Law should liberate those punished for their wrongdoing

Dear Eric,

Is it fair to maintain a criminal record on a young person who hasn’t exploited development opportunities, yet the crime was committed as they grew up?

On December 10 every year, Kenya and the world at large are reminded of the journey that most nations have travelled to realise human rights for all in their different jurisdictions. 

However, Kenya seems to be at crossroads following a rise in crime in the recent past, which has prompted the public to employ the primitive practice of mob justice. This is an indication of a system whose purpose is to deliver law and order almost threatened by systemic decadence and societal apathy.

The police have been put on the spot for lethargic, if not procrastinated responses. This places the criminal justice system at the centre of this reflection.

How this system affects relationships around people and institutions besides their properties and environment should make society the most central component of it. Even then, the purposes of the criminal justice system are realised by the effectiveness and interphase of law enforcement, courts and corrections that include aftercare services.

Up to this point, the criminal justice system has served Kenyans despite the consistent complaints levelled at the three institutions that qualify it. Such complaints are motivated and qualified by the presence of a robust and progressive Constitutional framework that has an elaborately inclusive bill of rights.

As the country gears to commemorate International Human Rights Day, let those who promote and protect the rule of law, access to justice and human dignity be in solidarity with victims of double jeopardy in its broad application, which is an outcome of a criminal justice system unable to reduce opportunities of double punishment for those who have already served their fair sentence. Double jeopardy is a legal concept that alludes to the prosecution of a person more than once for the same offence.

 It is further explained as a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction. This is summed up in the Latin phrase “nemo debet bis vexari pro ura et eadem causa” which means that no one shall be punished twice for the same event.

Many young people who cannot access Police Clearance Certificates, which are issued by the Directorate of Criminal Investigation (DCI) of the National Police Service, owing criminal records on their names are likely to re-offend to escape the difficult societal reintegration. 

Article 50 (2) provides that every accused person has the right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which the accused person had previously been either acquitted or convicted. 

This is the limited interpretation of double punishment that only refers to the court. However, such persons whose sentences have been served continue to experience societal punishment following difficulty to access reliable and sustainable employment, besides the inability to experience quality life contrary to Article 43 of the Constitution, since the criminal record in their digital files remains intact.

Several attempts have been made to reduce this kind of suffering, especially for those convicts who have served their sentences diligently and successfully. A recent determination by the National Transport and Safety Authority Tribunal for the National Transport and Safety Authority not to demand a police clearance certificate before issuing any form of license to matatu operators demonstrates the urgency to widen this conversation. 

This talk adds efforts by institutions like the Legal Resources Foundation, which had in 2017 filed a petition in court seeking the removal of background checks requirements that relied on the then certificate of good conduct (now police clearance certificate) in the employment infrastructure, as violating primary human rights of job seekers, especially those who had served their sentences. 

Others affected are the people whose entry into the criminal justice system sometimes ends for lack of evidence. This, according to the police, can only be expunged after 20 years. 

There is a need for a careful review that such removal applies selectively since certain offences such as defilement, murder and violent robbery require close societal caution.

It is an opportunity within the public participation space where the Criminal Justice Bill is headed come early 2023.

The future of young people, especially wrapped around the narrative of the hustler nation, needs to be re-evaluated through the lenses of the criminal justice system and the significance of the police clearance certificate. 

It should be remembered that a criminal justice system is designed to deliver justice for all, by protecting the innocent, convicting the criminals and providing a fair justice process to keep order in society. Let the celebration of December 10, 2022 remind us of the four characteristics of human rights, which are universality, interdependence, inalienability and indivisibility. 

As a country, let us promote Article 28 regarding inherent dignity by liberating those we have justifiably punished for their wrongs from the various community prisons, which continue to treat them with disdain and prejudice. Maintaining criminal records on youth needs careful but eventual review.

Bottom of Form

Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]