In recent years, Kenya has undergone a transformative shift in its approach to criminal justice, embracing a restorative model that emphasizes alternatives to traditional prosecution. At the forefront of this paradigm shift is the concept of diversion, introduced in 2015 through the National Prosecution Policy (NPP).
Diversion, as defined by this policy, represents a process aimed at resolving criminal cases without resorting to full judicial proceedings, thereby allowing offenders to be addressed by non-judicial bodies.
This article explores the key components of the Diversion Policy in Kenya, highlighting its significance in promoting reconciliation, mediation, and a departure from the conventional retributive criminal justice model.
Diversion as an Alternative to Prosecution
Overview of Diversion
Diversion, within the Kenyan legal framework, encompasses a range of strategies. These include simple cautions, warnings, apologies to victims, payments for damages, referral to structured diversion programs, restorative justice processes, or similar schemes. By opting for diversion, individuals accused of crimes can avoid the negative consequences associated with formal judicial proceedings, such as a criminal conviction and a lasting criminal record.
Constitutional Endorsement
The Kenyan Constitution explicitly endorses alternatives to criminal prosecution, signaling a departure from a purely retributive approach to a restorative justice model. This constitutional shift emphasizes reconciliation, mediation, and traditional dispute resolution mechanisms. The overarching goal is to administer justice without undue regard for procedural technicalities.
National Prosecution Policy (NPP) and Diversion
Alternatives to Trial
The NPP, introduced in 2015, recognizes the importance of speedy disposal of matters within the justice system. It advocates for the exploration of alternatives to prosecutions, including plea negotiation, diversion, and various dispute resolution mechanisms. These alternatives not only enhance access to justice but also contribute to significant resource savings.
Diversion for Children in Conflict with the Law
Diversion is particularly encouraged in cases involving children in conflict with the law. Grounded in the principle of the best interests of the child, diversion aims to rehabilitate young offenders and shield them from the stigmatization and adverse effects of custodial sentences. This approach aligns with international principles advocating for the rights and well-being of children involved in the justice system.
Diversion Policy Framework
Amplifying the NPP
The Diversion Policy serves to amplify the NPP, providing detailed insights into the diversion process outlined in the General Prosecution Guidelines 2015 (GPG). Its primary objective is to demystify diversion, ensuring that Public Prosecutors, stakeholders in the criminal justice system, and the public at large have a comprehensive understanding of the process.
National Standard for Diversion
The policy establishes a national standard for diversion, emphasizing consistency and fairness in its implementation across all cases. It outlines the manner in which prosecutorial decision-making on diversion should occur, stressing the need for full respect for the rights of both suspects and victims.
Exercising Prosecutorial Discretion
The document guides the exercise of prosecutorial discretion in diversion cases, emphasizing a clear, rational, and principled examination of the public interest as the basis for all decisions on diversion. This ensures that decisions are not only legally sound but also align with the broader goals of restorative justice.
Conclusion
Kenya’s adoption of a Diversion Policy reflects a progressive approach to criminal justice, aligning with global trends emphasizing restorative practices. By providing alternatives to traditional prosecution, particularly for vulnerable populations like children, Kenya aims to strike a balance between accountability and rehabilitation.
The Diversion Policy not only serves as a guide for legal practitioners but also reinforces the country’s commitment to a justice system that prioritizes reconciliation and community well-being over punitive measures.
