May 5, 2017
By NLM Reporter
Criminalisation of petty offences in Kenya has, over time, provided a basis for gross violation of the human rights of poor and vulnerable populations, especially in cities and major urban centres. Even after the promulgation of the Constitution of Kenya, 2010, hundreds of thousands of hawkers, touts, commercial sex workers, debt defaulters and street urchins face punishment, extortion, deprivation and violence at the hands of law enforcement agencies.
And, through a new law and policy research titled “Law and Policy on the Petty Offences and Practices Affecting Populations at the National Leven and in Kisumu, Mombasa and Nairobi Counties”, the International Commission of Jurists (Kenya Chapter) set out to find the roots of this criminalisation. The research was carried out between 2014 and 2017 and findings formally presented at last month at the Hilton Hotel.
According to the findings, lack of a clear definition of the term “petty offence” creates a problem of categorisation. Oftentimes it is has been used to mean misdemeanour, which really is an inconclusive definition. That some of the offences falling in this category are so vague and broad in their description leaves them capable of wide interpretation – which discretion is often abused by the law enforcer. Still, some offences in their definition criminalise conduct that is essentially not criminal. This comes about when pre-2010 statutes are not harmonised with the Constitution, or when new county legislation does not meet the constitutional threshold. The results defy the well-established principle of legal certainty requiring laws to be definite, clear and sufficiently precise to allow a person to foresee, to a reasonable degree in the circumstances, the consequences of which a given action may entail.
Specifically, the research found certain sections of the Penal Code, including Sections 175 (1), 182 and 193, to be offensive to the Constitution of Kenya. Profiling and discrimination of minority groups and vulnerable groups such as the mentally challenged persons and the LGBTIQ community demonstrated a wide gap between constitutional provisions regarding non-discrimination, human dignity and torture, and the reality on the ground where culture and traditions die hard.
The research also identified unreformed county government bi-laws, currently in application in Nairobi, Mombasa and Kisumu Counties to be out of sync with the County Governments Act, 2012, and the Constitution. It reported high cases of extortion of bribes from vulnerable groups in all the three counties, especially street vendors. A curious number of detention facilities were also singled out for non-adherence to the right to privacy and the rights of minors. Inmates are routinely held together irrespective of their gender and age.
As a panacea, the report recommends the repeal of all legal provisions criminalising petty offences and the introduction of an alternative framework for petty offences, clearly defining such offences, reclassifying them as misdemeanours that do not attract criminal sanctions, and providing for non-custodial sentences as punishment for those found guilty of these offences. The Chief Justice promised to set up a judicial taskforce with the task of implementing these findings.
The report also underscores the importance of collaboration between state and non-state agencies in lieu of strengthening continuing reforms of structures and practices in handling petty offences by justice system actors. Specifically, it recommends the dismantling of the “askari system” and the introduction of the metropolitan police services under the national police service and county policing authority, while civil society consolidates effort towards advocacy in the reform process.
This would allow law enforcement agencies to conform to the constitutional standards of law enforcement and policing. The Kenya National Commission on Human Rights was also tasked with and urged to initiate human rights orientation and training as well as research to establish the economic cost of the criminalisation of petty offences. The report recommends the inclusion of human rights training in the curriculum for law enforcement agents.
While the ICJ’s efforts must be commended, it remains to be seen whether their endeavour will yield much good. A particular point of concern is the dire working conditions the majority of law enforcement officers operate in. Unless they are improved, bullying could persist as results of psychological trauma or as a means of survival in dire economic times. In their research and recommendations, the ICJ report makes little mention of this.
First Published by Nairobi Law Monthly