Navigating the Boundaries of Alternative Justice Systems in Matters of Public Interest
By Hon Mercyline Nafula Lubia
Abstract
Alternative Justice Systems play an important role in advancing access to justice within plural legal systems. However, their increasing use in matters involving serious crimes and significant public interests raises important questions regarding accountability, constitutional values, and the limits of private resolution. This article reflects on selected Kenyan decisions and considers how procedural propriety and proportionality may assist courts in navigating these tensions.
Article
Across Africa and beyond, Alternative Justice Systems (AJS) have increasingly gained recognition as an important pathway to justice. They often provide accessible, affordable, and culturally legitimate mechanisms for dispute resolution, while offering opportunities for reconciliation that may not always be readily achievable through formal adjudication. For many communities, justice is concerned not only with the determination of rights and obligations but also with the restoration of relationships and the preservation of social harmony.
The growing recognition of AJS nevertheless raises an important question: Are there limits to the types of disputes that may appropriately be addressed through alternative justice mechanisms?
As jurisdictions continue to embrace legal pluralism and community-based approaches to dispute resolution, there is a tendency to view AJS as a potentially suitable response to an increasingly broad range of disputes. Yet not all disputes engage identical interests. While some conflicts primarily affect the immediate parties, others implicate broader constitutional, societal, and public interests.
In matters concerning family relations, succession, land, and community disputes, restorative and consensus-based approaches may produce outcomes that are timely, durable, and responsive to the realities of the parties involved. In such contexts, participation, dialogue, and community ownership of outcomes may contribute meaningfully to the realization of access to justice while strengthening social cohesion.
Serious crimes and matters of substantial public interest, however, present more complex considerations.
Disputes involving loss of life, sexual violence, human trafficking, corruption, environmental harm, and other serious violations of rights engage interests that extend beyond the immediate parties. Such matters may implicate constitutional values, public accountability, public safety, and the broader administration of justice. The consequences of the conduct in question may therefore extend beyond those directly affected by the dispute.
Where life has been lost or fundamental rights are significantly affected, society itself may be understood as having a legitimate interest in the outcome of the proceedings.
It is within this context that the concept of proportionality becomes particularly relevant. It provides a framework through which decision-makers may assess whether a dispute is suitable for resolution through an alternative justice mechanism. Among the considerations that may arise are:
• The nature of the dispute;
• Whether fundamental rights are implicated;
• The extent of the public interest involved;
• The presence of vulnerable persons;
• Whether the proposed process adequately reflects the gravity of the harm in question.
An equally important consideration is procedural propriety.
While discussions concerning AJS frequently focus on outcomes, legitimacy may depend as much on the integrity of the process as on the result ultimately reached. A procedurally deficient process may raise concerns irrespective of the consensus achieved.
Procedural propriety therefore, requires careful consideration of whether:
• Participation is voluntary;
• All affected parties are afforded an opportunity to be heard;
• Women, children, and vulnerable groups are meaningfully included;
• Proceedings are conducted transparently and appropriately documented; and
• Outcomes remain consistent with constitutional and human rights standards.
The significance of these considerations becomes particularly apparent in serious criminal matters. Community expectations, social dynamics, disparities in power, and competing interests may influence both participation and outcomes. In certain circumstances, questions may arise as to whether private settlement, reconciliation, or communal agreement adequately addresses broader concerns relating to accountability, deterrence, and the public interest.
The issue is therefore not whether AJS should have a place within the administration of justice. Its importance within many communities is well established. The more difficult inquiry concerns the circumstances in which alternative justice processes should influence legal outcomes and the point at which broader constitutional, societal, and public interests require a formal judicial response.
It is this tension, between reconciliation and accountability, community autonomy and constitutional oversight, that continues to shape contemporary discussions regarding the role of Alternative Justice Systems within a plural legal order.
Kenyan jurisprudence offers useful illustrations of the opportunities and challenges that arise when courts engage with AJS in serious criminal matters and disputes implicating broader public interests.
In Republic v Mohamed & Another [2024] KEHC 1227, the court considered a customary settlement involving compensation and reconciliation following an unlawful loss of life. While acknowledging the restorative value of the settlement and the reconciliation achieved between the families, the court nevertheless imposed a custodial sentence. The decision suggests that although reconciliation may properly inform sentencing, there remain circumstances in which the gravity of the offence and the public interest in accountability continue to require a formal penal response.
A different approach emerged in Republic v Mohamed Abdow Mohamed [2013] KEHC 3425, where the court permitted the withdrawal of a murder prosecution following a customary and Islamic settlement reached by the families. The decision reflects judicial recognition of community-based dispute-resolution processes. At the same time, it raises important questions regarding the extent to which restorative justice mechanisms should influence the disposition of offences involving the loss of life. It also illustrates the continuing tension between community reconciliation and society's broader interest in accountability for serious crimes.
Equally instructive is Republic v Yegon [2022] KEHC 10270. In this instance, the court's concern was not directed at the existence of the AJS process itself, but rather at the inclusivity and legitimacy of the process. The court questioned the adequacy of the settlement because the deceased's mother had not meaningfully participated in the proceedings. By directing renewed engagement, the court underscored the importance of participation, inclusivity, and procedural fairness as conditions for legitimacy. The decision illustrates that the validity of an outcome may depend as much upon the integrity of the process as upon the outcome reached.
Perhaps the clearest illustration of the limits of AJS is found in Mwangaza v County Assembly of Meru; Njuri Ncheke Supreme Council of Ameru Elders (Proposed Amicus Curiae) (Petition E013 of 2024) [2024] KEHC 14842. In a dispute concerning the impeachment of a governor, a proposal was made to incorporate a council of elders into an ongoing constitutional process. The case illustrates that the question is not always whether an AJS process is fair or culturally legitimate. Sometimes the more fundamental inquiry concerns the suitability of the forum itself. Matters involving constitutional governance, democratic accountability, public office, and statutory timelines may engage interests that extend well beyond the immediate parties. In such circumstances, formal constitutional processes may perform functions that alternative forums cannot readily assume.
Collectively, these decisions demonstrate the complexity of judicial engagement with AJS within a constitutional order. In Mohamed & Another, reconciliation informed sentencing but did not displace accountability. In Mohamed Abdow Mohamed, reconciliation played a significantly larger role in the outcome. In Yegon, the focus was procedural fairness and inclusion, while in Mwangaza the issue concerned the suitability of the forum itself. The cases illustrate that neither unconditional acceptance nor categorical rejection of AJS offers a satisfactory response to the challenges presented by legal pluralism. Instead, they point toward the need for principled criteria capable of guiding judicial engagement with alternative justice processes.
In this regard, the concepts of procedural propriety and proportionality may provide a useful analytical framework.
Procedural propriety directs attention to the integrity of the process. It asks whether participation was voluntary, whether affected parties were heard, whether vulnerable groups were included, and whether the process complied with constitutional and human rights standards.
Proportionality addresses a different inquiry. It asks whether a particular dispute is suitable for determination within an alternative forum, having regard to its nature, the gravity of the harm involved, the rights implicated, and the extent of the public interest engaged.
To sum up, procedural propriety and proportionality may provide useful tools for navigating the complex relationship between AJS and formal justice systems. They preserve space for culturally legitimate and restorative forms of dispute resolution while ensuring that constitutional values, public accountability, and the rights of vulnerable persons remain protected. Ultimately, the challenge is not whether AJS should be embraced or rejected, but determining the circumstances in which it can most appropriately contribute to the realization of justice within a plural legal order.
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