In Kenya, ADR has been used in various contexts, including in civil and commercial disputes, land disputes, and employment disputes. However, its application in criminal matters is less common.
One form of ADR that has been used in criminal matters in Kenya is mediation. Mediation is a process in which a neutral third party, the mediator, facilitates communication and negotiation between the parties in order to reach a mutually acceptable resolution. Mediation has been used in Kenya to resolve disputes related to land grabbing and cattle rustling, which are often linked to criminal activity.
Another form of ADR that has been used in criminal matters in Kenya is restorative justice. Restorative justice is a process that focuses on repairing the harm caused by the crime, rather than solely punishing the offender. This approach has been used in Kenya to address issues related to crime and violence in communities, particularly in cases involving youth offenders.
Despite the potential benefits of ADR in criminal matters, such as reducing the burden on the criminal justice system, increasing the satisfaction of victims and offenders, and promoting reconciliation and healing, there are also some limitations to its use. For example, ADR may not be appropriate in cases involving serious or violent crimes, or where there are significant power imbalances between the parties. Additionally, ADR is not a substitute for the formal criminal justice process, and should not be used to circumvent legal safeguards or circumvent the rights of victims and offenders.
One of the limitations of ADR in criminal matters is that it may not be well understood or accepted by all stakeholders, including victims, offenders, and the criminal justice system. It is essential to educate and raise awareness among all stakeholders about the principles and benefits of ADR, in order to gain their support and cooperation.
Another limitation of ADR in criminal matters is that it may not be adequately resourced or supported by the criminal justice system. ADR requires skilled facilitators and trained mediators, as well as adequate funding to support its implementation. Without these resources, ADR may not be able to function effectively.
Furthermore, Kenya has a culture of retribution, where people believe that the offender should be punished accordingly. This culture might limit the acceptance of ADR, as they might consider it as a form of leniency and not justice.
In conclusion, while ADR has the potential to be an effective method of resolving criminal matters in Kenya, there are also limitations and challenges to its use. These include a lack of understanding and acceptance of ADR, limited resources and support from the criminal justice system, and cultural beliefs in retributive justice. In order for ADR to be effective in resolving criminal matters in Kenya, it is essential to address these limitations and challenges through education, awareness-raising, and adequate funding and resources. Additionally, the use of ADR should be appropriately targeted and implemented within the context of the formal criminal justice system, so that it complements rather than undermines the rights of victims and offenders.
Shafiq Taibjee
Lawyer/Arbitrator/Mediator/Certified Islamic Arbitrator and Expert
Honorary Fellow IICRA –UAE