BY SAM ALFAN.
Chief Justice Martha Koome has challenged the justice sector to protect the voiceless, the weak and the vulnerable in society.
Justice Koome said the justice system must be responsive and alive to the realities of the people and offer tangible and substantive justice that speaks to their concerns, vulnerabilities and pains.
According to the CJ, the justice sector must come up with and promote initiatives and interventions that are aimed at responding to the people’s social needs, including their plight and cries for justice.
Justice Koome, who was speaking when she opened the National Alternative Justice System (AJS) conference, said the mission of the justice system is to give life to the Constitution and in the process, generate social transformations that reduce the gap between constitutional promises and real life.
“We are expected to embrace a responsive role to respond promptly to the ordinary citizen’s quest for justice by providing a solution to their claims of injustice. It also means that access to justice should be easy and cheap enough to be afforded by even resource-poor individuals or groups,” she said.
She said all persons, especially the marginalised and vulnerable in society, expect that the doors of justice will be opened and remain ajar when they seek a solution to their grievance and protection of the law.
“I have always believed that all of us are Agents of justice. What I mean by this is that all of us, as individuals and within our communities, have the capability of resolving any disputes or conflicts that we have between ourselves in our communities. It means that we should not see courts as the “sole” institutions or places where justice resides”, she added.
The Chief Justice said the idea is nothing new but reflects the reality that our communities going all the way to pre-colonial times to contemporary times have always had indigenous systems of justice that operate outside the strictures of state institutions.
“Indeed, most of our communities emphasised social harmony as the overriding ideology of social organisation. It is pursuant to this that the communitarian ethos of “Utu” or “Ubuntu” as it is called in Southern Africa is observed in our communities”, she said.
She added that the foundation of the “Utu” philosophy is basically that all humans are symbiotic. We are all human simply because we all belong to, participate in, and have stakes in our respective human societies. In societies upholding Utu, maintaining constructive social relations is a communal undertaking to which every person is committed. “Thus, we are called upon to be Agents of justice and resolution of societal conflicts in our communities”.
It is in appreciation of this reality that the 2010 Constitution envisages a broad dispute resolution system. Article 159(2) of the Constitution points us to the possibility of open-ended pursuit of justice beyond the confines of state institutions and It does this by commanding the Judiciary to promote the use of alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
“These alternative forms of dispute resolution allow for the resolution of disputes outside the courts. By commanding us to embrace the multi-door institutional approach to the pursuit of justice, the Constitution is alive to the need for efficient and timely delivery of justice”, said CJ Koome.
The multi-door approach to justice has the potential of deepening access to justice. The desirability and utility of this approach is that it has the potential to address the concerns around the cost-effectiveness and speed of delivery of justice.
She said by channeling a significant number of disputes for resolution outside the courts, the justice system will avoid the current problem of courts that are swamped and paralysed with disputes that might be better resolved elsewhere. She pointed out that family disputes are better resolved in a non-adversarial process.
“Mediation and reconciliation processes, including those conducted within our traditional justice mechanisms, would be ideal for resolution of family disputes given that they are collaborative processes that foster long-term relationships. In contrast, court litigation takes an adversarial approach therefore tends to work against maintaining social harmony,” she added.
Koome said the ‘Social Transformation through Access to Justice’ vision of the Judiciary takes seriously and embraces the constitutional command that the Judiciary should dig up our indigenous systems of justice by promoting the use of traditional dispute resolution mechanisms.
“We believe that the AJS offers an appropriate and effective system of justice to our people given that our communities have used elements of facilitated consensus-building in dispute and conflict resolution outside state structures for centuries”, she added