Why Criminal Justice Reforms are on Course

The Daily Nation
By Grace Ngenye

When I read the Daily Nation article (June 17, 2020) on the Committee on Criminal Justice Reforms (NCCJR), my first reaction was gratitude for the attention the work we are doing to transform this critical sector is finally getting.

Many facts were missed and some inaccuracies peddled, but to be misunderstood is invariably better than to be ignored.

The reforms journey in the criminal justice sector started with an audit under the National Council on Administration of Justice (NCAJ) in 2015, which found many challenges.

For example, it found that the system is clogged up with petty offences, standing at 68 per cent at the entry point (police arrest and detention).

The audit revealed that all actors in the chain – the Judiciary, police, prosecution, prisons, probation, and the Children’s Department – had systemic, structural and agency challenges requiring urgent attention.

This is important to note because, even though it may be convenient to pile the blame on the Judiciary, this is a sector-wide challenge that can only be tackled collectively.

The existing legal framework, for example, is not sensitive to the needs of the youth. That is why they find themselves in conflict with the law. As a result, 75 per cent of pre-trial detainees in our prisons are aged between 18 and 35 years.

Besides, the number of poor people who are arrested, charged and sent to prison is alarmingly disproportional to that of the well-to-do. Many of them are in trouble for fairly minor offences such as lack of business licenses, being drunk and disorderly, and creating disturbances.

Along with this is a disturbingly low rate of successful prosecution of serious offences with, for example, only five per cent of sexual offences attracting a guilty verdict. Offences such as organised crime and capital offences have the highest rate of acquittals and withdrawals.

This obviously means that along the way freedom is procured, with the transaction taking place anywhere along the lengthy justice chain.

Chief Justice David Maraga subsequently set up the NCCJR, officially launched on January 15, 2018, with the express mandate to comprehensively review the sector and give recommendations that will drive the necessary reforms.

The operative word here is “to give recommendations”, principally because the reforms required to cure the debilitating challenges would need extensive legislation and other cross-cutting interventions.

Therefore, our success or failure – and we welcome extensive scrutiny– must be viewed from the perspective of the extent to which we have pushed forward the agenda as defined by our mandate.

Through thematic sub-committees, we have engaged stakeholders to understand the impediments to effective delivery of justice. We have visited the relevant institutions to understand the situation on the ground and, through public forums, we have identified the administrative, legislative, policy and other challenges that each institution faces, and the solutions.

We have, for example, developed a tool for assessing compliance with the United Nations Standard Minimum Rules for Treatment of Prisoners (Mandela Rules) in detention facilities, which helps identify legal, institutional and administrative barriers to efficient functioning of the criminal justice system.

The Committee has identified the petty offences to be decriminalised and reclassified. 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.

Better ways of dealing with the petty offenders has been recommended in the draft legal policy document which will be the basis of the forthcoming Criminal Law Amendment Bill.

The Committee has formulated the Draft Legal Policy Document that is the basis for amending the penal laws and will shortly start the process of formulating the Legal Amendment Bill, which is the expected outcome of this reform process.

The highlight of our work so far was the National Criminal Justice Reforms Conference last November.

A raft of legislative recommendations came out of this conference, including a substantive review of the Penal Code, Mental Health Act, Narcotic Drugs and Psychotropic Substances (Control) Act (1994) and the Sexual Offences Act, among others.

Proposed policy reforms include provision of legal aid to drug offenders because of the heavy penalties that the offences attract; creation of a service charter in every police station and equipping, operationalization and decentralisation of forensic labs.

Indeed, the Communiqué issued at the end of this Conference is the reference point for the respective institutions to fast-track their criminal reform agenda, which will be assessed a year from the date of the conference.

We have worked under severely strained circumstances, with limited funding and other resources, but I ask my colleagues and our valuable stakeholders not to be discouraged: We are on the right track, and moving at the right speed.

Lady Justice Ngenye is the Chair, Committee on Criminal Justice Reforms

3 August, 2020

The Campaign to Decriminalise Poverty and Status is a coalition of organisations from across the world that advocate for the repeal of laws that target people based on poverty, status or for their activism.


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