Undeserved incarceration of petty offenders through unjustified and disproportionately harsh penalties could be turning them into hardcore criminals.
And definitions of some offences criminalise conducts that are not essentially criminal, hence going against the principle of legal certainty, which requires, among others, that laws must be definite, clear and sufficiently precise to allow a person to foresee, to a reasonable degree in the circumstances, the consequences of which a given action may entail.
Although some of the offences as provided in the by-laws are legitimate provisions to regulate public order, their enforcement is subjective and the threshold for determining whether an offence has been committed or not is largely subjective and depends on the specific law enforcer.
The penal code and some counties' by-laws impose inordinately harsh sentences for minor offences, exposing the offenders to stiffer penalties for non-criminal offences.
CRIMINAL GRADUATION
Jedidah Waruhiu, a commissioner with the Kenya National Commission on Human Rights, says this is also leading to rise of recidivism.
Waruhiu says how petty offenders are handled has a direct impact on whether they will be repeat offenders or not.
"If today I am charged and detained or imprisoned for one week or two months or three years in prison for signalling or guiding a driver into or out of a parking place, hawking or for trading without a licence or obtaining by false pretences or theft by servant, where is the motivation for deterrence?" Waruhiu asks.
"The likelihood of graduating or associating with sophisticated crime is higher. Let's stop eroding the already eroded social, cultural and political economic status of our people."
She said the lengthy detentions are either occasioned by a serious backlog of cases in judicial system, where cases take too long to be finalised, and high cost of bail terms for the ordinary "Wanjiku".
Most of the population is poor and does not earn even the minimum wage, Sh11,000.
Waruhiu blamed unreasonable detentions on poor management of cases at the police stations.
"We need to ask ourselves: how has an ineffective criminal justice system perpetuated corruption, arbitrary arrests, extra-judicial killings, disappearance and further criminalised people?" she said.
Waruhiu called for clarity on what are petty offences that must be decriminalised and reclassified in the penal law system, which codifies offences and punishment.
The commissioner said everyone is obligated to respect, uphold and defend the Bill of Rights, which is an integral part of Kenya's democratic state and the framework for social, economic and cultural policies.
The chapter has key emphasis on inherent dignity, unlimited rights, freedoms [from torture and slavery], administrative justice, access to justice, rights of arrested persons especially not to be held in custody if offence is punishable by fine or six months jail term.
"If we have moved from having capital offences [murder, treason, robbery with violence, attempted robbery with violence and oathing for criminal activity] from 14 days' to 24 hours' custody, and from non-bailable to bailable offences, what stops us from 'decriminalising and reclassifying' petty offences?" Waruhiu said.
"For us at the KNCHR, this reclassification and de-criminalisation is about when do we do this and not if we shall do it."
CALL FOR PRAGMATISM
Criminalisation and excessive punishment of petty offences has provided grounds for gross violation of the human rights of poor and vulnerable populations by enforcement authorities, especially those in cities and major urban centres, including county government askaris and police.
Waruhiu said a closer look at the penal code, Traffic Act, and county legislation indicates that the criminal justice system must be pragmatic in how it regulates social disorder, economic status and cultural reactivity.
She faulted the laws that impose a three-year jail term on theft without the option of a fine.
"Who is benefiting from this incarceration? Why should we be cruel to hawkers, whose only crime is selling outside a physical structure called a licensed shop?" Waruhiu said.
"Is the answer in making it a big crime or being robust by reviewing the trading arrangement in the cities or towns, in terms of infrastructure and licensing, to ensure that even the proverbial Mama Mboga is dignified in trade?"
Waruhiu said Kenya must draw practical lessons and actions from the recently concluded audit of the Criminal Justice System.
International Commission for Jurists [Kenya chapter] conducted a baseline research in three Nairobi, Kisumu and Mombasa counties and established revealed rampant human rights violations, stemming from the punishment and enforcement of petty offences.
The research, titled ‘Law and policy on the petty offences and practices affecting populations at the national level', looks at the structural, policy and legal basis of this criminalisation of poverty and vulnerability by the national and county governments.
ICJ
democracy and human rights
consultant
Cyprian Nyamwamu said hundreds of thousands of petty offenders are arrested annually.
Nyamwamu said the victims face punishment, extortion, deprivation, violations and even violence meted out mainly by law enforcement agents of the National Police Service and county government enforcement officers, commonly known as askaris.
He said the county government inspectorates should be replaced by Metropolitan Police Units that can be held to account by the Independent Policing Oversight Authority.