Petty Offenders Will Soon Get Non-Custodial Sentences

The National Council on the administration of justice task force on Criminal Justice Reform will be gazette to review the laws that criminalisation and punish petty offenses in Kenya over the years.

 Chief Justice David Maraga observed: “Kenya Criminal Justice system is at a historical time, the criminalisation of petty offenses is the main cause of congestion in the Prisons countrywide.”

The task force will be seeking to examine the decriminalisation and reclassification of petty offenses.

“It has provided a basis for a gross violation of the human rights of poor and vulnerable populations especially those in cities and major urban centers in Kenya,” said Chief Justice Maraga.

He said decriminalisation of petty offenses is a crucial step towards rolling back of custodial sentences or incarceration, which is now coming under so much scrutiny and criticism.

 A new law and policy research conducted by the ICJ Kenya titled ‘Law And Policy On Petty Offenses And Practices Affecting Populations at the National Level and in Kisumu, Mombasa and Nairobi Counties’ looks at the roots of this criminalisation of poverty in this dispensation.

 Non-custodial sentences to decongest jails

If reviewed, Kenya will join other states which are eliminating jail-time for minor offenses such as loitering, sexual workers, hawkers, marijuana possession, and driving violations, replacing those crimes with so-called “non-jailable” or ‘non-custodial’ or “fine-only” offenses”.

Soon petty offenses like idleness, begging, drunkenness, disorderliness, prostitution, indecent exposure, nuisances, jaywalking, traffic offenses, littering and violation of county laws among other misdemeanors will have non-custodial sentences.

 Justice Maraga said the use of non-custodial sentences is important for Kenya to decongest prisons. Saying that thief who steals chicken is hauled faster in court than those who grab forest land that ends up causing environmental challenges.

 Chief Justice says Legal Aid Act 2016 need be reviewed

Legal aid Act 2016, has been hailed to be good but also needs a further review, the Chief Justice pointed out.

Those petty offenders are usually charged in court in masses. The legal financial aid in the Act stretches to support both criminal and civil matters, however, the CJ explained that the bureaucracies involved to access the aid are challenging.

He asked the office of the Attorney General to consider working on modalities to make access to the legal aid easy as the new act will be implemented.

 

The legal research identifies the gaps in legislative and policy frameworks on petty offenses and practices that result in human rights abuses encountered by minority and vulnerable groups arising from their enforcement with a view to contribute to the reform of the criminal justice system.

 It points out the need for reforms, capacity building and transformation of institutions connected to and responsible law enforcement in the urban areas of Nairobi, Mombasa and Kisumu and the rest of the country.

 The brief essentially puts forward a strong case for legal and policy and institutional reforms regarding the handling of petty offenses that must of essence take into account the constitutional provisions and standards on the enjoyment of human rights by all without discrimination.