Draft Constitution and the criminal justice system

By Michael OriedoThe criminal justice system comprising of the police, the courts and prisons will be strengthened and acquire autonomy if the Harmonised Draft Constitution is adopted.The system, mainly inherited from the colonial government and modified through acts of Parliament, has largely been criticised as slow, inefficient and prone to political manipulation.Of the three, it is the courts and the police force that have mainly been isolated to be in need of urgent reforms. Now, thanks to the Harmonised Draft Constitution, Kenyans have a chance to transform these institutions.In the draft, the police currently known as Kenya Police, will be renamed Kenya Police Service and it will be headed by Inspector General.The Head of State will appoint the Inspector General "acting on the advice of the cabinet and with the approval of the National Assembly."Security of tenureThis means that Parliament will scrutinise people proposed to be holders of this office before forwarding the name to the President.Under the current system, the President appoints the head of the police force, who is the commissioner of police. The commissioner currently serves at the pleasure of the President.The new laws guards against this since they give the office holder a fixed term in office. The Inspector General will serve one term of six years and shall not be eligible for reappointment.Previously, we have had commissioners who have served for about a decade as long as they remain loyal to the establishment while others have held the office for slightly more than a year.The draft also proposes that the Inspector-General will be removed from office on the recommendations of a tribunal appointed by the President. This gives the office holder security of tenure, which the current police commissioner lacks. Section 4 of Article 292 of the law accords the Inspector-General freedom from interference, especially from politicians.It stipulates: "Any direction given to the Inspector-General by the minister responsible for Internal Security shall be in writing and shall be tabled in the National Assembly within thirty days.’’Thus, Parliament will have to vet directives the minister for Internal Security gives to the police. In the past, we have witnessed the commissioner of police receiving orders from different quarters regarding security issues and investigations of particular cases.Although this move may be positive, it can be counterproductive in cases where urgent security operations are to be undertaken.For instance, if bandits attack and maim residents of Northern Kenya, the minister will have to seek Parliament’s approval before ordering any major security operations.Supervising the forceThe new law also proposes to establish a police commission that will be headed by a person qualified to be appointed a high court judge.Among its duties will include exercising disciplinary control and supervising the force. The commission will be a positive addition to the force.Another institution set to receive significant transformation is the Judiciary. In addition to the Court of Appeal, the High Court and other lower courts, the draft proposes the establishment of a Supreme Court and Constitutional Courts. The Chief Justice will head the Supreme Court. Its key functions will include hearing and determining "disputes arising from the process of impeachment of the President," and appeals from lower courts.On the other hand, the Constitutional Court among other things will determine matters arising from the interpretation of the Constitution. Also noteworthy is that under the proposed law, the Judiciary will acquire financial autonomy through the establishment of the Judiciary Fund. This will be a radical change since currently the Judiciary depends on the executive for money to facilitate its operations. Thus, this has often compromised its independence.Face of prisonsHowever, time will tell whether such a transformation would guarantee faster dispensation of justice and root out corruption in our courts.Set also to immensely benefit if the new law is adopted is the Kenya Prison. Established in 1911 under the Ministry of Home Affairs, the department has been criticised for hardening rather than correcting criminals. The draft proposes an independent body named Kenya Correctional Services to replace the department. Perhaps the name will give it a human face.Kenya Correctional Service (KCS) will be under the Public Service Commission (PSC) and headed by a Director-General.The Head of State will appoint the director on the advice of the PSC and after approval by the National Assembly.The Director General thus joins the list of many other institution heads who will be constitutional office holders.The person will hold the office for a "term of five years," and unlike the Inspector General of Police, the director will be eligible for reappointment for a final term of five years.Currently, the President appoints the Commissioner of Prisons and the holder does not have a specified term in office. Also worth noting is that one of the functions of KCS is to ensure its officers, "use minimal force and have integrity and respect for human rights,’’ while dealing with offenders. For a criminal justice system that has been highly blamed for promoting injustices, this draft may come as a blessing.

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