Chief Justice David Maraga said today that he will soon gazette members of the National Council on Administration of Justice (NCAJ) Taskforce on Criminal Justice Reform, who will among other issues, examine the question of de-criminalisation and re-classification of petty offences.
He said this comes at a time when the Kenyan criminal justice system is at a historical moment, with questions emerging whether it is neutral or operates on a two-tier framework, one for the rich and the other for the poor.
A recent report by NCAJ revealed that out of the 33,194 inmates in prison, 12,704 of them are first time petty offenders who qualify for release under community service orders programme.
In addition, it indicated that 75 percent of pre-trial detainees are below the age of 35 and at the peak of their earning potential.
Justice Maraga said the statistics imply that the country’s criminal system is a major driver of poverty and must be reformed, hence the move to gazette members of the NCAJ Task force on criminal justice reform to examine the question of de-criminalization and re-classification of petty offences.
“The current legal framework for petty offences provides for what many actors have rightly argued as outdated, obsolete, vague, unrealistic and unnecessary. These offences should be struck from our statutes or lesser civil penalties provided,” Maraga stated.
He was speaking yesterday at a Nairobi hotel, during an International Commission of Jurists (ICJ) – Kenya Chapter’s conference on decriminization and re-classification of petty offences in Kenya.
The CJ acknowledges that the criminal justice system is flooded with petty infractions of the law that could be dealt with through two-end reforms, re-classification and diversion.
In reclassification, criminal statutes are changed so that minor illegal acts are changed from criminal offences to civil infractions that carry a fine while in diversion programmes, individuals charged with low-level criminal offences can have the charges dismissed if hey perform community service, enter substance abuse treatment or follow other requirements.
“Seen as a potential cure for crowded jails, many states are eliminating jail-time for minor offenses such as loitering, marijuana possession, and driving violations, replacing those crimes with so-called “non jailable” or ‘non–custodial’ or “fine-only” offences,” Maraga said.