By Demas Kiprono
In May 2015, the Legal Resources Foundation Trust and the National Council on the Administration of Justice commissioned an audit into the criminal justice system in Kenya, with a specific bias to pre-trial detention and case flow management.
The survey looked at conditions of detention, the age of detainees, reasons and days of arrest, how many people were released without being charged and why, categories of offences, rate and duration of conviction for different categories of offences, and gender sensitivities, among other pertinent factors.
The survey relied heavily on official registers such as police station occurrence books, prison registers, records of police cash bonds, court records, etc.
Categories of offences were of interest because the state and stakeholders were intent on understanding where most time and resources were being spent in the justice system.
One of the most poignant findings was that a staggering 75 per cent of all prison inmates were young poor people charged with petty offences and state regulated offences.
This indicates that a big chunk of the criminal justice system’s time, energy and resources and manpower is concentrated on people that have no real bearing on individual and national security.
So that, instead of police officers following leads regarding tracing, arresting, prosecuting or convicting terrorists, robbers, defilers, human and drug traffickers, poachers and rapists – they are preoccupied with arresting, processing and prosecuting drunkards, weed smokers, public urinators, loiterers, vagabonds, hawkers and prostitutes. The same applies to waste of judicial, prosecutorial and correctional time and resources.
Billions of shillings and human resource allocations to the Ministry of Interior—and specifically the police, the DPP, the Judiciary and the Prisons Services—are being wasted on individuals who pose very little threat to the nation. This, in turn, causes a massive case backlog that puts serious crimes and rights of victims in the backburner.
Petty offences are misdemeanours such as loitering, drunk and disorderly, causing a disturbance or nuisance, vagrancy laws, prostitution and laws dealing with possession of marijuana. Essentially, these laws are colonial relics that were meant to subjugate Africans and criminalise poverty, homelessness and unemployment.
State-regulated offences on the other hand deal primarily with regulations meant to control economic activities and revenue regulations such as environmental codes and municipal bylaws that criminalise conduct such as touting and hawking. They do not concern themselves with security. Instead, they deal with licencing, certification or compliance with business rules such as opening hours.
It is noteworthy that some of these codes are legitimately vital such as health and environmental codes, which help to prevent outbreaks and environmental degradation.
Another finding in the audit report is that arrests for petty and state regulated offences, especially drunk and disorderly, would consistently increase on Thursdays and peak of Friday. Interestingly, by Saturday, 77 per cent of those arrested would be released without any reason with no further police action.
This phenomenon points to systemic corruption within the National Police Service. State resources and personnel are knowingly deployed, in the name of law enforcement and crime prevention, to tackle mundane and victimless ‘crimes’. Kenyans are arrested and coerced to ‘cough up’ money to avoid the prospect of spending the weekend in police cells.
Continuing to zealously enforce measures to curb petty offences discriminates against the poor and the young and contributes to overcrowding of detention areas and prisons. This defeats the rehabilitative nature of correctional facilities.
Moreover, enforcing laws dealing with petty offences is a waste of important police, prosecutorial and judicial time and resources and deflects from dealing with serious criminals.
It is worth noting that because petty offences are highly discretional on the part of the police, avenues for corruption are increased. This, in turn, strains vital police and community relationships because of the public views police as extortionists and enemies.
The government, Parliament and citizens need to seriously reflect on the use of criminal law to regulate certain if not most petty and state regulation offences which are victimless.
The survey is evidence enough that using criminal justice machinery “crowds out” dealing with “real” crime, which is a real concern given the security threats currently facing Kenya such as economic crimes, poaching, sexual offences and terrorism.
Guided by this overwhelming evidence, the National Assembly, the Attorney General and the Kenya Law Reform Commission in consultation with the public, should immediately embark on this noble cause of declassification and decriminalisation of certain petty offences.
Published by; https://www.the-star.co.ke/opinion/columnists/2019-03-25-time-to-declassify-decriminalise-some-petty-offences/