Corpun file 12057

Daily Nation, Nairobi, 16 September 2003

Comment

Changes in criminal law significant

By Pravin Bowry

(extracts)

Recent procedural changes in criminal law have ushered in a new era in criminal jurisprudence. The long-term effect of the changes will, in future, be seen as a milestone.

It is ironical that this moment of great legal, national and historical importance has gone largely unnoticed.

The Criminal Law (Amendment) Act (Act No 5 of 2003) came into force on July 25, 2003. Heading the laudable list of changes was abolition of corporal punishment.

Since the advent of the colonial era, and through the post-independence period, Kenyans have been humiliated by the law stipulating whipping for convicts, legally known as corporal punishment.

This was a colonial means of control, a means of demeaning humanity. That it continued into independent Kenya is something Kenyans will have to reflect on.

And the manner of carrying out the sentence under the Prisons Act was so repulsive that right-thinking humans should have abhorred it long before now.

Corporal punishment is headline news in other countries. I have vivid memories of a renowned American photographer in Kenya having been sentenced to caning in 1968 and the New York Times published banner headline: "American to be flogged in Kenya".

It is, therefore, gratifying that, from July 25, some dignity to the penal system has been added by abolishing corporal punishment. Human rights organisations will now give Kenyans a few more marks for whatever they are worth.

Those who know the history of criminology are aware that the greater part of investigations and, indeed, convictions relies on confessions to the police.

The Criminal Law (Amendment) Act has put an end to confessions (other than to a magistrate in open court) being accepted as evidence.

In both the colonial and post-colonial periods, trials centred on confessions obtained by police, contrary to the so-called "Judges Rules", but under a system of institutionalised torture.