Applicability of Alternative Dispute Resolution in Capital Offences in Kenya

Abstract

The use of alternative dispute resolution (ADR) in criminal cases presents an opportunity for reform in the criminal justice in Kenya. This article analyses the decision of the court in Republic V Mohamed Abdow Mohamed, highlighting the potential of ADR in criminal cases. Article 159 of the constitution of Kenya 2010 recognizes ADR as one of the valid ways of resolving a dispute. The aforementioned article does not prohibit the use of ADR in capital offenses expressly despite section 176 of Criminal Procedure Code only permitting the use of ADR in misdemeanors. This article argues for the extension of its application to capital offenses. The author uses comparative practices like the Rwandan Gacaca courts which successfully used community-based approaches to solve severe post genocide offenses, some global practices such as plea bargaining in United States and the restorative justice programs of the Juddiya system of Sudan. It concludes by demonstrating that integration of ADR in capital offenses can lead to societal healing, fostering the reconciliation, focus on victims and affected families, and strengthens the overall efficiency of the Kenya's criminal justice system.

Keywords: Alternative Dispute Resolution, Criminal Cases, Felonies