NAIROBI, Kenya, Mar 30- The country’s criminal legal justice system is one of the major drivers of poverty as it largely focuses on punishing the poor in favour of the rich and the elite, Chief Justice David Maraga has said.
Speaking while he launched a conference on the need to decriminalise petty offences on Thursday, the CJ has called for a paradigm shift in handling such offences through strengthening accountability and transparency mechanisms within the criminal justice sector.
“Kenya must move decisively in this direction for the use of non-custodial sentences will go a long way in decongesting prisons. The Community Service Order that came into force in 2003 has been helping in this regard but its budget is still too thin to make it completely effective,” he stated.
“Decriminalization is a long and complex process. Modifying sanctions, which is a significant part of it, however, represents only the beginning of the decriminalization process. Sanction-focused approaches to decriminalization perpetuate the idea that the chief goal of decriminalization is to reduce or to eliminate punishment.”
A report by the International Commission of Jurists, dubbed Poverty is not Crime, which highlights major loopholes in the justice sector that push the poor into bribing their way back to freedom, was launched during the conference.
To reverse the current trend, Maraga pointed out that in a few weeks time he will gazette members of the National Council for Administration of Justice task force on criminal justice reform to implement the recommendation of the report and also examine the whole question of decriminalization and reclassification of the petty offences.
“We all aware that 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 reclassification, criminal statutes are changed so that minor illegal acts are changed from criminal offenses to civil infractions that carry a fine,” he said.
“In diversion programs, individuals charged with low-level criminal offenses can have the charges dismissed if they perform community service, enter substance abuse treatment or follow other requirements.”
“The leading school of thought in this discourse is that laws and norms are established to serve the interests of the social elite, and therefore some behaviours are penalized more heavily than those acts that are penalized more heavily or more frequently are generally those associated with the non-elite and the poor while the laws that affect the elite are less enforced.”
The Chief Justice cited a recent report by the National Council on Administration of Justice (NCAJ), which revealed that out of the 33,194 inmates in prison, 12,704 of them are first-time petty offenders who qualify for release under the Community Service Orders programme.
Further to that, 75 per cent of pre-trial detainees are below the age of 35 years and basically at the peak of their earning potential.
“This, in my view, may suggest that Kenya’s Criminal Justice System is a major driver of poverty and must be reformed,” he lamented.
– RECOMMENDATIONS –
The report has called for the dismantling of all County Inspectorate Departments and instead introduce a metropolitan police service which will fall under the National Police Service, in a bid to enhance transparency and accountability in their operations.
The report focuses on the need to decriminalize petty offences attracting criminal sanctions in the country, with County Askaris being accused of being major perpetrators while there are no proper channels of putting them to accountability.
Cyprian Nyamwamu, a consultant with the ICJ, while presenting the report pointed out that in spite of legislative and structural reforms occasioned by the new Constitution, the area of petty offences remains without reforms.
The report has further called for a repeal of provisions in laws that classify and criminalize petty offences such as unnatural acts, public nuisances, idleness and disorderly, soliciting for immoral purposes among others, which remain criminalised in the Penal Code.
Potential and actual petty offenders continue to experience different human rights violations according to the report, which includes arrest, detention before trial, trial and sometimes post-trial period.
Other recommendations include advocacy to jumpstart the reform process and litigation to consolidate best practices in addressing petty offences, the implementation of the Human rights policy and action plan and human rights orientation and training among law enforcement agencies to abide with the reformed legal and policy framework.
The report also calls for a study by the Kenya National Commission on Human Rights to establish the economic cost of violations of rights and detention and trial of poor, vulnerable people resulting from the criminalization of petty offences.