This is in response to a sad story in Wajir where community leaders used Maslaha, an alternative form of dispute resolution, to settle a case where a 15 year old girl was repeatedly gang raped for 2 days by 3 men. [Daily Nation, 4th March 2018- https://www.nation.co.ke/counties/wajir/Goats-used-as-fines-for-rape-in-Wajir/3444790-4328392-nnkfxcz/index.html
The Legal term of Maslaha within Islamic Jurisprudence means ‘the common good’ or ‘in the public interest.’ This is unbelievable because now the question would be, ‘which public?’
Although Article 11 of the Constitution of Kenya recognises culture as ‘the foundation of the nation and as the cumulative civilization of the Kenyan people and nation’, rape is a crime against the victim and against humanity at large.
A person is deemed to commit the offence termed rape if – (a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; (b) the other person does not consent to the penetration; or (c) the consent is obtained by force or by means of threats or intimidation of any kind. (3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.
A crime of rape is an injury not only against the affected individual(s) but also against the society. Crimes are prosecuted by the state, which in so doing protects the social and constitutional rights of all citizens. The Constitution of Kenya 2010 recognizes the need for Alternative Dispute Resolution (ADR) to be employed in seeking justice rather than the much hostile court process. However, crimes like murder, rape, robbery with violence are crimes against humanity and as such the offenders/perpetuators must face the full force of the law and must not be accorded an opportunity to get away with their inhuman acts through the guise of traditional norm of ADR.
This is due to the fact that such traditional and customary agreements are repugnant to justice and morality and pursuant to Article 2(4) of the Constitution of Kenya 2010 which categorically states that ‘’Any law including Customary law that is inconsistent with this constitution is void to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid.’’ Therefore, at a minimum, the prosecution should be consulted before having the reconciliation agreements and customary laws applied in resolving the criminal cases.
The Criminal Procedure Code under Section 176 provides:
‘In all cases the court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence 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.’
The Director of Public Prosecutions is the custodian of prosecutorial powers. Prosecution of offences is a public policy concern, and in preserving this power to preserve the public interest, he/she cannot be by passed in negotiations concerning charges against an accused person as in the case of Juma Faraji Serenge alias Juma Hamisi v Republic  eKLR, Maraga, J. (the current Chief Justice) in his ruling stated:
‘To the best of my knowledge, other than in cases of minor assault in which a court can promote reconciliation under section 176…. of the Criminal Procedure Code and such minor cases a complainant is not allowed to withdraw a criminal case for whatsoever reason. In any case the real complainant in all criminal cases, and especially so felonies, is the state. The victims of such crimes are nominal complainants. And the state, as the complainant, cannot be allowed to withdraw any such case because the victim has forgiven the accused as happened in this case or any such other reason. The state can only be allowed to withdraw a criminal case under section 87A of the Criminal procedure Code or enter a nolle prosequi when it has no evidence against the accused or on some ground of public interest. And even then when it has convinced the court that the case should be so withdrawn”.
Maslaha, which is an alternative form of dispute resolution mechanism, is recognized under Article 159 (2) (c) of the Constitution which provides that:
‘In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(c) Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)
Clause (3) of the same article states:
‘Traditional dispute resolution mechanisms shall not be used in a way that:
(a) Contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or
(c) is inconsistent with this Constitution or any written law.
It should always be remembered that customary law is unwritten law but just a set of rules that exists in one’s mind and are passed on from one generation to another. This is due to the fact that there is nothing like customary law but what we have are customary laws as every community have a different set of beliefs all together. It is also imperative to note that despite the fact that the victims of offenses like rape subscribe to various customary laws that do not consider that injustice, they are still under the provisions of the constitution of Kenya 2010 and fully enjoy the rights of the said constitution. Therefore, the application of alternative dispute resolution mechanisms must be consistent with the Constitution and the written law of the land and check to ensure justice to both the offenders and the victims.
Equally, the Judicature Act in section 3(2) stipulates and provides that the customary law is only applicable to civil cases. It states that:
‘The High Court, the Court of Appeal 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, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”
Therefore where the alternative dispute resolution mechanisms are to be used in the criminal matters, it is limited to misdemeanours and should not be considered on felonies.
Jack Odiwa, Local Expert-AJS
AGCP-Kituo Cha Sheria