A Case For The Establishment of A Criminal Cases Review Commission (CCRC) in Kenya To Investigate Wrongful Convictions

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UNIVERSITY OF NAIROBI
SCHOOL OF LAW
A CASE FOR THE ESTABLISHMENT OF A CRIMINAL CASES REVIEW
COMMISSION (CCRC) IN KENYA TO INVESTIGATE WRONGFUL CONVICTIONS
A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE
REQUIREMENTS FOR THE AWARD OF BACHELOR OF LAWS DEGREE (LL.B) IN
THE UNIVERSITY OF NAIROBI
By
MUENDO FESTUS MUTETI.
REG NO: G34/3171/2013
SUPERVISOR: EVERLINE ASAALA

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Contents
DEDICATION.................................................................................................................................4
ACKNOWLEDGEMENTS.............................................................................................................5
ABBREVIATIONS..........................................................................................................................6
CHAPTER 1: Introduction..............................................................................................................7
Background..................................................................................................................................7
Statement of the Problem...........................................................................................................11
Justification of the Study............................................................................................................11
Statement of Objectives.............................................................................................................13
Research Questions....................................................................................................................14
Hypothesis..................................................................................................................................14
Theoretical Framework..............................................................................................................15
Research Methodology..............................................................................................................16
Literature Review.......................................................................................................................17
Limitation...................................................................................................................................19
Chapter Breakdown....................................................................................................................19
CHAPTER 2: THE HUMAN RIGHTS ASPECTS OF WRONGFUL CONVICTIONS.............20
Introduction................................................................................................................................20
Wrongful Convictions and the Right to Access Justice.............................................................22
Wrongful Convictions and the Right to Liberty.........................................................................25

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Wrongful Convictions and the Right to Human Dignity...........................................................28
Conclusion.................................................................................................................................32
CHAPTER 3: WRONGFUL CONVICTIONS IN KENYA..........................................................33
Introduction................................................................................................................................33
Major Causes of wrongful convictions in Kenya.......................................................................36
Victim and Eyewitness Misidentification...............................................................................37
Improper Forensic Evidence..................................................................................................39
Lack of Legal Representation to Accused Persons................................................................41
False Confessions...................................................................................................................42
Conclusion.................................................................................................................................44
CHAPTER 4: TOWARDS ESTABLISHING A CCRC IN KENYA.............................................45
Introduction................................................................................................................................45
Composition of the Kenyan CCRC............................................................................................48
The Role of the CCRC in Kenya...............................................................................................49
Conclusion.................................................................................................................................51
CHAPTER 5: FINDINGS AND RECOMMENDATIONS...........................................................52
Findings......................................................................................................................................52
Recommendations......................................................................................................................54
Bibliography..................................................................................................................................56
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DECLARATION
I, the undersigned, declare that this is my original work and has not been submitted to any other
college, institution or university other than the University of Nairobi
Signed………………………………………………………..
MUENDO FESTUS MUTETI
(Candidate)
This dissertation has been submitted for examination with my approval as the student supervisor
Signed…………………………………………………….....
EVERLINE ASALA
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DEDICATION
To God
For His amazing grace that enabled me to complete this dissertation. King David in the book of
Psalms 135:14 says that God stands up for his people, God holds the hands of his people. You
has manifested this through me.
Mom and Dad
For your exceptional sacrifice and commitment in raising my brother and I to be reliable,
responsible, and independent men. Working in the farm from dawn to dusk and teaching us the
virtues of hardwork, tenacity, assertiveness, respect and honesty.
Dominic Muthama Mutisya and Mulani Mbiki
My greatest and altruistic teachers in Mumbuni Primary School. You took me from the village
and combined efforts to make me the most brilliant boy academically in the region. I am so
indebted to you.
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ACKNOWLEDGEMENTS
How can I express my gratitude to God? I thank the almighty God for his interminable favour
and grace. I have seen you the far I have come, I entrust you with my future.
I acknowledge with gratitude the illustrious and outstanding guidance of my supervisor Madam
Everline Asala throughout the entire process of undertaking this work. You have witnessed a
juvenile idea grow into a topic which is the subject of this work. As a reminder of your efforts
towards my perfection, I will keep all my drafts with the red lines. Thank you Mwalimu
To Pastor Jackson Mwendwa Mutevu, the man who nurtured me since I was 9 years old until I
attained the majority age, I am greatly indebted to you. Your advice on spirituality, responsibility,
and hardwork guides my decisions and actions hitherto. May God bless you and your
generations.
Special acknowledgements go to Cherotich Maritim Tracy, the jewel that I believe has a solution
to every problem. You amaze me with your clean heart. Mayaka Hesborne Nyagetuba, my
humorous and fascinating roommate, you made life in the university memorable. Mutua Josphat
Mwololo, thank you for your support. We started together as brothers since the first day in law
school and we have achieved a lot through mutual assistance and strong commitment towards the
realization of our aspirations. To Joseph Macharia Kaguru (Prof), you are destined for greatness.
I admire your commitment and masterly of law. To Hamdi Abdulle Hassan, you have such nice
soul, thank you for your kind words and the selfless desire to assist me.
All errors in this work are attributable to me. The above-mentioned were eagle-eyed in their
contributions; whatever the nature.

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ABBREVIATIONS
CCRC- Criminal Cases Review Commission
COK 2010- Constitution of Kenya 2010
UDHR- Universal Declaration of Human Rights
CCRG- Criminal Convictions Review Group
TJRC- Truth, Justice and Reconciliation Commission
LFC- Law Reform Commission
DNA- Deoxyribonucleic Acid
UNHCHR- United Nations High Commissioner for Human Rights
ICCPR- International Covenant on Civil and Political Rights
CEO- Chief Executive Commissioner
MJP- Medill Justice Project

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CHAPTER 1: INTRODUCTION
1.0 Background
A wrongful conviction or a miscarriage of justice refers to criminal conviction of a person who is
actually innocent and was not involved in the crime charged whatsoever 1. Actual innocence does
not mean innocence based on a defect in the legal proceedings but it means factual innocence.
The causes of wrongful convictions are multifarious and evident in not only in other parts of the
world but also in the Kenyan criminal justice system. The common causes of wrongful
convictions include faulty forensic tests, contaminated evidence, perjured evidence, false
confessions caused by police pressure and psychological weakness, and misidentification of the
perpetrator either by a witnesses or by the victims 2. Other causes include conspiracy between
prosecutors and judges to uphold conviction of innocent people, prejudice against the class of
people from which the accused comes from, withholding or destruction of evidence by the
prosecution or the police and the innocent prisoner’s dilemma 3. On this account, the essence of a
Criminal Cases Review Commission in any country is to investigate and address instances of
wrongful conviction and promote the realization of justice. It is worth noting that the research
will use the UK’s Criminal Cases Review Commission as the primary benchmark institution.
Nonetheless, it will also solicit relevant information from other similar agencies in the U.S.,
Australia, and Canada.
The first Criminal Case Review Commission (CCRC) in the world was established in the United
Kingdom in 1995 under the provisions of Section 8 of the Criminal Appeal Act of 1997 4. In the
1
Norris, Robert J., and Catherine L. Bonventre. "Advancing wrongful conviction scholarship: Toward new
conceptual frameworks." Justice Quarterly Vol.32 No.6 (2015): Pg. 929-949
2
MacLean, Charles E., James Berles, and Adam Lamparello. "Stop Blaming the Prosecutors: The Real Causes of
Wrongful Convictions and Rightful Exonerations." Hofstra L. Rev. Vol. 44 (2015): Pg. 151
3
Ibid
4
UK Criminal Appeal Act http://www.legislation.gov.uk/ukpga/1995/35/pdfs/ukpga_19950035_en.pdf
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United Kingdom, the CCRC, a body corporate that is independent in nature was set up to review
and investigate the possible miscarriages of justice or wrongful convictions, and refer cases back
to the Court of Appeal where they deem it appropriate 5. In sending a case back to the appeal
court, the Commission has to be convinced that there is a significant possibility that the
conviction will be overturned or the sentence will be reduced 6. The commission is impartial and
does not represent either the defense or the prosecution in any circumstance. When faced with a
case whereby a person is alleging a wrongful conviction, the commission only concerns itself
with the issue of whether the Court of Appeal would consider such a conviction or sentence as
“unsafe”7. Particularly, the CCRC does not determine a case based on its own criteria but looks at
a case through the lens of the Court of Appeal. The commission reflects upon the fairness of the
entire trial, the correctness of the legal rulings and most importantly, any new evidence 8.
Notably, for one to present his case to the Commission, the requirement is that such a person
should have exhausted their right of appeal9. However, if a person has not appealed his
conviction, his application may be accepted if it qualifies under the doctrine of “Exceptional
Circumstances10”.
In the United Kingdom, the establishment of the CCRC was preceded by a series of wrongful
convictions especially after the two pub bombing in the 1970s 11. The men who were suspected of
having carried out the bombings, popularly referred to as the “Birmingham Six” and “Guildford
Four” were arrested and imprisoned before investigations proved that they were wrongfully
5
Criminal Cases Review Commission http://ccrc.wpengine.com/wp-content/uploads/2015/01/ccrc-q-and-a.pdf
6
Ibid
7
Ibid
8
Ibid
9
Ibid
10
http://www.ccrc.gov.uk/wp-content/uploads/2016/04/FAQS_FOR_APPLICANTS_-_UPDATED_MARCH_2016.doc
11
Williamson, Tom. "USA and UK responses to miscarriages of justice." Forensic Psychology (2013): Pg. 39
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convicted12 . Significantly, the CCRC has played an indispensable role in the prevention and
identification of wrongful convictions. For instance, between April 1997, the period during
which the Commission became operational, and 30 April 2016, the Commission had referred 624
applications from persons contending that they were wrongfully convicted 13. Out of the total
number of cases referred to the Court of Appeal, 600 appeals have been heard in which 408 of
them have been allowed and 180 dismissed 14. The 408 appeals which the Court of Appeal has
allowed and consequently quashed the convictions were carrying all forms of sentences
including death and life sentences for wrongful murder convictions. The CCRC of the UK has
thus shaped the country’s criminal justice system by making up for the few lacunas in the system
that have led to wrongful convictions.
The establishment of a Criminal Cases Review Commission is premised on the fact that many
people are wrongfully convicted in almost all legal systems across the globe 15. For instance,
according to a 2014 study, more than 340 inmates in the United States who could have been
exonerated were wrongly convicted and sentenced to death between 1973 and 2014 16. Further,
the study showed that around 4.4% of the inmates in the US who are waiting for execution on
death row are innocent. Willian Blackstone, an English Judge once stated that it is better for ten
guilty people to escape than one innocent person suffering in the prison17.
Ideally, there is no authoritative count of wrongful convictions in Kenya and the rest of the
world. Fundamentally, Risinger Michael, a U.S. law professor, argues that no individual or
12
Speechley, Naomi-Ellen. "Book review: The Innocent and the Criminal Justice System: A Sociological Analysis of
Miscarriages of Justice." Criminology and Criminal Justice Vol.15, No.1 (2015): 124-127.
13
Supra note 2
14
CCRC case statistics http://www.ccrc.gov.uk/case-statistics/
15
Huff, C. Ronald. "10 Wrongful convictions." The Psychology of Crime, Policing and Courts (2015): Pg. 175
16
Dina Fine Maron "Many Prisoners on Death Row are Wrongfully Convicted". Scientific American (2014)
17
Epps, Daniel. "The consequences of error in criminal justice." Harvard Law Review 128.4 (2015): pg. 1065-1067
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institution that is capable of establishing the number of wrongful convictions in any
jurisdiction18. However, he further claims that with sufficient resources, an individual or an
institution can establish the majority of wrongful convictions 19. The Medill Justice Project of the
United States estimates that there are at least 25 wrongful convictions in Kenya annually 20.
Nevertheless, the estimate of the Medill Justice Project is subject to criticism since it does not
conduct extensive researches in Kenya as it primarily concentrates on the criminal affairs of the
United States. The overarching significance that can be attributed to their report is the fact that
they establish that wrongful convictions exist in the Kenyan criminal justice system.
Within the Kenyan criminal justice system, the establishment of a criminal cases review
commission will usher a new era where alleged wrongful convictions can be efficiently
addressed through the partnership of the Commission (CCRC) and the Court of Appeal. Besides
reviewing and investigating alleged wrongful convictions, the commission would boost the
public confidence in the Kenyan criminal justice system. Ultimately, the establishment of the
Commission will be a major milestone towards the implementation of Article 48 of the
Constitution of Kenya 2010 that requires the state to ensure that all persons access justice.
1.1 Statement of the Problem
The Constitution of Kenya 2010 provides that the State shall ensure access to justice for all
persons and, if any fee is required, it shall be reasonable and shall not impede access to justice 21.
The duty that the Constitution places on the government of ensuring that all people access justice
covers all persons including those who feel that they have been wrongfully convicted. However,
18
Risinger, D. Michael. "Innocents convicted: An empirically justified factual wrongful conviction rate." The
Journal of Criminal Law and Criminology (2007): Pgs.761-806
19
Ibid
20
Medill Northwestern University Justice Project http://www.medilljusticeproject.org/wrongful-convictions/
21
Article 48 of the Constitution of Kenya 2010
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it is sad to note that there is no law or institution that has been created to allow and facilitate
reopening of criminal cases. The lingering question concerns the fate of a person who feels that
he has been wrongfully convicted and need more appeal avenues or have found new evidence
that can overturn their conviction, for example, new DNA evidence. Consequently, the necessity
to revisit convictions on a factual or legal basis, be it for the perversion of justice by police
agencies and investigators, negligence of the defending and prosecuting counsels or any other
reason is crystal clear in Kenya. Accordingly, the research endeavors to demonstrate the
necessity of establishing an independent Criminal Cases Review Commission in Kenya.
1.3 Justification of the Study
The issue of wrongful convictions in Kenya has remained one of the least addressed challenges
within our criminal justice system. The purpose or the justification of this study is that the
establishment of a criminal cases review commission in Kenya would be a major milestone in
addressing and averting incidences of wrongful convictions. Primarily, wrongful convictions
occur when a witness gives a false testimony and even when the prosecution destroys, withholds
or fabricates evidence22. Other instances that can be attributed to wrongful convictions in Kenya
include political influence or pressure on the magistrates, judges and prosecutors as well as
corruption and lack of ethic in the judiciary 23. For instance, in April 2012, Kenya Judges and
Magistrates Vetting Board24 dismissed justices Riaga Omollo, Emmanuel Okubasu , Joseph
Nyamu and Samuel Bosire after failing the integrity test. Among other reasons, the Kenya Judges
and Magistrates Board stated that the Judges lacked independence, were corrupt and favoured
22
Findley, Keith A., and Michael S. Scott. "Multiple Dimensions of Tunnel Vision in Criminal Cases." Wis. L. Rev.
(2006): 291.
23
Kilonzo, Josephat Muuo. "Death penalty in Kenya and the global trend towards its abolition." International
Journal of Human Rights and Constitutional Studies Vol.3, No.2 (2015): Pg137-156.
24
The Board was established by the Vetting of Judges and Magistrates Act, 2011
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impunity in the judiciary25. In other instances, faulty forensic testing and misidentification on the
part of the witnesses have been shown to cause wrongful convictions alongside perverted
justice26. Although there is no law in Kenya that allows decided cases to be reopened, the dark
reality is that there are and there must be criminal cases that need to be reassessed and reviewed.
More importantly, the issue of discovery of new evidence needs to be addressed through an all-
encompassing legal framework. If countries with older and superior legal and criminal justice
systems like the U.S. and the UK exhibit a high prevalence of wrongful conviction, one can
convincingly argue that Kenya is not an exception. Moreover, if countries like the UK, U.S.,
Canada and Australia have established bodies, commissions and policy guidelines useful in
addressing wrongful convictions, Kenya should follow suit. While the United Kingdom has
established their Review Commission (CCRC), Canada has established the Criminal Convictions
Review Group (CCRG) for investigating wrongful convictions 27. In the US, there are vibrant
Innocence-Projects while in Australia, the law has created a mechanism through which people
who feel that they have been wrongfully convicted can make an application to the Attorney
General for their cases to be reviewed 28. In Kenya, even going by the lame and the half-hearted
report of the Truth, Justice and Reconciliation Commission (TJRC)29, there are enough reasons to
warrant a change in our criminal justice system to address wrongful convictions. The TJRC
Report recommends that wrongful convictions have marred the Kenyan system of justice and
specifically mentions the crisis of detentions and wrongful convictions during the Presidents’
25
Kenya: Four Appeal Judges Sacked http://allafrica.com/stories/201204261253.html
26
Garrett, Brandon L., and Peter J. Neufeld. "Invalid forensic science testimony and wrongful convictions." Virginia
Law Review (2009): 1-97.
27
Government of Canada, Department of Justice Website http://www.justice.gc.ca/eng/cj-jp/ccr-rc/rev.html
28
Jordan, Gwen, et al. "Contemporary Perspectives on Wrongful Conviction: An Introduction to the 2016 Innocence
Network Conference, San Antonio, Texas." Hofstra L. Rev. 45 (2016): 365.
29
It was established in 2008 following the 2007-08 post-election violence in Kenya. It published its final report in
2013 and made recommendations for changes in the delivery of justice in Kenya. Report retrieved from
http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1009&context=tjrc
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Kenyatta and Moi regimes30. Accordingly, the Law Reform Commission31 can be tasked with the
role of addressing the issue of wrongful convictions through the creation of a criminal cases
review commission in Kenya.
1.4 Statement of Objectives
The objectives of the research are;
1) To determine whether the establishment of the commission is of absolute necessity in
Kenya
2) To determine the legal framework that is required in Kenya in order to establish a
Criminal Cases Review Commission.

3) To explore the functions that the Review Commission would undertake as well as the
composition of the commission

4) To examine the causes of wrongful convictions in Kenya
5) To analyze the appropriate procedure that the commission would set for the purposes of
receiving application from people who feel that they have been wrongfully convicted.
6) To analyze the criminal appeal rights in Kenya and the changes that the Commission
would introduce in our criminal justice system
1.5 Research Questions
The research will endeavor to answer the following questions;
1) What is the legal framework which is required for establishment of a criminal review
commission in Kenya?
2) What would be the functions and the composition of the commission?
3) What are the major causes of wrongful convictions?
4) What would be the procedure of making an application to the commission?
5) Whether the establishment of a Criminal Cases Review Commission is of absolute
necessity in Kenya
30
Ndungu, Christopher Gitari. Lessons to be Learned: an Analysis of the Final Report of Kenya's Truth, Justice and
Reconciliation Commission. International Center for Transitional Justice Nairobi, 2014
31
The Kenya Law Reform Commission Act, 2013, Section 6 (1) (i) empowers the Commission to keep under review
all the law and recommend its reforms to ensure that the law conforms to the letter and the spirit of the constitution.
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6) What are the current appeal rights in criminal cases and changes that the commission
would introduce into our criminal justice system
1.6 Hypothesis
The research proceeds from the argument that the Kenyan criminal justice system is in a dire
need of institutional and legal changes to avert pervasion of justice and more importantly, to
investigate and prevent wrongful convictions. The research will vindicate my position that the
establishment of a criminal cases review commission in Kenya will streamline our criminal
justice system. Further, the establishment of the review commission will enhance the confidence
of the citizens in the judiciary and provide a new avenue of justice for the people who feel that
they have been wrongly convicted.
1.7 Theoretical Framework
Fundamentally, the research is founded on utilitarian theory of justice. As a theory of justice,
utilitarianism is based on the principle of utility which approves any action that increases human
happiness and disproves every action that diminishes it 32. The view of utilitarians is that justice
should aim at creating the greatest happiness to the greatest number of people33. Within the
context of this research which makes a case for establishment of a criminal cases review
commission in Kenya, utilitarianism is a guiding theory of justice. A criminal cases review
commission will ensure that people who feel that they have been wrongly convicted access
justice through an alternative avenue of proving their innocence. Indisputably, this would
increase happiness of the greatest number of people. Those alleging wrongful convictions as well
as the rest of the society will be happy since they can access justice and that only those who are
guilty are imprisoned. It is an argument of absolute and universal acceptance that no person in
32
Banks, Cyndi. Criminal justice ethics: Theory and practice. Sage Publications, 2016 Pg. 34-37
33
Barrow, Robin. Utilitarianism: A contemporary statement. Routledge, 2015, Pg. 13
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the society, albeit the few malicious individuals, will be happy with a criminal justice system that
has imprisoned hundreds of innocent persons34. This is because in a flawed criminal justice
system, everybody lives in fear of being the next victim of wrongful conviction. Jeremy Bentham
who extensively wrote about criminal law and punishment opined that the primary objective of
criminal law should be to increase the total happiness of the community.
Additionally, the Sociological School of jurisprudence perceives law as a social phenomenon
that should reflect the wishes and aspirations of the people35. Erlich recognized that there is a gap
between the law and the needs of the people and argued that legislators should come up with
legislations that will give vent to the aspirations and yearnings of the polity or society 36. Roscoe
Pound understood law to be a social institution that is created for the purposes of satisfying the
needs of a society37. In his theory of Law in Action, Pound argues that laws should reflect the
current societal needs and should try to address the challenges of any society 38. From a
standpoint of justice, the sociological school posits that law should seek to streamline the
systems of justice in any society. This is because a society that does not have the relevant
institutions for ensuring that all members can access justice is doomed to fail. In the context of
this research, the establishment of a criminal cases review commission will be done through a
legislation, specifically, an Act of Parliament. Further, the establishment of the Commission will
be a response to the needs of the Kenyan society where criminal justice has become a concern
for every person.
34
Goldman, Barry, and Russell Cropanzano. "“Justice” and “fairness” are not the same thing." Journal of
Organizational Behavior Vol.36. No.2 (2015): Pg. 313
35
Zumbansen, Peer C. "Sociological Jurisprudence 2.0: Updating Law's Interdisciplinarity in a Global Context."
Indiana Journal of Global Legal Studies Vol.2, No.1 (2014).
36
Tamanaha, Brian Z. "The third pillar of jurisprudence: social legal theory." Wm. & Mary L. Rev. 56 (2014): 2235.
37
Pound, Roscoe. New Paths of the Law: First Lectures in the Roscoe Pound Lectureship Series. The Lawbook
Exchange, Ltd., 2012, Pg.4
38
Ibid Pg. 7
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Lastly, the political philosophy of liberalism lays a firm foundation for the establishment of a
criminal review commission in Kenya. Liberalism is founded on concepts of equality and liberty.
Particularly, John Rawls Theory of Justice propounds multiple liberal views that standout in the
wrongful conviction discourse. In his extensive analysis, John Rawls opines that justice is
fairness that creates the maximum possible liberty to the members of a society. Consequently,
wrongful convictions violate the Rawls’ canons of justice since they are a manifestation of
unfairness in the criminal justice system and infringe on the liberty of the affected individuals.
1.8 Research Methodology
The research is a desk study in which explanatory and exploratory designs are utilised.
Accordingly, the study relies solely on the use of the library and secondary sources of
information such as the Constitution of Kenya 2010, statutes, internet sources, textbooks,
Hansards, published journals, treaties, protocols, working papers, newspaper articles and
research reports published by scholars, governments, non-governmental organizations, United
Nations and other agencies. The sources will be analyzed using the BEAM method that examines
the background information, exhibited evidence or examples and arguments argument advanced
by the authors.
1.9 Literature Review
Findley (2001) argues that all criminal justice systems should learn from their mistakes and
establish independent commissions that study, review and investigate wrongful convictions 39.
Specifically, Findley focuses on the situation of the criminal justice system of the United States.
According to him, the criminal justice system has developed through faith in the adversarial
system, rules of evidence, proof beyond reasonable doubt and the common sense of police,
39
Findley, Keith A. "Learning from our mistakes: A criminal justice commission to study wrongful convictions."
California Western Law Review Vol. 38, No.2 (2001) Pg. 2
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judges and lawyers to create an effective truth-finding process 40. Further, the development of
DNA technology has created a new avenue through which this faith placed on our criminal
justice system can be evaluated41. In turn, DNA technology has revealed errors in the system thus
creating the need to remedy them42. Findley factually states that DNA typing has been used
during the past years to exonerate more than 100 people who were wrongly convicted in the
United States43. These cases have not only proved that wrongful convictions exist but also that
innocent people are often convicted is many cases where innocence is least suspected.
Consequently, he is of the opinion that criminal justice systems should be supplemented by
alternative legal institutions which would help to identify and correct the defects within those
systems44.
Hamer (2014) explains the need for creation of an independent criminal cases commission in
Australia in light of wrongful convictions, appeals and the finality principle 45. He remarks that
when the law turns upon itself and convicts innocent persons; there is a consequential social
injury and searing injustice. He argues that the gaps in the criminal justice system lead to
wrongful convictions. Hamer claims that upon conviction, the defendant is presumed to be guilty
and may face many obstacles in overturning the conviction46. On appeal, the defendant has a
heavy burden of establishing innocence. The foundation of his argument that there is a great need
of creating a commission to review cases of persons who feel that they have been wrongfully
convicted is premised on the conventional role of the state to ensure all people can access
40
Ibid
41
Ibid Pg.4
42
Ibid Pg.5
43
Ibid
44
Ibid Pg. 9
45
Hamer, David. "Wrongful convictions, appeals, and the finality principle: The need for a criminal cases review
commission." UNSWLJ 37 (2014)
46
Ibid Pg. 3
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justice47. He states that many innocent persons are freed many years after failed appeals and
convictions48. Griffin (2009) examines how the United States and the United Kingdom review
innocence claims from people who allege to be wrongfully convicted 49. Within the US criminal
justice system, Griffin remarks that the demanding standard of review by courts in the US, strict
retroactivity rules and refusal to consider newly found evidence hinder the process of developing
a just criminal system50. He points out that the United Kingdom has established the Criminal
Cases Review Commission to investigate and refers suspected miscarriages of justice to the
Court of Appeal for post-conviction review. The UK Court of Appeal has reversed convictions in
more than two-thirds of the cases referred to it and modified almost nine out of ten of all
sentences in the cases referred to it51. In his opinion, a US observer would identify the CCRC of
the UK as a broad and an effective corrective system 52. Mcgourlay & Georgina answer the
question of whether the establishment of the Criminal Cases Commission is a source of hope for
those convicted but feel that their convictions are wrongful 53. Ultimately, they rely on the high
number of cases whose sentences and convictions have been overturned and modified to assert
that the commission is a source of hope for the “innocent”.
1.10 Limitation
The paper will limit its research to countries that have established commissions and bodies
mandated to review alleged wrongful convictions particularly the United Kingdom, Canada,
Australia and the United States.
47
Ibid
48
Ibid Pg. 5
49
Griffin, Lissa. "Correcting Injustice: Studying How the United Kingdom and the United States Review Claims of
Innocence." University of Toledo Law Review 41 (2009)
50
Ibid Pg. 6
51
Ibid Pg. 5
52
Ibid
53
Mcgourlay, Claire & Georgina Quinton Smith. "The Criminal Cases Review Commission: Hope for the
Innocent? by M. Naughton." The Howard Journal of Criminal Justice Vol.50, No.2 (2011): Pgs. 229-230
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1.11 Chapter Breakdown
Chapter One: Introduction
The introduction provides extensive background descriptions of wrongful convictions and the
history of the Criminal Cases Review Commission, particularly in the UK. Further, it incisively
explores the nexus between a CCRC and the right to justice for wrongfully convicted people as
entrenched in Article 48 of the Constitution of Kenya 2010. Significantly, it establishes the
objectives of the research as well as its theoretical basis.
Chapter Two: The human rights aspect of wrongful convictions
This chapter endeavors to establish the connection between wrongful convictions and the
fundamental human rights safeguarded by various domestic and international law instruments.
Particularly, it focuses on the constitutional rights to justice, liberty, and human dignity.
Chapter Three: Wrongful convictions in Kenya and the need for a CCRC
This segment gives an elaborate exposition of the Kenyan legal framework addressing the issue
of wrongful convictions. It also answers the question of whether the prevalence of wrongful
convictions in Kenyan can be determined or ascertained.
Chapter Four: Towards establishing a CCRC in Kenya
This section describes the duties that the proposed CCRC will perform in relation to the
challenge of wrongful convictions in Kenya. Besides, it offers a reliable projection of how the
body will be constituted.
Chapter Five: Conclusion and recommendation

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The chapter is a summary of the findings of the research alongside the relevant suggestions that
will alleviate the dilemma of wrongful convictions in the country.
CHAPTER 2: THE HUMAN RIGHTS ASPECTS OF WRONGFUL CONVICTIONS
2.0 Introduction
According to the United Nations High Commissioner for Human Rights (UNHCHR), human
rights are inherent entitlements to all human beings regardless of their nationality, sex, ethnic
origin, religion, language, and color among other consideration54. Human rights have been
defined as interrelated, interdependent, and indivisible55. The Vienna Declaration and Programme
of Action introduced the principle of universality of human rights that requires all states to
protect and promote all fundamental rights and freedoms56. The Preamble of the Universal
Declaration of Human Rights (UDHR) states that the recognition and the protection of inherent
dignity as well as the equal and the inalienable rights of members of the human family is the
foundation of freedom and justice57. Notably, all international laws adopted and ratified by
54
http://www.ohchr.org/EN/HRBodies/CHR/Pages/CommissionOnHumanRights.aspx. Retrieved on 15 May 15,
2017
55
Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013.
56
http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx. Retrieved on 15 May 15, 2017
57
http://www.un.org/en/universal-declaration-human-rights/. Retrieved on 15 May 15, 2017
P a g e | 22
Kenya are part of our law by the virtue of Article 2(5) of the constitution of Kenya 201058. In
Kenya, the fundamental rights that apply universally to all people are entrenched in the Chapter 4
of the Constitution. Article 19 (2) of the Constitution provides the human rights and fundamental
freedoms are recognized and protected to preserve human dignity and promote the realization of
justice by all persons. Additionally, the rights and fundamental freedoms belong to every person
and not granted by the state59. Article 20 of the Constitution provides that every person should
enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent
with the nature of the right or fundamental freedom. On this account, wrongful convictions in
Kenya infringe on a multiplicity of human rights that include the right to justice, right to human
dignity, right to liberty and right to fair hearing among others. In the case of Elly Opande
Nyasaka v Republic (2017)60, the Court stated that wrongful convictions are an outright violation
of the inalienable rights that are protected both by the domestic laws as well as other
international human rights instruments. In the aforementioned case, the obiter dictum of Justice
Mativo reiterated the long-standing requirement that the courts should make concerted efforts to
prevent wrongful convictions in order to protect the rights of people implicated by the criminal
justice system. Similarly, in the case of Peter Manson Okeyo v Republic [2014]61, the
Constitutional and Human Rights Division of the Kenyan High Court was emphatic that
wrongful convictions amount to violation of fundamental human rights. The question of the
human rights aspects of wrongful convictions prompts an investigation of how wrongful
convictions violate the fundamental rights of the convicted persons. This chapter provides an
elaborate exposition on the interplay between wrongful convictions and human rights. In a
58
It provides that the general rules of international law shall form part of the law of Kenya.
59
Article 19 (3) (a) of the CoK 2010
60
Petition No. 341 of 2015
61
P a g e | 23
nutshell, the chapter will explore the right to justice, liberty, and human dignity from a human
rights standpoint in relation to wrongful convictions.
2.1 Wrongful Convictions and the Right to Access Justice
It is a proposition of universal acceptability that wrongful convictions impede an individual’s
right to justice both in the aspects of access and dispensation. John Rawls in his A Theory of
Justice defines justice as the equality of all people with respect to the most extensive total system
of basic liberties62. The concept of justice advanced by John Rawls defines justice as a right and a
fair decision procedure63. The right justice is one of the major entitlements protected by the
current international human rights framework. Principally, Article 8 of the Universal Declaration
of Human Rights (UDHR) grants every person the right to an effective remedy for any act
violating his or her fundamental rights. Besides, Article 14 of the International Covenant on Civil
and Political Rights (ICCPR) provides that courts shall administer justice through fair trials that
safeguard the rights of the accused persons. Furthermore, Article 26 of the ICCPR construes the
rights to justice as equal protection of all persons by the law. Articles 27 and 48 of the
Constitution of Kenya establish a solid foundation for the right to justice and equal protection of
all persons by the law. Principally, Article 48 provides that the state shall ensure access to justice
for all persons and, if any fee is required, it shall be reasonable and shall not impede access to
justice. On the other hand, Article 27 (1) provides that every person is equal before the law and
has the right to equal protection and equal benefit of the law. Additionally, it provides that
equality includes the full and equal enjoyment of all rights and fundamental freedoms64.
Evidently, the current legal regime in the country recognizes the right to justice as a fundamental
human right and a means of protecting other human rights.

62
Rawls, John. Justice as fairness: A restatement. Harvard University Press, 2001.
63
Ibid
64
Article 27 (2) of the CoK 2010
P a g e | 24
The state has the legal obligation of ensuring that all people implicated by the criminal justice
system receive justice in the courts. To execute this role effectively, the state does not only need
to establish an independent judiciary but also needs to establish safeguards that regulate all
activities in the criminal justice system that are incidental to the access or delivery of justice65.
Further, the constitutional mandate placed on the government or state of Kenya to ensure that all
people access justice is indiscriminative in that it covers all people including the accused
persons, claimants, complainants, and civilians at liberty66. For the accused persons, the state has
a multiplicity of obligations that it should fulfill to ensure that all defendants in criminal cases
enjoy their right to justice and do not suffer injustices through wrongful convictions67. Foremost,
the state has a role of ensuring that there is a balance in terms of resources between the accused
persons and the prosecution. One of the major aspects of power balance between the accused
person and the prosecution is legal expertise. On this basis, the lack of legal representation
comes into limelight as a major cause of wrongful convictions. In many cases, the prosecution in
a criminal case has all the required legal services from state counsels while the accused persons
act independently without legal aid. This is an outright violation of the right to justice as
envisaged in Articles 27, 48, and 50 (2) (h) of the Constitution as well as Sections 35 and 37 of
the Legal Aid Act of 2016.
Lord Denning in the case of Pett –vs- Greyhound Racing Association (1968)68 portrayed the risk
and the dilemma of a man who is unrepresented by a counsel in any case. In his, accused persons
are wrongfully convicted or are denied their right to justice since they cannot mount a successful
65
Ismaili, Karim. "Contextualizing the criminal justice policy-making process." Criminal Justice Policy Review 17.3
(2006): 255-269.
66
Ibid
67
Senior, Paul, Chris Crowther-Dowey, and Matt Long. Understanding modernisation in criminal justice. McGraw-
Hill Education (UK), 2007.
68
2 All E.R 545, at 549
P a g e | 25
defense on their own in the absence of legal assistance. In the face of the complicated judicial
procedures, technical court language and little understanding of the law, many accused persons
in Kenya who are not represented in the courts do not enjoy their right to justice as enshrined in
Article 48 of the 2010 Constitution. The right to access to justice among the accused person in
Kenya has largely been stifled by poor implementation of the laws that establish the modalities
through which legal aid can be provided to accused persons to avert wrongful convictions.
Fundamentally, there has been a slow implementation of Article 50 (2) (h) of the 2010
Constitution and the Legal Aid Act in entirety. Article 50 (2) (h) of the Constitution provides
that every accused person has the right to a fair trial, which includes the right to have an
advocate assigned to the accused person by the State and at State expense, if substantial injustice
would otherwise result, and to be informed of this right promptly69. However, the Legal Aid Act70
of 2016 has not approached the issue of legal aid holistically since it has some limitations that
inhibit full coverage on accused persons with respect to legal aid.
Besides, the United Nations Principles and Guidelines on Access to Legal Aid in Criminal
Justice Systems71 that has been domesticated in Kenya has a multiplicity of short comings owing
to its unsuitability to the circumstances in the country. The state through its relevant departments,
agencies and the entire criminal justice has failed abjectly in ensuring the realization of the right
to justice for convicted persons by failing to create a holistic and a progressive legal aid regime.
As a major cause of wrongful convictions, false confessions have not been dealt with effectively
both by the law and the judicial institutions. In fact, the Evidence (Out of Court Confession)
Rules of 200972 has worsened the situation by making out-of-court confessions admissible as
69
Constitution of Kenya 2010
70
No 6 of 2016
71
Resolution adopted by the General Assembly on the report of the Third Committee (A/67/458)
72
Published in the Kenya Gazette Supplement no;18 by L..N/41/09
P a g e | 26
evidence in criminal proceedings. This violates the tenets of justice and culminates in many
wrongful convictions. Consequently, the right to justice for accused as enshrined under Article
48 of the Constitution has not been realized effectively. Ultimately, this leads to the situation
observed by Justice Mativo in the case of Elly Opande Nyasaka v Republic (2017) where he
stated that failure to implement both the domestic and international laws denies accused persons
their right to justice and creates the phenomenon of wrongful convictions. Ideally, failure to
provide legal assistance universally to accused persons in Kenya is the main issue that highlights
how wrongful convictions have dented the right to access justice among the accused persons.
2.2 Wrongful Convictions and the Right to Liberty
The right to liberty is another legal entitlement that exemplifies the interplay between human
rights, wrongful convictions, and their causes in Kenya. The right to liberty refers to the right of
all people in any jurisdiction to enjoy freedom of their persons73. Article 9(1) of the International
Covenant on Civil and Political Rights (ICCPR) secures the right to liberty and security of the
person. It provides that everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law. Article 3 of the
Universal Declaration of Human Rights (UDHR) provides that every person has an inherent right
to liberty and security of person. Significantly, the utmost constitutional provision that connotes
the right to liberty in Kenya is Article 29 of the Constitution that establishes freedom and
security of the person. Article 29 (a) provides that every person has the right to freedom and
security of the person, which includes the right not to be deprived of freedom arbitrarily or
without just cause. Additionally, Section 3 of the Persons Deprived of Liberty Act of 201474
73
Brett, Annabel S. Liberty, right and nature: individual rights in later scholastic thought. Vol. 44. Cambridge
University Press, 2003.
74
Act No. 23 of 2014
P a g e | 27
embraces the spirit of Article 29 of the Constitution by providing that a person’s liberty is
supreme and cannot be limited arbitrarily. In the case of Ludindi Venant and Another v Pandya
Memorial Hospital [1998]75 the court held that the right to personal liberty is one of the most
fundamental human rights as it affects the vital elements of an individual’s physical freedom.
The right to liberty is not provided expressly in the Kenyan Bill of Rights since it is constituted
by several rights and freedoms76. All the four major causes of wrongful convictions discussed
hereinbefore infringe on the right to liberty as envisaged under Article 29 of the Constitution of
Kenya 2010.
Besides, the right to liberty under the Constitution of Kenya 2010 has been affirmed by several
court decisions. In the case of Francis James Ndegwa v Tetu Dairy Co-operative Society Ltd
[2016]77, the Court held that the right to liberty is supreme and inviolable. Further, in the case of
Samuel Chege Gitau & 283 Others v Attorney General [2016]78, the court was of the view that
the right to liberty is made up different constitutional freedoms that include freedoms of
movement, protection from slavery, and freedom of association among others. The right to
liberty is also constituted by other freedoms such as the freedom of movement, freedom of
association and freedom from slavery, servitude and forced labour among others. Article 24 of
the Constitution of Kenya 2010 makes express provisions on the circumstances under which the
rights and the fundamental freedoms established under the Bill of Rights can be limited.
Although, the right to liberty is constituted by many freedoms, it can be lawfully limited.
However, wrongful convictions cannot be used as a tool of limiting the constituent freedoms of
75
HCCC No. 63 of 1998
76
Chapter 4 of the Constitution of Kenya 2010
77
Constitutional Petition No. 2 of 2011
78
Cause 2212 of 2012
P a g e | 28
the right to liberty. Consequently, wrongful convictions are an outright violation of the right to
liberty of any individual.
The nexus between the right to liberty and wrongful convictions in Kenya arises through the
infringement of the freedom of an individual to associate, move around, and enjoy freedom and
security of person. Significantly, the deprivation of the liberty of a wrongfully convicted person
occurs in three major stages79. The stages include detention in the police cells, detention in
remand, and incarceration while serving prison sentences. At the police cells, it occurs in the
period between the arrest and the first appearance in court to hear the charges. However, under
the habeas corpus rule, an arrested person should only be detained for a period not exceeding
twenty four hours before appearing in the court. Deprivation of liberty during the detention of an
accused person in remand arises in many circumstances. For instance, an accused person will be
remanded if the he or she cannot meet the cash bail required by the court and if the court fails to
release the accused person on bond. Detentions in police cells and remands that precede a
wrongful conviction were described as unlawful detentions and constitutional violation by
Justice Lenaola in the case of Gerald Juma Gichohi & 9 others v Attorney General [2015]80. The
ideal manifestation of the violation and deprivation of liberty occurs after the wrongful
conviction after an individual is sentenced to prison. In the Kenya context, after an individual is
wrongfully convicted and sentenced to prison, the biggest possibility is that he or she will suffer
a violation of his or her right to liberty until the sentence lapses. The rationale behind this
proposition is that there is no agency or a review commission that investigates cases of alleged
79
Master, Howard S. "Revisiting the takings-based argument for compensating the wrongfully convicted." NYU
Ann. Surv. Am. L. 60 (2004): 97.
80
Petition 587 of 2012
P a g e | 29
wrongful convictions in Kenya. Summarily, wrongful convictions curtail the right to liberty that
is made up of several constitutional freedoms.
2.3 Wrongful Convictions and the Right to Human Dignity
The right of human dignity is an autonomous and complex principle that has extensive
philosophical, legal, and political resonances. It is derived from a classical Roman phrase,
dignitas hominis, meaning honour and respect to every human being. Nonetheless, there is no a
universally acceptable definition of the right to human dignity due to the varying and evolutive
judicial interpretations81. The right to human dignity manifests itself conspicuously in the
wrongful convictions discourse. The lingering question is how wrongful convictions culminate in
the subversion of the constitutional right to human dignity. From a philosophical perspective
such as the Kantian ethical postulation, a person can argue that wrongful convictions violate the
right to human dignity by preventing the enjoyment of all other human rights and freedoms82.
Notably, since a wrongful conviction is the conviction of a person who was not involved in an
alleged crime in any manner, the starting point of a wrongful conviction is a wrongful arrest. A
wrongful arrest is interpreted as a violation of the right to human dignity because denies the
arrested person a right to enjoy his rights and fundamental freedoms such movement and
association. Any unconstitutional denial or limitation of the enjoyment of rights and freedoms
entrenched under the Bill of Rights amounts to an outright violation of the right to human
dignity. Article 24 of the Constitution of Kenya 2010 provides that any right or freedom
contained in the Bill of Rights can only be limited only if it does not violate the right to human
dignity among other values germane to human rights such as equality and freedom. Therefore,
81
Mhatre, Ujjwala. "Right to human dignity." Indian journal of medical ethics 7.1 (2010).
82
Supra note 26
P a g e | 30
the limitation of several human rights and freedoms that occasions a wrongful arrest lead to the
violation of the right to human dignity of wrongfully arrested person.
The build-up stage of a wrongful conviction is the criminal proceedings or the prosecution in a
court of law. At this stage, different pre-disposing factors in relation to a wrongful conviction
emerge. Foremost, false confessions that lead to wrongful convictions are prevalent at this stage
and indisputably violate the right to human dignity. A false confession refers to admission of
guilt for a crime that a person, that is, the confessor has not done. In other instances, police and
prosecutorial misconducts that lead to wrongful convictions that lead to wrongful convictions
violate the right to human dignity of the accused person. For instance, coercive and torture
during interrogations are common misconducts among the police or the prosecution. Any form of
coercion or torture by police is a violation to the right of human dignity because they violate a
very wide array of fundamental human rights and freedoms. Ultimately, an accused person is
wrongfully convicted and sentenced to prison. The injustices that precede a wrongful conviction
are a violation of the right to human dignity.
The Preamble of the Universal Declaration of Human Rights (UDHR) establishes the right to
human dignity by providing that the recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of freedom, justice and
peace in the world83. Similarly, the Preamble and Article 13 (1) of the International Covenant on
Economic, Social and Cultural Rights (ICESCR) provide that every person has an inherent right
to human dignity. Article 28 of the Constitution of Kenya 2010 states that every person has an
inviolable right to human dignity and the right to have that dignity respected and protected. A
wrongful conviction is a downright and an unmitigated violation of the right to human dignity as
83
Supra note 4
P a g e | 31
entrenched under the Bill of Rights. Many scholar and commentators have construed the concept
and right of human dignity as the obligation placed by the law on individuals and the state to
respect and uphold the tenets of humanity and the inherent rights and freedoms. Additionally, the
Kantian moral ethics contend that the autonomy of a human being is predicated on the extent of
the protection of the right to universal human dignity84. In the formulation categorical imperative,
Immanuel Kant is of the view that every person has the right to inherent human dignity that
should be protected and respect by both the state and individuals85. The causes of wrongful
convictions that violate the right to human dignity are lack of legal representation and false
confessions. Legal representation is an inherent and universal human right for accused persons
under Article 50 (2) (h) of the Constitution and the Legal Aid Act of 2016. Therefore, it is at the
heart of the principles of human dignity. Accordingly, if an accused person is not provided legal
aid or representation, this would be a downright violation of his or her right to human dignity.
False confessions leading to wrongful convictions violate the right to human dignity because
they contravene the freedom from torture under Article 29 and the freedom of expression in
Article 33 (1) of the Constitution. A slew of research indicates that many false confessions are
obtained through harsh interrogation tactics employed by law enforcement officers to subject the
accused persons to torture and duress. In turn, the coercion and intimidation leading up to a false
confession violates their freedom of expression since they cannot convey critical information
incidental in proving their innocence. Specifically, Article 33 (1) of the Constitution provides
suspects with the right of seeking and communicating information without any compulsion and
external pressure. Any constraint from the prosecution aimed at procuring a false confession
from a detainee contravenes the freedom of expression.
84
Wood, Allen W. Kantian ethics. Cambridge University Press, 2007.
85
Ibid
P a g e | 32
Some legal scholars and judges have argued that the right to human dignity is a subset of every
human right and fundamental freedom envisaged in the domestic laws and the international
human rights instruments86. For instance, in the case of Seventh Day Adventist Church (East
Africa) Limited v Minister for Education & 3 others [2014]87, Justice Isaac Lenaola stated that
the right to human dignity is the bedrock of all other rights and fundamental freedoms. Similarly,
in the case of Lewis Wilkinson Kimani Waiyaki v Hon. Attorney General [2016]88, the court was
of the view that the right to human dignity is the foundation of all other human rights entrenched
in the domestic laws and international law instruments. On this account, every human right and
fundamental freedom seeks to promote human dignity. Therefore, if the causes of wrongful
convictions highlighted in the discussion are not addressed effectively, they not only violate the
right to human dignity but also lead to wrongful convictions.
2.4 Conclusion
Manifestly, the connection amongst wrongful convictions, their causes, and human rights is
indisputable. False confessions, improper forensic evidence, lack of legal representation, and
witness misidentification violate fundamental human rights that include right to human dignity,
right to justice, and right to liberty. These rights are foundational and are constituted by all other
human rights and fundamental freedoms envisaged in the domestic and international law
instruments. Wrongful convictions contravene the right to justice since they deny accused
persons full and equal enjoyment of all prerogatives incidental to a fair trial. Therefore, for the
state to ensure that a defendant’s right to justice is not assaulted by a wrongful conviction, it
ought to establish several safeguards. Cardinally, it should create a balance between the
prosecution and defense through full implementation of Article 50 (2) (h) of the Constitution. It
86
Supra note 2
87
Petition 431 of 2012
88
Petition 27 of 2015
P a g e | 33
requires the state to assign advocates to accused persons if substantial injustices will occur in the
absence of legal representation. The right to liberty is infringed by wrongful convictions because
individuals are subjected to arbitrary arrest and detention. Given that the enjoyment of most of
the entitlements entrenched in the Bill of Rights is predicated on the right to liberty, a wrongful
conviction deprives accused persons the enjoyment of the entire spectrum of human rights and
freedoms. For instance, a wrongfully detained person cannot enjoy the freedom of association
and political rights fully. Just like the right to liberty, wrongful convictions contravene the right
to human dignity by denying an individual the opportunity to exercise the other human rights and
freedoms. Further, the pre-disposing factors leading to wrongful convictions infringe on a
defendant’s right to human dignity. For example, a false confession procured through duress or
improper interrogations and used by the prosecution to convince the trial judge to convict a
suspect violates a person’s right to human dignity. On this account, it is necessary to establish a
Criminal Cases Review Commission to remedy the human rights violations caused by wrongful
convictions.
P a g e | 34
CHAPTER 3: WRONGFUL CONVICTIONS IN KENYA
3.0 Introduction
A wrongful conviction refers to the incarceration of a person accused of a crime that is proved
erroneous, unfair, and improper by subsequent investigations or new evidence. The phenomenon
of wrongful convictions is one of the most emotive and momentous issues in the Kenyan
criminal justice system. Nonetheless, the relevant government agencies have not established the
necessary institutional or legal framework to address it and provide long-lasting solutions to the
problems. Similarly, no comprehensive research has been done on the issue of wrongful
convictions in Kenya. On this account, it is evident that the criminal justice system of the country
is not only insensate and unconcerned but also uninformed about the plight of many Kenyans
who are wrongfully convicted. Significantly, wrongful convictions have marred the dispensation
of justice in the Kenyan criminal justice system89.
The pervasiveness of wrongful convictions in Kenya is one of the most intriguing questions that
have remained unanswered by the country’s criminal justice system. Due to the absence of a
criminal cases review commission or an agency with similar mandates, Kenya lacks any records
of wrongful convictions. The overarching contention of Prof. Risinger Michael is that although it
is impossible to establish an accurate number of all wrongful convictions in any criminal justice
system, most of the wrongful convictions can be identified and addressed if the relevant bodies
are established90. Leo and Gould embrace Risinger’s view that although not all wrongful
89
Maina, Henry O. "Constituticide”: Enacting Media Laws That May Undo Constitutional Gains in Kenya."
Kenya's Media Landscape: A Success Story with Serious Structural Challenges. Leipzig: VISTAS Verlag (2015): 28-
45.
90
Risinger, D. Michael. "Innocents convicted: An empirically justified factual wrongful conviction rate." The
Journal of Criminal Law and Criminology (2007): Pgs.761-806
P a g e | 35
convictions can be established, majority of them can be detected as long as governments invest
progressively in pertinent institutions or projects91. If the Kenyan criminal justice system could
be having an institution charged with the role of revisiting, uncovering, addressing, and keeping
records or statistics of wrongful convictions, it would be on the desired trajectory. Foremost, the
judiciary would be cognizant of some of the major causes of wrongful convictions. Besides, the
civil society would have a basis for agitating for legal and institutional changes that can reduce
the prevalence of wrongful convictions in the country. Lastly, if Kenya could have documented
the statistics of wrongful convictions, different human rights groups can provide the criminal
justice system with the necessary support to deal with the challenge. Just as Risinger suggests,
the lack of both a legal and institutional framework that investigates alleged cases of wrongful
convictions is the primary reasons that explains why there is no a concise record of criminal
convictions in Kenya92.
Peculiarly, there is no single statutory law in Kenya that makes express provisions on the issue of
wrongful convictions in the criminal justice system of the country. However, the Constitution of
Kenya 2010 and innumerable case laws have languidly revisited the nemesis of wrongful
convictions. Fundamentally, the Constitution of Kenya 2010 provides a half-hearted redress for
wrongful convictions in Article 50 (6). It provides that a person who has been convicted of a
crime may seek a new trial by petitioning the High Court. However, pursuant to Article 50(6) of
the Constitution, for a convicted person to petition the High Court for a retrial claiming to have
been wrongfully convicted, such a person must satisfy two requirements. Foremost, the evidence
that the person is relying on must be new and compelling. Secondly, the appeal of that person
must have been dismissed by the highest court or the person did not appeal within time allowed
91
Leo, Richard A., and Jon B. Gould. "Studying wrongful convictions: Learning from social science." (2009). Pg. 3-
5
92
Supra note 21 Pg. 763
P a g e | 36
for appeal. However, the redress given by Article 50 (6) of the 2010 Constitution has not been
efficacious because the accused persons have been left by the Kenyan criminal justice to do
everything singlehandedly. Therefore, the creation of a Criminal Cases Review Commission
would be a game changer initiative in the efforts of addressing the plight of wrongfully convicted
persons.
The case of Charles Bundi Baiburi v Republic (2009)93 gives an elaborate exposition on the
phenomenon of wrongful convictions within the criminal justice system of Kenya. In this case,
the appellant had served 9 years and 7 months of his 25 years sentence in prison before he was
exonerated. The appellant in the case, Charles Bundi Baiburi was convicted in 2001 for the
offence of defilement of a young girl contrary to the provisions of Section 145 (1) of the Penal
Code. Since he was aggrieved by both the conviction and the sentence, Charles Bundi Baiburi
filed an appeal. In allowing the appeal, the court held that the sentence of 25 years in prison was
bad in law, illegal, and did not have either evidential or statutory underpinning. Consequently,
the sentence cannot be allowed to stand. In describing Charles Bundi’s conviction as wrongful,
Lesiit J. stated that “The Appellant has served 9 years and 7 months of the illegal sentence
imposed against him”. Eventually, the court exonerated the appellant after serving what it
described as nine and half years of wrongful conviction. This chapter endeavors to provide an
intricate analysis on the diverse causes of wrongful convictions in Kenya to justify the necessity
of establishing a Criminal Cases Review Commission.
3.1 Major Causes of wrongful convictions in Kenya
There are innumerable causes of wrongful convictions in Kenya. However, given that there is no
agency or institution that investigates wrongful convictions in Kenya, the causes of wrongful
93
Criminal Case No. 255 of 2009
P a g e | 37
conviction in Kenya can just be inferred from the court decisions, the flaws in the Kenyan
criminal justice system, and the situation in other developed legal systems like the US and
Australia. The major causes of wrongful convictions that will be examined under this section
include victim and eyewitness misidentification, improper forensic evidence, lack of legal
representation and false confessions.
3.2 Victim and Eyewitness Misidentification
Witness identification is a common law practice that maintains that identification parades are the
most reliable mechanisms of recognizing suspects. The Evidence Act94, Criminal Procedure
Code95, and the Penal Code96 are all silent on the rules of witness identification. However, the
Police Act97 provides the Commissioner of the Police with an administrative power of issuing
Force standing orders for the purposes of general control, direction, and information for the
police98. Further, it is not incumbent on the Commissioner to publish the standing orders in the
Kenya Gazette. On this account, Chapter 46 of the Force Standing Orders outlines the rules that
should guide witness identification parades to avert injustices through misidentifications. There
are four cardinal rules of witness identification under the Force Standing Orders99. Foremost, the
witness should provide a description of the accused before taking part in a parade100. Secondly,
the accused should be placed among eight people of similar height, age and general
appearance101. Thirdly, the witness should be asked to pick out the person he believes committed
94
Cap 80 Laws of Kenya
95
96
97
98
Section 5 (1) of the Police Act
99
Force Standing Orders: Retrieved from https://www.google.com/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0ahUKEwi34rX057jUAhWB7hoKHbqhDXQ
QFghCMAQ&url=http%3A%2F%2Frevenue.tn.nic.in
%2Fpso.pdf&usg=AFQjCNEfnDM3dkgssZKbm2SJuTWn_D76xg&sig2=5-L8OoDzv9vWut5rfeNzoA
100
Paragraph 2 of Force Standing Orders, Chapter 46
101
Ibid
P a g e | 38
the offence102. Lastly, the witness or witnesses should not see the accused before the parade103.
Although the provisions of the Force standing orders are effective in protecting suspects from
false identifications, they have not addressed the shortcomings that can come from the victim,
such as mental stability. The laws have also not outlawed the performance of witness
identification parades at night hours. These witness identification rules were upheld in the case of
Livingstone Muriuki Mwangi v Republic (2009)104 where the court quashed the appellant’s
conviction due to several lapses in the identification parade that could lead to a wrongful
conviction.
In the Kenyan context, the criminal justice system has been putting a lot of faith in testimonies
and identifications given by witnesses and victims of criminal activities105. Ultimately, very many
people have been wrongly convicted. However, the Kenyan appellate courts have been quick to
quash such convictions106. The case of Felix Kinyanya Marako v Republic (2014)107 demonstrates
how victim and eyewitness misidentification work to the detriment of accused persons. In the
preceding suit, court held that the appellant had been convicted wrongly since his identification
by the complainant was mistaken and full of errors. Further, the court was convinced that the
complainant, that is, PW1 could not have seen the perpetrators of the robbery since there was full
darkness in the scene of the crime. The court was of the view that the identification of the
appellant was spiteful and malicious. Similarly, in the case of Peter Kimaru Maina v Republic
(2014)108, the court held that the conviction of the appellant could not stand since it was based
solely on identification at night. In the court’s view, the conviction was wrongful. In his obiter
102
Ibid
103
Ibid
104
Criminal Appeal 317 of 2007
105
Pakes, Francis. Comparative criminal justice. Routledge, 2014.
106
Ibid
107
Criminal Appeal No. 102 of 2014
108
Criminal Appeal No. 111 of 2003
P a g e | 39
dictum, the Justice Mativo stated that “visual identification of an accused person is always
supposed to be treated with the greatest care to avoid the possibility of a wrongful conviction”.
Lastly, the recent case of Dominic Mbithi Mutinda v Republic (2012)109 vindicates the
majoritarian view that victim and eyewitness misidentification is a leading cause of wrongful
convictions in the country. In this case, the court quashed the appellant’s wrongful conviction
since was premised poor identification evidence from a witness proven not to have been at the
scene of the crime.
3.3 Improper Forensic Evidence
Misapplication of forensic evidence has been cited as second common cause of wrongful
convictions in the world after witness and victim misidentifications 110. Forensic evidence refers
to evidence obtained through scientific methods such as blood test and DNA test111. The Criminal
Law (Amendment) Act112 provides the guidelines of conducting forensic tests, particularly DNA
which is the main form of forensic evidence in many criminal proceeding. Section 14 of the Act
amends Chapter XII of the Penal Code, particularly Section 122 on DNA sampling. Section 122
(A) (1) of the Criminal Law (Amendment) Act provides any police officer of or above the rank
of inspector with the power to order any person suspected of committing an offense to undergo a
DNA sampling procedure. Such an order should be in writing. Further, there should be
reasonable grounds to believe that the procedure will reveal evidence confirms or disproves that
the suspect committed the alleged offence. Under the Act, DNA or forensic tests should only be
done on suspects of serious offenses that are punishable by an imprisonment of 12 months or
109
Cr. Appeal No. 136 Of 2012
110
Garrett, Brandon L., and Peter J. Neufeld. "Invalid forensic science testimony and wrongful convictions."
Virginia Law Review (2009): 1-97.
111
Giannelli, Paul C. "Wrongful convictions and forensic science: the need to regulate crime labs." (2011). Pg. 31-44
112
Act No. 5 of 2003
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more113. Section 122 (B) empowers the police to use reasonable force to compel any suspect
failing to comply with the order. Although the law providing guidelines on how to conduct DNA
or forensic tests is comprehensive, it only empowers the police and does not cater for the rights
of the suspects. Therefore, the possible violation of the rights of the suspects can lead to
wrongful convictions.
Studies have demonstrated that the forensic methods used in crime investigation do not provide
consistently accurate results114. In some instances, forensic analysts have made dreadful mistakes
like contaminating specimens and mixing up samples115. Notably, the aforementioned mistakes
can occur in any laboratory setting regardless of the use of sophisticated and well-developed
technology. In other cases, forensic analysts have hidden exculpatory evidence, fabricated
results, and submitted forensic reports even before conducting the tests116. In the context of the
Kenyan criminal justice systems, the astronomical levels of corruption among the police and
seamless prosecutorial misconducts can be used to establish the veracity of these claims.
However, the Kenyan courts, particularly the superior courts have acted promptly to dispel
forensic evidence that can lead to wrongful convictions. In the case of David Kariuki Thambara
v Republic (2014)117, the accused had been charged and convicted for the offence of robbery with
violence in 2011. In the appeal, the appellant averred that the DNA evidence that was used to
convict him was forcefully collected after his arrest and did not comply with the provisions of
Section 122 A, B, and D of the Criminal Law (Amendment Act No. 5/2003). Strikingly, Justices
Waki, Kiage, and Nambuye agreed that the DNA evidence was erroneous, was not admissible,
113
Section 122 (A) (2) of the Criminal Law (Amendment) Act
114
Collins, John M., and Jay Jarvis. "The wrongful conviction of forensic science." Forensic Science Policy and
Management 1, no. 1 (2009): 17-31.
115
Mogire, Obwaya. "Digital forensics framework for Kenyan courts of laws." PhD diss., University of Nairobi,
2011 Pg. 15-19
116
Ibid
117
P a g e | 41
and had culminated in a wrongful conviction. The court quashed the conviction. In other
instances, the courts have ordered for retrials when forensic evidence is found to have led to a
wrongful conviction. For instance, in the case of David Mwangi Njoroge v Republic (2013)118,
Justice Macharia ordered for the retrial of the appellant and stated that the forensic evidence used
by the trial court to convict the appellant was pointless and placed the appellant at a risk of
wrongful conviction.
Similarly, in the case of Peter Manson Okeyo v Republic (2013)119, the petitioner was convicted
and sentenced to death in 1999 for the offence of murder contrary to the provisions of Section
203 and 204 of the Penal Code. In his petition in the Constitutional and Human Rights Division
at the High Court in Nairobi, Peter Manson Okeyo was rechallenging the accuracy of the DNA
evidence that was relied by the High Court in convicting him. The decision of the court in this
case was guided by the ruling in the case of R v Andrews (2008)120. In the Andrews case, the
court stated that the overarching objective of the criminal justice system is giving a true verdict
that is preceded by a fair trial to avert wrongful convictions. The court found the appellant had
been convicted using improper forensic and ordered for a retrial
3.4 Lack of Legal Representation to Accused Persons
The Court of Appeal in 2013 in the case of Moses Gitonga Kimani v Republic (2009)121 held that
the right to legal representation is integral to the realization of a fair trial and justice, particularly
preventing wrongful convictions. Shockingly, Section 77 (2) and (14) of repealed constitution
denied an accused person the rights to legal representation at the state expense. However, the
recent legal regime recognizes the centrality of legal representation in the realization of a fair and
118
119
120
E.W.C.A. Crim 2908
121
H.C.CR.A No. 271 of 2009
P a g e | 42
effective criminal justice system. Article 50 (2) (h) of the Constitution of Kenya 2010 provides
advocate assigned to the accused person by the State and at State expense. However, the
constitutional right of legal representation accrues only in instances where substantial injustice
would otherwise result from the failure to offer the representation to an accused person122.
Further, Section 193 of the Criminal Procedure Code provides that a person accused of an
offence before a criminal court, or against whom proceedings are instituted under this Code in a
criminal court, may of right be defended by an advocate. Section 35 (1) of the Legal Aid Act
2016 mandates the National Legal Aid Service to provide legal aid services to accused persons
who are indigent and residents of Kenya at the expense of the State. However, these provisions
have not been implemented or integrated fully into the Kenyan criminal justice system thus
leading to many wrongful convictions that have not yet been addressed.
The primary reason why legal representation is critical in averting wrongful convictions is the
“accused person’s dilemma”, a concept coined by Lord Denning in his obiter dictum in the case
of Pett v Greyhound Racing Association (1968)123. In this case, Lord Denning said that an
unrepresented person may not receive justice because of nervousness, failure to understand the
court language, wanting intelligence, and confusion. Notably, many accused person in Kenya
have not benefited from legal representation that should be provided by the state. Therefore,
since most of them do not understand the technical procedures and language of the court they
end up being convicted wrongly.
122
Article 50 (2) h of the Constitution of Kenya 2010
123
All E.R 545, at 549
P a g e | 43
3.5 False Confessions
False confessions refer to admission of guilt for a crime that a person, that is, the confessor has
not done124. In many instance, false confessions are induced through coercion, incompetency of
the accused and mental disorder125. Apart from coercion, diminished capacity and mental
impairments, other causes of false confessions include intoxication, ignorance of the law, fear of
violence, threat of a harsh sentence and misunderstanding the crime situation126. The main
sources of law of confession in Kenya are the Evidence Act127 and The Evidence (Out of Court
Confession) Rules, 2009128. Evidence Act129 defines a confession as an admission by words or
conduct, or a combination of words and conduct, from which, whether taken alone or in
conjunction with other facts proved, an inference may reasonably be drawn that the person
making it has committed an offense130. Among many other aspects of confessions, the paradigm
shift in the admissibility of confessions in Kenya under the provisions of the Evidence (Out of
Court Confession) Rules, 2009 will culminate in an increase in the number of wrongful
convictions131. In fact, instead of offering a remedy, Evidence (Out of Court Confession) Rules,
2009 worsen the situation. In Kenya, confessions are not admissible unless they are made in
court132. However, out of court confessions are admissible under the newly constituted Evidence
(Out of Court Confession) Rules, 2009133. Section 29 of the Evidence (Out of Court Confession)
Rules, 2009 retains the power of the police to take confessions out of court and that such
124
Leo, Richard A. Police interrogation and American justice. Harvard University Press, 2008. Pg.15-19
125
Russano, Melissa B., Christian A. Meissner, Fadia M. Narchet, and Saul M. Kassin. "Investigating true and false
confessions within a novel experimental paradigm." Psychological science 16, no. 6 (2005): 481-486.
126
Leo, Richard A. "False confessions: Causes, consequences and implications." (2009). Pg. 16
127
Cap 80 Laws of Kenya.
128
129
Supra note 13
130
Section 25 of the Evidence Act
131
Supra note 14
132
Section 25A of The Evidence Act
133
Established by the attorney General, in consultation with the Law Society of Kenya, the Kenya national
commission on human rights in exercise of the powers conferred by s 25A(2) of The Evidence Act
P a g e | 44
confessions are admissible in a criminal proceeding. However, it insists on having police officers
of the rank of or equivalent to inspector or an administrative officer holding first or second class
magisterial powers and acting in the capacity of a police officer. Seemingly, the drafters of this
law contented that rank is a ready measure of intelligence and responsibility since it is assumed
that once an officer attains a particular rank, a measure of responsibility is assumed. Nonetheless,
the admission of confessions made out of court before a police officer of a higher rank leaves
room for admission of confessions that were made forcibly or under duress. Eventually, the false
confessions lead to many wrongful convictions.
The Kenyan police have consistently been on the spotlight for procuring false confessions from
accused persons. For instance, in March 2017, Kenyan police officers in Mombasa were accused
of 'roughing up' Lord Monson's son, Alexander Monson to get false confession134. Monson was
'roughed up' by police officers because he refused to sign a fabricated confession that implicated
him in a series of criminal activities. Other accused persons in Kenya make false confession
because of their inability to understand the technical court processes and language, fear of
violence and misunderstanding the crime situation. The first ever definition of a confession was
made by Lord Atkins in the case of Swami V King Emperor (1939)135. In this case, Lord Atkins
stated that; ‘‘No statement that contains exculpatory matter can amount to confession, if
exculpatory statement is of some facts which if true would negate the offense.’’ Lord Atkins
meant that a confession must admit the offense in its terms or substantially all the facts which
constitute the offense and anything less than that is not a confession.
134
http://www.telegraph.co.uk/news/worldnews/africaandindianocean/kenya/9307612/Kenyan-police-accused-of-
roughing-up-Lord-Monsons-son-to-get-false-confession.html
135
[1939] UKPC 2
P a g e | 45
3.6 Conclusion
From the preceding discussion, it is evident that the phenomenon of wrongful convictions is one
of the major factors that can vitiate the dispensation of justice in any criminal justice system.
Notably, the Kenyan situation has been worsened by the lack of an agency tasked with the role of
identifying and investigating wrongful convictions. Consequently, the question of the prevalence
of wrongful convictions in the country’s criminal justice system cannot be answered because of
the absence of such records. This demonstrates the supreme need of establishing a criminal cases
review commission to address the predicament. Professor Michael Risinger contends that
although the actual number of wrongful convictions cannot be established, a large fraction of
them can be uncovered if the relevant bodies are created. Further, apart from Article 50 (6) of the
Constitution of Kenya 2010 that empowers people who feel to have been wrongfully convicted
to appeal for a retrial, no other law has been enacted alleviate the plight of victims of
miscarriages of justice. Once again, this points out to the necessity of establishing a criminal
cases review commission in Kenya. In addressing the issues of wrongful convictions, the
commission will be concerned with tackling the major causes of the injustices. They include
victim and eyewitness misidentification, improper forensic evidence, lack of legal representation
and false confessions. Notably, the Kenyan courts have been vigilant to quash wrongful
convictions. However, the creation of the criminal cases review commission will supplement the
efforts of the judiciary in eradicating the aforementioned causes of wrongful convictions in
Kenya.
P a g e | 46
CHAPTER 4: TOWARDS ESTABLISHING A CCRC IN KENYA
4.0 Introduction
Critics of the Kenyan criminal justice system contend that it is half-completed since it only
focuses on punishing wrongdoers in total disregard of their rights136. The plight of accused
persons in Kenya has been compounded by the phenomenon of wrongful convictions137. This
violates the right to justice as entrenched in Article 48 of the Constitution of Kenya 2010.
Although Article 50 (6) of the constitution provides convicts with the prerogative of petitioning
the High Court for a retrial if they perceive their convictions to be improper and wrongful, this
cannot address their predicaments. Primarily, the High Court is struggling with case backlog138.
Therefore, their petitions will be affected by inordinate delays that may extend to several years.
In addition, it will be an uphill task for many convicts to petition successfully due to financial
constraints and lack of legal assistance in handling the technical court procedures. Consequently,
there is a conspicuous need of establishing a Criminal Cases Review Commission to breathe life
into Articles 48 and 50 (6) of the Constitution. Going by the standards set by the UK’s CCRC,
the commission will not only receive the petitions or applications from people claiming to have
been wrongfully convicted but also assist the prisoners in making the supplications139. Besides,
just like the UK’s CCRC that has field officers in Wales, England and North Ireland, the Kenyan
Commission will have similar officials across the country140. They will receive applications for
case review from all the prisons and facilitate the process of granting the applicant an advocate at
136
Pakes, Francis. Comparative criminal justice. Routledge, 2014.
137
Onyango, Peter. "Balancing of rights in land law: a key challenge in Kenya." Sociology and Anthropology 2.7
(2014): 301-308.
138
Factors influencing management of case backlog in judiciary in Kenya: a case of courts within Meru and Tharaka
Nithi counties. Retrieved from http://erepository.uonbi.ac.ke/handle/11295/74133
139
https://ccrc.gov.uk/making-application/how-it-works/
140
Ibid
P a g e | 47
the expense of the state, if the appeal meets the threshold established by the Commission141. This
will transform the Kenyan criminal justice system significantly and provide a permanent reprieve
to prisoners serving unwarranted sentences. This chapter explores the composition, functions,
and the mondus operandi of a Kenyan Criminal Cases Review Commission.
4.1 The Case for a CCRC
The establishment of the Commission will culminate into a paradigm shift in the purview of the
criminal appeals in Kenya. Pursuant to the provisions of the Constitution of Kenya 2010, the
Court of Appeal is the final court that can hear a criminal appeal142. Nonetheless, although a
convicted person can appeal to the Supreme Court, the standards set by the Constitution can
hardly be met in a criminal appeal143. If a Kenyan Criminal Cases Review Commission is formed
as proposed in this research, the Court of Appeal will have the duty of hearing all appeals that the
Commission has certified for criminal review. Further, going by the standards set by the review
commissions of the UK, for an individual to present his case to the Commission, the requirement
is that such a person should have exhausted their right of appeal. However, in some
circumstances, if a person claiming to have been convicted wrongfully has not exhausted his or
her rights of appeal under the Constitution, such a person may be eligible for CCRC’s review
under the doctrine of “Exceptional Circumstances”144. Pursuant to the guidelines established by
the UK’s CCRC, when faced with a case whereby a person is alleging a wrongful conviction, the
Kenyan Commission will only concern itself with the issue of whether the Court of Appeal
141
https://ccrc.gov.uk/making-application/can-i-apply/
142
Established under Article 164 of the Constitution of Kenya 2010
143
Article 163 (4) of the Constitution of Kenya 2010 provides that an appeal can lie in the Supreme Court only if it
is certified by both the Supreme Court and the Court of Appeal as a matter of general public importance.
144
Exceptional circumstances are very rare and vary from one case to another. However, the reason leading to the
failure to appeal must be special. Forgetting to appeal or missing the appeal deadline does not constitute an
exceptional circumstance.
P a g e | 48
would consider such a conviction or sentence as “unsafe”145. Particularly, the CCRC will employ
the Court of Appeal merits in deciding whether an application warrants a retrial146. This will
require a comprehensive reflection on the fairness entire trial, nature of the rulings, and
availability of new evidence. Summarily, in Kenya, the review commission will be reflecting
upon the fairness of the entire trial, the correctness of the legal rulings and most importantly, any
new evidence147. This chapter endeavors to give a detailed exposition of the composition and the
functions of CCRC in Kenya. Additionally, the chapter will explore the role of the Commission
in addressing the causes of wrongful convictions that in turn precipitate human rights violations.
Notably, to operationalize the Commission, the Parliament will pass a law that will stipulate its
functions, powers and composition among other aspects. Therefore, the chapter will provide a
blueprint that can guide the process of establishing the Commission.
4.3 Composition of the Kenyan CCRC
Foremost, the composition of the Commission will comply with the gender ruleenshrined in the
Constitution of Kenya 2010. Article 27 (8) of the Constitution provides that no more than two-
thirds of the members of elective or appointive bodies shall be of the same gender. Further, the
commission officials will have to satisfy the integrity requirements set by Chapter 6 of the
Constitution of Kenya 2010. The Commission will be led by at least 18 officials who include one
chief executive officer, two directors, and fifteen commissioners148. The Chief Executive
Commissioner (CEO) will be the highest-ranking official in the Commission149. In addition, it
will recruit other employees to coordinate internal and field operations of the Commission across
the country. The number of field officers employed by the Commission will be predicated on the
145
http://www.ccrc.gov.uk/making-application/after-i-apply/
146
Ibid
147
Ibid
148
http://www.ccrc.gov.uk/about-us/
149
http://www.ccrc.gov.uk/about-us/senior-management-team/
P a g e | 49
budgetary allocations from the national government. The CEO will be responsible for making
major decisions regarding the running of the day-to-day activities of the Commission and
managing the overall operations of the body. The two directors’ positions will be held by
Director of Casework Operations and Director of Finance $ IT. The commissioners will come
from different professions in order to balance and respond to the varying demands of the criminal
cases review150. The commissioners will consist of retired judges, lawyers, police officers,
criminologists, psychologists and the clergy151. The diversity in the composition of the
commissioners will ensure that the commission will handle all reviews efficaciously.
4.4 The Role of the CCRC in Kenya
The functions of the Criminal Cases Review Commission will be provided by the enabling Act
that the National Assembly will pass to operationalize it. However, the overarching role of the
Criminal Cases Review Commission (CCRC) in Kenya will be to investigate all cases of alleged
wrongful convictions. For the Commission to initiate its investigations, the person alleging to
have been wrongfully convicted must make an application directly to it. According to the
practice of the UK’s CCTC, the application should be in writing and should be made after
exhausting all the appeal avenues provided by the law152. Ideally, the application for the review
should be made by those people who feel that they have been wrongfully convicted even after
appealing or have new evidence. The new evidence should either not have been adduced during
the trial or has changed materially after the court’s judgment153. The Commission will not be
performing re-runs of trial just because the court held that certain evidence was inadmissible.
Whenever, an individual has made efforts to appeal his or her case but has failed, the
150
Ibid
151
Ibid
152
Ibid
153
CCRC Application Guidance https://ccrc.gov.uk/making-application/how-it-works/
P a g e | 50
Commission will have the power to investigate the case and consider whether the case should be
re-determined in a fresh appeal. The investigations of the Commission will be aided by its
independence and power to obtain information from the relevant public bodies such as the police
and other agencies that have been involved directly or indirectly in the case154. In fact, the CCRC
will have special legal power to obtain any information or materials held by organizations and
individuals that is necessary in the investigation of a case155. This will be done through the
summoning of individuals to appear before the Commission for interrogation and presentation of
any evidence in their disposal. However, the enabling Act that the Parliament will pass to
operationalize the Commission will dictate the limits and the nature of the information that the
CCRC can access. Specifically, the Commission will investigate the nature of the conviction and
all the activities that transpired during the trial and the appeal stages.
Further, the Commission will be charged with the role investigating and addressing the major
causes of wrongful convictions in Kenya. Particularly, the commission will create and implement
mechanisms of streamlining the criminal justice system to reduce instances of witness
misidentification, production of improper forensic evidence, false confessions, and lack of legal
representation. During the investigations, the Commission will have power to interrogate new
witnesses and re-interview the initial ones in any case156. In addition, if the Commission deems it
necessary, it can arrange for new expert evidence such as DNA testing and psychological
reports157. The Commission will collaborate with the National Legal Aid Service Board
established under Section 5 of the Legal Aid Act 2016 to ensure all indigent accused persons are
given state counsels. Besides, CCRC will have the role of investigating and reporting to the
154
Naughton, Michael, ed. The Criminal Cases Review Commission. Palgrave Macmillan, 2009.
155
Ibid
156
Schehr, Robert Carl. "The Criminal Cases Review Commission as a state strategic selection mechanism." Am.
Crim. L. Rev. 42 (2005): 1289.
157
Supra note 154
P a g e | 51
Court of Appeal any matter that the Court refers to the Commission. In some instances, the Court
of Appeal will use its appellate powers and refer some matters to the CCRC. The matters referred
to the CCRC by the Court of Appeal will either be related to an appeal from the High Court or a
case in the Court of Appeal that is originating from the CCRC. The Court of Appeal will have
unlimited discretion on the matters it can refer to the Commission in relation to any criminal
case.
4.5 Conclusion
The functions and the composition of the proposed Criminal Cases Review Commission of
Kenya will be dictated by the enabling Act that the Parliament will pass. In this regard, the
National Assembly will be obliged to pass a legislation that resembles the Criminal Appeal of
1997 of the UK to set up the Commission and define its powers and functions. However, the
most conspicuous and indisputable role of the Commission will be to investigate all cases of
alleged wrongful convictions. After conducting the investigations, the Commission will refer to
the Court of Appeal the cases that show “real possibility” of going through the appeal process
and culminate in the quashing or reduction of the sentence. Besides, CCRC will have the role of
investigating and reporting to the Court of Appeal any matter that the Court refers to the
Commission. In the aspect of composition, the Commission will be constituted pursuant to the
gender rule set in the Constitution158. In addition, the commissioner will have to pass the integrity
test set in Chapter 6 of the Constitution. Further, the CEO, Directors, and Commissioners of
CCRC will possess different qualifications to ensure that there is effectiveness in the review
processes due to the input from different professionals that have connection with criminal justice.
158
Article 27 (8) of the Constitution of Kenya 2010
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CHAPTER 5: FINDINGS AND RECOMMENDATIONS
5.0 Findings
Incontestably, the need to establish a Criminal Cases Review Commission in Kenya is crystal
clear. The ability of the country’s criminal justice system to dispense justice has been marred by
unaddressed cases of wrongful convictions. The overarching finding of the research is that
although the courts have pinpointed the causes and a few instances of wrongful convictions, the
law has not evolved or responded appropriately to cover those loopholes. In fact, the
amendments done on some laws have created more lacunas that are likely to increase the
prevalence of wrongful convictions. For instance, the Evidence (Out of Court Confession) Rules,
2009159 was repealed to make confessions made out of court admissible as evidence in criminal
proceedings. Previously, confessions made out of court could not admitted as evidence.
Therefore, this worsens the situation and justifies the proposition that the Kenyan criminal law
regime has not been responsive to the dynamics that are incidental to wrongful convictions.
Similarly, the Criminal Law (Amendment) Act160 grants more powers to the prosecution than to
the defendants in matters concerning the use of DNA evidence. This power imbalance exposes
accused persons to the danger of being convicted on wrong and fallacious forensic evidence.
Additionally, many accused persons are not enjoying the right to legal representation as
entrenched in the Bill of Rights. Article 50 (2) (h) of the Constitution of Kenya 2010 provides
advocate assigned to the accused person by the State and at State expense. Identically, Section
193 of the Criminal Procedure Code provides that a person accused of an offence before a
criminal court, or against whom proceedings are instituted under this Code in a criminal court,
159
160
Act No. 5 of 2003
P a g e | 53
may of right be defended by an advocate. Section 35 (1) of the Legal Aid Act 2016 provides
mandates the National Legal Aid Service to provide legal aid services to accused persons who
are indigent and residents of Kenya at the expense of the State. The slow implementation of the
right to legal representation is one of the factors contributing to many wrongful convictions.
According to a 2016 Katiba Institute report, the number of accused persons represented in courts
by counsels assigned by the state is lower than that of their unrepresented counterparts161. On this
account, the laxity of the relevant state agencies in implementing the right to legal representation,
albeit progressively, is convoluting the wrongful convictions matrix further. The Criminal Cases
Review Commission will struggle to achieve its primary objectives if there is no radical
turnaround in the landscape of legal representation.
Moreover, there are no records of wrongful convictions or miscarriages of justice in Kenya. This
explains why the creation of a Criminal Cases Review Commission is exceedingly important to
streamline the Kenyan justice system. However, the Medill Justice Project (MJP), a U.S
investigative journalism enterprise focusing on injustices, has consistently stated that there are at
least 25 wrongful convictions in Kenya annually162. Although the estimates by MJP may not be
meticulous because of a few limitations in the institution’s research process, it vindicates the
proposition that there is need to establish a commission for reviewing criminal cases in Kenya.
Its formation will usher in a new era where all prisoners feeling that their convictions are
wrongful can complain and get a retrial.
161
Legal Aid: New Hope or False Dawn? http://www.the-star.co.ke/news/2016/05/28/legal-aid-new-hope-or-false-
dawn_c1357206
162
Medill Northwestern University Justice Project http://www.medilljusticeproject.org/wrongful-convictions/
P a g e | 54
5.1 Recommendations
Foremost, Section 4 of the Evidence (Out of Court Confessions) Rules, 2009 should be amended
to ensure that confessions made out of court are not admissible as evidence in a criminal
proceeding. Although the legal notice provides the accused persons with several rights and
privileges in relation to such confessions, the law enforcement officers can disregard those
entitlements and procure false confessions to convict an individual wrongfully.
All wrongfully convicted persons should be compensated upon release. Wrongful convictions
deprive the victims the opportunity to establish themselves financially. Further, they also affect
the career or professional development of a person. Therefore, upon exoneration, the individuals
face the worst nightmares of restarting their lives. Most of the victims will have no savings,
housing, and healthcare policies. Further, the criminal record reduces their chances of securing
employment in the formal sectors. On this account, the Kenyan criminal justice system should
create a compensation scheme to provide exonerated convicts with monetary benefits that can
kickstart their livelihood. This promotes easy re-entry and reduces instances of recidivism.
Nonetheless, the creation of the compensation scheme for exonerated persons will require the
enactment of a law to guide the processes incidental to it.
The Kenyan government should construct and equip a Police Forensic Laboratory. Since
independence, Kenya has never established a forensic laboratory that can help the law
enforcement officers in proper prosecution of DNA related cases. Consequently, such cases are
prosecuted poorly due to the lack of the necessary facilities to aid the investigations. The police
only rely on the services of the Government Chemist that is overstretched, underfunded, and
P a g e | 55
understaffed163. Therefore, the construction of a national forensic laboratory will be a
revolutionary paradigm in the investigation of gender-based cases and homicides among others.
Future researchers should endeavors to explore the progress that the Kenyan criminal justice
system has made in addressing wrongful convictions. Further, they can investigate on the
effectiveness of criminal cases review commissions in addressing wrongful convictions. This can
elaborately be done through comparative studies of the countries with review commissions.
163
KENYAPHARMTECH http://kenyapharmtech.com/government-chemist-kenya/
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Bibliography
Constitution
1. The Constitution of Kenya, 2010
List of Statutes
1. The Kenya Law Reform Commission Act, 2013

2. Vetting of Judges and Magistrates Act, 2011
3. The Evidence Act Cap 80 Laws of Kenya
4. Criminal Procedure Code Cap 75 Laws of Kenya
5. Penal Code Cap 63 Laws of Kenya
6. Police Act Cap 84 Laws of Kenya
7. Criminal Law (Amendment) Act No. 5 of 2003
8. Evidence (Out of Court Confession) Rules, 2009
9. The Legal Aid Act OF 2016
10. Persons Deprived of Liberty Act of 2014
International Law Instrument
1. The Vienna Declaration and Programme of Action

2. Universal Declaration of Human Rights (UDHR)
3. United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice
Systems
4. International Covenant on Civil and Political Rights (ICCPR
Cases
1. Charles Bundi Baiburi v Republic (2009)

2. R v Andrews (2008)
3. Peter Manson Okeyo v Republic (2013)
4. Karanja Wainaina v Republic (2004)
5. Felix Kinyanya Marako v Republic (2014)
6. Peter Kimaru Maina v Republic (2014)
7. Dominic Mbithi Mutinda v Republic (2012)
8. David Kariuki Thambara v Republic (2014)
9. Moses Gitonga Kimani v Republic (2009)
10. Pett v Greyhound Racing Association (1968)
P a g e | 57
11. Swami v King Emperor (1939)

12. Elly Opande Nyasaka v Republic (2017)
13. Ludindi Venant and Another v Pandya Memorial Hospital [1998]
14. Francis James Ndegwa v Tetu Dairy Co-operative Society Ltd [2016]
15. Samuel Chege Gitau & 283 Others v Attorney General [2016]
16. Gerald Juma Gichohi & 9 others v Attorney General [2015]
17. Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others
[2014]
18. Lewis Wilkinson Kimani Waiyaki v Hon. Attorney General [2016]
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2. Criminal Cases Review Commission: http://ccrc.wpengine.com/wp-
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5. Medill Northwestern University Justice Project
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6. Kenya: Four Appeal Judges Sacked http://allafrica.com/stories/201204261253.html
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L8OoDzv9vWut5rfeNzoA
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15, 2017
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2017
13. http://www.ccrc.gov.uk/making-application/after-i-apply/
14. http://www.ccrc.gov.uk/about-us/
15. http://www.ccrc.gov.uk/about-us/senior-management-team/
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aid-new-hope-or-false-dawn_c1357206
17. Medill Northwestern University Justice Project
http://www.medilljusticeproject.org/wrongful-convictions/
18. KENYAPHARMTECH http://kenyapharmtech.com/government-chemist-kenya/
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miscarriages of justice. Temple University Press, 2010 Pg. 2.
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erroneous convictions: A social science approach to miscarriages of justice." (2013) Pg. 3
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128.4 (2015): pg. 1065-1067

4. Maina, Henry O. "Constituticide”: Enacting Media Laws That May Undo Constitutional
Gains in Kenya." Kenya's Media Landscape: A Success Story with Serious Structural
Challenges. Leipzig: VISTAS Verlag (2015): 28-45.
5. Naughton, Michael. "Wrongful convictions and innocence projects in the UK: Help, hope
and education." Web Journal of Current Legal Issues 3 (2006).

P a g e | 59
6. Risinger, D. Michael. "Innocents convicted: An empirically justified factual wrongful
conviction rate." The Journal of Criminal Law and Criminology (2007): Pgs.761-806
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social science." (2009). Pg. 3-5
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wrongful convictions." Virginia Law Review (2009): 1-97.
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labs." (2011). Pg. 31-44
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Sociological Analysis of Miscarriages of Justice." Criminology and Criminal Justice
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University of Nairobi, 2011 Pg. 15-19
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"Investigating true and false confessions within a novel experimental paradigm."
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Justice Policy Review 17.3 (2006): 255-269.
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criminal justice. McGraw-Hill Education (UK), 2007.

26. Brett, Annabel S. Liberty, right and nature: individual rights in later scholastic thought.
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27. Master, Howard S. "Revisiting the takings-based argument for compensating the
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30. Huff, C. Ronald. "10 Wrongful convictions." The Psychology of Crime, Policing and
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31. Speechley, Naomi-Ellen. "Book review: The Innocent and the Criminal Justice System: A
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32. Banks, Cyndi. Criminal justice ethics: Theory and practice. Sage Publications, 2016 Pg.
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A Case For The Establishment of A Criminal Cases Review Commission (CCRC) in Kenya To Investigate Wrongful Convictions

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Page |1

A CASE FOR THE ESTABLISHMENT OF A CRIMINAL CASES REVIEW

COMMISSION (CCRC) IN KENYA TO INVESTIGATE WRONGFUL CONVICTIONS

A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS FOR THE AWARD OF BACHELOR OF LAWS DEGREE (LL.B) IN

THE UNIVERSITY OF NAIROBI

MUENDO FESTUS MUTETI.

REG NO: G34/3171/2013

SUPERVISOR: EVERLINE ASAALA

Statement of the Problem...........................................................................................................11

Justification of the Study............................................................................................................11

CHAPTER 2: THE HUMAN RIGHTS ASPECTS OF WRONGFUL CONVICTIONS.............20

Wrongful Convictions and the Right to Access Justice.............................................................22

Wrongful Convictions and the Right to Liberty.........................................................................25

Wrongful Convictions and the Right to Human Dignity...........................................................28

CHAPTER 3: WRONGFUL CONVICTIONS IN KENYA..........................................................33

Major Causes of wrongful convictions in Kenya.......................................................................36

Victim and Eyewitness Misidentification...............................................................................37

Improper Forensic Evidence..................................................................................................39

Lack of Legal Representation to Accused Persons................................................................41

CHAPTER 4: TOWARDS ESTABLISHING A CCRC IN KENYA.............................................45

Composition of the Kenyan CCRC............................................................................................48

The Role of the CCRC in Kenya...............................................................................................49

CHAPTER 5: FINDINGS AND RECOMMENDATIONS...........................................................52

college, institution or university other than the University of Nairobi

MUENDO FESTUS MUTETI

has manifested this through me.

Mom and Dad

virtues of hardwork, tenacity, assertiveness, respect and honesty.

Dominic Muthama Mutisya and Mulani Mbiki

contributions; whatever the nature.

CCRC- Criminal Cases Review Commission

COK 2010- Constitution of Kenya 2010

UDHR- Universal Declaration of Human Rights

CCRG- Criminal Convictions Review Group

TJRC- Truth, Justice and Reconciliation Commission

LFC- Law Reform Commission

DNA- Deoxyribonucleic Acid

UNHCHR- United Nations High Commissioner for Human Rights

ICCPR- International Covenant on Civil and Political Rights

CEO- Chief Executive Commissioner

MJP- Medill Justice Project

A wrongful conviction or a miscarriage of justice refers to criminal conviction of a person who is

Australia, and Canada.

that have led to wrongful convictions.

institution that is capable of establishing the number of wrongful convictions in any

jurisdiction18. However, he further claims that with sufficient resources, an individual or an

Commission will be a major milestone towards the implementation of Article 48 of the

1.1 Statement of the Problem

necessity of establishing an independent Criminal Cases Review Commission in Kenya.

1.3 Justification of the Study

establishment of a criminal cases review commission in Kenya would be a major milestone in

addressing and averting incidences of wrongful convictions. Primarily, wrongful convictions

review commission in Kenya.

1.4 Statement of Objectives

The objectives of the research are;

1) To determine whether the establishment of the commission is of absolute necessity in

Criminal Cases Review Commission.

composition of the commission

would introduce in our criminal justice system

1.5 Research Questions

The research will endeavor to answer the following questions;

would introduce into our criminal justice system