Kenya: A fresh criminal justice system

sent by otieno sungu and Esther Mckenzie

By Pravin Bowry

The breathtaking reality of a new Constitution on the horizon is a development which every citizen, and in particular all in the criminal justice system, is likely to welcome with awe and anticipation.

What will the referendum mean to a Kenyan charged with a criminal offence or a prosecutor or a magistrate or a judge?

In the realm of law and order, as in other fields of Kenyan lives, the Proposed Constitution will bring about monumental and mammoth changes, and add unprecedented dimensions which can only further the cause of justice, rule of law and accepted concepts of democracy.

To further the aspirations of Kenyans for a Government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law upon the enactment of the Constitution, a realistic staggered calendar to enact new laws, with specified time frames is proposed.

It is anticipated that within a period of five years, no less than 100 existing Acts of Parliament will be repealed, amended, revised or replaced.

The significance of all this will be the complete and final breaking of the shackles of colonial and inherited law from England, India and other countries.

New opportunity

Enactment of new laws pursuant to the Constitution will be a refreshingly new opportunity to make a new and exciting start for creating indigenous jurisprudence.

Rights and fundamental freedoms of a citizen will no longer be theoretical and impracticable issues for the academician.

The state organs will be held to account each action and any excesses will be adjudicated upon justly without fear or favour and publicly. Access to justice and rights of arrested persons held in custody are precisely defined.

The establishing of a totally independent Director of Public Prosecutions is likely to raise the professional standards of prosecutions. The new Director of Public Prosecutions will undoubtedly see to specialisation in the art of prosecutions, hitherto neglected and delegated mainly to the police.

As for the Judiciary, the establishment of a Supreme Court will be a profound development. A citizen will now be given an additional right of appeal from the High Court and decisions will be appealable to two superior courts.

The existence of Supreme Court is likely to give a desperately needed fresh awareness to the past historical ills so ingrained in the colonial law. The doctrine of precedent will have a new meaning, the decisions of the present Court of Appeal not binding and on all aspects of the law the Supreme Court will be asked by aggrieved litigants to make new ” judge-made law”.

Permanent commissions

Recourse to courts will not only be the remedy. Eleven permanent constitutional commissions will be able to offload the task of the mainstream courts.

The permanent constitutional commissions provided for are 11 in number and are Human Rights and Gender Commission, National Land Commission, Ethics and Anti-Corruption Commission, Independent Electoral & Boundaries Commission, Commission of Political Parties and Parliamentary Service Commission.

Others are Judicial Service Commission, Commission on Revenue Allocation, Public Service Commission, Teachers Service Commission, Police Service Commission, Commission on the Implementation of the Constitution and Salaries and Remuneration Commission.

The daunting possibility of having a new Police Act in four years is equally challenging and will give Kenyans a police force meant to safeguard the aspirations of many exploited and downtrodden Kenyans.

Upon the enactment of the Constitution, a new statute book will have to be remodelled and hundreds of new job opportunities for lawyers and paralegal staff created.

Are lawyers a breed for “Yes” or “No” alignment?

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