Abstract

The Somali community that inhabits northern Kenya have over the years solved their conflicts through alternative dispute resolution mechanisms that have been key in helping members of these community live together in harmony . However, modernity has made it difficult for the continual use of this method despite its traditional effectiveness. This study there aimed at shading light on the effective ness of TSJBCM in a world where the formal modes of dispute resolution such as courts have taken over. The study was conducted in Dujis constituency in Garissa county where the respondents were mainly ethnic Somalis. The results of the study indicated that TSJBCM had proved effective especially in cases where the formal modes of conflict resolution had failed.

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1.0 Introduction

Kenyan Somalis inhabit the arid and semi-arid region of northeastern Kenya. The area does not receive adequate precipitation and as such rain fed agriculture cannot be practiced. The climate conditions thus has compelled residents to practice nomadic pastoralism is the main economic activity and source of livelihood in the region (Eberlee, 1999). The nature of the arid and semi-arid areas is such that the resources are limited exposing the region to the vagaries of nature including prolonged droughts and occasional floods creating competition for the scarce resources.

Within the Somali inhabited region of Kenya, conflicts over natural resources take place at a variety of levels from households to local, regional, societal, and global scales. The intensity of conflict may also vary enormously - from confusion and frustration among members of a community over poorly communicated development policies to violent clashes between groups over resource ownership rights and responsibilities (Eberlee, 1999). Some scholars have noted that the situation of conflict in Northern Kenya is heightened by the presence of international and regional boundaries that have affected nomadic pastoralism through creation of administrative units, which split communities that once lived together (Wanyama & Wanjigi, 2002). It must be appreciated that the international boundaries as they are today were curved out by colonizing powers whose main agenda was to create administrative units geared towards meeting their socio-political and economic interests that had little to do with the ethnic communities that lay therein (Jeffery, 2011). Consequently, by the end of colonialism in Africa the Somali nation was placed in among other nations, the Republic of Somalia, Kenya, Ethiopia and Djibouti.

The post-colonial experience in many African countries did

not deliver the peace and prosperity that was the promise of the struggle for independence (Huyse, 2008). Instead the newly independent African states were marred with a myriad of challenges including but not limited to civil war, the ascendancy into power of oppressive and non-democratic leaders (Alie, 2008). Although independent Kenya was not rocked with serious civil breakdown, she bore the brunt of the spillover conflicts from neighboring countries (Maigua, 012). The main challenge to the territorial integrity of Kenya was occasioned by the clamor by the Somali nation of Kenya to secede and be part of the republic of Somalia, an outcome that was not achieved. The Republic of Somalia later succumbed to political instability that led up to the disintegration of the state, a phenomenon that persists to date.

It has been observed that the failed Somalia state coupled with the still delicate state of civil war in southern Sudan have resulted in proliferation of thousands of dangerous arms into the hands of tribal chiefs, warlords and ordinary people in the Northern parts of Kenya (Kamenju, et.al., 2003). This has led to intra-ethnic, inter-ethnic and sometimes cross border conflicts. Efforts to resolve these conflicts have not been successive. Various studies have shown that sustained local, state and regional efforts to resolve inter-community conflicts in northern Kenya and across the borders have not succeeded (NCCK, SNV, & SARDEP, 2001).

The inability of these efforts to contain and resolve the conflicts perhaps infers to a failure to identify a conflict-resolution framework that would satisfy the traditional (though changing) socio-political and cultural dynamics of the parties in conflict in the region (Jeong,2008). Mkangi (1997) notes that indigenous conflict management and resolution mechanisms use local actors and traditional community based judicial and legal decision-making mechanisms to manage and resolve conflicts within or between communities. Perhaps these remain the viable path to transforming the ever elusive conflict in region.

By the late 1990s, the security and governance climate in much of Northern Kenya had improved dramatically. Violent crime, including livestock rustling, was rare; towns were safe; regional commerce flowed with minimal risk of banditry; communal clashes were prevented or quickly managed; and cross-border diplomatic initiatives with communities on the Somali side of the border successfully reduced spillover of lawlessness and conflict into northern Kenya. A major clash between the Garre and Marehan clans at the border town of El-wak in 2004 constituted a troubling setback in this trend, but it was the exception rather than the rule. Overall, the region was not only much safer than before, it was arguably safer than many areas in Kenya. According to the Afro-Barometer survey of 211/2013, 2.2 % of residents in the region felt unsafe walking around their neighborhood against the national average of 4.9% (AfroBarometer, 2015).

The main threat to peace in Northern Kenya today is from terrorist activity. Much of this comes from Al-Shabaab militants based in Somalia with support from other terrorist organizations spread across the globe (HRW, 2008). The terrorists appear determined to stir an inter-religious war in Kenya as they profess a version of Islam that views non-Muslims as unworthy beings and have mostly targeted Christians. However, despite a wave of attacks that have killed many Christians including the massacre of passengers travelling to Nairobi from Mandera and an attack in Garissa University College that killed over one hundred Christian students, no inter-religious war has broken out.

Save for the external threat posed by terrorist organizations, Northern Kenya remained relatively peaceful not because the government used its monopoly for coercive force. The people of the region have come to appreciate the dividends of peace especially when they live with their relatives from Somalia who have had to flee their country due to insecurity.

By and large, the Somali nation of Kenya has over the years relied on traditional Somali based justice mechanisms to solve ensuing conflicts since the judiciary’s presence in Northern Kenya has been and is still very minimal. Until recently, the area only had three magistrate courts based in Garissa, Mandera and Wajir. Serious crime and civil disputes that need the jurisdiction of the High Court were determined elsewhere. The relative peace that Northern Kenya has enjoyed in the recent past is because of the use of the xeer, a traditional Somali justice based conflict resolution mechanism (TSJBCM).

2.0 Theoretical Framework

The study was underpinded by the Unified theory. The main denominator of theories of justice is to transform a conflict in a manner that the victims is accorded justice, the perpetrator is punished and the chances of the offence recurring are deterred. Both the retributive and restorative theories seek to explain trends and debates of justice in contemporary societies, where courts are the main arbiters of conflict. Neither perfectly fits a traditional justice based model like xeer, practiced in Garissa County, Kenya. Thus, there is need to use a theory that will explain the effectiveness and legitimacy of traditional justice based mechanisms, and the unified theory fits the bill.

Hence, Jacob Weinrib’s ‘Unified Theory’ will guide the study. The main postulation of the theory is that individuals should only obey a public authority that acts justly. The legitimacy of the public authority to enforce laws emanates from the justness of the enforceable law as opposed to its lawfulness. Weinrib argues that that some public authority’s action maybe lawful but that does not necessarily mean it is just, and thus there is no obligation to obey such a law.

The nature of justice is that it establishes public authorities and legal systems that have moral consistencies within the laws and those that they govern. Such a law should exercise authority over all persons so long as it does not interfere with the independence of the ruled who in turn should obey the rule because it is just. On the one hand the theory argues; private individuals are entitled to just governance, whereas on the other hand public authorities have a duty to govern justly. Injustice accrues when public authorities fail to reconcile the validity of their laws with the freedom of the governed, thus committing an injustice.

The fact that many aggrieved parties in the study area refer their grievances to xeer for determination irrespective of the presence of formal legal government mechanisms may imply an inconsistency between the government’s values and the freedom of choice of the population. Maybe the people fail to recognize state authority because they deem it unjust. However, there is a possibility of reconciling the divergent positions held by the people and the government and arriving at a formula that locals will consider just and thus be obliged to obey. Although such an arrangement is within the meaning of the Constitutional principle of Alternative Dispute Resolution, it should be approached cautiously as it risks diluting the national authority in a country that has 42 divergent groups.

3.0 Methodology

The study used Dujis constituency as the case study and adopted descriptive statistics approach in collecting data from different households within the area. The strength of case study lies in its ability to collect both quantitative and qualitative data and covers a very limited geographical region or number of respondents who provide the required detailed and representative data (Zainal, 2007). By using, a descriptive case study technique, an accurate profile of persons, events, or account of characteristics, for instance behavior, opinions, and knowledge of particular individual, situation or group are captured (Kothari, 2009). The study area was Garissa Township Sub-County, Garissa County. It is one of the six Sub-Counties in Garissa County. The study involved surveys of the existing indigenous conflict resolution mechanisms, conduct interviews with xeer elders, administrators, police officers, judicial officers men and women. The researcher also held plenary discussions within the study community. The experiences from various respondents provided divergent perspectives thus played a significant and leading role in the fulfillment of the study. Data was collected through questionnaires, interviews and Focus Group Discussions. Data analysis was done through SPSS, qualitative data was transcribed and analyses through thematic techniques. Data was presented inform of graphs, charts narrative and narrative reports.

4.0 Study Findings and Discussions

4.1 Disputes brought before administrators for adjudication and the outcomes

A total of thirty administrators were involved in the study and from the information gathered, rape was the most prominent incident that they dealt with. Assault and land disputes also recorded a fifty percent preference with theft recording a forty seven percent response. Burglary on the other hand accounted for slightly over one quarter of the cases reported to administrators whereas property rights cases reported stood at three percent. No homicide cases were reported to the police.

Figure 1. Figure 1: Cases reported to Administrators

Source: Field data, 2017

Of the cases reported, only theft, burglary and rape were concluded by administrators with an over fifty percent completion rate. That meant that even among the categories of cases reported concluded, a section of them were unresolved whereas some of the cases reported to administrators were not resolved at all. This finding was grounded on the fact that administrators reported that they are often approached to drop a matter brought to their attention so that the same can be arbitrated by the TSJBCM. Once approached half of the administrators acknowledged that they would either transfer the matter to TSJBCM or invite the latter for a joint determination. Indeed administrators averred that sixty seven percent of the cases that are reported to them but not fully resolved are conclusively handled by the TSJBCM with the remainder getting adjudicated by the courts.

Further, to assess how effective Traditional Somali Justice based dispute resolution mechanisms were, eighty five (85) Traditional Peace Practitioners were interviewed. Out of the total respondents, a paltry seven (7) were women underscoring the prominence that men have over the process. Among the questions the practitioners were were the number of cases that they had handled in the year 2015, who the parties to the cases were, the type of wrong that was committed, how they got to know of the conflict, the number of years they have worked in conflict transformation and the most memorable case that they had handled over their practice. They were also asked about the outcome of the cases, the sanctions that were imposed, and if fines were imposed what became of the proceeds of the fines. Further, the elders were asked whether parties to the dispute were satisfied with the outcome of their determination. Another question paused was whether the practitioners were aware of matters that were reported to them and other conflict transformation forums. Responses to these questions are analyzed hereunder.

All manner of cases were brought before TSJBCM for adjudication. Assault, theft and murder were the incidents that were most reported to this conflict transformation mechanism. Sexual violence, conflicts related to water points and market place conflicts were moderately reported. Of the disputes reported, land conflicts were the least. The fact that land is communally owned with each person enjoying equal access to the facility would explain why land disputes are few.

4.2 Cases reported to administrators but Resolved Elsewhere

The study sought to establish whether cases that had been reported to aministartirs where resolved elsewhere. The findings in Figure 4.2 revealed that

66/7% of cases that were not resolved by admintrators actually got their soultions from TSJBCM while the remaining 33.3% were resolved in courts. This was a clear demonstration of the effectiveness of the TSJBCM system among the memebers of the Somalin community as well as a demosntarion of the success that can be given by Alternative dispute resolution mechanisms as sigposted by Agatha (2016) who revled that ADRs can be key in ensuring communal conflicts are resolved amicably where government institutions fail .

Figure 3. Figure 3: Cases reported to administrators but resolved elsewhere.

Source: Field data, 2017

During interviews Administrators also acknowledged that often matters would be simultaneously before the Courts as well as before TSJBCM. An interesting observation was that even if a matter was concluded at the courts and sentence passed, nine out of ten cases determined by the courts were revisited by TSJCM and the matter was only considered complete once a form of fine or remorse had been expressed by representatives of the clan of the offender. The administers reiterated that the individuals often committed a wrong against other individuals, culpability for the wrong was seen as a communal wrong whose remedy would only be achieved when the offending clan sought and received closure with the aggrieved clan.

4.3 Disputes brought before judicial officers for adjudication and resultant outcomes

Among judicial officers, theft and burglary were the highest reported incidents, whereas assault, rape and homicide were rarely reported. Incidentally there was a high success rate of completion of the highest

cases recorded showing a ninety percent conclusion rate. It can thus be inferred that the community are comfortable with courts dealing with theft and burglary. Reasons for this level of confidence would be a subject of further research.

Table 4.1 Offences and Where they were Resport

Source: Field data, 2017Offence% respondents who would report conflict to the Police% respondents who would report conflict the Chief & government administrators % respondents who would report conflict to TSJBCM Practitioners Male Female Male Female Male Female Assault78.876.317.719.014.319.0Theft69.472.824.223.411.812.6Burglary74.373.78.39.65.39.1Rape52.256.516.922.914.717.0Murder16.718.311.915.253.1 56.1Land dispute52.260.156.661.331.833.6Marriage disputes52.753.925.620.947.346.1Desire for divorce71.771.210.814.328.328.8Offence% respondents who would report conflict to the Police% respondents who would report conflict the Chief & government administrators % respondents who would report conflict to TSJBCM Practitioners Male Female Male Female Male Female Assault78.876.317.719.014.319.0Theft69.472.824.223.411.812.6Burglary74.373.78.39.65.39.1Rape52.256.516.922.914.717.0Murder16.718.311.915.253.1 56.1Land dispute52.260.156.661.331.833.6Marriage disputes52.753.925.620.947.346.1Desire for divorce71.771.210.814.328.328.8

When asked what became of cases that were before the courts but were never resolved at the level, judicial officers averred that they often received requests to drop matters before them for ADR a request that they out rightly rejected. However they noted that they were aware that TSBCM had seized matters before the courts and once the latter concluded disputes, cases before the courts would collapse since victims and witnesses failed or out rightly gave non-incriminating testimony against the accused.

Judicial officers thus decried the negative influence that TSJBCM played in the collapse of cases before the courts although they felt that the system was well placed to deal with petty offences.

Figure 4. Figure 4: Disputes brought before the Judiciary

Source: Field data, 2017

Just like the matters reported to the courts, theft and burglary were the common disputes that were reported to police stations. Many of these cases are not resolved at the police station as not more than two percent of the cases are concluded at the stations. This is understandable since the main role of police officers is to arrest suspects conduct investigations and present suspects to a court of law where matters are adjudicated by the recognized legal state practitioners

4.4 Preferred arbiters that Men and Women were willing to refer different types of conflicts.

A number of reasons for preferring to report to a certain group of arbiters were advanced by men and women. In relation to assault, the main reason why respondents indicated that they would report an assault case to TSJBCM was their view that there was a high likelihood that offenders would be fined and victims would directly benefit from the fines (50% men and 46.9% women). Equally 26.5% of the men respondents and 37.5% of the females argued assault cases where within the realm of cases that could competently be handled by TSJBCM.

Knowledge of dealing with theft matters and the likelihood of imposing the correct punishment were the main reasons that men and women averred would inform their decision to report theft to the TSJBCM practitioners. 50% women were of the view that TSJBCM would impose the appropriate punishment for theft, whereas 34% thought that TSJBCM possessed the requisite skills to deal with the matter. On the other hand, 44.4% of the male respondents were confident of TSJBCM possessing the right skills to deal with theft matters while 33.3% were confident that the right sanction would be applied to theft suspects. 3.7% of the men alluded that TSJBCM would quickly dispense of theft cases and an equal percentage felt that that TSJBCM enjoyed respect from the community and thus, they were likely to report theft cases to them. No such responses were given by women. Though with 11% and below response rate, both sexes noted that they would report theft cases to TSJBCM since it was easier for the police to apprehend theft suspects if they were reported by TSJBCM.

The offence of burglary was also prevalent within the research area. 8.0% of men indicated that they would report the matter to TSJBCM whereas 9.6 of the women would. The most prominent reason why 37.5% of men and 84.2% of women would report a burglary offence to the TSJBCM was the likelihood that matter would be adjudicated fairly and justly. Other reasons included chances that the burglary incidents would not only be reduced in the long run but also that the threat of offenders being arrested was high if they did not subject themselves to TSJBCM.

In regards to rape, the primary reason why over 50% of the population (56.7% male, 57.7% women) said they would report the matter to TSJBCM was the possibility that fair fine would be imposed on the offender. Averagely 15% of the study group noted that TSJBCM was likely to result into a peaceful resolution of a rape offence whereas 26% of the women thought that rape was within the mandate of TSJBCM. On the other hand there was a variance between men (6.7%) and women (26.9%) on the threat of rape offenders being arrested if they did not subject themselves to TSJBCM. Since many offenders dreaded to encounter the police, they would easily subject themselves to TSJBCM for arbitration.

Murder was an offence that over 50% of the population would report to the TSJBCM. The primary reason why an average of 36% of the population preferred murder cases to be handled by TSJBCM to other conflict transformation mechanisms was their believe that it was TSJBCM that had the capacity to follow up on blood compensation money. It was widely acknowledged that murder cases where the clan of a murderer had paid ‘blood money’’ (money is paid to the clan of a person killed by the clan of the perpetrator of the homicide. This is a common way in which murder disputes are resolved in the research area) were considered closed and both parties satisfied. In an event that such money was not paid, the clan of the deceased would kill any member from the clan of the offender as revenge, and therefore there was always a consorted effort to deal with murder cases through the TSJBCM. An average of 30% of the respondents averred that TSJBCM has the formula that would calculate the fine to be imposed in murder cases whereas 25% were convinced that TSJBCM would impose the most commensurate penalty.

Data revealed that 45% of the respondents believed that land disputes should be handled by TSJBCM with 25% noting that the group has a good understanding of local land matters and thus are likely to correctly arbitrate on any arising disputes. 10% of the respondents noted that land disputes handled by TSJBCM were likely to be dealt with in a fair and just manner whereas 20% believed that TSJBCM would transform land disputes peacefully. It is only 1.5% of the respondents that felt that land disputes handled by TSJBCM are cheaper and practitioners are easily accessible to the public.

Over two thirds of the respondents reported that they would entrust marriage disputes to TSJBCM because the latter possessed local knowledge of marriage practices and disputes and were therefore in a better position to arbitrate marriage discords. A further 15% felt that marriage disputes resolved through TSJBCM would result in reconciliation and was therefore a preferred option of dealing with marriage turmoil’s whereas 12% believed that TSJBCM would safeguard the confidentiality of a marriage dispute. Finally 5% of the respondents were of the view that the cost of transforming a marriage dispute through TSJBCM was significantly lower than other methods.

When the respondents were probed they would turn to TSJBCM if they considered permanently severing their marriage, sixty eight percent responded that determining divorce pleadings was one of the major functions of TSJBCM. Ten percent of the respondents felt that protagonists in divorce proceedings before TSJBCM were likely to be reconciled, whereas fifteen percent reiterated that TSJBCM had the power to dissolve marriages. Seven and half percent felt that parties to divorce proceedings would get a fair hearing and one and half percent felt that it was quicker to resolve a divorce dispute before TSJBCM.

4.5 Community’s perception on the role played by the police in conflict transformation

The police play a significant role in handling criminal matters the world over and Kenya is no exception. In Garissa County, the Kenya National Police Service has deployed police officers to most administrative units. Thus the police who are deployed in Garissa like any part of the country play a significant role in the criminal justice system. They are in charge of investigating crime, apprehending offenders and presenting them to a court of law. In Garissa, more often than not, a crime may be reported to the police alone or to other conflict transformation mechanisms including but not limited to TSJBCM the courts and government administrators. It was therefore important for the research to investigate how the community perceived the role of the police in the criminal justice system and how such a role fits within the general framework of TSJBCM.

In the quest to investigate the perception alluded above, respondents were asked a series of questions. The research sought to discover if respondents were aware of anyone who had been arrested by the police and if the answer was to the affirmative, what was the outcome of the arrest. Respondents were also asked how fair or unfair they rated the police conflict transformation procedures and what in their opinion was the role of the police, administrators and TSJBCM in conflict transformation.

Data showed that seventy percent of the respondents were aware of disputes that had been handled by police officers out of which eighty percent expressed confidence in the process. Of all the matters that were before the police, on average across the sexes, twenty three percent led to arrests, forty three percent across resulted in jail terms, nine percent were set fined, six percent were set free, whereas slightly under one percent of the cases were withdrawn by the elders. Respondents also alluded that one percent were corruptly releases and fifteen percent were dealt by other ways

Conclusion of the Study

TSJBCM mechanisms are an important attribute of conflict management in Garissa County. Spanning the pre-colonial period when it was the only avenue of conflict transformation all through to the post-independence era, the mechanisms continues to be center stage in solving conflicts within the research area. Garissa perfected the art of TSJBCM by default so to speak since the region was part of the North Eastern Frontier Districts that waged an insurgency war against the government of Kenya soon after independence seeking to secede and join the republic of Somalia.The insurgency triggered a strong response from the Kenyan state leading to counter-rebellion conflict dubbed the Shifta wars. Consequently, most of the efforts and resources of the government of Kenya were used to subdue the belligerents who wanted to divide the post-independency boundary and very little attention was focused on development leave alone establishing the Court system in the region. As a result, the county and indeed many parts of the frontier districts depended on traditional justice mechanisms for conflict transformation. The above situation notwithstanding, a pacified North-Eastern Region has seen successive regimes in Kenya focus on the area for economic development projects and the establishment of formal conflict management mechanisms including but not limited to posting administrators, police officers and judicial officers in the region. Gradually the region is being integrated into the Kenyan mainstream of doing things and that includes utilizing the mechanisms of solving conflicts, visibly the use of administrators, the police and judicial officers. It is important to note however that TSJBCM still exist alongside the emerging formal conflict transformation structures.

Recommenadtion of the Study

The study recommends that TSJBCM in Garissa County ought to be deepened, its challenges addressed and various stakeholders like the County and National Governments be involved in build synergies of the mechanism and link it with mainstream conflict transformation approaches.