Victor Kapiyo[1]
Petty offences are generally understood to be lesser criminal acts which attract less severe punishment. This is because they are considered to be of a lower level of seriousness compared to felonies and also due to the minimal degree to which they affect others or society. In some jurisdictions, the term petty offences is used interchangeably with the terms, minor offences, misdemeanours, summary offences or regulatory offences, while in other jurisdictions, these terms have been distinguished from each other.
In Ireland, for example, minor offences are considered to be those whose maximum prison sentence does not exceed one year. A similar position is held in the United States, with the distinction that if committed a second time, the offence becomes a felony. In Kenya, the term misdemeanour is defined in the Penal Code as “an offence which is not a felony”. Its meaning therefore, must be derived from the term felony, which is defined as “an offence which is declared by law to be a felony or, if not declared to be a misdemeanour, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more”.
In England and Wales, this distinction was abolished in 1967 by the Criminal Law Act and the term minor offences is now used in their classification. Hence, to understand and distinguish between minor and non-minor offences in their context, factors such as the circumstances of the case, the nature of the offence, the manner it was committed, the likely sentence, the views of the victim, or the previous criminal record are considered. Therefore, minor offences may be categorised as either: offences which by their nature are minor in themselves; or offences which are not minor in themselves but which, depending on the particular facts of the case, may be regarded as minor. For example, in the case of the offence of theft, if it involves a lower monetary value it is considered minor, and where the value is high, then it is not.
The Challenge
In Kenya, there are certain types of petty offences whose continued enforcement has become problematic. These offences include those that trace their origins from the outdated relics of English laws introduced during the colonial era, those contained in Statutes such as the Penal Code or, by-laws[2] established under the now repealed Local Government Act. Some of the offences under these laws, include among others: idleness, begging, loitering, drunkenness, disorderliness, prostitution, indecent exposure and other generally nuisances or offensive conduct.
Why are they problematic?
Firstly, some of these offences are so vague and broad in their description and as a result, are capable of wide interpretation. Some of these offences are defined in ways in which they potentially criminalise conduct that is essentially not criminal. Hence, they go against the well-established principle of legal certainty, which requires among others, that laws must be definite, clear and sufficiently precise to allow a person, to foresee, to a reasonable degree in the circumstances, the consequences of which a given action may entail. In Nairobi County for example, it is an offence to “make any kind of noise on the street”, “deposit any type of material or waste on the streets” or “idly-sit other than in recreational places. Whereas these may appear as legitimate provisions to regulate public order, the result is that their enforcement is subjective and the threshold for determining whether an offence has been committed or not, will largely be subjective and therefore, depend on the specific law enforcer, without an objective criteria.
Secondly, the enforcement of these offences subject ordinary civilians, many of whom are unaware of their rights, to unparalleled human rights abuses. These include: arbitrary arrests and detention; assault and mistreatment during arrest and detention; false arrests; unfair bail terms, irregular sentencing practices, and discrimination. A report by the Independent Policing Oversight Authority[3] revealed that only 40% of respondents were familiar with their rights upon arrest and that 53%, had experienced incidences of malpractices by police such as assault, falsification of evidence, bribery and threats of imprisonment.
Mass arrests or swoops commonly known as ‘operations’ routinely conducted by law enforcement agencies targeting street families, low-income people, minority groups including women and refugees. These are common-place in response to crime or sometimes as part of a strategy to raise revenue through fines, to clear streets of certain groups of people or mostly, to extort bribes.
The ‘operations’ are usually conducted on Friday’s or weekends, which means that an arrested person will have to stay in custody for the weekend, as the 24 hour stipulation, requiring persons to be brought to court will only be implemented no the next available court date, which is the following Monday. As a result, this usually provides law enforcement with leverage to extort, given the fear civilians have of staying in custody over an entire weekend.
Many who are arrested opt to pay the bribes to secure their early release, and avoid further fines, the inconvenience of detention, or further consequences. Those unable to pay, are usually detained mostly on trumped-up charges such as idling, loitering, drunk and disorderly conduct, possession of drugs, or violation of nuisance or other petty offences. When the cases make it to court, they are charged en masse and most accused plead guilty. This makes the trial process a guillotine where those who can’t afford bribes or fines are slaughtered. In the end, it is not about justice, but revenue.
A majority of those who end up in detention are those who did not “cooperate” by bribing, or are too poor to afford bail. Therefore, they end up languishing in detention for extended periods, a state exacerbated by poor record keeping, lack of legal aid or diversion, unreasonable bail terms, failure of courts to order non-custodial sentences or reasonable sentences, the dysfunctional presidential pardon system for petty offenders. The result is exposure of otherwise innocent civilians to hardened criminals, their introduction to criminal activity, untold suffering to their families as in most cases, it is the bread-winner who is arrested.
The enforcement of these offences further contributes to overcrowding in detention. According to World Prison Brief[4] the current prison population stands at 57,000 against a capacity of 20,000 inmates (official capacity is 27,000).[5] Further, 40% of these inmates are individuals awaiting trial. Yet, these figures do not take into account other detention facilities such as police cells across the country, which is the first port of call for detainees. A majority of inmates are young men between the ages of 18 and 25 years old,[6] capable of contributing to the economy other than languishing in jail.
It is also worth noting that the conditions of detention facilities such as remand centres and prisons are deplorable. Most of the facilities are old and dilapidated hence generally inhumane, unhygienic, and lack basic medical treatment facilities, especially for the mentally ill and persons suffering from HIV or Tuberculosis. There have been instances where children are mixed with adults, the sick are mixed with the healthy, and more so the mentally ill are detained instead of being transferred to medical institutions. Currently, there are an estimated 600 children accompanying their mothers to prison.
Lastly, our criminal justice system remains over-burdened and under-funded to tackle the volume of cases. As poverty and unemployment increase, so does crime. Even where legitimate arrests are made, poor casework, incompetence, and corruption continues to undermine successful prosecutions.
What should be done?
Firstly, and in order to reduce pre-trial detention and over-crowding, we must also limit the incentives that lead to the arrests in the first place. Outdated, obsolete, vague, unrealistic and unnecessary offences, must be struck out from our statutes. Further, there should be an audit of all offences to establish the efficacy of retaining them in the law, and their cost of implementation and contribution to the good and well-being of society.
The reforms proposed under the comprehensive Bill of Rights Constitution of Kenya, 2010, should be implemented to transform the criminal justice system. Policies such as the National Policy and Action Plan for Human Rights, Sentencing Policy, Active Case Management Guidelines, and the Bail and Bond Policy Guidelines should be given the force of law to ensure their implementation.
Further, the government should enact critical legislation such as the Prevention of Torture Bill;[7] ratify the Optional Protocol to the Convention against Torture and other cruel inhuman and degrading punishment; implement all concluding observations made by Committee against Torture; domesticate the UN Declaration on Human Rights Defenders; and implement the recommendations of the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa; implement the Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa; United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules); and, the Luanda Guidelines on Conditions of Police Custody and Pre-Trial Detention in Africa.
Moreover, the government should develop a national strategy on criminal justice to guide the coordination and objectives of the system. In addition, the strategy should include a comprehensive monitoring and evaluation framework to ensure that key milestones are achieved.
Further, whereas ongoing reforms in Kenya have resulted the establishment of key institutions,[8] accountability and transparency mechanisms within the criminal justice sector remain weak. As such, law enforcement officers should be held to account and where found culpable, be disciplined, arrested and prosecuted for corruption, human rights violations or abuse of office.
Funding for the criminal justice system is key to ensure the country’s development agenda is achieved. As such, there should be commensurate investment in reforming and revamping the system. Further, financing for the sector should not be limited to police and motor-vehicles. Critical departments such as the Legal Aid Service, the Probation and after-care services for example, are critical in promoting access to justice, reducing recidivism or managing non-custodial sentences. Funding must be provided for coordination of justice chain actors through among others, supporting Court Users Committees.
Lastly, there is need for innovation in the sector, and not just through the adoption of Information and Communication Technologies (ICTs) to enhance service delivery. Attention must also be paid to research and the review of critical areas such as the existing correctional programmes, bail administration and the non-custodial measures available. We must design and implement effective alternatives to arrest, prosecution and incarceration as the default measure, as opposed to the current practiced. The pre-occupation with punishment through detention as the sole method of correction of offenders should be resisted. Greater emphasis should be placed on correction and rehabilitation of petty offenders, to ensure they can be reintegrated back into society and supported to live normal lives as law abiding citizens.
References
[1] Victor is an Advocate of the High Court of Kenya and the Programme Manager responsible for Human Rights Protection at ICJ Kenya upto December 2016
[2] Local authorities had a separate system for the enforcement of the by-laws, complete with law enforcement officials (askaris), prosecutors and courts for hearing criminal cases
[3] Baseline Survey on Policing Standards and Gaps in Kenya, IPOA, see: http://ijm-deutschland.de/wp-content/uploads/2015/08/Baseline-Survey-on-Policing-Standards-and-Gaps-in-Kenya.pdf
[4] World Prison Brief. http://www.prisonstudies.org/country/kenya
[5] Administration Of The Kenya Prisons Organization http://www.unafei.or.jp/english/pdf/RS_No98/No98_IP_Kenya_2.pdf
[6] Convicted Prison Population by Age, KNBS http://www.knbs.or.ke/index.php?option=com_phocadownload&view=category&download=214:number-of-persons-reported-to-police-to-have-commi&id=72:justice-and-crime-statistics&Itemid=1128
[7] The Bill proposes a framework for the prohibition of torture
[8] Such as the County Governments, Council of Governors, National Police Service Commission, Independent Policing Oversight Authority, Judicial Services Commission, National Council on the Administration of Justice, Kenya National Commission on Human Rights, National Police Service Internal Affairs Unit, Ethics and Anti-Corruption Commission, Commission on Administrative Justice, Office of the Director of Public Prosecutions, National Council for Persons with Disabilities, County Public Service Boards
