Kenya's criminal law and jurisprudence is founded on the common law – age-old legal tradition evolved in England after the Norman Conquest. The doctrines of common law have been adopted all over the world, notably in America and most commonwealth countries.
Despite the historical reliance on English law, the principles of criminal law are not only being questioned, but a new wave of change in the criminal justice system is being championed. Interestingly, just last week, US President Barack Obama, while speaking in Philadelphia at a function of the National Association for the Advancement of Colored People – the largest and oldest civil rights organisation in the country – called for a sweeping effort to change what he called a 'broken system'. President Obama alluded to mass incarceration of the past two decades, devastated communities and racially-charged upheavals.
What he said is immensely profound: "In recent years, the eyes of more Americans have been opened to this truth because of cameras, partly because of tragedy, partly because the statistics cannot be ignored," he said. "We can't close our eyes anymore. And the good news – and this is truly good news – is that good people of all political persuasions are starting to think we need to do something about this." Among other things, he said the country should focus more resources on early childhood education to prevent young people from straying in the first place. He called for a sentencing overhaul bill to be passed this year that would reduce mandatory minimum sentences "or get rid of them entirely," favouring treatment or other alternatives for many drug offenders.
He called for better conditions for prisoners, saying, "They are also Americans." He deplored overcrowding. He said he had asked for a review of solitary confinement, declaring that it was "not going to make us safer" to hold an inmate alone in a cell for 23 hours a day. And he condemned prison rape and said it should be treated more seriously. "We shouldn't be making jokes about it in our popular culture," he said. "That's no joke."
He also said the country needed to make it easier for offenders to re-enter society after prison. He endorsed the effort to "ban the box", meaning the question many employers ask applicants about past convictions, and he said those who serve their sentences "should be able to vote". And President Obama followed this speech by becoming the first sitting president to visit a federal prison and making certain implied and interesting confessions about his own past.
In the nation which gave the world the common law, England, the creaking legal system is being addressed at an unprecedented level. England's new Secretary of State for Justice, Michael Grove, in his first major speech said "Britain's justice system is badly failing most people who use courts while providing a gold standard of service to the wealthy."
Last week, he acknowledged, unlike his predecessor, Chris Grayling, that the prison service is in a crisis, accepted it as a damning challenge to one-nation conservatism and then set out an intriguing suite of potential reforms. The Secretary of State wishes to also introduce education to the prisoners. He said, "In prisons there is a - literally - captive population whose inability to read properly or master basic mathematics makes them prime candidates for re-offending.
"Ensuring those offenders become literate and numerate makes them employable and thus contributors to society, not a problem for our communities." All this comes when the conservative government is engaged in debate to scrapping its Human Rights Act which domesticated the European Convention on Human Rights (ECHR). The supremacy battle between English Courts and Europeans Court of Human Rights is raging fierce.
Kenya's legislators past and present have opted to fight crime only by increasing prison terms, providing for very long minimum sentences and providing life sentences as in sexual offences laws, anti-drug laws and anti-terrorism laws. Judicial discretion on sentencing is being taken away by the voluminous new legislation which is being churned out daily.
Some of the shortcomings in our criminal justice system were highlighted by the current Deputy Chief Justice in 2005, through a paper presented to the Kenya Women Judges Association titled Criminal Justice in Kenya Legal and Social Challenges. The DCJ listed the challenges facing our criminal justice system as, the lack of comprehensive and professional investigation by the police, lack of efficient, willing and competent prosecution and in murder cases and lack of proper defence representation by counsel holding pauper brief.
Looking at our crowded prisons, the long delay in finalising cases, the elaborate appeal processes and legal processes of trial based on technicalities of obsolete evidential laws, it can rightly be argued that our criminal system, too, is broken down.
Should we also campaign for change?