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Transforming the criminal justice in Kenya, Not a Walk in the Park

Can I get away with my crimes when am rich in Kenya? The answer is Yes!

Some politicians have been insinuating that jails are meant for petty offenders. Big offenders are free and go doing their businesses. The judiciary has been suspiciously silent about this reality. Chief Justice David K. Maraga has taken a bold step to campaign for abolition of jailing petty offenders. Well, this is no news in Kenya. In the recent past such petty offenders such as thieves of hens, house breakers and those would still even a plastic chair would be forced to clean village paths under the supervision of local authorities. Actually, village foot paths were cleaner by then. Putting petty offenders to do civic work or ecological services would be wonderful move by the judiciary. What the Chief Justice is not telling us is how to jail those who are wealthy and can bribe the judiciary? Kenya legal system has allowed corruption of justice and the wealthy are given bails or they pay crafty lawyers to interfere with justice process. A poor accused person cannot afford to pay for justice.

The biggest mistake is to make justice expensive and not affordable by the poor. This is the reason why the jails are full of petty offenders and not major offenders. Law is crafted in Kenya to punish the poor not the rich. The rich are untouchable and there is no doubt about this. It is sad but true that even the law enforcers may not have the guts to arrest a well connected and powerful rich Kenyan today. If they do, then such people will always find their way out of the corridors of justice. This is not a miracle and the Chief Justice is aware of this reality.

Kenya is known of corruption and impunity! The EU keeps on reiterating that the last general elections in 2017 is still questionable. The lack of quorum in the Supreme Court when it was to deliberate on calling off the re-elections was caused by arm-twisting the justice system. The very honourable  supreme Court judges have their hands dirty. Those who tend to be God fearing and clean are threatened by forces beyond their control. Do we still come and claim that we do not know why the powerful shall not see the jail with their eyes? We must be kidding.

In front of justice small and big offenders are all offenders. There must be rules that shall ensure that justice is justice and all are equal before justice. Access to justice provision in the constitution has never been implemented successfully. It is only meant for poor offenders to access pro bono lawyers. The same government has ensured that such pro bono services are not well catered for to undermine the provision. But this shall make the rich face justice? Not at all! If the president cannot be brought to justice, no well connected politician can be brought to book, no police officer can be jailed for crimes committed, no corrupt lawyer can be sent to jail, whom are we talking about? Kenya legal system is designed to protect some powerful persons.

I remember when the late Hon. Nicholas Biwott was detained at Kamiti following the sad murder and assassination of Dr. Robert Ouko. He was not prosecuted and he was a free man while poor workers were being jailed. Lets not trivialize this matter. Kenya criminal justice system needs a serious overhaul. Chief Justice has just taken bold move but it gonna not be easy. It is not a walk in the park. Criminals shall always do whatever is within their power to shield themselves from justice. In Kenya, the history of retributive justice is too long to handle by the Judiciary without the political good will.

I applaud the Chief Justice for the bold move to stop petty offenders from jail. But how will this ensure that big offenders end up in jail? The expression that all stones shall be turned but some stones are heavier than others applies. Kenya has the untouchable and persons whose social, political and economic status may not allow them to face justice. This has reduced criminal justice to be a tool for the poor!

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About Peter Onyango

Dr. Peter Onyango O. is one of our main contributors. He is a senior law lecturer, a writer, a consultant, peace ambassador, and a researcher. He assists so many professionals, legal minds, and debaters with his skills and scholarly wealth! He supports children and village community as a way of giving back to community. He edits, proof reads, and publishes various articles for our page!

One comment

  1. Well written.However,in my humble opinion some historical insights to the genesis of this problem would have been in order(The colonial use of laws to oppress the Africans who were ignorant of the law, the Penal code that hasn’t been revised despite being adopted during colonial times, tenures of controversial C.Js like Cecil Miller,executive interference with judiciary,budget frustrations,lack of constitutionalism),the impact of 2010 constitution on transforming the judiciary and ODPP not prosecuting cases well,various contempt of court cases and unenforced arrest warrants,political class goal shifting when decisions fit or not fit them, attack on the persons onthe bench (physical and political,threats)and lastly solutions on how to go about the challenges.

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