While Kenya’s new Constitution portends a lot of good, it also provides more opportunities for people to fall foul of the law. This, of course, is not a manifest intention but a latent consequence of the expanded law-making institutions.
According to 2012 estimates by the Ministry of Home Affairs, Kenya had 52,000 people in jail.
The new Constitution provides for a more expanded system of creating laws and as long as there is a new law, there will be candidates for its violation.
Besides Parliament, which has 290 members — an increase of 57 per cent compared to the 222 members of the 10th Parliament — there is also the Senate, another law-making institution.
Although a larger Parliament may not translate into a pro rata increase in laws passed, more manpower may increase the number of Bills drafted and could lead to a high number of laws passed in a given period, holding all factors constant.
The ultimate leap in enhancing the chances for falling foul of the law is the establishment of county governments. The Constitution mandates that each county government shall consist of a county assembly and an executive.
County assemblies will create laws, which will be implemented by the executive committees. The law says: “A county assembly may make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the county government”.
Considering that there are 47 counties, each with a law-making assembly, the magnitude of law-making at the county level will be monumental and the risk of falling on the wrong side considerable.
The combined effect of a National Assembly with an expanded capacity to legislate, the creation of a Senate and the introduction of 47 distinct centres of further legislation will bring about a phenomenal growth in the number of people who will be designated as “offenders” not because they have started acting differently but because either their routine activities will have been criminalised or they will be called upon to engage in new behaviours to remain in conformity with the law.
For example, a new law that prescribes tax filing procedures will create criminals of omission among income earners who will not act accordingly.
The problem will be compounded by the fact that the Constitution confers upon an arrested person the right “to be held separately from persons who are serving a sentence”.
With the anticipated soaring of the number of people to be arrested following the violation of the new and old laws, county governments might need to consider establishing remand facilities to house those awaiting trial. New prisons will be needed and old ones expanded.
In the US, for example, most counties operate county jails, not prisons, to hold people who are awaiting trial and those serving terms of a year or less. Those convicted of felonies and serving more than a year are sent to state prisons.
While punishment for street crimes such as robbery, burglary and assault may not change, white-collar, occupational and public order crimes are predicted to grow. In a country where congestion in prison is already chronic, immediate measures are necessary to address the likely growth in the prison population.
Dr Mbuba is an associate professor of Criminal Justice at Indiana-Purdue University in Fort Wayne USA.