What are Petty Offences in the Kenyan Perspective?

in What?

Petty offences are generally understood to be lesser criminal acts which attract less severe punishment, they are considered to be of a lower level of seriousness compared to felonies.  In some jurisdictions, the term petty offences is used interchangeably with the terms, minor offences, misdemeanours, summary offences or regulatory offences, while in other jurisdictions, these terms have been distinguished from each other.

Petty offences in Kenya trace their origin from English laws that were designed to, among other things, force people to work, restrict the movement of potential labourers, curtail criminal activity, punish idleness, and enable law enforcement agents to make arrests without proof of actual commission of offences. These petty offences were contained in the Vagrancy Act, sections of the Penal Code[1] and by-laws established under the now repealed Local Government Act. Most of the offences punished among others, idleness, begging, loitering, drunkenness, disorderliness, prostitution, indecent exposure, nuisances and generally offensive conduct. Unfortunately, these offences were in some cases so vague and broad in their description and as a result, criminalized some conduct that is essentially not criminal.

The enforcement of petty offences has continued to subject citizens, many of whom are unaware of their rights, to unparalleled human rights abuses. These abuses include arbitrary arrests, denial of rights to fair trial; assault, harassment and degrading treatment during arrest and detention; false arrest; unfair sentencing practices; irregular fines; extortion; profiling and discrimination; unfair bail terms; stigma; and social marginalization. Arbitrary arrests and arbitrary accusations of citizens of crimes not committed, have continued to characterize the enforcement of petty offences in Kenya. Police and County law enforcement officers frequently stop and arrest citizens, often with excessive force, to extort bribes, or are used to settle personal or political vendettas on behalf of some individuals. Moreover, law enforcement officers often target specific groups such as women, young men, the poor and the disadvantaged. Further, mass arrests especially of street families, low-income people, minority groups and refugees, are common especially after terror incidences[2] or before high profile public events. Such arrests are carried out as part of a strategy to clear streets of unsightly people.

Groups such as sex workers, street vendors or hawkers, public service vehicle touts, street families, lesbian, gay, bisexual, and transgender (LGBT) community, persons who use drugs, human rights defenders, are also regular victims of such practices which may also include being placed under surveillance, harassment, threats and intimidation, even while in custody.[3]  In addition, LGBT individuals are vulnerable to profiling, discrimination, blackmail, rape, forced medical examination and ‘treatment’.[4]  Sex workers also face stigma making it difficult for them to access sexual health services.

The promulgation of the Constitution of Kenya, 2010, introduced reforms that significantly transformed the country’s governance. In its comprehensive Bill of Rights, the Constitution provides for the protection of the right to dignity; freedom from cruel, inhuman, or degrading treatment or punishment; freedom and security of the person; right to equality and freedom from discrimination; right to privacy; freedom of association; freedom of movement; right to fair trial and administrative action; rights of accused persons; right to access justice; right to health; right to non-discrimination right to access justice. The coming into force of the County Government Act in 2013, repealed the Local Government Act. However, the by-laws passed have remained in force, pending amendments by County Governments.

The government also enacted the National Policy and Action Plan for Human Rights, Sentencing Policy, Active Case Management Guidelines, and the Bail and Bond Policy Guidelines. However, it is yet to enact critical legislation such as the Prevention of Torture Bill and the Legal Aid Bill despite numerous commitments to do so in the past. Kenya is also yet to ratify the Optional Protocol to the Convention against Torture and other cruel inhuman and degrading punishment, implement all concluding observations made by Committee against Torture, or domesticate the UN Declaration on Human Rights Defenders. In addition, the country is yet to fully implement the recommendations of the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa; the Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa; and the Luanda Guidelines on Conditions of Police Custody and Pre-Trial Detention in Africa.

[1] Local authorities had a separate system for the enforcement of the by-laws, complete with law enforcement officials (askaris), prosecutors and courts for hearing criminal cases

[2]   Kenyan Nairobi blasts: Police arrest 627 in Eastleigh, BBC News, April 2014 http://www.bbc.com/news/world-africa- 26838638

[3] Prostitution, homosexuality, drug use and distribution, and street vending in certain areas are offences in Kenya

[4] Outlawed amongst Us, KHRC see: http://www.khrc.or.ke/component/docman/doc_download/14-the-outlawedamongst-us.html

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