UNIVERSITY OF NAIROBI

COLLEGE OF HUMANITIES AND SOCIAL SCIENCE FACULTY OF ARTS

LAW AND SOCIETY CSO 410

kasoo

PRESENTED TO: DR. MTSOTSO

ASSIGNMENT
MERU DISPUTE RESOLUTION MECHANISM BETWEEN DIFFERENT PARTIES.

JULY, 2012

Table of Contents
Introduction ................................................................................................................................................... 3 Whats the name of the dispute? ................................................................................................................... 4 Membership (who are the members) ............................................................................................................ 4 Qualification of the membership................................................................................................................... 5 Gender composition ...................................................................................................................................... 5 Procedure for reporting dispute..................................................................................................................... 6 Cost for reporting disputes ............................................................................................................................ 7 Different types of offences reported and the penalties for each and penalty for failing to comply with the ruling ............................................................................................................................................................. 7 Family Disputes ............................................................................................................................................ 8 Land Ownership and Land Use..................................................................................................................... 8 Adultery, Fornication and Rape .................................................................................................................... 9 Inter-ethnic Conflicts .................................................................................................................................. 10 References ................................................................................................................................................... 11

Introduction Dispute resolution mechanism is a technique that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with or without the help of a third party. Despite historic resistance to alternative dispute resolution by many popular parties and their advocates, alternative dispute resolution has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to alternative dispute resolution of some type, usually mediation, reconciliation, traditional dispute resolution etc before permitting the parties' cases to be tried The rising popularity of alternative dispute resolution can be explained by the increasing caseload of traditional courts, the perception that alternative dispute resolution imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. In Chapter Ten of Kenya constitution on Judiciary Article 159, 2(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3). Clause three (3) say that, traditional dispute resolution mechanisms shall not be used in a way that Contravenes the Bill of Rights, is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law (The Kenya constitution, 2010). Mediation, as used in law, is a form of alternative dispute resolution a way of resolving disputes between two or more parties with concrete effects (Rigby and Andrew 2001). Arbitration a form of alternative dispute resolution is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. Reconciliation is the process of addressing conflictual and fractured relationships and this includes a range of different activities.

Traditional conflict resolution mechanisms in Africa are generally closely bound with sociopolitical and economic realities of the lifestyles of the communities. The customary courts like Njuri Ncheke system rely on goodwill of the society to adhere to its ruling. As a part of African
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socio-political setting, the major conflict resolution mechanism in the two conflicting partys areas is also found to be through indigenous system. Whats the name of the dispute? In Meru community, traditional conflict resolution mechanisms are widely known for Njuri Ncheke who are used mostly than court process in resolving community disputes. Disputes are often sharpened or even triggered by glaring social, political and economic inequalities, explosive conditions that are exacerbated by social conflict, resource depletion, and environmental degradation (Charlton, 2000). This may be accompanied by weak, nonrepresentative governance at the local level that is increasingly seen as illegitimate and incapable of attending to peoples needs. As people turn to ethnic, and other groupsbased organizations for assistance and protection, relations with other groups often deteriorate. On a national level, the Njuri-Ncheke exercised their power fully, but the daily running of community affairs, decisions about war and other matters were decided by two alternating political parties (very similar to the alternations or moieties in Turkana, Maasai, Kikuyu and Embu culture, for example), called Kiruka and Ntiba. These were not elected, but consisted each of one half of the elders in the society, who would exchange power at periodic intervals (during which the next age-set of elders would be created). Membership (who are the members) Most members are old elders of the community whom are perceived to be pure and have leadership quality and married. The elders of the tribe were divided into three ranks: the first was made up of the Areki (sing Mwareki), which comprised both men and women. It is an honour for both husband and wife to be admitted to this. The second rank was formed by the Njuri-Ncheke (also spelled Njuuri Nceke), and the third by the Njuri-Mpingiri. Njuri Ncheke are inform of traditional authority which is vested in native administration consisting of diverse hierarchies of tribal leaders whether educated or not, their assistants who are like chiefs, elders and opinion leaders in communities, sometimes they will use Provincial Administration when it will be out of their hands like intercommunity conflicts. They exercise influence on local communities and act as intermediaries between communities and local governments. To be 'complete' member, one needed to have lived long enough to have both exercised political power as an elder, and to have handed over power to the next age-set. This occurred roughly at

the age of 65-70, and was accompanied by a great ritual and celebration, through which the men of that age-set became akiri (which comes from the verb kwarika, meaning to close or complete). As an akiri, a man was thus accomplished, and retired from both public life and domestic worries. He would also have become a grandfather, not just physically but spiritually in that there would be at least one grandson who had taken his name, thus assuring something of his continuity after death. At this stage, an akiri had thus a quasi-sacred role, and would officiate over ceremonies dedicated to the well-being of society as a whole as well as for families (for example, in sacrifices to bring an end to droughts and epidemics) The idea was important both to ensure that everyone had their period in power (assuming that they lived old enough and had had children to enable them to become elders and members), and in rituals connected with death. In these, only the deaths of 'completed' people (akiri) were considered to be normal and part of the natural order of things.

Qualification of the membership The qualification of the membership for Njuri Ncheke is base on a gerontocratic system councils of elders, and in particular rested with the Njuri-Ncheke and Njuri-Mpingiri. To qualify as a member of the Njuri-Ncheke in particular was the highest social rank to which a man could aspire. These were comprised of selected elders who were more influential and respected than the normal membership of the general council of elders, the kiama, and their work necessitated great wisdom, personal discipline, and knowledge of the traditions. The functions of the Njuri-Ncheke were to make and execute tribal laws, to listen to and settle disputes, and to pass on tribal knowledge and rites across the generations in their role as the custodians of traditional culture. It must be said that the Njuri-Ncheke still hold a good deal of these prerogatives: local disputes will invariably first be dealt with by the Njuri-Ncheke, and only when cases cannot be solved or concern matters involving non-Meru people, are they passed on to the modern Kenyan judicial system. Gender composition The elders forming the Njuri-Ncheke were carefully selected; one could say segregated from the rest of the tribe and gender. In order to be elected Njuri, a candidate had to pay a heavy fee, consisting usually of a number of animals, which had to be sacrificed and eaten during a great feast. Each Njuri - and this practice persists even nowadays in the Igembe region [this was in
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1974] - was to have a particular mask painted on his face while performing rites or gathering for solemn circumstances and it is only done by men and no women. Procedure for reporting dispute The traditional cultures of Meru valued life and property in general (respect for human life, morality, respect for people's property, and good leadership). These values provided the moral code for the people to follow. Marriage was valued because it provided people with the institution for procreation and the perpetuation of one's lineage. It also had the social value of bestowing respect and honour on a person. The distinctive ornaments of the Njuri were the morai or knotty stick cut out of a branch of black wood (usually African blackwood or ebony); the ncea or ring of pearls on the head; the meu or fly whisk made from the tail of an animal (usually cow or giraffe) and the three-leg stool cut out of a single piece of wood. Some Njuri add a kind of headgear made from the skin of the guereza monkey (for instance when these Njuri were heads of the villages to solve disputes or other social work since the community will report to them then. They will identify them using those ornaments) and a large mantle made from the skin of a ram or of a monkey. The Kagita (indigenous tribunal) had authority over all the Njuri and the tribe; it consisted of the most renowned Njuri, the Mogwe [religious leader/prophet], the witch doctor, and the headman. They use to assemble in a particular large hut called nyumba ya kagita. This was the most feared hut in the countryside and all dispute should be reported their (Cagnolo, 1933). The first of the Njuri elders using a little gourd as a spoon, would take some of the wine, being careful not to touch the bottom of the container, and drink of it saying: "I drink this wine so that it may bring joy to my belly, because I am innocent..." The second judge would follow and then the third, the fourth and so on up to the last. Only then would the condemned come up: to him the last judge would offer wine taking it deeply from the bottom of the gourd: "Drink of this wine, and let us see whether you also are innocent!" The poison would act in less than a quarter of an hour. Then the poor fellow, already rigid in the spasm of the last minutes of his life, had to be pushed away from the hut by means of sticks, and thrown out through a small hole cut out in the wall of the hut, opposite to the main entrance. The hole had to be closed immediately so that the spirit would miss the way and never find the "traitor" of the tribe. There were other tests, too: the fire-test, the mushroom-test (Dundas, 1965).
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Cost for reporting disputes Only very serious crimes against community were judged in the nyumba ya kagita. And usually the accused man, criminal or not criminal, once sentenced by kagita, had to pay with his life. Justice was administered as follows: members of the kagita together with the accused person would enter by the main entrance of the hut. Wearing all paraphernalia and sitting on the threeleg stools, snuffing abundantly, everybody had to speak and repeat and make comments on the trial. In the middle of the centre of the elders, near the accused person, a large gourd stands, filled with sugar cane wine. But not all is wine; a good quantity of poison is mixed with the beverage; since the poison is heavier than wine, it sinks to the bottom of the gourd. The sentence against the supposed criminal once entered the kagita hut - was always a capital one. But had to be proved, with the poison test.

Different types of offences reported and the penalties for each and penalty for failing to comply with the ruling A lesser known function of the Njuri-Ncheke, which survives to the present day, is its role in the overseeing and enforcing the rules and regulations controlling the cultivation and use of open grasslands. Good and sensitive management of these areas is essential to prevent the desertification of the more arid parts of Meru-land. Their decisions regarding these areas rest on three main tenets: that cultivators do not eliminate indigenous trees; that cultivators interplant trees with crops; and that they respect the already conserved indigenous sanctuaries, respect of human life, morality issues and sometimes intercommunity conflicts.

Offenders are punished with a variety of means: trespassing in conserved areas may lead to a fine of a bull or a decree by the elders. Those who desecrate such sites may be punished with impotence, barrenness or some other form of curse. Their work as conservators extends to control of the Meru's sacred sites (also called sanctuaries), which are used traditional rituals such as the passage of an age-set from one age-grade to another, transferral of political power, oathing, and for arbitration on cases such as murder, landgrabbing, theft, immorality, etc. Legally, the Njuri-Ncheke, using the myth of conservation sites, is able to solve cases that cannot be solved by conventional law courts. Moreover, criminals are

discouraged from hiding in such sanctuaries since they are protected by taboos - sometimes the devil is believed to be their "watchman". Penalty for failing to comply with the ruling will applies to both criminal and civil wrongs against an individual or a other community. The compensation for adultery is payment inform of money or animals/crops which is paid to the husband of the woman involved in adultery. An individual who elopes or commits illicit sexual offence with an unmarried girl pays the whole fees to the father of the girl and return the girl to his father. Their offices are spiritual and the symbols of their offices are the spear and the leopard skin respectively. These offices are hereditary, which are held by special priestly clans. These leaders had no political or executive authority to compel parties in a conflict to abide by the decision to pay compensation. Family Disputes Family disputes arise frequently when partners in marriage divorce; when a girl is eloped as a process of marriage; and when there is an incident of adultery. It implies that bride wealth has to be returned to family of the bridegroom and payment of compensation. This situation is again more complex in communities that pay bride wealth in the form of cattle, money or crops especially the calculation of the number of offspring of the cattle paid as bride wealth or amount of money to be paid. Land Ownership and Land Use

Conflicts associated with land tend to be very diverse in the Meru community. Land-related conflicts manifest themselves in the form of inter-personal, intra-communal and inter-communal conflicts. Conflict over land translates itself into occupational conflict between farmers and pastoralists. Livestock owning communities and settled agricultural communities coexisted in strained relationships during the colonial time.

There are other land-related conflicts that are building around ownership of family plots of land, especially in the urban and semi-urban areas. The war displaced many people from their homes in towns. Elders usually take the initial stage of mediating the confliting parties and they cannot

agree they will let them go to court. If they can resolve it, they will take sturn action of even cursing the party that want to defraud the other.

Adultery, Fornication and Rape Adultery, fornication and rape are serious manifestations of conflicts within the Meru community albeit not widely acknowledged in public. An adulterous person is considered unclean and is subjected to strenuous and vigorous rituals of cleansing the moment proved guilty or caught in the act. At the same time, fornication attracts a similarly harsh penalty. In such a situation, the value 46 of the girl involved is scaled down (Rabar, and Karimi, 2004).

Adultery, and lately rape, cases have always been shrouded in secrecy. Just like other crimes, the parties to it are given enough time to present their story. Based on adduced evidence, the council punishes the culprit accordingly. However, there exists no standard punishment. This is agreed upon by the sitting. The adulterous man is asked to cleanse the home of the aggrieved man. He provides a black goat or sheep preferably male, honey, and traditional brew. The intestinal fluids from the animal will be littered all round the house of the aggrieved husband as elders murmur cleansing words. The people present are asked to spit on green grass in the compound as elders cleanse the offender too.

Respondents cited imposition of heavy fines and severe punishment as proven and an effective method of preventing conflicts within the Meru community. The fear of punishments and fines has been reinforced by beliefs in curses and the ensuing consequences. All the respondents did not wish to be enjoined in any cursing or cleansing rituals. This has greatly reduced crimes rates within the Meru land. In adultery cases, the culprit is fined more than the standard bride price rendering the act economically and socially unviable. The purification process is tedious and frustrating and open to public ridicule and excommunication. Prohibitive fines reinforced by superstitious beliefs, norms and taboos, have played a key role in preventing Meru internal conflicts.

Inter-ethnic Conflicts Meru community is sometimes in conflict with the least number of communities. The Pokot, Samburu and Maasai are probably the main because of cattle rustling especially for Tharaka clan who keep livestock and border the said communities (Hobley, 1910). Nowadays, most vestiges of the age-set system have disappeared. Warriorhood, which was the stage immediately following the circumcision of males, has been defunct ever since the British arrived, with the result - some elders believe - that more and more young men have become immoral and anti-social in their behavior and they are the one to guard the community for their enemy. Obviously, with a growing population and only limited fertile land to convert to farms, the problem of unemployment is now acute, especially among those who would formerly have been employed as warriors. The Njuri Ncheke now come in and collaborate with the Provincial administration in solving intercommunity conflicts.

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References Cagnolo C. (1933). The Ameru. Nyeri: The Catholic Missionary of the Consolata Fathers, p. 156. The Kenya constitution, (2010). Charlton, R. (2000). Dispute Resolution Guidebook (2 Ligare Pty Ltd, Riverwood NSW ed.). Erskineville NSW: Star Printery Pty Ltd. Rigby, Andrew (2001). Justice and Reconciliation: after the violence. Lynne Reinner:

Rabar, B. and M. Karimi, (2004). Indigenous democracy: Traditional conflict resolution mechanisms in Pokot, Turkana, Samburu, Meru, and Marakwet. Intemediate Technology Development Group-Eastern Africa.

Hobley C.B. (1910). Ethnology of Akamba and other East African tribes. Cambridge: Cambridge University Press, p. 78. Dundas C. (1965). The organization and laws of some Bantu tribes of East Africa. Journal of the Royal Anthropological Institute, Vol. 45 (1915) p. 234 306; J. Kenyatta, Facing Mount Kenya.

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