Experts call for decriminalisation and reclassification of petty offences

Chief Justice David Maraga (left) with Chair ICJ Kenya ,Njojo Mue at the National Conference on Decriminilzation and Re-Classification of petty offences in Kenya. Picture:Courtesy
Chief Justice David Maraga (left) with Chair ICJ Kenya ,Njojo Mue at the National Conference on Decriminilzation and Re-Classification of petty offences in Kenya. Picture:Courtesy

A new study on petty offences shows a link between poverty, corruption and increase in the number of inmates in remand homes and prisons.

The study by International Commission of Jurists (Kenya Chapter) also shows that bribery and extortion surrounding punishment of petty offences has evolved into a political economy where petty offences are punished so harshly that the victims find giving bribes a reprieve instead of being dragged through a largely unjust system that deprives people of their dignity at all stages from arrest and detention to trial.

According to the Njonjo Mue, chairman ICJ Kenya Council, criminalisation and punishment of petty offences in Kenya has over the years provided a basis for grass violation of human rights of poor and vulnerable populations, especially those in cities and major urban centres.

“Unfortunately this has continued to be the case even after the promulgation of a robustly progressive rights-based constitution,” says Mue.

Some of the participants at the National Conference on Decriminilzation and Re-Classification of petty offences in Kenya. Picture:Odhiambo Orlale

Some of the participants at the National Conference on Decriminilzation and Re-Classification of petty offences in Kenya. Picture:Odhiambo Orlale

He notes that annually hundreds of thousands of mainly poor, vulnerable and minority categories of Kenyans such as hawkers, touts, commercial sex workers and street families face punishment, extortion, deprivation and violence meted out mainly by law enforcement agents of the National Police Service and County government askaris.

Mue was addressing participants at the National Conference on De-criminalisation and Re-classification of Petty Offences in Kenya, graced by Chief Justice David Maraga, who gave a keynote address on: Towards Prevention/Response to Human rights Violations Arising from Enforcement of Laws/By laws that Provide for Petty Offences in Kenya.

Others who addressed the conference were Kenya Human Rights Commissioner Jedidah Waruhiu, National Council for the Administration of Justice Executive Director Dancun Okello and ICJ Council secretary, Patrick Ngunjiri among others.

According to Okello, over 700,000 cases were filed in courts across the country last year out of which 70 percent involved petty offences.

“We need to decongest our courts and prisons by de-criminalising and re-classifying petty offences,” said Okello.

Earlier, Cyprian Nyamwamu, a consultant, gave a policy brief on the findings of the policy research on petty offences and practice affecting populations at the national level and in the counties of Kisumu, Mombasa and Nairobi carried out between 2014 and 2017.

The research generally established among other findings that sections of the Penal Code and by-laws of Kisumu, Nairobi and Mombasa county governments contradict some provisions of the Constitution and human rights; that violation of rights of the named populations accompanied with excessive use of force and torture have been recorded and are in practice.

A Director of Investigations at the Independent Policing Oversight Authority, Elema Halake, says three quarters of the cases they are dealing with are of petty offences involving misconduct

Another key finding is that sections of the Penal Code that criminalise petty offences are offensive to the Constitution of Kenya 2010 including sections 175 (1), 182 and 193.

Says the report: “Unreformed county government bi-laws are not conforming with the provision of the County Government Act 2012 and the Constitution and are still in force in Mombasa, Kisumu and Nairobi counties.”

The research also reveals that major human rights violations and abuse are taking place in the pre-detention and pre-trial stages as well as violation during trial and detention for petty offenders.

According to Margaret Wanini, Kenya Prisons Service Commissioner, most of the 42,000 remandees and/or inmates in the country are victims of small offences, 8,000 of them are women leading to congestion in remand homes and prisons.

“We are keeping a large number of petty offenders behind bars who have no business being there. They should be out on bond or doing community service,” Wanini reiterated.

These violations affect people differently based on gender, age, profiling and category the petty offence they are suspected to have committed.

In particular, county government machinery such as patrol vehicles  and personnel (arresting officers) are used to intimidate and harass marginalised as well as vulnerable groups to extort bribes in the pretext of their being petty offenders.

The research notes that high cases of extortion of bribes from vulnerable groups are recorded in all the three counties surveyed especially street vendors regardless of whether they have licenses for trade or not.

“Gender-based violence is rampant with cases of rape and sexual exploitation as well as harassment of women and members of the gay community being targeted the most,” says the report in part.

Chief Justice David Maraga also confessed that he had been a victim during his earlier years when he was accused of vagrancy.  However, he was lucky to wriggle out of the problem by talking to the police to forgive him.

Some detention facilities do not recognise the right of privacy or rights of minors hence cases of children being mixed with adults and women being detained in cells with men have been reported widely in all three counties.

Other issues raised are profiling and discrimination of minority and vulnerable groups such as persons living with mental disability as well as the LGBTI community which provides evidence of the wide gap between provisions in the Constitution regarding non-discrimination and the reality on the ground where culture and traditions are held strong.

“Sensitisation and re-education of law enforcement officers, therefore, becomes a significant area of action to make a difference for the state of human rights in Kenya,” says the report in part.

It notes that human rights oversight and accountability institutions have large gaps to cover in order to ensure that human rights of populations that are affected by petty offences are protected and promoted.

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