Don’t bring Maslaha into criminal cases justice, judge says
The Maslaha, a traditional dispute-resolution system, is an alternative Justice mechanism prevalent in many parts of Garissa, Wajir and Mandera
Garissa High Court Presiding Judge Justice John Onyiego has called on elders in North Eastern region to desist from presiding over criminal cases in Maslaha.
He was emphatic that the Alternative Justice System (AJS) does not cover criminal cases, as he warned elders from presiding over criminal cases such as murder, defilement and gender-based violence.
The Maslaha, a traditional dispute-resolution system, is an alternative Justice mechanism prevalent in many parts of Garissa, Wajir and Mandera.
The Judge noted that while the judiciary was keen to encourage the use of Alternative Justice Systems as outlined in the 2010 Constitution, the AJS jurisdiction did not cover criminal cases and that the decisions they make outside their jurisdiction would not be acceptable in law.
Speaking in Garissa on Tuesday, ring the launch of the 16 Days of Activism to end Gender-Based Violence, he emphasized that cultural practices that contravene or obstruct the enforcement of the criminal law will not be tolerated.
“We encourage Maslaha as a form of AJS but there is a category of cases they are prohibited from presiding over. Such cases are sexual-related offenses, murder cases, matters of terrorism, and others,” he said. “We want to urge the elders who sit in the maslaha sittings to avoid encouraging reconciliation on matters related to GBV. They should not touch those cases at all,” he added.
The Judge observed that Maslaha was being used to protect and shield perpetrators of criminal activities, and this has resulted in the withdrawal of cases filed in court. “We discourage them from dealing in such cases and anything they decide would not be binding. If an offender pays something in the Maslah, they will still be arrested and charged in the courts of law,” he warned.
Judge Onyiego called for a whole stakeholders approach to sensitize the communities against harmful practices and report cases in real time and arrest perpetrators.
Maslaha is rooted in traditional conflict resolution frameworks where it is intended to restore harmony in community disputes. However, in sexual and gender based cases, it is increasingly being seen as a tool that protects perpetrators from accountability.