Equality in Process: Community Land Dispute Resolution Mechanisms in Kenyan Law

Abstract

Kenya ratified a Constitution in 2010 which greatly changed land adjudication processes and opened new doorways to solve intransigent issues. This Note offers an explanation of the adjudication processes for community land. It also endeavors to illuminate two interdependent issues. The first addresses the formalization of discrimination in property adjudication processes in Kenya. The second shifts the scholarly lens through which Western theorists analyze these institutional arrangements to one that recognizes Kenya’s state of institutional fluidity. Solutions are derived from the framework in which the problem is viewed, and mainstream institutional theories fall short in creating a comprehensive solution for the discriminatory pattern in Kenya’s varied community land dispute resolution mechanisms. Kenya created a new framework for these mechanisms that both legitimized and formalized traditional dispute resolution mechanisms (“TDRMs”). While TDRMs give greater voice to communities, these mechanisms in western Kenya often involve solely male elders. Therefore, as TDRMs are given power, there is a risk that the law will formally solidify the power of male elders to the exclusion of other groups, such as women. This can lead to further structural growth in informal (or customary) law that embeds disparate treatment into the very social, political, and legal fabric of a country that has sought to redefine itself in equality. Theorists who describe the interaction of these varied institutions often view the formal and informal as separate, fixed bodies of law or as path dependent institutions that are difficult to change. This Note will critically examine these theories in the context of Kenyan community dispute resolution mechanisms and argue that the intersection of formal and informal institutions has created a moment of institutional fluidity. This theory recognizes that solutions to discrimination lie both in legislative change and in the hands of the communities.