The criminal justice system is poised for far-reaching reforms this year if bills drafted by the National Council of Administration of Justice sail through.
The Criminal Procedure Code (Amendment) Bill, 2023 and the Penal Code (Amendment) Bill, 2023, will scrap a number of petty offences that are carryovers from the colonial statute books.
For example sex work, being idle and disorderly and hawking are set to be non-criminal actions. The reforms also seek to decriminalise bigamy.
The bills also seek to align the courts system to the 2010 Constitution by abolishing the mandatory life sentence for murder, making the justice system the most liberal in the region.
Campaigners like Demas Kiprono, the deputy executive director of the Kenyan section of the International Commission of Jurists, think the bills bode well for criminal justice reforms in the New Year.
Hussein Khalid, the executive director of Haki Africa, said the proposal to decriminalise sex work was a welcome move because it stops police officers from harassing and extorting citizens engaged in the trade.
After all, he said, “the bill is decriminalising acts done in a private space by two consenting individuals.”
“It is a willing buyer and a willing seller and there is no problem with that. The problem we have in this country is a rogue police force that does not waste any chance to extort, harass and brutalise citizens. Criminalising prostitution, which is happening anyway, gave them the best chance to harass people and this bill is the solution,” Khalid said.
He said the bills should be subjected to robust public participation to have the views of Kenyans taken into account in producing the final drafts.
On bigamy, Khalid thinks decriminalising the practice will allow those with polygamous arrangements but who have secret lives to come out.
The bill seeks to repeal the current legal framework that makes prostitution both by men and women a crime.
Currently, it is a criminal offence to engage in a marital commitment during the pendency of a similar commitment.
If the bill becomes law not only will sex workers be spared and and their activities normalised but also those who solicit the services or procure someone for paid sex will be freed from criminal liability.
Currently, section 153 of the Penal Code says that “every male person who knowingly lives wholly or in part on the earnings of prostitution; or in any public place persistently solicits or importunes for immoral purposes is guilty of a felony.”
It says that “where a male person is proved to live with or to be habitually in the company of a prostitute or is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution with any other person, or generally, he shall unless he satisfies the court to the contrary be deemed to be knowingly living on the earnings of prostitution,” hence committing a felony.
Section 154 of the code deals with women prostitutes or the women causing other women to engage in the activity.
It says that a “woman who knowingly lives wholly or in part on the earnings of prostitution, or who is proved to have, for the purpose of gain, exercised control, direction or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling her prostitution with any person, or generally, is guilty of a felony."
The bill prohibits police officers from breaking into and searching properties and establishments where prostitution is suspected to going on.
It proposes to repeal section 155 of the Penal Code that exposes to p criminal prosecution owners of buildings where sex work is suspected to be undertaken.
The current law reads: “If it is made to appear to a magistrate by information on oath that there is reason to suspect that any house or any part of a house is used by a woman or girl for the purposes of prostitution, and that any person residing in or frequenting the house is living wholly or in part on the earnings of the prostitute, or is exercising control, direction or influence over the movements of the prostitute, the magistrate may issue a warrant authorising any police officer to enter and search the house and to arrest such person.”
On bigamy, section 171 of the code reads: “Any person who, having a husband or wife living, goes through a ceremony of marriage which is void by reason of it’s taking place during the life of the husband or wife, is guilty of a felony and is liable to imprisonment for five years.”
Further, the bill decriminalises petty offences like idle and disorderly as well as hawking by shouting dubbed in the current legal framework as a nuisance.
The current law says that “any person who, for the purposes of trade or otherwise, makes loud noises or offensive or unwholesome smells in such places and circumstances as to annoy any considerable number of persons in the exercise of their common rights commits an offence and is liable to be punished as for a common nuisance.”
