Eleanor Finch
Kenya's criminal justice system is composed of autonomous but interdependent state agencies, including the police, prosecutors, courts, correctional services, and non-state actors. The 2010 Constitution of Kenya guarantees equal protection under the law and access to justice for all, with specific provisions for fair trials and reasonable fees. The judiciary, which includes the Supreme Court, Court of Appeal, and High Court, is responsible for resolving disputes and protecting the rights and liberties of all citizens. The police play a critical role in the criminal justice system by receiving and recording complaints, arresting suspects, and investigating cases. However, challenges such as economic factors, legal complexity, and systemic issues within the justice chain have hindered access to justice for many Kenyans, particularly those from underserved communities.
| Characteristics | Values |
|---|---|
| Actors | Police, Judiciary, Probation after-care services, Prison services, Prosecution, Witness protection, Correctional services, Children's Department |
| Police role | Receive and record complaints, arrest suspects, investigate cases, draw up charge sheet |
| Judiciary | Superior and Subordinate courts, Supreme Court, Court of Appeal, High Court, Environment and Land Court, Employment and Labour Relations Court |
| Legal aid | Previously only available for murder trials in the High Court, now greater initiative to establish an institution for legal aid services |
| Constitution | Guarantees equal protection of the law, demands justice for all irrespective of status, guarantees fair trial for all persons charged with criminal offences |
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What You'll Learn
The police: investigation, arrest, receiving and recording complaints, and drawing up charges
The police are the point of entry for every offender to the Kenyan criminal justice system. They are responsible for receiving and recording complaints, arresting suspects, investigating cases, and drawing up the charge sheet.
The Kenya Police Service (KPS) is the country's primary security and law enforcement agency. It is commanded by a Deputy Inspector-General (DIG) who reports to the Inspector-General of the National Police Service. The KPS has around 65,000 officers and is backed up in rural areas by the Kenya Police Reserve (KPR). The General Service Unit (GSU), a paramilitary wing of the KPS, has approximately 10,000 personnel, 2,000 of whom are trained by Israelis and form most of the presidential guard.
The Administration Police (AP), which reports to the Deputy Inspector-General-APS, has a force of 25,000. The AP's responsibilities include protective and border security, as well as combating cattle theft and containing banditry.
The Directorate of Criminal Investigation, commonly referred to as the CID, is a semi-autonomous directorate of the National Police Service responsible for investigating complex cases. It is headed by a director who reports to the Inspector General of Police and is appointed by the President of Kenya.
Police officers play a multifaceted role in the criminal justice system. Their primary role is law enforcement, ensuring citizens abide by local, state, and federal laws. They respond to emergencies, patrol neighbourhoods, monitor suspicious activities, and engage in community policing. When a crime occurs, they secure the scene, gather evidence, and interview witnesses. They also serve as witnesses in court, providing testimonies about the crime, their investigation, and the evidence gathered. This can significantly influence the outcome of the trial.
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The judiciary: court processes, dispute resolution, and case law compilation
The judiciary in Kenya is mandated to deliver justice in line with the Constitution and other laws. The judiciary is responsible for the court process, dispute resolution, and the compilation and dissemination of case law and other legal information for the effective administration of justice. The judicial system in Kenya is defined by 15 articles spanning from Article 159 (judicial authority) to Article 173 (Judiciary Fund) in the new constitution. The courts under the Constitution operate at two levels: Superior and Subordinate courts. The Court system has been decentralised with the Supreme Court and the Court of Appeal having their own presidents and the High Court having a Principal Judge.
The judiciary comprises seven judges: the Chief Justice, who is the president of the Court, the Deputy Chief Justice, who is the deputy to the Chief Justice and the vice-president of the Supreme Court, and five other judges. The Court of Appeal is established under Article 164 of the Constitution of Kenya 2010. The High Court is established under Article 165 and it consists of a number of judges to be prescribed by an Act of Parliament. The Court is organized and administered in the manner prescribed by an Act of Parliament. The Court has a Principal Judge, who is elected by the judges of the High Court from among themselves.
The judiciary also consists of the Environment and Land Court, as well as the Employment and Labour Relations Court, which are courts of equal status to the High Court. The Environment and Land Court was established under the Environment and Land Court Act 19 of 2011, while the Employment and Labour Relations Court was established under Article 162 (2) (a) of the Constitution.
The judiciary is responsible for resolving disputes in a just manner, protecting the rights and liberties of all, and facilitating the attainment of the rule of law. It works in conjunction with related institutions such as the Judicial Service Commission (JSC), Kenya Law, Tribunals, and the Kenya Judiciary Academy (KJA) to effectively administer justice.
Kenya's criminal justice system faces challenges due to a high number of petty offences, which account for 68% at the entry point of police arrest and detention. This has led to a clogged system, with 75% of pre-trial detainees in prisons being between the ages of 18 and 35. Reforms have been proposed to address these issues, including reclassification and diversion, where minor illegal acts are treated as civil infractions with fines instead of criminal offences.
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Prisons: rehabilitation, reformation, and reintegration
Kenya's criminal justice system involves various actors with defined roles and responsibilities in managing offenders. The key players include the police, the judiciary, probation and aftercare services, and prison services.
Prison services in Kenya are responsible for the rehabilitation, reformation, and reintegration of offenders. The goal is to reduce the likelihood that inmates will re-offend either while incarcerated or after their release, creating safer prisons and safer communities. This philosophy is shared by other criminal justice systems, such as the Federal Bureau of Prisons, which is implementing reforms to strengthen the rehabilitation aspect of prison services.
Rehabilitation strategies aim to address the core behavioural issues that lead to criminality. These strategies are evidence-based and cover every aspect of an inmate's experience, from their initial intake to their return to the community. For example, the Federal Bureau of Prisons has reduced its use of solitary confinement and other forms of restrictive housing, especially for juveniles, pregnant women, LGBT inmates, and inmates with serious mental illnesses.
Reintegration is an important aspect of this process. Semi-open jails and open prisons, also known as open camps, are institutions with minimal or no walls, based on 'trust' and 'freedom'. These prisons help inmates develop a sense of responsibility and self-reliance, improving their self-image and confidence. This model helps prisoners reconnect with society and reduce the barriers they face when transitioning from closed prisons to the outside world.
The success of these rehabilitation and reintegration efforts is dependent on a comprehensive model that perceives prisons as a continuum, working towards the ultimate goal of reformation and reintegration.
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Prosecution
The criminal justice system in Kenya is made up of various autonomous but interdependent state agencies, including the police, prosecutors, courts, and correctional services, all of which play a role in the prosecution process.
The police are the point of entry for offenders into the criminal justice system. They receive and record complaints, arrest suspects, investigate cases, and draw up charge sheets. An arrest is lawful if it is made pursuant to a valid arrest warrant, which must conform to the standards set out in the law. The police must have a justifiable cause for arrest, as this curtails a person's freedom, and the Constitution guarantees the right to freedom and security for all.
The prosecutors, or prosecution services, are another key component of the criminal justice system. They work closely with the police and the courts to ensure that justice is served and that all citizens have access to justice, as guaranteed by the 2010 Constitution. The prosecution services are responsible for building a case against an accused person, presenting evidence, and arguing the case in court. They work within the framework of the law to ensure that the rights of both the accused and the victim are respected and that a fair trial is conducted.
The judiciary, or the courts, also plays a critical role in the prosecution process. The courts operate at two levels: Superior and Subordinate. The Supreme Court and the Court of Appeal have their own presidents, while the High Court has a Principal Judge. The judiciary is responsible for overseeing the trial process, ensuring that it is fair and just, and delivering a verdict based on the evidence presented. They are also responsible for sentencing, which can include imprisonment, fines, or other non-custodial sentences.
The correctional services, including prisons and probation services, come into play after a person has been convicted and sentenced. They are responsible for carrying out the sentence, whether it be imprisonment, community service, or other corrective measures. They also work on rehabilitating and reforming offenders, with the goal of reintegration into society.
It is important to note that Kenya's criminal justice system faces several challenges, including a high number of petty offences, systemic and structural issues, and a lack of access to justice for vulnerable communities. However, efforts are being made to improve the system, including legal and institutional reforms, to ensure that justice is accessible and served for all.
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Witness protection
Kenya's criminal justice system involves several actors with defined duties and responsibilities in managing offenders. The police are responsible for receiving and recording complaints, arresting suspects, and investigating cases. The judiciary oversees the court process, while probation and aftercare services, as well as prison services, handle rehabilitation, reformation, and reintegration.
An important component of Kenya's criminal justice system is its Witness Protection Agency (WPA), established under the Witness Protection Act (Cap 79 Laws of Kenya), which came into force on September 1, 2008. The WPA is an independent and autonomous state agency that provides special protection to individuals with valuable information who face potential risks or intimidation due to their cooperation with law enforcement. The WPA has covered 328 witnesses and 800 dependents, offering voluntary inclusion in its Witness Protection Programme. This programme is not a means to persuade witnesses to give evidence or make statements, and the WPA does not arrest offenders, investigate crimes, or prosecute.
The WPA's headquarters (Liaison Office) is located at the Milimani Law Courts in Nairobi, Kenya. The agency is led by a Director, who, along with their staff, exercises the powers granted to the WPA. These staff members include Deputy Directors, Managers, Protection Officers, and other officers. The WPA advises Ministries, Counties, Departments, and Agencies on adopting alternative witness protection strategies and determines the criteria for admission to the programme and the type of protection measures applied.
Witnesses and individuals can apply for protection through email, a hotline, in-person visits to Liaison Offices in Nairobi, Mombasa, and Kisumu, or through referrals from law enforcement agencies. The WPA also undertakes equipment needs assessments and procures vital witness protection equipment. Additionally, it works to raise awareness of its mandate and services among justice institutions and Kenyan citizens.
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Frequently asked questions
The criminal justice system in Kenya involves various actors with defined duties and responsibilities in managing offenders.
The key players in the criminal justice system in Kenya are the police (investigation and arrest), the judiciary (the court process), and the prison services (rehabilitation, reformation, and reintegration).
The police play a critical role as the point of entry for every offender into the criminal justice system. They receive and record complaints, arrest suspects, investigate cases, and draw up the charge sheet.
The judiciary is responsible for delivering justice in line with the Constitution and other laws. It resolves disputes in a just manner, protecting the rights and liberties of all. The judiciary also includes related institutions such as the Judicial Service Commission (JSC), Kenya Law, Tribunals, and the Kenya Judiciary Academy (KJA).
