Legal: Shortcomings in criminal justice system exposed

A Judiciary report is raising serious concerns over the number of cases being overturned on appeal, and the low number of suspects charged after arrests.

The report, Status of the Judiciary and Administration of Justice, raises concerns about the quality of prosecutions as almost half of convictions by magistrates’ courts, which were appealed before the High Court, either led to acquittal, reduction of sentence, a retrial or change of conviction.

The report, which covers 2017 and last year, also established that few serious offences were prosecuted. For instance, only 11 per cent of cases involving violent offences went to trial.

The report also paints a sad picture of how sexual assault cases are dealt with, with 98 per cent of suspects still awaiting trial. The situation was no better for those charged with drug-related offences with only two per cent of case prosecuted.

Slow pace

The report suggests that the slow pace of prosecution may either have been triggered by arrests without gathering evidence or an unwillingness to prosecute. It could also be due to witnesses withdrawing their complaints or failing to appear before court when needed.

“On the magistrates’ courts, a relatively low rate of convictions for serious offences is observed. This raises the need for the police and the Director of Public Prosecutions (DPP) to work in harmony to ensure proper prosecution of cases,” the report released last month recommends.

The report also notes that a majority of prosecutors were hired recently hence lack experience. “This has raised serious questions on the quality and outcome of prosecuted matters. There is thus need for the DPP to initiate a mentorship programme for the prosecutors, as he also prepares to start a prosecution academy.”

An audit revealed that 70 per cent of the cases before court involve petty offenders like chicken thieves and burglars.

It showed police and prosecutors spend most of their time and energy dealing with petty cases that could be dealt with using alternative dispute resolution, or even through a civil process, while abandoning serious cases.

The report revealed that it takes at least two years and nine months to determine a case against a petty offender. That is also the same time to determine a child’s case.

Matters are not any better when petty offenders seek to secure temporary release from remand, with some unable to post bail.

The 489-page report says, “An average of Sh15,000 was available for cash bail, an amount which is way too high to a normal Kenyan bearing in mind that the average income is Sh12,000.”

In the period under review, it emerged that magistrates remanded 92 per cent of suspects brought before them while there was an option of releasing them on bail. Seventy-five per cent of those detained were involved in violent offences while 89 per cent were involved in acts like destruction of property.

On sentencing, magistrates were painted as fine-and-jail-sentence happy as more than half of suspects charged with petty offences end up either with a fine, which attracts jail if not complied with, or jail time. This was the fate of at least 68 per cent of petty offenders.

Courts were also averse to issuing alternative sentences that do not involve detention. Of all the petty offenders across the country, 19 per cent got community service orders, eight per cent were placed on probation and less than one per cent got suspended sentences.

Disorderly behaviour

The data also shows that those who get bail are less likely to be found guilty. The audit further revealed that although courts ought to hand out uniform sentences, suspects in various regions get different levels of justice.

“There exists the problem of a great deal of variation among the magistrates’ courts surveyed here, in terms of all trends interrogated, implying that Kenyans can expect to face very different justice depending on where they are located.”

Interestingly, 68 per cent of those arrested are drunkards and those accused of disorderly behaviour, loitering and creating a disturbance.

The probability of getting arrested at the weekend was also the highest at 45 per cent. At the same time, the number of suspects released from police cells was also highest during weekends.

The report reveals that 64 per cent of those detained in police cells and who do not appear in court are released without the reasons being recorded in the cell registers or Occurrence Books.

“A large proportion of these arrests and detentions are not in relation to common law crimes that concern the public, such as theft. Such offences do not have complainants, other than the State itself,” the report states.