The tragedy that has befallen Kenya’s legal systems since the colonial epoch, whereby none resonates with the values of the majority of the people, could have been avoided – at least from independence onwards. There were several opportunities to emancipate the legal systems from colonial bondage and to redeploy them for the service of the Africans; but the opportunities were squandered.
The irony is that the most promising salvation for Kenya’s legal systems lay in the colonial East African Order in Council of 1897, which applied foreign law to the Africans - the requirement that the foreign laws would apply only as far as the circumstances of the colony and its inhabitants permitted. Had this proviso been heeded since 1897 or even after independence in 1963, a legal system more realistic to the Africans triple heritage (now plus globalisation) - the peoples’ law - would have been achieved.
And it is the English common law, which perhaps stood the greatest chance to adapt the imported laws to the circumstances of the colony and its inhabitants and thereby arrive at the peoples’ law.
Although distant judges with foreign training will always have fundamental limitations when mediating conflicts between locals, the benefits of using the malleability of the English common law to reconcile the many values at play among the Africans should have been pursued more vigorously, nonetheless. As the experience since the enactment of the 2010 Constitution shows, the marriage between the English common law and judges willing to try might be all that is needed to arrive at the peoples’ law.
Armed with a Constitution that gives slight credence to traditional disputes resolution mechanisms and customary law (which in this case may include the English common law or African customary laws), some post-2010 judges have dared to dream. And the results are there for all to see.
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