Kenya could ease pressure on its overburdened courts and give crime victims a bigger role in the justice process by expanding criminal mediation for less serious offences, Advocate of the High Court and MTI East Africa President James Mang’erere has said.
Mang’erere, however, warned that mediation should not be used to handle serious crimes such as murder, some sexual offences and cases involving repeat offenders, which he said should remain before the courts. He also raised concern that weak support for former offenders after they leave prison could push them back into crime.
Speaking during a Radio Generation interview on Wednesday, Mang’erere said criminal mediation could offer a way of resolving minor offences without sending every case through the formal court process, helping reduce the workload facing the judiciary.
“There are those that cannot be mediated, and there are those that can be mediated. Yes, we have what we call felonies like murder and some serious sexual offenses or issues to do with repeat offenders. Those ones are left with the judiciary to deal with, but there are simple, simple offenses like assault, like defamation, things that people can resolve and to start clogging up the courts.”
His comments come as the Judiciary continues to promote alternative justice mechanisms as a way of improving access to justice and dealing with case backlogs.
Article 159 of the Constitution requires courts to promote alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
The Judiciary says its Court Annexed Mediation programme has referred more than 40,000 cases for mediation since 2016, with more than 17,000 full agreements reached by April 2026.
Mang’erere said criminal mediation should not be viewed simply as a way of keeping cases away from court, but as part of a wider approach to justice that also considers the needs of victims and the rehabilitation of offenders.
“We have three types of justice. There is what we call retributive justice. Retributive justice is where the offenders are prosecuted, and they are punished by being sent to jail. So punishment is the end result of retributive justice. Then we have what we call distributive justice. Distributive justice is where the aim of justice is to rehabilitate the offender. And then, lastly, we have what we call restorative justice.”
He said restorative justice places greater focus on the victim, particularly the harm suffered and the need for healing after an offence.
“Restorative justice does not only focus on punishment; it focuses on healing and empowerment of the victim. Because in our criminal justice system, and what we have always adopted from the Mzungu, was that when a crime is committed, the crime is committed against the state.”
According to Mang’erere, victims can go through the formal court process without getting enough opportunity to speak about the emotional impact of the crime or take part in efforts to heal.
“The victim does not have to start the process of healing because they were never given an opportunity apart from giving evidence in court to talk about their pain and therefore start the process of healing. So we ignore the victim. We send the offender to prison, and even if the offender is fined, the money goes to the state because the state feels more justified, more offended than the victim who was raped.”
Kenya's Victim Protection Act recognises restorative justice as involving reconciliation, restitution and responsibility, while also focusing on healing injuries resulting from offences.
Mang’erere said the justice process should also look beyond the period an offender spends in prison, warning that former offenders may struggle to stay away from crime if they return to communities where they face rejection and limited opportunities.
“If you come into society, you are not accepted. You are not allowed to have equal opportunities as any other person. Then what happens? You of course recede back to your criminal nature or your criminal past. You continue doing because it's familiar to you.”
He said rehabilitation efforts in prisons, including education, counselling and psychotherapy, should be supported by stronger programmes to help former offenders settle back into society after their release.
Mang’erere said Kenya needs a justice system that balances punishment with support for victims, rehabilitation of offenders and their successful return to society.
He maintained that while mediation can help deal with less serious offences and reduce the number of cases going through the courts, serious crimes must continue to be handled through the formal criminal justice system.
Recent Judiciary initiatives have similarly stressed that alternative justice systems should support, rather than replace, the formal courts and must operate within constitutional safeguards.