Restorative Justice And Victims Of Crime In Kenya

A Practitioner’s Perspective

Meaning of Restorative Justice

Restorative justice is a concept based upon values that emphasize the importance of providing opportunities for more active involvement in the process of:

· Offering support and assistance to crime victims;

· Holding offenders directly accountable to the people and communities they have violated;

· Restoring the emotional and material losses of the victims;

· Providing a range of opportunities for dialogue and problem solving among interested crime victims;

· Offering offenders the opportunities for competency development and reintegration into productive community lives and

· Strengthening public safety through community building.

Taking into account the foregoing facets of restorative justice, this paper aims to examine the extent to which restorative justice is applicable in Kenya. However, we must first explain the concept of justice.

The Concept of Justice

Justice is an abstract concept. It is used to measure what is naturally right and what is not. It is an elusive concept in most democracies. It varies in meaning according to time and place, and according to the persons concerned. For example, to the Greeks and Romans, slavery was deemed to be just at a point in time. Justice of the French Bourgeoisie of 1879 demanded the abolition of feudalism on the ground that it was unjust. The concept of justice is thus fluid, it changes over time. In the African customary sense, in the case of Marko Kajubi  -v- Kulanima S. Kabali 11 E.A.C.A. 34  the court noted that the native custom (or justice) may be altered or abrogated, expressly or impliedly. The sense of justice may thus be modified by a community without losing its essential character and the court cannot itself transform and original concept of justice into modified one.

As a concept, justice has three parts, one political, the others natural and legal. Of natural justice, it is everywhere with the same force and does not exist by people thinking this or that; it is legal when it is laid down in some written form. It is political when the content of justice is defined through a political process and perspective of a people.

In the Kenyan system, the concept of justice is tied to written law. It is justice according to law. When one talks of justice, one has to examine the concept in terms of all laws which the Kenyan courts are mandated to apply and that is English and customary law.

Concept of justice in the African customary law

 To appreciate the notion of restorative justice, one has to understand the concept of justice in African customary law. In traditional African customary law revolved around the socio-economic set-up of the African way of life. In the African life system, the society’s interests were the common denominators of all acts performed either by an individual or by a section of the community. Individualism and self-seeking were ruled out. The spirit of collectivism was so much ingrained in the minds of the people that most social functions were done collectively.

The African concept of justice comes from the very structure of social life and organization. Justice represents the beliefs and practices of the community. Justice is bound up with the system of social relationship existing in the society whose institutions rest on the collective basis. It is this background that embodies the concept of restorative justice and the reference to the victim, the family and the community with respect to deviations from community norms. In this system, individual punishment was foreign. The well being of the community and its members was paramount. The clan or community of both the victim and the offender were seen as one and interested in the amicable settlement of the dispute at hand.

Juridical basis for Restorative Justice in Kenya

The first legal issue to examine from a practitioner's perspective is what is the legal basis for adopting or implementing restorative justice in Kenya?

Section 3 (1) of the Judicature Act, (Chapter 8 of the Laws of Kenya) outlines the sources of the laws of Kenya. It states that the jurisdiction of the High Court, Court of Appeal and of all subordinate courts shall be exercised in conformity with:

(a) The Constitution;

(b) All other written laws ...;

(c) the substance of common law and the doctrines of equity and the statutes of general application in force in England on 12^th August 1897 but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permits,

Section 3 (2) states that the High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it ....

A reading of the foregoing sections reveals that customary law may guide the courts in civil cases. In criminal cases, the law is different. Section 77 of the Constitution states that no person shall be convicted of an offence unless the offence with which he is charged is written down and the penalty thereof prescribed. The interpretation herein is that customary criminal law has been abolished in Kenya. The critical question is, does this include abolition of restorative justice as known in traditional justice system in Kenya?

An examination of the theory of sentencing as applied in Kenya will demonstrate the extent to which restorative justice may be applicable in Kenya.

The Kenyan law lay down the various sentences that can he meted out to an offender. These range from death sentence to fines, imprisonment, corporal punishment or community service. The sentences reflect the aim of dealing directly with the offender and not the victim of the crime.

Restorative justice has one of its aims the offer of support to the crime victim. The sentencing policy in Kenya and types of sentences offered do not look at the victim as a factor to be considered. Likewise, the sentencing policy does not offer an opportunity for dialogue and problem solving amongst offenders and their families. The closest that the Kenya law comes to offering dialogue opportunity is through Sections 175 and 176.

Section 175 stipulates that whenever a court imposes a fine, ... the court may when passing judgement, order the whole or any part of the fine recovered to be applied in the payment to any person of compensation for loss or injury caused by the offence when substantial compensation is in the opinion of the court recoverable by civil suit.

Under Section 176, in all cases, the court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to a felony, and not aggravated in degree on terms of payment of compensation or other terms approved by the court and may thereupon order the proceedings to be terminated.

As regards the possibility of offering the offenders the opportunity for competency development and reintegration, the Prisons Act is one of the avenues that seek to attain this goal. Section 66 and 67 of the Prisons Act, (Chapter 90 of the Laws of Kenya) permits the establishment of Youth Corrective Training Centres. The aim herein is rehabilitation and training of youths. Likewise, the Borstal Institutions Act, (Chapter 92 of the Laws of Kenya) seeks to retrain and reintegrate young offenders to society. Section 4 of the Act requires every borstal institution to give inmates educational, industrial or agricultural training.

With respect to adult inmates, the Kenyan law does not seem to have any formalised system for competency development and reintegration into productive community life. There is no requirement that an offender be trained.

The foregoing commentaries  leads one to conclude that in Kenya's written law, the concept of restorative justice does not have a firm foundation.

Restorative Justice in customary law

As already stated above, the courts in Kenya may be guided by customary law in so far as one of the parties is subject to it. It is opportune at this stage to examine to what extent the courts have tried to embrace customary law in criminal matters.

In the case of Philip Al11SlAi s/o Musele - v - R (1956) 23 E.A. C.A 622, the accused believed that by native custom they had the right to take a heifer from the deceased. In a raid on the deceased's boma for that purpose, one of the accused killed him. At the trial for murder, it was held that the belief of the accused would preclude the application of intent to commit a felony and thus a conviction for murder could not stand. This case was decided not on the basis of restorative justice but on the english criminal doctrine that requires mens rea before a criminal conviction can take place. The customary belief only sufficed to negative mens rea.

In the case of Ole 01 Oso - v - Nalulus Ole Kidoki 5 E.A.L.R 210 its was stated that a moran wishing to leave his native tribe cannot take with him communal cattle. This case has some elements of restorative justice from the perspective of the local community.

Restorative justice in African customary system

Customary law and the African judicial system had two main aims:

(a) Maintenance of social equilibrium and

(b) Promotion of reconciliation amongst community members.

The social equilibrium theory contends that an anti-social conduct has the effect of disrupting the equilibrium of social and economic forces. The disruption of the equilibrium is based on the african belief in ancestors and the supernatural. To demonstrate what is meant by disruption of equilibrium, an example would suffice. When a man was murdered, the gods and the ancestral spirits of the murdered man's clan were angered. The living relatives of the deceased were also angered. If the situation remained like this, the gods and ancestors were likely to express their anger by inflicting calamities on the society in the form of famines, epidemics etc. Accordingly, the situation had to be rectified with immediate effect. The equilibrium therefore required payment of compensation to the angered family or clan. A goat was also slaughtered so that the two families could eat together and recapture the mutuality that had been lost. In certain cases, the murderer had to undergo a cleansing ceremony.

In contrast, the conciliation theory aims at a permanent and amicable settlement. Instead of using force to arrive at a verdict, the adjudicators adopt an arbitrative and freewill settlement applying persuasion and reason as the main tools. The goal is to settle rather than decide, appease and reconsider rather than enforce. The overriding aim being to effect a mutually acceptable settlement between the parties. In line with the concepts of social equilibrium and reconciliation, customary penal sanction sought to promote these goals.

Customary penal sanctions

In customary law, the victim, the clan and the perpetrator of the offence were all considered in the penal sanction. The main penal mechanisms were restitution and compensation.

One of the most effective sanctions applied under customary law was ostracism. The stigma attached to ostracism was far much greater and very much worse than that attached to the statutory forms of punishment. The severity of ostracism was due to its attendant consequences. The ostracised person was in everything apart from his physical presence in society cast away from society. He could not participate in the communal life of the society. The incapacities heaped on the person was tantamount to killing him socially.

Another form of sanction was curse. The curse was dreaded because it extended to posterity.

To illustrate the concept that the victim and the family is considered in African customary law criminal justice, we examine how adultery is dealt with among the Kamba and Kikuyu communities in Kenya. Among the Kikuyu, the penalty for adultery was the payment of five rams and one ewe, among the Kamba, it was one bull and one goat.

There is a major variation between the statutory penal system and the customary justice system. In the statutory system, offenders under the Penal Code are subjected to a heavy penalty in the form of corporal punishment, imprisonment, fines etc whereas though the offender under customary law was subjected to rigorous punishment, it was not in these same forms. The differences in the manner of meeting out justice in the two judicial systems. Is rooted in the socio-cultural and economic environment in each of the two societies. The mobility of the European society was such that once two parties had left the courtroom it was possible they will never meet again, thus rendering reconciliation not to be of the essence. Mobility among the Africans was negligible so that the litigants were likely to live together for the rest of their lives and as such necessarily had to be reconciled

Conclusion

The formal penal system in Kenya does not affirmatively promote restorative justice. The African customary law in content and form promotes restorative justice. However, a main hindrance to the application of the customary restorative justice system in Kenya is its unwritten and uncertain nature.

Customary law is undocumented and for this reason uncertain. The Kenyan Constitution stipulates that all offenses and penalties must be in written form. In so long as the african restorative justice system remains unwritten, it will be difficult to apply the same in Kenya.

HONOURABLE MR. JUSTICE N.R.O. OMBIJA.

HIGH COURT OF KENYA