Confidentiality, Power Dynamics, and the Promise of Mediation in Kenya

Judge Jacqueline Kamau sat down with In the Robe to explore how out-of-court settlements advance women’s rights, clear court backlogs, preserve relationships, and protect vulnerable litigants from public scrutiny in Kenya. She analyzes the intersection of formal judicial rulings and customary traditional justice systems, explains how retired judges are embracing ADRs, and dispels the myth of the emotionless judge.

Honorable Judge Jacqueline Kamau is a member of the High Court in Kenya with more than ten years of experience on the bench. She is vice chair of the Gender Section of the Commonwealth Magistrates and Judges Association, and the chair for East, Central and South Africa, a certified mediator and arbiter, and a member of the fellowship program in the U.S. Chamber of Commerce. Judge Kamau also has a long trajectory advancing women and girls rights.

We interviewed her in June 2026.

It is the third podcast in a series that also explores navigating Sharia law in Malaysia and justice during wartime in Ukraine.

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Ana Cardenas (WJP): Welcome to In the Robe, a podcast series where we learn and listen from judges around the world. I’m Ana Cardenas, your host, and today we’ll be speaking to Honorable Judge Jacqueline Kamau, a member of the High Court in Kenya, a key promoter and expert on alternative dispute resolution mechanisms (ADRs) and women’s rights. 

Welcome, Judge.

We would like to start our conversation by hearing what the key benefits of ADRs are, perhaps sharing a bit of the context you face in Kenya today.

Judge Jacqueline Kamau (Kenya): Thank you so much for having me.

Maybe a month ago, we managed to get about 20 more judges for the High Court. This is where the bulk of the cases are. So, we are currently about 105 judges – but you're calculating this against a population of 55 million Kenyans.

We are having a huge backlog of cases in the courts, and for us to be able to sort out these problems, it's important that the citizenry and the litigants understand the need to have matters mediated out of court. It is faster, it is more consensual, it is voluntary. It's also very confidential, because court documents are open to everybody and everybody can look at them. These are some of the benefits that I see for the citizenry. How fast do you want to get your justice?

As a judge, I would obviously be very happy if the people who are in front of me are able to resolve matters. Because if they resolve the matter, then it cuts their time of waiting in court. At the end of the day, I have happy clients; people who are happy and people who will maintain their relationships.

If I give decisions in court, then it means there's a winner and there's a loser.

Remember that ADRs will help people maintain their relationships. If I give decisions in court, then it means there's a winner and there's a loser. Once there is a winner and a loser, the relationships [between] these people, whether it's business or family, will become very strained.

 

Mediation helps to maintain relationships, what a crucial benefit that you have highlighted. Even though there are so many benefits, ADRs sometimes face resistance, is this the case in Kenya?

Currently in Kenya, we are having a lot of resistance from the advocates.

What is the reason they are giving? They are saying the non-advocate mediators are not lawyers, so they cannot understand the legal issues.

When you're talking about ADRs, it's got nothing to do with the expertise of a particular person. It all depends on the skills of a mediator to be able to facilitate the discussions between the parties.

The litigants themselves to court resisted. In my country, there will be a crown at the back of the court. So, if they see that, then they acknowledge that person. They acknowledge the judge because they have authority, but they do not understand that the mediators also have this kind of authority because once the judgments are signed, then they come to us, they become judgments.

We've also come up with the suggestion that maybe there needs to be a renumeration skill for the advocate, so that the advocates don't feel like they're losing anything. But I think that maybe with sensitization and more training, then advocates will be able to understand.

When I was in an ADR practitioner, we wanted to train the judges. The judges told us, no. The area of dispute is only for judges. They could not see any other way in which people could enter the arena of resolving the disputes. Nobody wanted to listen!

How do you how do you teach a judge?

One of the things that you have to understand was the misconception that judges cannot be trained; they are learned people. So how do you how do you teach a judge? What happened is that we now sensitize them. We do not train them. But they have seen the benefits of arbitration and the benefits of mediation, especially as they go out to retire. We are now having many of them wanting to be trained, and they are actually going back again to class.

 

Sensitizing judges with perspective of retired judges sounds like a great strategy to advancing ADRs. Are ADRs useful to advance women’s rights?

When you're talking about women, they have low economic power compared to the men.

The woman will definitely be at disadvantage because the woman will be self-representing.

If you find a woman against a man in court, chances are that the man will be able to afford to get an advocate to represent them. The woman will definitely be at disadvantage because the woman will be self-representing. If the dispute becomes long drawn for five, six, seven years, the man can still be able to sustain it. But the woman is not able to sustain that kind of long-drawn-out problem.

When you're talking about maintenance, the reason why this woman has taken you to court is because they want to be paid money to pay school fees for their children, to go for medicals. They want custody for their children because maybe their children are young. That's the reason they're in court. So, if you have a whole drawn out process, it becomes a problem. But if you're able to help these people to mediate, then they're able to agree quickly, and it becomes very advantageous. Economically it becomes less expensive for them. The other thing, for a woman, your reputation is also at stake.

 

So, would you say that confidentiality would protect women more than men?

Of course. Nobody will ever know what the settlement was all about. But if it's out there in the open, then it becomes a subject of discussion.

People are going to make fun of you; people are going to troll you.

For a man, it really doesn't matter. But for the woman, especially when you're fighting about much matrimonial property, for example, you you're going to have issues. What happens is that later on, it's going to be covered in the media. People are going to make fun of you; people are going to troll you. You end up becoming a subject of discussion. But if you're in ADR nobody will ever know what it's all about.

 

You've described so many important benefits, the confidentiality, the costs, the duration… but are there any limitations of ADRs when advancing women’s rights?

Culturally, Africa is very patriarchal. It means that you as a woman, you are somehow subjected to the lower level.

We are having a lot of femicide in Kenya. And every time when you report to the police station, for example, they'll tell you: 

“No, you go home and negotiate with your husband: It's not African for you to bring a dispute against your husband in the police station.”

If you say you were raped in the marriage you are told that there is nothing about marital rape. In Kenya, we don’t have any law about marital rape. Once you're married, you subjugate yourself to your husband. You cannot complain because you become like a property to him. When you go back again to the house, you go to the pastor, maybe the church. The church tells you, we want to look for alternative ways in which to resolve this dispute, we do not want you to divorce.

So again, they continue praying on some sort of ADR.

 

Judge Kamau you've touched upon so many interesting points, one of them being the relevance of the pastor or the church in listening to conflict. Could you describe the interaction between this community-based or alternative justice systems with the justice administered by the state?

As a court, I am mandated to promote traditional justice systems.

There are certain courts which have been able to integrate this very well by ensuring there are particular days of the month where people come and have elders listen to their cases within the court system.

When you go to court, you can either go through the route of the alternative justice system, you can go through the route of the court annexed mediation, or you can go through the route of the court. So, they are not part of the audience. They sit there and negotiate and listen to the cases.

One of the things that we need to know is that alternative justice system cannot contravene the Constitution, and it must not be something that violates, or is repugnant to justice and morality.

For example, maybe a father is involved in incest, having sex with a with a daughter. When that happens then the elders come, they meet, and the wife cannot acknowledge, you’re told to keep quiet. It means that they have told you that you are so incompetent, that you cannot even ensure that the conjugal rights of the husband have been met. He even has to go to the children, you are that useless. You are not even fit to be a woman.

If you complain, then you're banished from the society. So, you keep quiet.

So you see, that kind of alternative justice system is wrong, because it's repugnant to justice and morality. It's also against the contravention of the Bill of Rights and of the Constitution.

I have forgiven the person who killed my child.

There's another example. I did one recently where people came for alternative justice and said, I have forgiven the person who killed my child.

I've forgiven him, because I know he was mentally unstable. He has given me seven goats, they've given me money, they've given me maybe traditional liquor, and we have shaken hands and the case is over. But the Director of Public Prosecutions was refusing and saying that it is their mandate to prosecute the cases. I had to make a decision.

I hold that justice belongs to the victims.

The mother of the victim has come and said: I do not want to go on with the case. And for me, I hold that justice belongs to the victims. If you feel that you want to forgive these people, well and good. I hold my school of thought. Alternative justice system, indigenous system, if it works, it works. It's for the benefit of the people. Let everybody go home and they can relax.

Because even if the person is jailed – and they are jailed for life or sentenced to death – your child still cannot be brought to life.

When I allowed this case, the mother was very happy and she said, I have accepted, I've forgiven him and let's move on. He did apologize to the mother and really regretted that he had killed the lady. It was also a case of femicide.

 

How do judges cope with listening to so many serious cases and so much harm?

As a judge, remember you are a neutral party, you must remain detached from the case. Don’t get emotionally involved, as much as possible. That is a skill you have to learn. It is difficult, but you have to do it.

At the moment, the judiciary is formulating a policy of psychosocial support, but because of the stigma that is attached to mental illnesses, people do not want to go and see therapists. Nobody wants to go and see those doctors. Because even the doctors, they cannot be trusted, because when you're dealing with judges, there could be a lot of gossip that maybe that judge is not mentally stable; people have been very scared about that.

Who am I to sentence somebody to death?

Ana, maybe I can add something else. I'm a Roman Catholic. You find that there are certain things that might be very stressful. The church talks about no abortion, no divorce. These are stresses that might not come with the job, but you have to internalize within yourself. I was conflicted: who am I to sentence somebody to death? Only God can do that. So even religion does come in. I'm glad that the death sentences have not been carried out.

 

Thank you for sharing that. What a powerful example and it illustrates so well the difficulty of being a judge. As you know, this podcast tries to shed light onto judges and the judicial role. What misconception would you like to dispel?

There are quite a number of them!

When people look at us out there from out there, we don't look human. They look at us and they think that we are very inhuman, we are insensitive. It's like you don't have any feelings. You're a human being and you're part of the society.

The common man does not expect the judge to be emotional. 

I remember a time when judge was bereaved by a very, very close family member and the person was crying, and the whole social media blew up and said, how can a judge cry? Because you're supposed to be made of steel. You cannot even have those emotions.

People also look at us as enemies. It is not me who has sentenced you. It is the facts that have sentenced you to this particular offense. But I could be wrong, and that's why you need to go to the next court and find out was I right or was I wrong?

People need to understand that the reason why we are there, why we exist, is to make your life comfortable. If I don't put bad people in jail, you are not going to sleep. My job also is to ensure that your money is out so that you can go and enjoy, and you can construct, and invest.

We are good people. We are not enemies of the people.

 

Judges are not enemies, and judges are not emotionless. I think it is interesting to understand that people are not punished by judges, rather by their facts. Thank you Judge Kamau and thank you for listening. Until the next time!

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