THE PERTINENCE OF RESTORATIVE JUSTICE IN KENYA'S

PENAL LAWS

Submitted in partial fulfilment of the requirements of the Bachelor of Laws

Degree, Strathmore University Law School

By

MARTIN GIGONI MOTURI

84082

Prepared under the supervision of

MR. MOHAMED RUWANGE

JANUARY 2018

Word count: 8695

 TABLE OF CONTENTS

ACKNOWLEDGMENTS ................................................................ ............................................. ... IV

DECLARATION .............................................................................................................................V

ABSTRACT .... .... ... ................... .... ....... ...... .......... ............ ...... .. .. ..... ........... .. ...................... ........... VI

LIST OF ABBREVIATIONS ...... ......... .... ............. ..... ..... ... ............ ........... .... .. ........... ....... ... ............. VII

LIST OF CASES ..... ........... .. ........ ....... ......... o ................. ... ............ . ....... . ..... . ........... .... .......... ..... .. VIII

LIST OF LEGAL INSTRUMENTS ................... ...... ., ....... ... .. ......... ... ............ ... ... .. ............................. IX

CHAPTER ONE: INTRODUCTION ...................................... .... .... .o. ... .......... . .......... .... ooo .................. l

1.1 Background of the Problem .................................................................................................... 1

1.2 Statement of the Problem ...................................................................................................... 3

1.3 Purpose of the Study .............................................................................................................. 3

1.4 Statement of Objectives ................... 0 .. 0 .................................................................................. 3

1.5 Research Questions ................. ................ : ............................ ............. o o ................... ,., 0 , , , 00 , . , 00 , . 4

1.6 Research Hypotheses 00 . . . o••• o.... o.. o.... o•. o.... o....... o.... o.. o....... oo o........ o
00000000 o•o ......... . .. o··o· ... o•••• ooooooo. 4

1.7 Limitations of the Study ........................ .................................................................................. 4

1.8 Literature Review .o ............... o•o••o ............ o··········o···········ooo••o •··· ······ .. oooooo ......................... .. .... .. 4

CHAPTER TWO: THEORETICAL FRAMEWORK AND RESEARCH METHODOLOGY ..... .. ......... .. ........ 7

2.1 Introduction ......................... o•·•oo ....... o............... oo •o ........ o.......... o.o ............... o•• o.o ...................... 7

2.2 Theories of Criminology .................. 0 ....................................................................................... 7

2.2.1 Classical School of Thought ............................ ........ ................................... .................. 7 0 ... .. ...... ......... .

2.2.2 Positivist School of Thought ..... .. ........................................................................................................ 7

2.3 Theories of Penology ....... o..... o... o.. o... o....... o...................... o......... o..... o.. .......................... o... o.... o 8
2.3.1 Retributive Theory ........... o.o .o·•· ···· .... ................. ... ..... .......... ........ .......... .... ..... ... ...... .......... ..... o.... ........ 8
2.302 Restorative Theory ... .............. .. .......... ....... ............. o... ... o·•·o·o ....... ..o...... .... ... ....... .... ..... .. ... ....... o.. ...•.. ..• 9

2o4 Research Methodology .............. o.o ....... 0 .... o..... ... o...... o...... o••o......... o....................................... 10

CHAPTER THREE: RESTORATIVE JUSTICE IN THE KENYAN CRIMINALJUSTICE SYSTEM .............. 11

ii
3.1 Introductio n ........... .. .... ..... ........... ..... ... ......... .... .......... ................. .. .. ...... .... ... .... ......... ... ....... 11

3.2 Traditional Dispute Resoluti o n Mechanisms .......................................................................... 11

3.3 Juvenile Offenders .. .... ....... ............. ........................................................................ .......... .... 14

3.4- Legislation promoting Rest ora tive Ju stice .............................. ............................................... 14

3.5 Conclusion ........................................................................................................................... 16

CHAPTER FOUR : RESTORATIVE CRIMINALJUSTICE IN PRACTICE .. .. ... ,............................... ........ 17

4.1 Introduction ...................... ....... ............................................................................................ 17

4.2 New Zealand ........................................................................................................................ 17

4.3 Austr alia .................. ..........................................................................;.................................. 19

4.4 South Africa ...... .. .............................. ... .... .. .... ..... ....... ... .......................................... ............. 22

4. 5 Rwanda .......................................... ...................................................................................... 23

4.6 Conclusion ........................................................................................................................... 27

CHAPTER FIVE : CONCLUSION AND RECOMMENDATIONS ......................................................... 28

5.1 Conclusion ........................................... ...... ... .. ................. ..... .............. : ................................ 28

5.2 Recommendations ... ... ... .... ...... ... ..... ... ....... ................... ... ....... ............................ .................. 28

BIBLIOGRAPHY .... .. .......................... ............. ..... , ...... .. ..._.. ........ :....... .. .... ................ .. .. ..... ... .. ...... 30

Books ......... ......... ........................ ............... ............................................................................................................ 30

Ch apter in Book ....... .. .. ........ .. ....... ... ...... .. ................ .. ...... .. .................... ..... ... ..... ............................. 31

Journal Articles ..... .......... .. .... ...... ...... ... ... .................................................. ....................................... 31

Inte rne t Resources .. ....... ... .. ...... .. ...... ..... .... ............ .......... .... .... ...... ..... ........... ....... .... ........ .... ........... 32

Disse rtations .. ........ ........ ... ..... ....... .. .. ......... ..... .......... ......... .. ...... ... ........ .. ... .. ................ ......... ... .... .... 33

Conference Papers ....... ... .... .. ......... .. ... .. ... .... ..... ...................................... .. ... .... ..... ....... ......... ...... ..... 33

Rep orts ..... .. ...... ..... ... ................ .......... ... ..... .... .. .. .......... ... ... ...... ... .... ....... .............................. ..... .. ... . 33

iii
 ACKNOWLEDGMENTS

I wish to express my sincere gratitude to my supervisor, Mr. Mohamed Ruwange, for his
insight, encouragement and guidance. I would also like to thank my parents and colleagues for
their input and support during the duration of my research and writing.

iv
 DECLARATION

·I, Mar tin Gigoni Moturi, do hereby declare that this research is my original work and that to
the best of my knowledge and belief, it has not been previously, in its entirety or in part, been
submitted to any other university for a degree or diploma. Other works cited or referred to are
accordingly acknowledged.

~- ' . 'h '

Signed: ... ...~~: ..... ~-:.-:-.. ....... .... ..... ... .............. ..
)C;} (;" , · j i (
Date: ..... .... .. ........·...':·:-:?...... -~ .': ................ ..... ... ..... ..... ....

This dissertation has been submitted for examination with my approval as University
Supervisor.

Mr. Mohamed Ruwange

v
 ABSTRACT

Restorative justice processes are key in the achievement of criminal justice. Their aim is to
involve victims and community members more intimately in repairing the harm done by
criminal offenders while maintaining social ties. These processes may be viewed as an apt
alternative to retributive justice systems which involve the punishment and seclusion of
offenders by imprisonment. Various countries in the world have established statutory
frameworks recognizing restorative justice practices. These are used either as diversionary
measures by police and courts or as sentencing options by judges and magistrates. Most States
utilize restorative justice practices when dealing with juvenile offenders but some cases
involving adult offenders are also quite common.

Kenyan legislation provides oppottunities for the application of restorative justice mechanisms .
Though some statutes explicitly provide that they be used in specific civil disputes, others leave
the door open for its application in criminal disputes, including the Constitution of Kenya
(20 10) undei· Article 159(2).

This paper begins with an analysis of Kenya's role in promoting restorative justice subsequent
to the colonial administration. The paper argues that much remains to be done to embrace
restorative justice in order to maintain social harmony in the realisation of criminal justice
among the community-driven Kenyan people. It then delves into the use of restorative justice
programmes by four States and its success in the achievement of criminal justice in each. A
case study of its use by Rwanda following the 1994 genocide is also presented. Finally,
recommendations on an optimal framework of restorative justice in Kenya's criminal justice
system are provided.

vi
Young Offenders Act (No. 57 of 1993)

Criminal Law Sentencing Act (No. 50 of 1988)

Crimes (Restorative Justice) Act (No. 65 of2004)

South Africa

Child Justice Act (No . 49 of2008)

Promotion of National Unity and Reconciliation Act (No. 34 of 1995)

Criminal Procedure (Second Amendment) Act (No. 62 of2001)

Probation Services Act (No. 35 of2002)

Child Justice (B-49 of 2002)

Rwanda

Organic Law on the Organization of Prosecutions for Offences constituting the Crime of
Genocide or Crimes against Humanity committed since 1 October 1990 (No. 8 of 1996)

International

ECOSOC Resolution 2002/12 Basic principles on the use of restorative justice programmes in
criminal matters

UNSC S/RES/955 Establishing the International Tribunal for Rwanda

UNSC S/RES/977 Designation of Arusha as the seat of the International Tribunal for Rwanda
(ICTR)

United Nations Convention on the Rights ofthe Child, 20 November 1989, 1577 UNTS 3

African Charter on the Rights and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49

X
 . LIST OF LEGAL INSTRUMENTS

Kenya

Constitution of Kenya (20 I 0)

Penal Code (Cap. 63 of the Laws of Kenya)

Sexual Offences Act (No. 3 of 2006)

Companies Act (No. 17 of 20 15)

Land Act (No . 6 of2012)

Victim Protection Act (No. 17 of 2014)

Magistrates' Court's ACt (No. 26 of2015)

Marriage Act (No.4 of2014)

Children Act (Cap. 141 of the Laws ofKenya)

Narcotic Drugs and Psychotropic Substances (Control) Act (No.4 of 1994)

Community Service Orders Act (No. 10 of 1998)

Counter-Trafficking in Persons Act (No.8 of2010)

New Zealand

Children, Young Persons and their Families Act (No. 24 of 1989)

Sentencing Act (No. 9 of 2002)

Victim's Rights Act (No. 39 of2002)

Australia

Young Offenders Act (No. 104 of 1994)

Youth Justice Act (No. 81 of 1997)

Dispute Resolution Centre Act (No. 35 of 1990)

Young Offenders Act (No. 54 of 1997)

Criminal Procedure Legislation (No. 474 of2010)

Children, Youth and Families Act (No. 96 of2005)

Youth Justice Act (No. 44 of 1992)

ix
 LIST OF CASES

1. Kamanza Chiwaya v Tsuma (Unreported High Court Civil Appeal No. 6 of 1970)
2. Lubaru M'imanyara v Daniel Murungi [2013] eKLR
3. Mary Kinya Rukwaru v Office of the Director of Public Prosecutions & another
[2016] eKLR
4. Republic v Mohamed Abdow Mohamed (2013] eKLR

viii
 LIST OF ABBREVIATIONS

ACT: Australian Capital Territory

DPP: Director of Public Prosecutions

ECOSOC: United Nations Economic and Social Council

FGC: Family Group Conferencing

ICTR: International Criminal Tribunal for Rwanda

TDRMS: Traditional dispute resolution mechanisms

TRC: Truth and Reconciliation Commission

UNCRC: United Nations Convention on the Rights of the Child

vii
 CHAPTER ONE: INTRODUCTION

1.1 Background of the Problem

With the arrival of colonialists in the late 19 1h century, Kenya's criminal justice system
underwent significant change. The British colonial administration introduced the prison system
following the enactment of the East Africa Prisons Regulations in April, 1902. 1 Incarceration
has since been an effective tool in the achievement of retributive justice for offenders. This
mode of justice enforces punishment as the primary means of dealing with an offence or
transgression against the law.2 It views punishment through means such as imprisonment as
pivotal in "removing the undeserved benefit from the offender by imposing a penalty that in
some sense balances the harm inflicted by the offence". 3

Custodial sentences have been accorded undue preference by judges and magistrates m
sentencing as well as a large number of statutory provisions. 4 Consequently, a number of
challenges face Kenya's justice system, including overcrowding in prisons. Typical Kenyan
prisons were built to accommodate 16,000 prisoners, but as at June 2013, the Kenya prison
population stood at 52,000. 5 Data from the Prisons Department also shows that the total inmate
population ofKamiti Maximum Security Prison stands at 54,154 (as at April2015), which is
more than double the prison's capacity. 6 Cases of recidivism are also quite common. 7 Human
rights reports have also indicated that water shortages, poor medical care and insufficient food
are common within Kenyan prisons. 8 More importantly, however, is the failure of such

1
Kiplangat B, Kiilu R, Shisia A, ' Assessing the Impact of Change Management Strategies on the Administration
of Kenya Prisons Service' 3 International Journal ofEconomics, Commerce and Management, 8 (20 15), 618 .
2
Wenzel M, Okimoto TG, Feather NT, Platow MJ, 'Retributive and Restorative Justice' 32 Law & Human
Behaviour, 2 (2008), 375.
3
Cragg W, T11e Practice of Punishment: Towards a The01y ofRestorative Justice , Taylor & Francis, 2002, 15.
4
See the Penal Code (Cap. 63 of the Laws of Kenya), Sexual Offences Act (No.3 of2006), Companies Act (No.
17 of2015) and the Land Act (No. 6 of2012).
5
Langat K, Kabaj i E, Poi poi M, 'Efficacy of Rehabilitation Programmes on Psychosocial Adjustment of Elderly
Male Offenders in Kakamega Main Prison, Kenya' 3 The International Journal of Humanities & Social Studies,
II (2015), 71.
6
'Joe Kiarie: Petty Offenders Jam Prisons as Congestion Hits Crisis Level' Standard Digital, 2 May 2015
https://www. standardmedia. co. ke/arti cle/2 000 16077 3/pettv -offenders-jam -prisons-as-congestion-hits-crisis-
level on 20 1anuary 2017 .
7
'Matt Githigira: Repeat Offenders Signal Jail System Needs Reform' The Star, 26 October 2016
http://www.the-star.co.ke/ne\-vsf/O 16/10/26/repeat-offenders-signal-jail-svstem-needs-reform c 1444031 on 20
January 2017.
8
United States Department of State: Bureau of Democracy, Human Rights and Labour, Count/)' Reports on
Human Rights Practices for 2014: Kenya, October 2014, 8.

1
retributive justice systems in achieving the rehabilitation of offenders and their reintegration
into society once released from custody.

To quell these challenges, an altemative approach to criminal justice is required. This study
proposes the use of restorative justice practices as a better means of achieving criminal justice
in Kenya. Restorative justice is an approach whereby the victim to a crime, the offender as well
as other persons within their community who are affected by a crime, "participate actively
together in the resolution of matters arising from the crime, generally with the help of a
facilitator. " 9 It aims at achieving accountability, making amends, and in some instances
facilitating meetings between victims and offenders. 10 Additionally, restorative justice works
on the underlying principles that crime hurts individual victims as well as communities and
that the community is responsiqle for the well-being of all its members, including both victim
and offender. 11

Restorative processes bring those harmed by crime or conflict, and those responsible for the
harm, into communication, enabling everyone affected by a particular incident to play a part in
repairing the hmm and finding a positive way f01ward. 12 Outcomes of the process include
verbal apologies, pmiicipating in community service as well as the restitution and reparation
of damaged property. 13

Non-custodial sentences provided in Kenyan statute and assessed within this study avail an
avenue for the usc of restorative justice practices by the relevant persons and institutions in the
achievement and enhancement of access to justice. In the case of Mary Kinya Rukwaru v Office
of the Director of Public Prosecutions & another, 14 it was held that "the 20 I 0 Constitution of
Kenya has entrenched and given constitutional underpinning to reconciliation and restorative
justice as some of the methods of justice and altemative dispute resolution."

9
https://www.unicef.org/tdad/index 56040.h~!nl. on 7 February 2017.
10
http:i!restorativejnstice.org/ on 7 February 2017.
11
https://www.ojjdp.gov/pubs/implementing/balanced.html on 7 Febmary 2017.
12
Kariuki F, 'Applicability of Traditional Dispute Resolution Mechanisms in Criminal Cases in Kenya: Case
Study of Republic v Mohamed Abdow Mohamed [2013) eKLR' C1Arb: Broadening Access to Justice through
ADR 30 Years On, Mombasa, 7-8 August 2014, available at http://www.kmco.co.keiindex.php/publications/ 166-
a ppI icab ilitv -of-t rad iti onal-d ispu te- re~o lutio n-m.:c ha11 isms-in -cri m inal-cascs- in-ken va -case-stud v -or-rep ubI ic- v-
mohamed-abdow-mohamed-.20 13-eklr on 7 February 20 I 7.
13
https://ww-.v.unicef.org/tdad/index 56040.html on 7 February 2017.
14
[2016j (;KLR.

2
This study seeks to locate the place of restorative justice processes within the criminal justice
system of Kenya and shed light on how best to develop a framework for their use (if one does
not already exist).

1.2 Statement of the Problem

The overarching problem to be addressed in this research is that in Kenya's written law, the
concept of restorative justice does not have a firm foundation. 15 Statutory provisions on the
subject of restorative justice consider it as an option of last resort and not in pari passu with
retributive justice mechanisms.

Furthermore, the Kenyan criminal justice system ts worryingly dependant on achieving

rettibutive justice leaving little room for the implementation of those restorative justice systems
recognised under Kenyan law.

The Constitution provides that in exercising judicial authority, the courts and tribunals shall be
guided by the principle that alternative fmms of dispute resolution including reconciliation,
mediation, arbitration and traditional dispute resolution mechanisms shall be promoted. 16 This
provision is in the ambit of restorative justice, but still such a dispute resolution mechanism is
shunned by the courts of Kenya.

The cases of overcrowded prisons are also on the rise given that incarceration is the most
prevalent form of sentencing issued by judges and magistrates of Kenyan courts. This issue
also initiates human rights concerns with regard to the treatment and well-being of prisoners
with prominent cases of food shmtages, insufficient medical care, and the inhuman and
degrading treatment of prisoners by prison authorities arising in Kenyan prisons. 17

1.3 Purpose of the Study

This study aims at identifying the place of restorative justice practices in the criminal justice
system of Kenya.

1.4 Statement of Objectives

The objectives of this study are as follows:

15
' Honourable Mr. Justice NRO Ombija: Restorative Justice and Victims of Crime in Kenya'
http ://kenyalaw.org/kVindex.php?id= 1895 on 7 Febmary 2017.
16
Article 159(2), Constitution of Kenya (20 I 0).
17
'Renee Lewis: Human rights violations in Kenyan prisons' Sunday Monitors Kampala, 17 March 2009
hnp :i/humanrightshouse .org/noop/page.php'7p=Articles/5465.html&d= 1 on 8 February 2017.

3
 I. To examine restorative justice as an alternative to retributive justice.
2. To analyse the implementation of restorative justice in the laws of Kenya.
3. To discuss the use of restorative justice by various States in the world.
4. To recommend how best restorative justice mechanisms can be applied in the Kenyan
justice system.

1.5 Research Questions

The study seeks to answer the following questions:

1. What is meant by the terms "restorative justice" and "retributive justice"?
2. How does restorative justice differ from retributive justice?
3. How does Kenya employ restorative justice practices in its justice systems?
4. How are restorative justice practices employed in various jurisdictions around the
world?
5. What framework of restorative justice best suits the Kenyan criminal justice system?

1.6 Research Hypotheses

This study relies on the following hypotheses:

1. There are no restorative justice mechanisms being used in the criminal justice system
of Kenya.
2. Restorative justice systems are more effective than retributive justice systems m
achieving criminal justice.
3. There exist other means of achieving criminal justice apmt from retributive justice
systems.

1. 7 Limitations of the Study

1. The study relies heavily on secondary over primary sources of data and statistics. Data
collection methods such as conducting interviews and providing questionnaires are
thus not used.
11. Time limits of the study correspond to those dictated by the 2017 guidelines for LL. B
dissertations of Strathmore Law School.

1.8 Literature Review

A variety of mticles and case studies exist in reference to restorative justice as a dispute
resolution mechanism which is the subject of this study.

4
John Tiemey 18 writes that restorative justice "represents an alternative approach to one based
upon retribution and/or deterrence, which is seen as alienating the offender from the
community and likely to increase anger, conflict and further harm. With restorative justice, the
offender is expected to repair the harm done to the victim and the community by some sort of
reparation, whilst at the same time acknowledging the wrongfulness of their behaviour".

Daly 19 writes that advocates' claims about restorative justice contain four myths:

a) restorative justice is the opposite of retributive justice;

b) restorative justice uses indigenous justice practices and was the dominant form of pre-
modem justice;
c) restorative justice is a 'care' (or feminine) response to crime in comparison to a 'justice'
(or masculine) response; and
d) restorative justice can be expected to produce major changes in people.

John Braithwaite20 asserts that "restorative justice has been the dominant model of criminal
justice throughout most of human history for perhaps the entire world's peoples".

Strang and Sherman21 describe modem retributive justice processes as "the theft of crime from
victims". This is because victims are widely recognized to be the neglected party in the criminal
justice process. Neither their needs nor their preferences are usually taken into account in the
prosecution and sentencing of offenders. This supposedly natural justice abandons victims to
fend for themselves rather than embracing them as the central focus of harm to be repaired.

Honourable Mr. Justice Ombija22 of the High Court of Kenya writes that "in customary law,
the victim, the clan and the perpetrator of the offence were all considered in the penal sanction.
The main penal mechanisms were restitution and compensation". He also considers that the
formal penal system in Kenya does not affirmatively promote restorative justice, but that
African customary law does in content and fonn. However, a main hindrance to the application
of the customary restorative justice system in Kenya is its unwritten and uncertain nature.

18
Tierney J, Criminology The01y and Context. Pearson Education Limited, 2006, 302.
19
Daly K, Restorative Justice: The Real StOI)', Punishment & Society, 2002, 1.
20
Braithwaite J, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, University of Chicago Press.
1999, 127.
21
Strang Hand Sherman L, ' Repairing the Harm: Victims and Restorative Justice' 15 Utah Law Review (2003),
16.
22
'Honourable Mr. Justice NRO Ombija: Restorative Justice and Victims of Crime in Kenya'
http://kenyalaw.org/k l/index .php'J id= !895 on 10 February 2017 .

5
Charlotte Clapham/ 3 writing on the use of restorative justice by the gacaca courts of Rwanda,
states that "the restorative conception and intentions of the modem practice of gacaca were
specifically designed as an alternative to Western models of retributive justice, in order to offer
a more efficient, effective and long-term solution to the problems of national suffering and
divisions". She is of the opinion that gacaca "constitutes an experiment in restorative justice,
yet without ever fully achieving its own aims".

Honourable Justice Preston24 posits that by applying restorative processes to environmental

crimes, restorative justice can be transformative for the victim, offender, community,
environment and justice system. Classes of victims differ depending on the nature and effects
of the environmental crime. They may be specific persons whose life, health or property is
directly impacted, but they can also be members of the community who are more indirectly
affected or future generations or the environment and non-human biota.

2' Clapham C, 'Gacaca: A Successful Experiment in Restorative Justice'! ' Published LLB Thesis, University of
Sl1effielJ, April 2012 .
2
~ Justice Preston B, 'The Use of Restorative Justice for Environmental Crime' EPA Victoria Seminar on
Restorative Environmental Justice, Melboumc, 22 Tv! arch 20 II , available at http:/1\vww.lcc.justice.nsw.gov.au/
on 10 February 2017.

6
 CHAPTER TWO: THEORETICAL FRAMEWORK AND RESEARCH
METHODOLOGY

2.1 Introduction

Criminal justice is ofteh viewed in two facets; crime and punishment. 25 The theoretical
framework of this study thus considers why individuals commit crime (theories of criminology)
and why the crime must be punished (theories of penology).

2.2 Theories of Criminology

These were developed as early as the eighteenth century. Several theories exist but all may be
grouped into two broad categories; the classical school of thought and the positivist school of
thought.

2.2.1 Classical School of Thought

This class of theorists dates back to the eighteenth century with the treatise of Cesare Bonesana-
Beccaria. In his works, he posited that the objective of the penal system should be to devise
penalties only severe enough to achieve the proper purposes of public security and order;
anything in excess is tyranny. He considered the effectiveness of criminal justice as largely
dependent on the certainty of punishment rather than on its severity. 26 "A punishment, to be.
just, should have only that degree of severity which is sufficient to deter others," he writes. 27

In his opinion, to ensure a rational and fair penal structure, punishments for specific crimes
must be decreed by written criminal codes, and the discretionary powers of judges severely
curtailed? 8

Beccaria borrowed heavily from the works of previous scholars on the subject, including
Montesquieu, and advocated strongly for the abolition of capital punishment writing that "it is
not the intenseness of the pain that has the greatest effect on the mind, but its continuance". 29

2.2.2 Positivist School of Thought

This school of thought developed in the latter part of the nineteenth century and within it,
several views co-exist. Among these is the utilitarian theory proposed chiefly by Jeremy

25
Matemi M, ' Criminal Punislunent and the Pursuit of Justice' 2 British Journal ofAmerican Legal Studies
(2013), 264-266.
26
https ://www.britannica .com/biographviCesare-Beccaria on 28 August 2017.
27
Beccaria C, On Crimes and Punishment, Hackett Classics, 1764, 52.
28
Beccaria, On Crimes and Punishment, 3 7.
29
Beccaria, On Crimes and Punishment, 51.

7
Bentham. He was of the opinion that laws should be structured with the objective of attaining
the greatest good for the greatest number which is done by increasing pleasure and reducing
pain. Following his logic, all forms of punishment are to be considered evil as they induce pain.
He posited that punishment should only be resorted to "so far as it promises to exclude some
greater evil. " 30

There are also biological theories of criminology fronted by the works of Italian psychiatrist
Cesare Lombroso. He used scientific means to study criminals and with his findings suggested
that criminals are distinguished from non-criminals by multiple physical anomalies. These
include a sloping forehead, ears of unusual size, asymmetry of the face, prognathism (the
condition of having a projecting jaw), excessive length of arms, asymmetry of the cranium, and
other "physical stigmata". 31 He suggested that criminals were atavi~tic (essentially
'evolutionary throwbacks') and that some people were basically 'born criminals' .32
Lombroso's works are now largely discredited with the development of methods of scientific
research.

2.3 Theories of Penology

Penology (from the Latin word 'poena' meaning punishment) is the study of the treatment and
punishment of criminal offenders. 33 It is concerned with the processes and institutions
(including comts, police and prisons) involved in the punishment of crime, prevention of crime
and treatment of prisoners.

There are five main theories of penology, namely deteiTence/preventive, expiatory,

rehabilitative, retributive and restorative. This study shall focus on the retributive vis-a-vis the
restorative theory of penology.

2.3.1 Retributive Theory

This theory posits that justice is done when the punishment served is proportional to the crime
committed. It advocates for the principles of"let the punishment fit the crime" and "an eye for
an eye, a tooth for a tooth". In simpler tenns, vengeance takes precedence over social welfare
and personal growth.

30
Bentham J, An introduction rv the Principles ofMorals and Legislation, Clarendon Prl.!ss, 1789, 346.
31
Lombroso C, L 'uomo Delinquente (The Criminal Man}, Milan Publishers, 1876, 89.
32
http:i/www.sccjr.ac.uk!wp-content/urloads/20 16/02/SCCJR-Causes-of-Crime.ndf on 2<1 August 2017.
33
http://socioloeyindex.com/penologv.htm on 28 August 2017.

8
Professor Antony Flew 34 contended that for an act to be defined as a punishment, it must:

1. create human suffering;

n. arise as a direct result of the perpetration of an offence;
nr. it must only be directed to the person who undertook the offence (the offender);
IV. be the intentional creation of other humans in response to the offence;
v. be inflicted by an authorised body representing the embodiment of rules or laws of the
society in which the offence was committed.

One proponent of this theory, John Finnis, believes that criminal laws must be coercive in order
to restore the distributive just balance of advantages between the criminal and the law-
abiding.35

Immanuel Kant then views retributive punishment as being imposed on the offender because
they deserve it and as an end in itself. 36

2.3.2 Restorative Theory

This theory forms the subject of this research paper. It describes an approach to criminal justice
wherein those harmed by crime or conflict and those responsible for the harm interact or
communicate in order to find a solution that essentially enables everyone affected by a
particular incident to play a part in repairing the harm and finding a positive way forward. 37

Howard Zehr, 38 considered by many as the "grandfather of restorative justice", describes it as

an alternative framework for thinking about wrongdoing. He opposes the modem West's
conception of justice which he summarizes into five core ideologies: 39

i) Guilt must be fixed ;

ii) The guilty must get their "just deserts";
iii) Just deserts require the infliction of pain;
iv) Justice is measured by the process;
v) The breaking of the law defines the offense.

34
Flew A, 'The Justification of Punishment' Journal of the Royal Institute ofPhilosophy ( 1954), 296.
35 Finnis J, Natural Law and Natural Rights, Clarendon Law, 2011,263.
36
Kant I, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science
ofRight, Lawbook Exchange Limited, 1887.
37
https ://restorativejustice.org.uk/what-restorative-justice on 15 September 2017 .
38
Zehr H, Changing Lenses: A New Focus for Crime & Justice, Herald Press, 1990/95, 12 .
39
Zehr, Changing Lenses: A New Focus for Crime & Justice, 65-66 .

9
Zehr further proposes that the needs of the victim of the crime ought to be the main concern in
any criminal justice system.40

RETRIBUTIVE JUSTICE RESTORATIVE JUSTICE

Crime is an act against the State. Crime is an act against another person, a
family and/or the community.

Parties involved are the State and the Parties involved are the victim, offender and
offender. community members.

Crime results from individual choice and Crime results from both individual choice
imputes individual responsibility. and social conditions.

Offender accountability equated to suffering, Offender accountability defined as assuming

revenge and punishment. responsibility and making appropriate
reparations.

The rights and needs of the victim are The rights and needs of the victim are central
peripheral to achieving justice. to achieving justice.

Aimed at imputing blame or guilt on the Aimed at finding resolutions and making
offender (is retrospective) . repairing harm done (is prospective).

Extensively involves representatives for Parties to the dispute are at the forefront and
parties to the dispute. are directly involved in finding a resolution.

Table 1: A companson of retributive justice and restorative justu:e

2.4 Research Methodology

This study employs the use oflibrary resources, including Lex is Library, Wiley Online Library,
Oxford Open and Hein Online. Books, articles and papers of authors writing on restorative
justice in criminal law are considered in this paper.

Other primary sources of data that are included in this study are relevant case law and Acts of
Parliament. Secondary sources employed include internet sources, reports and statistical data.

40
Zelu, Changing Lenses: A New Focus for Crime & Justice, 30.

10
 CHAPTER THREE: RESTORATIVE JUSTICE IN THE KENYAN
CRIMINAL JUSTICE SYSTEM

3.1 Introduction

Although the Kenyan penal system is largely reliant on retributive justice, restorative justice is
not a foreign concept. The Constitution of Kenya provides for the use of alternative forms of
dispute resolution by courts and tribunals in the exercise of judicial authority, including
reconciliation, mediation, arbitration and TDRMs. 41 This opens the door to restorative justice
practices for both civil and criminal disputes. Additionally, the Sentencing Policy Guidelines
include as one of its objectives the promotion of restorative justice values and processes during
sentencing. 42 It also provides that reformation, social integration, rehabilitation and restorative
justice are the paramount objective for juvenile offenders. 43 Further still, the Victim Protection
Act 44 expressly grants every victim a right to voluntarily participate in any process towards
restorative justice albeit for a period of six months extended only with the leave of the court.

This chapter provides an analysis of the restorative justice processes used in Kenya and begins
with a discussion on how traditional Kenyan communities employed it in their justice systems.
Subsequently, the chapter considers how restorative practices are used with juvenile offenders
and makes referen<;:e to the relevant statutory rules.

3.2 Traditional Dispute Resolution Mechanisms

Prior to the advent of colonialism, which has largely influenced modem criminal law, the
various communities living in Kenya employed their own dispute resolution mechanisms. A
common feature in each was the emphasis of social harmony and togetherness over individual
interests or the allocation of rights between disputants. 45 These values are essential in
restorative as opposed to retributive justice. At the heart of these mechanisms is the fact that

41
Article !59 (2) (c), Constitution of Kenya (2010).
42
Section 2.4, Sentencing Policy Guidelines (2016).
43
Section 20.10, Sentencing Policy Guidelines (20 I 6).
44
Section 15, Victim Protection Act (No . 17 of2014) .
45
'Kariuki Muigua: Traditional Dispute Resolution Mechanisms under Article 159 of the Constitution of Kenya
2010'
http ://www.kmco.co.ke/i ndex.php/publications/lll-traditional-dispute-resolution-mechanisms-under-article-
159-of-the-constitution-of-kenva-20 l 0 on 15 January 2018 .

11
they are embedded in African customary laws. They are thus anchored on African traditional
norms and values, and hence part and parcel of the social fabric. 46

Skelton and Batley identify features that link African traditional justice processes and modem
restorative justice by stating that 'both practices aim for reconciliation and the restoration of
peace and harmony; they promote a normative system that stresses both rights and duties; and
they highly value dignity and respect' . 47 Procedurally, they state that 'neither process makes a
sharp distinction between civil and criminal justice; both are typified by simplicity and
infonnality of procedure; both encourage participation and ownership; and both value
restitution and compensation, including symbolic gestures or actions' .48 All these
characteristics fit like puzzle-pieces to the foundations of a good restorative justice system,

TDRMs continue to be resilient in the face of fom1al Western penal laws. A good example is
the Council of Elders in the Ameru community, known as the Njuri Ncheke . It was composed
of male subjects who were elders by virtue of their age and had undergone formal initiation
before appointment. It dealt with social issues such as conducting wedding ceremonies as well
as resolving criminal matters such as murder. 49 When an offence was committed, the council
would inform all concerned parties (including community members) of a date set for hearing
the matter. On that day, the parties would congregate at a designated open location. The victim
set out the facts of his claim and the accused person was given an opp01tunity to present his
side of the story. The aim of the "hearing" was to determine whether an accused person
committed a wrong. If so, a pre-determined compensation would have to be paid by the
offenders and their clan to the victim. 50 The Njuri Ncheke still exists and operates today,
although their role has been curtailed by state-based justice institutions. 5152

Kenya's current legal framework provides an avenue for TDRMs to be applied in the
determination of cases. The Constitution provides for it as an alternative fmm of dispute

46
Kariuki F, 'Applicability of Traditional Dispute Resolution Mechanisms in Criminal Cases in Kenya: Case
Study of Republic v Mohamed Abdow Mohamed [2013] eKLR', 2.
47
Skelton A and Batley M, Charting Progress, Mapping the Future: Restorative Justice in South Aji-ica ,
Restorative Justice Center, 2006, 8.
48
Skelton and Batley, Charting Progress, Mapping the Future: Restorative .Justice in South Afi"ic:a, 9.
49
Kinyanjui S, 'Restorative Justice in Traditional Pre-Colonial '"Criminal Justice Systems" in Kenya' I 0 Tribal
Law Journal (2010), 13.
5° Kinyanjui S, 'Restorative Justice in Traditional Pre-Colonial "Criminal Justice Systems"' in Kenya', 14.

51
Kinyanjui S, 'Restorative Justice in Traditional Pre-Colonial "Criminal Justice Systems" in Kenya·, 12.
52 See also the case of Lubam M 'imanyara v Daniel Mumngi [2013] eKLR where parties filed a consent seeking

to have their dispute refeiTed to the Njuri Ncheke . The com1, citing Anicles 60(1) (g) and 159(2) (c) of the
Constitution (20 I 0), allowed the application noting that it was consistent with the Constitution.

12
resolution to be used by courts and tribunals in the exercise of judicial authority. 53 The
Magistrates' Court's Act restricts its application to certain listed civil matters, including matters
of land held under customary tenure, seduction or pregnancy of an unmarried woman or girl
and intestate succession and administration of intestate estates. 5455 The Marriage Act provides
that parties to a customary marriage may undergo a process of conciliation or customary
dispute resolution mechanism before the court may determine a petition for the dissolution of
the marriage. 56

The case of Republic v Mohamed Abdow Mohamed57demonstrates the applicability ofTDRMs

in the resolution of criminal disputes. Here, the accused was charged with murder and, when
arraigned in court, plea~ed not guilty to the charge. However, on the hearing day, the State
counsel informed the court that counsel representing the deceased's family h~d written to the
DPP requesting that the charge be withdrawn on account of a settlement reached between the
families of the accused and the deceased respectively. On the instructions ofthe DPP, the State
counsel made an oral application in court to have the matter marked as settled citing Article
159 of the Constitution. The court allowed the application and discharged the accused,
determining that the ends of justice would be met by allowing the application rather than
disallowing it. 58 Though not an ideal case, as lack of witnesses played a major role in the court's
decision, this precedent demonstrates that contemporary law and TDRMs can be used
concomitantly to achieve criminal justice in Kenya.

TDRMs as a mode of restorative justice are flexible, cost-effective, expeditious, foster

relationships, non-coercive and result in mutually satisfying outcomes. They are thus most
appropriate in enhancing access to justice closer to the people, help reduce backlog of cases in
courts and can also reduce the congestion of our prisons while easing the tax payers' burden. 59

53
Article 159 (2) (c), Constitution of Kenya (2010) .
54
Section 2, Magistrates· Court 's Act (No. 26 of20 15).
55
In Kamanza Chiwaya v Tsuma (Unreported High Court Civil Appeal No. 6 of 1970), the High Court held that
the list under section 2 of the Magistrates' Court' s Act of claims under customary law was exhaustive and excludes
claims in tort or contract.
56
Section 68, Marriage Act (No.4 of2014).
57
[2013] eKLR.
58
Kariuki F, 'Applicability of Traditional Dispute Resolution Mechanisms in Criminal Cases in Kenya: Case
Study of Republic v Mohamed Abdow Mohamed [2013] eKLR', 1-2.
59
'Kariuki Muigua: Traditional Dispute Resolution Mechanisms under Article 159 ofthe Constitution of Kenya
2010', 6.

13
3.3 Juvenile Offenders

With the enactment ofthe Children Act 60 in 2001, Kenya established herself as an advocate for
the protection of the rights of children. The Act serves to implement the requirements under
the UNCRC 61 and the African Children's Charter. 62 It provides, inter alia, that in all actions
concerning children, whether undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration. 63 In this regard, a child offender held in custody is to be separated from
adults. 64 The Constitution ofKenya (2010) echoes this provision under Article 53.

The use of diversion programmes is highly effective in rehabilitation of juvenile offenders .

Diversion seeks to ensure that they avoid formal court action and custody jf arrested and can
be used in the course of trial or at the post-trial stage of criminal proceedings.65 Though a
critical component of juvenile justice, diversion is not provided for in Kenyan law. The
Children Act is similarly silent on the conditions of and appropriate stage for diversion of a
child. 66 A pilot programme was attempted in March 2001 in 14 target districts (including
Nakuru, Siaya and Kisumu) but was marred with legal, financial and stmctural challenges. 67

The number of inmates below 18 years of age was recorded at 2,570 in 2013 and 3,455 in 2014
(1.1 %of the total ptison population in 201 3 and 1.4 % in 201 4). 68 These figures are alarming
and necessitate proper legislative and structural measures from the Government of Kenya to
effect restorative justice mechanisms for juvenile offenders.

3.4 Legislation promoting Restorative Justice

In addition to those mentioned in this chapter, certain other Acts of Parliament contain
provisions that support the use of restorative justice processes for the resolution of civil or
criminal disputes.

611Children Act (Cap. 141 of2001).

61 United Nations Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3.
62 African Charter on the Rights and Welfare of the Child, II July 1990, CAB/LEG/24.9/49.
63
Section 4, Children Act (Cap . 141 of2001).
64
Section 18(3), Children Act (Cap . 141 of2001).
65 King'ori E, 'Strengthening Access to Justice for a Child in Conflict with the Law: A Case for Law Reform'

Published LLM Thesis, University ofNairobi, August 2015, 51 .

66 King'ori E, 'Strengthening Access to Justice for a Child in Conflict with the Law: A Case for Law Reform', 79

67
Rutere Sand Kiura C, The Diversion Program in Kenya, Sida Review, 2009, 3.
68
Odongo G, 'Kenya ' in Decker SHand Mat1eache N (eds), Jmernational Handbook ofJuvenile Justice, Springer
International Publishing Switzerland, 2017, 34.

14
First, the Narcotic Drugs and Psychotropic Substances (Control) Act provides for the
establishment of rehabilitation centres for the care, treatment and rehabilitation of persons
addicted to narcotic drugs or psychotropic substances. 69 A court may, during sentencing of a
person convicted under this Act, order that a part of the offender's imprisonment be spent in a
rehabilitation centre. 70 On the submission of a report by the officer in charge of the centre, the
same court may, if satisfied that the convicted person has successfully undergone the treatment
and rehabilitation programme of the centre and that he is no longer an addict, grant remission
of the whole or part of the remaining period of imprisonment imposed on him. 71

Second, the Community Service Orders Act provides that where any person is convicted of an
offence punishable by (or for which the court deems appropriate to punish by) imprisonment
for a term not exceeding three years, with or without the option of a fine, the court may make
a community service order requirit~g the offender to perform community service. 72 It further
states that "community service shall comprise unpaid public work within a community, for the
benefit of that community" and includes construction or maintenance of public roads or roads
of access; environmental conservation and enhancement works; and maintenance work in
public schools, hospitals and other public social service amenities. 73

Additionally, the Penal Code provides for community service orders and payment of
compensation as options for punishment of criminal offenders by a court. 74 It also stipulates
that a convicted person may be discharged by a court having regard to the circumstances
including the nature of the offence, the character of the offender and that it is inexpedient to
inflict punishment. The discharge may be absolute or subject to the condition that he commits
no offence during a prescribed period. 75

Finally, the Counter-Trafficking in Persons Act provides that "the (Cabinet Secretary)
shall ... fmmulate plans for the provision of appropriate services for victims of trafficking in
persons and children accompanying the victims". Such services include resettlement, re-
integration and psycho-social support. 76

69
Section 52, Narcotic Drugs and Psychotropic Substances (Control) Act (No.4 of 1994).
70
Section 58(1), Narcotic Drugs and Psychotropic Substances (Control) Act (No.4 of 1994).
71
Section 58(3), Narcotic Drugs and Psychotropic Substances (Control) Act (No. 4 of 1994).
72
Section 3( 1), Community Service Orders Act (No. 10 of 1998).
73
Section 3(2), Community Service Orders Act (No. 10 of 1998).
74
Section 24, Penal Code (Cap . 63 of the Laws of Kenya) .
75
Section 35, Penal Code (Cap . 63 ofthe Laws of Kenya) .
76
Section 15, Counter-Trafficking in Pe1:mns Act (No.8 of2010).

15
3.5 Conclusion

Kenya has recognized restorative criminal justice practices since its pre-colonial era where
harmonious co-existence within communities was paramount to each individual member. This
was disrupted through the implementation of the foreign penal laws of the British colonists
which gave prominence to retributive means of justice, chief among them being prison
sentences. Since attaining independence, various legislative measures (as discussed in the
chapter) have been realized to promote restorative justice practices in Kenya's penal laws.
However, there are still opportunities that can and need to be explored before Kenyajoins the
ranks of New Zealand, South Africa and Rwanda in the achievement of a cohesive legal system
employing restorative justice.

16
 CHAPTER FOUR: RESTORATIVE CRIMINAL JUSTICE IN
PRACTICE

4.1 Introduction

The use of restorative processes to resolve criminal matters is not an invention of the 21st
century. Its roots can be traced to indigenous justice practices, including conferences among
the Maori ofNew Zealand who involved not only the primary victim and offender in mediation
but also their family members and friends. There also existed circles drawn from the First
Nations' practices in Canada and which invited any interested member of the community to
participate in finding a resolution. The participants sit in a circle, with discussion moving
77
clockwise from person to person until the participants have arrived at a resolution. Several
African communities also had, and some still have, in place traditional dispute resolution
mechanisms including a council of elders and barazas.

The modem conception of restorative justice has only improved on the above and consists of
any process in which the victim and the offender, and, where appropriate, any other individuals
or community members affected by a crime, participate together actively in the resolution of
matters arising from the crime, generally with the help of a facilitator. 78 Processes such as
arbitration, mediation and conciliation are now gaining. track as trusted methods of dispute
resolution.

To answer the question of whether restorative justice practices can be successfully used locally,
we must examine how other jurisdictions from around the world have implemented them and
derived positive outcomes. This chapter analyses the means by which different countries have
embraced and employed restorative justice in their criminal laws and the outcome of its practice
in the pursuit of justice. A case study of the use of gacaca courts subsequent to the 1994
Rwandan genocide is included to highlight the success of restorative justice in mending a
nation.

4.2 New Zealand

New Zealand has gained intemational attention for its use of restorative justice processes,
particularly Family Group Conferencing (or FGC) for youth offenders, in its criminal justice
system. More unique is that these processes are rooted in statute. FGC was introduced into the

77
Van Ness D, 'An overview of Restorative Justice around the world' United Nations lith Congress on Crime
Prevention and Criminal Justice, Bangkok, April 22 2005, on file with author.
78
ECOSOC Resolution 2002/12 Basic principles on the use of restorative justice programmes in criminal matters .

17
law by the Children, Young Persons and their Families Act of 1989. Maoris, who were
disproportionally represented in the registered crime figures in New Zealand, saw the reason
being that when offences occurred, their children were removed from their care and grew up
outside of (and ignorant of) the culture and communities to which they belonged. Therefore,
FGC was introduced in a new law for juveniles as a process that reflected Maori cultural
practice and that involved families in the deliberations. 79

McElrea lists three elements of restorative justice that occur in FGC; a transfer of power from
the state to the community, a negotiated community response and processes which aim to
provide healing for victims and acknowledgement of accountability by offenders. 80

During FGC, the key participants are: 81

1. the juvenile offender;

11. his/her parents, guardian or carer;
111. members of the family (group) of the young offender;
IV. a representative of the cultural authority in whose care the child has been placed;
v. the victim of the offence or alleged offence to which the conference relates
VI. a supporter of the victim;
VII. the youth justice coordinator;
vm. a representative of the police;
rx. any barrister, solicitor, youth advocate or lay advocate representing the young offender;
x. a social worker in certain defined situations; and
xr. any other person whose attendance is in accordance with the wishes of the family
(group)

Typically, the conference begins with prayers and introductions by participants. The
coordinator then explains the procedure before the police officer present reads out a summary
of the facts of the offence. The offender is then asked if he/she denies or admits those facts. If
the offender agrees to the facts of the offence (or at least the core portion of them), they get the
opportunity to comment on the accuracy of the police statement and the victim (or
representative) can present his/her view of the facts and can explain how the offence affected

7
'' Zinsstag E, Teunkens M Pali B, Conferencing: A Way Forward for Restorative Justice in Europe, European
Fmum for Restorative Justice, 2009, 168.
so McElrea F, 'The New Zealand Model of Family Group Conferencing' European Journal on Criminal Policy
cmd Research ( I9n), 531.
~ 1 Stewart T, FamiZv Group Conferences: Perspectives on Policy and Practice, Annandale: The Federation Press,
1996,66.

18
him/her. Frequently, statements by the victim are followed by an apology or some expression
of remorse by the offender. The conference participants then discuss collectively and
sometimes with emotion what should be done to repair the harm to the victim (including the
payment of restitution) and what the offender should do in order to be held accountable for the
offence. 82

After a suitable discussion period, the offender is left alone with his family to discuss a suitable
plan. Once the family has had sufficient time to caucus privately, then the entire group
reconvenes to hear of the proposed family group conference plan from the family and the
offender. The proposed plan is discussed and frequently negotiated by the parties including the
police and the victim. If a collective agreement is reached, the plan is recorded in writing by
the justice coordinator. If criminal charges had been presented in court, then the family group
conference plan is presented to the court for approval. 83

Adult conferencing in New Zealand is established under the Sentencing Act 2002 and Victim's
Rights Act 2002. The former explicitly recognized restorative justice for adult offenders and
provides that the court must take into account any outcomes of restorative justice processes
that have occurred in sentencing.84 The latter requires all judicial officers, lawyers, court staff
and probation officers to encourage the holding of a meeting between the victim and the
offender of a crime "to resolve issues relating to the offence". 85

4.3 Australia

Restorative justice practices have been used in the Australian criminal justice system since the
early 1990s with the introduction ofpolice-mn conferencing in Wagga Wagga (a town in New
South Wales). These practices have become mainstream in Australian juvenile justice and have
been extended for use with adult offenders. In determining whether the matter is suitable for a
conference, the seriousness of the offence, the level of violence involved, the harm caused to
the victim, the nature and extent of offending by the young person, the number of times they
have received warnings or cautions under the relevant Act and other matters deemed relevant

82
Zinsstag eta!, Conferencing: A Way Fonvardfor Restorative Justice in Europe, 174.
83
Schmid D, Restorative Justice in New Zealand: A Model for U.S. Criminal Justice, Ian Axford Fellowship,
2011 , 13 .
84
Section 8, Sentencing Act (No. 9 of 2002) (New Zealand).
85
Section 9, Victim's Rights Act (No . 39 of 2002) (New Zealand).

19
must be taken into consideration. 86 Outcomes include making an apology or reparations to the
victim, doing community service and attending counselling.

Australia is divided in eight jurisdictions (or territories): New South Wales, Victoria, South
Australia, Queensland, Western Australia, Tasmania, the ACT and the Northern Territory.
Table 2 below illustrates key features of restorative criminal justice within the eight Australian
territories. 87

Jurisdiction Program Legislation Eligible Excluded Point of

Participants Referral
Offered Offences

Northern Youth Youth Youth (10 to Include Police and

Territory _ Conferencing Justice Act, under 18 murder, court (pre-
1997 years) attempted sentence)
murder,
manslaughter,
terrorism
offences,
sexual
offences

Western Family Group Young Youth (10 to Include Police and

Australia Conferencing Qffenders under 18 homicide, court (pre-
Act, 1994 years) sexual sentence)
offences,
some drug-
related
offences

Tasmania Community Youth Youth (10 to Include Police and

Conferencing Justice Act, under 18 murder, rape, court
1997 years) aggravated (sentencing
armed option)
robbery,
manslaughter

Queensland Justice Dispute Adults (17 None Mostly

Mediation Resolution years and stipulated m diversionary
Program Centre Act over) the legislation but can come at
1990 all stages of the

8
" Larsen J, Restorative Justice in the Australian Criminal Justice System, Australian Institute of Criminology,
2014,6.
87
Larsen, Restorative Justice in the Australian Criminal Justice System, 8-9 .

20
 criminal justice
process

New South Youth Justice Young Youth (10 to Include Police and
Wales Conferences Offenders under 18 sexual court (pre-
Act, 1997 years) assault, drug sentence)
and traffic
offences

Forum Criminal Adults (18 Include Court (pre-

Sentencing Procedure years and murder, sentence)
Legislation over) sexual
2010 NSW offences,
(Part 7) stalking and
intimidation

Victoria Youth Justice Children, Youth (10 to None Court (pre-

Group Youth and under 18 stipulated m sentence)
Conferencing Families years) and the legislation
Act 2005 young
adults (I 0 to
20 years)

Youth Justice Youth Youth (10 to None Police and

Conferencing Justice Act under 17 stipulated m court (pre-
1992 years), the legislation sentence)
although
some adults
may be
referred by
police

South Family Young Youth (10 to Legislation Police and

Australia Conferencing Offenders under 18 only court (pre-
Act 1993 years) stipulates that sentence)
youth who
admit to
committing a
'minor'
offence may
be referred by
police

21
 Port Lincoln Criminal Adults (18 None Court (pre-
Aboriginal Law years and stipulated Ill sentence)
Conferencing Sentencing over) the legislation
Act 1988

Australian Restorative Crimes Youth (10 to Serious From

Capital Justice Unit 17 property apprehension
(Restorative
Territory offences,
years) to
(ACT) Justice) Act sexual
2004- offences, post sentence
domestic
operating in
violence
phase one offences
Table 2: Territorial application of restorative justice programs in Australia

4.4 South Africa

Since the end of Apartheid mle in the early 1990s, South Africa has taken outstanding steps
towards implementing restorative justice through penal law refonns. This began in 1997 when
the Minister of Justice and Constitutional Development requested the South African Law
Reform Commission to include in its programme an investigation into the youth justice system.
Their final report was presented in 2000 together with a draft of the Child Justice Bill (No. 49
of2002) which was later passed by the Nationai Assembly in 2008. The Bill included detailed
procedures for setting up and mnning FGCs as a diversion option prior to or during trial or
after conviction to determine a suitable plan, which the court could then transfer into a court
order for the purpose of sentencing. 88

In 1998, the Restorative Justice Centre was established in Pretoria and aimed first to f01mulate
a restorative model familiar to African values, to empower people to work in partnership with
the criminal justice system and to relieve the court's workload and therefore function as a
diversionary process. ~> 9 Another example of restorative justice programmes in South Africa are
the "local peace committees", which started in the early 1990s. These worked in many
townships to resolve conflicts in local communities with respected local people acting as

88
Skelton A, 'The Child Justice Bill from a Restorative Justice Perspective' in Maepa T (ed), Beyond Retrihlllion:
Prospect o(Restorative Justice in South Africa, Institute for Security Studies, 2005 , 131.
89
Zinsstag et al, Cm!ferencing: A Way Forward jiw Restomtivc Justice in Europe. 220-221.

22
facilitators. By the year 2004, 15 peace coirunittees were in place and 6,000 peace gatherings
had been held. 90

The establishment of the Truth and Reconciliation Commission (TRC) gained South Africa
prominence in the field of restorative justice. The TRC was set up by the Govemment of
National Unity under the Promotion of National Unity and Reconciliation Act (No. 34 of 1995)
to help deal with the aftermath of apartheid rule. The conflict during this period resulted in
violence and human rights abuses from all sides. 91 The objectives of the Commission were,
inter alia, to investigate and draw as complete a picture as possible of the nature, causes and
extent of the human rights violations committed during the apartheid period, to offer victims
an opportunity to relate the violations they suffered and to take measures aimed at granting
reparations to victims as well as restoring their dignity.92 The Commission also aimed to
embrace the spirit of ubuntu (a Zulu word meaning 'humanness') which connotes solidarity
and humanity to others similar to restorative justice practices.93 It provided forums in which
victims could relate their stories and made recommendations with regard to the reparation of
victims (including restitution and rehabilitation), the prevention of future abuses and the
establishment of a culture of respect for human rights. 94

Presently, three pieces of South African legislation provide for restorative justice. These are
the Criminal Procedure (Second Amendment) Act (No. 62 of 2001 ), the Probation Services
Act (No. 35 of2002) and the Child Justice (B-49 of2002).

4.5 Rwanda

On April6, 1994, the plane carrying then Hutu President of Rwanda Juvenal Habyarimana and
the President of neighbouring Burundi was shot down as it prepared to land in the capital of
Rwanda. The crash killed the plane's occupants immediately, and within hours, targeted killing
ofTutsis and those associated with them began. Prior to this, members of the govemment had

90
Liebmann M, Restorative Justice: How It Works, Jessica Kingsley Publishers, 2007, 233.
91 http:i/v.rww.juslice.gov.za/trc/ on 19 January 2018.
92
Section 3, Promotion ofNational Unity and Reconciliation Act (No . 34 of 1995) (South Africa).
93
Skelton A, 'Regional Views: Africa' in Johnstone G and Van Ness D (eds), Handbook of Restorative Justice,
Willan Publishing, 2007, 471 .
94
'McLeod L: Reconciliation through Restorative Justice: Analyzing South Africa's Truth and Reconciliation
Process' George Mason University, Spring 2015
https :1/www. beyo ndi ntractab i1ity. org/\ibrary/reconc ilia tion -through-restorative- justice-ana lvzing -south-a fticas-
truth-and-reconciliation#sthash.AHWMRxhJ.dpbs on 19 January 2018.

23
deliberately engendered animosity between the two main Rwandan ethnic groups-Hutu and
Tutsi-which had become politicized and polarized during Belgian colonialism. 95

Over 100 days from April to July 1994 between 800,000 and 1,000,000 Tutsis and moderate
Hutus were killed in Rwanda. The killings were organized by the Rwandan Government and
executed by the military, armed militia groups and ordinary men and women who often killed
their own relatives, friends and neighbours. 96 In the aftennath of the genocide, Rwanda was
faced with a new problem. Survivors had to find a way to coexist with those who perpetrated,
encouraged, or did nothing to prevent the violence. 97

In response to this, three approaches were taken in an attempt to render justice to those involved
in or affected by the mass violence. ~irst, the United Nations Security Council created the
International Criminal Tribunal for Rwanda (ICTR) on November 8, 1994 in Arusha,
Tanzania. 98 The Rwandan Government would also utilize its domestic judicial system and, in
2001, began to use traditional justice systems known as gacaca courts. To facilitate the tasks
of the various tribunals, the Rwandan Government divided the perpetrators of the genocide
according to their responsibility into four categories as follows: 99

Catego1y 1:

a) persons whose criminal acts or whose acts of criminal participation place them among
the planners, organizers, instigators, supervisors and leaders of the crime of genocide
or of a crime against humanity;
b) persons who acted in positions of authority at the national, prefectural, communal,
sector or cell level, or in a political pa1ty, the or fostered such crimes;
c) notorious murderers who by virtue of the zeal_or excessive malice with which they
committed atrocities, distinguished themselves in their areas of residence or where they
passed;
d) persons who committed acts sexual torture.

Categ01y 2:

95
Brehm H, Uggen C, Gasanabo J, 'Genocide, Justice and Rwanda's Gacaca Courts' 30 Journal of Con temporal)'
Criminal Justice, 3 (2014), 333-334.
96
Corey A and Joiremann S, Retributive Justice: The Gacaca Courts in Rwanda, African Affairs, 2004, 73.
97 Drumbl M, 'Punishment Post genocide: From Guilt to Shame to CiYis in Rwanda' 75 New York University Law

Review (2000), 122-L

98
UNSC S;RES/955 (1994) Establishing the International Tribunal for Rwanda and UNSC S/RES/977
Designation of Arusha as the seat of the International Tribunal for Rwanda (JCTR) ( 1995).
99
Article 2, Organic Law (No . 8 of 1996) (Rwanda).

24
Persons whose criminal acts or whose acts of criminal participation place them among
perpetrators, conspirators of accomplices of intentional homicide or of serious assault against
the person causing death.

Categmy 3:

Persons whose criminal acts or whose acts of criminal participation make them guilty of other
serious assaults against the person.

Categmy 4:

Persons who committed offences against property.

The ICTR was tasked to investigate and prosecute Category 1 perpetrators of the genocide. It
was based in Tanzania to ensure impartiality during the proceedings. Further, until the year
2000, the official languages of the ICTR were English and French. Kinyarwanda, the native
language of all Rwandans, was not used. The distance and the language barrier removed many
Rwandans from the judicial process and therefore the Court was unable to contribute
sufficiently to the reconciliation process. 100

With just over 20 judges, the Rwandan national courts were to try more than 130,000 suspects
and it was estimated that the sheer number of cases could take up to 150 years to process. 101
The judiciary also suffered from a dearth of resources, inefficiency, corruption, and executive
influence. 102

For the most part, the Rwandan killings took place in the local communities where both victim
and aggressor resided and the situation was truly one of neighbour killing neighbour. 103 Thus,
the need for a justice system that involved all community members arose and in 200 I, over
11,000 gacaca courts were established for this reason. Gacaca -literally meaning "grassroots"
- were local community courts in which victims and perpetrators presented their narrative of

100
Barria L, RoperS, 'How Effective Are International Criminal Tribunals? An Analysis of the ICTY and ICTR'
9 Jntemationaf Joumal of Human Rights, 3 (2006), 363.
101
Graybill L, Lanegran K, 'Truth, Justice, and Reconciliation in Africa: Issues and Cases' 8 African Swdies
Quarterly, I (2004), 8.
102
Bolocan M, ' Rwandan Gacaca: An Experiment in Transitional Justice' 2004 Journal of Dispute Resolution , 2
(2004), 374.
103
Drumbl M, 'Punishment Post genocide: From Guilt to Shame to Civis in Rwanda', 1260.

25
the case. These consisted of a highly decentralized system of local courts inspired by the
traditional dispute resolution mechanism existing in Rwanda since pre-colonial time. 104 The
courts were headed by the Inyangamugaya (people of integrity) who were suggested and
elected by the local community. 105 The new gacaca process had five goals: 106

i) establish the truth about what happened;

ii) accelerate the legal proceedings for those accused of genocide crimes;
iii) eradicate the culture of impunity;
iv) reconcile Rwandans and reinforce their unity; and
v) use the capacities of Rwandan society to deal with its problems through a justice based
on Rwandan custom.

Community members were not only spectators, hut also active participants whose accounts and
testimonies directly influenced the trial and subsequently the verdict. 107 Gacaca courts were
able to try cases of Category 2 and 3 crimes and could issue sentences ranging from community
work to 30-year prison sentences thus incorporating an amalgam of retributive and restorative
justice outcomes. 108 The gacaca law offered strong sentence reductions as an incentive for
offenders to confess and possibly commute half of their sentence into community service. 109

No legal representatives were employed as survivors and offenders would speak before the
com1 personally. This greatly reduced costs of ti-ial. In addition, as of April 2009, the gacaca
courts had completed 1.1 million cases compared to the 10,026 and 50 cases finalized by the
civil justice system and the ICTR respectively. 110 Moreover, as pa11 of building a unified
Rwanda, gacaca gave the citizens paJiicipatory justice and community involvement in the
proceedings. 111

The gacaca system was not without shortfalls. To begin with, the gacaca courts faced unique
destruction-of-evidence problems because of the form of evidence collected and the informal

104
Bolocan M, 'Rwandan Gacaca: An Experiment in Transitional Justice', 375 .
105 Clark P, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers,
Cambridge University Press, 2010, 67.
lor. Westberg M, 'Rwanda's Use of Transitional Justice after Genocide: The Gacaca Courts and the ICTR' 59
Kansas Law RevieYI' (20 II), 33 7.
107
Corey and Joiremann, Retributive Justice: The Gac:ac:a Courts in Rwanda, 84.
10
~ Corey and .loiremann, Retributive Justice: The Gacaca Courts in Rwanda, 85 .
109
Bolocan M. 'Rwandan Gacaca: An Experiment in Transitional Justice ', 380.
110
Westberg M, 'Rwanda's Use of Transitional Justice after Genocide: The Gacaca Courts and the ICTR', 341.
111
Westberg M, 'Rwanda's Use of Transitional Justice aiier Genocide: The Gacaca Courts and the ICTR', 349.

26
environment. 112 Human rights groups also argued that the impartiality and professionalism of
the judges were not guaranteed. 113 In addition, paramount rights, such as the defendants ' right
to legal counsel or the right to call witnesses, were disregarded. This may be problematic, as
the majority of defendants have a low educational background and very limited, if any,
awareness of their rights . Moreover, defendants who choose not to confess are particularly
vulnerable, as gacaca courts can hear evidence from the public prosecutor. 114

In summary, the gacaca system is a tme image of the merits of a restorative criminal justice
system. It demonstrates how restorative justice can lead to speedy, cost-effective, harmonious,
rehabilitative and mutually accepted dispute resolution even after the commission of the most
heinous of crimes.

4.6 Conclusion

The application of restorative justice practices in penal laws has been realised by a good
number of countries around the world. This has been advantageous in maintaining social
relations, allowing for reconciliation of victims and offenders and providing for appropriate
reparations for crimes. The models adopted by each coupled with their strengths and
weaknesses are an excellent framework from which Kenya can establish her own legislation
on restorative justice.

11 2
Westberg M, 'Rwanda's Use of Transitional Justice after Genocide: The Gacaca Courts and the ICTR', 353.
113
Burnet J, 'The Injustice of Local Justice: Truth, Reconciliation, and Revenge in Rwanda' 3 Genocide Studies
and Prevention Journal, 2 (2008), 176.
114
Bolocan M, ' Rwandan Gacaca: An Experiment in Transitional Justice ' , 388.

27
 CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS

5.1 Conclusion

Restorative justice practices are indeed applicable within the criminal justice system of Kenya.
This has been proven by an analysis of various Kenyan statutes which recognise restorative
justice as a means of dispute resolution. The supreme law of the land, that is the 2010
Constitution, avails an avenue for their use by judges and magistrates in the exercise of judicial
authority and the pursuit of access to justice for all citizens.

This study has provided a comparison ofKenya's use of restorative justice processes to those
of other jurisdictions around the world. From this, it is apropos to conclude that Kenyan
legislation provides a relatively limited scope of application to restorative justice processes. It
is also evident that restorative justice practices are used subordinate to retributive justice
practices in Kenya whereas other States, such as New Zealand, have used the fanner
concurrently with or in lieu of the latter.

Ultimately, what is presently required is a proper and workable framework for the use,
sustenance and promotion of restorative justice mechanisms within Kenya's criminal justice
system. This will ensure that criminal justice is returned to the people most concerned and
affected by the cr!me.

5.2 Recommendations

Following the findings and discussions put forward by this study, the following
recommendations are suggested:

1. That legislators formulate and pass an Act of Parliament detailing a framework for the
use of restorative justice processes as diversionary measures or sentencing options in
all criminal matters. This requires an amendment of the Penal Code and other relevant
statutes to be more inclusive of restorative justice programs.
11. That a framework be created providing that before patties to a dispute file a case in
comt, they should first exhaust all modes of restorative justice available to them.
111. That judicial officers embrace the dictates of Atticle 159 (2) (c) of the 2010 Constitution
by referring more cases to all available alternative dispute resolution mechanisms
including restorative justice processes.
1v. That cases refened to restorative justice programmes should comprise any civil or
criminal matter that all pa1ties to the dispute have agreed to resolve as such.

28
v. That the framework for restorative justice adopted by Kenya should ensure that it is not
completely merged with the formal legal system but able to work concurrently with it.
Courts should only promote the use of restorative justice programs without interfering
in their procedures.
vr. That the framework for restorative justice adopted by Kenya should bar legal
representation during the procedure. This will remove technicalities from the process
and ensure that only those parties concerned with a dispute are present for its resolution.

29
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31
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32
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1. United States Department of State: Bureau of Democracy, Human Rights and Labour,
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33