The impact of informal justice systems on access to justice for marginalised communities in Patte Island, Lamu county, Kenya

Abstract

This study focused on the impact of informal justice systems on access to justice for marginalised communities in Patte Island, Lamu County, Kenya. It was necessitated by the need to examine the existing informal justice systems used on Patte Island, evaluate their effectiveness in resolving disputes, and analyse their perceptions compared to formal justice systems. Although previous studies have examined informal justice systems, this study is unique in its focus on culturally resonant, context-specific, and often primary justice access points where formal justice systems have failed. It presents both the positive aspects and the significant risks associated with informal justice systems. It bridges the gap between expectations and lived realities, navigating the complex interplay between informal and formal justice systems. The study adopted a mixed-methods research design combining a qualitative case study and quantitative surveys anchored on legal pluralism theory and the access to justice framework theory. The target population was the residents of Patte Island aged 18 years and above. The respondents were police officers, prosecutors and chiefs who were purposely selected. Other respondents were randomly selected, and they included religious leaders, community elders, community paralegals, and residents of Patte Island. The total sample size was ninety (90) respondents. Data was collected through interviews, focused group discussions, structured surveys and observations. The instruments used for the study were interview schedules and a standardised questionnaire. Quantitative data was analysed using the Statistical Package for Social Sciences (SPSS). In contrast, qualitative data was analysed by interpreting responses and aligning them to form identifiable themes and actual narratives. Findings indicated that the existing informal justice systems were chiefs, community elders, religious leaders, community paralegals, and the Bajuni council of elders. These systems relied heavily on Sharia law and local customs to solve disputes and were found to be effective due to accessibility, affordability, and familiarity. Despite the challenges of human rights violations and male dominance, the informal systems were filling a gap left by the absence of a formal justice system. The findings implied that informal justice systems were the primary and most embraced means of accessing justice for the residents of Patte Island. The study suggests that informal justice actors should be trained and given more power in professional mediation, human rights, and national laws, while still respecting the values and needs of local informal justice systems. It also recommends strengthening the collaborative approach where informal and formal systems complement each other.