• In the current Penal Code, persons found guilty of the offence of Idle and Disorderly under Section 182 are liable for the first offence to imprisonment for one month.
• Or to a fine not exceeding Sh100, or to both, and for every subsequent offence to imprisonment for one year.
The effective and efficient functioning of the justice sector entails collaboration amongst the actors to deliver justice.
The National Council on the Administration of Justice (NCAJ) was established under Section 34 of the Judicial Service Act as an umbrella body to coordinate the administration of justice and spearhead reforms in the justice system.
NCAJ undertakes its reform agenda through gazetted multi-agency Committees.
The NCAJ Committee on Criminal Justice Reforms (NCCJR) was established to spearhead the comprehensive review and reform of Kenya’s criminal justice system, following an Audit of the Criminal Justice System published in 2017, which revealed systemic weaknesses and inconsistencies in criminal laws, which have existed since the colonial era.
Strategic achievements of NCCJR include the development of Guidelines on Law and Practice on Arrests and Conditions of Pre-trial Detention, Guidelines for the Management of Petty Offenders, a Fair Trial Guide and Checklist and the Sentencing Policy Guidelines, 2023.
The NCCJR spearheaded a proposed review of the Penal Code and Criminal Procedure Code which culminated in the development of the Penal Code and Criminal Procedure Code Amendment Bills (2023).
The review process has been ongoing since 2020, entailing extensive stakeholder engagements with representatives from justice sector institutions, legal experts, scholars, civil society organisations, mental health experts, the Justice and Legal Affairs Committee of the National Assembly and communities at the grassroots level through Court Users Committees.
The proposed comprehensive amendments aim to enhance the protection of human rights of the vulnerable in our society, including persons with intellectual and psychosocial disabilities, those who have mental illnesses, children and intersex persons.
According to the Audit, petty offences comprise 70 per cent of the crimes processed through the criminal justice system.
In the pre-trial stage, 68 per cent of those arrested and detained are petty offenders, most of whom are underprivileged.
Therefore, the heavy enforcement of petty offences and overreliance on custodial measures have contributed to overcrowding in detention facilities because they cannot afford legal fees or pay fines.
In the current Penal Code, persons found guilty of the offence of Idle and Disorderly under Section 182 are liable for the first offence to imprisonment for one month or to a fine not exceeding Sh100, or to both, and for every subsequent offence to imprisonment for one year.
The offences include ‘procuring or encouraging any person to beg or gather alms, publicly conducting oneself in a manner likely to cause a breach of the peace, committing any indecent acts without lawful excuse publicly, soliciting for immoral purposes in public places, and prostitution’.
These offences are vague and have uncertain evidentiary requirements, leaving it to the enforcer to determine the intent, thus allowing for the arrest of persons based on the mere suspicion of having committed an offence or intent to do so.
The Penal Code Amendment Bill therefore proposes the repeal of Section 182 and its subsequent reclassification under different regulations to ensure offending behaviour remains illegal, but the criminal justice system does not automatically arrest, prosecute and imprison a person.
Instead, alternatives such as issuance of verbal sanctions upon arrest, community service and attending a rehabilitation centre, amongst others, are proposed.
It is therefore inaccurate to indicate that the Bill proposes legalisation of prostitution.
Further, Sections 153 and 154 speak to persons living on earnings of prostitution or soliciting, and Section 155 which concerns the premises used for prostitution and persons residing in or frequenting the house who are suspected of living on the earnings of the prostitute, are offences provided for under section 17 of the Sexual Offences Act. Hence, there is no need for duplication.
Likewise, the offence of bigamy under the Bill has been proposed for repeal. This is because redress can be remedied through civil proceedings in a divorce cause, and not in criminal proceedings.
The Committee does not propose lighter penalties for murderers, it proposes cascading the offences of murder and robbery into first and second degrees to ensure the punishment is commensurate with the gravity and circumstances of the crime committed.
First-degree offences would comprise offences committed under the most heinous circumstances, to which the maximum punishment proposed is the death sentence.
In contrast, second-degree offences would attract a life sentence upon conviction.
For other offences carrying the mandatory death penalty, amendment to dispense with the mandatory nature is proposed, but death is maintained as the maximum sentence.
These, amongst other proposed amendments contained in the Bills, will enhance compliance with the principle of equality of treatment and outcomes in the criminal justice system, regardless of social status.
If accepted by Parliament, the proposed Bills will go through the entire legislative process, including extensive public participation.
Hon. Lady Justice Ngenye is a Judge of Appeal and chairperson, NCAJ Committee on Criminal Justice Reforms (NCCJR)