Chief Justice Martha Koome has confirmed that plans to have some sections of the Penal Code as proposed by the National Council on Administrative Justice (NCAJ) are on.
This is despite the furore caused by the Penal Code (Amendment) Bill 2023 presented by NCAJ through the National Committee on Criminal Justice Reforms (NCCJR). The Bill seeks to delete sections 153, 154 and 155 by amending the Principal Act also known as Section 4 of the Penal Code.
Section 153 imposes a hefty penalty on male persons living wholly or partly on the earnings of prostitution or soliciting the act in public places. Section 154 declares a woman found practising acts of prostitution is guilty of felony, while section 155 allows arrest and searching of the house of an individual suspected of engaging in prostitution or abetting the same.
According to the draft Bill, prostitution will remain an offence, but will not be punishable through imprisonment. Instead, alternatives used in petty offences, including issuance of verbal sanctions, conditional discharge, probation, community service, and rehabilitation will be prescribed.
Speaking during the launch of the Administration of Justice in Kenya annual report, CJ Koome, who is also NCAJ’s chairperson, acknowledged the controversy the planned changes have sparked, but emphasised that the intent was to improve the law and decriminalise some offences.
She commended NCCJR for taking a lot of time to analyse the Penal Code and Criminal Procedure Code and coming up with the draft Bills.
“Bigamy, (for instance) was enacted in 1930 and no one has ever been prosecuted for that offence, it means is a dead letter in our law that serves no one,” she said.
According to the CJ, the legislative reforms in the criminal justice system were undertaken to ensure the delivery of fair and just outcomes.
“Notably the draft Penal Code and the Criminal Procedure Code were finalised and have been submitted for processing to the Cabinet and National Assembly,” she said.
Other achievements of the NCAJ agencies, CJ Koome noted, were the coordination of Kenya’s justice sector to prepare for the 2022 General Election and the development of the Sentencing Policy Guidelines.
“The sentencing Policy Guidelines serve to enhance consistency and predictability in the sentencing regime in Kenya in line with international best practices. The milestones on legal policy and administrative reforms are not only significant but citizen-centric,” she said.
Over the last one year, the report revealed, the National Police Service recorded 97,301 serious crime incidents, the Ethics and Anti-Corruption Commission handled 5,349 complaints, the Independent Policing Oversight Authority (Ipoa) conducted 2,077 investigations, while the Director of Public Prosecutions prosecuted a total of 299,483 cases. In the same period, the courts received a total of 253,878 criminal cases while 231,656 cases being resolved.
Correctional Services Principal Secretary Sally Beaco lauded NCAJ for the development of the Sentencing Policy Guidelines and Bail and Bond Guidelines but called for a review to identify the barriers to decongestion of prisons.
“As at November 6, our prisons had 62,448 inmates, of whom 24,746 were remandees, which translates to 40 per cent of all inmates ... I propose we have an affirmative shift towards the utilisation of community-based sentencing options,” she said.
She also called for policy direction on actualisation and utilisation of diversion through the DPP and the Office of Probation and Aftercare Service (PACS), with the latter having received 63,581 referrals to prepare social inquiry reports for courts.
Whereas these parameters listed by various NCAJ’s agencies prove that the country’s justice system is getting more efficient, underfunding threatens the sustainability of the gains made, the report cautions.
The agencies require a total of Sh293.2 billion to effectively carry out their mandates, yet the government has only allocated Sh199.9 billion, the report shows.
The National Land Commission currently has the largest funding gap at 73 per cent, followed by PACS at 65 per cent, Commission on Administrative Justice (59 per cent), the Judiciary (47 per cent) and Ipoa at 42 per cent.
Attorney-General Justin Muturi commended the gazettement of the NCAJ Standing Committee on Civil Cases, which he said greatly assisted in identifying, reviewing and formulating policies and legal frameworks and reforms to enhance the functionality of civil justice system.
