On 23rd June 2017, the Chief Justice of Kenya, Hon. David K Maraga, established The National Council on the Administration of Justice Committee on Criminal Justice Reform (NCAJ-CCJR) to spearhead a comprehensive review and reform of Kenya’s entire criminal justice system. The terms of reference of the Committee were informed by the findings and recommendations of an audit report called, “the Criminal Justice System in Kenya: An Audit”, and The Kenyan Section of the International Commission of Jurists (ICJ Kenya) research on, “Law and Policy on the Petty Offences and Practices Affecting Populations at the National Level and in Kisumu, Mombasa, and Nairobi Counties. The membership of the Committee was drawn from the institutions in the justice sector and it is mandated to examine all aspects of criminal justice reform including but not limited to investigation, policing, prosecution, incarceration, and re-entry.
Meeting with the Directorate of Criminal Investigations
The Committee paid a courtesy visit to the Directorate of Criminal Investigations (DCI) on 21st March 2018.The DCI is a chief agent for investigation in Kenya and all the work they do ends up in the court. Some of the findings in the audit report touching on the police that require reforms include: decriminalization of petty offences; arrests made by the police that could not be accounted for; isolated but significant cases of torture during arrest; non-compliance with the 24hour rule in the constitution of Kenya; poor infrastructure; lack of accountability for persons who die in police custody; gaps between senior and junior officers and psycho-social support to officers. Therefore the objective of the meeting was to highlight issues the DCI experienced in executing its mandate; to sensitizing the DCI on the audit report and the findings; and to get their opinions and suggestion on how to enhance their mandate.
During the courtesy call on the 21st March 2018, the DCI Officers raised issues of concern that required clarification such as:
- The 24 hrs rule in Police investigations and the issue of compelling reasons
- Issuance of prohibitory and status quo orders;
- Issuance of Anticipatory bails
- Absconding by suspects after issuance of bail or bond by courts without consultations with investigating officers,
- Legal provisions of retrial
- Judicial review;
- Issuance of search warrants during interparty hearings leading to evidence being tampered with;
- The role of the witness protection agency in executing its mandate;
- Clarification on the 2009 confession rules;
- Mutual working relationship between the Bench, prosecutions and the police;
- Inexperienced prosecutors and investigators leading to delays and or unnecessary acquittals in court;
- Development of the forensic lab among others.
- Issues to do with Denovo hearings of cases
- IPOA assuming the role of DCI in Criminal Investigations rather than oversight and intervention where there is reasonable suspicion that Police investigations are deliberately a sham
- Laxity by courts to forfeit sureties deposited in court after the suspects abscond or jump bail (title deeds and log books including holding defence counsel liable for their runaway client where he/she personally stood surety.
At the end of the meeting, it was resolved that a follow up stakeholders meeting will be held to discuss in depth the issues raised at the meeting including any other area of concern that affects investigations and prosecutions.
ICJ Kenya held a stakeholders meeting on Friday 8th June 2018 at the Pride Inn hotel in Westlands. The aim of the meeting was:
- To enhance collaboration among the different stakeholders in the criminal justice system to assist the DCI to implement and execute its mandate effectively;
- To address the issues that the DCI and the multi stakeholder composition of the committee have in enhancing and implementing a well- run criminal justice system, with a bias to the functions of the DCI; and
- To develop a strategy to address the issues that arose at the stakeholders meeting
