The Kenyan criminal justice system, a commentary.

The national council on the administration of justice released an audit of the Kenyan criminal justice
systemin the year 2015. The audit was arried out by a national steering committee that included a
number of organizations such as, the children service department, the judiciary, the international justice
mission, the law society of Kenya, FIDA, LRF among others who were all represented by individuals who
acted as members of the steering committee. The audit focuses on; (a) the case flow management in the
Kenyan criminal system, (b) the conditions of detention centers in the Kenyan system, and (c) the
position of children in the Kenyan criminal system. From these points of focus the audit pin pointed key
problems that have ravaged the criminal system as will be discussed later however the focus of this
paper will be of the issue of a disconnect between the ordinary citizens and the judiciary as elaborated
in the audit resulting in a notion that ‘the criminal justice system only serves the rich and is biased
towards the poor.’ In furtherance to this particular issue, this paper will also look at the concept the
‘jury’ and whether an introduction of the jury system will bridge the gap between the ordinary citizen
and the criminal justice system noting to interrogate the cogency of the effectiveness of the jury in the
Kenyan criminal justice system.

Before any other thing, a historical analysis is reqyired to lay down an overwiew of how the Kenyan
criminal justice system works from which the issues or problems highlited in the audit released y the
national council on the administration of justice can trully be synthesized and appreciated including the
issue which is the focus of this paper i.e. a disconnect between the ordinary citizen and the Kenyan
criminal justice system.

The criminal system in Kenya dates back to the colonial days and the colonialists i.e. the british. Before
the coming of the colonialists in the in the 19 th century, the political entity known as Kenya didi not exist
at the time. However there were local tribes wh resisded in the geographical unit that now constitutes
Kenya. These tribes were autonomous from each other with different systems of organization including
different systems of criminal justice system. Essentially each tribe had its own offences and the
punishment pegged to those offences and how guilt would be inferred. When the british come they
imposed among other thing their own criminal justice system that formed the basis that lead to the
current legal system available in Kenya.

After independence Kenya as a country inherited what was mainly English common law tradition. The
criminal justice system has however evolved form the one first introduced by the british. The current
legal system guiding crimes in Kenya is a combination of statutory law, English common law, customary
law and Islam law. In terms of procedure the judiciary plays the central role in the criminal justice
system. When a crime is committed the body that comes in is the police. The police among other duies
such as maintaining peace and order is the investigative body in the Kenyan criminal system. After
investigations are done the police have the power to arrest any suspected offender and hold such
persons in custody. It sould be noted that in theory the police are menat to ake arrest only when they
gauge that they hve sufficient evidence for a case to be brought against the alleged offender.

In the police cell the alleged offener awaits to be arraighned in court. The constitution expressly
provides that no person should be in police custody for more than 24 hours without being araighned in
court. At the process of bringing the alleged offender to court, a new body comes into the process i.e.
the office of the director of public prosecution (ODPP). A prosecutor ( officer of the ODPP) is the person
who institutes charges against an offender in the name of the state relying on evidence brought by the
police. After a charge is instituted, bale hearing is then heard and depending on the ooutcome the
alleged offender will either be held in remand or not as he trial continues. The court in this case the
judge pronounces guilt or innocence and imposes the appropriate punishment or sentencing as
estaboshed in statutory law. i.e. statutes give courts in certain cases latitude to exercise discretion when
imposing punishment in certain cases. After guilt is established and punishment is give depending on the
punishment the offender can either be inducted into the prison system or given a propation officer
depending on the punishment. There is also an appel system in the Kenya criminal system that is
available to all offenders who feel there was elements of injustice during their first trial and to the
prosecution if it is not satisfied with the verdict. This reprents a brief overview of the Kenya criminal
justice system.