Nairobi — Kenya's criminal justice system is so fundamentally defective that without a radical surgery it is foolhardy to imag-ine that it can help fight crime effectively. Generally speaking, the myriad problems facing the criminal justice system stems from two major sources.
First, the system having been conceived and built up by British colonialists to address the problems of a simple, mainly agrarian, society founded on race and class distinctions, it has become anachronistic and inadequate in a modern society on the edge of rapid urbanisation, industrialisation, democratisation and rights consciousness.
In other words, the philosophical and jurisprudential underpinnings of Kenya's criminal justice system make it inherently unsuitable for the needs of contemporary society. Secondly, for a variety of reasons, the system, though admittedly inadequate, suffers from the greater shortcoming of being enforced haphazardly, even capriciously, and in a most mechanical and unimaginative manner.
The point here is that the various agencies that constitute the criminal justice system - the Police, courts, criminal remands, prisons, juvenile homes and community service orders - do not operate in a co-ordinated or coherent manner and quite often work at cross-purposes.
It will be recalled, for instance, that the Commissioner of Prisons Abraham Kamakil has often blamed courts for congesting prisons with minor offenders and remand suspects. In the meantime, the courts themselves are hindered by little indeed diminishing scope of discretion on sentencing and most importantly the knee-jerk expectation of the general populace to harsher jail-terms as the one effective response to rising crimes.
In the last three years that I have taken keen interest in Criminal Law, I have made four observations on our criminal justice system. First, more than 70 per cent of all criminal cases fall within Division Five of the Penal ode which deals with offences relating to property.
The significance of this anecdotal statistic is that economic relations in our society generate the bulk of criminal cases and therefore issues of economic growth, justice and equity cannot be ignored in any serious endeavour to eradicate crime.
Secondly, virtually all criminal suspects are not represented by lawyers and the few who are represented are either affluent members of society or out rightly dangerous criminals. Amateur criminals and fairly innocent people are rarely represented by lawyers.
The immediate implication of these revelations is that the most dangerous criminals are less likely to be convicted than first offenders. This is particularly so because more than 90 per cent of all prosecutions are conducted by police prosecutors who are more likely to botch-up the state's case than professional state Counsels. An even more interesting revelation is that some hardened (career) criminals are so good that services of a defence lawyer would just be a luxury.
Thirdly, it would appear that, officers serving in special units particularly anti robbery squads are more affluent or financially better endowed than others on regular duties. The apparent income differentials can only be attributed to corruption. Obviously this means that career criminals have greater capacity or opportunity to compromise the criminal justice system. Little wonder therefore that a fairly liberal policy of extra-judicial executions has not succeeded in decimating "most wanted criminals". Fourthly, whenever I listen to criminal hearing of unrepresented suspects or read the attendant judgements particularly in robbery cases, I get the distressing feeling that trial magistrates - particularly the junior ones - need crash courses in criminal psychology.
To me, when you see a suspect with hardly anything to say in his defence - particularly if he was not caught in the act or red handed as it were - that is a sign of innocence more than guilt.
More often than not, such suspects may have been picked in identification parades of dubious integrity and owing to their innocence, they may end up asking no intelligible question, which is often taken as inference of guilt by trial magistrates. This problem is particularly acute because, even if the prosecution had no good case, there seems to be a policy or routine that all criminals be placed to their defence.
There are at least five steps that can be taken to curb rising crime. First, the Police Force is due for radical reforms. This is one institution that is seriously plagued by cronyism, tribalism and sheer ineptitude occasioned by glaring absence of professionalism and merit-based promotions.
As a practitioner on the criminal bar, I have come across virtually illiterate police inspectors on the one hand and I have had the fortune of meeting very professional constables who have remained in that lowly position for between ten to thirty years.
In a democratic country, there is no reason why the police should be prohibited from forming trade unions to agitate for their welfare. Of course reasonable restrictions can be put in place with regard to such unions.
In the meantime, the absence of such unions has led to the evolution of a corrupt force that eschews merit and professionalism. Additionally, the Police Act is due for reform to remove unfettered discretion that has been used by senior officers and politicians to compromise the independence of the force. Secondly, the Attorney-General and Minister for Justice should do something about police prosecutions. Serious criminal cases should be prosecuted by professional prosecutors. This will necessitate a rapid expansion of the public prosecution office but, the advantage would be more conviction of dangerous criminals and assurance that innocent people and petty criminals are not charged with grave offences, thereby risking excessive imprisonment.
Thirdly, there is an urgent need for enactment of a Bail Reform Act. Several years ago, Justice Mbogholi Msagha noted that an "examination of local authorities reveals that considerations other than to secure the attendance of the accused to take his trial are taking centre stage in deciding whether or not to grant bail," despite the fact that all the Constitution requires is imposition of "such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial."
What this means is that if an accused person can attend court upon payment of minimal bond or even free bond, there is no reason why he should be remanded for inability to raise inordinate sums of money. Since courts have been unable to follow the letter and spirit of the Constitution in granting bail, it is time Parliament intervened by enacting a Bail Reform Act.
Fourthly, the proposed judicial reforms should especially target the criminal justice system. The introduction of the Criminal Division in the High Court has contributed a lot to speed up murder trials and hearing of appeals from the lower court. The Court of Appeal should have a criminal division on permanent circuit in the major courts in the country to expedite final appeals. Other High Court stations outside Nairobi should also have criminal divisions because delay works out obvious injustice in criminal cases.
It will also help for the Court of Appeal to rescue itself from intellectual subservience to Parliament. The laws of robbery cry out for reform, but whenever the highest court has been confronted with patent injustice calling for expression of disapproval, it has taken refuge in deference to the nebulous "will of Parliament".
Finally, the time has come for all Kenyans to honestly face the economic circumstances that breed property-related crimes. In a country where more than half the adult population have no gainful employment, it is pretentious to argue that criminals must not steal or rob to survive. This is by no means a case for nonpunishment of criminals. On the contrary, the argument here is that a society that would rather believe criminals are born than nurtured by society deserves every havoc unleashed by criminal elements.