Offenders who have served their full sentences and released under the law could have their criminal records expunged from government systems should a proposed Bill be approved by the National Assembly.
The proposed Bill by Embakasi East MP Babu Owino – the Criminal Procedure Code (Amendment) Bill, 2024 – seeks to have the records of offenders expunged from their police clearance certificates such as the Good Conduct Certificate once they have served time for a crime. However, murderers, terrorists, and those who engage in sexual offences such as rape, defilement, sodomy and incest will be exempted from having their records expunged.
It is currently under scrutiny by the National Assembly Justice and Legal Affairs Committee (JLAC).
While appearing before the MP George Murugara-led committee, MP Owino explained that there is currently no express legal provision in Kenyan law providing for expunging of criminal records or clear statutory powers on which the Directorate of Criminal Investigations (DCI) relies to “expunge” criminal records. This, he added, effectively creates a legal gap.
“Numerous Kenyan youth suffer from a predicament whereby they are unable to secure employment due to their previous convictions and “tainted” police clearance certificates. This is especially the case where the conviction was as a result of a misdemeanor or minor offence. Let’s give our youth a second chance by considering enactment of this law,” he said.
The law maker explained, the DCI has no clear statutory discretion to delete such records- given that existing records can only be altered if a conviction is quashed on appeal or revision- hence the need for the Bill which seeks to “provide for legal provisions to address the lacuna in the law relating to expunging of criminal records where police clearance certificates are concerned.”
According to the Bill, an enactment of the law would ensure improved employment opportunities, give the youth second chances for rehabilitation, social integration, and reduced Recidivism – When people can access stable jobs, housing, and community support, they are less likely to reoffend.
“Many employers conduct background checks, and a criminal record can be a major barrier to securing work. Expungement helps reduce this stigma, boosting chances of getting jobs… Not all offences should lead to lifelong consequences. Expungement ensures that minor, outdated, or unjustly recorded offenses do not permanently harm a person’s future,” stated Owino.
The legislator also explained that the legislative proposal was conceived from the court’s decision in the case of Ibrahim Kingori Njoki versus Directorate of Criminal Investigations, the Attorney General & the National Transport Safety Authority (Miscellaneous Petition 05 of 2020) [2023] KEHC 17924 (KLR)
The case involved a Petition by Ibrahim Kingori Njoki, seeking the removal of a 20-year-old conviction, for creating disturbance, from his police clearance certificate by the DCI. The Petitioner sought the same on grounds that the criminal record blocked his employment prospects. He had received a 6-month sentence in 2003 for the said misdemeanor of creating disturbance. The Petitioner further referred to a so-called “20-year rule” after which criminal records should be expunged and thereafter “clean” police clearance certificates issued to applicants.
In response, the respondents (the DCI/AG) relied on Section 55 of the National Police Service Act and argued that records are custodied by the police and only removed where the conviction has been quashed on appeal/ revision, hence the current position. They further stated that the so-called 20-year rule referred to in the Petitioner’s pleadings was discretionary and that they had not elapsed at the time of filing the petition.
“In terms of best practice, the court referred to South Africa as having a workable model for expungement of criminal records that Kenya can adopt. South Africa provides a ready template in terms of time limits tied to the seriousness of the offence, objective eligibility criteria, explicit exclusions or offences such as sexual offences (rape, defilement, sodomy, incest) and an explicit process including applications, certificates and regulations,” Owino submitted.
Committee chairperson Murugara, however, pushed for the refinement of the proposed law to include financial crimes such as money laundering and leadership and integrity offenses such as corruption included as exemptions to the Bill.
Ruaraka MP T.J Kajwang also called for the inclusion of a provision of a grace period of one to two years for rehabilitation after which released offenders can have their criminal records expunged.
“You should also consider adding violence offences such as aggravated assault to those exempt from the expunging of records,” stated Kajwang.
Ol joro Orok MP Michael Muchira submitted, “The proposed amendment makes sense because even our God is a God of a second chance. Once offenders have served their sentence, they are presumed to have changed thus they should not be condemned twice.”
The JLAC committee is now expected to give a recommendation on whether the Bill will be published and subsequently approved or rejected by the House.
