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Why the Kenyan Judiciary allows Maslaha Somali system of conflict and dispute resolution

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By: Hassan Mahat

I’m a big fan of Maslaha system. I support Maslaha system of conflict resolution as long as it does not breed inconsistency with Justice and Morality.

The Maslaha system settles disputes through compensation.

Maslaha has been effective in managing conflicts where they have been used. It’s been useful for all those years even before our colonial masters brought the issue of courts to us. It brought peaceful coexistence among members of the community. How do you start slamming it now?

Their relevance in this conflict resolution mechanism has attained the level of recognition by the supreme law of the land. Its recognized in the Constitution under Article 159.

The ‘constitutionalisation’ of these mechanisms means that there is a paradigm shift in the policy on resolution of conflicts towards encouraging their use to enhance access to justice and the expeditious resolution of disputes without undue regard to procedural technicalities.

The use of Traditional Dispute Resolution Mechanism in accessing justice and conflict management in Africa is still relevant especially due to the fact that they are closer to the people, flexible, expeditious, foster relationships, voluntary based and cost-effective. For this reason, most communities in Africa still hold onto customary laws under which the application of traditional dispute resolution mechanisms is common.

However, The Kenya Arbitration Act makes it clear that criminal cases cannot be resolved using Alternative Dispute Resolution mechanism. Courts are ones allowed to deal with criminal cases.

—The author of the article is a student of Law

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