It’s Time For Kenya To Decriminalize Petty Offences

By Charles Jaika

The distinction between petty offences and all other offences is that they are categorized as misdemeanours, now enshrined in law.

Calls to Decriminalize Petty Offences, which primarily affect groups like sex workers, street vendors, hawkers, public service vehicle touts, street families, drug users, and even Human Rights Defenders, are necessary due to recurring injustices such as surveillance, harassment, threats, intimidation, and even abuse while in custody.

The overpopulation of prisons and police cells with petty offenders, who are widely considered non-threatening individuals to public safety, is a problem. An audit of the Criminal Justice System published by the National Council for the Administration of Justice in 2018 found that 70 per cent of cases processed by the criminal justice system were petty offence violations.

From a Human Rights perspective, it’s frustrating to witness law enforcement officers, often in plain clothes, using force against petty offenders and persons with disabilities trying to make a living by hawking in city corridors.

This situation raises the question of where these offenders go. Most of the offences being punished are minor, including idleness, begging, loitering, drunkenness, disorderliness, prostitution, indecent exposure, nuisances, and generally offensive conduct.

On a personal note, I once experienced an unwarranted arrest by police officers around midnight after visiting my ailing father at the hospital. I was unexpectedly apprehended and joined a group of two people under a single handcuff. To my astonishment, everyone was compelled to pay five thousand shillings or jailed. However, after pleading my case, I was unconditionally released.

Furthermore, petty offence laws are used to target or control the behaviour of those perceived as different, including sex workers, drug users, migrants, people with psychosocial or mental disabilities, and even Human Rights Defenders.

Mass arrests, especially of street families, low-income individuals, minority groups, and refugees, are common after significant public events or security incidents.

In legal terms, the phrase “De minimis non-curat lex” or the “De minimis rule” suggests that the law does not concern itself with trifles and can exempt minor matters from legal action. This concept is used to dismiss trivial matters from litigation, especially in criminal law, where an offence may be considered de minimis if the facts alleged or proven are so insignificant as to be beneath the court’s notice.

An example is ‘Wanjiku’ being arraigned in court for paying Sh20 fare instead of Sh306.

People accused of petty offences can be arrested and detained for indeterminate periods in police holding cells. While some can afford to pay fines associated with these offences, many cannot, leading to imprisonment as the default sentence in some cases.

Repealing these laws is essential to combat the criminalization of poverty and status, as they are often vague, overly broad, archaic, and unconstitutional. They leave room for arbitrary interpretation and enforcement, and overturning them will limit the discretion of police and courts in prosecuting minor infractions.

The Author, Charles Jaika, is a Lawyer working at ICJ Kenya.