ADVANCING A CASE FOR EXPUNGING CHILD OFFENDER CRIMINAL RECORDS

ADVANCING A CASE FOR EXPUNGING CHILD OFFENDER CRIMINAL RECORDS

An overview of the Judicial Process in Matters Relating to The Child

According to the Children’s Act, a child is any human being under eighteen years.[1] Children are valued members of society and are recognized by the Constitution as being part of a vulnerable group. Their needs are thus protected by the State and enforced by public officers to ensure their long-term wellness. Thus, children have legally enforceable rights which are protected by the Constitution, 2010 and The Children Act, 2001. There are also international conventions and regional instruments that safeguard the rights of the child which are; “The Convention on the Rights of the Child” and “The African Charter on the Rights and Welfare of the Child”.

Children in conflict with the law

These are minors (those below eighteen years of age) who have committed an offence and are subjected to the Kenyan criminal justice system. The Child Offender Rules in schedule five of the Children Act govern the proceedings involving a child who has committed or is suspected of having committed an offence.

Stages of Handling a Child in Conflict with the Law

1. Arrest

It is defined as the legal deprivation of a person’s liberty. A child accused of an offence is to be promptly informed of the charges.[2] If the child is held in police custody, the officer in charge of the police station shall inform the child’s parents or guardians.[3] The police shall ensure that during the police interview, the child’s parents or guardians and if they cannot be reached, a children officer[4] and an advocate, is present.[5] The process of arrest is to have the best interest of the child at the centre.

2. Referral

This is an alternative to the formal judicial proceedings and enables offenders to be dealt with by non-judicial bodies.

3. Intake

The child is taken into institutions such as faith-based children homes or the case involving the child offender is formally taken to court. The child is to be brought before a court within twenty-four hours from the time of the arrest.[6]

4. Diversion

This is diverting cases from the court process and allowing the matters to be settled out of court[7]on merit and through agreed structures. Diversion involves processes that assist offenders to reintegrate into the community but also atone for the offences they committed. Depending on the severity of the crime, this can be exercised through caution, warning, and apology to the victim or payment for damage done.

5. Detention

The detention of children only occurs as a measure of last resort as their rights deem so. If this is the case, the child is to be held for the shortest appropriate period and separate from adults in conditions that take the child’s sex and age into account.[8] If the child is denied bail, the child is to be remanded to a children’s remand home that is within a reasonable distance from the court.[9] If the child is over fifteen years, the child shall be remanded in a borstal institution.[10] Remand of a child in custody shall not exceed six months for an offence punishable by death or three months in the case of any other offence.[11]

6. Petition

This is the filing of charges in court.

7. Adjudication

The Children’s Court is mandated to hear a charge against any child offender except if it involves a charge of murder or a charge in which the child is charged together with a person of or above eighteen years.[12]

8. Disposal

This stage is the final determination of the case. The words ‘conviction’ and ‘sentence’ are not to be used in relation to child offenders.[13] No child shall be ordered to imprisonment nor sentenced to death, and if the child is under the age of ten years, the court shall not order him or her to be sent to a rehabilitation school.[14] Corporal punishment is prohibited for child offenders.[15] However, a probation order may be made against the child and may be committed to a charitable children’s institution, a rehabilitation school if the child is above ten years and below fifteen years, a borstal institution, educational institution or vocational training programme or making an order for the child offender to be placed in a probation hostel.[16] The child may also be reunited with the parents or guardians.

Criminal Records of Child Offenders

These are records relating to a child offender who has passed through the Kenyan criminal justice system. These records are collected in the aforementioned stages of the criminal justice system. They include details of the police interview conducted at the police station upon arrest, probation and children officer’s reports and court proceedings.

Making a Case for the Expungement of Criminal Records

Expungement, according to the Black’s Law Dictionary, means destroying or striking out wholly.[17] In the context of criminal records, it refers to the complete destruction of criminal records both in hardcopy and softcopy. Expunging criminal records of child offenders involves the total destruction of all the information collected during the child offender’s arrest, referral, intake, diversion, detention, and adjudication/determination stages. These also include records on any probation, committal to charitable homes, borstal institutions and youth correctional centres. An expunged record is to be treated as though it never existed.[18] The aim of expungement is to restore individuals with criminal records that are consistent with their former legal status[19] Furthermore, restoring their constitutionally-provided rights and privileges. It is important also to define what sealing of criminal records is. It refers to keeping criminal records confidential from public scrutiny but are accessible by key institutions in the criminal justice system such as the police, prosecutors, probation officers and court officers such as judges and magistrates.

In Kenya, criminal records are maintained by the Directorate of Criminal records.[20] Criminal records include fingerprints, photographs and the accused person’s personal information collected by police officers. If one applies for a Police Clearance Certificate, their fingerprints are run through the system to trace any criminal records.[21] If the individual had been acquitted or had appealed successfully by a competent court of law, then that criminal record is expunged from the criminal database. However, if one is found guilty, the record is kept for 20 years before it is expunged unless the offence(s) charged with, includes robbery, treason, murder, rape and drug-related offences.[22] Twenty years is a very long time just to expunge a criminal record of a child in conflict with the law, and it is more so prejudicial, as the effect of the crimes they had committed in the earlier stages of their lives will leave a long-lasting imprint on their future. This negates the whole purpose of criminal proceedings involving child offenders, which is to protect the child rather than being penal and finding a taint of criminality on the child.[23] The following reasons make a case for the expunging of the criminal records of the child:

 

1. Complying with ratified regional and international instruments

Article 2(6) of the Constitution states that any treaty or convention ratified by Kenya shall form part of the law of Kenya. In relation to child offenders and the expungement of their criminal records, Kenya has ratified The Convention on the Rights of the Child (CRC)[24] and The African Charter on the Rights and Welfare of the Child (ACRWC).[25] As a result of being a member of the United Nations on 16^th December 1963, Kenya is bound by the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”).[26] Expunging criminal records shall therefore comply with the obligations that have been imposed on Kenya by these instruments as will be discussed further in this paper.

2. Upholding the best interest of the child principle

The child’s best interest is of paramount importance in every matter concerning the child.[27] Section 4(2) of the Children Act 2001 states that in all matters relating to children, the best interest of the child shall be the first and paramount consideration by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. Expunging of criminal records supports this principle as will be discussed throughout this paper.

3. Promoting reintegration and rehabilitation of the child

State parties to the CRC shall promote the reintegration of the child offender and the child assuming a constructive role in society.[28] Every child in conflict with the law must be treated in a manner that supports their reformation, rehabilitation and reintegration into society and their family.[29] Maintaining the criminal records of a child offender frustrates the reformation, rehabilitation and reintegration of the child back into society. Expunging the child’s criminal records will thus facilitate the effective reintegration of the child back into society as there will be no records available for scrutiny by members of society.

4. Privacy

The CRC states that no child offender shall be subjected to arbitrary or unlawful interference with his or her privacy.[30] The child has the right to the protection of the law against such interference of privacy.[31]

The Constitution of Kenya, 2010[32] states that every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed.

The right of access to information is limited where disclosure is likely to involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made, according to Article 24 of the Constitution.[33] Every child shall have the right to privacy subject to parental guidance.[34]

Expunging criminal records will thus uphold the child’s right to privacy as all criminal records pertaining to the child will be destroyed and will not be accessible by the public and other institutions in the criminal justice system.

5. Promotion of the child’s sense of dignity and worth

Every person has inherent dignity and the right to have that dignity protected.[35] The CRC states that, “no child shall be subjected to unlawful attacks on his or her honour and reputation and that the child has the right to the protection of the law against such interference.[36]

State parties to the CRC are mandated to treat every child alleged, accused of, or recognized as having infringed the penal law, in a manner that promotes the child’s sense of dignity and worth.[37] Maintaining the criminal records of the child offender results in ‘over punishing’[38] the child offender as the records will be available for a long time, and their effects will be felt by the child long after the child has exited the criminal justice system. Expunging the criminal records, however, upholds the child’s inherent right to dignity.

6. The right to education

Every person has the right to education.[39] The Children Act states that the Government and the parents have the responsibility of providing education for each child.[40] Expunging criminal records will enable the child to be eligible for enrolment and admission at any school, both locally and internationally. Expunging criminal records of children, therefore ensures the eligibility of children in conflict with the law and consequent admission into learning institutions, is not hampered.

7. Upholding the right to work

Kenya is bound by the International Covenant on Economic, Social and Cultural Rights (ICESCR) which places an obligation on state parties to recognize the right to work. This includes the right to the opportunity to gain a living by work which he/she freely chooses or accepts, and will take appropriate steps to safeguard this right.[41]

The Cabinet Secretary, labour officers and the Employment and Labour Relations Court are mandated to promote equality of opportunity in employment in order to eliminate discrimination in employment.[42]

An employer must promote equal opportunity in employment and eliminate discrimination in any employment policy or practice.[43] The employer shall not directly or indirectly discriminate, against or harass an employee or prospective employee on the grounds of social origin.[44]

Currently, most employers need one to make a job application and to provide their police clearance certificate (certificate of good conduct) which gives a full account of any offences that one may have been charged with. Thus, if criminal records are not expunged, one may be easily be disqualified from securing an employment opportunity.

8. Reduced crime rates

Studies have shown that there is an evident link between unemployment, lack of education and crime.[45] If criminal records are expunged, then children can be able to join educational institutions and be eligible for employment opportunities when they become of age. This reduces the risks of the individual, turning to crime just to earn a living, and thus, it is in the public’s interest that the levels of crime are kept at a low.

9. Eligibility for candidature to hold public office

The Constitution grants each citizen the right to be a candidate for public office or office in a political party and, if elected, to hold office.[46] The 20-year expungement requirement in relation to children found guilty of committing a crime is an impediment to any individual seeking a political or public office as the same is captured under the ‘remarks in case of previous record’ section contained under the Police Clearance Certificate. Expungement of criminal records of child offenders enables them to be eligible candidates for public office.

10. The right to adopt

The Children Act, 2001[47] provides that an adoption order shall not be made if the applicant has been charged with common assault, assault causing actual bodily harm, defilement, offences involving bodily injury and similar offences.[48] Expunging criminal records thus allow a prospective adoptive parent to obtain an adoption order. The child may have been found guilty of committing an offence when they were younger, but this should not be an impediment in their future attempts to develop a family[49] such as adopting another child.

11. The right to freedom of movement and residence

Every person has the right to freedom of movement[50] and the right to leave Kenya.[51] Expungement of the child offender’s criminal records enables such offences to be excluded from the contents of the police clearance certificate which is a necessary requirement for travel and work permits to countries such as New Zealand, Australia and South Africa.[52]

12. Ineffective existing legal, procedural and administrative framework regarding maintaining criminal records

As discussed above, the Directorate of Criminal Investigations is mandated to maintain criminal records and shall expunge such records if there is an acquittal. This is not assured as was the case in Evans Angwenyi & another v Republic[53] sought court orders to lift their criminal records which were under the custody of the Directorate of Criminal Investigations despite their acquittal. The Court stated that it was not conferred with supervisory jurisdiction[54] over the Kenya Police or the Directorate of Criminal Investigation. The Appellants could therefore not get any reprieve from the courts so as to expunge their criminal records. Expunging criminal records by the use of a comprehensive Expungement of Criminal Records law as is the case in South Africa, maybe the best way to ensure that the records of child offenders are completely destroyed upon acquittal and after serving their sentence if they are found guilty of committing such offences.

A comparative study with South Africa

South Africa has enacted the Child Justice Act of 2009. This Act provides for the expungement of the criminal records of child offenders. Section 87(1)(a) of the Act states that so long as the child does not commit a similar or more serious offence, the records relating to offences in the First and Second Schedule will be expunged after 5 and 10 years respectively. Section 87(2) states that the Director-General: Justice and Constitutional Development shall issue a certificate directing the conviction and sentence of the child be expunged. The certificate must be submitted to the head of Criminal Record Centre of the South African Police Service (SAPS) for expungement, and confirmation made that the criminal record of the child has been expunged. [55] In pursuant to the diversion order, the Director-General shall expunge the records of the child on the date they turn twenty-one (21) years unless they have been convicted of another offence before that date or failed to comply with the diversion order.[56]

In J vs National Director of Public Prosecutions and Anor (CCT 114/13) [2014], it was stated that the entry of one’s particulars entered on the register is an infringement of their right to dignity, privacy, fair labour practices and freedom of trade, occupation and profession.

Conclusion

Maintaining the criminal records of child offenders in Kenya is against the best interest of the child. However, expunging the records enables the child offender to have a second chance at life with limitless opportunities which is are not hampered by the existence of their past criminal activities which are evidenced by their existing criminal records. Kenya should therefore emulate the South African approach on expunging of criminal records and provide for the same in law.

 

 

 

 

 

 

 

QUESTION B: TO PROSECUTE OR NOT TO PROSECUTE

To prosecute or not to prosecute is also known as the decision to charge. It is the Prosecutor’s determination as to whether evidence availed by an investigator or investigative agencies is sufficient to warrant the institution of prosecution proceedings against an accused person in a Court of law. In order for the prosecutor to make the decision to charge, he/she must apply the following tests, which will be discussed in depth within this paper:

1. The two-stage test

This consists of the evidential test and the public interest test.

1. The threshold test

The independent Office of the Director of Public Prosecutions is established under Article 157 of the Constitution of Kenya, 2010. The Office of the Director of Public Prosecutions Act operationalizes Article 157 of the Constitution by providing that one of the functions of the Director of Public Prosecutions is to make the decision to charge or not to charge and to review that decision.

Lenaola J (as he then was) in Republic v Director of Public Prosecutions ex parte Meridian Medical Centre & 7 Others [2013] eKLR stated that the decision to prosecute is a quasi-judicial decision and should not be taken lightly given the penal consequences. The prosecution should exercise its discretionary power to prosecute, within constitutional limits.

The ODPP draft guidelines, 2019 (as they were) were to act as a guide for prosecutors on their conduct, powers, roles and duties in relation to guiding investigations and the independence of prosecutor in making the decision to charge, the factors to consider in the exercise of prosecutorial discretion, continuing review and general guidance on discontinuance, plea bargaining, diversion, appeal and revision.

In view of the fact that Chapter 5 of the draft guidelines were to serve as a guide for prosecutors in making the decision to charge, they are not conclusive, and as such, this paper will seek to critique the positives and negatives of the ODPP draft guidelines, 2019.

1. MAKING THE DECISION

The guidelines give too much power to the prosecutor to make the decision to charge. This position was reiterated in Republic v Director of Public Prosecutions & another Exparte Justus Ongera [2019] eKLR. Judge J.N. Onyiego stated that The Director of Public Prosecution has powers to decide on whom to charge for which offence and cannot work under direction not even from the court on whom to charge save where there is discrimination without justification.

Therefore, despite the investigator’s role, the decision ultimately lies with the prosecutor who must assess its appropriateness and the charges to prefer.[57]

However, the prosecution must provide written reasons as to why he/she made the decision to prosecute or not.[58] This brings accountability in that unfettered discretion.

2. STANDARD REQUIRED TO MAKE THE DECISION TO CHARGE

The standard required to make the decision to charge refers to whether the matter has prospects of conviction. The prosecutor is thus limited from making a decision based on his/her own whims of imagination.

Stating that the standard in making the decision to charge is lower than that required at a trial, has both a negative and positive connotation to it. It may be harmful because investigators and the prosecution may not conduct their duties diligently, and as a result, the case may fail later on during trial because of insufficient evidence against the accused. However, it may have a positive result because it ensures that matters which have more possibility of conviction later either through additional evidence, actually have a chance and are not thrown out when making the decision to prosecute or not to prosecute as this will hamper the delivery of justice.

Stating that a charge sheet does not justify a decision to charge is suitable for an accused person and places a responsibility on the prosecutor to execute his duties diligently and make the decision to charge from a well-informed basis.[59]

3. KEY EVIDENCE

The guidelines place a responsibility on the prosecutor when making the decision to charge, to have key evidence including but not limited to statements from witnesses and police officers. This will ensure that the accused is not charged on an unsubstantiated basis. This will also be of help to the prosecution during the trial to prove the elements of the offence.[60]

4. THE TWO-STAGE TEST

The guidelines provide guidance to a prosecutor to apply the two-stage test comprising of the evidential test followed by the public interest test. They are also comprehensive as the state when the test should be applied. This is when all lines of enquiry have been pursued and prior to an investigation being completed.[61]

STEP 1: THE EVIDENTIAL TEST

The guidelines state that prosecutors should ensure that the evidence they have is enough to convict the accused.[62] Because the standard is lower[63] Than that applied by courts – beyond a reasonable doubt, the positives of this is that it leaves room for the prosecution to get additional evidence at a later stage and ensures that the roles of the judicial officers are not usurped. It could also be harmful because evidence might never be found.[64]

The guidelines provide that the prosecutor should first identify all the elements of an offence when deciding whether there is sufficient evidence to prosecute. Once the prosecutor has identified all the elements of the offence, he/she should consider factors such as relevance, admissibility, reliability, credibility and availability of the evidence.[65]

The provision on relevance in the guidelines, however, is not exhaustive and merely refers the readers to Chapter II of the Evidence Act.

On availability, it is laudable that the guidelines have embraced the use of technology to ensure the attendance of foreign witnesses.

The guidelines are also comprehensive as they state factors such as privilege and immunity, which might affect the sufficiency of the evidence. However, the guidelines have not expounded on these factors in detail.

The foregoing is thus in line with enabling the prosecutor to assess his chances of success in conviction later on in the trial and will also ensure that the prosecutor discharges his duty to charge diligently after taking into account the above factors. It is also in the accused’s interest that there is no form of malicious prosecution without an evidential basis because of the proviso that states that a case that does not pass the evidential stage must not proceed no matter how sensitive it is.

STEP 2: THE PUBLIC INTEREST TEST

This test gives life to Article 157 (11) of the Constitution of Kenya, 2010, which states that the Director of Public Prosecutions shall have regard to the public interest in exercising its duty to charge. This test is applied by the prosecutor’s discretion to discern what is in the interest of the broader administration of justice and make the decision to charge based on what amounts to the public interest. Leaving such a decision to the prosecutor without giving instances of public interest is ‘dangerous.’ This because in reality, the public interest is a convoluted notion as it is more often than not, dominated by the politics of the day as well as other factors that are not stipulated by law and are irrelevant. These may most likely override the rights of the accused person.[66]

Having a provision for written reasons, as previously mentioned, is suitable for reference and accountability reasons.[67]

The guidelines are comprehensive in the sense that they state the prosecutor should consider the following factors when applying the public interest test:

• The culpability of the suspect

The guidelines leave the prosecutor with much discretion when making the decision to charge. The factors that determine culpability which is provided in the guidelines are not conclusive, and they should have included other factors such as the purpose of punishment and the prudence of applying state resources to prosecute the case—previous criminal records as a factor in determining culpability prejudices the accused. Also, stating whether the offending is likely to be continued, repeated or escalated, is unnecessary as one cannot clearly ascertain the same. Lastly, having vulnerability of the victim’s situation as a factor also prejudices the suspect.[68]

The guidelines also state that prosecutors are to have regarded as to whether the suspect was mentally ill at the time of the offence. This is to the benefit of the suspect. However, the guidelines do not extensively discuss how the prosecutors are to determine the mental state of the suspect, considering that they are not professionals in mental health.[69]

• Impact or harm to the victim or community

It is laudable that the guidelines state that the prosecution is to consider the effect of the prosecution on the victim’s physical or mental health.

• The status of the victim

Having this as an additional factor to consider when applying the public interest test is prejudicial to the suspect and has no legal or evidentiary basis.[70]

It is laudable that the guidelines incorporated the best interest of the child principle in Article 53(2) of the Constitution, the Children Act, 2001 and the Convention on the Rights of the Child, when the prosecutor is making the decision to charge.[71]

Looking into the past records of a minor to determine whether the prosecution is in the public interest, is not in line with the best interest of the child principle.[72]

• Impact on the community

The guidelines state that prosecution in the public’s interest is more likely if there is harm to the victim or community. This provision is not conclusive and is somewhat ambiguous as it does not adequately disclose the standard of measuring the impact of the offending on the community.[73] It is positive as it promotes the safety of the members of the community by enabling the prosecution to prosecute more crimes.[74]

• Whether prosecution is a proportionate response

The guidelines state that a prosecutor should consider the cost of the prosecution when making the decision to charge. This has a negative and positive connotation. Positively, it ensures that the tax payer’s money is not wasted.[75] Negatively, the prosecutor is to consider the likely outcome and see if it will be worth the expense to the ODPP. This is left prosecutorial discretion. Cost should not be a relevant factor when making an assessment of public interest because Parliament is mandated to allocate adequate funds to the Office to enable it to perform its functions under the Constitution.[76]

The guidelines also promote the principle of effectiveness by stating that cases should be prosecuted in accordance with the principles of effective management.

• Whether sources of information require protecting

The guidelines are ambiguous as they state that special care should be taken when proceeding with the prosecution in some cases. They do not give examples of such instances.[77]

The guidelines provide that an accused can accept lesser charges. The positive in this statement is that it promotes the efficiency principle as it saves on time and resources.  The negative is that accused persons who may possibly have committed serious crimes will not fully face the law and be accountable for their crimes.[78]

5. MINIMUM REQUIREMENTS OF A FILE: UNDER THE TWO-STAGE TEST

If documentary evidence including photographs, CCTV or multimedia from a mobile phone is not present in the police file and a copy is also unavailable, any officer who viewed the media should provide a statement summarizing the content and should identify the offender or offence. This may be prejudicial to the accused as the officer may fabricate his statement to cause the suspect to be convicted. It is plausible to argue that since the same is not available, it should not be considered.

Similarly, the provisions that previous convictions should be placed in the police file, is prejudicial to the accused as the former offence might not even be related to the one, he/she is currently charged with, but the same may be used against him/her.[79]

Obtaining statements and full expert evidence, post-charge gives credibility to how the ODPP efficiently makes the decision to charge or not to charge. Having the requirement that the statement must set out the expert’s experience and the basis for his opinion further cements the decision made by the prosecution to charge or not to charge and ensures that the expert is qualified to give an expert opinion.[80]

The requirement for the prosecutor to give reasons in writing as to why he decided not to charge, gives his decision authenticity and enables it to be used for reference.[81]

The guidelines enable an Investigating Officer to assist the prosecutor when he/she needs additional evidence to meet the minimum requirements. This enhances co-operation between the parties in the criminal justice system.[82]

6. THE THRESHOLD TEST

This test is only applied early in rare, unique and severe cases. They fail to give the prosecutor, illustration of some of the cases, leaving it up to the prosecutor’s discretion. Instances that should have been included are sexual and gender-based violence, murder, anti-corruption and counter-terrorism cases.

The guidelines are also vague to the extent that they do not state how exactly the prosecution should apply the test. For instance, based on prima facie evidence and a reasonable prospect of additional evidence being available. They also do not state whether the prosecutor is to make this decision without informing their supervisor. The guidelines also do not give provisions as to review of the decision to charge using the threshold test and after how long the decision to review is to be taken.[83]

The guidelines state that continuing substantial grounds and circumstances to object bail, is one of the requirements that must be met when the threshold test is applied.[84] This is contrary to Article 49(1)(h), which states that an accused person has the right to bail.

7. MINIMUM REQUIREMENTS OF A FILE: UNDER THE THRESHOLD TEST

The guidelines do comprehensively state what should be contained in the file when the investigation is not complete, and a decision to charge is sought on the Threshold Test. The guidelines should have stated contents such as a description of the extraordinary evidence and anticipated timelines, a summary of the facts of the case stating why the case is serious for purposes of the threshold test, reasons why the suspect is a flight risk and where the suspect poses a threat to national security.[85]

The guidelines state that where the minimum requirements are not met, the threshold test will not be applied and a charge will not be preferred.[86] A charge sheet will also not serve as a justification for the making of a decision on the Threshold Test.[87] These provisions promote the rights of an accused person as they ensure that the suspect is not prejudiced.

8. REVIEWING THE THRESHOLD TEST

The provision to review a decision to charge under the threshold test is laudable because it confirms that the charge is still appropriate and that continued objection to bail is justified.[88] If evidence collected during the two-stage test does not meet the required standards, the decision to charge must be withdrawn. The provision, however, fails to state after how long a withdrawal must be conducted.[89]

9. SELECTION OF CHARGES

The prosecutor is to prefer charges against the suspect that, reflect the seriousness and extent of the offence(s), give the court adequate powers to sentence, allow proper ancillary orders to be made in appropriate cases and enable the case to be presented in a clear and straightforward way. They are also not allowed to overload a charge sheet with the intention of pressuring the accused to plead guilty. These provisions protect the accused from any malicious prosecution.

The guidelines promote diligence in the administration of justice by providing that the prosecutors must take account of any change in the circumstances after charging and if there are any, to change the decision in the interest of justice.[90]

10. CASES INVOLVING MULTIPLE OFFENCES and OFFENDERS

The guidelines offer comprehensive guidance to prosecutors as to how to identify and correctly consider the number of files to be submitted to deal with the number and type of suspects and offences and also lists the various combinations.[91] The guidelines give guidance as to how charges for any offences may be included in the same charge sheet.[92] Lastly, they show how prosecutors are to separate case files containing charges that are not linked.[93]

11. SUBMISSION OF THE CHARGE SHEET

The guidelines provide guidance as to the submission of charge sheets where the Two-Stage test or the Threshold Test is applied.[94] They also state that the contents of the charges against the accused and his details are not susceptible to access by unauthorized persons other than the prosecutor and under no circumstances, shall a file be left unattended in the court or office. These provisions are laudable and speak to the expected conduct of the prosecutors when handling criminal matters and to ensure that they play their role as required in the administration of justice.[95]

CONCLUSION

The draft guidelines are a positive step in the long-term objective of the administration of criminal justice in Kenya. They are comprehensive in some respects and are inadequate in others. There is, therefore need to improve on the inadequacies identified in the paper to ensure that prosecutors discharge their duty to charge with ease.

[1] Section 2 Children Act

[2] Section 186(a)

[3] Rule 4(2) Child Offender Rules

[4] Rule 4(4) Child Offender Rules

[5] Rule 4(3) Child Offender Rules

[6] Rule 4(1) Child Offender Rules

[7] Article 159 Constitution of Kenya

[8] Article 53(1)(f) Constitution of Kenya

[9] Rule 10(1) Child offender rules

[10] Rule 10(3) Child Offender rules

[11] Rule 10(4) Child Offender rules

[12] Section 73 Children Act

[13] Section 189 Children Act

[14] Section 190 Children Act

[15] Section 191(2) Children Act

[16] Section 191 Children Act

[17] “What Is EXPUNGE? Definition of EXPUNGE (Black’s Law Dictionary)” (The Law Dictionary, November 9, 2011) <https://thelawdictionary.org/expunge/> accessed August 13, 2020.

 

[18]https://www.ncsl.org/research/civil-and-criminal-justice/automatically-sealing-or-expunging-juvenile-records.aspx.

[19] State v. N.W., 747 A.2d 819, 823

[20] Section 35, National Police Service Act

[21] http://www.kenyapolice.go.ke/pages/faqs.html

[22] http://www.nationalpolice.go.ke/2015-09-08-17-56-33/news/204-press-statement-3.html

[23] Re Holmes

[24] Kenya ratified the CRC on 30^th July 1990

[25] Kenya ratified the ACRWC on 25^th July 2000

[26] Adopted by the United Nations General Assembly on 29 November 1985

[27] Article 53(2) of the Constitution of Kenya, 2010

[28] Article 40.1 of the CRC

[29] Article 17 of the ACRWC

[30] Article 16.1 of the CRC

[31] Article 16.2 of the CRC

[32] Article 31 of the Constitution of Kenya

[33] Section 6(1) of the Information Act

[34] Section 19 of the Children Act, 2001

[35] Article 28 of the Constitution

[36]” Article 16 of the CRC

[37] Article 40.1 of the CRC

[38] Francis Karioko Muruatetu & Another vs Republic, Petition No. 15 of 2015 para 50

[39] Article 43(1)(f) of the Constitution, 2010

[40] Section 7 of the Children Act

[41] Article 6.1 of the ICESCR

[42] Section 5(1) of the Employment Act, 2007

[43] Section 5(2) Employment Act 2007

[44] Section 5(3) Employment Act 2007

[45] http://gsdrc.org/wp-content/uploads/2016/11/YouthUnemployment_Violence.pdf

[46] Article 38(3) of The Constitution

[47] Section 158(3)

[48] Third Schedule Children Act

[49] Article 45 Constitution of Kenya

[50] Article 39(1) Constitution of Kenya

[51] Article 39(2) Constitution of Kenya

[52] PMK v Inspector General of Police & 2 others [2019] eKLR para 14

[53] [2018] eKLR

[54] Article 165 Constitution of Kenya

[55] Ibid 87(5)

[56] Ibid 87(6)

[57] Guideline 5.1.1

[58] Guideline 5.1.5

[59] Guideline 5.2

[60] Guideline 5.3

[61] Guideline 5.4.1

[62] Guideline 5.5.1

[63] Janet Atieno Otieno v Pharmacy and Poisons Board & another affirmed the test of a reasonable and probable cause, it suggested that the test should be in the eyes of an ordinary man. Therefore, any material that the ODPP knows of during the institution of proceedings should satisfy “an ordinary, reasonable, prudent, and cautious man” into believing in the probable guilt of the accused.

[64] Guideline 5.5.2

[65] Guideline 5.5.3

[66] Guideline 5.5.4

[67] Guideline 5.5.7

[68] Guideline 5.5.8

[69] Guideline 5.5.9

[70] Guideline 5.5.10 (c)

[71] Guideline 5.5.13

[72] Guideline 5.5.14

[73] Guideline 5.5.15

[74] Guideline 5.5.16

[75] Guideline 5.5.17

[76] Section 40 ODPP Act

[77] Guideline 5.5.18

[78] Guideline 5.5.19

[79] Guideline 5.6.1

[80] Guideline 5.6.2

[81] Guideline 5.6.3

[82] Guideline 5.6.4

[83] Guideline 5.7

[84] Guideline 5.7.10

[85] Guideline 5.8.1

[86] Guideline 5.8.2

[87] Guideline 5.8.3

[88] Guideline 5.9.1

[89] Guideline 5.9.2

[90] Guideline 5.10.3

[91] Guideline 5.11.1

[92] Guideline 5.11.2

[93] Guideline 5.11.3

[94] Guideline 5.12.2

[95] Guideline 5.12.4