Customary law jurisprudence from Kenyan courts: implications for traditional justice systems Academic Article uri icon

abstract

  • For a long time, the jurisprudence emanating from Kenyan courts has treated African customary law as an inferior source of law in comparison to formal laws . Consequently, certain customary practices and traditions that can foster social justice and peaceful coexistence amongst communities such as traditio nal justice systems ha d not been formally recognized in law. However, t he 2010 Constitution recognizes cus tomary law and the use of traditional dispute resolution mechanisms in resolving disputes. It also protects the culture and other cultural expressions of the people. Th is recognit ion is important because of the close interlink between traditional justice s ystems and customary law . In this paper, an examination of previous court decisions dealing with customary law is attempted to glean courts appr oach to customary law in the past and whether it can influence the application of traditional justice systems in enhancing access to justice. The paper posits that the way courts have interpreted customary law si nce the advent of colonialism may be a barrier to the application of traditional justice systems . A need therefo re arises for courts to develop a jurisprudence that is supportive of customar y law and traditional justice systems. A change of mindset and perceptions amongst judge s , lawyers and the wider citizenry towards customary law is required if traditional justice systems are to contribute to enhanced acce ss to justice for communities in Kenya.

publication date

  • 2015

keywords

  • Customary Law,Jurisprudence,Traditional Justice Systems

start page

  • 72

end page

  • 88

volume

  • 8