Some 20 years ago, Ibrahim Kingori Njoki was involved in a brawl.
He was later convicted of creating a disturbance, contrary to Section 95(1) of the Penal Code. The law stipulates that when a person is convicted for this offence, he or she should serve a sentence that is not more than six months.
However, despite his issue being a minor offence, the Directorate of Criminal Investigations (DCI) has kept his crime record to-date.
Kingori is a poster boy of how a lacuna in law, allowing the police to keep damning details of minor offenders, has continued to haunt offenders even after serving the sentences.
The man cannot get a job as his clearance certificate indicates that he was convicted. He applied twice for the police clearance certificate -- This was March 9, 2019 and December 9 of the same year.
However, the results were a reminder of his past. He tried to plead with the DCI to remove the information from his certificates but his plea fell on deaf ears.
When he hit a dead end, Kingori approached the court, saying it beats logic for the police to keep a petty offender's details long after a sentence or a fine is paid.
Before High Court judge Hedwig Ongu'di, the police put a spirited fight to keep the information. The judge heard that Kingori was trying to arm-twist them to omit or change information.
Inspector Simon Ireri swore an affidavit in support of the police. He argued that the certificates were issued according to the law and cannot be changed.
According to him, section 55 of the National Police Service Act allows the police to keep fingerprints as proof of conviction.
He asserted that the information cannot be changed unless there is an acquittal, or a conviction quashed through an appeal or a successful revision.
"The first respondent (DCI) cannot omit information from the clearance certificate as the same would be a misrepresentation of facts, and breach of constitutional duty. Secondly issuance of a police clearance certificate is the mandate of the first respondent meaning this court has no legal basis to direct the 1st respondent to omit information," said Justice Ong'undi.
Lawyer Shadrack Wambui says the police should not keep fingerprints as the persons who have been convicted are expected to be rehabilitated to benefit the society after they have served the sentence.
According to him, sentencing ought to either deter, punish, denounce, correct, and sometimes compensate the wronged person.
He asserts that currently, judges and magistrates have powers to jail a person even for a day, owing the circumstances of an offence. Therefore, he argues that keeping a record of a crime after a person has served a sentence would amount to double punishment.
"The legislator's mind was stuck at deterrence when they allowed the police to keep such records after sentence. It is a narrow perspective of looking at sentencing," says Wambui.
He is of the view that some of the records, such as those of rapists and paedophiles are kept in order to alert the society that there is such a person.
Meanwhile, lawyer Okweh Achiando says it is not just Kenya that keeps the fingerprints for both capital and minor offences.
He points out that whenever a case is closed, by either an acquittal or a sentence is quashed, the investigating officer should commence the process of removing records of an accused person.
Achiando says the law allows the DCI to keep the record for minor offences for 20 years only.
He however has a difference perspective about capital offences. According to Achiando, the record for those convicted for either treason, robbery with violence or murder remain a part of police record for the lifetime of an accused person.
He states that the reason for keeping such a record is that a person convicted for such an offence is not expected to leave prison or go back to the society.
"A fingerprint of a person charged with capital offence such as murder, treason, robbery with violence and in some jurisdictions paedophiles and rapists will stay permanently in police records. For capital offences, there is no going back to the society. There should be a recourse if the police do not remove your fingerprints upon acquittal. The DCI should not keep the records for more than 20 years. They should destroy it," says Achiando.
Data from the National Council on the Administration of Justice (NCAJ) indicates that the average number of persons committed to prisons annually between 2019 and 2021 is 140,138 male offenders and 15,007 female ones.
An analysis of the data indicates that in 2019, there were 16,400 men who were sentenced to less than one month. On the other hand, at least 1,643 females were given a similar sentence. In 2020, the number slumped for both males and females to 3,563 and 522 respectively while in 2021, the number shot up again; male (12,579) female (1,198).
Those who were jailed for one month to two years are 42,712 men and 7,627 women and girls. In 2020, the numbers reduced to at least 17,254 and 2,854 men and women, while in 2021, the curve swelled to read 37,171 men and 6,885 women.
In addition, those who were sentenced to more than two years are 7,797 men and 538 women and girls in 2019. The following year, the curve slumped to 4,642 (men) and 321 (female).
The number of persons sentenced to life in 2019 was 507 males and four females. In 2020, the number reduced to 128 males and two women. Meanwhile, in 2021, there were 268 males and five females who were handed a life sentence.
Meanwhile, convicts handed a death sentence in 2019 were male (114), and female (five). In 2020, there were 20 males.
However, in 2020, there was no woman or girl sentenced to suffer death by Kenyan courts. The following year had only one female who was sentenced to death and 72 males.
The total number of those convicted in 2019 was males (67, 530) and 9817 (females) while in 2020 there were 25,607 males and 3,699 females. In 2021, there were males (56,971) and females (8,492).
Back to Kingori's case, Justice Ong'udi was of the view that the man needs the clearance certificate to get a job but his chance of getting one has been elusive owing to the adverse report. She observed that key criminal statutes in Kenya; The Penal Code Cap 63, the Criminal Procedure Code Cap 75 and the National Police Service Act No.11A of 2011 and have no provision or basis for the police to expunge criminal records.
She compared the same with South Africa which allows the police to expunge the record of a person who has stayed for 10 years after conviction. The other category is those handed a fine of not more than R 20,000.
South Africa has a record of sex offenders. The judge noted that one has to prove that his or her name has been removed from the national register of sex offenders or the national child protection register. Justice Ong'udi said there should be a distinction between misdemeanors and felonies as related to the period a record should be kept.
The judge said that although Kingori was not fully successful, the Attorney General, Ministry Interior Cabinet Secretary and Parliament should amend the laws to dictate how long should the police keep the record for different sentences. She said Kingori had been out for 20 years and should apply for the police to destroy his record.
"I have set out the South African procedure for expungement of criminal records to demonstrate the glaring gaps in our law with reference to this subject. There is a very urgent need for the Legislature to enact legal provisions to address this," she said.
