Criminal procedure CAT draft

Introduction
The 2010 Constitution of Kenya presents a significant milestone in the Kenyan legal order
particularly in the area of criminal procedure. There are provisions within its articles that provide
most of the rights and freedoms of individuals intending to protect their dignity, as well as
dispense justice.1 Kenya has been at the forefront in trying to incorporate mechanisms that will
aid the dispensing of justice. It has come up with boards, agencies, and government bodies 2 that
play a primary role in criminal justice towards providing access to justice 3 among other core
provisions.
Notable among these provisions are the right to a fair hearing 4, the presumption of innocence5,
right of arrested persons6 as enshrined in the bill of rights of the constitution of Kenya. These
rights are crucial when it comes to safeguarding individuals against potential abuses of power
and rights in the criminal justice system.
However, because Kenya is developing as a democracy, the sufficiency and relevance of these
constitutional provisions deserve scrutiny. The analysis of the impact of these provisions on the
functioning of the criminal justice system in Kenya is one of the primary tasks of this paper. For
instance, corruption, delay in trial proceedings, high cost of legal representation, inadequate
training in legal aid, and the lack of know-how by the common layman, 7 raise questions about
the practical implementation of these constitutional rights.
Moreover, the essay seeks to identify and comment on the suitability of the provisions of the
constitution of Kenya 2010, that directly impact criminal procedure. It will explore the need for
reform where necessary, particularly those highlighted above. In light of the contemporary
challenges factors that necessitate the need for reform include; prioritizing& enhancing public
awareness of the various actors facilitating access to criminal justice, fostering integrity and
accountability, adequate financial resources to victims, witnesses, and offenders, adequate
personnel, strengthening legal aid among others to be discussed in detail in the essay.
Furthermore, the essay will draw comparisons with the criminal procedure frameworks of
developed democracies like the UK, South Africa, Australia, and New Zealand. The essay will
focus on the best practices and the aspects that require changes within the context of the criminal
justice system by honing in on the comparative features. Hopefully by analyzing these
comparative aspects, the essay ultimately aims to highlight best practices and potential areas for
improvement within Kenya’s criminal justice system, contributing to the ongoing discourse on
legal reform in our country.
Overview of Provisions
1
Preamble, Constitution of Kenya, [2010]
2
Which include…National Government Administrative office, EACC (Ethics and Anti-Corruption Commission),
Judiciary, IPOA, Department of Children Services among others
3
Article 48, Constitution of Kenya
4
Article 50(1), Constitution of Kenya
5
Article 50(2)(a), Contstitution of Kenya
6
Article 49, Constitution of Kenya
7
Isaiah Nyambariga Ndege, John Ngugi Kariuki, Public perceptions and experiences on the access to criminal justice
in Kenya, National crime research centre [2022]
Analysis
In assessing the adequacy of the constitutional provisions on criminal procedure in Kenya, it is
imperative to note both their benefits and limitations. Fair trial for example is one of the
fundamental principles where democracy is based and for the people to have faith in the system
and be willing to submit to its jurisdiction. But issues like the slowness of court cases, poor
representation of needy clients, or corruption of the system itself can violate these rights.
Comparative analysis
When analyzing the United Kingdom’s legal system, there is evidence a strong emphasis is
placed on the rights to a fair trial and the presumption of innocence as guaranteed by the Human
Rights Act 1998 which domesticated the European Convention on Human Rights. Moreover, the
Constitution of the UK has put in place strong provisions for legal aid so that all defendants can
afford an attorney to represent them in a court of law. The same guarantees are provided by the
South African Constitution 1996 which enshrines both the right to be tried fair and to be legally
represented, thus furthering the course of restorative justice and human rights protection.
It would appear that Australia and New Zealand do subscribe to the same ideals in their
respective legal regimes. For instance, an analysis of Australian legal documents indicates that
there are wide-ranging provisions that uphold the right to silence and the presumption of
innocence, and the legal aid system is also operational for the vulnerable. On the other hand, the
New Zealand Bill of Rights Act of 1990 also protects the right to a fair trial in the same line as
its constitutional provisions on legal aid and advocates the rights of people throughout the course
of their criminal cases.
In this regard, it is clear that, although the provisions in the Constitution of Kenya are
commendable, there exists a great challenge to reforming them to improve their application. For
instance, such reform efforts could be designed to put up proper structures for the effective
provision of legal aid and enhance the efficiency of the courts and the enforcement organs to
respect and abide by the provisions of the Constitution. By drawing from the operationalization
of other democracies, Kenya can develop its criminal justice system and uphold better the rights
of its citizens.
Conclusion
To sum up, the 2010 Constitution of Kenya has a clear outline of the law guiding criminal
procedure in the country. It is focused on how the individual’s rights are safeguarded and the
values of justice. However, the realities of the challenges above that are faced in the enjoyment
and implementation of these provisions do suggest that more changes are required. Many lessons
could be drawn from other robust democracies that would assist Kenya in reorienting the
processes of law and ensuring that justice is made accessible and meted throughout society.