In mass tragedies involving children, such as the Utumishi Girls High School fire, is the criminal law sufficient, or should Alternative Justice Systems help address the broader needs of healing, closure, accountability, and community restoration?
Dear hurting parents, families and friends,
Whichever path the government chooses, the nation must confront the deepening pain stemming from non-inclusive decisions. This text bears witness to the anguish shared with affected families and communities. While it may seem that the criminal justice system adequately addresses criminality, it falls short in its depth, imagination, and time to alleviate the suffering of grieving parents and communities who have lost children. These preventable deaths and injuries prompt a demand for the law to tackle issues that transcend guilt and innocence.
The Utumishi Academy fire and the subsequent legal actions remind us of three critical lessons. First, they evoke the painful history of school tragedies, including Kyanguli (2001), Bombululu (1998), and Moi Girls (2017), each leaving behind a legacy of suffering. These incidents not only claimed innocent lives but also left many individuals permanently traumatised. Second, such tragedies can recur, yet the nation remains unprepared. Finally, we must question whether the criminal justice system alone can adequately address the multifaceted and multi-layered harms arising from mass fire tragedies, particularly when children are both victims and alleged perpetrators.
Article 1 of the Constitution alongside the Preamble, which commit the country to nurturing and protecting the well‑being of individuals, families, communities, and the nation, remind us that our collective response must begin by acknowledging the inadequacy of criminal prosecution as the country's primary tool. Criminal trials have neither reduced the risks nor broadened the national conversation in a meaningful way. The broader social, emotional, and institutional dimensions of such tragedies require sufficiency rooted in legal or adjudicative pluralism.
The Judiciary.
Photo credit: File
Article 159(2)(c) of the Constitution allows for a pluralistic, "multiple-doors" resource for justice, addressing claims that may be overlooked within the formal court system. Although the Supreme Court adjudicated Republic v Karisa Chengo & 2 Others (2017) within a criminal framework, its reasoning sheds light on the unresolved anger surrounding these issues. The Court asserted that justice must be holistic and responsive to societal needs, a sentiment echoed in the High Court's acknowledgments in Republic v Mohamed Abdow Mohamed (2013) that restorative justice is a vital and necessary approach, as punishment alone may not fulfill societal demands.
Consequently, the criminal justice system's role is confined to determining criminal liability, deterring wrongdoing, enforcing State responsibility, and safeguarding due process. Though Article 50 ensures the right to a fair trial, true fairness, when viewed alongside Article 159(2)(c) calls for a justice process that is inclusive, participatory, and capable of providing restoration, even for offenders. To achieve this, affected families and communities must seek resolutions beyond mere punishment.
Courts are constitutionally mandated to facilitate reconciliation, mediation, arbitration, and traditional dispute-resolution mechanisms when approached. Article 20(4) directs that the Bill of Rights be interpreted in a manner promoting human dignity, equality, equity, and freedom. This directive necessitates a justice system prioritising balanced, people-centered outcomes rather than relying solely on adversarial processes.
The Alternative Justice Systems (AJS) Baseline Policy outlines a framework to achieve this balance, affirming three interrelated approaches: Integrating the lived realities of Kenyans into the justice system to enhance access; positioning AJS to bolster human rights and autonomy; and structuring AJS as a restorative justice model that fosters social inclusion through participatory and substantive processes.
AJS further broadens the array of participants in resolving such issues. Article 22(1) permits any person to initiate court proceedings, even when the matter does not directly concern them. This expanded locus standi allows individuals who are not direct victims to contribute to finding solutions. The Children Act (2022), focused on the best-interests principle, emphasises restoration, rehabilitation, and systemic reform over retribution. Similarly, Section 8(6) of the Protection Against Domestic Violence Act (2015) acknowledges that others may seek protective orders for individuals unable to voice decisions impacting their welfare.
Despite these frameworks, grieving parents and communities continue to suffer from psychological trauma, the absence of communal mourning, and a lack of survivor-centred truth-telling. Criminal jurisprudence often implies that punishment alone satisfies victims, neglecting the imperative to repair the relationships between schools and families, which are so crucial for community confidence, cultural cohesion, and emotional healing. The pressing need for a more holistic approach to justice remains vital in addressing the pain and complexity of these tragedies.
The suggestion that AJS should play a role in responding to mass tragedies does not imply a replacement for criminal accountability. When criminal conduct is proven, prosecution remains essential. The crucial question is whether punishment alone addresses the needs of grieving families, traumatised survivors, and affected communities. Parents, still mourning past tragedies, indicate that it does not. Those who carry unhealed wounds often affect those who never harmed them. Parents seek answers: What happened? Why did it happen? Could it have been prevented? What measures will ensure it never occurs again? Serving jail time is a temporary consequence; the loss resulting from injury or death is permanent, making healing and closure extremely challenging. As a sign of mourning, the country’s flag should fly at half-mast.
