to access justice in Kenya (Alternative Justice Systems) in line with the Judiciary’s plan to develop a policy to the mainstream alternative justice system to enhance access to and expeditious delivery of justice…”.
Well, the task force, led by Professor Joel Ngugi, was formed, and this is what it had to say in the report, while quoting Nwabueze, on matters of traditional, informal, and other mechanisms used to access justice (Alternative Justice Systems), during the launch of the report on Katiba day the 27th August 2020:
“…judicial power includes the following attributes: (i) the existence of a dispute between two or more parties about some existing legal right; (ii) a compulsory jurisdiction at the insistence of one party to inquire into the dispute; (iii) a power to determine the facts of the dispute authoritatively; (iv) a decision arrived at by the application of the relevant law to the facts, and which, by declaring the rights in question, finally disposes of the whole dispute; (vii) a power to enforce compliance with or obedience to the decision. …”4
Wherein the task force argues that: the attributes and policy postulated above propose an Agency Theory of Jurisdiction as the constitutionally permissible modality to determine the acceptability and propriety of a particular dispute, controversy, or issue to be before an AJS mechanism. On the first attribute mentioned by Nwabueze – the existence of disputes between parties− the Agency Theory does not require a dispute or controversy as a prerequisite for jurisdiction. Additionally, the theory does not classify disputes based on whether they are criminal or civil. Furthermore, the Agency Theory does not distinguish jurisdictional reach based on the gravity of the offense
in criminal matters. The important question is whether the concerned parties have consensually and voluntarily submitted themselves to this mode of dispute resolution. The foundational question is thus whether there is a dispute that is ripe for resolution. Whether the third parties involved have the power to resolve the dispute is irrelevant. What needs to be determined is whether the parties’ consent is informed, mutual, free, and revocable. These are the fundamental prerequisites of this theory.5
The Agency Theory also explained the endorsement of the High Court decision in Republic v Mohamed Abdow Mohamed as constitutional and lawful because the accused was discharged in keeping with the Agency Theory since the Court established that there was consent in the withdrawal of the matter. Further, it was mutual in that both parties had agreed to the withdrawal of the matter. Moreover, consent was given freely; no party was coerced into it. This case demonstrates how citizens retain power even when delegated to another arm of government.6
The Task Force also explained whether Agency Theory might open floodgates. It stated that:
“…the fear of opening a ‘Pandora’s box, as Pravin Bowry contends, for applying AJS in sensitive cases such as defilement is, thus, addressed sufficiently by the Agency Theory. This theory also challenges us to go beyond the narrow view in criminal law of taking these cases as disputes between the State and the individual and not between two individuals. Indeed, this theory addresses this concern as well.
Further, it recognizes the involvement of the ODPP as the representative of State-based interests in criminal cases. In instances where the ODPP has consented in a free, informed, and mutual manner with the victim and other stakeholders, it is reasonable and lawful to contend that AJS mechanisms can be deployed in the criminal justice system …”7
Taking stock of the above, it is clear that the place and use of Alternative Resolution Mechanisms is deeply entrenched in our constitutional landscape and have gone beyond the traditional conception that ADR cannot apply to felony matters. However, what is key in its use is whether the parties and stakeholders in question have mutually, freely, based on informed opinion, consented to the process. Thus, locking the accused persons and family of the complainant (s) and DPP who wants to try the path of reconciliation only amounts to denying access to justice and curtailing restorative justice.
Last, since there is already a policy, Agency Theory, which guides the applicability of ADR in criminal matters, it can be used to weigh matters ripe for ADR. If used, the Policy above can help to achieve desired results in the criminal justice system without denying a party or representative of a party to dispute access to justice and restorative justice whereby all parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future.8
The author is a lawyer at the firm of Naikuni, Ngaah & Miencha Co. Advocates.
1Penal Code section 4: ”felony” means an offense declared by law to be a felony or, if not declared to be a misdemeanor, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more.
2Chapter 75 Laws of Kenya: in all cases, the Court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or any other offense of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the Court, and may thereupon order the proceedings to be stayed or terminated.
3Chapter 8 Laws of Kenya, the Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations Court, and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law. They shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and undue delay.
4Task Force on the Traditional, Informal and Other Mechanisms for Dispute Resolution In Kenya, “Alternative Justice System: Baseline Policy” 2020.
7Supra n 4.
8S. Kirschner, “What does ADR mean in the criminal justice context?” 2018 relying on Australian Institute of Criminology (AIC), ‘Restorative Justice in Australian Criminal Justice System’, (2014) 127 Research and Public Policy Series, 23-28.?