The effective and efficient functioning of the justice sector requires cooperation among various stakeholders to ensure justice is delivered. The National Council on the Administration of Justice (NCAJ) was established under Section 34 of the Judicial Service Act to serve as an umbrella body responsible for coordinating the administration of justice and leading efforts to reform the justice system. The NCAJ carries out its reform initiatives through officially designated multi-agency committees.
One such committee, the NCAJ Committee on Criminal Justice Reforms (NCCJR), was established to lead the comprehensive review and reform of Kenya's criminal justice system. This initiative was prompted by the findings of an Audit of the Criminal Justice System published in 2017, which exposed systemic weaknesses and inconsistencies in criminal laws, some of which have persisted since colonial times.
The NCCJR has achieved significant milestones, including the development of Guidelines on Law and Practice on Arrests and Conditions of Pre-trial Detention, Guidelines for the Management of Petty Offenders, a Fair Trial Guide and Checklist, and the Sentencing Policy Guidelines for 2023.
The NCCJR spearheaded the review of the Penal Code and Criminal Procedure Code, leading to the formulation of the Penal Code and Criminal Procedure Code Amendment Bills (2023). This review process, ongoing since 2020, has involved extensive consultations with stakeholders from justice sector institutions, legal experts, scholars, civil society organizations, mental health experts, the Justice and Legal Affairs Committee of the National Assembly, and grassroots communities through Court Users Committees.
The proposed comprehensive amendments aim to enhance the protection of the human rights of vulnerable individuals in Kenyan society, including those with intellectual and psychosocial disabilities, individuals with mental illnesses, children, and intersex persons.
The Audit identified that petty offenses constitute 70% of the cases processed through the criminal justice system. During the pre-trial stage, 68% of those arrested and detained are petty offenders, many of whom come from underprivileged backgrounds. Consequently, the rigorous enforcement of petty offenses and an overreliance on custodial measures have contributed to overcrowding in detention facilities, as most of these individuals cannot afford legal fees or fines.
For example, under the current Penal Code, individuals found guilty of the offense of "Idle and Disorderly" under Section 182 may face imprisonment for one month or a fine not exceeding KSh100 for the first offense, and imprisonment for one year for subsequent offenses. This category includes offenses such as "procuring or encouraging any person to beg or gather alms, publicly conducting oneself in a manner likely to cause a breach of the peace, committing any indecent acts without lawful excuse publicly, soliciting for immoral purposes in public places, and prostitution." These offenses are often vague, with uncertain evidentiary requirements, leaving room for law enforcement officers to make arrests based on mere suspicion or intent.
The Penal Code Amendment Bill proposes the repeal of Section 182 and its reclassification under different regulations to maintain the illegality of such behavior while ensuring that individuals are not automatically arrested, prosecuted, and imprisoned. Instead, alternatives such as issuing verbal sanctions upon arrest, community service, and attendance at rehabilitation centers are proposed. It is essential to clarify that this bill does not seek to legalize prostitution. Moreover, Sections 153, 154, and 155, which relate to prostitution and related activities, are already covered under Section 17 of the Sexual Offenses Act, rendering duplication unnecessary.
Additionally, the bill proposes the repeal of the offense of bigamy since such matters can be addressed through civil proceedings in divorce cases rather than criminal proceedings.
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The Committee's recommendations do not include lighter penalties for murderers. Instead, they suggest categorizing murder and robbery into first and second degrees to ensure that the punishment aligns with the gravity and circumstances of the crime. First-degree offenses would cover heinous crimes, with the death sentence as the maximum penalty. Second-degree offenses would result in a life sentence upon conviction. For other offenses that carry a mandatory death penalty, the bill proposes to make this penalty discretionary while retaining death as the maximum sentence.
These proposed amendments, among others, aim to promote equality in the criminal justice system, regardless of an individual's social status. Should Parliament accept these bills, they will undergo the entire legislative process, which includes extensive public participation.
Hon. Lady Justice Ngenye is a Judge of Appeal and chairperson, NCAJ Committee on Criminal Justice Reforms (NCCJR).
