Ruling offers hope to jobseekers in DCI record of petty offenders
The Directorate of Criminal Investigations (DCI) headquarters along Kiambu Road. Ex-convicts unable to secure jobs because of their criminal past could get relief after the High Court backed a law to guide how such records are expunged from police files.
Ex-convicts unable to secure jobs because of their criminal past could get relief after the High Court backed a law to guide how such records are expunged from police files.
Jobseekers with past convictions on petty offences like creating a disturbance or traffic violations have protested that the criminal record reflected in a police-issued certificate of good conduct—a requirement by most employers—undermines their quest for employment.
Ex-convicts have to bear this tag for long, given the police retain such records for 21 years, locking most of them out of formal employment after serving jail time or paying fines for misdemeanours.
This has been the case with Mr Ibrahim King’ori, who lamented that his imprisonment for six months in 2003 for creating a disturbance has undermined his job applications as the certificate issued by the Directorate of Criminal Investigations (DCI) refers to the offence.
Mr King’ori has successfully petitioned the High Court to direct the Attorney-General and the National Assembly to formulate a legal framework to expunge such records so that they are not reflected in the certificates.
Employers’ demand
Justice Hedwig Ong’udi noted that glaring gaps in the laws on the removal of criminal records have hurt jobseekers who are past offenders, as employers insist on a certificate of good conduct. One section of the certificate indicates if the applicant has been convicted of an offence.
Without rules to guide the removal of a criminal record from the National Police Service database, past offenders have had to bear this tag for life with the attendant inconveniences.
The court pointed out the gaps in the National Police Service guidelines that require that a criminal record be kept for 20 years before it is expunged from the database.
The only exemptions are capital offences like robbery with violence, murder, treason, rape and crimes related to drugs whose records are permanent.
“There is, therefore, a very urgent need for the legislature to enact legal provisions to address this lacuna in the law relating to the expungement of criminal records in the interest of justice. Let there be a distinction between misdemeanours and felonies as related to the period the records should be kept,” Justice Ong’udi ruled in the King’ori petition.
In March and December 2019, the DCI issued Mr King’ori with two police clearance certificates and both referred to the 2003 conviction. He told the court the damning disclosure had made it difficult for him to get a job to cater for his family.
Mr King’ori stated his requests to the DCI to remove the previous conviction from his clearance certificate had fallen on deaf ears. He urged the court to order the DCI to give him a clearance certificate without referring to his past conduct as it was long gone and “I am a new person.”
‘Rights violated’
He stated that the continued acts by the DCI, Attorney-General and the National Transport and Safety Authority (NTSA) were violating his rights to dignity and social justice.
Mr King’ori contended that through the Office of the Data Commissioner, his fingerprints could be removed from the police crimes database.
In her judgment, Justice Ong’udi said criminal statutes in Kenya do not have a legal provision for the removal of criminal records.
“I have perused the key criminal statutes in Kenya, namely the Penal Code Cap 63, the Criminal Procedure Code Cap 75, and the National Police Service Act No.11A of 2011 and note that there is no legal provision or basis for expungement of criminal records in Kenya,” she said.
The judge noted that the Attorney-General also acknowledged that there was no legal framework for expunging the criminal records.
Through State Counsel Jackline Kiramana, the AG stated: “Despite there being no legal framework for expunging a conviction from a person’s record, the 21-year rule referred to in the petitioner’s pleadings is exercised in a discretionary manner.
“In any event, even if the DCI wanted to apply the rule to the petitioner, the 21-year period had not yet elapsed at the time of filing this petition.”
Justice Ong’udi, however, said from the AG’s response, it was not clear under what provision of the law the AG exercises the discretion to expunge a criminal record.
“Does this discretion apply to both misdemeanours and felonies? Is it fair to maintain the alleged 20-year period for a conviction whose maximum sentence is six (6) months as that of the petitioner?” she asked.
The judge said this unquestionably creates a lacuna in law in that there is no regulatory framework to guide and stipulate the conditions one should satisfy before their criminal record is expunged.
Further, she said the law would stipulate the scope of such a mandate to safeguard against its abuse and create certainty and uniformity in the manner the procedure is applied in such applications.
Though the court declined to issue the orders Mr King’ori sought, the judge said the petition raised important issues for consideration by the Attorney-General, the Cabinet Secretary for Interior and National Administration, and Parliament.
She said Mr King’ori’s case did not meet the threshold required of a constitutional petition, as he did not state with sufficient precision how the DCI, the AG and the NTSA had violated his rights.
