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Recent Statutory Regulations, Guidelines and Codes

The March 4 2016 Kenya Gazette was chock-full of notices relevant to criminal law:-

First, there are the criminal case management guidelines (notice 1340) set out by the Chief Justice to speed up and improve the quality of the management of criminal cases.

My Opinion

Well worth a read- especially on the usage of pre-trial conferences and the importance of keeping to the trial schedule. But the guidelines are rather vague as to how to better do things such as encourage and facilitate attendance of accused, witnesses etc. Also it’s not clear to what extent a party can appeal trial directions given by a court. At first instance, they can ask the court itself to vary the relevant trial direction, but this option is only available in limited situations; and what if the party still disagrees with the direction? Is the right of appeal the same as in other matters that arise during a trial? Or does the prosecutor or accused have to wait until the end of the trial and raise the issue in appealing the judgement?

The Department of the Interior and National Coordination (I think they still call it a ministry) has set out its code of conduct for state officials within its ranks (notice 1341).

The Capital Markets Authority set out guidelines for the prevention of money laundering and terrorist financing (notice 1421). These are timely but not really earthshaking.

The Capital Markets Authority also issued a code of corporate governance for issuers of securities (notice 1420).

My opinion…

While it’s not strictly a criminal enforcement measure, compliance and non-compliance with the governance code can be important in criminal proceedings. In many corporate fraud, corruption and money laundering cases involving securities, there will be a dispute as to how much the directors or managers knew. Where knowledge (or even intent) is at issue, the question of whether or not the director/manager authorised actions in breach of the code of corporate governance will be important in showing that he/she was aware that the activity in question was criminal. Furthermore, a pattern of breaching guidelines and codes without any disciplinary consequences is important evidence in showing a lax ethical culture in which the people are willing to break law to get ahead. Where the law allows a defence of adequate procedures (such as under the UK’s Bribery Act 2010) constant breaches of ethical codes will be hamper a defendant in taking advantage of this defence.

 

In an intriguing confluence of state action, Boni forest was gazetted as a state forest by the Cabinet Secretary for Environment, Natural Resources and Regional Development Authorities at the same moment as areas surrounding it were gazetted as a ‘disturbed and dangerous’ by the Inspector-General of Police (notice 1447 and 1448).

The impact of the Cabinet Secretary’s gazettement is to change Boni from a national reserve to a state forest. Thus it comes under her the Forests Service’s management. Furthermore, the decision restricts any clearing or burning of trees or building within the gazetted area.

The impact of the IG’s gazettement is that all armed persons within the area must surrender their arms to the nearest Police station/post/camp or Administrative office. IG is acting under s.106 of the National Police Service Act. The designation ‘disturbed and dangerous’ remains in place until 31st May/1st June.

The powers under that provision allow deployment of additional officers, ordering the surrender of arms and prohibiting the carrying of arms. ‘Arms’ are poorly defined in the NPSA (s.2) as ‘any means to use force’ and include firearms. Does this mean that people in the gazetted areas can’t even carry sticks, canes or pangas? Perhaps the fact that the notice says ‘arms and ammunition’ implies that only firearms were intended. But in that case, can people in a disturbed area walk around with bows and arrows? Something doesn’t sit right within this notice.

Further detail is found in the Public Order Act (s.2) that defines ‘offensive weapons’ to include

‘ any article made or adapted for use for causing injury to the person, or intended by the person having it in his possession or under his control for such use’.

However, a later provision of that same Act (s.11) expands the definition to mean:-

‘…any article made or adapted for use for causing injury to the person, or capable of being so used, or intended by the person having it with him for such use, and includes any panga, simi or similar weapon.’

What all these varying definitions suggest is that gazette notices about ‘dangerous and disturbed’ areas need to be clearer about ‘arms’ so that people are not unjustly arrested for violating the notice by carrying dual-use items (like pocket knives and walking sticks) that can be re-deployed as ‘a means to use force’.

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