Concept of Justice That Shape the Uptake of Judicial Safeguards within Maslaha Processes in Garissa County, Kenya
Karanja, Joseph Kimaru
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Maslaha systems of justice continue to be utilized as mainstream and alternative forums in conflict resolution, adjudication of felonies and minor crimes among communities in North Eastern Kenya. Despite maslaha playing an important role in adjudication of criminal matters through established structures based on customary norms, studies report that their processes are vulnerable to abuse and may lack objectivity. This puts the victims at a disadvantage. Yet, evidence indicate that attempts to entrench safeguards through operationalization of Article 159 of the 2010 Constitution of Kenya in order to uphold fairness indicate varied adherence. Using Critical Procedural theory and Model of Informal Institutional Change, this study sought to identify salient contextual realities and social interests that shape the interpretation and application of norms, process, actors and remedies within maslaha forums. The study was guided by three objectives which were; to examine salient features of maslaha criminal justice process that influence the uptake of regulatory safeguard; to analyze judicial regulative models prioritized for maslaha criminal justice systems; to find out whether operationalization of judicial regulative safeguards was responsive to salient features of maslaha systems of justice. Phenomenological research design was adopted to study concepts of justice constructed from respondents’ experiences and interactions with contextual realties and their implication on the adherence of judicial safeguards. Multi-stage sampling was used to cluster Garissa County according to its administrative units where purposive, snowballing and convenience approaches were used to sample study sites and respondents within customary justice forums, justice practitioners, government administrators, legal officers, human rights and paralegals. Data was collected through interviews and focus group discussion. Critical discourse analysis was used to analyze data. The findings of the study show that the main salient feature in maslaha judicial system were prioritization of social harm, collective responsibility, and communal reconciliation for peaceful coexistence. These were underpinned by contextual realities of clan rivalry that could trigger retaliation, local dilemmas of criminal justice administration, power dynamics between disputing parties and concerns for peace and order respectively. In regards to emerging jurisprudence on operationalization of Article 159, findings of this study show that the main values prioritized were disputant direct participation, autonomy and third-party neutrality. These were operationalized through original jurisdiction, non-related mediator and facilitative intervention strategies. They are expected to enhance objectivity in the process. As regards to responsiveness of the judicial safeguards to the salient justice features, the findings show that operationalization of the safeguards was not accommodative to situations and scenarios when salient features of justice linked with sustenance of social harmony, peace, order and community reconciliation were priced. For example, confining mediators to facilitative roles for objectivity purposes impeded their ability to avert retaliation through evaluative, directive and coercive interventions more so when crimes occur in situations of animosity and distrust among disputants’ clans hence limited compliance. The study also shows that safeguards that promote non-interest related mediators thus displacing elders as mediators were less likely to be complied with since community members found elders to be more persuasive in pushing parties out of stalemates thereby preempting retaliations. The study also found that involvement of state justice institutions through original jurisdiction as a safeguard was limited due to institutional constraints such as complex procedures involved and witness intimidation. Thus, this study concluded that, less attention of judicial safeguards towards salient contextual realities identified affects their compliance within maslaha system of justice. Accordingly, this study recommends the need to carefully blend of regulations and with salient community justice practices.