COMPARATIVE CRIMINAL JUSTICE SYSTEM IN KENYA
Introduction
Kenya is a unique country characterized by diversity in race culture and religion. The legal system of Kenya has its origin associated with “common law,” which originated from the United Kingdom, its Colony. Initially, the common law of the country was divided into criminal and civil. A study conducted by Dammer, and Albanese (2013) defined criminal law as wrong activities which are concerned with the public or society matters. The offenders are punished for the violation of such public wrongs. Under criminal law, the always stated case is always between the offender and the states. In other words, the states take responsibility on behalf of the wronged individuals, this investigating the matter and ensure the effective prosecution of the offender. The important aspect of the comparative criminal justice system is to ensure that the different political units maintain social order through administering Justice to all. This paper seeks to find a comparative criminal justice system between Kenya and the United States.
The fundamental philosophies
Kenya and the United States are characterized by different cultural and historical ideologies, thus affecting the performance of the criminal justice system within the respective countries. Both countries are characterized by different legal tradition which provides unique perspectives in administering Justice to the offenders. Besides, the legal and political issuers also play an essential role in criminal Justice. Both Kenya and the United States criminal justice system are characterized by different philosophies. For instance, in Kenyan, criminal Justice contains an essential element concerning the innocence of the accused individual. According to the Kenyan criminal justice system, the accused person is presumed innocent until the Court of law proves guilt beyond reasonable doubt (Kariuki, 2016). Besides, the system operates under the effective and efficient justice delivery principle, therefore, ensuring fair Justice to the accused and the victim. In other words, the system ensures fairness to all by adhering to the philosophy of administering Justice to all.
Standards of proof for guilty
According to article 50 (2) of the Kenyan criminal justice doctrine, the state is responsible for proving beyond a reasonable doubt that the accused person had committed criminal activity. In other words, the burden of proof is manifested to the state at all times. In proving the guilty beyond a reasonable doubt, the court system doctrine has established thematic rights to ensure a fair hearing of the case. After presenting its defense, the Court analyzes the evidence on the essential elements required to be proved by the state. If the Court is satisfied with the evidence, then the accused is held guilty and punished for the wrongdoing. In contrast, if the states fail to prove beyond a reasonable doubt in the case against the accused, then the accused is set free.
The balance of rights in the country
In ensuring fair Justice, the criminal justice doctrine in Kenya regulates the rights administered on bails and accuser’s detention on different facilities such as cells. The Court ensures balanced administration of rights to suspects and accused individuals of liberty. According to Kenya’s history of the balance of rights, the country has shown minimal consistency and standards applied. Until the accused is proved guilty beyond a reasonable doubt, he/she is deemed to be innocent; therefore, the government is supposed to impose fair treatment such as imposing fair, just, and impartial process. A study conducted by Wanyama (2017) stated that Kenya’s criminal justice system accountability is always under the national government. Besides, the county government is required to offer a supportive role. In Kenya, the criminal justice system is made of different subsystems, namely, police service, prosecution, witness protection, prison services, and the Judiciary. The government is vested with minimal power in punishing criminal offenses since the Court makes the final ruling. Although the government has minimal power, it has the power to suspend or hold to custody for questioning the accused to ensure adequate information for prosecution.
Nature of crime
A study conducted by Pakes (2019) stated that speedy and quality Justice to all required an organized criminal system. In Kenya, the most common cases are contained in the Penal Code. The common cases included in the penal code include; the national security and international crimes, public order, morals and chastity crimes, drug-related cases such as narcotics and psychotropic substances. Other crimes recorded includes the crime committed by a state officer or public servant in line to his/her to duty on public services, personal possession, personal liberty and security cases, intellectual and property right violation, wildlife and forest destruction forest as well as the breach of the environmental-related laws, etc. (Moturi, 2018).
The law enforcement system in Kenya
Initially, Kenya had adopted the United Kingdom structure whereby the police were in charge of the investigative process, and the police department was responsible for suspects. Prosecution. After the establishment of the new Kenyan constitution in 2010, the office of the attorney general and the national police services, and Offices of director of public prosecution were recognized. Kenyan police services are established under article 243 of the Kenyan constitution. The Kenyan police were vested with the power to investigate, and the DPP is responsible for the prosecution while the Attorney (Constitution, 2010). General acts as the principal legal advisor to the government. The police services are recognized as law enforcers in Kenya, and it is a part of the executive government arm. The body is headed by the inspector general of the police. The inspector general is mandated by the constitution to exercise independent command over the whole body. The second level in the hierarchy is the deputy inspector general (DIG). Kenya police service is categorized into different branches such as service headquarters, formation, general duty command as well as training facilities. Under the police services, there are different structures such as regional, county, sub-county, ward commander, and patrol base commander (Kenya Police Service, 2020).
In Kenya, the police service operates with a mission to ensure peace and order amongst its citizens. Besides, the service helps in preventing and detection of crimes within the country’s boundaries. Lastly, the service is entitled to enforce laws under them. Although the country has good intentions for its citizens, the police services have faced huge challenges, especially on the matter such as corruption affecting the performance. According to the Kenya police services (2020), there has been a negative perception about police on supporting immorality through accepting bribes. For decades, the performance of police service seems to be improving as there are several officers excising law and order. In performing their operations, the police have adopted different means of transport, but the most common adopted style of patrol is vehicle use and customer care service while at the station.
More than fifty years since independence, the country is struggling to reform the police service. The service lacks the current equipment to fight crimes. The country’s most powerful docket is characterized by a lack of professionalism due to poor set qualifications. Besides, the country’s ability does not allow the police service to have high standards of training due to limited resources (Shahidullah, 2012). Although their healthcare is well considered by the government, the police officers are characterized by poor housing facility, thus making them be perceived as poor in the society. Besides, society has a negative perception of the police services for a long time; they have been attached to evil, such as extra-judicial killing. In the recent past, the police service officers’ self-killing has increased due to increased stress levels resulting from poverty and poor working conditions (Pryce et al., 2019). Generally, the service is characterized by the culture of impunity, thus making it difficult to implement Justice. Other factors which affect law enforcement system include corruption, inadequate resources, and poor training skills.
The Court system in Kenya
In Kenya, the court system is termed as the Judiciary branch, which helps in the interpretation and application of Kenyan law. The branch plays an essential role in administering Justice to all. The court system is arranged at a hierarchical level whereby the higher the Court, the level of power is vested. The Court Hierarchical overview is as follows:
Figure 1: Court Structure (Source: Judiciary.go.ke, 2020)
The highest court level in Kenya it is the supreme Court. According to article 163 of the Kenyan constitution, all other courts are supposed to base their decision on the highest Court, which is the supreme Court of Kenya. The Supreme Court is led by the president of Court (chief Justice) and vice president, who is the deputy chief justice. For the Supreme Court to effectively make the decision, it must meet the required quorum of 5 judges. The Supreme court decision is always final, and it can overturn any decision from any other court. Court of appeal is termed as the Court, which helps in making the decision over the petitions from the High Court as well as tribunal courts. This level is led by president-elect from the Court of judges, which is made of up to thirty judges. According to Judiciary.go.ke (2020), the Court of appeal is decentralized and has six registries. The High Court is the other level in the system. The High Court is vested with the power to hear both criminal and civil cases. Besides, it has jurisdiction to hear the appeals from the lower courts—the court consist of up to one hundred and fifty (150) judges. High Court is divided into land and environment court and industrial Court. According to the information acquired, there are approximately twenty high courts across the country. The lowest level court included magistrates, which deals most criminal related cases except the murder, and treason, the magistrates’ courts are estimated to be 116 stations with over 455 magistrates. Other lower courts are Kadhis, tribunal, and Court-martial.
In Kenya, the court system operates under the philosophy of ensuring equity and equality among the individuals who come across the law irrespective of the social status or political class. Former Chief Justice (Willy Mutunga) stated that the court system of Kenya is almost “criminal” itself due to increased delayed Justice. The system’s mission is to ensure effective and efficient Justice to individuals facing the law. A study conducted by Bailey (2020) stated that professionalism is essential in making sound decisions. In the court system, professionalism matters, and the judges are promoted based on the qualification. For one to become a judge in Kenya, he or she must be a holder of law degree from any recognized University. Besides, he can become a Judge by becoming an advocate in the High Court or have an equivalent qualification in a common-law jurisdiction. From this, it can be concluded that the judges in Kenya are qualified professionals with adequate equipment.
After arrest by law enforcement, the accused is presented in Court of law whereby he/she takes the plea. Under this, the accused accept or deny the charges leveled against them. According to article 49, the accused can be granted bail pending trial. The judicial system ensures equality for both prosecutor and accused, thus ensuring fair Justice (Anderson, 2017). The next procedure in the judicial system is a trial stage. This stage involves the presentation of facts about the case by the prosecutor. The facts presented could either be through witnesses or other supporting documents, as indicated by section 210 of the criminal code of Kenya. In Court, the state is always responsible for proving the guiltiness of the accused. The next judicial stage is the defense stage, which involves court finding answers on the proceeding—the accused presents facts about the information presented by the prosecutor. The Kenya law allows the accused to respond through remaining silent or cross-examining the witness. On the closure of this stage, the Court is allowed to proceed to the last stage of judgment. According to section 215 of the criminal procedure code, the Court presents judgment/ ruling about the accused. The Court can either Acquit or convict the accused. If the acquitted, the accused is allowed to walk scot-free, and if convicted, the accused is now deemed guilty and faces the sentence issued.
In society, court officials are perceived as unique creatures since they have a fair income compared to the majority of individuals in society. Society views them as a well-paid. Besides, society has a negative attitude towards the majority of judicial officials since history has attached them to corruption. In Kenya, the most common problems affecting justice administration include corruption and inadequate resources. For instance, in the recent past, the Court had to suspend its operations due to a lack of finance to support the operation. Also, the country has experienced great influence and interference from the other arms of the government.
The correctional system in Kenya
In Kenya, the Kenya Prison Services (KPS) is a termed department which deals with the correction of individuals found guilty by the Court. The Kenyans Prison service is recognized under the Prison Acts Cap 90. The prison service is headed by the Commissioner-General of Prisons (CGP). Kenya Prison of Kenya operates with the objective of ensuring equality and public safety by providing secure custody for individuals who have been found guilty by the Court of law. Besides, the department helps in rehabilitating criminal offenders, thus making them fit to interact with society (Kenya Prisons Service, 2020). The service is characterized by maximum and medium-security prisons. Although the Court does not decide where the offender is taken, the prison allocates the offenders depending on the number of imprisonment years. In Kenya, the prison department is run by the government, and the ministry of interior security is in charge of the department.
For decades, the Kenyan prison system has faced increased criticism, especially on the human right abused as well as an increased rate of corruption, thus affecting inmates. Although the prison is aimed at applying the utilitarian rationale of punishment in supporting the rehabilitation of inmates, the system has been characterized by its ability to mistreat the inmates as well as abuse of their rights. A study conducted by Kamoyo et al. (2015) stated that the prison system is faced with several challenges, such as punitive and poor conditions, inadequate legal representation, and corruption. Besides, the system is accused of subjecting the prisoners into risky by allowing them to use drugs while under their custody. Generally, the system is defined by its lack of independence, especially in prison oversight.
The correctional system officers in Kenya are have been looked down; therefore, receiving poor payment from the government. Although the prisons are states owned facilities, both prisoners and the prison officers are subjected to the poor environment and working conditions. Besides, they are characterized by poor skills in handling the inmates. In society, they perceive the prison as the corrupt department of the government. Generally, in Kenya, the majority of inmates find the correction facilities are harsh and unforgiving.
Unique components, procedures, processes, and aspects of Kenya’s Criminal Justice system
In Kenya, criminal Justice consists of different parties such as police, court, and correction facilities that operated together to ensure a peaceful stay in the society. Other critical parties include the public prosecutor and the community. The primary goal of the criminal Justice in Kenya is to ensure accurate identification of an individual’s responsibility and ensure fair Adjudication, retribution deterrence as well as restoration (Anderson, 2017). Generally, the Kenyan system has significantly evolved since the adoption of the common law tradition from its Colony. Besides, the country is characterized by an informal and customary criminal justice system whereby the chiefs and village elders carry out some activities in administering Justice since the court systems are not readily accessible.
Comparison of Kenya’s and US criminal justice system
The criminal justice system in Kenya and the United States are characterized by increased similarities. For instance, both countries are having common components of the criminal justice system, which include law enforcement, Adjudication, and correction. Such components perform a similar function. Besides, the criminal justice system in both countries operates with objective ensuring retribution, deterrence, incapacitation, rehabilitation as well as restoration. Like the United States criminal justice system, the Kenya system was borrowed from its Britain colony, thus leading to increased similarities between the concepts applied by both Kenya and its Colony.
Despite the similarities, the criminal justice system in Kenya and the US differ. For instance, the system is characterized by an increased level of professionalism in their operation, such as upholding the offender’s rights as required by law. Unlike the Kenyan system, which is characterized by a huge level of incompetence and poor skills, the US system is characterized by increased, skilled personnel in protecting the community (Robert, 2004). In Kenya, the system is characterized by increased corruption and inadequate resource to improve effectiveness in justice administration while the US is characterized by tough measures on corruption, thus leading to the minimal level of corruption. Besides, the country has adequate resources to finance the criminal justice system; therefore, leading to increased efficiency and effectiveness. Lastly, the hierarchy in system differs in such a way that the US varies based on the Federal, State, and special Jurisdiction levels, while in Kenya, the system depends on nature and type crime.
In achieving the set objectives, the United States criminal justice system is better placed in ensuring effectiveness and efficiency. The US is preferred because of its ability to provide the system with adequate resources and minimal corruption level, thus leading to fair Justice. Also, the US system is better placed in administering fair Justice due to its high standards and qualifications (Diskant, 2008). From the overall comparison, American criminal Justice is far better in administering fair Justice. In other words, the US criminal justice system is more superior compared to Kenyan’s system since it administers fair Justice to all, irrespective of their social class and political influence.
Conclusion
From the above discussion, it can be concluded that the Kenyan’s criminal justice system is struggling for decades. The system seems to be strongly affected by increased corruption and inadequate resources during the administration of Justice to all. Based on all the components, the court system seems to be better performing since the majority of its officers are learned; therefore, leading to the minimal use of force. It can be concluded that the United States criminal justice system is superior compared to Kenyan’s system. Therefore, the Kenyan government needs to carry out a serious reform on the criminal justice system.
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