Kenyans are currently very focussed on criminal law ― and whether it will do justice to various prominent people accused of corruption, and worse, and to the people of Kenya who feel they have suffered long enough from the powerful in society.

Often, their main concern in not with the law that makes certain behaviour a crime, but on the procedures of the courts and whether they will deliver convictions for the guilty.

What does this have to do with the Constitution? Readers are probably aware that the Constitution guarantees “fair trial”, which is framed mostly as a right of accused persons.

But “A just outcome is not just a matter of fairness to the accused and the victim. It is a matter of public importance. If the guilty are not convicted, or the innocent are convicted, public confidence in the system is likely to be undermined. Preventing impunity is an important purpose of the system.” These words come from a book just launched by the Judiciary (on the basis of a proposal originally developed by the Commonwealth Human Rights Initiative and the Katiba Institute).

The book is the Criminal Procedure Bench Book, written particularly for those who (mostly magistrates) try people for crimes or deal with appeals (mostly High Court Judges, and occasionally higher courts). But all sorts of other people will find it useful.

The Chief Justice’s Foreword made clear the connection between this and Transformation of the Judiciary, and the Constitution ― and to improving service delivery for “clients”.

By “clients”, the Chief Justice means the people whom they serve.  In a criminal case, the Judiciary serves the people of Kenya, the individual victims of crime and the people accused of crime, as well as witnesses, who are not either victims or accused.

WHAT IS CRIMINAL PROCEDURE?

Criminal procedure is a bit more of a mystery than the law of crimes. The rules must cover all cases from the traffic offender to the murder accused. They begin with investigation and arrest, and how the courts can ensure the police behave properly.

Many issues are quite complicated: When a person can be refused bail (a very topical issue), what to do when a person charged seems not to be sane, how to protect the rights of victims, and of children (whether accused, victims or witnesses), what to do if the victim wants to reach an agreement and not have the case continue, how to decide on the appropriate sentence for a person convicted, how to deal with obstructive witnesses.

As people have become aware of new social problems, or attitudes have changed, new laws have been passed. Examples are the Sexual Offences Act (increasing penalties), and the Victims’ Protection Act (recognising that victims have a right to understand what is going on in a trial about what was done to them, and even to explain how it affected them). Around a dozen laws are relevant to procedure in criminal trials.

No law is perfectly clear. It is useful for a court to know how previous courts have understood a law ― and, be able to apply the same law in the same way in similar situations.  So this small book refers to over 300 cases decided by the Kenyan courts which either explain the meaning of the law, or give a good illustration of how it works.

A NEW CONSTITUTION

We may sometimes feel that the 2010 Constitution has had no impact on the country, especially when we think about the politicians. But in some areas it has had an impact, and one is the field of criminal justice. Again, not yet enough.

As a result of the Constitution we now have law on the rights of people who are deprived of their liberty (arrested, awaiting trial or serving sentences). We have the Victims Protection Act and recently the Legal Aid Act (which will eventually provide more legal assistance to people charged with crime). The Constitution separated the Director of Prosecutions from the government’s lawyer ― the Attorney General ― making the office much more independent. The country, taking its cue from the Constitution, is working out ways in which criminal cases can more be settled by agreement, while remembering that criminal law is a matter of public importance too, not just for the individuals involved.

Already this small book mentions at least five cases in which courts have held existing criminal procedure law to be unconstitutional, trying to achieve a more just system. Interesting examples are rules that required courts to order that children who have committed crimes, or people who are accused of crimes but are suffering from mental illnesses, are kept locked up for an indefinite period ― during the “pleasure of the President” in fact.

AN ARCHAIC CRIMINAL PROCEDURE CODE

The Criminal Procedure Code ― a systematic set of rules for criminal justice ― began not in Kenya, or even in England but in India, where the colonial authorities reduced the rules developed by the courts over centuries on topics like contract, evidence, criminal law and criminal procedure to clear written laws. When the colony of Kenya adopted a new Criminal Procedure Code in 1930, it actually took quite a lot of ideas from the Indian Criminal Procedure Code, which it was formally abandoning.

It may be centuries since England abandoned trial by battle or ordeal (like putting the accused person’s hand in the fire to see if it burned). But even in the last 80-plus years, a lot has changed: The court system has changed, and the way trials are done has also changed. More important, ideas of fair trial have developed enormously, plus, of course, we have our new Constitution.

WHAT NEEDS TO BE DONE?

The report accompanying the Bench Book identifies a number of changes needed. For example, the Criminal Procedure Code still suggests people can automatically be refused bail, if charged with some offences; but under the Constitution a person charged with any offence must be released on bail unless there any compelling circumstances not to do so.

The law reflects out-of-date and disrespectful ways of referring to people with mental disabilities, such as “lunatics” and “imbeciles”. Unfortunately, even the Constitution uses the expression “of unsound mind”. And, now that courts have held that it unconstitutional to keep people locked up “during the President’s pleasure”, we need to devise some other fair way to protect both them and the public.

Locking people up was not, of course, the way communities dealt with offenders before the colonial period. And in recent years, Kenya, like other countries, has tried to develop ways to keep offenders out of prison, and encourage them by different methods to avoid committing offences in future. Examples are community service, probation and suspended sentences (where people are given a second chance: “We would usually have sentenced you to two years in jail, but if you do not commit another crime for X years you will not go to prison for this offence”). But the law does not say how long the X years should be. Could a person be told they could be sentenced for the original crime if they commit another one any time during the next 30 years?

Occasionally people want to bring a criminal case as private citizens. But there is no clear procedure for doing this.

The report proposes that all these are looked at and the law clarified. In truth, the whole Criminal Procedure Code needs to be reconsidered and redrafted. It is full of formal and old-fashioned language (when did you last use the word “ingress”?). It is full of long sentences; the one that uses “ingress” is 126 words long. A number of provisions assume long gone ways of prosecuting criminals. Even lawyers get confused, how much more the ordinary citizen? But this law is for the trials of ordinary citizens, and for the protection of ordinary citizens through effective enforcement of the law.  They should be able to understand it.

The author was a member of the Technical Committee charged with developing the Bench Book.

By JILL COTTRELL GHAI