Kenya

English

Kenya became independent of Britain on 12 December 1963. Jomo Kenyatta lead from independence until his death in 1978. In 1992 one-party constitutional provisions were repealed. Daniel Arap Moi lead from 1978-2002, but was constitutionally barred from running in the 2002 election. In the 2007 elections riots erupted in Kenya after election results were declared; eventually, a power-sharing agreement was reached in late February 2008, and a coalition government, with an equal number of ministers for the two main parties, was named in April 2008.

Kenya has a mixed legal system of English common law, Islamic law, and customary law.

Kenya has a revised constitution published in 2010 with provisions providing that every arresed person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released; and every person has the right not to be treated or punished in a cruel, inhuman or degrading manner.

ACJR has cooperated with a number of civil society structures, such as  the Independent Medico-Legal Unit (IMLU), Legal Resources Foundation (LRF) and Resources Oriented Development Initiatives (RODI) to conduct an audit of pre-trial detention and also a study on the socio-economic impact of pre-trial detention.

The laws of Kenya are available here.

French

Le Kenya a acquis son indépendance de la Grande-Bretagne le 12 Décembre 1963. Jomo Kenyatta dirigeât le pays de l'indépendance jusqu'à sa mort en 1978.

En juin 1982 l'Assemblée nationale inscrit dans la Constitution le parti unique, mais cette clause fut rejetée par le Parlement en décembre 1991. En décembre 1992 des élections multipartites donnèrent la victoire et la majorité des sièges au Kenya African National Union (KANU) de Daniel Arap Moi, qui fut réélu pour un mandat de cinq ans. Les partis d'opposition s'emparèrent d’environ 45 % des sièges parlementaires.

Daniel Arap Moi dirigea le pays de 1978 à 2002, mais fut constitutionnellement empêché de se présenter aux élections de 2002. Les émeutes consécutives aux élections de 2007 résultèrent en un partage de pouvoir en Février 2008, et à la création d’un gouvernement de coalition, composé d’un nombre égal de ministres issus des partis des deux principaux antagonistes.

Le Kenya est doté d’un système judiciaire mixte de common law, de droit musulman et de droit coutumier.

La Constitution Kenyane révisée et publiée en 2010 prévoit que toute personne arrêtée a le droit d'être libéré sous caution (endéans des conditions raisonnables) dans l'attente de son inculpation ou d’un procès, à moins qu'il n’existe des raisons impérieuses empêchant sa libération. Elle prévoit aussi que toute personne a le droit de ne pas être traitée ou punie de manière cruelle, inhumaine ou dégradante.

L'ACJR a coopéré avec un certain nombre d'organisations de la société civile, telles que le Independent Medico-Legal Unit (IMLU), la Legal Resources Foundation (LRF) et la Resources Oriented Development Initiatives (RODI) pour mener une évaluation du système de détention provisoire au Kenya, et une étude sur l'impact socio-économique de la détention provisoire.

Les lois du Kenya sont disponibles ici.

Portuguese

O Quênia tornou-se independente da Grã-Bretanha em 12 de Dezembro de 1963. Jomo Kenyatta liderou a partir da independência até a sua morte, em 1978. Em 1992, as disposições constitucionais que previam um só partido foram revogadas. Daniel Arap Moi liderou de 1978-2002, mas foi constitucionalmente impedido de concorrer na eleição de 2002. Nas eleições de 2007 motins ocorreram no Quênia após a declaração dos resultados das eleições; finalmente, um acordo sobre a partilha do poder foi alcançado no final de Fevereiro de 2008, e um governo de coalizão, com igual número de ministros para os dois principais partidos foi nomeado em Abril de 2008.

O Quênia tem um sistema jurídico misto de Direito Inglês comum, Direito Islâmico, e consuetudinário.

O Quênia revisitou e publicou uma nova Constituição em 2010, com disposições que preveem que todas as pessoas detidas tem o direito de ser liberadas sob fiança ou caução, em condições razoáveis, na pendência de uma acusação ou julgamento, a menos que existam razões imperiosas para não ser liberadas; e cada pessoa tem o direito de não ser tratado ou punido de forma cruel, desumana ou degradante.

A ACJR cooperou com várias estruturas da sociedade civil, como a Unidade Médico-Legal Independente (IMLU), a Fundação de Recursos Jurídicos (LRF) e as Iniciativas de Desenvolvimento Orientado a Recursos (RODI) para realizar uma auditoria de detenção pré-julgamento e também um estudo Sobre o impacto socioeconómico da detenção preventiva.

As leis do Quênia estão disponíveis aqui.

An Audit of the Criminal Justice System in Kenya
Author: Jean
Published: Jan 23, 2017

The 2010 Constitution ushered in a new era for governance in Kenya, with notable emphasis on rights codified in the Bill of Rights under Chapter Four of the Constitution. It is against this background that, under the auspices of the National Council on Administration of Justice (NCAJ), the Legal Resources Foundation Trust (LRF) and Resources Oriented Development Initiatives (RODI-Kenya) - with technical support from University of Western Cape South Africa - CSPRI and financial support from Open Society Foundations - partnered to conduct an audit study on Kenya’s Criminal Justice System. The focus was on pretrial detention with specific emphasis on conditions of detention and case-flow management. The audit was commissioned by the NCAJ Council on the 15th May, 2015 and thereafter conducted under the supervision of an NCAJ National Steering Committee, comprising of members drawn from the various agencies of the Criminal Justice System.

Constitutionality of Criminal Procedure and Prison Laws in Africa Kenya 2
Author: Jean
Published: Oct 01, 2016

Kenya’s 2010 Constitution is liberal with regard to the rights of persons in the country’s criminal justice system. Its notable novel provisions include the entrenchment of the rights to fair trial and habeas corpus and the separation of criminal investigations and prosecutions under two independent systems. The country’s penal and criminal procedure laws predate the Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa: Kenya
Author: Jean
Published: Oct 01, 2016

Kenya’s 2010 Constitution is liberal with regard to the rights of persons in the country’s criminal justice system.This study identifies conformity gaps between, on the one hand, constitutional protections of the rights of arrested, accused and detained persons and, on the other, statutory criminal procedure requirements. The starting-point is the Constitution and, accordingly, the study is concerned with provisions in criminal procedure law that are directly or indirectly within the scope of application of an explicit right in the Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa A comparative study of Burundi, Côte d’Ivoire, Kenya, Mozambique and Zambia
Author: Jean
Published: Oct 01, 2016

This study reviews 41 rights of arrested, accused and detained persons under Burundian, Ivorian, Kenyan, Mozambican and Zambian law. These countries were chosen because they represent Anglophone, Francophone and Lusophone Africa as well as countries that have a civil law and common law tradition. The study begins by reviewing 17 rights of those arrested and detained in police custody; it goes on to examine 18 rights of accused persons; and ends by considering six rights of those detained in prison on remand or as sentenced prisoners. Each right is examined from three angles: first, whether it is recognised under international human rights law; secondly, to what extent the right is enshrined in the domestic constitution of the jurisdiction under review; and thirdly, to what extent the right is upheld and developed in subordinate legislation.

US Department of State Human Rights Report: Kenya 2012
Author: Suraj
Published: Apr 01, 2013

"Lengthy pretrial detention continued to be a serious problem and contributed to overcrowding in prisons. Some defendants served more than the statutory term for their alleged offense in pretrial detention. Approximately 36 percent of inmates were pretrial detainees. The government claimed that the average time spent in pretrial detention on capital charges was 16 months; however, there were reports that many detainees spent two to three years in prison before their trials were completed. Police from the arresting locale are responsible for serving court summonses and picking up detainees from prison each time a court schedules a hearing on a case. Due to a shortage of manpower and resources, police often failed to appear or lacked the means to transport detainees, who then were forced to wait for the next hearing of their cases."

Independent Medico-Legal Unit
Author: Jean
Published: Oct 09, 2012

The Independent Medico-Legal Unit (IMLU) is a non-governmental organization that seeks a torture free society by promoting the rights of torture victims and survivors, and which seeks to protect all Kenyans from all forms of state-perpetrated torture by advocating for policy reforms, monitoring government adherence to human rights, rehabilitating victims of torture and capacity building of key stakeholders.

Resource Oriented Development Initiative
Author: Jean
Published: Oct 09, 2012

Resource Oriented Development Initiative (RODI) Kenya aims to reduce crime and re-offending by training school pupils and prisoners in organic agriculture, agro-processing, natural resource management, HIV/AIDs, and substance abuse prevention.

Legal Resources Foundation
Author: Jean
Published: Oct 09, 2012

Legal Resources Foundation Trust (LRF) is an independent, not-for-profit Kenyan civil society organization that promotes access to justice through human rights education, research and policy advocacy.

Muslims for Human Rights
Author: Jean
Published: Oct 08, 2012

The Kenyan Organisation Muslims for Human Rights comprises four main projects, one of which is "Access to Justice" : Prisons Reform.

Seven Kenyans detained for three years in Uganda
Author: Jean
Published: Oct 04, 2012

Muslims for Human Rights (MUHURI) on 4 October 2012 released a statement calling on the government of Kenya to address the plight of seven Kenyans arrested by their own government, and illegally renditioned to Uganda to face terrorism-related charges. MUHURI was able to visit the Kenyans detained in Uganda through the assistance of the Uganda Prison Service hosting the African Correctional Services Association Conference in Kampala.

Kenya tackles prisons as source of HIV infection in Kenya
Author: Jean
Published: Oct 02, 2012

Regina Ombam, the Head of Strategy Development of the National Aids Control Council Kenya shared the evidence on HIV/AIDS in prisons in Kenya and the important measures which have been taken in Kenya to address the situation at the African Correctional Services Assocation Conference in Kampala, Uganda.

'Kenya police detain and kill with impunity'
Author: Jean
Published: Apr 11, 2012

The Release Political Prisoners (RPP) Trust, a lobby group, claims to have documented at least 35 cases of extra-judicial killings committed since December 2011.

Caught between progress, stagnation and a reversal of some gains: Reflections on Kenya's record in implementing children's rights norms
Author: Jean
Published: Jan 01, 2012

This article was published in AHRLJ Volume 12 No 1 2012. The enactment in 2001 of the Children's Act was a significant development in the implementation of international children's rights norms in Kenya. The Act still stands as the first statute which substantially attempts to domesticate Kenya's obligations under any human rights treaty (in this case, the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child). Almost a decade since the Act entered into force, there is a poignant lesson to be learned. This is that in contexts such as Kenya's, where full compliance with international child rights norms requires a process of comprehensive audit of existing laws and policies, not even the enactment of a consolidated law such as the Children's Act suffices. Rather, the process requires a continuous review of all laws, on the one hand, and the putting in place of administrative and other practical measures, on the other. A significant development is the passage of a new Constitution, 2010. However, realising this potential under the new dispensation will require decisive political commitment to ensure the allocation of resources and the institution of practical measures for the implementation of child rights-related laws. The Free Primary Education programme still stands out as an example of a positive measure geared towards addressing the situation of some of Kenya's poor children. The challenge remains of replicating its example to other key areas, including health and child support to poor families. The need for further legal provisions, for example in the area of juvenile justice, the required repeal of laws such as in relation to corporal punishment and the gaps in enforcing existing laws mean that the process of harmonising Kenyan law with CRC and the African Children's Charter is far from complete.

Republic versus Danson Mgunya and Kassim Sheebwana Mohamed
Author: Jean
Published: Oct 15, 2010

".. a murder suspect has a Constitutional Right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released"

Constitution of Kenya 2010
Author: Jean
Published: Aug 27, 2010

As published by the National Council for Law Reporting with the Authority of the Attorney General

Governance, Justice and Law and Order Sector Reform Programme: Administrative Data Collection and Analysis Report
Author: Jean
Published: May 01, 2007

This review focused on administrative data collection and analysis in support of the following four indicators: (i) percentage increase in crime detection, prosecution and conviction rates of selected crimes (ii) percentage decrease in the awaiting trial population (iii) percentage decrease in the case backlog of selected crimes and (iv) percentage of litigants receiving legal aid, disaggregated by economic status, age and gender.

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