Development of Kenya Criminal Justice System

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Development of Kenya Criminal Justice System

When colonial powers came to colonize Africa, they brought their law with them. The 

criminal justice system of Kenya has evolved from its inheritance of its English Common Law 

tradition. The courts adhere to the principle that requires courts to follow historical cases that

have happened before when making a ruling on a current similar case. The criminal system is 

carried out by police officers and formalized courts. Where they are not readily accessible like

in  remote villages, council of elders and chiefs carry out the task. This is to say that Kenya has

an  informal, traditional criminal justice system.

The system has been going through constant change since the start of time and can be  noted

back to the bible days in the form of grounding of the ten commandments. It however  started

changing drastically towards the 1750s. In early times of Criminal justice, the system was 

composed of codes. One of the most important codes is the code of Hammurabi for justice in 

ancient Mesopotamia. The set of standards covered everything from divorce, to criminal 

behavior to slavery and property law to every person who broke the law. This stated that forms 

of punishment follow the rule of eye for an eye for an eye, that is to say that if a person broke a 

bone belonging to his acquittance, his own bone would be broken in return. The laws varied
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according to social class and gender. The Hammurabi’s code set a valuable legal provision

that  has survived to date. It states an offender is innocent until proven guilty.

Another important code is the Babylonian and Sumerian codes. These were the earliest 

created codes by the Sumerian ruler Ur Nammu and dates all the way back to the 21 century 
st

B.C. It had an immense effect upon that nearly of all the countries in Europe. The use of these 

judicial function, at least in matters of the law, seems to have been in the form of hierarchies. the 

Babylonian code was also responsible for what we know as trial jury system created by the 

common law which is a body of unwritten laws established by the judges. It influences the 

process of decision making where the verdict cannot be made based on written or set rules of 

law.

Another important code was the Roman and Greek code. The back-and-forth change of 

leadership of the ruling class saw the fall of the roman republic in the 125BC. This has not 

changed even in our modern-day politics. In most cases, the winning group changes hands and 

sought to ban others out causing confusion and vagueness. When people don’t know what the 

rules are, everyone is accountable to break the law. Roman laws hold royal view of

government  power and stress the absolute power of state. Today, it is no longer applied in

legal practices.

Kenya’s justice system is based on its Statutory law, customary law, Islamic and English 

common law. Kenya exercised the Supreme court and subordinate courts system because it 

adopted the British system. When Kenya was declared a colony in 1920, the colonial parliament 

passed laws that worked as a base for the criminal laws in Kenya. In the beginning, some of 
these laws like tax evasion laws, bigamy laws and laws prohibiting cultural practices like 

stealing of cows among the Maasai community (an ethnic group in Kenya), were unacceptable

to  the citizens. They believed it was against their believes and religion. In 1921, after becoming

a colony, Kenyans launched heavy resistance against British dominance leading to Mau-mau

uprising in 1950s.This led to Kenya’s independence in the year 1963, encouraging the Kenya 

Independent Parliament to revoke laws that were contrary to their believes and values, (Kempe

Ronald et al).

Criminal justice system is comprised of law enforcement including policemen, the

court  system including judges and magistrates and the jail or correctional system. It establishes

the  criminal procedure and the role of each of the earlier partners in the management of

criminals.  The police investigate and arrest, the judicial conduct the judicial procedure and

make decisions  in court pertaining the case. The correctional facilities rehabilitate and

reintegrate the offenders.  Its role is to gain peace in the society and uphold the respect of the

rule of law.

The Kenyan criminal justice system, as clearly affirmed in the 2010 provisions has with 

no doubt undergone major transformation in the recent years. Some of the key’s features was 

that the general rules of international law were to form part of the law of Kenya, (Louise

Chappell, et al, 1331). Also, the right of access to justice by all citizens and the presumption of

innocence till proven guiltyis a major development in the system. Provisions for the rights of

an  arrested person and the right to a fair hearing were some of the key articles touching on

criminal  justice system as well.

most poor people, as compared to well to do people tend to be more arrested, charged  and sent

to prison. It was highly linked to lack of business licenses and being drunk and  disorderly. It

also showed that serious crimes such as capital offences and sexual offences  registered highest

acquittals. The new constitution however, demands accountability and  transparency, as well as

inclusiveness and participation in governance. A framework was formed

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to implement this new order. This has seen the inclusion of all stakeholders in the

community  the development of the Justice system, both the rich and the poor

The constitution has depicted clear rights for arrested persons. Some of the rights states 

that an arrested person should be arraigned in court within 24hours regardless of the offence 

committed. Other reforms within the provides for the procedure to be followed in the

prosecution  of criminal matters. It begins with arresting the accused person. Then he or she is

presented to  the court for trial within 24hours for non-capital offences and14days for capital

offences. Some  police officers, often tend

The criminal procedure code (CPC) was legitimized in the Kenya National Police

Service  act, 2011. It is a structure to safe guard the rights of offenders from police who tend to 

wrongfully harass citizens, especially the poor and marginalized individuals without sufficient 

knowledge to defend themselves. To enhance this accountability, the Officer Commanding 

Station 9OCS) has been given powers to release a person arrested without a warrant especially

if  a police enquiry does not provide sufficient evidence to continue with the charge.
Further, the constitution established the National Police Service Commission which  among

other things is supposed to exercise control over National Police Serviced Staff. An 

oversight authority has been established by the police oversight authority to provide a

civilian  oversight of the work of the National police service, (Njuguna, et al). Its objectives

include  holding police accountable to the public in their performance, ensure proper

handling of  complaints by the service and ensure that the police strive for professionalism,

discipline, and  practice transparency and accountability. It therefore investigates any cases

of indiscipline or  criminal offences by officers, inspects detention facilities, monitors all

policy operations

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affecting members of the public. They also review indiscipline and police misconduct

patterns  and the process of disciplinary measures to be taken thereafter.

The constitution of Kenya in Article 49(1) (h), only on reasonable conditions, gives an 

arrested person the right to be released on bond. This however excludes serious crimes like 

treason, murder, rape, both attempted and robbery with violence and related cases. The amount

for bond depends on the circumstance of the case and should not be a extremely high. The

constitution also enhances the legal representation of an accused person stating that he/she has

a right to choose to be represented by an advocate and if he is not able to get one one should

be  appointed for him by the state.

Vulnerable groups in the criminal justice system such as children and women need 

special protection. Children should only be detained as a measure of last result, and if detained, 

then should be for the shortest appropriate period of time. They should also be separated from 
adults and their best interests emphasized as the paramount principle when dealing with them. 

Mentally ill offenders also need special attention. The constitution demands that the court

should  strive to protect the dignity of such people by allowing them to sit Infront of a camera as

opposed  to being before a court. The sick offender is to be held in a mental health facility where

they are  able to access medical attention during their detention. In cases that they are in police

cells, the  Mental Health Care Bill, 2012 requires they be held separately from other detainees in

separate  cells. It further states that where the mental ill offenders have the ability to stand trial,

their cases  are to be given priority over other cases.

The National Council on the Administration of Justice was formed to be a policy  making,

oversight and implementation mechanism for state and non-state actors in the justice  sector. It

formulates polices regarding justice administration, mobilize resources involved in the

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process and monitor, evaluate and review strategies for justice administration. It also

oversees  all operations of any body engaged in justice administration as well as review the

reports of  Court users committee.

Some of the challenges experienced within the justice sector fall within the prison 

service. They include congestion, inadequate female responsive programs, like enough sanitary 

towels and inadequate resources in general. Kenya is one of the most rapidly growing nations

in  the world. This development has seen to the high crime rate rise in the country. This has

sought  to implementation of crime reduction by the criminal justice system. The goal of the

criminal  justice system is to prevent other crimes from happening, rehabilitating offenders and

giving  victims of crimes moral support.

Louise Chappell frica 7.2 (2015): 91-107.

Marcus, Maxine, Louise Chappell, and Andrea Durbach. "‘Nothing about us, without us, is for  us’:

victims and the international criminal justice system." The International Journal of  Human

Rights 21.9 (2017): 1337-1346.

Njuguna, Esther, James Ndung’u, and Kathryn Achilles. "Institutionalizing police reforms in

Kenya: Lessons from 2012-2015." SAFEWORLD preventing violent conflict, building  safer

lives (2015).

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