Abuse of the Judicial Criminal Process in Kenya

Abstract

The rule of law and administration of criminal justice is fundamental in any given judicial system that seeks to protect the fundamental freedoms as enshrined in the Constitution. The Judiciary in its role as the protector and enforcement agent of the fundamental rights and freedoms is bestowed with an enormous responsibility of striking a balance between the protection of those rights vis-a.-vis the citizens and the protection of society by punishing those engaging in criminality. Before punishing accused persons, they have to be subjected to the criminal justice system so as to afford them a fair trial under due process. However, there are instances where the criminal justice system has been invoked by various actors such as the state, complainants, the Attorney General, accused persons etc for extraneous and ulterior purposes other than the administration of justice. As such, there is a danger of violation of human rights by subjecting suspected criminals to rigorous criminal trials in court when unjustifiably. This amounts to an abuse of the criminal process. For instance, the commencement of criminal proceedings against an individual by a complainant with whom there is a disputed civil debt when indeed a civil case has been lodged in the respect of the same subject matter is amounts to abuse of the criminal process. Abuse of criminal process can also take the form of delays by the prosecution to commence the intended criminal proceedings against the accused, delays by both the court and the prosecution.........................................................................................