Reforms to cure criminal justice system of flaws are within sight

From right: Kirinyaga Governor Anne Waiguru, Chief justice David Maraga, his Deputy Philomena Mwilu and Lady Justice Grace Ngenye during the launch of the National Council on Administration of Justice at the Supreme Court on January 15, 2018. PHOTO | KANYIRI WAHITO | NATION MEDIA GROUP

What you need to know:

  • Hence the saying that justice should not only be done but also be seen to be done.
  • This obviously means that freedom is procured at the expense of justice.

Public perception of an effective criminal justice system is largely shaped by the extent of security of life and property that it provides.

Whereas the government cannot guarantee eradication of crime, it must convey the message that crime does not pay by apprehending and punishing criminals without regard to social standing.

Hence the saying that justice should not only be done but also be seen to be done.

RICH

Going by the rate of conviction of the rich and powerful, there is every reason to believe that Kenya’s criminal justice system unfairly targets the poor.

Conversely, the rich perceive crime as a ‘low-risk, high-profit’ business as chances of apprehension, prosecution and conviction are remote.

According to an audit by Legal Resources Foundation (LRF) and Resources Oriented Development Initiatives (RODI) in conjunction with National Council on Administration of Justice (NCAJ) in 2015, the criminal justice system is clogged with petty offences — at 68 per cent at the entry point (police arrest and detention).

The audit indicates that all actors in the justice chain — the Judiciary, police, prosecution, prisons, probation and the Children’s Department — have a lot of systemic, structural and agency challenges requiring urgent attention.

Secondly, the legal framework is not sensitive to the needs of the youth.

PRISONS

That is why they find themselves in conflict with the law in their bid to socialise and earn a living. As a result, 75 per cent of pre-trial detainees in our prisons are aged 18 to 35.

Third, the number of poor people arrested, charged and sent to prison is alarmingly disproportional to that of the well-to-do.

Many of the poor are in trouble for fairly minor offences such as lack of business licences, being drunk and disorderly and creating a disturbance.

This creates the feeling that the poor are unfairly targeted, erodes confidence in the legal system and encourages law-abiding citizens to take the law into their own hands.

The audit also found a disturbingly low rate of successful prosecution of serious offences with, for example, only five per cent of sexual offences attracting a guilty verdict. Organised crime and capital offences have the highest rate of acquittals and withdrawals.

This obviously means that freedom is procured at the expense of justice.

This has resulted in congestion in prisons, which hold 55,000 inmates — the 17th-highest imprisonment rate in Africa — against a capacity of 26,757. Pre-trial detainees’ population was 22,000, or 85 per cent of official capacity.

CRIMINAL JUSTICE

Upon receiving the audit report, Chief Justice David Maraga set up the National Committee on Criminal Justice Reforms, which he officially launched on January 15.

The team will comprehensively review the sector and give recommendations for reforms to make the criminal justice system responsive to the needs of the society.

Through the committee, whose membership cuts across the justice system, Kenyans have an opportunity to align the criminal justice system with new thinking that is influencing the sector around the world.

One is to decriminalise minor offences such as loitering and driving violations, which, in many jurisdictions, have been replaced with “non-jailable” or “non-custodial” sentences.

This will rid the country of the huge cost of keeping petty offenders in prison and eliminate the social cost and stigma of imprisonment.

Our criminal justice system is flooded with petty infractions of the law that could be dealt with through two front-end reforms: Reclassification and diversion. In the former, criminal statutes are changed so that minor illegal acts are changed from criminal offences to civil infractions that carry a fine.

It is hoped that the reforms will help to correct one of the most embarrassing features of our criminal justice, decongest the prisons and restore faith and dignity in the system.

Justice Ngenye, judge of the High Court (Criminal Division), is the chairperson of the National Committee on Criminal Justice Reforms. [email protected].