Wednesday, July 06, 2022


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The Criminal Justice System and Eroding Democracy After Independence

Upon independence, Kenya adopted a constitution that provided for a multiparty democracy, a freely elected bicameral Parliament, and guaranteed judicial independence. Despite this progressive constitutional framework, “the post-colonial state was autocratic at its inception because it wholly inherited the laws, culture, and practices of the colonial state.” The independence constitution contained numerous exceptions and “claw back” clauses that qualified or limited many fundamental rights. In addition, the constitution allowed derogations to fundamental rights during states of emergency. The rigid 1962 Lancaster House constitution, in place at the time of Kenya's independence in 1963, was amended in December 1964 to make important changes to the structure of Kenya's government, including an effective ban on opposition parties. The devolution of power to the regions in the original constitution was a product of an alliance between the political opposition and white-settler interests; border flare-ups and ethnic irredentism made a more centralized structure particularly attractive to the ruling party, the Kenyan African National Union (KANU).

Although the amended constitution gave the executive branch more power over the judiciary, the original constitution's extensive fundamental human-rights provisions remained intact. Constitutional bills of rights were not original components of British independence constitutions, in the tradition of Great Britain herself; they first appeared in the homegrown constitutions of India (1950) and Pakistan (1957). This trend changed in 1959 with the Nigerian Independence Constitution, which delineated fundamental rights; after that point, colonial authorities required bills of rights as a precondition to independence, including in Kenya. Implementation of a bill of rights coincided with British intentions to protect business operations and the rights of minorities, with white-settler interests in mind. The strength of a constitutional bill of rights during periods of authoritarian rule was questionable. This was particularly true in Kenya where the bill of rights would be “reduced to a mere declaration” during the Kenyatta and Daniel arap Moi eras. The Kenyan bill of rights closely tracked the European Convention on Human Rights and other international instruments protecting civil and political rights, including an explicit right-to-life provision with a death-penalty savings clause. Other rights protected include due-process and fair-trial rights, protections on forced labor and slavery, the freedom of movement, freedoms of conscience and expression, and property rights.

President Kenyatta died in 1978 and power peacefully passed to Moi, the vice president, as the consensus choice in an effectively one-party election. During the reign of President Moi, from 1978 to 2002, the independence of the judiciary and the legal profession eroded. Moi politicized the office of the attorney general and the auditor general and oversaw the passage of a constitutional amendment allowing for easier impeachment and removal of judges. In 1986 and 1987, Moi sparked widespread scrutiny from domestic and international legal communities with a series of arrests of prominent attorneys for representing detainees and filing habeas petitions. Both Kenyatta and Moi frequently appointed expatriate contract judges to the national courts; these judges tended to be more supportive of the positions of government because their contracts were temporary and required renewal. The government reacted with hostility toward judges who expressed a desire for more independence. In addition, the reputation of the judiciary and the legal profession in Kenya was further tarnished with the failure to investigate and prosecute those responsible for the Goldenberg scandal, the longest-running scheme of massive corruption in Kenya's history.

Constitutional protections for prisoners and criminal defendants eroded during the Moi era. Although Kenya enjoyed a Bill of Rights, during the Moi reign the High Court held that it had no jurisdiction to hear certain cases, rendering several constitutional rights nonjusticiable. The Moi regime was particularly fond of abusing the prosecution of the crime of robbery with violence, which carried the mandatory death penalty but, unlike other capital offenses, did not entitle an indigent defendant to free legal aid. By accusing political opponents of ordinary crimes rather than political offenses or detention without charge, the Kenyan government could resist international protest. The charge of robbery with violence was brought against Kenyan opposition politician and human-rights attorney Koigi wa Wamwere, in November 1993, in a public trial that divided public opinion along a Kikuyu-Kalenjin fault line deliberately inflamed by the Moi government. According to Amnesty International's report for 1995, at least eight other political opponents of the Moi regime were charged with robbery with violence and were considered prisoners of conscience. Amnesty International also noted “widespread reports of torture and ill-treatment of prisoners,” and added that a total of 568 people were under sentence of death at the end of 1995.

Penal policy fared no better than criminal-justice policy. In 1992, Attorney General Amos Wako reported that the prisons had a total population of 28,914 inmates, exceeding capacity by more than 56%. In addition to overcrowding, food rations were inadequate and nutritionally poor, toilet facilities were strained, insects infested the facilities, uniforms could not be replaced, and disease was rampant in the facilities. Beatings and hard labor were routine and often inflicted permanent psychological damage; some inmates actually died of torture. This strain existed despite the existence of a number of alternative punishments to incarceration authorized by the Kenyan Penal Code, such as fines, forfeiture of property, disqualification from licenses or other privileges, deportation for noncitizens, conditional discharge and probation, release with police supervision, compensation to the victim, restitution for financial crimes, and early release on parole or pardon. In Kenya's sentencing regime, “gross sentencing disparities exist[ed] among similarly situated individuals convicted of the same offense.” Appellate courts only irregularly corrected the most-egregious abuses.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law