chapter  9
20 Pages

Peace versus justice in northern Kenya: Dialectics of state and community laws


Establishing the rule of law in post-conflict environments often faces a dilemma, namely whether prosecution of serious crimes is at odds with calming passions after fighting has stopped. This problem has been frequently debated in the field of transitional justice.2 A similar, if less obvious, challenge can arise in the context of developing countries, where the formal justice system can be at odds with conflict management initiatives. Often, due to inaccessibility or incompatibility with local socio-cultural

values, official justice institutions in developing countries do not fully pervade society. The notion of “justice” in the courts can be at variance with what local communities consider as “just”. The formal system therefore often proves incapable of re-establishing peaceful relations in communities after conflict. In response, practitioners and policy makers increasingly turn to the conflict management and peace-building fields, which can be more flexible and responsive to local values and realities, and consequentially have a higher rate of success in settling disputes and establishing lasting peace. Though there is the potential for both to be mutually informative, in practice, conflict management initiatives are often severed from justice sector work. Policy makers and practitioners are confronted with a choice between applying official justice, which may be inefficient in settling disputes, or resorting to conflict management techniques, which can run counter to the official law. Current policy efforts and practices in the arid lands of Kenya illustrate this

dilemma. Given the frequently occurring droughts, disputes over pasture and water, and cattle rustling, are common in this area, which is inhabited by pastoralist communities. Official justice institutions have proven too weak for, or ill-suited to, preventing or resolving such conflicts. To address prevailing tensions, local ad hoc peace initiatives have developed, which include local stakeholders and are based on the value systems of the local communities. These initiatives appear to be successful in preventing incessant conflicts and safeguarding communal property, such as grazing land and water.