There is a joke that Kenyans are so used to crime they are not shocked by it anymore. There may be a grain of truth in the joke, given the general lack of outrage at the surge in serious crimes, and the fact that politicians presiding over this sordid state of affairs get re-elected.
However, the crime situation is no laughing matter. The recent murder of Betty Barasa, a video editor at Kenya Broadcasting Corporation, as her terrified children and husband watched is one of numerous such incidents. Every day, there is news of heinous murders by marauding robbers mercilessly slaughtering their victims in the sanctity of their homes, on streets and in villages. Rape of children and women is so rampant it is hard to keep up with the numbers. Drug dealing is widespread, and insidious crimes, ranging from fraud to corruption, are literally a way of life for many.
People seem oblivious of the catastrophic consequences of murder and rape on the children left orphaned, traumatised and fending for themselves at a very tender age. Spouses who witness their partners tortured, raped and killed are mentally destroyed for the rest of their lives. These crimes exact a devastating impact on the economy as well.
Productive people, in whom society has heavily invested through education and experience, are eliminated by crime and their contribution vanishes forever. Society has to pick up the tab of assisting children and relatives left behind with injuries and psychological impact. Billions in potential revenue for the state and businesses that would otherwise flow to Kenya are lost when tourists and investors see Kenya as a dangerous place not worthy of the risk.
Although many crimes are never reported, those officially recorded by the police in the Annual Crime Reports show a huge increase, especially since the promulgation of the new Constitution in 2010. Before 2010, homicide reduced by three per cent from 2,313 in 2005 to 2,239 in 2010. Since then, homicide has risen by 12 per cent from 2,641 in 2011 to 2,971 in 2019.
Offences against morality such as rape and indecent assault increased by 53 per cent from 3,153 in 2005 to 4,817 in 2010, but then picked up pace, growing by 71 per cent from 4,703 in 2011 to 8,051 in 2019. Dangerous drugs cases declined by 20 per cent from 6,356 in 2005 to 5,081 in 2010, then rose dramatically by 72 per cent from 4,649 in 2011 to 8,011 in 2019.
Intentional homicides per 100,000 people in Kenya rose from 3.4 in 2004 to 4.9 in 2018. International comparison with countries that have recently had wars, humanitarian woes, and are less wealthy, shows that while Kenya’s homicide rate per 100,000 people rose from 2.9 in 2006 to 4.7 in 2015, Rwanda’s declined from 3.5 to 2.6, and Sierra Leone’s was stable at only 1.7 in the same period.
Article 49 (1) (h) of the Constitution of Kenya accorded the right to bond, or bail for all suspects, even those of the most heinous crimes such as murder, violent robbery, rape of children, and torture. This constitutional provision on easy bond and bail terms for all crimes, as well as lenient sentencing, inadequate investigation, and bungled prosecutions are most likely major contributors to the upsurge in crime in Kenya, given the correlation between the rapid rise in serious crimes and the constitutional changes in 2010.
The current Constitution has many wonderful benefits for Kenyans and has expanded individual freedoms and enhanced protection of human rights. However, in some cases, provisions were too liberal, ignoring the reality in the lives of people, especially victims of crime.
Victims of crime suffer immensely and are largely ignored by the current Constitution, while criminal suspects and convicts are accorded vast protections to ensure fair trial, lenient sentences, and reprieve after conviction through the President exercising the prerogative of mercy under Article 133 of the Constitution to pardon, or commute sentences. These benefits for suspects and convicts that leave victims of crime unprotected, have led to criminals no longer respecting the law.
Criminals know that they can perpetrate the most despicable acts against innocent victims and would be freed on bond, or bail, in a matter of days. They then use their freedom to intimidate victims and witnesses as they commit more crimes, secure in the knowledge that they will be released soon if caught. This makes it imperative that Article 49 (1) (h) of the Constitution of Kenya 2010 should be amended to deny bond and bail to persons charged with heinous crimes such as murder, violent robbery, and sexual offences against children, while requiring expedited trials, for example, to conclude such cases within one year of laying of charges.
The President’s prerogative of mercy in Article 133 of the Constitution of Kenya should also be amended to exclude convicted murderers, violent robbers, and perpetrators of sexual crimes against children from ever getting a pardon, postponement of sentence, substitution of sentence with less severe punishment, or remission of sentences handed down by courts of law.
Citizens should demand from their elected representatives and officials that these constitutional reforms are carried out urgently to stem the surge in repugnant crimes. Unfortunately, politicians do not care that people are being murdered, maimed, raped, and robbed in large numbers, as they are heavily armed and protected using money the taxpayers pay from their hard-earned income. This explains why no politician has proposed any serious constitutional or policy actions to stem the murderous reign of terror by criminals. The constitutional changes proposed in the Building Bridges Initiative do not address the epidemic of serious crimes.
Politicians are content to attend the funerals of victims to use them as platforms for their political contests. They pretend to ask the police and prosecutors to “find the criminals and get them convicted” yet they allocate meagre resources to train and equip them to improve deterrence, prevention, investigation, and prosecution of crimes. As a result, most crimes are never solved. Many murderers, robbers, and rapists have gotten away scot-free with their crimes, and live happily ever after, as their victims mourn.
The proposed constitutional amendments to Article 49 (1) (h) and Article 133, together with better training and equipping of police and prosecutors, as well as incorporating prevention, excellent investigation, and successful prosecution of crimes in the performance contracts of the Director of Public Prosecutions, the Inspector General of Police and their staff, shall help to save lives of innocent Kenyans, and underpin economic prosperity.
Adviser at the Permanent Delegation of the Commonwealth to the United Nations in Geneva, Switzerland. This article is his personal analysis, and not that of the organisation.
