Why MP David Gikaria wants idle and disorderly offence repealed
Nakuru Town East MP David Gikaria in Parliament on October 21,2022. He has sponsored a Bill seeking to amend the Penal Code.
The offence of being idle and disorderly will be done away with if the proposed amendments to the Penal Code Act become law.
The Penal Code (Amendment) Bill 2023 by Nakuru Town East MP David Gikaria, currently in the National Assembly, seeks to repeal the entire section 182 of the Act that provides for offences relating to idle and disorderly persons.
Mr Gikaria, while appearing before the Justice and Legal Affairs Committee (JLAC) of the National Assembly, said that the enactment of his Bill will give the people the freehand to go about their lawful business without the fear of being harassed by the police.
“We are living in a new dispensation. The days when the police would harass and detain people arbitrarily are long gone,” Mr Gikaria said.
He argued that the law is not consistent with the 2010 constitution that provides for the freedom of assembly and must therefore be repealed.
Article 2 of the constitution states that the constitution is supreme and that any law that is inconsistent with “this constitution is void”.
Legal regime
Mr Gikaria faulted the existing legal regime, which he says has been exploited by law enforcers on the orders of an “intolerant government” to harass innocent members of the public.
If passed, Mr Gikaria told the committee, the Bill will permit a “more efficient and effective criminal justice system” that secures the rights of the people whether hustlers and other vulnerable persons or the financially endowed.
“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,” Mr Gikaria said.
Section 182 of the Penal Code Act defines idle and disorderly persons to include every prostitute behaving in a disorderly or indecent manner in any public place, a person who without lawful excuse publicly does any indecent act and any person who in any public place solicits for immoral purposes. It also includes every person causing, procuring or encouraging any 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.
The law goes on to state that such persons shall be deemed idle and disorderly and are guilty of a misdemeanor and are liable to a one month jail term or a fine not exceeding Sh100 or both. For every subsequent offense, the law prescribes a one-year jail term without the option of a fine.
The legislator’s proposed amendment borrows heavily from the National Council on the Administration of Justice 2016 audit report on the criminal justice system in Kenya. The audit focused on understanding pre-trial detention in respect to case-flow management and conditions of detention.
Criminal justice system
It revealed that the criminal justice system in Kenya did not serve the anticipated needs of Kenyans with, the Penal Code blamed for focusing on petty offenses as opposed to dealing with serious offences such as murder, rape and robbery with violence.
The report notes that the criminal justice system in the country is largely skewed against the poor “who often interacted with the justice system for having committed petty offenses” unlike the rich. It added that resources allocated to the justice system have been directed to lesser offenses such as causing public nuisance, being drunk and disorderly and loitering with intent to commit crime.
The report recommended structural, administrative, institutional and legislative reforms to align the criminal justice system to the 2010 constitution. A major recommendation was to review and amend policy and legislative frameworks to decriminalise and reclassify petty offenses so as to conform to the constitution.
