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Is the Kenyan Criminal Justice System fit for purpose?
Bandung Africa proposes a two-day conference in November at Strathmore University, involving lectures and panel discussions, with networking events to discuss strategies and policies to counter terrorism and violent extremism in the context of the Criminal Justice System reforms endorsed by the Chief Justice. The purpose is to examine the progress being made to develop our strategy to combat terrorism and anti- extremism since the Westgate attack. The recent Riverside attack, the Garissa atrocity and those thwarted by the security services underline the necessity of having an open and transparent dialogue to address the ongoing threat to Kenyan society posed by violent extremism.
This continues the discussions that were held during our November conference in Nairobi. The UNDP policy paper, Issue No 1, October 2017, “Articulating the pathways of the impact of terrorism and violent extremism on the Kenyan economy”, sets out the major social and economic implications of terrorism that Kenya has faced in recent years.
The necessity of having a National Debate on the reform of the Criminal Justice System, especially corruption and anti-terrorism is highlighted by the 20th meeting of the National Council for the Administration of Justice held in Naivasha that resulted in a statement, on February 7th 2019, which stated,
“There will be enhanced capacity building among institutions through training on cross-cutting issues affecting the administration of justice.”
The NCAJ detailed a number of initiatives including,
The Bandung Africa Conference recommendations have already highlighted a number of reforms such as the introduction of suspended sentences, electronic tagging of offenders on remand to reduce the prison population, the use of part time Judges and Magistrates to clear the back log of cases and the adoption of alternative dispute resolution. The resources freed from a Justice system disproportionality targeting the poor and vulnerable would more effectively address corruption, serious violent and sexual offences, and offences of terrorism and violent extremism.
Criminal Justice Reforms: A Work in Progress?
The Bandung conference held at the Crown Plaza hotel on November 22nd and 23rd 2018 highlighted a number of concerns within the Criminal Justice System (CJS) in Kenya. These have largely been addressed by the 2015 Audit of the National Council on the Administration of Justice, Administration of Justice Committee. The implementation work is being carried out by Lady Justice Joyce Ngenye, of the High Court of Kenya (Criminal Division), appointed by the Chief Justice of Kenya in January 2018.
The introductory remarks of the Audit summarise the findings as follows: –
“Key findings of the Audit confirm that Kenya’s Criminal Justice System is largely skewed against the poor. It is an indictment of a system that is expected to guarantee justice to people from all walks of life, including all forms of vulnerabilities. The Audit found that more poor people are arrested, charged and sent to prison as compared to the well to do. It was an interesting finding that economic driven and social disturbance offences which are rated as petty; such as offences relating to lack of business licenses, being drunk and disorderly and creating disturbance form 70% of cases processed through the justice system. A major concern as per the findings was that, serious offences such as organized crimes, capital offences and sexual offences were found to have the highest rate of acquittal and withdrawals.”
This public conference and discussions are designed to widen that debate and highlight the urgent reforms that should assist the development of a more effective criminal justice system that honours the spirit and letter of the Kenyan Constitution. The idea is to engage with the Pan African legal and judicial diaspora community as a resource that can be utilised to act as a catalyst for positive change. The Bandung Conference will issue certificates of attendance for delegates.
The key stakeholders that are being consulted are the former participants of the first Bandung Conference namely, The African Prison Project; The Kenyan Prison Service; The Law Society of Kenya; The National Kenya Police Force; The Chief Justice and members of the Senior Judiciary; the Solicitor General; The Legal Research Centre, Strathmore Law School; Kenya Law School, The Kenyan Diaspora Association, The Inter-Religious Council of Kenya, the U.S. Embassy, and High Commissioners of the U.K., Canada and Australia, the Auditor General of Kenya and leading NGO’s such as the Kenyan Human Rights Commission, Legal Resource Foundation, and the Kenya Law Reform Commission, amongst others.
Kenya’s Historical Injustices: Stolen Lands, Blood Tea, and Economic Exploitation
Kenya’s “historical injustice” under British colonial rule did not just include the brutalities and killings recognized finally by the U.K. Government in its settlement in 2013 against the civilian population during the Mau Mau liberation movement. It also comprised numerous other numerous other human rights abuses, many of which still persist in Kenya and East Africa to this day. Approximately 5.5 million acres of Kenyan land were taken from a total of 6.75 million by the British Colonial Government in the years since 1902. Kenya became a protectorate of the British Empire as part of the “East African Protectorate established in 1895. The British claimed the lands as far west as Lake Naivasha and in 1902 extended this protectorate to Uganda. From 1920 it was known as the “Kenya Colony”, finally becoming independent in 1964. This process, known by the sterile term of “land alienation” was designed to remove the native peoples from their ancestral homes to be placed on “reserves”.
Various pieces of legislation commencing with the Land Acquisition Act (1894), and subsequent more draconian powers divided land into three areas namely, the “Scheduled Areas” for European Settlement and “None Scheduled Areas” for purely African reserves, and finally the Coastal areas.
By the time of independence in 1963, some 3,600 white settler families occupied the equivalent of three million hectares (half of it suitable for cash crops), representing some 6% of all Kenya’s land area. This equated to some 20% of all Kenya’s arable land whilst some six million Africans were left to occupy the remainder. This “land alienation” which was effectively theft of land and “ethnic cleansing” using its modern terminology, resulted in the large-scale impoverishment, starvation, death of livestock, and even slaughter of African people by the colonial Government assisted by white settlers. In what is now Kericho and Bomet Counties the Kipsigo and Tali clans were forcibly removed due to “rebellion” were moved to cams in Gwassi in what is now Homa Bay County.
The County Governments of Kericho and Bomet County announced in 2015 a registration scheme to quantify the potential claimants who could sue the British Government for thee “historical injustices” of the land alienation policies utilized from 1902 onwards to “ethnically cleanse” Africans from between 98,000 to 200,00 acres of prime agricultural land. That land is now occupied by six multi-national companies, all with their headquarters in the United Kingdom but with subsidiaries in Kenya to help block any legal actions and act as filter for profits to be diverted outside of Kenya and pay a minimum amount of tax.
In 2018 the Kericho County Government successfully lodged a complaint of this part of the “historic injustice” with the United Nations Special Rapporteur in Geneva claiming some 90,000 acres of land was given to white settlers. In the process some 115,000 were forcibly removed from their ancestral lands to Gwassi, by the British army and their colonial forces, where thousands died due to the harsh environment, disease, malnutrition and lack of any accommodation or means of sustaining their population. The U.N. Special Rapporteur has written to Her Majesty’s Government requesting a response, which is anticipated to arrive in early 2020.
Aims and Objectives of the Conference and Panel Discussions
Delegates arrive at the conference venue.
Stanley Manduku & Judge D Peter Herbert O.B.E.
Keynote Speaker: The Chief Justice of Kenya
Chair: Dr Shem Ochuodho (Kenyan Diaspora Alliance)
Panelists:
Chair: The President of the Nairobi Law Society:
Panel:
Attorney General of Kenya: The Honourable Paul Kihara Kariuki and/or The Director of Public Prosecution: Mr. Noordin Haji
Panel Discussion: “Terrorism and Violent Extremism: Shall we overcome?
The Chief Justice, The Honourable Chief Justice David Maraga and/or Ms Diane Abbott M.P. : Shadow Home Secretary (U.K.)
Chair of the Panel: Stanley Manduku
Panelists:
Prayers led by Bishop Joseph Warari (The Inter Religious Council of Kenya)
Delegates arrive at the conference venue.
Video Presentation
Chair: Mr. Allen Mukiki
a) Do our Sentencing Guidelines Work? Mr. Donald Deya (PALU)
b) Legislative shortcomings & Proposed reforms: Mr. Stanley Manduku
c) Alternatives to incarceration: Probation, Suspended sentences: Judge Peter Herbert O.B.E.
d) Proceeds of Crime, Legislation and practice: Ms. Emmah Senge, Strathmore University
e) Alternatives to Criminal Prosecution: Tomika Patterson: US Department of Justice
Chair: Johnson Mwakazi: Broadcaster & Journalist
Panelists:
Keynote Speaker: Professor Paul Kiprono Chepkwony, His Excellency the Governor of Kericho County
Panelists:
Prayers led by Bishop Joseph Warari (The Inter Religious Council of Kenya)
Sponsored Networking Event & Wine Reception (Venue: Strathmore University Business School, Atrium, VIP’s and invited guests only) sponsored by the legal practitioner Mr. Kimutai Bosek