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CRIMINAL JUSTICE REFORMS: ISSUES AND OPTIONS FOR KENYA

ICJ Kenya hosted the 2018 Annual Criminal Justice Conference on 13 July 2018 under the theme, “multi sectoral approach to criminal justice reforms: issues and options for Kenya”.
The continuing challenges facing the criminal justice system raises questions about the adequacy of the formal regulatory system. While there have been notable achievements in the context of reform, it is clear that improving the performance of law and justice processes is a complex and long term task which goes beyond the strengthening of particular institutions. The deliberations at the conference will equip participants with the requisite knowledge to address the challenges facing the criminal justice which will be useful towards enhancing the reform agenda.
The conference brought together key stakeholders in the criminal justice chain, members of the Bar and the Bench in Kenya, civil society organizations, community based organizations, academia, relevant State agencies and other strategic actors in Kenya to discuss the continuing challenges facing the criminal justice system raises questions about the adequacy of the formal regulatory system.
While there have been notable achievements in the context of reform, it is clear that improving the performance of law and justice processes is a complex and long term task which goes beyond the strengthening of particular institutions. The deliberations at the conference will equip participants with the requisite knowledge to address the challenges facing the criminal justice which will be useful towards enhancing the reform agenda.
Contextual Background
Kenya’s legal system is based on statutory law, English common law, customary law, and Islamic law. It has evolved from the inheritance of its English Common Law tradition to modern day system adapting to the changing social, economic and political trends. The Courts adhere to the principle of stare decisis, and like other common law countries, the legal system is adversarial in its procedure.[1]Kenya’s criminal justice system involves various actors with defined duties and responsibilities in managing offenders. Key players in the criminal justice system in Kenya are the police (investigation and arrest); the judiciary (the court process); the probation after care services and the prison services (rehabilitation, reformation and reintegration).
The policy, institutional and legislative frameworks governing the various spectrums of the criminal justice system have largely been reformed to build a more effective and efficient system which administers justice for all. More importantly, is the establishment of the National Council on Criminal Justice reforms whose mandate is to offer recommendations needful to reform the criminal justice system. While this has been welcomed, the system still continues to grapple with challenges touching on the various actors of the criminal justice chain as follows.
The police play a critical role as the point of entry – for every offender – to the criminal justice system. They receive and record complaints, arrest suspects/ accused persons, investigate cases and most importantly draw up the charge sheet. In the year 2012-2013, the National Police Service recorded the following results. A total of 221,478 crimes were reported of which 68,257 constituted serious crimes. A total of 71,924 crimes were investigated, 59,424 arrests were made and 54,368 cases prosecuted. Some 14,905 ended in convictions. However, a large number of cases (29,192) taken to Court by the police were pending. Dismissals account for 2,627 cases, acquittals 4,327 and other disposals 3,851.128. According to a recent Audit on the criminal justice system in Kenya ,it was found that the police face a number of challenges which include  excessive arrests, lack of knowledge of the law, lack of prosecution skills, poor coordination and lack of supervision by the Office of the Directorate of Public Prosecutions (DPP) contributing to delays in case flow management.[2]
The Judiciary of Kenya has made remarkable progress in effecting efficient delivery and administration of justice to the populace. However the increasing caseload has overburdened the court system and amounted to delays in criminal trial proceedings. [3] A recent report by the Judiciary found great concern on the back log of cases despite the cleanup in the judiciary. This has not only affected the prison facilities but also the subjects of the criminal justice system. In 2016/2017 financial year the total case backlog stood at 315,378 cases. Out of these, 52,332 cases had been in the court system for over 10 years since they were filed, the same ratio as the previous year. A fifth or 66,214 cases remained unresolved for between five and 10 years, a third or 113,766 suits were undetermined for two to five years and a quarter or 83,046 cases had languished in the justice system for one to two years.[4]Despite the courts in the judicial hierarchy system having a range of non-custodial penalties available to them for example, probation and community service orders the courts still make considerably low use of the available supervised non-custodial sentence, preferring imprisonment and fines instead.[5]
The prison service operates as an integral component of the overall law and justice system. As the end-of-the-line agency, many of the problems it faces are a consequence of inefficiencies in other parts of the system. Our Kenyan prisons are largely populated by remandees. Delays in court proceedings have largely contributed to overcrowded prison institutions whose facilities are limited[6]. Many of these remandees are petty offenders who would be more appropriately dealt with using alternative forms of punishment such as community service orders or by decriminalizing most of the petty offences such as loitering without intent. Major human rights violations and abuse are taking place in the pre-detention and pretrial stages as well as violation during trial and detention for petty offenders. These violations affect different people differently based on their gender, age, profiling and category of petty offence they are suspected to have committed, in all the counties.[7]
The Probation of Offenders Act CAP 64 represents a model for reforming offenders using non- custodial sentences. Probation officers have now been placed in various counties in a bid to enhance the use of non- custodial sentences as an alternative to imprisonment. While the use of probation and community service orders is gradually being embraced, lack of capacity remains a major constraint. There is a distinct lack of adequate training for probation officers to build competencies to address emerging demands from criminal activities and to adapt modern evidence based supervision and rehabilitation programs.  Moreover, the current number of probation officers is not adequate to meet the demands of all magistrates and High Court. A huge number of officers have left the service to join County governments and Constitutional Commissions while others have exited due to natural attrition. This has left the Department with a deficit, which poses a serious challenge in service delivery, as there is no immediate replacement.[8]
“The criminal justice sector is one of the core areas of focus for judicial reform. Among the objectives of criminal justice reforms is the enhancement of efficiency and effectiveness in the criminal justice system. This entails: ensuring the speedy resolution and disposal of criminal cases in court, ensuring that the rights of the accused are upheld during the entire justice process, providing infrastructure to support the criminal justice process, among other objectives,” said Lady Justice Lyida Achode, Speaking during the conference.
The continuing challenges facing the criminal justice system raises questions about the adequacy of the formal regulatory system. While there have been notable achievements in the context of reform, it is clear that improving the performance of law and justice processes is a complex and long term task which goes beyond the strengthening of particular institutions. The deliberations at the conference will equip participants with the requisite knowledge to address the challenges facing the criminal justice which will be useful towards enhancing the reform agenda.
“Most of the ills which beset our country, and hence our criminal justice system are ultimately traced to the laws governing the criminal justice sector in Kenya- a fact which no observer of the criminal justice system in Kenya – and certainly no lawyer – can ignore if he wishes to have the faintest understanding of the realities of our system.” ICJ Kenya Chairman Mr. Kelvin Mogeni
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[1] CRIMINAL JUSTICE SYSTEM IN KENYA (2017) page 35: An Audit Understanding pre-trial detention in respect to case flow management and conditions of detention retrieved from https//www.kenyalaw.org on 28th May, 2018
[2] CRIMINAL JUSTICE SYSTEM IN KENYA (2017): An Audit Understanding pre-trial detention in respect to case flow management and conditions of detention retrieved from https//www.kenyalaw.org on 28th May, 2018
[3] Lawyers, courts take blame for delays in handling cases By Kamau Muthoni | Published Sat, April 28th 2018 at 10:12, Updated April 28th 2018 at 10:16 GMT .Retrieved from: https://www.standardmedia.co.ke/article/2001278484/lawyers-courts-take-blame-for-delays-in-handling-cases
[4] Dorothy Otieno (2018): Thousands of cases choke courts despite cleanup drive. Retrieved from https://www.nation.co.ke
[5] CRIMINAL JUSTICE SYSTEM IN KENYA (2017) page 77: An Audit Understanding pre-trial detention in respect to case flow management and conditions of detention retrieved from https//www.kenyalaw.org on 28th May, 2018
[6]See Stella Chrono: Judiciary and ODPP move to reduce backlog of cases (May 23, 2018), ‘The Nairobi Remand Prison currently holds nearly 3,100 prisoners. As at January 17, 2018, a total of 2,532 cases are pending within the 12 magistrate court stations in Nairobi alone, with Makadara Court accounting for the highest number at 1,164 followed by Milimani which has 417 pending cases. Retrieved from https://www.nation.co.ke/news/
[7]ICJ Kenya publication on “Law and Policy on the Petty Offences and Practices Affecting Populations at the National Level and in Kisumu, Mombasa and Nairobi Counties.”
[8] CRIMINAL JUSTICE SYSTEM IN KENYA (2017) page 76: An Audit Understanding pre-trial detention in respect to case flow management and conditions of detention retrieved from https//www.kenyalaw.org on 28th May, 2018

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