MEET THE TRADITIONAL JUSTICE SYSTEM OF WARABAI COMMUNITY IN KENYA

Elders convey to give a ruling during a past court session. Photos by Anthony Mwachiro

At a distance, one might wonder what is happening or even mistake the gathering for a burial ceremony. But the presence of many sticks of different types at a certain corner with everyone’s shoes taken off, the confusion continues, especially if one is seeing these for the first time.

This is always the scenario in Mwembe wa marunga, a place located near the Rabai kaya forest where the custodian of the Rabai community culture gather to tackle problems arising from their community.

In Rabai, despite the increased modernization, Kaya elders are still stuck to their traditions in instilling displine and order among community members. The Rabai people still punish custom-law breakers in the village by imposing fines to compensate for wrongs committed, and also for counseling. This system, according to this community, has been found adequate to their needs.

According to Mzee Bembaita Mrisa, the cases they have been handling include domestic issues, adultery, land problems, witchcraft related issues among other arising matters that require elders’ attention.

Previously, each of the three locations occupied by Rabai community in the sub county had its own place of dealing with these cases among them Mwembe wa  Nzala chache at Ruruma, Mwembe Marunga at Rabai, and Pweho ya Mwawesa near Chang’ombe.

In 1924, the British Government, without consulting the area elders built, a court at Shikadabu which was meant to be used as an African (Native) court dealing with customary law cases previously dealt by the Kaya, or clan elders in the villages.

Kaya elders arriving at Mwembe wa marunga in Rabai

The court structure which has become historical is under the management of the Rabai museum and according to the curator, William Tsaka, during the old days some well-known elders who had previously been dealing with customary cases were selected by the chiefs to work as local African court elders.

However, the system proved to be working well with the whole system was under the guidance and supervision of the then colonial government.

“The name Shikadabu was symbolic to the logic that whenever one was taken to the native court and proven guilty; he or she could be punished severely to correct his/her misbehaviour,” reveals Tsaka.

The curator noted that the court played a key role in creating sanity among the community, adding that cases of witchcraft were only discussed by elders and those who were found guilty were fined.

Tsaka admits that historically, and so is the case up to now, those who are involved in the misunderstanding could appear before the parliament to discuss the issue and in case one could be proven guilty, they’d be fined heavily by the elders.

According to the elders this fine normally depends on the situation then e.g payment of certain animals or excommunication from the clan or village.

Tsaka notes that the court, despite the continued existence, the structure was abandoned as the local community found it insufficient after independence. He adds, “the fines were generally small and the traditional court places were an inconvenience to non-Rabai court system.”

Currently the structure that used to be the judge's office during the colonial period now act as Rabai Assistant commissioner’s office.

Former british court at shika adabu in Rabai, which was abandoned after independence. The structure has become a meeting place to youth and women groups in the area.

However, Kaya elders in Rabai are optimistic that the traditional court is the only tool that can be used to address the decline on cultural values and create peace and security.

According to Mzee Garero, cases of increased assassination for allegation of witchcraft in Rabai are low compared to other areas of Kilifi County as they have been finding a solution at the local level, adding that such cases are difficult to solve at the normal court system in Kenya.

“This system has been of benefit to our community and both arms of government are aware of our presence every Monday at Mwembe wa Marunga and Wednesdays at Mwembe wa Nzala Chache, solving cases forwarded by area residents,” reveals the elder, who also acts as the secretary.

He expressed confidence that all who appear before the elders congregation were abound to fair judgment adding that it is hard for the process to be interfered with, as no specific person makes a decision after both parties are given an equal chance to present their grievances before the elders.

Garero notes that all elders take the responsibility of cross examining both parties with their witness before a verdict is given.

These sentiments are echoed by Bimbita Mgalla, a resident of Mwatsama in Rabai, who reveals that he has forwarded over 10 cases before the elders which were resolved.

“At this time, I have other case between my brother and our grandson accusing each other of adultery. I decided to bring this matter to the attention of our Kaya elders and am confident of fair judgment,” he confidently says.

complainant (Bimbita Mgalla) (center right) giving his opinion in a past court session.

According to Mgalla, many locals have opted for the traditional court due to its convenience and small amount of fine; and also the little time used to settle the cases compared to modern court system where a case can take over a year.

According to another Mzee Joha Magongo Tsuma, the court can solve about 5 cases in a day depending with the availability of all witnesses, though a case can take a single day to restore peace among the parties.

However, despite the good job, these kaya elders are forced to operate with challenges as no money is used to file the cases, and the fines imposed are not in monetary terms.

Mzee Mrisa reveals that there was no specific amount for an offense adding that one can be fine up to 100 shillings which can hardly facilitate the elders in their operations of the cultural activities.

“We are over 20 elders from different parts of the sub county and we need to keep records of all the cases and there are some that we seek the attention of the modern court system at Kaloleni where we testify,” he explains to us.

According to him, there is need to have all Kaya elders included in the payment system of elders above 65 years to enable them execute their cultural mandate smoothly.

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