Alternative dispute resolution taking root a decade into new Constitution

Public outrage met the State’s agreement to withdraw a criminal case in which Embakasi MP Babu Owino had been accused of attempted murder of Felix Orinda, also known as DJ Evolve,

The MP was let off the hook after a deal with the prosecution offered to take care of the basic needs of the complainant in a controversial decision that has left the public complaining.

Milimani principal magistrate Bernard Ochoi, while letting the MP free, said he had taken the decision as one of the way of the court encouraging reconciliation as envisaged in the Constitution.

The case has triggered a national fury with critics arguing that it only helps entrench the all-pervasive impunity in Kenya where the rich have the audacity to trample on the rights of the downtrodden smug in the knowledge that their big purses will see them out of their problems.

As the public anger swirls over the matter, records indicate the decision to terminate the MP’s case in a negotiated settlement is not unique in Kenya, has been applied before in other equally serious cases.

An innovation of 2010 Constitution, use of Alternative Disputes Resolutions (ADR) and plea bargain have been permitted even in criminal matters where the focus has been placed more on pursuit for restorative as opposed to retributive justice.

On July 19, 2012, Justice Mathew Emukule (now retired) freed a man who killed a 55-year-old pastoralist in Samburu County, after a dispute over water on the strength of a negotiated agreement between the prosecution and defence.

To enable the deal, the State and defence agreed to have the accused to plead to the lesser charge of manslaughter, and during mitigation pending sentencing the prosecution asked the judge to “…tamper justice with mercy” and treat the new convict as a first offender and consider the special circumstances of the crime in the convict’s favour.

The defence on its part asked the judge to consider that the convict was also injured by the deceased in the fight leading to the death, in an unplanned fight over scarce water in an impoverished region.

In rendering the sentence the judge considered the convict’s advanced age and perennial water shortage in Samburu as relevant mitigating factors.

The judge imposed a sentence based on customary law by ordering the convict to compensate the deceased’s family with a female camel, and handed him a five year suspended jail term during which time the accused swas required to report once every two weeks to his area chief.

In 2013, Justice Roselyn Lagat discharged a suspect who had been charged with murder after two families agreed on some form of traditional settlement and compensation based on Islamic law and traditional customs.

The judge entered the discharge against Mohamed Abdow Mohamed upon disclosure by the prosecuting team that it was encountering difficulties to find and enable attendance of prosecution witnesses in the trial.

The judge discharged Mr Abdow under article 157 of the Constitution that allows the Director of Public Prosecutions (DPP) to discontinue a criminal trial at any stage with the authority of the court.

The DPP cited an affidavit sworn by the deceased’s father Abdow Ali Ibrahim, demonstrating disinterest in continuation of the trial in the wake of the agreed traditional justice mechanism and compensation.

But in another case, Justice Jessie Lesiit dismissed an application to discharge a man accused of murder despite a similarly spirited argument for discharge.

Abdulahi Noor Mohamed had been accused of murder and his advocate made an application for a plea bargain whose effect would have been to discharge him on the basis that the families of the deceased and accused had reconciled, signed an agreement and agreed to heal the crime and animosity between them through alternative dispute resolution.

Unlike in the Abdow case, this application for discharge in the Noor Mohamed trial was made when the case was pending judgment.

His advocate also argued that the accused and victim were friends beore the killing and that the accused had learnt his lesson after three years in prison and was remorseful.

The prosecution, however, opposed the application for several reasons, including that the Constitution that protects the right to life supersedes every other consideration including the feelings of the two families.

The State further argued that the application violated section 3(2) of the Judicature Act which stipulates that customary law which the defence was trying to rely on to end the trial should only apply if it was not repugnant to a written law.

In her ruling, Justice Jesii Lesiit observed that although the Judicature Act and Article 159 of the Constitution envisaged the application of alternative dispute resolution to achieve the ends of justice, such application must be limited in criminal cases.

While she concurred that the 2010 Constitution does not preclude application of ADR in criminal matters, the judge argued that such application should be very limited owing to the gravity of crimes like murder.

She argued that there is no policy guidelines on how to apply ADR to criminal proceedings and challenged the state to generate jurisprudence to set the required parameters of the spirit of Article 159 (3).

The judge noted that the application for discharge was opposed by the state, the custodian of public interest, thus defeating the spirit of ADR.

The judge ruled that the Criminal Procedure Code at Section 176 does not allow mediation or reconciliation to solve felonies like murder while the Judicature Act (Section 3(2)) only permits ADR in civil matters.

Legal scholar Francis Kariuki, a leading proponent of traditional justice systems and ADR, argues that the Abdow case was a positive precedent that, properly applied Article 159 of the Constitution and achieved its constitutional objective.

He argues the case recognised the role of restorative justice on the same level with retributive justice advanced by the formal criminal justice system that frowns upon application of culture and tradition to solve criminal disputes including murder.

He, further argues that whereas traditional or alternative justice systems are beset with challenges such challenges are surmountable and that courts should, where, possible promote restorative justice instead of being dogmatic about punishing one person at the expense of victims.

In his paper: Applicability of Traditional Dispute Resolution Mechanisms in Criminal Cases in Kenya: Case Study of Republic v Mohamed Abdow Mohamed Mr Kariuki says:

"In retributive justice systems, the offender is punished by meting out a punishment equal to the crime he has committed. The decision in the Abdow case has paradigmatically shifted this thinking about crime. The decision has shown that to realise restorative justice and foster peace among communities, criminal justice system ought to focus also on the victims, concerned families and the community. Formal justice system has for long focused on the offender and neglected the victims of the offence.”