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"id": 241622,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/241622/?format=api",
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"type": "speech",
"speaker_name": "Mr. Wako",
"speaker_title": "The Attorney-General",
"speaker": {
"id": 208,
"legal_name": "Sylvester Wakoli Bifwoli",
"slug": "wakoli-bifwoli"
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"content": " Mr. Temporary Deputy Speaker, Sir, I am much obliged. Mr. Temporary Deputy Speaker, Sir, there is also a proposal, particularly from the LSK, in addition to this, which states that we should agree to the establishment of regional disciplinary committees in at least five regions other than Nairobi. I agree with it because the cry of the public has been that disciplinary cases are taking too long. The poor litigants have to come all the way to Nairobi for their cases to be heard against the advocates. That is also time consuming. The fact that when this proposal was put here, the bar may be have had only 300 advocates. However, now, they are over 4,000 or 5,000. They are spread all over Kenya, even in towns where we never used to have them. So, at the Committee Stage, I will also be introducing that amendment. I am just putting hon. Members on notice. There are amendments which I do not have on Limitations of Actions Act, Charter of Transfer Act, which I would ask hon. Members to read for themselves. Mr. Temporary Deputy Speaker, Sir, there are also some amendments to the Penal Code. The first amendments touch on Sections 99 to 102, 127 and 331 of the Penal Code. These are offences which we call abuse of office. Many cases that have emanated from the Criminal Investigation Department (CID) and the Kenya Anti-Corruption Commission (KACC) usually prefer charges of abuse of office. Whereas, the said charge under the Anti-Corruption and Economic Crimes Act, carries a penalty of up to Kshs1 million, or imprisonment of up to 10 years or both. Under the Penal Code, an abuse of office is a misdemeanour. It is not a felony. Consequently, if one is found guilty, the penalty is up to one year imprisonment. So, the proposed amendments to the Penal Code, in this particular regard, are to harmonise the punishment for the offence of abuse of office under the Penal Code with the same offence, under the Anti-Corruption and Economic Crimes Act. Mr. Temporary Deputy Speaker, Sir, coming to the Criminal Procedure Code, the proposed 2266 PARLIAMENTARY DEBATES July 20, 2006 amendments are merely to do with getting rid of or abolishing trial with assessors, particularly in capital offences. It was found that it is a cumbersome procedure. We are now getting situations where a bit of corruption has gone into the trials via the route of assessors. We have cases where when somebody approaches an assessor, he will go and visit the man in custody and say: \"If you look at me properly, you know I am an assessor, we may recommend an acquittal and so on.\" That is one aspect of it. However, it is really through a process of hearing of these cases. The major purpose of the amendments to the Criminal Procedure Code is really to do away with the requirement of having a trial with assessors. Mr. Temporary Deputy Speaker, Sir, the other amendment, and I think it is important, is to obligate the court that when it finds somebody guilty and gives him, for example, a sentence of three, four or five years, the period in which that person has been in custody should be taken into account. Right now, of course, it is left to the entire discretion of the magistrate who may take that into account, but where a man has stayed there for one year, in his own calculations, he may do away with three months and so on. However, we want to make it mandatory that when somebody goes into custody he or she cannot get out, particularly in capital offences. If it has taken two, three or five years for the case to be heard, he or she has been found guilty, and if he or she is given a seven year sentence, the seven years should be deemed to have started from the time he was put in custody. Mr. Temporary Deputy Speaker, Sir, the other amendment relates to the Evidence Act. As you know, this House, in the year 2000, passed an amendment to the Evidence Act which said that only confessions before a court would be admissible in a court of law. This has been found to be impractible so much so that people who had actually confessed voluntarily, when the law was passed, do not end up having much investigations done because they had confessed. When the law was passed, they were told they have to prove the case. A number of them were acquitted and some faced very serious charges before the court. In any event, that law was passed because it was felt best that there was a motivation on the part of the investigators to torture people in order to obtain a confession. Therefore, the wide-spread torture that we witnessed, could have been prompted by the fact that the investigators were trying to get a confession. This, in turn, made the level of investigations to go down and not to be up to a mark that is required in order to produce an investigational file that can produce a conviction. That was a mischief. What we are proposing is a method which will address that mischief whilst, at the same time, permitting a proper confession made voluntarily to be admissible in court. We are now trying to expand the ambit of the institutions or persons before whom a confession can be made, and not just a court. We are saying such a confession can be made before a judge, magistrate or a police officer. Taking into account what I have just said about the motivation of an investigator torturing to obtain a confession, we have made it clear in this law that the police officer must be an officer other than the investigating officer, and must be one not below the rank of a chief inspector. We are also further widening the ambit of persons before whom a confession can be made by including, in fact, any person of the choice of the suspect. If, for example, I am a suspect and I do not want to make a confession before a police officer or magistrate, I can decide that I have some confidence in my friends the senior counsel in this Chamber and opt to make a confession before my Shadow Attorney-General, Mr. M. Kilonzo, my colleague, the Chairman of the Departmental Committee on Administration of Justice and Legal Affairs, Mr. Muite or even before my neighbour Mr. Sambu. These are the people I have confidence in. I can make a confession before them."
}