Abstract:
Disputes have existed since time immemorial. In any community, it is inevitable that
mechanisms need to be put in place to aid in the resolution of these disputes. Before
colonialism, there subsisted methods of resolving conflicts in Kenya that dealt with civil
and criminal cases which arose among members of any given community. During
colonialism, the court system was introduced as a more formal and ‘superior’ dispute
resolution mechanism as a part of the Civilising Mission. In post-colonial Kenya, the
court system took root as the mechanism that was suitable to the African circumstances.
However, while the court system has had many positive contributions, it is marred with
difficulties and suffers from case backlog. This has led to the introduction of Alternative
Dispute Resolution (ADR) as a movement that will complement the courts in dispute
resolution. This article examines the dispute resolution mechanisms which existed before
colonialism and the introduction of the court system in Kenya. The authors argue that
the colonial encounter shaped the structures utilized for dispute resolution in the postcolonial
state with manifest subjugation of African methods of dispute resolution in
favour of Western methods. The article analyses the shortcomings of the court system
and argue that in the post-colonial state, its superiority is a fallacy. The authors posit
that the introduction of ADR is not a new concept which has been introduced into the
Kenyan justice system but is indeed reminiscent of mechanisms of dispute resolution
utilized by indigenous institutions. The article concludes that ADR can be viewed as repetition being introduced as reform which perpetuates the legacies of colonialism; a shiny new pin which should be adorned even though greater scrutiny reveals that it is indeed, an heirloom.
