The promise of justice: Towards the effective resolution of family

disputes.
Florence Mithamo*

Abstract.

The fact that the family is the fundamental unit of society underscores both the
significance and the delicate nature of this unit. Therefore when handling issues
originating from the unit, extreme discretion and seclusion are required due to the
sensitive and delicate nature of the family. Due to its non-adversarial nature and ability to
protect family ties from the strain of conflict, alternative dispute resolution and
alternative justice systems are becoming more widely accepted. Per the paramount
principle, child-inclusive mediation aims to give the child's interests top priority as
children are the most vulnerable when disputes between parents emerge. Any society's
future depends on its children, who should therefore be protected and given the best care
possible. The increasing understanding of alternative justice systems and dispute
settlement procedures has undoubtedly made it easier to handle family difficulties while
still providing for the children's demands to be heard while keeping things private. Issues
resolved through these means enhance quick access to justice at a lower cost than through
courts. With mediation being utilised mostly for child custody and visitation disputes, the
current laws for children, which will be examined, are still resistant to adopting these new
processes. The existence of alternative dispute resolution and justice systems, such as
councils of elders and mediation, in pre-colonial Kenya, has been acknowledged in
several sources, however, this postulation merely helps to emphasise where these systems
stand in "modern" Kenya. The shortcomings in the current legislation are discussed in
this paper along with potential solutions to encourage the use of these alternative
channels more frequently.

Keywords; ADR, Child participation, Child Inclusive Mediation, TDRM, access to

justice
Introduction.

It is amusing how when the white people first came to Africa, they assumed we had no
effective "legal" system. That we existed and lived devoid of any guidelines and that we
need saving for we were too barbaric to survive. While the reality on the ground was
different, our African forebears had a way of life, a method of resolving interpersonal
problems1, a feeling of religion, and spiritual inclinations, among other things, that
shaped their existence. I do not intend to talk about Africa as a whole but rather I narrow
my focus on pre-colonial Kenya with specificity on how our African predecessors
resolved conflicts, particularly family disputes. These forms of conflict resolution are
what we refer to as Traditional Dispute Resolution Mechanisms (TDRMs). This paper
seeks to delve into how TDRMs can be invoked in Child Inclusive Mediation in a manner
that is child friendly.

Traditional Dispute Resolution Mechanisms.

Kenya is a diverse country with various communities each having its cultural inclinations
it is natural to assert that there were different forms of TDRMs each specific and
"perfectly" tailored to deal with the issues of the community in alignment with their
principles and values2.

Due to the aforementioned fact, I will use a community that I am intimately acquainted
with to help me make my point in my paper more clearly. I will use the Agikuyu
community which is majorly popularized in the central part of Kenya. The Agikuyu for
one had a social structure that comprised three classes, the mbari, muhirigi, and the
Kiama. The Kiama was considered the supreme authority in the community where when
matters defeated the mbari and the muhirigi they gave their decision. The Kiama was
made up of a council of elders who were deemed by society to be knowledgeable about

1
Kariuki Muigua, ‘Traditional Conflict Resolution mechanisms and Institutions’ (2017) FCIArb 2.
2
Francis Kariuki, ‘Applicability of Traditional Dispute Resolution Mechanisms in Criminal Cases in Kenya:
Case Study of Republic v Mohamed Abdow Mohamed [2013] eKLR’2.
community values. Their decisions were binding because they conducted their
proceedings in the open where anyone present would take part 3. Most of their decisions
were based on traditional values and beliefs that were deemed to be beneficial to the
family. The beauty of this was that the values of the community were maintained while
strengthening social bonds. This was the case for most pre-colonial communities, their
verdicts were founded on strengthening societal bonds hence they were less punitive
compared to what is the reality of our criminal justice system4.

In every family among the Agikuyu, the father would settle any disputes arising therein.
The state of affairs would change if the father and the mother were involved in a dispute
as it would not be fair for the presiding decision maker to also be a party to the dispute.
Since one is inevitably skewed and will rule in favour of their interests, the other party
will be disgruntled. As a result, such a turn of events would necessitate the kiama's (the
council of elders) involvement to resolve their issues5. Most of the time, the parties will
settle their issues. Children were hardly ever involved in such affairs; in fact, they were
not seen as mature and reasonable enough to do so. After all, they were “thina cia ado
agima" which translates to "big people problems" and in that regard what then will a
child have to offer?

Although they were unaware of it at the time, the Agikuyu community relied mostly on
negotiation, mediation, and Med-Arb as their main forms of dispute resolution. However
the Third party approach was among the most preferred method that was frequently used
to settle family conflicts. It entailed requesting the assistance of the extended family,
clan, or council of elders to settle a dispute6. The disputing parties would communicate
with one another through a third party which also helped to ease the tension between
them.

Current position of ADR in the country.

3
Ann Njeri Joseph, Joshua Osamba and Josiah Murage, ‘Agikuyu indigenous methods of conflict
resolution- the case of Tetu Sub-county’ (2017)6 Ijird 123.
4
Francis Kariuki , ‘Applicability of Traditional Dispute Resolution Mechanisms in Criminal
Cases in Kenya: Case Study of Republic v Mohamed Abdow Mohamed [2013] eKLR’ 12.
5
Ann Njeri Joseph, Joshua Osamba and Josiah Murage, ‘Agikuyu indigenous methods of conflict resolution-
the case of Tetu Sub-county’ (2017)6 Ijird 125.
6
Kariuki Muigua, ‘Traditional Conflict Resolution mechanisms and Institutions’ (2017) FCIArb 10.
In our "modern" Kenya many people are resorting to having their disputes solved out of
court through Alternative Dispute Resolution (ADR) means since they are faster,
cheaper, and improve their access to justice. The numbers are said to have increased in
past years and are set to soar higher in the coming years. 7 Bearing the sensitive nature of
family disputes in mind it is wiser to have them settled under ADR preferably by
mediation8, conciliation and reconciliation which result in a win-win situation for both
parties as compared to the harsh court process with the case being balanced on a balance
of probabilities resulting in a winner and a loser situation. Therefore severing the
remaining emotional family ties between the parties.

In any parental dispute, the children are the most vulnerable parties and it is then only fair
to involve them in such dire matters that will greatly impact their lives. With immense
changes in our societal attitude, children are more and more involved in post-separation
disputes. This new change is called promoting "the voice of the child" it involves
considering the child's input in the post-determination of separation and divorce
proceedings after all it majorly affects them. Nevertheless, it results in attempts to strike a
balance between children's rights as persons on one hand and their vulnerability and need
for protection given their age and developmental stage, on the other hand9. Consequently,
in most cases, it pans out by promoting the best interests of the child (paramountcy
principle) which in any case should be the goal in any family dispute.

Being that ADR in family matters is mostly used in child custody matters and visitation
disputes most parties opt for mediation as compared to other methods. The aspect of self-
determination of the parties is key with the mediator taking up the neutral, objective, and
non-authoritative role creating an environment favorable for both parties to reach an
amicable agreement. There are various types of mediation each with various conflict
approach mechanisms, they include; facilitative, evaluative, and transformative
mediation10. Relevant to this paper are facilitative and evaluative mediation. Each of

7
Kariuki Muigua, ‘Current status of Alternative Dispute Resolution Justice Systems in Kenya’ (2018) 4.
8
Kariuki Muigua, ‘Entrenching family mediation in the law in Kenya’ (2018) 3.
9
Rachel Birnbaum, Family, Children and Youth Section Department of Justice Canada, ‘The voice of the
child in separation/ Divorce mediation and other Alternative Dispute Resolution Processes: A literature
Review’ (June 2009) v. < https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/vcsdm-pvem/pdf/vcsdm-
pvem.pdf > accessed 23 February 2023.
which can be uniquely engineered to deal with the best interests of the child in each child
case.

Facilitative mediation in family disputes.

Facilitative mediation involves the mediator creating a neutral, safe, and supportive
environment. Accordingly, the mediator's role is to facilitate such an opportunity.
Espousers of facilitative mediation propound that disputants, with the assistance of their
legal counsel, are capable of understanding their situations better than third parties and
therefore "can develop better solutions than any the mediator might create11.”

One way for a facilitative mediator to enable the paramountcy principle is by helping the
parents identify the information they need to make informed decisions. The mediator's in-
depth knowledge may enable him or her to pose pertinent questions, frame disagreements
in a positive and meaningful way, and address the possibility that mediation is not the
best method for resolving the family's needs12.

Evaluative mediation in family disputes.

The focus of evaluative mediation is on the parties' legal rights rather than satisfying their
interests. For that reason, the evaluative mediator gives advice, makes assessments,
renders opinions on issues, and predicts outcomes-including expressing an opinion about
how a judge or jury would likely decide the case 13. Since the mediator typically has a
strong background in law, s/he is knowledgeable about the child's right to be heard as
well as other rights granted in connection with the mediation. Thereby supporting the
child's best interests14.

Various perspectives on Child Participation.

10
Kirsikka Salminen, ‘Mediation and the Best Interests of the Child from the child law perspective’ (2018)
211.
11
Murray Levin, The propriety of evaluative mediation: concerns about the nature and quality of an
evaluative opinion’ (2001) 16:2 OSJDR 267.
12
Kirsikka Salminen, ‘Mediation and the Best Interests of the Child from the child law perspective’ (2018)
211,216.
13
Murray Levin, The propriety of evaluative mediation: concerns about the nature and quality of an
evaluative opinion’ (2001) 16:2 OSJDR 267,269.
14
Kirsikka Salminen, ‘Mediation and the Best Interests of the Child from the child law perspective’ (2018)
211,218.
According to research children face an array of psychological effects from seeing their
parents' divorce. These effects range from anxiety, distress, disbelief, and depression.
Some of these effects can last a lifetime and permanently sever their family ties for a
lifetime. Some research has shown that involving the child in the proceedings lessens the
likelihood of the aforementioned effects as they are directly and actively involved in the
process15. This shows the serious and sensitive nature of family disputes and how if not
approached appropriately we may end up having broken families and broken children
which transcend into a broken society.

On the flip side, there has been a different assertion about involving children in the
proceedings. One Martin Guggenheim avers that while there are important reasons to
advance children as right-holders, there are certain costs involved with rights. He moves
on to say that rights are relational. That is where there is a right there is a duty therefore
if children have a right then someone else has a duty, putting into consideration that
children’s legal rights are always in the hands of adults has brought about concerns that
involving children could undermine parental authority and even cause further negative
intrusion into children’s lives and family relationships16.

According to Roger Hart's ladder of children's participation, there are eight rungs of child
participation divided into the degree of participation and non-participation. Children get
increasingly involved as one climbs the social ladder. At the very bottom of the child,
participation is "assigned but informed" where the child does what the adult says as the
rungs get higher the child's level of participation increases as well. The eighth rung
involves the highest level of child participation called "child-initiated shared decisions
with adults" which involves the child setting the agenda and inviting the adults to
participate17. From Hart's hypothesis, it is reasonable to conclude that indeed the "voice

15
Amy Morin, ‘The psychological effects of divorce on children’ (Very Well Family, 21 February 2021) <
https://www.verywellfamily.com/psychological-effects-of-divorce-on-kids-4140170 > accessed 23
February 2023.
16
Rachel Birnbaum, Family, Children and Youth Section Department of Justice Canada, ‘The voice of the
child in separation/ Divorce mediation and other Alternative Dispute Resolution Processes: A literature
Review’ (June 2009) 13. < https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/vcsdm-pvem/pdf/vcsdm-
pvem.pdf > accessed 23 February 2023
17
Roger Hart, United Nations Children’s Fund, ‘Children’s Participation from tokenism to citizenship’
(March 1992) 9. < https://www.unicef-irc.org/publications/pdf/childrens_participation.pdf > accessed 23
February 2023.
of the child” is not promoted from early on but rather it is dependent on the adults by first
seeking their thoughts on the same. Consequently leaving the child less empowered to
make major life-changing decisions

Child Inclusive Mediation.

Child-inclusive mediation (CIM) refers to the inclusion of the child in the mediation
process. It can happen in several ways, such as when one mediator conducts separate
interviews with the child and parents and then gives the parents input. The alternative
method involves having a child specialist interview the child individually and provide the
parents with the findings. The purpose of child-inclusive mediation is to give the child a
voice during post-divorce negotiations as opposed to subjecting them to counselling to
help them adjust to the change18.

Even though it is not officially recognised in Kenya, other nations like Canada have
adopted this type of mediation. Countries like the United Kingdom only permit child-
inclusive mediation with the agreement of both parents.

Many of whom are in support of child-inclusive mediation base their assertions on

Article 12 of the United Nations Convention on the Rights of the child which Kenya is a
signatory. Article 12 stipulates that

1. States Parties shall assure to the child who is capable of forming his or her own views
the right to express those views freely in all matters affecting the child, the views of the
child being given due weight in accordance with the age and maturity of the child19.

2. For this purpose, the child shall in particular be provided the opportunity to be heard
in any judicial weight in accordance with the age and maturity of the child. . Appropriate
body, in a manner consistent with the procedural rules of national law20

18
Rachel Birnbaum, Family, Children and Youth Section Department of Justice Canada, ‘The voice of the
child in separation/ Divorce mediation and other Alternative Dispute Resolution Processes: A literature
Review’ (June 2009) 19. < https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/vcsdm-pvem/pdf/vcsdm-
pvem.pdf > accessed 23 February 2023
19
Convention on the Rights of the child (adopted 20 November 1989, entered into force 2 September
1990) 1577 UNTS 3, art 12 (1).
20
Convention on the Rights of the child (adopted 20 November 1989, entered into force 2 September
1990) 1577 UNTS 3, art 12 (2).
The effects of these provisions are that children are accorded rights as individuals to hold
and express their views in matters affecting them. In this case divorce and separation
proceedings. The provision indicates that "…. A child capable of forming his or her
views…." This, therefore, begs the question of at what age is this child capable of forming
views regarding the subject matter that affects them and consequently being accorded
those rights. Various sources have tried clarifying this by stating that the child can form
views from the youngest age, even when he or she may be unable to express them
verbally21. Consequently, there is no age limit on the right of the child to express their
views. However, expressing views is a choice of the child, therefore, he or she is under
no obligation after all children are different and they process things differently with some
choosing silence. This is linked to the use of the word "freely" to indicate that there is no
pressure on the child to exercise their right to being heard. And the child should not be
subjected to manipulation or undue influence to express themselves with these views
being accessed on a case-to-case basis22.

Current Legal Provisions.

First based on the supreme law of the land- Article 159 (2) (c) of the Constitution of
Kenya recognises mediation as a form of ADR. Additionally, Article 45 (1) states that
"The family is the natural and fundamental unit of society and the necessary basis of
social order, and shall enjoy the recognition and protection of the state." The terms "….
And shall enjoy the recognition and protection of the state." Depicts that the state shall
put in various measures to ensure that the family as a unit enjoys its protection. This
position was reiterated in Diana Waceke Wainana v Director of Immigration Services;
Serge Louodom (Interested Party) where the court stated “….. That would seem to be a
matter within Article 45 of the Constitution which recognizes and enjoins the state to
protect, the family as a natural and fundamental unit of society 23.” Children who are
members of the family are also covered by this protection. This protection comes in
different ways one way is the formulation of procedural and substantive laws that offer
21
UN Committee on the Rights of the Child (CRC), General comment No. 12 (2009): The right of the child
to be heard, 20 July 2009, CRC/C/GC/12, 6.
22
UN Committee on the Rights of the Child (CRC), General comment No. 12 (2009): The right of the child
to be heard, 20 July 2009, CRC/C/GC/12, 7.
23
[2022] e KLR.
protection to the members of the family. In this case children, therefore it is only
reasonable to conclude that indeed the law has opened the door to invoke child-inclusive
mediation even though not expressly in black and white.

It was a start of a new dawn when the president recently assented to the new Children's
Act 2022 which repealed the Children's Act 2001 which for one had not adjusted to the
changing times and arising needs. In context to the form of dispute resolution
mechanisms, the Children's Act 2022 has indeed tried to fill this gap although not entirely
this will be the focus of the next few paragraphs. Dissecting the law provisions including
but not limited to the Children's Act 2022 and highlighting some of these gaps and some
recommendations that may help in filling these gaps.

For this paragraph, the Children's Act 2022 will be referred to as "The Act." It is worth
considering section 129 (1) which provides that, "Where two or more persons acting as
joint guardians to a child, or where the surviving parent and a guardian acting jointly,
fail to agree on any matter concerning the welfare of the child, any of them may apply to
the Court for directions in that regard, and the Court may make such orders regarding
the matters in difference as the Court may deem proper.”24

The words “where the surviving parent and a guardian acting jointly, fail to agree on
any matter concerning the welfare of the child….” Deducing from these words, a child's
rights are subordinate to those of a guardian or surviving parent. For one, this inhibits the
child's participation in a matter that affects their welfare. The repercussions of this section
simply serve to further muffle the child's voice. Which extensively infringes on the right
of freedom of expression of the child. As provided under Article 7 of the African Charter
on the rights and welfare of the child provides that; "Every child who is capable of
communicating his or her views shall be assured the rights to express his opinions freely
in all matters and to disseminate his opinions subject to such restrictions as are
prescribed by laws.”25 As prescribed by the Constitution which is the grund norm that
accrues the freedom of expression to every person with limitations that are reasonable

24
Children’s Act 2022), s 129 (1).
25
African Charter on the rights and welfare of the child (adopted 1 July 1990, entered into force 29
November 1999) 49 CAB/LEG, art 7.
and justifiable in an open and democratic society based on human dignity, equality, and
freedom26 together with the limitations stipulated under article 33 (2).

Given this, the right of a child to express themselves applies unless there are limitations
that fall under the three-part criteria outlined in Article 24 (1). In light of the foregoing, it
is very unlikely that a child's speech whereby they express their opinions on a matter that
affects them will fall under the legal ambit of speech that is subject to limitation. Because
of this, it only stands to reason to conclude that a child should have the freedom to
express themselves unless the person restricting this right provides a reasonable
justification for doing so. Which in our case rarely happens in reference to children’s
rights.

This section implies that upon disagreement by the parties, they first have to approach the
court for directions regarding the matter. One major flaw with this section is that it does
not recognize the time sensitiveness of the matter and it does not prescribe the timeline in
which the court is expected to make such orders regarding the matter. And knowing how
the wheels of justice in this country turn slowly one's situation may end up getting worse.
Second is that this provision solely puts the power of determining the directions to be
given to the parties on the courts therefore there is no room for ADR and specifically
TDRMs.

Another perspective worth considering is whether children may assist the parents or
guardians in determining what is best for them. In the case of Fletcher v Fletcher, the
court held that in determining the best interests of the child one of the factors that must be
taken into account is the child’s wishes27. Within our jurisdiction, The Constitution under
Article 53 (2) stipulates that the “child’s best interests are of paramount importance in
every matter concerning the child.”28 Can it then be interpreted that the child holds a
position in helping the parents or guardians to ascertain what is best for them in the
determination of a matter affecting them to some certain extent ? The Children Act, 2022
defines “best interest of the child” to mean “the principles that prime the child's right to
survival, protection, participation, and development above other considerations and
26
Constitution of Kenya 2010, art 24 (1).
27
Fletcher v Fletcher [1844] 67 ER 564.
28
Constitution of Kenya 2010, art 53 (2).
includes the rights contemplated under Article 53 (1) of the Constitution and section 8 of
this Act.”29 Relevant to this paper Section 8 of “The Act” provides for “In any matters
affecting a child, the child shall be accorded an opportunity to express their opinion, and
that opinion shall be taken into account in appropriate cases, having regard to the
child’s age and degree of maturity.”30 Additionally, “The Act” heads on to state that
actions taken should have regard to "safeguard and promote the rights and welfare of the
child”.31

As a consequence, these provisions enable child-inclusive mediation but it is subjected to

a limitation of taking into account the child's age and degree of maturity. This position
has been held by many courts 32. This legal effect is rather offensive to any child who can
express themselves but does not fit in the degree of maturity and age requirement.
Nonetheless, a more liberal approach could be considered, where a child psychologist or
other impartial third party could be utilised to assist the other parties in understanding the
child's perspective on the situation. Ultimately, promoting and safeguarding children's
rights and welfare. Some experts have postulated that giving a child room for taking part
in decision-making empowers them while still enabling them to have a closer connection
to the community. Furthermore, studies show that children who are more involved in
decision-making manage stress and anxiety better than their peers who do not participate
in decision making33. Given these findings, it is naturally conceivable to conclude that,
encouraging children to take part in decision-making in matters affecting them benefits
them holistically as members of society and finally that every effort should be taken to
ensure that the child's views are heard however young they may be.

Another law provision worth considering in “The act” is section 38 which provides for
the functions of the secretary. Particularly section 38 (m) which states “promote family

29
Children’s Act 2022,s 2.
30
Children’s Act 2022, s 8(3).
31
Children’s Act 2022,s 2(a).
32
Mc call v Mc call [1966] 280 Ala. 205.
33
William Stixrud and Ned Johnson, ‘Teach your kids how to make their own decisions’ (Our Children, 17
September 2018) < https://ptaourchildren.org/teach-kids-decision-making-skills/ > accessed 23 February
2023.
reconciliation and mediate in disputes involving children, parents, guardians or persons
who have parental responsibility in the manner provided under this Act34.”

The effect of this provision is that the secretary may "…..mediate in disputes involving
children, parents, guardians or persons who have parental responsibility in the manner
provided under this act." This raises the question of whether the secretary has the
necessary training and skills to handle such delicate situations. And if not, it stands to
reason that the mediation process will not be as effective as when it is led by a skilled
mediator who has the knowledge and experience to successfully navigate through the
delicate nature of matters relating to "children, parents, and guardians." Skills such as
knowing how and when to rephrase, establishing a rapport, and knowing when to talk and
listen are not skills that anyone can develop right off the bat. They take time and
continuous practice to hone them. And while Section 37 makes an effort to be precise
about the required qualifications, such as "at least ten years' experience in social work,
education, administration and management, public administration, human resource or
finance management."

These requirements are far too general. For instance, how well would a person with
financial management expertise be able to handle and mediate conflicts with children? Of
fact, the secretary has other duties outlined in section 38 that may call for financial
management expertise, but these skills will not be useful when resolving disputes
affecting children. In light of the fact that parents attend parenting programs to learn how
to raise and interact with their children, how much more training does the secretary then
require? Considering the dire nature of child-related matters, the best implementations
ought to be put in place.

Other jurisdictions.

Comparatively participation of a child in matters affecting them is mandatory in South

Africa. The South African Children's Act more specifically provides for mediation for the
resolution of various child-centred disputes. One of these instances that provide for
mediation as mandatory is where there is a dispute between the child’s unmarried
biological parents about whether the father has fulfilled the requirements provided by law
34
Children’s Act 2022, s 38 (m).
to obtain full parental responsibilities and rights. And in other instances, the court has the
discretion to order mediation for the parties. Such provisions under South African law
indicate how ADR forms especially mediation are highly encouraged in family matters
bearing in mind the sensitive nature of these matters. However, the High Court operates
as an upper guardian of all minor children, and any decision made during mediation may
be reviewed and approved by the court35. This ensures that the children’s rights are
upheld including but not limited to the child’s participation.

Comparatively the Children’s Act of the South African Act under Section 33 (5) (b)
provides that “in preparing a parenting plan as contemplated in subsection (2) the
parties must

Seek-…………………………………………..

(b) Mediation through a social worker or other suitably qualified person36”

The effects of this Act expressly provide for mediation as the first resort when preparing
a parenting plan. The parties must first attend mediation through a social worker or other
suitably qualified person. And in most instances, s (he) can mediate over sensitive
matters such as family disputes both in a formal or informal setting 37. If the mediation
proceedings are unsuccessful the parties would have to prove that they indeed attended
the mediation sessions before approaching the court on the matter.

The aforesaid provides information on how ADR, especially mediation, has been
accepted in other jurisdictions. Kenya should take inspiration from these actions to better
adopt child inclusive mediation.

How to invoke TDRMs in Child Inclusive Mediation.

In many cases, parents (who are also parties of a dispute) end up using the traditional
dispute resolution mechanisms especially the third-party approach which involves using a

35
Amanda Boniface, ‘Resolving disputes with regards to child participation in divorce mediation’ (2013) 1
Speculum Juris 131, 142.
36

37
Madelene De Jong, ‘Child–focused mediation’ (2009) Private law Pertaini 112, 125.
third party to communicate with the other person. The issue is not the frequency at which
people use TDRMs after all Kenyans are cultural people who hold their culture in high
regard but rather the issue is how do we make TDRMs more child friendly? To enable the
thriving of the paramountcy principle, how do we encourage this form of mediation
without making the parents feel disrespected, shortchanged.

It takes more than the judiciary for this goal to be achieved as other parties such as the
local tribes' men and the population ought to know about the existence of this type of
mediation. Supervision from well-trained mediators who are well-informed about
children's rights may be a recommendation. But then again how can this be done without
making the council of elders feel belittled by some white man's ideologies about how
children should be treated?

Recommendations.

Well one way is sensitizing the masses just as the adage goes "knowledge is power" and
for this power to be manifested the people ought to be in the know. Programs that seek to
educate the "mashinani” have to be put in place. With great emphasis on children’s rights
and duties.

Codification of children's rights that apply to all communities other than the Constitution.
However, this recommendation should be applied with caution to minimise its
mechanical operation and rigidity over time. This drawback is unavoidable but can be
minimized. One way to do this is by starting to codify the children’s rights that are
universally accepted in a majority of the communities if not all. Such will be closely
related to the people from the people without westernized ideas being forced on them.
The High court will then take up an active supervisory role in its application to ensure
that the children’s rights are upheld38.

Conclusion.

38
Constitution of Kenya, 2010, art 165 (3) (b).
It follows from the aforementioned findings that child-inclusive mediation is a
developing legal approach that has gained acceptance in many nations. Kenya is
gradually moving in this direction. The good news is that by using traditional dispute
resolution methods, she can accomplish this while still retaining some of her African
culture. The good news is that she can achieve this by using Traditional Conflict
Settlement Mechanisms and still maintain some of her African cultural identity. Since it
constitutes the backbone of the country. Therefore the culture of the Kenyan people must
be promoted by the government, subject to the repugnancy clause.