NCJ Number
61174
Date Published
1979
Length
30 pages
Annotation
THIS ARTICLE EXAMINES THE EFFICACY OF CUSTOMARY LAW USED BY THE KIPSIGIS TRIBE OF SOUTHWESTERN KENYA DURING RECENT CHANGING SOCIOECONOMIC CONDITIONS.
Abstract
DATA ON 10 KENYAN TRIBES' USE OF NATIONAL COURTS INDICATE THAT THE KIPSIGIS, A TRIBE OF 280,000, SUCCEED IN RESOLVING MOST OF THEIR DISPUTES AT THE LOCAL LEVEL, USING TRADITIONAL REMEDIES, AND THAT THEIR SYSTEM HAS CONTINUED TO FUNCTION EFFECTIVELY EVEN DURING CHANGING NATIONAL CONDITIONS. THEIR SYSTEM OF LAW AND JUSTICE HAS THE FOLLOWING ELEMENTS: NO DISTINCTION BETWEEN CIVIL AND CRIMINAL LAW, INDIVIDUAL RATHER THAN COMMUNITY PROSECUTION OF WRONGS, AND USE OF THE KOKWET, A GROUP OF SENIOR MALE COMMUNITY MEMBERS, TO RESOLVE DISPUTED THROUGH FORMAL ARBITRATION. TESTIMONY IS NOT TAKEN UNDER OATH. HOWEVER, BECAUSE OF SOCIAL RELATIONSHIPS BETWEEN DISPUTANTS AND THE JUDICIAL UNITS, IT IS INVARIABLY KNOWN WHEN FALSE TESTIMONY IS BEING GIVEN. NORMATIVE PRECEDENTS ARE USED IN DECISIONMAKING BY THE KOKWET. BOTH PARTIES MUST ACCEPT THE DECISION AND AFTERWARD SHARE EQUALLY THE COST OF PROVIDING BEER TO THE KOKWET. MOST DISPUTES INVOLVE CATTLE, LAND OR MONEY. THE MAGISTRATE'S COURT, ORGANIZED MORE FORMALLY ALONG WESTERN PRINCIPLES, HAS BEEN USED MAINLY AS A FORM OF APPEALS COURT FOR KOKWET DECISIONS; IT HAS LARGELY UPHELD THE CUSTOMARY LAW. DEVELOPMENT OF LAND ENCLOSURE AND LAND LAW HAS CREATED A GROWING PROBLEM OF LAND DISPUTES WHICH THE KOKWET HAS HANDLED AS EFFICIENTLY AS OTHER CASES. FIELD STUDIES IN THREE KIPSIGIS COMMUNITIES INDICATE THAT THE KOKWET PERSISTS BECAUSE OF ITS ADAPTABILITY TO CHANGING CONDITIONS AND ITS ABILITY TO GENERATE RULES FROM INDIGENOUS PRINCIPLES. ITS DISTINCTIVE FEATURES MAY NOT MAKE IT APPLICABLE ELSEWHERE, BUT IT SHOULD BE MAINTAINED AS LONG AS IT CONTINUES TO PROVIDE EFFECTIVE ACCESS TO JUSTICE FOR ALL. FOOTNOTES, TABLES, AND A GRAPH ARE INCLUDED. (CFW)