Days are numbered for police arrests over idling 

“We are living in the new dispensation. The days when the police would harass and detain people arbitrarily are long gone,” Mr Gikaria said.

The proposed amendments are some of the legislative interventions that Mr Gikaria says will enable a more efficient and effective criminal justice system that secures the rights of the most vulnerable.

“The people have their rights spelt out in the Constitution. We cannot therefore sit back and see such gains abused at the behest of a few individuals. This law is not consistent with the Constitution and must therefore be repealed,” said the MP, who chairs the Energy Committee.

Section 182 of the Penal Code Act that the MP wants amended defines idle and disorderly persons to include commercial sex workers behaving in an indecent manner in public places.

It also includes a person who causes, procures or encourages another person to beg or gather alms, as well as a person who publicly conducts himself in a manner likely to cause a breach of peace.

Guilty of a misdemeanour

It also covers a person who, without lawful excuse, publicly commits an indecent act and one who solicits for immoral purposes.

The law goes on to say that such persons will be deemed idle and disorderly and are guilty of a misdemeanour and liable for an offence that carries a one-month jail term or a fine not exceeding Sh100 or both.

For every subsequent offence, the law prescribes a one-year jail term without the option of a fine.

With campaigns for the 2022 General Election already starting, Mr Gikaria fears that the government could easily use the police to harass candidates and supporters who don’t support it.

“I am appealing to my colleagues that it doesn’t matter your political affiliation. The government can easily use the police to harass the people for no reason. The faster we repeal the offensive clauses the better,” he said.

The legislator’s proposed amendment borrows heavily from the 2016 National Council on the Administration of Justice audit report on the criminal justice system.

The audit focused on understanding pretrial detention with regard to case-flow management and detention conditions.

Skewed criminal justice system

It revealed that the criminal justice system did not serve the anticipated needs of Kenyans, with the Penal Code Act blamed for focusing on petty offences as opposed to dealing with serious crimes such as murder, rape, and robbery with violence.

The report notes that the success rate of convictions against serious offences was low.

It also shows that the criminal justice system is largely skewed against the poor, “who often interacted with the justice system for having committed petty offences”.

A lot of resources allocated to the justice system were being directed to lesser offences such as nuisance, drug use, disorderliness and loitering with the intent to commit crime.

The report recommended structural, administrative, institutional and legislative reforms in order to align the justice system with the Constitution.

The main recommendations were to review and amend policies and legislation to decriminalise and reclassify petty offences.

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