The high number of traffic cases is disrupting the criminal justice system yet there is little evidence to show that sentences are making roads safe.
Traffic offences constitute more than a third — 36 per cent — of criminal cases in courts, reveals a study by the Office of the Director of Public Prosecutions (ODPP).
A deeper dive into the data shows that most infringements involve lapses that are not related to the use of the road, like touting, not wearing Public Service Vehicle (PSV) uniform and failure to renew driving permits. Public Prosecutions Secretary Dorcas Oduor says taking traffic offenders to court and criminalising minor crimes does not improve road safety.
“Is it better to arrest a mother caught for the first time not wearing a seat belt and to take her to remand for the whole day or is it preferable to give her an option to accept fault, have the traffic officer record the admission then direct her to where she should pay fine within a reasonable time?” she asks.
Legal and traffic experts say urbanisation and a high population growth, resulting in the rise in the number of vehicles and traffic cases, will overrun the courts if innovative resolutions are not adopted.
According to the study that covered the second half of last year, 36,491 traffic crimes were registered in courts, of which 501 involved fatal crashes.
The counties with the largest share of traffic offences registered in courts signal just how worse the situation could get if the status quo is maintained. The proportion of traffic offences in court varies widely by county, ranging from more than two thirds of criminal cases in Nairobi (71 percent), Narok (70 percent) and Mombasa (64 percent) to less than five per cent in West Pokot (four per cent) and Nyamira and Nandi (three per cent). Nakuru, Garissa and Mandera counties also recorded more traffic cases than other criminal suits combined during the six months under review.
Case studies conducted in Makadara in Nairobi, Kangundo in Machakos and Naivasha in Nakuru counties found that the most prevalent offences are touting, failing to wear PSV uniform and display PSV badge, operating a vehicle or motorcycle without a driving licence and driving on a public road without an inspection sticker.
Other violations are failing to keep records of employment and a fare table, violating speed limits, driving a vehicle without speed governor, operating vehicles with missing or unmaintained parts, carrying excess passengers, failing to buckle up, standing in a PSV and being a pillion passenger without a helmet.
These offences account for three quarters of the registered cases.
More than a third of the 5,040 traffic infringements registered in Makadara, Kangundo and Naivasha were related to touting and licence issues.
Ms Oduor says self-regulation can be used to settle minor offences. "For example, matatu and bus saccos should be tasked with ensuring their members wear uniform and desist from touting," she says.
Issues of compliance could also be addressed by the relevant institutions, Ms Oduor adds. “If someone is found driving using a licence that expired a few days or weeks ago, he or she could be warned and barred from the road until they renews the permit. When they go to renew the licence, they should pay a prescribed penalty,” she says.
ODPP Senior Principal Prosecution Counsel Gikui Gichuhi supports alternative routes to trial. “Remanding people for minor offences along with hardcore criminals may lead some to crime,” she says.
Kenya can learn from other countries on how to decongest courts and maintain road safety. In New York, minor traffic offences are resolved administratively.
The US city passed a law transferring the responsibility for settling moving traffic infractions from the criminal court to various departments of the New York State Department of Motor Vehicles.
The department's Administrative Adjudication Bureau handles minor offences such as improper turning, tailgating and wrong lane changing.
However, criminal courts try serious traffic violations such as vehicular homicide, driving while intoxicated, reckless driving and leaving the scene of an accident.
“Most Kenyans plead guilty just to get on with their lives. The punishment may never influence their behaviour since they may feel they were unfairly treated,” Ms Oduor says.
If one is taken to court for a traffic offence in Kenya, they are likely to be convicted. The national average conviction rate stands at 93 per cent.
But Ms Oduor says this is because most people plead guilty. In a typical traffic offence case, the accused usually turns up to court with a summon, with no accompanying arresting officer or evidence of the crime. “Most Kenyans plead guilty just to get on with their lives. The punishment may never influence their behaviour since they may feel they were unfairly treated,” Ms Oduor says.
In more than three quarters of cases where the accused pleaded or were found guilty, according to the study, they were fined between Sh1,000 and Sh5,000. Six per cent of those convicted were fined less than Sh1,000. The least fine imposed was Sh250, for being an excess passenger.
In many cases, traffic offenders give police officers bribes that are larger than the penalties prescribed. “People do this to avoid the hustle of going to court and because some of them do not realise that the penalties are often less punitive than the bribes,” Ms Gichuhi says.
Three quarters of those convicted in Makadara, Kangundo and Naivasha pleaded guilty in the first court appearance while more than a quarter — 27 percent — pleaded not guilty, leading to trials.
In more than a third of cases, imprisonment for one month was imposed for not paying fines. The minimum term passed was seven days and the maximum seven months.
Traffic cases constituted nearly half (47 percent) of the total cases registered in the three stations.
Road traffic deaths increased by six percent to 1,859 between January 1 and August 13 2018 from 1,760 over the same period last year, according to the National Transport and Safety Authority.
Challenges faced in prosecuting traffic offences include the high number of cases, lack of evidence at the time of registering the charge, failure by police officers to enforce summons and warrants of arrest issued in court and presenting traffic offenders without witness statements and exhibits, according to the study.
Other problems include missing crime scene evidence during the presentation of the charge sheet to prosecutors, bonded suspects skipping court appearances, lack of computer printouts due to irregular maintenance of speed guns and breathalysers and lack of previous records.
“In many instances, people who have been summoned to court do not show up. When they do, no evidence is presented against them,” Ms Oduor says.
“Take the example of one who is arrested for drunk driving and remanded overnight. When he appears in court the next day without forensic or video proof, he can easily claim he were sober.”
She adds that many of the challenges can be overcome through consistency and digitisation of processes. Inconsistency breeds disobedience. “If people are to be arrested for touting and not wearing PSV uniform, it should not be selective,” Ms Oduor says.
To decongest the court system, some countries have opted for spot fines. If the fine is not paid, the vehicle is impounded.
Ms Gichuhi says spot fines are a quick way to decongest the courts though the system could be prone to corruption.
Instant fines should not be misconstrued to mean the accused pays the arresting officers on the spot. The offender should commit to pay to a designated organisation within a given period, she says.
In Botswana, for instance, police officers issue an admission of guilt form to traffic offenders.
The offenders are then given 14 days to pay up. If they fail to so, the case is committed to court. They can still approach the police to arrange payment after the deadline.
In Denmark a traffic penalty system called the Demerit Point System (DPS) assigns a demerit point on a driver’s license for each traffic violation whereas a deduction of three points in three years leads to conditional suspension of a driving license. A conditional suspension implies that you must pass both theoretical and practical driving tests within three – six months to keep your driving license.
The new smart driving licenses being issued by NTSA could enable motorists to pay traffic violation fines at the point where they commit an offence. Information that will be digitally gathered about drivers could be used to create a database of offenders. “Such a database could track repeat offenders so that they get more severe sentences. Now, repeat offenders keep getting off through bribery,” says the Secretary of Public Prosecutions.
In Australia, infringement notices, also known as expiation notices are issued to traffic offenders. These notices do not carry penalty of imprisonment and an offender is given two weeks to pay the fine. There is no court appearance and no conviction is recorded and payment of fees is not an admission of guilt or civil liability.
The offender could also choose not pay the fine and be prosecuted instead.
Oduor says ODPP is in the process of developing prosecution guidelines for all criminal cases, especially traffic offences.