Kenya

Report - Overview and key findings COVID-19 restrictions and the impact on criminal justice and human rights (Kenya, Malawi, Mozambique, South Africa & Zambia)

This report makes a number of overview observations dealing with broader issues of governance, human rights, the socio-economic impact of the COVID-19 pandemic and the criminal justice system. A central lesson to be taken from these findings is the need for continued vigilance in seeking a balancing of rights and the importance of evidence-based policy-making, especially where there is the potential that those already socio-economically vulnerable may be pushed deeper into poverty. Report by L Muntingh, J Mangwanda & K Petersen

Annexure One: COVID-19 restrictions and the impact on criminal justice and human rights | Kenya

Report by J Mangwanda & K Petersen (2022)

By L Muntingh, J Mangwanda, K Petersen, T Lorizzo and V Petrovic

Solitary Confinement - A review of the legal framework and practice in five African countries

This report investigates the legal frameworks of five African countries (Kenya Malawi, Mozambique, South Africa and Zambia) as they relate to the use of solitary confinement. The effect of long periods of solitary confinement have been shown to have severe impacts on a prisoner’s mental and physical well-being. The UN Human Rights Committee (UNHRC) has noted that the use of prolonged solitary confinement may amount to torture or to cruel, inhuman or degrading treatment or punishment, in breach of Article 7 of the International Covenant on Civil and Political Rights (ICCPR). In December 2015, the UN General Assembly adopted the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules (‘2015 UNSMR’). The 2015 UNSMR addresses a key shortcoming in the protection and treatment of people in places of detention, as it, for the first time, sets down norms and limitations on the use of solitary confinement. The report concludes that there are major areas of non-compliance in each of the countries and this requires urgent attention

Presentation by Lukas Muntingh

An Audit of the Criminal Justice System in Kenya

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.

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.

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.

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.

Kenya Audit validated by National Council

A comprehensive audit of the criminal justice system in Kenya points toward avenues for reform.

"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

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

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

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.

KITUO was established in 1973 as a legal aid and empowerment centre.

Muslims for Human Rights

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

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.

Clement Okech of the Probation and After Care Service Kenya gave an overview of Probation Service in Kenya at the African Correctional Service Association conference in Kampala, Uganda.

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.

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.

Plans to decongest Kenyan prisons via clemency

The Kenyan Ministry of Home Affairs has announced proposals to improve prison conditions by decongesting the prisons.

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.

The Independent Policing Oversight Authority Bill, 2011

".. 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"

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

Revised Edition (2009)

Revised Edition (2009)

The purpose of this review was to establish and examine the existing and required universe of policies, laws and regulations and assess their relevance to the vision of the reform programme and to propose others that will help achieve the programme's vision and agenda.

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.