The criminal justice system comprises government agents and organization whose primary role is enforcing the law or public policy concerning crime. According to Kaeble and Cowhig (2018). There are various forms of criminal justice systems categorized into formal and informal. The formal system includes courts and trials while the informal one uses traditional rules administered by traditional leaders. As Kinama (2015) says, a criminal justice system cannot be limited to legal Justice. To ensure that justice prevails, several forms of administration should be considered. The essay paper below elucidates the criminal justice system adopted in Kenya.
Kenya is one of the fast developing countries in Africa. It was declared a crown colony by Britain in 1921 (Kinama, 2015). Since then, the country has used the English common law. However, its legal system has evolved to make the country one of Africa’s countries with a mixed legal system of statutory law, English common law, Islamic law, and customary law. Customary law relies on the decisions of a council of elders among a specific community. Although the council of elders continues to resolve Kenya’s conflicts, this system is not widely accepted as it sometimes clashes with the formal court system (Kinama, 2015). Many amendments were made after the country gained independence from Britain in 1963. To make the legal system better, reforms have been made, ranging from background checks on police departments to courts and prison systems. Despite the numerous reforms made, Kenya is still far from being considered as having an adequate criminal justice system.
While there have been notable achievements in the context of legal reforms, it is clear that improving law and justice processes is a complex and long-term task beyond the strengthening of particular institutions (Criminal Justice Reforms, 2017). The transformation process was further affirmed in the provisions of the 2010 Constitution. However, a few challenges persist and predispose the Criminal Justice System against the weak and indigent in our society (Criminal Justice, n.d.). A suspect is considered innocent in the country until they are proven guilty by a court of law. It is the work of the court system to determine whether a suspect is guilty or not.
Before colonization, Kenya back had an informal, customary criminal justice system. The system was carried out by local chiefs and a council of elders in remote villages, where police and formalized courts were not readily accessible (Kinama, 2015). The conventional justice system, however, was limited to the degree of seriousness of the crime perpetrated. Later, the introduction of courts helped handle severe offenses, such as murder or rape. Currently, Kenya’s criminal justice system involves several actors with distinct obligations and accountabilities in handling lawbreakers.
At the center of the criminal justice system, is the Judiciary. The judiciary is Kenya’s arm of government mandated the responsibility of hearing and resolving disputes in a manner that promotes equality. The Kenyan Constitution stipulates that no man is above the law. The rationale for this statement is enforced in the International Criminal Court Article 27 of the Rome Statute that states everyone shall be treated equally despite their official capacity, with specific reference to heads of state. Kenya is a member of the International Court of Criminal Investigations (ICC). Immunities or special procedural rules that may attach to a person’s official capacity, whether under national or international law, shall do not bar the court from exercising its jurisdiction over such a person (Cacciatori, 2018). The judicial system comprises courts and tribunals that are focused on fairly administering justice to citizens. However, Kenya’s judicial system has faced a myriad of setbacks.
The most serious is corruption among judicial officers and the backlog of cases due to inadequacy of judicial officials, such as judges and lawyers. Corruption refers to the illegitimate use of authority for personal gain, mainly of the authority administered by government institutions (Soreide, 2016). In Kenya, corruption is hard to combat since bribe transactions are difficult to substantiate. Often, such activities are greatly hidden and failure to integrate superior technological systems that can easily track such operations in the country’s major systems has hampered the efforts to combat corruption. For instance, in 2014, corruption in the Kenyan police force made Amnesty International describe the institution as a bribe factory or another anathema (Mageka, 2015). Corruption is a severe menace that needs immediate attention if the justice system is to improve. At the top of the Judiciary is the Chief Justice who heads the arm. The deputy chief justice deputizes the chief justice and assumes the role of Chief Justice in the absence of the sitting one. Heading the arm is one of his/her primary functions. Other functions include assigning duties to all other judges and supervisory control over the judicial arm of government. The President appoints all judges on the Judicial Service Commission’s recommendation (JSC) and is subject to the National Assembly’s approval.
Criminal justice systems are undoubtedly less self-contained than they have been in the past (Pryce & Wilson, 2020). Today, most of their decisions are influenced by International Laws, such as the United Nations’ legislation. In its decisions, it must take into consideration the application of these laws. Courts in Kenya have been subdivided to fit the different levels of crimes. Courts play a pivotal role that has significant consequences on the Justice System. They try the accused and determine whether they are guilty or not. A role that should be done to the best of the courts` knowledge is not to punish innocent civilians for crimes they did not commit and give necessary punishment to the guilty. The highest court is the Supreme Court. It hears and responds to cases involving presidential election petitions. Below the Supreme Court in the hierarchy is the High Court, followed by magistrate courts and juvenile courts for law offenders under eighteen years. The Constitution also provides a Court Martial for disciplinary action against those in the Kenya Defense Forces (KDF).
When it comes to the prosecution of lawbreakers, Kenya’s Constitution provides for the Office of Director of Public Prosecution (ODPP). The Director of Public Prosecution (DPP) is nominated by the President and is subject to approval by the National Assembly. The DPP’s primary function is to exercise the state’s power of prosecution and institute criminal proceedings against anyone. In doing this, he/she must have substantial evidence or credible Intel that the person has broken the law. In the United States, the prosecutor has the power to file and drop charges against anyone according to the law.
In the United States, the criminal justice system is divided into the police, the courts, and the corrections system (Misachi, 2017). Pretty much the same as the Kenyan Justice System. The first branch is the police. The police are charged with enforcing law and order at the federal, state levels or community levels. Federal officers operate under the federal government, while state police operate within state borders. They may also work as traffic police within a particular state.
The Judiciary is just but a section of the criminal justice system. Other divisions include the police and prisons. The police service is the first line. They play an essential role in receiving complaints, recording them, investigating suspects, apprehending and detaining lawbreakers or those suspected to have broken the law. Police do not respond to crimes simply because they were never reported. At the top of the Kenya Police Force is the Commissioner of Police, who act as the Chief Administrative Officer and is stationed at Kenya Police Headquarters in Nairobi (Factbook of Criminal Justice, n.d.). The ranks subdivide further down to the commissioners and their assistants. Depending on their functions, the national police service is subdivided into three. One is the administrative Police (A.P.), whose primary duty is to maintain law and order in places inaccessible to the regular police. Second is the Regular Kenya police in charge of law enforcement and traffic control. Finally, the General Service Unit (GSU). It is a mobile police force that is separately organized from the rest of the Kenya Police. It is a paramilitary police force used for the apprehension of dangerous, syndicated, or armed criminals (“Factbook of criminal justice,” n d). Their actions, however, were reviewed by the Public Service Commission (PSC), which served to offer disciplinary action to corrupt and undisciplined officers. Some disciplinary actions may include legal proceedings in a court of law, suspension, or even dismissal from the service. The PSC was replaced by the Independent Police Oversight Authority (IPOA), which reviews police misconduct cases and provides disciplinary action.
However, with such great power bestowed upon the police, abuse of power is not rare. Most young officers have been reported to get drunk quickly, contributing to their involvement in brutal, inhumane activities. Over the last couple of years, there have been numerous attempts by the Kenyan Government to curtail these powers. Despite the numerous government efforts, very little progress has been achieved. All actions executed by the police must be per the Constitution and the bill of human rights. Violation of any is a severe criminal offense that is punishable. IPOA has the jurisdiction to oversee the latter.
The use of excessive force by the police is a common global trend. It happens in literally almost all countries in the world today. Kenyan Police have been known to unleash torrents of cruelty against citizens. Victims of crime in the country are less satisfied with how they handled them, thus less satisfied with the country`s Justice System. At least fifteen people have been killed during the first nine weeks of the dusk to dawn curfew implemented by the Kenyan government to curb the coronavirus pandemic’s spread (Aljazeera, 2020). Some Kenyans have claimed that the coronavirus is the concealed murderer while the law enforcement officers have been christened as the seen killers. There is prevalent brutality of law enforcement members who depend on complete bribery, a lack of answerability, and the inadequate capability of oversight organizations to circumvent Fairness. Police have become more of abusers as opposed to protectors of citizens. The brutality is seen in numerous cases where police beat civilians to levels beyond brutal. Most have been reported to die after such incidents, but still, the perpetrators roam the streets of Kenya freely. Mainly, these killings occur in the urban slums of Kenya. Many people are nursing injuries because of police beatings; many people have lost businesses because of police demanding bribes or looting (Ombuor, 2020). The above is evidence enough to support the claim that the judicial system does not protect its citizens. The failure could prove to be a rather dangerous undertaking if no action is taken. How could it be? If the system itself is responsible for more deaths than criminals. Curbing police brutality is a fundamental process in any country.
Moreover, politically instigated police fatalities are high. The police, who should be a neutral body with no political affiliation, have been used by rich politicians to disperse crowds of their opposers by use of excessive force leading to loss of lives (“Human Rights Watch,” 2020). The statistics posit a dangerous trend for police force functionality in society. There is a threat to democracy as long as the rift in the relationship between citizens and law enforcement officers continues to grow.
What is more, the use of excessive force is evident during and after elections (“Human Rights Watch,” 2020). Until recently, treatment of offenders has started receiving public attention. Perhaps the most famous case of police brutality is the 2007 Post Election Violence (PEV). The judicial system then was failing the citizens. The institution’s reputation for being hamstrung by subservience to the executive, and mired by corruption and delays, was a direct contributing factor to the descent into PEV in 2007. All parties agreed that judicial reform was an essential ingredient of sustainable peace (O’Loughlin, 2017). The brutality has led to the upcoming human rights activists against the excessive use of force and violence by law enforcement officers.
An example is Juliet Wanjira who has emerged as a central figure among a new generation of young, fearless activists drawn primarily from Kenya’s informal settlements. In the weeks following the curfew’s implementation, the 25-year-old from Mathare, one of Kenya’s poorest neighborhoods, led two protests against police brutality (Human Rights Watch, 2020). Most rogue officers take advantage of the lack of accountability and incapability of the Judicial System to follow up in seeing that such officers are brought to justice. They atone for their transgressions. To curb this, Oversight Authorities should be empowered to ensure that they conduct their functions to the fullest of their abilities. It may be through investigation of any complaints relating to the abuse of a public member by police. Additionally, these authorities ought to monitor and investigate police operations relating to the public. If this can be achieved, there is no doubt that relations between law enforcement agencies and the public will improve considerably for the public’s better good.
However, why are these killings only reported in the slums? The brutality to slum dwellers shows that this impunity is done to the poor people. Kenya’s violation of human rights is expected in the slum and urban areas. According to activists, if you are poor, you fear the police more than anything else does (“Human Rights Watch,” 2020). The poor are the primary victims of police brutality because they have no money to bribe the corrupt law enforcement officers. It depicts a lousy trend in which there is a lack of transparency and good working relation in the police force. David Anderson, a professor of African politics at the University of Oxford, argues that police violence’s menace dates back to the colonial period. Back then, says Anderson, they worked under European settler farmers and had to protect them from the Africans who had put up spirited fights against them as a way of preventing colonization. The outcome of this was indiscriminate arrests, mass imprisonment, torture, and the massacre of tens of thousands of Kenyans by the state. By the time the country gained independence, the violent culture had already been inculcated in the police force. According to The Guardian magazine, activist Wanjira concludes by saying that she wants the police to realize that they are poor people just like they who live in slums, fighting not for their gain but the benefit of a few wealthy people out there. There is a need for a turnaround in their mindset.
The prison service operates as an integral component of the overall law and justice system (Kinama, 2015). The Commissioner-General of Prisons heads the Kenya Prisons Service. It serves to teach law offenders that crime does not pay. In addition, it shows them the ramifications of breaking the law. It achieves this by rehabilitating criminals, hoping they will be better by the time they will be leaving the prisons. However, the service has been faced with numerous setbacks that make it difficult to execute its functions fully. Detainees largely populate the Kenyan prisons. Detainees are prisoners who have not yet been convicted, but are awaiting the hearing of their cases. Unlike prisoners, detainees are held in jails.
After profiling, data showed that most of the remandees are mostly the youth in their prime productive age. Holding such many possibly productive individuals, some of whom are innocent, is costly for the state and leads to the economy’s deterioration. Delays in court proceedings have primarily contributed to overcrowded prison institutions whose facilities are limited (O’Loughlin, 2017). Prisons had been known to hold up to ten times the number of inmates they were initially designed for (“Criminal Justice Report,” 2015). Many of them are claimed to have committed petty offenses subject to punishment through community service. Some reforms have been put in place providing community service and parole to petty law offenders, thus reducing the number of prisoners in prisons. Offenders become eligible for parole once they have served a specific period of their term in prison. However, the only problem is the inadequate number of probation officers to meet the demand for all magistrates and the high court (“Criminal Justice Report,” 2015). There have been reported cases of apparent human rights violations in prisons. The rights of arrested and detained persons are enshrined in chapter six of the Kenyan Constitution, The Bill of Rights. Surely now IPOA should take responsibility and punish the offenders. Or does it take human rights activists to take to the streets for the board to act?
In the United States, there have been police cases in the U.S. using excessive force towards citizens resulting in extrajudicial killings. Most of which is racially instigated. The most recent case with a spiked international reaction against racism is George Floyd’s killing during a protest. The 46-year-old black man was killed after being handcuffed and pinned to the ground by a police officer. According to CNN, the chances of an African-American being killed during a protest are high. Such information reveals that police brutality is a trending global menace among third-world countries and developed countries. Moreover, the rate is high and it still depicts an upward trend (Edwards et al., 2019). For instance, in the first two months of 2021, there were 132 civilian police shootings, 16 of whom were Blacks. In 2020, there were 1,004 fatal police shootings, and in 2019, there were 999 fatal shootings. (Statista Research Department, 2021). From January to December, these cases continue may also adopt the trend. The effect is setting a bad precedent and reputation for the police force. The rate of police killing and excessive force in the United States is much higher than in Kenya. As a developed country – the U.S. shows profoundly high levels of excessive force. The prevalence of such cases sets a dangerous trend that puts the citizen’s-police relationship at odds.
The second branch courts. According to U.S. law, a court is a system that has the authority to make decisions based on the law (Misachi, 2017). The U.S. system of justice divides courts into two: Federal courts, which deal with federal matters, and state courts that deal with state matters. Like Kenya, all federal courts are appointed by the head of state and are subject to congress’s approval. In addition, a suspect is presumed innocent until the government meets the highest burden of proof: evidence of guilt beyond a reasonable doubt. Judges are considered referees and only act passively as the prosecutor and defendants argue their case before a jury, a group of citizens chosen randomly. A guilty verdict is delivered if only all members of the jury vote guilty. If at least one juror does not vote guilty, the accused may get a new trial or even have the charges against them dropped. The system is different from the Kenyan one, where the judge seeks to investigate and find out the truth to administer justice fairly.
The corrections system, more commonly known as the prison system, is charged with supervising individuals who have been arrested, convicted, and sentenced for a criminal offense (Misachi, 2017). According to Misachi (2017), the United States has the highest number of prisoners globally. Also, the incarceration rate of its citizens is very high compared to other countries in the world. The Justice system had adopted probation and parole to reduce these numbers. Probation is the supervised time used as an alternative prison, whereas parole is a temporary release from prison or jail that requires consent and supervision of a parole officer (Kinama, 2015). Although the police, courts, and corrections work must, by necessity, overlap, this does not mean that their activities are coordinated or coherent (Neubauer & Fradella, 2018). Each sector must perform its functions optimally for the eventual goal of a sound justice system.
In Kenya and the United States, criminal justice systems need to step up how they address different criminal issues. After successfully eradicating the menace of corruption, there is no doubt that these systems will be capable of serving the public even better. When it comes to police brutality and excessive force towards the public, a good relationship will be fostered between law enforcement officials and the citizens. In conclusion, all laws stipulated in the Constitution should be followed to the latter.
Aljazeera. (2020, Jun 5). Kenya police ‘killed 15’ since the start of coronavirus curfew. https://www.aljazeera.com/news/2020/6/5/kenyan-police-killed-15-since-start-of-coronavirus-curfew
Cacciatori, M. (2018). When Kings Are Criminals: Lessons from ICC Prosecutions of African Presidents, International Journal of Transitional Justice, Volume 12, Issue 3, November 2018, Pages 386–406, https://doi.org/10.1093/ijtj/ijy023
Criminal Justice Report. (2015). National Council on Administration of Justice. http://kenyalaw.org/kenyalawblog/wp-content/uploads/2017/01/Criminal_Justice_Report.pdf
Edwards, F., Lee, H., & Esposito, M. (2019). Risk of being killed by police use of force in the United States by age, race-ethnicity, and sex. Proceedings of the National Academy of Sciences, 116(34), 16793-16798.
Human Rights Watch. (2020, Apr 22). Kenya: Police brutality during curfew. https://www.hrw.org/news/2020/04/22/kenya-police-brutality-during-curfew#:~:text=Kenya%20has%20a%20long%20history,of%20them%20during%20peaceful%0protests.
Kaeble, D. & M. Cowhig (2018). Correctional Populations in the United States 2016. https://www.bjs.gov/content/pub/pdf/cpus16.pdf
Kinama, E. (2015).Traditional Justice Systems as Alternative Dispute Resolution under Article 159(2) (c) of the Constitution of Kenya, 2010
Mageka, A. (2015). Police Reform in Kenya: Challenges and Opportunities. CSG. Insight P 9.
Misachi, J., (updated, 2017). The largest jails in the U.S. https://www.worldatlas.com/articles/the-largest-jails-in-the-united-states.html
Neubauer, D. W., & Fradella, H. F. (2018). America’s courts and the criminal justice system. Cengage Learning.
O’Loughlin, E. A. (2017). Kenya’s Constitution in a global context. International Journal of Constitutional Law. Volume 15, Issue 3, July 2017, Pages 839–848, https://doi.org/10.1093/icon/mox062
Ombuor, R (2020, Apr 23). Kenyan Police accused of killings, excessive force while enforcing COVID-19 curfew. VOA. https://www.voanews.com/africa/kenyan-police-accused-killings-excessive-force-while-enforcing-covid-19-curfew
Pfeiffer, B.S. (1978). The Role of the Judiciary in the Constitutional Systems of East Africa.The Journal of Modern African Studies 16.1 (1978):33-66.
Pryce, D. K., & Wilson, G. (2020). Police procedural justice, lawyer procedural justice, judge procedural justice, and satisfaction with the criminal justice system: Findings from a neglected region of the world. Criminal Justice Policy Review, 31(9), 1286-1311.
Soreide, T. (2016). Corruption and criminal justice: bridging economic and legal perspectives. Edward Elgar Publishing.
Statista Research Department. (2021, Feb 3). People shot to death by U.S. police, by race 2017-2021. https://www.statista.com/statistics/585152/people-shot-to-death-by-us-police-by-race/
The Guardian. (2020).Human Rights In Focus; Police. Nine weeks of bloodshed: how brutal policing of Kenya’s Covid curfew left 15 dead. https://www.theguardian.com/global-development/2020/oct/23/brutal-policing-kenyas-covid-curfew-left-15-dead
The Washington Post. (2021, Feb 4). 976 people have been shot and killed by police in the past year. https://www.washingtonpost.com/graphics/investigations/police-shootings-database/
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