Examining the Role of Informal Justice Systems in Child Rights Protection in Kenya: A Case Study of the Kipsigis

Abstract

This research investigates the extent to which informal justice systems protect and violate children rights and well-being. It involves an empirical study of the Kipsigis community in Kenya. The study revealed how informal and formal justice systems interact to address child abuse in this community and the location of Kipsigis children as both subjects and objects of child abuse. Although formal child protection systems at both domestic and international level consider informal justice systems to be inconsistent with the interest and well-being of the child, many community members among grassroots communities rely on them as the main dispute resolution platforms. Children officers, and other state agents, in recognizing the inadequacy of formal law to resolve some child-related disputes, rely on customary law to resolve the same. The study revealed that the best interest of the child under Kipsigis customary law is guaranteed through; promotion of a harmonious co-existence between the child and the clan/family members; prioritisation of the long-term (rather than short-term) interest of the child; adherence to the customary duties and obligation by the parents; and a contextual understanding of the best interest of the child in which the needs of each child are considered to be different and therefore warranting a child-specific approach. It also established that the ‘wholesale’ condemnation of child labour by international and domestic child rights regimes is counterproductive to the child well-being because it ignores the social construction of child labour and the role that some forms of ‘child labour’ play in integrating the child in the family and guaranteeing other basic services, such as education. The study also observed that child well-being at the grassroots level is guaranteed through the language of care and ordinary virtues rather than rights. Finally, the study revealed the existence of cross-cultural dialogue platforms that seek to reconcile the different conceptions of child well-being at the community level.