While Kenya has a progressive Constitution, the country is grappling with, economic inequality, and the creeping militarization of public spaces. In spite of constitutional guarantees to equality and socio-economic rights, at both national and county levels of governance, life-sustaining activities remain criminalised.

Below are the relevant extracts of select by-laws taken from across the five metropolitan municipalities[1] in Kenya (with approximately 9 million people residing within them, combined).

[1] Nairobi, Mombasa, Kisumu, Nakuru and Eldoret

• Nuisance-related: The Nairobi City Country Public Nuisance Act of 2021 criminalises public nuisance which includes any act or omission which causes annoyance.

• Vagrancy: Two national level instruments[1] create vagrancy-related offences. A number of existing County by-laws also contain laws that criminalise activities and behaviours such as ‘loitering’ or behaving in a disorderly manner. One example is section 18(1) of Machakos County Commuter Motor Vehicle Act, 2015.

• Begging: Although begging is not established as a distinct, standalone crime, existing laws criminalise begging[2] as part of the prohibition of being “idle and disorderly”. Some County laws such as the Machakos County Commuter Motor Vehicle Act indirectly criminalise begging[3].

• Informal economic activity: Engaging in informal trade without a valid permit or trading in undesignated areas are prohibited by subnational laws. See, for instance, Nairobi City County, County Laws, Hawking.

[1] Section 182 of the Penal Code and Section 29(g) of the Criminal Procedure Code

[2] See Section 182 (b) of the Penal Code

[3] See section 18(1) of the Machakos Act which prohibits anyone from wilfully interfering with or obstructing anyone entering or alighting from a vehicle.

Penalties range from fines (KES 500 and KES100,000[1]) to imprisonment (up to 6-12 months[2]) for non-payment or repeat offences. Bribery and corruption have developed into a political economy, while harassment, intimidation and excessive use of force by police is also prevalent.

[1] Nairobi City County Public Nuisance Act, 2021, sections 8(2), 9(3), 10(5),11(6) and 21 (b); section 3(2) of Mombasa County Trade License Act, 2013. Also section 182 of the Penal Code and section 12 of the Kisumu County Finance Act 2023.

[2] Nairobi City County Public Nuisance Act 2021 sections 13 and 19(a)

An audit commissioned by the National Council on Administration of Justice (NCAJ) found that petty offences, such as those relating to being drunk and disorderly, creating disturbances, and lacking a business permit constitute 70% of cases processed through the criminal justice system. Police disproportionately target persons living in poverty. Interactions with police are often violent, manifesting in physical abuse, arbitrary arrest and detention, and mass arrest.

• Enforcement measures and practices have a disproportionate impact on historically marginalised and vulnerable groups.
• Street children are particularly vulnerable to police harassment.
• Persons in street-based situations, women, commercial sex workers, hawkers and street vendors, are targeted by law enforcement.

While laws[1] at both the national and county levels create petty offences that prescribe the imposition of a fine or a term of imprisonment or both, they do not expressly prescribe the imposition of a term of imprisonment in default of the payment of a fine. In some Counties, the laws[2] prescribe the imposition of a fine only. However, an audit of the Kenyan criminal justice system has established that 70% of cases processed through the criminal justice system constitute petty offences, indicating that many individuals are incarcerated for being unable to pay fines.

[1] S182 of the Penal Code, S46 of the Nakuru County Public Entertainment and Amenities Act 2014, S7(2) of Kisumu County Trade Licensing Act 2015; S25 (2) of Ussain Gishu County Transport Act 2015 and S 20(1) of  Nakuru County Public Health and Sanitation Act.

[2] S14(iii) of Ussain Gishu County Trade Licensing Act 2016: and S3(2) of the Mombasa County Trade Licence Act 2013

Kenyan courts have scrutinised the enforcement of by-laws against people in street-based situations, stressing that such actions must comply with constitutional protections, particularly the rights to dignity, housing and due process.

Mohammed Feisal & 19 Others v Henry Kandie, Chief Inspector of Police, OCS Ongata Rongai Police Station & 7 Others: 19 individuals were arrested (without warrant and without being notified of the reason) for being idle and disorderly. The court found the respondents jointly and severally liable for the infringement of the constitutional rights of the petitioners (including article 10[1]).

Susan Waithera & 4 Others v the Town Clerk, Nairobi City Council and 2 others [2011] : This case entailed a progressive conservatory order protecting residents that had lived in informal settlements for over 40 years. The City had given residents twenty four hours’ notice to vacate their premises, and the demolitions were effected the following day at night. The court held that there was a breach of the residents’ right to adequate housing, and affirmed that the State had an obligation to provide adequate housing for its citizens.

Micro & Small Enterprises Association of Kenya Mombasa Branch (Acting in the interest of its Members to the exclusion of those who may have sought reliefs in their own right) v Mombasa County Government & 43 others: The High Court in Mombasa held that the forcible eviction of hawkers from their designated business areas without notice or provision of alternative locations raised a credible constitutional claim. As a conservatory measure, the Court ordered the respondents to permit the conduct by the petitioners of their hawking business, in areas outside the Central Business District of Mombasa, as previously agreed with the county government’s predecessor, at designated places on days and times to be allocated by the County Government

Overall, the jurisprudence demonstrates a growing recognition that criminalising poverty is futile while increasing the risks of police abuse and is incompatible with international law and constitutional norms[2].

[1] This section sets out the values and principles underlying governance and includes human dignity, equity, social justice and inclusiveness equality, human rights, non discrimination and the protection of the marginalized (s 10(2) (b) ).

[2] Responses to homelessness and informal trade must be rights based, lawful and proportionate.

The establishment of National Committee on Criminal Justice Reforms (NCCJR)

In 2018, the National Committee on Criminal Justice Reforms (NCCJR) spearheaded a comprehensive review of the criminal justice system in Kenya to identify petty offences that should be the subject of decriminalisation and reclassification.  According to the Chairperson of the Committee, “the benefits for this will cut across all criminal justice sectors by ensuring that resources are directed towards the more serious offences, reduce case backlog, decongest prisons and reduce corruption and exploitation. In a draft legal policy document which will form the basis of the forthcoming Criminal Law Amendment Bill, the Committee further recommended better and rights-based ways of dealing with petty offenders.

The development of guidelines on the management of petty offenders

Guidelines on the Management of Petty Offenders, adopted by the National Council on the Administration of Justice (NCAJ) (page 36) provide a framework and guidance on how petty offenders  should be handled. As such, they have been designed for use by key actors within the criminal justice system in Kenya, including law enforcement officials, prosecutors and courts. They comprise normative standards and best practices for managing petty offenders throughout the criminal justice process, from the point of arrest to trial and sentencing. In their development, specific consideration has been given to vulnerable groups in Kenya, such as street children, persons with disabilities, street vendors/traders, and persons who engage in substance abuse. In terms of the guidelines, measures like decriminalisation and reclassification will be prioritised to mitigate the prosecution of petty offenders, and where appropriate, effective alternatives approaches, such as cautions and warnings will be applied.

The adoption of the revised Sentencing Policy Guidelines, 2023

These Guidelines were developed to provide a framework within which courts can exercise their discretion during sentencing in a manner that is “objective, impartial, accountable, transparent and which would promote consistency and uniformity in the sentences imposed”. Among other key provisions, the guidelines require Kenyan courts to avoid imposing a sentence of imprisonment for petty offenders, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody.

The development of Guidelines on Arrest and Conditions of Pre-trial Detention

The Guidelines on Arrest and Conditions of Pre-trial Detention, were developed by NCAJ through the National Committee on Criminal Justice Reforms (NCCJR) to address gaps and deficits between law and practice in the arrest, the handling of an arrested person, and pre-trial detention conditions. The guidelines[1] have been designed to serve as a capacity-development instrument for law enforcement officers, investigating officers, prosecutors, legal practitioners, judicial officers, among others. Significantly, the Guidelines present arrested persons as rights holders, and criminal justice system actors as duty bearers, tasked with the responsibility of respecting and upholding Constitutional rights.

[1] Specifically, pg 36

• Publication of data-led research studies by some independent human rights organisations in Kenya;
• Publication of materials, including learning materials, by the KNCHR and some civil society organisations, to raise public awareness about the challenges posed by the existence and enforcement of petty offences;
• Organisation and participation in webinars, including thematic webinars, such as the intersectionality of poverty and crime.

• Communique on criminalisation of poverty: A driver of Poverty?
• A Human Rights-Based Approach to Criminal Law, Including the Decriminalization of Conduct Associated with Poverty and Status
• Criminal Justice System in Kenya: An Audit
• Cash bail and systemic inequality: A socio-legal critique
• The crime of being poor
• Punished for Being Poor: Evidence and Arguments for the Decriminalisation and Declassification of Petty Offences’
• "Broken Chain Link"
• Child Justice Strategy (2023-2030)