Resolving Community Land Disputes Using Traditional Justice Systems in Kenya

Abstract

Community land is not adequately catered for in policy, law and practice in Kenya. Disputes relating to the ownership and use of community land, for example, have not found an appropriate forum for resolution in the formal justice system. Traditional justice systems were used by communities in the pre-colonial period but were phased out with the introduction of laws based on western models of ownership. This study investigated the suitability of traditional justice systems in resolving community land disputes, the factors impeding the application of traditional justice systems and came up with recommendations on ways in which traditional justice systems can be restored in the resolution of community land disputes. The study took a qualitative approach in examining the literature review on traditional justice systems and community land. It established that customary Iaw and consequently traditional justice systems are perceived as inferior in the juridical system. Through case studies of traditional justice systems in other jurisdictions, the study was able to bring out the prominent features of traditional justice systems that make them most appropriate for resolving community land disputes. The informal and community inclusive nature of traditional justice systems and resolution of disputes in the pursuit of restorative justice provide the best forum for resolution of community land disputes. This is due to the fact that community land ownership is characterized by a web of interests and relationships. Land rights are held by different individuals with diverse interests. The relationships, therefore, need to be preserved for the communities to live harmoniously. In order to ensure that community land disputes find an appropriate forum, the study recommends that the barriers hindering the application of customary law be removed. It also proposes the recognition and encouragement of indigenous traditional justice institutions and allowing them to operate without interference from the formal system. It proposes that human rights and due process concerns can be addressed by developing a traditional justice systems policy. In the end, the study makes the finding that traditional justice systems are the most appropriate for resolving community land disputes.