Scene of accident at Matharu along the Eldoret- Nakuru highway. There is an ongoing road safety campaign staged jointly by the National Transport and Safety Authority, the National Police Service/traffic department and the Nairobi county to enforce compliance on use of footbridges by pedestrians crossing main highways.
We may all agree that it’s an eyesore witnessing rational pedestrians playing hide-and-seek games with fast moving vehicles on most of our busy roads.
Whereas in some instances it’s understandable where there is no available infrastructure for use by pedestrians to cross highways, it’s nonetheless incomprehensible when you see adults - some with luggage and kids in tow - ignore well availed footbridges to aid their road crossings.
Outcome of such acts of irresponsibility and recklessness is obvious: recorded road accident statistics. And the more fatalities or injuries recorded from such incidents is not just an issue of personal health or life, but equally one of collective national security.
This thus explains as to why such compliance enforcement is laudable, if not timely.
But the process of achieving this noble objective matters. Whereas the campaign has largely been evident through social media posts showing a law enforcement crackdown, traffic police officers have been lying in wait to nab offenders and take them into custody for eventual arraignment.
On the flip side, social media has also shown a different approach to enforcing the same road safety standards.
The objective is the same - promoting common-sense compliance - but the process of achieving it is entirely different.
In the latter scenario, a senior county official, in civilian attire, confronts a lady offender who crossed a busy highway at unauthorised point. He made an ‘arrest’ and promptly pronounced punishment: collect litter and you’ll be free!
This action markedly differs from the earlier noted approach by uniformed police officers. Whereas the officers arrested and took offenders into physical custody, the county official pronounced on-the-spot punishment! I will want to believe that the police either warned and released offenders they had arrested, or handed them over to ODPP, who in turn took the accusations to court for onwards processing as per the law. But the latter episode was the exact opposite of legal expectation.
That’show criminal justice works, and should in the minimum, especially in a democracy, where guilt is only adjudged before not only a competent court of law, but also one with legal jurisdiction. Irrespective of how one may feel about any offending, you can’t simply play cop, prosecutor and judge all morphed into one authority.
That’s too much unilateral and raw power concentrated in one centre, yet should be dispersed across other competent institutions; those that are independent from each other, though cooperative. That’s the rule of checks and balances ensconced within a democratic system that Kenya is.
This brings us to the second issue of models of criminal justice. Basically we have two competing frameworks, though cooperative: crime control versus due process. Whereas the objective of state through institutions is to hold citizens accountable over their infractions against the law, hence be punished accordingly based on the crime control model, such objective must be balanced by a due process regime - one where offenders are heard, and processed fairly. This is the role and import of the criminal justice value chain.
At the core of this value chain is presumption of innocence till proven guilty. And when guilt is adjudged positively, it’s through a visible, fair and just process; one with right of representation. It’s tedious, yes, even slow and frustrating oftentimes, but it’s necessary nonetheless since it’s the price citizens pay to nurture constitutionalism, democracy, and the rule of law.
Finally, balancing these two frameworks shines a spotlight on real challenges that law enforcement ordinarily encounter as they endeavour to serve and protect the realm and citizenry. You have a job to do, and supported by the law as the basis, but then have to tackle due process obstacles along the way of the value chain to achieve the objective of crime control.
This is the due process ‘curse’ dreaded by all those in law enforcement who are mandated to manage crimes, which underscores the rights of those suspected and accused of wrongdoing.
Yet that’s what criminal justice through due process is all about - a safeguard against law enforcement overreach. It’s analogous to the brakes on a vehicle: to moderate the driver’s recklessness. It’s a cautionary measure that helps ensure safety of lives aboard the motor vehicle, and that of others on our roads through compliant and responsible driving.
The writer is the director-general of Kenya Coast Guard Service
