CRIMINAL JUSTICE IN KENYA LEGAL AND SOCIAL CHALLENGES

CRIMINAL JUSTICE IN KENYA LEGAL AND SOCIAL CHALLENGES

A PAPER PRESENTED BY

HON. LADY JUSTICE KALPANA RAWAL

ON BEHALF OF

THE KENYA WOMEN JUDGES’ ASSOCIATION

AT THE

JUDGES COLLOQUIUM

BETWEEN

30

AUGUST TO 3

SEPTEMBER, 2005

AT MOUNT KENYA SAFARI CLUB NANYUKI

CRIMINAL JUSTICE IN KENYA

LEGAL AND SOCIAL CHALLENGES

INTRODUCTION

The Kenya Women Judges Associations mandated me to speak on the topic;

“THE LEGAL AND SOCIAL CHALLENGES WITHIN THE CRIMINAL JUSTICE SYSTEM”.

This paper aims at highlighting some of the practical difficulties presented by the recent amendments to the Penal Code, the Criminal Procedure Code, the Evidence Act through the Act number 5 of 2003 as well as enactment of the Children Act 2001 and the Anticorruption and Economic Crimes Act.

Although space and time may not allow in this paper for us to enter into a detailed and exhaustive discourse on the challenges the law enforcement Agents including the Courts have faced in regard to crimes related to Terrorism, Economic Crimes and Tribal Conflicts we hope to elicit some thoughts

which may help us in developing a common approach.

This paper will also highlight certain instances in Criminal

Appeals where miscarriages of Justice may result from actions

or incidences during the trial which constitute material

irregularities but which does not materially affect the quality of

Criminal Judicial process, in all societies and by extension in all countries, is directly and deeply associated with socio- economic conditions.

Unfortunately it fails to exert an exalted place in the Judicial system, may be because it lacks the romanticism of Constitutional Law, or the emotionality of Family laws or the financial weight of civil laws. Yet it represents the real and humane or inhumane sides of any nation.

The judicial process has been approached with a subtle indifference by all stake holders, despite the fact that all ought to know or be aware, that it is the most important Judicial System involving human dignity, human rights, morality and culture of any society.

Enough of these lamentations. Let us come to the reality of the system which is called Criminal Justice.

I do not intend to go deep into reasons, but it cannot be denied that the rate of crime is growing leaps and bounds.

That fact itself raises legal and social challenges.

We are challenged to deal with this factor of our social and legal side effectively and fairly in the face of directives stipulated in Section 77 of the Constitution which enjoins us to afford a fair hearing to the person charged with a Criminal offence within reasonable time.

Do we have adequate support from all the stake holders

to fulfill the said obligation?

Let us find out why and how we do not have that support.

Those causes which straight away and conveniently come to our notice are:

1. Lack of comprehensive and professional investigation by the police

2. Lack of efficient, willing and competent prosecution

3. In murder cases lack of proper defence representations by counsel holding pauper briefs.

Those are obvious causes but there are latent challenges which are paused by legal and social factors.

I. LEGAL CHALLENGES

Under this heading I shall only deal with three Acts namely;

1. Act No. 5 of 2003, and 2. The Children Act 2001

3. The Anti-corruption and Economics Crimes Act.

By enactment of these three Acts, the face of the Criminal Justice has changed drastically.

1. ACT NO.5 OF 2003.

This Act has made sweeping changes in all the relevant criminal statutes. I shall quote a few.

Amendments to the Evidence Act (Cap.80)

This Act changed the laws on admissibility of confession by

made by an Accused person is not admissible unless it is made in court.

However, Sections 26,

27

and 29

are not touched and kept intact, while Sections 28, Section 30 and Section 31 are repealed. (For easy reference I have quoted them in the schedule).

(A) Effect of the said amendments.

(a) On one side the confession or admission of fact tending to proof of guilt is not admissible unless made in court and on the other hand Section 29 is kept intact which talks about circumstances under which a confession made to a police officer shall be proved. Similarly Section 26 and 27 stipulate how the confession made by the Accused is admissible.

Apart from being contradictory in letters and spirit these provisions create nothing but confusion.

(b) Section 31 which dealt with discovery in consequences of information received from Accused is deleted. It gives a fatal blow to the already fragile investigating side of the state.

(c) Requirement that confessions may be made

before magistrates does not seem to have

been properly thought as various issues may arise

i. whether the provision is constitutional because it does seem, that the magistrates are placed in dual roles namely;

(a) Judicial officers and (b) Investigators.

Whether these dual roles are contemplated under the Constitution? It cannot be because the Judicial Officers cannot wear more than one hat.

Is a magistrate to become a witness during the trial

especially if the confession is retracted during the

trial? This amendment was perhaps made in

response to international principles of protection

against torture. Police and investigating officers

sometimes abuse the accused persons physically

and verbally during detention and interrogations

through the use of torture. How does the court

balance its independence and the protection of the

fundamental human rights when Magistrates

become investigators? How does the court balance

its role as the protector of public law and public

interest?

(d) Section 65 of the Evidence Act is not very clear.

Moreover it is silent on evidence of Video/CCTV recording.

(B) Amendment to Criminal Procedure Code. (Cap.75)

(a) With deletion of provisions of committal proceedings, the High Court is flooded with murder trials. The Attorney General’s office lacks machinery to shift the cases which could be tried as manslaughter.

(b) Section 235 – dealing with requirement of alibi warning to be given by the magistrate before the committal is repeated without inserting appropriate section into part IX – which deals with procedure in Trials before the High Court.

The result thereof is that the prosecution is totally in dark as to the defence of alibi which the Accused may be raising. The laws on alibi remain the same which does not place any burden of proof on the Accused despite the deletion of requirement of alibi warning.

( c) The use of Section 309

by the prosecution is a

far cry in the desert.

(d) Supervisory Roles of High Court over Criminal Cases:

In some jurisdictions, High Courts must confirm sentences passed by subordinate courts within a reasonable time after they are passed and before any substantial part of it is served e.g. Botswana.

In Kenya this could be done under Section 362

of the Criminal Procedure Code, with some amendment to the Section to make it mandatory.

Many illegal sentences are served especially where fines are imposed or short sentences given.

Offenders end up serving their sentences substantially or wholly which could have been avoided if High Court played effective supervisory roles.

In a recent Decongestion exercise carried out by the Kenya National Community Service Orders in May this year out of 1100 cases reviewed half of those involved illegal sentences.

(e) Summary allowance of appeals

Section 352(A)

of the Criminal Procedure Code

provides for this. The Hon. Attorney General (A.G)

has not put this section to use at all.

In the past almost half the appeals could be disposed off this way, with active participation by Attorney General’s office.

(C ) Amendments to the Penal Code (Cap.63).

We shall concentrate on amendments in Part XV – offences against morality vis-à-vis Children Act.

(a) Penal code does not define ‘child’. As per Children Act, 2001 the child is defined as “human being under the age of 18 years”

(b) Similarly child of tender years is defined as “child under age of ten years” under the Children Act. But

provisions of Section 14(1) of the Penal Code holds only children under eight years not to be criminally responsible for his acts or omissions. Similarly under the Penal Code a child under the age of 12 years is not responsible criminally if he does not have capacity to know that he ought not to do the act or omission and also that male child under 12 years is incapable of having carnal knowledge.

Thus under the Children Act a child of tender years is under 10 years of age, while the Penal Code has different provisions.

(c) We cannot perceive the reason behind repeal of

Section 150 of Penal Code which prescribed an

offence by a householder permitting defilement of

girl above the age of 13 years and under the age of 16 years. No similar provision is reenacted.

The other sections in part XV of the Act (Sections 143

, 144

, 145

, 149

) also limit the offence affecting a person (boy or girl) either of 13 years of age or 16 years of age.

This conflicts with the definition of a child as per the Children Act, 2001.

With these provisions in the Penal Code, the offence against a child between 17 and 18 years is not an offence – and we think the same is unjustified.

It is interesting to note that in Section 164

offence of indecent assault on boys is amended to read 18 years from the initial 14 years but the same is not done in respect of girls. The choice of ages of children in various provisions is at random, so it seems.

Other vivid examples of haphazard or inconsistent amendment are Sections 146

, 147

, 148

, 151

and 152

of the Act wherein the words

‘woman or girl’ is replaced by word ‘person. But in

Section 157 the same are retained and new sub

section is enacted in respect of man and boy. If it is

(2) CHILDREN ACT, 2001

(a) This Act prescribe special procedure in respect of Child offenders in Part XIII. (Section 184 to 194) –

(b) The trial in respect of offence of murder implicating a child is before the High Court (Sec.184) (c) Section 190(2) prohibits death sentence to the Child. Although death is a mandatory punishment under Section 204 of the Penal Code, Section 25(2) of the Penal Code itself provides for different sentence in respect of the Child under eighteen years which fortunately corresponds with the definition of Child under the Children Act 2001.

(d) Section 194

prescribes that the proceedings in respect of the child offenders be conducted in accordance with rules set out in fifth schedule.

Rule 10(4) of the Child Offender Rules (5

Schedule) provides that remand in custody of a

child offender shall not exceed six months in the

case of an offence punishable by death. Similarly,

so far as High Court is concerned, Rule 12(3)

stipulates that the maximum period of remand shall

be six months after which the child shall be released

on bail. The matter does not and Rule 12(4) provides

that if the case is not completed within 12 months

after the plea is taken the child shall be discharged

and shall not be liable to any further proceedings for the same offence.

(e) These provisions create the legal challenge in view of Section 72(5) of the Constitution which forbids bail to the persons charged with offences punishable by death.

Do the statutory provisions of Penal Code and Children Act contravene Constitution?

I have considered the issue in Cr. C. No. 101 of 2003 – R. –v- Stephen Zambi and have concluded

that the charge of murder is not punishable by death so far as Child Offender is concerned and thus those provisions do not contravene the constitution.

I could be right – I could be wrong.

(f)

Second challenge is the completion of the case within 12 months. We do feel that the said limitation is not only fair but necessary so as to minimize the time in which the child is required to be in that atmosphere or surrounding of criminal proceedings.

But the real picture is otherwise and the state

does not seem to realize the seriousness of the

to discharge the child offender as required by law without trying them.

That in other words is unfair to the family of victim and against the public interest.

With the enactment of the Children Act, other statutes like Penal Code and Criminal Procedure Code are not amended to harmonize these laws.

(f)

Coming back to the time limit. What happens if the case is part-heard but not

completed within 12 months?

3. Elirema Case CA No.67 of 2002 and Ekimat Case No.151 of 2004.

These two Court of Appeal decisions made it mandatory for appellate courts to set aside conviction in cases where the police officers who conducted the trial was of a rank below that of an Acting Inspector as provided under Section 85(2) as read with Section 88 of the Criminal Procedure Code. That order is made even where the evidence adduced is watertight. These rulings have led to a serious miscarriage of justice as well as far reaching ramifications to the criminal justice system, namely;

(a) Retrials have been ordered

(b) Many retrials have not taken off due to the

following amongst other problems.

i. Unavailability of witnesses

ii. Lack of Exhibits, which may have been released or destroyed

4. The Anti-corruption and Economic Crimes Act No. 3 of 2003

This Act has created a category of Magistrates called Special Magistrates under Section 3(1) of the said Act. These magistrates have three unique powers which other magistrates do not have, namely -

(a) under Section 3(1) of the Act, Special Magistrates can be considered as a person and not an institution as envisaged by Section 65(1) and 77(1) of the Constitution. This point needs to be considered closely. I shall. Special Magistrates are creation of Act of Parliament. Section 65(1) of the Constitution stipulates a Court to be established by the Parliament. No mention of Court in the Act. It could have been either by amendment in the Act or in Magistrates Courts Act.

(b) Under Section 3

of the Act, the Special Magistrates are empowered to try cases under the Act.

(c) Under Section 5(1)

of the Act, the Special Magistrates have

powers to pardon any person with a view to obtaining a “full and

true” disclosure of circumstances within his knowledge relating to

These are but very few of the unique legal issues that this Act has created. I have been made to understand that none of the big economic crimes cases filed in 2003, 2004 and this year have proceeded because the accused persons involved in these cases have filed numerous constitutional and or Judicial Review cases. In these cases the issues raised for determination include -

(a) The constitutionality and legality of the special magistrates and one special magistrate’s courts under that Act.

Other potential issues that could be raised includes the powers of JSC to appoint special magistrates to hear cases under that Act pursuant to Section 65(1) and Section 69 of the Constitution - whether this Court is a Civil Court under Magistrates Courts Act.

In the case of Prof. Julius Meme v R. & Another Misc. Criminal Application No. 495/03, some of these questions have been deliberated.

II SOCIAL CHALLENGES

All individuals in a society have a basic human right to live in a society as uncontaminated as possible by the effects of crime.

Over the last couple of years, due to increasing number of

crime and violence across the country as well as the impact of

these heinous and monstrous crimes against people and

property, public awareness has tremendously increased which has put the courts in closer scrutiny as to its ability to deal with crime and safeguard the innocent members of the society.

(1) In most cases which attract public attention, where the court is forced to acquit the accused person in consequence of incompetent and unprofessional prosecution, it is the judiciary which faces the wrath of negative public opinion. The recent cases of Republic vs Abond Rogo Mohammed & Three others Criminal Case No. 91/03 which involved act of terrorism against Kikambala hotel and that of Republic v. Dr. Nyamu &

Three Others Criminal Case No. 81/04 which involved the issue of murder of unborn babies are the unique example of such unjustified public outcry.

(2) Long custody of offenders itself is a social problem, more so when the offenders are women.

(3) From the little experience in murder trials, I have seen that

the women alleged to have murdered either the husbands or

relatives are so doing under extreme circumstances. I had

many cases where they had committed acts when the

husbands refused to provide for sick children or food for the

family so as to use the money for his drinks or other vices. While

they are in custody awaiting trials the children suffer.

with accordingly. But the state machinery is not sensitive to these issues and they seem to take these cases as general crimes and nothing else.

(4) We have already indicated the delay in cases of Child offenders hereinbefore.

(5) Sexual Offences against Children

We have indicated this challenge and anomaly under the heading of Legal Challenges.

(6) Long Custody –

Closer interaction amongst the Accused persons with hardened Criminals, results in their negative progress.

(7) Poverty and unemployment of youths –

The above is a major factor in increase of crime (8) Family disruption

This gives cause to more criminal activities.

III. SOME RECOMMENDATIONS TO MAKE THE PROCESS OF CRIMINAL JUSTICE MORE EFFECTIVE.

(1) Integrated and Comprehensive amendments of the relevant Laws.

(2) The concept akin to preparatory hearing in murder

cases as well as complicated fraud cases be introduced.

The purpose of this hearing is to identity facts and issues

relevant to both sides of the case.

Specially in cases of murder, it shall be more effective as a judge shall be able to discern whether the case can be tried as manslaughter and not murder.

(3) To achieve uniformity in sentencing across the board, a legislation giving sentencing guidelines be enacted as is done in U.K and other jurisdictions.

(4) Recent amendment to impose costs and compensation on the convicted persons can be used more frequently and effectively.

(5) Community services orders should also be appropriately used.

(6) Removal of Assessors: Statute laws/Misc. Amendment Bill (2005), if passed shall cater for it.

(7) Comprehensive reenactment on laws as to admissibility and proof of confession and admission of facts made by the Accused persons be undertaken so that the investigation and prosecution can be fairly undertaken.

(8) Amendment to Rule 12(4) of Child Offender Rules to read that the hearing of the case be commenced within 3 or 6 months from the date of taking plea and be completed within twelve months from the date of commencement.

(9) A provision be made to mandate trial courts to find out

SCHEDULE

CAP 80 OF CRIMINAL PROCEDURE CODE

CONFESSIONS:

Section 25: A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.

Section 26: A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Section 27: If such a confession as is referred to in section 26 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is admissible.

Section 29: No confession made to a police officer shall be proved against a person accused of any offence unless such police officer is:-

(a) of or above the rank of, or a rank equivalent to inspector; or

(b) an administrative officer holding first or second class magisterial powers

and acting in the capacity of a police officer.

CAP 75 OF CRIMINAL PROCEDURE CODE

Section 309: If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.

Section 362: The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, or passed, and as to the regularity of any proceedings of any such subordinate court.

Section 352A: Where an appeal against conviction has been lodged and a judge of the High Court is satisfied that the conviction cannot be supported, and the Attorney General has informed the court in writing that he does not support the conviction, the judge may summarily allow the appeal.

CAP 63 OF CRIMINAL PROCEDURE CODE

Section 143: Any person who unlawfully takes an unmarried boy or girl under the age of sixteen years out of the custody or protection of his or her father, or mother, or other person having the lawful care or charge of him of her, and against the will of the father or mother or other person, is guilty of a misdemeanour.

Section 144 (1) Any person who unlawfully and indecently assaults any woman or a girl is guilty of a felony and is liable to imprisonment with hard labour for twenty one years.

(2) It shall be no defence to a charge for an indecent assault on a girl under

the age of sixteen years to prove that she consented to the act of

Provided that it shall be a sufficient defence to any charge under this subsection if it is made to appear to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years or was his wife.

(3) Whoever, intending to insult the modesty of any woman or girl, utters any word, makes any sound or gesture or exhibits any object, intending that the word or sound shall be heard, or that the gesture or object shall be seen, by the woman or girl, or intrudes upon the privacy of the woman or girl, is guilty of a misdemeanour and is liable to imprisonment for one year.

Section 145 (1) Any person who unlawfully and carnally knows any girl under the age of sixteen years is guilty of a felony and is liable to imprisonment with hard labour for life.

(2) Any person who attempts to have unlawful carnal knowledge of a girl under the age of sixteen years is guilty of a felony and is liable to imprisonment with hard labour for life:

Provided that it shall be a sufficient defence to any charge under this section if it is made to appear to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was above the age of sixteen years or was his wife.

Section 149: Any person who, being the owner or occupier of premises or

having or acting or assisting in the management or control thereof, induces or

knowingly suffers any boy or girl under the age of sixteen years to resort to or be

upon those premises for the purpose of having unlawful sexual connection with

any person, whether the sexual connection is intended to be with any particular

person or generally, is guilty of a felony and is liable to imprisonment for life.

Provided that it shall be a sufficient defence to a charge under this section if it is made to appear to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years.

Section 146: Any person who, knowing a person to be an idiot or imbecile, has or attempts to have unlawful carnal connection with him or her under the circumstances not amounting to rape, but which prove that the offender knew at the time or the commission of the offence that the person was an idiot or imbecile, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years.

Section 147: Any person who –

(a) procures or attempts to procure any person under the age of twenty-one years to have unlawful carnal connection, either in Kenya or elsewhere, with any other person or persons; or

(b) procures of attempts to procure any person to become, either in Kenya or elsewhere, a common prostitute; or

(c) procures or attempts to procure any person to leave Kenya, with intent that he or she may become an inmate of or frequent a brothel elsewhere, or

(d) procures or attempts to procure any person to leave his or her usual place of abode in Kenya, with intent that he or she may for the purposes of prostitution become an inmate of or frequent a brothel either in Kenya or elsewhere,

Provided that no person shall be convicted of an offence under this section

upon the evidence of one witness only, unless, witness is corroborated in

(a) by threats or intimidation procures or attempts to procure any woman or girl to have any unlawful carnal connection, either in Kenya or elsewhere;

or

(b) by false pretences or false representation procures any woman or girl to have any unlawful carnal connection, either in Kenya or elsewhere; or

(c) applies, administers to or causes to be taken by any woman or girl any drug, matter or thing, with intent to stupefy or overpower so as thereby to enable any person to have unlawful carnal connection with the woman or girl,

is guilty of midemeanour:

Provided that no person shall be convicted of an offence under this section upon the evidence of one witness only, unless the witness be corroborated in some material particular by evidence implicating the accused.

Section 151 (1) Any person who detains any other person against his or her will-

(a) in or upon any premises with intent that he or she may have unlawful sexual connection with any person, whether any particular person or generally; or

(b) in any brother, is guilty of a felony.

(2) A person in or upon any premises for the purpose of having any unlawful sexual connection or in any brothel, shall be deemed to be detained therein by any other person who, with intent to compel or induce that person to remain in or upon the premises or in the brothel-

(a) withholds from that person any wear apparel or other property belonging

to that person; or

(b) were wearing apparel has been lent or otherwise supplied to that person by or at his direction, threatens that person with legal proceedings in the event that that person should take away the wearing apparel so lent or supplied.

Section 152: (1) If it appears to any magistrate, on information laid before him on oath by-

(a) any parent, relative or guardian of a person named in the information; or (b) any other informant who, in the opinion of the magistrate, is acting bona

fide in the interests of the person so named,

that there is reasonable cause to suspect that the person named in the information is unlawfully detained for immoral purposes by any person in any place within the jurisdiction of the magistrate, the magistrate may issue a warrant authorizing the person charged with its execution to search for and, when found, to take to and detain in a place of safety the person named in the information until he or she can be brought before a magistrate.

2. The magistrate before whom the person concerned is brought may cause the person to be delivered up to his or her parents or guardians or to be otherwise dealt with as circumstances may require.

3. A magistrate issuing a warrant under subsection (1) may be the same or another warrant cause any person accused of unlawfully detaining the person concerned to be apprehended and brought before a magistrate, where shall be dealt with according to law.

Section 164 Any person who unlawfully and indecently assaults boy under the