The National Council on Administrative Justice (NCAJ) recently launched the Criminal Justice Reforms Committee (NCCJR) on January 15, 2018 at the Supreme Court Gardens. The committee was constituted on June 23, 2017 following a series of advocacy initiatives by different state and non-state actors for the establishment of a structured approach to criminal justice reforms in Kenya. Since its establishment, the committee has developed its terms of reference, constituted thematic subcommittees and began revisiting evidence based research materials to inform its work. The launch brought together representatives of the Council of Governors, office of the Attorney General, National Council on Administrative Justice, Judiciary, Kenya Defense Forces, National Police Service, Probation Department and Civil Society Organizations, all of whom are actors in the criminal justice chain.
During the launch, it was noted that a lot of attention has been devoted to the repeal and amendment of previously existing domestic laws and policies following the advent of the 2010 Constitution, but little attention has been paid to laws touching on criminal justice, which borrow largely from the British colonial laws. The enforcement of these penal laws especially by law enforcement agents continuously create more societal problems rather than solutions and subject ordinary civilians, many of whom are unaware of their rights, to unparalleled human rights abuses[1].
The Penal Code of Kenya for example, codifies offences and penalties majority of which are misdemeanors with penal sanctions that are not commensurate to the offences while some attract custodial sentences despite the non-severity of the offence. The prescribed punishment for petty offences such as idle and disorderly [2]and common nuisance [3] for example are disproportionate to the offence in light of the nature of the offences.
As relates to the consequences of continued enforcement of laws that criminalize petty offences, the findings of a recent Audit of the Criminal Justice System in Kenya done by Legal Resources Foundation (LRF) and Resource Oriented Development Initiative Kenya (RODI) was highlighted, stating that “28,768 prison inmates have been incarcerated for petty offences and this number represents the majority of the offenders in prisons in Kenya, who due to financial constraints were unable to raise the requisite bail to secure their freedom.”
Hon. David Magara, the Chief Justice of the Republic of Kenya, in his remarks reiterated the existence of opportunities to decriminalize laws that criminalize petty offences in Kenya. Further, Prof Githu Muigai, the Attorney General of the Republic of Kenya in his speech also regretted the current overcrowding, poor hygiene and sanitation conditions of detention facilities in Kenya saying “Our prisons are populated by people who should not be in prison in the first place such as petty offenders.”
It was a going concern that the continued imprisonment of petty offenders is a mockery to the rule of law and principles of justice. It is indistinct that social problems are not solved by incarceration of petty offenders. A rational alternative should therefore be adopted alternate to imprisonment to prevent continued violation of human rights of alleged petty offenders. The need to remove penal sanctions from petty offences (some of which are classified as misdemeanors in the Penal Code, while others are provided in county by-laws) is apparent and formed part of the underlying reasons for which the Committee was set up.
The committee remains committed to its criminal justice reform agenda, policy reforms including review of criminal laws in Kenya and better administration of justice.
Human Rights Protection Programme
ICJ Kenya
[1] Policy Brief on Law and Policy Research on the Petty Offences and Practices Affecting Populations at the National Level and in Kisumu, Mombasa and Nairobi Counties retrieved from http//:www.icj-kenya.org on 16th January , 2018
[2] The Penal Code of Kenya (CAP 63) Section 182
[3] The Penal Code of Kenya (CAP 63) Section 175(1)
