Kenya SCHOOL OF LAW

DIPLOMA IN LAW (PARALEGAL STUDIES)

INTRODUCTION TO LAW AND LEGAL SYSTEMS

CAT 1

COURSE INSTRUCTOR; MR. SAMUEL MWANIKI

NAME; CHARLES MWANGI WACHIRA

REG NO; DIP/PL/2023114

THE DISPUTE RESOLUTION MECHANISMS OF THE KIKUYU COMMUNITY

DURING THE PRE-COLONIAL PERIOD

Kikuyu organization was based on three most important factors without which there can

be no harmony in ethnic communities’ activities. The first is a family group (mbari),

which brings together all those related by blood. The second is clan (mohiriga), which

joins in one group several mbari units who have the same clan’s name and are believed

to have descended from one family group in the remote past. This facilitates the feeling

of rendering mutual support in all the important matters for the welfare of mohiriga. The

third principle unifying the Agikuyu is the system of age-grading (riika), which unites and

solidifies the whole ethnic community in all activities. The activities of various age

groups stabilize the Agikuyu community organization.

However, like any other community, the Kikuyu community was faced with disputes and

conflicts, they ranged from a simple father-to-child conflict to major conflicts like conflicts

between neighboring communities, however, did not cripple the community and there

were measures taken place to prevent conflicts from occurring or methods to solve the

conflicts in case they arose

One of the major methods used to solve conflicts was by use of elders, elders in the

kikuyu community played a major role in solving conflicts, they formed a council of

elders that was referred to as a “kiama”, it was used to act as an arbitral forum or a

mediator in a dispute resolution, the council of elders would pass judgments on issues

brought up to them by punishing, asking for a ritual to be done, compensation, or even

excommunicating a member from the community for sometime to serve as penance

a community has to solve it to restore normalcy, in line with this, the kikuyu community

employed the most common responses to manage the conflicts, these methods were;

withdrawal, surrendering and fighting.

The Agĩkũyũ were aware that conflict deepens differences, if a person engages in it may

lead to irresponsible behavior such as fighting, they therefore developed a ritual that

was enacted by people engaged in a conflict. This ritual gave the opportunity to either

party to pull out of the conflict or engage in the conflict. If one party to the conflict chose

pull out, the other party respected the decision and did not take the advantage.  This art

was instilled early during childhood conflicts for instance, if two boys engaged in a

dispute did not jump into fighting after a disagreement, an alternative to fighting as

means of solving the conflict was sought.  This is how it was done; a “star” mark was

put in the hand of one of the aggressors who was willing to fight. He then asked his

counterpart in the conflict to disrupt it, if he did, then the two joined in a physical fight to

settle the dispute. If one of the parties to the conflict felt that he was not strong enough,

or it was not wise to engage in conflict, he would choose to give up his demands and

walk away. This way the conflict was settled peacefully without potential physical

injuries.

Conflicts are expensive, they may take too much energy and sometimes yield not gains.

The Agĩkũyũ had a philosophy called “njũra na ago” which means, inevitable loss

through witchdoctor. This involved surrendering and giving up was another way of

solving dealing with a conflict. This involved and individual or the community giving up

their rights. This may seem cowardly, but it was less expensive than engaging in
fighting. Life is sacred and it is not cowardly to protect it. for instance,

Sometimes Agĩkũyũ and Masaai raiding warriors came face to face. One raiding party

with girls and animals may be caught up with by their pursuers. In such circumstances

the two parties did not jump into bloody battle. The two conflicting parties stood against

each other. The captors asked their pursuers to bring forward their hero the challenge a

corresponding hero. The two representative warriors fought each other as the conflicting

warriors watched. The party whose warrior lost in the fight owned the defeat,

surrendered and left in peace with only one casualty. These actions may be mistaken

as cowardice, but it not.

Domestic conflict between members of the family is not unusual. Some of these

conflicts arise from the breach of moral values, disagreements or psychological

problems i.e., stress and depression. The Agĩkũyũ people managed and regulated

these conflicts so that sanctity of life was respected and preserved. This was done

using a number of taboos. It was forbidden, for example to violently shed blood

of mũndũ wa rurira (a relative). Any such person would be contaminated with thahu.

Furthermore, a husband, who hit his wife and drew blood or the vise visa becomes

contaminate with thahu. Thahu was so dreaded that it deterred relatives from engaging

in physical conflicts rest a member is injured. A convicted individual and his relatives

had to meet the cost of purification. 

The Agĩkũyũ community also tried to regulate their behavior with their neighboring

community to prevent break out of wars,  Agĩkũyũ and the Maasai were neighbors, tribal

conflicts over resources existed between the two groups and this resulted to frequent
raids of cattle sheep and goats on either side. These raids were not war. They were not

driven by hate and pleasure to kill. In their execution, these raids were guided by strict

rules. Every action was censured by taboos and sanctity of life was observed, respected

and preserved, when this was disregarded and a worrier killed during the raid, he was

not received as a worrier and was not allowed in the homestead, he was withdrawn

from the community and could not touch or greet any person until he was purified.

In the kikuyu culture, conflict was part of spirituality, the relationship between God and

human being was not divided between sacred and secular. The divine will was sought in

every human activity including conflict. Raids for example were carried out under strict

ritual rules, participants were ritually cleansed and Ngai (God) was consulted before any

raid was undertaken.

From this discussion it is evident that the kikuyu and at large the traditional African

society methods of solving conflicts were geared towards reconciliation, guiding lost

members, correcting the wrong done and accepting reformed members who had

wronged, however each people or identity group have their own ways of doing things

especially concerning conflict resolution. While in Europe, for example, the police are an

agency of crime detection, several African societies like the Agĩkũyũ relied on oath-

taking and divination in pre-colonial times. These methods still thrive today in some

places on a very limited scale alongside torture and skull breaking in the name of

interrogation and confession extraction. Also, while the western world placed emphasis

on a judicial system presided over by lawyers and judges, traditional Africa uses council
of elders, king ‘s court, people’s assemblies, etc. for dispute settlement and justice

dispensation.

Dialogue between disputants is today replaced by fighting, and the mediating role of

elders, and other more peaceful institutions as age-grades, highly revered in societies

are replaced in several clashes with police actions, military peace keeping operations,

and endless court proceedings. This reminded me of the old saying that a people live

out their culture and tradition for self-confidence, self-reliance, positive change and

stability, and that a people without their culture is as good as dead and forgotten.

In conclusion, traditional dispute resolution mechanisms have been effective in

managing conflicts where they have been used. Their relevance in the conflict

continuum has been recognized in the new Constitution 2010. They include negotiation,

reconciliation, informal mediation, council of 15 elders, local elders, problem-solving

workshops among others. The constitutionalizing of these mechanisms means that

there will be a paradigm shift in the policy on resolution of conflicts towards encouraging

their use to enhance access to justice and the expeditious resolution of disputes without

undue regard to procedural technicalities. A comprehensive policy and legal framework

to operationalize traditional dispute resolution mechanisms is needed. It should be

realized that most of the disputes reaching the courts can be resolved without resort to

court if traditional conflict resolution mechanisms can be applied and linked up well with

courts and tribunals

Muigua, K. (2014). Traditional dispute resolution mechanisms under Article 159 of the

constitution of Kenya 2010. 

Matundura, D. M. M. (2011). An analysis of the summary procedure laws of Kenya as a

way of effective and speedy civil litigation.

Mwagiru, M. (2006). Conflict in Africa. Theory, Processes and Institutions of

Management, Centre for Conflict Research, Nairobi

Malan, J. (1997). Conflict resolution wisdom from Africa.