Justice made in Kenya’s traditional courts

By PHARES MUTEMBEI

NAIROBI, KENYA: Community elders, chiefs and witchdoctors work overtime to prevent a deluge of disputes flooding Kenya’s law courts. The most common cases they handle concern land, relationships and thefts. Cases like murder and defilement are left to the Judiciary.

And if it were not for this kind of conflict resolution mechanism that has been there for hundreds of years, the Kenyan court system could be overwhelmed beyond the current situation.

Elders are not the only ones helping ease the case loads. Witchdoctors have played a major role in sorting out fights at the local, and sometimes, national level. So Chief Justice Willy Mutunga’s recent assertion that people should seek alternative methods of solving conflicts than rushing to court all the time was just affirming what Kenyans have done since time immemorial.

Kirimi Mbiuki, a resident of Chuka in Tharaka Nithi County, says he is not ashamed that he has made numerous visits to a local famous witchdoctor near Kiereni market.

“I am a businessman and doing well. However, some of my clients have tried to derail my efforts by failing to make full payments while others have conned me. I don’t take these people to the courts because it takes a long time for a case to be resolved. I went to court on one occasion but though I won the case, my stolen property was not returned. They only jailed the thief but that did not help me in any way,” says Mbiuki, a wholesaler who also owns a large coffee farm.

But since he discovered his ‘personal’ witchdoctor, the conflicts have been minimal.

“He performs rituals to protect my family and business. With that, I avoid quarrelling with my customers and now, nobody owes me money.”

Samuel Maithya, an elder who is also the chief of Endui location in Kitui, says elders resolve many conflicts and in so doing avert costly court cases.

TAKING OATH

“When a person is wronged and comes to accuse another, we choose two elders from both sides and sit down to talk over the issue. At the end of the day, we convene the kikao kya atumia (council of elders) and resolve the issue and reconcile them. To show they have buried the hatchet they shake hands and eat together,” says Maithya.

When elders find it difficult to settle a case, either because the accused has refused to admit wrongdoing of gigantic proportion or when the complainant does not have evidence to show the elders, a certain oath is taken to ascertain the truth. Oaths are so serious that people own up immediately, making everyone’s work easier.

Because of these oaths and conflict solving mechanism among the Akamba, explains Maithya, many cases are solved at the community level and only complicated ones go before courts.

Even elders of the guilty person’s clan come and accept liability and settle the matter amicably because they do not want harm to come their clan’s way.

“The fact that an entire clan agrees to pay on behalf of the accused shows the awe with which oaths are held,” says Maithya. Yet there is a different way of solving smaller matters such as chicken theft. If someone denies stealing because of lack of evidence, elders take the accused person before a witchdoctor who heats two knives and the person is asked to lick it — if guilty you would get seriously burned. Even the complainant will lick it in case he accuses the other falsely.

“In most cases, the guilty party opts not to do it and agrees to pay the wronged party,” says Maithya. Curses that befall whole families for generations also help check crime in the community.

The Njuri Ncheke have a dispute resolution mechanism that is designed like the normal courts.

Phares Ruteere, the secretary general of Njuri Ncheke Council of Elders of the Ameru, says: “We have done dispute resolution very successfully. Every constituency in Meru and Tharaka Nithi counties has a Njuri Ncheke court to hear different types of disputes. In case a party is not satisfied with the decision of the court, they can take the matter to the National Supreme Council of Njuri Ncheke of Ameru, the equivalent of the Supreme Court,” he said. One of the members of this court is Mzalendo Kibunjia, former chairman of the National Cohesion and Integration Commission.

Ruteere says the elders command a lot of respect in the community and so many people opt to go to them instead of running to the police or law courts.

Recently, some people broke into a shop and stole goods and the victim sought the elders’ intervention. “We issued an ultimatum to the thieves to return the property. They did, because they feared to be cursed by elders. We would have met and prayed and cursed them and the consequences would have been worse for them.”

Major John Seii, the chairman of the Kalenjin Council of Elders, says seeking elders’ intervention in conflict resolution has helped greatly.

RESTORE HARMONY

“We usually resolve disputes on dowry and inheritance, among others. We refer to our culture and ways when deciding cases. At the end of the day, it is not a winner takes it all outcome as happens with many court cases. We reconcile them because at the end of the day they must coexist. That is the beauty of elders because we restore harmony at the family and community levels. There is no bitterness left at the end of a case.” Seii says magistrates respect the elders’ input and sometimes ask complainants to seek their opinion in resolving disputes.

Says Ker Willis Opiyo Otondi, the chairman of the Luo Council of Elders: “We get so many cases on inheritance. There are some people who spend their entire lifetime in Nairobi but when they pass on, the widows and children come back ‘home’ to claim the dead man’s inheritance (land). But we refer to our culture and custom and make a judgment.”

Joseph Mwarandu, a Kaya elder who is also secretary general of Malindi Cultural Association says elders help in recovery of debts faster because some people fear they won’t get their money back if they go to court. “If someone owes you money and you come to us, it takes only a day for us to hear, discuss and resolve it. Restitution is in a matter of weeks,” Mwarandu says.

He says going to court can breed hatred among members of the community or family. “If your brother steals your goat and you take him to the police, he will go to court and will be jailed. In the village people might look at you with contempt as the guy who sent his own brother or a member of community to jail. But as Kaya elders we will summon you, hear the case and prevail upon you to reconcile and the goat to be returned. In case it is no longer there then you pay for it.”

Some people take very simple cases to court that cost them money and time, says Araka Matundura, chairman of the Kisii Council of Elders.

“Cases like boundary disputes can be heard and determined by elders. Others are theft and debt cases. It is very expensive to hire lawyers and maintain witnesses and there is a probability you won’t get justice. But elders ensure they listen to both parties and there is reparation, because at the end of the day we are members of the same community and must live in peace.”