Constitution at 14: Hits and misses in the administration of criminal justice

This August marks Kenya’s moment of reflection on the hits and misses it has had as a nation since it gave itself a new constitution 14 years ago.

To have an accurate account, the administration of Criminal Justice(CJ) in Kenya must be relooked into in the historical contexts that informed some of the fundamental clauses and principles of the constitution.

The administration of criminal justice and the conduct of national security organs under the old constitution, inflicted grievous injuries that form part of our very dark history.

Some of the victims did not live to taste the fruits of the current dispensation.

While some victims are still alive, the infractions they suffered are still very fresh in their hearts and minds.

Stemming from the above experiences, Kenyans accorded a whole chapter 14 of the constitution with 10 articles in the constitution to national security.

This chapter outlines the principles to guarantee and promote national security.

It also establishes various security organs and players, as well as, their respective obligations.

This was meant to guard the affairs of these organs from political and other forms of external influences.

It was also to spearhead the transition of the Police from a force to a professionally run service.

For close to one and a half decades now, the conduct of Kenya’s national security agents have largely fallen short of expectations of the Constitution’s chapter 14.

Arbitrary arrests seem to have just taken a “commercial break”. They are back. These were evident during the national protests against the finance bill.

Lots of people were reported to have been picked up by security agents only to be set free many days and even weeks later without any charges being preferred against them.

Similar pattern also played out when opposition party called for demonstrations in 2023. On this occasion, it even got political.

High ranking government officials, without missing their words, ‘advised’ the opposition leaders to off the demonstrations.

This was to guarantee them the services of their security aides who had been recalled.  

These are contrary to article 238(1) (b) that requires the Police and other security players to pursue our national security interests in compliance with the law and utmost respect to the rule of law and human rights.

 This state of affairs is so worrisome especially when the constitution has reached the teen age.

It either points to poor parental upbringing or a child with inherent low cognitive ability.

At the heart of the administration of criminal justice in Kenya is the Office of Director of Public Prosecutions (ODPP).

Under the old constitution, it was domiciled in the office of the Attorney General.

It now exists independently. It has the singular mandate of initiating and conducting criminal charges on behalf of the state.

The idea towards this independence was informed by the need to insulate it from external interests and make it more effective and efficient in discharging its mandate, among other considerations.

So far, the ODPP has tried to be an obedient child of the constitution. It has, however, ashamed its parent by some of its words and deeds; shooting itself on the foot on various occasions.

Among those is its own admission of having dragged certain individuals to Court due to alleged political pressure.

To “cure” such, it moved to withdraw some cases as soon the said pressure eased.

Even then, it had offended article 157(10) that guards it against any such alleged pressure.  

On the same note, some credit is due to the ODPP. It has recorded some impressive results.

It has successfully nailed various offenders. Among them include Police Officers on the killing of Advocate Willy Kimani, his Client and a Taxi Driver (may their souls rest peacefully).

The ODPP has also advanced aspects of equality before the law. It has managed to charge high ranking government officials from all arms of the government.

The realism school of thought expects us not to even imagine of a crime free society. Having taken notice this, the new constitution provided the country with an independent judiciary.

This was meant to enhance social control even when there are infractions of the penal code and criminal law.

Unlike in the old order, the current judiciary has a stronger legal framework. It’s accorded a whole chapter 10 in the constitution.

This section outlines the institution’s composition, mandate, independence and tenure and exit route of its officers should their conduct fall short of their call of duty.

These entrenchments have a history that the country had to depart from. These include issuance of Court orders by judicial officers at midnight, on weekends and even on holidays, among many others.

There were also very sad stories like why hire a lawyer when you can buy a Judge. Today, Kenyans have something to smile about.

The Judiciary has largely lived to the prescriptions of the constitution even in the face of actual threats on the lives of its staff.

Despite these, it has proved it can deliver justice without regard to one’s social status and standing. It has nullified an election of a sitting President of the Republic.

Going down the memory lane, Kenyans have had their low and high moments since 2010. Some of the misses are those that ought to have been the easiest hits.

For some of these, we have legal avenues to get recourse and record zero misses. Among these include Internal Affairs Unit (IAU) of the Police and Independent Policing Oversight Authority (IPOA) for the conduct of police officers.

For judicial officers, we have a corresponding Judicial Service Commission (JSC).

The two latter institutions have done Kenyans proud on the matters they have been seized off, so far. For, IAU, there is not much to report home.

It needs to redeem itself and fight claims of always defending one its own.

Some of the vices that derail the administration of Kenya’s criminal justice are low hanging fruits.

They are within the reach of the ordinary citizens. Among them is corruption.

This is a complementary behaviour. It literarily takes two to tangle.   No Police Officer of Judge bribes himself or herself.

I understand there is differential power at play when at the hands of those with authority.

However, when they are called out and ashamed, they will tone down and will have nowhere to hide.

Otherwise, if we despair and drop the ball, we run a high risk of losing the gains we have consolidated even as we pursue new strides.

The Write is a Criminologist and Trainer at Brand Institute of Forensic and Security Studies. ([email protected])