It is almost two years since Kenya promulgated a new Constitution on August 2010 providing the transformative tool for Kenyans to overhaul the legal and socio-political system that perpetuated exclusion, violations, unfettered impunity, inequalities and disregard for the rule of law. The passage of the Constitution offered Kenyans hope and promise of a better country guaranteeing security, justice and livelihoods for all. However the vestiges of old order, desperate to protect their unjustifiable privileges and interests, are frustrating the rebirth of the new Kenya. They are killing the dream and aspirations of majority of Kenyans. They were never part of the reforms’ vision because life was good for them.
As we approach the second anniversary of promulgating the Constitution, it is important to rekindle vigilance and re-engineer determination and resolve to build a free, fair, and just Kenya. We cannot afford to blink. Civil society organisations have reviewed progress made in transforming criminal justice system two years after the new Constitution. Overall, there is movement but it is just skin deep. The reforms being undertaken are slow and just scratched the surface. The law enforcement and investigatory agencies and public prosecutorial services as critical pillars of the criminal justice system are still in the past.
Criminal justice system reforms have largely focused on one pillar: Judiciary. Yet failing to overhaul the other crucial pillars of the system namely: Law enforcement and investigations, prosecutorial services, correctional services, legal education and legal aid services, reforms being carried out in Judiciary won’t yield the final intended fruits.
Reforms in the Judiciary cannot go unnoticed especially the establishment of the Judicial Service Commission (JSC), continuing vetting of judges and magistrates, appointment of new judges as well as the launching of the Judiciary Transformative Framework. These constructive reforms are laudable but, without the support of other pillars of the criminal justice system, the realisation of an effective and responsive system of access to justice and rule of law will not be attained. Having put in the place the prerequisite hardware, the Judiciary should now start to invest more on software of the judicial reforms. It has to focus on actual processes of implementing the laws and making the institution deliver expeditiously and dismantling the corruption cartels.
For the will of the people and aspirations to be achieved, reforms in the entire criminal justice system must be accelerated and done correctly.
As the country head to elections, it is imperative to ensure reforms remain on track by putting the following measures in place. First, the National Council on the Administration of Justice (launched on August 22, last year by the Chief Justice) should be activated to spearhead, coordinate, oversee and guide the development of criminal justice policy, legislations and reforms to ensure an effective and coherent approach to criminal justice reforms in Kenya. Second, the National Police Service Act must be fully operationalised in order to fully address the inherent fundamental structural problems dogging the police institution.
Third, while the constitution of Police Oversight Authority is laudable, the core challenge to police reforms is establishing credible National Police Service Commission (NPSC). It is the engine that drives and transforms the current and the future police service in Kenya.
According to the Constitution and the National Police Service Act, the NPSC has legal authority of registration, vetting and lustration, and certification of current serving police officers in addition to recruitment of reforms-oriented Inspector General of Police and two deputies and the Director of the Criminal Investigation Services. Failure to establish a credible, impartial and independent commission will translate to a non-reformed police force which will in turn affect the delivery of criminal justice and re-establishment of rule of law in the country.
The recruitment of commissioners to the NPSC must begin afresh immediately. The process must be transparent, credible and participatory. The recruitment of commissioners should be guided by the Waki commission recommendations which called for a credible and independent police service. The commissioners themselves must be individuals whose character and integrity is beyond reproach. In view of mandate of the commission, the process of establishing it must observe the highest standards of professionalism, transparency and integrity.
Fourth, despite unfortunate outcome of the constitutional petition challenging the suitability of the current office holder of Director of Public Prosecutions (DPP), the holder has completely failed to show the will, determination and direction to bring forth the critical reforms needed in the office of DPP. The holder of the office (one year in office) should have by now facilitated the enactment of the prerequisite legislative reforms to enable prosecutorial independence, accountability, credibility, impartiality, and competence while exercising its authority judiciously, objectively, and fairly as stipulated in the Constitution.
Fifth, investigations and prosecutions should be an integrated arrangement where the investigation officer and the public prosecutor cooperate to build a strong case. This is not to say, however, that these two agencies should be merged rather, they should remain constitutionally independent of each other so that there is a system of check and balance between them. The National Police Service Act should therefore be urgently operationalised by the President in a bid to end the continuous violation of citizen’s rights by the police under disingenuous excuses.
Finally, the provision of legal education and legal aid services to the indigent public is critical to access of justice and the rule of law. The National Legal Aid and Awareness Programme meant to bridge this gap has stalled due to lack of facilitative legal framework hence the need for all stakeholders to work in concerted efforts and ensure the enactment and operationalisation of the programme for benefit of Kenyans.