Chief Justice David Maraga wants the system of arresting and punishing suspects overhauled after an audit showed serious violation of constitutional rights of accused persons who are poor.
The report released at Hilton Hotel, Nairobi, on Monday showed more poor people were arrested, charged and sent to prison compared to the rich; and 70 per cent of cases processed through the justice system were a result of petty offences.
It also showed a low rate of successful prosecution of serious offences, with a worrying trend of organised crime and capital and sexual offences having a high rate of withdrawal and acquittal.
Only 5 per cent of sexual offences attract a guilty verdict while 32 per cent are acquitted and 63 per cent withdrawn.
“The police, the prosecution, the prisons, the probation and the children’s department have a lot of systematic structural and agency challenges that require immediate and urgent attention,” Justice Maraga said.
“Some of these challenges predispose the criminal justice system against the weak and the needy in the society, including children, the disabled and the aged.”
The study, by the National Council on the Administration of Justice (NCAJ), showed that 68 per cent of entries to the police cells are cases relating to being drunk and disorderly, property offences, State-regulated offences, loitering, disturbance and nuisance and cases involving children in need of care and protection.
The audit established that 348 children were held in nine child rehabilitation homes and that 425 children are held on remand.
Out of this number, 4 per cent are under 12 years, 66 per cent between 12 and 16 years and 30 per cent over 16 years.
Further, it established that nearly half of police arrests and detentions were effected during weekends, a period that also had the highest rate of release.
“A disturbing fact is that 64 per cent of pretrial detainees in police cells had no reason for release recorded in the cell register or the Occurrence Book, raising questions of their manner of release,” the audit said.
Only a third of the police entries were converted to charges in court, the audit reveals, while 20 per cent of those detained in police cells were held beyond the constitutional time limit of 24 hours.
It stated that 4.34 million people are detained every two years.
The audit, the first to comprehensively look at the criminal justice system in Kenya in respect to case flow and conditions of detention, revealed that three-quarters of pretrial detainees in prisons were aged 18 to 35.
While presenting the results of the audit, Legal Resources Foundation (LRF) Executive Director Janet Munywoki gave the prison population in Kenya as about 55,000, the 17th highest imprisonment rate in Africa.
“This population is far above the capacity of the prisons in the country, which is 26,757,” she said, adding that 75 per cent of pretrial detainees are “below 35 and basically at the peak of their earning potential”.
Ms Munywoki said 55,000 cases and 75,000 accused persons were registered in 14 magistrate’s courts between 2013 and 2014.
She noted that 28 per cent of cases relating to children were on defilement, with 65 per cent sexual offences and 30 per cent leading to withdrawal and acquittal.
“This shows that there is a serious underlying problem and maybe it’s time we looked seriously into the issues of witness protection with regard to serious offences,” Ms Munywoki added.
The director noted the long duration of appeals, which she said lasted up to five years even though 45 per cent of appeals resulted in either liberty, reduced or increased sentence, retrial or change of conviction.
The audit, said NCAJ Executive Director Duncan Okello, was meant to trigger debate and advise on ways of strengthening service delivery and legislative, policy and practice reforms in Kenya. It was commissioned in May 2015.