Firstly, some of these offences are so vague and broad in their description and as a result, are capable of wide interpretation. Some of these offences are defined in ways in which they potentially criminalize conduct that is essentially not criminal. Hence, they go against the well-established principle of legal certainty, which requires among others, that laws must 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. In Nairobi County for example, it is an offence to “make any kind of noise on the street”, “deposit any type of material or waste on the streets” or “idly-sit other than in recreational places. Whereas these may appear as legitimate provisions to regulate public order, the result is that their enforcement is subjective and the threshold for determining whether an offence has been committed or not, will largely be subjective and therefore, depend on the specific law enforcer, without an objective criteria.
Secondly, the enforcement of these offences subject ordinary civilians, many of whom are unaware of their rights, to unparalleled human rights abuses. These include: arbitrary arrests and detention; assault and mistreatment during arrest and detention; false arrests; unfair bail terms, irregular sentencing practices, and discrimination. A report by the Independent Policing Oversight Authority revealed that only 40% of respondents were familiar with their rights upon arrest and that 53%, had experienced incidences of malpractices by police such as assault, falsification of evidence, bribery and threats of imprisonment.
Mass arrests or swoops commonly known as ‘operations’ routinely conducted by law enforcement agencies targeting street families, low-income people, minority groups including women and refugees. These are common-place in response to crime or sometimes as part of a strategy to raise revenue through fines, to clear streets of certain groups of people or mostly, to extort bribes. The ‘operations’ are usually conducted on Friday’s or weekends, which means that an arrested person will have to stay in custody for the weekend, as the 24 hour stipulation, requiring persons to be brought to court will only be implemented no the next available court date, which is the following Monday. As a result, this usually provides law enforcement with leverage to extort, given the fear civilians have of staying in custody over an entire weekend.
Many who are arrested opt to pay the bribes to secure their early release, and avoid further fines, the inconvenience of detention, or further consequences. Those unable to pay, are usually detained mostly on trumped-up charges such as idling, loitering, drunk and disorderly conduct, possession of drugs, or violation of nuisance or other petty offences.. Police have also been reported to use torture and violence frequently during interrogations as well as to punish pre-trial detainees. Mentally disabled persons are also often held against their will in detention facilities or mental institutions, sometimes at the behest of their families.
The conditions in detention facilities in the country are generally inhumane, as the facilities are overcrowded, unhygienic, and lack basic medical treatment facilities especially for the mentally ill and persons suffering from HIV or Tuberculosis. In some facilities, women are not separated from men, and neither are minors from adults, nor the ill from the well. In addition, sexual abuse of the mentally disabled and female inmates, including their solicitation for sexual favours by law enforcement officers, remains a problem in a country where already one in five women has experienced sexual violence in their lifetime. Children are also detained for petty offences without access to legal aid. Further, detention periods remain excessive, a state exacerbated by poor record keeping, disproportionate sentencing, lack of legal aid and poverty due to unreasonable or excessive bail conditions. The lengthy pre-trial detention periods and the failure to use non-custodial sentences or the presidential pardon for petty offenders, further aggravate the human rights violations and continues to worsen overcrowding in detention facilities. For persons with mental disorders in contact with the law, the limited treatment facilities and bureaucracy required for their release also intensifies their abuse by increasing their detention periods. Further, the lack of a proper framework for assessing mental states before trial has resulted in their trial and detention of some.
A majority of those who end up in detention are those who did not “cooperate” by bribing, or are too poor to afford bail. Therefore, they end up languishing in detention for extended periods, a state exacerbated by poor record keeping, lack of legal aid or diversion, unreasonable bail terms, failure of courts to order non-custodial sentences or reasonable sentences, the dysfunctional presidential pardon system for petty offenders. The result is exposure of otherwise innocent civilians to hardened criminals, their introduction to criminal activity, untold suffering to their families as in most cases, it is the bread-winner who is arrested.
When the cases make it to court, they are charged en masse and most accused plead guilty. This makes the trial process a guillotine where those who can’t afford bribes or fines are slaughtered. In the end, it is not about justice, but revenue. Unfortunately, where legitimate arrests are made, poor casework, incompetence, and corruption continues to undermine successful prosecutions. In addition, many arrested persons often plead guilty to the charges to avoid lengthy trial periods. Lastly, our criminal justice system remains over-burdened and under-funded to tackle the volume of cases. As poverty and unemployment increase, so does crime. Even where legitimate arrests are made, poor casework, incompetence, and corruption continues to undermine successful prosecutions.