By Justice Grace Ngenye: Justice should not only be done, but also be seen to be done. Public perception of an effective criminal justice system is largely shaped by the extent of security of life and property provided by the system.
Whereas the Government cannot guarantee complete elimination of crime, it must convey the message that crime does not pay by apprehending and punishing criminals without regard to social standing.
There is every reason to believe that the criminal justice system unfairly targets the poor. Conversely, the rich perceive crime as “a low-risk, high-profit” business because the chances of apprehension, prosecution and conviction are remote. At least this is what the rate of conviction of the rich and powerful seems to indicate.
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 up with petty offences, which stand at 68 per cent at the entry point (police arrest and detention).
From this audit we learnt a couple of crucial things:
One; 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.
Two; that the existing legal framework is not sensitive to the needs of the youth. 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 between the ages of 18 and 35.
Three; that 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 these poor Kenyans are in trouble for fairly minor offences such as lack of business licenses, being drunk and disorderly, and creating disturbances.
This creates the feeling that the poor are unfairly targeted by the criminal justice system, erodes confidence, and encourages law abiding citizens to take the law into their own hands. Rule of law and public order are the casualty when such feelings are prevalent in society.
The audit found that there 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 at the expense of justice.
This has resulted in congestion in prison facilities. The current prison population is approximately 55,000, which is the 17th highest imprisonment rate in Africa. The population is against an official prison system capacity of 26,757.
The audit found that pretrial detainees’ population was at 22,000, which translates to 85 per cent of the official prison system capacity.
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, 2018, to comprehensively review the sector and give recommendations that will drive the necessary reforms to make the criminal justice system responsive to needs of our society.
Through this committee, whose membership cuts across the justice system, we now have the opportunity to align our criminal justice system with new thinking that is influencing the sector in many other jurisdictions around the world.
For example, we now have the opportunity to decriminalise minor offences such as loitering and driving violations. Many jurisdictions have replaced these crimes with “non jailable” or “non-custodial” sentences.
This will help the country save on the huge amounts of money allocated in the national budget for the upkeep of such petty offenders in prison, and eliminates the social cost and stigma that arise from imprisonment.
Our criminal justice system is flooded with petty infractions of the law that we believe 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.
The challenge of the committee will be to find and recommend other types of social control mechanisms that induce punishment without turning to prisons. And these recommendations must come before end of this year when we are expected to complete our work.
It is my hope that after the reforms, Kenyans will correct one of the most embarrassing features of our justice system and decongest the prisons, as well as restore faith and dignity to the system.
Lady Justice Grace Ngenye is the chairperson of theNational Committee on Criminal Justice Reforms