Two former convicts and a civil society group have petitioned court to compel the Directorate of Criminal Investigations to expunge criminal records of petty offenders from police records.
Kinyua Mwaura and Peter Otieno together with Legal Aid Group (Kituo cha Sheria) also want the DCI barred from listing offences committed by an individual on the Police Clearance Certificate.
In the public interest suit filed at the High Court in Milimani, the petitioners argue that the disclosure of criminal records on the Police Clearance Certificate severely limits one’s access to employment, education and civic engagement.
“Even misdemeanours and petty offences that did not result in incarceration are part of a person’s criminal record that appears on the Police Clearance Certificate. This creates a barrier when such persons seek employment,” the petitioners said.
Through lawyer Nelius Njuguna, they argue that even when a person is acquitted from a criminal offence, the National Police Service maintains the record and lists the same in the clearance certificate.
According to them, a criminal record decreases a person’s prospects of employment more than other employment-related stigmas.
The Police Clearance Certificate contains all the offences a person has been charged with and the results of such cases.
All government agencies and a section of private entities when vetting a person for employment demand the applicants to possess, among others, a Police Clearance Certificate.
“The Police Clearance Certificate is also required by embassies before one can relocate abroad including students applying to further their studies abroad with one such country being New Zealand,” says Ms Njuguna.
She states that if a person is convicted of an offence, the criminal record is retained for 20 years before it is expunged unless the cases involve permanent offences such as robbery with violence, murder, treason, rape and drug related offences.
According to her, maintaining criminal records for 20 years or permanently for permanent offences, has no legal basis and there is no justification for the same.
“Arbitrarily maintaining criminal records for 20 years or permanently for permanent offences is unfair as it does not take into account the different circumstances under which the offences were committed,” she says.
If a person is convicted his/her personal information and details such as measurements, photographs, footprints and casts, palm-prints, fingerprints and other forensic evidence are retained by the National Police Service.
The lawyer wants the court to issue an order directing the Inspector-General of Police, DCI and the Attorney-General to develop a mechanism for expunging and sealing criminal records.
She also wants a declaration that failure by the government to develop a mechanism of expunging criminal records is a violation of the petitioners’ rights to privacy, education, work, right have dignity respect and freedom of movement.
In addition, she wants a declaration that the DCI’s act of disclosure of criminal records and offences on the Police Clearance Certificate and maintaining the records is a violation of the petitioners’ rights.
Mwaura and Otieno worked as driver and conductor, respectively, of public service vehicles and were being licenced by the National Transport and Safety Authority (NTSA).
They were once convicted and sentenced to serve non-custodial sentences of probation and community service for malicious damage to property and stealing three hens, respectively.
Mwaura was convicted in 2012 while Otieno was convicted in 2011. Prior to their conviction, Mwaura and Otieno had clean records.
Upon serving their non-custodial sentences, they made an application to the NTSA to be licenced to be drivers or conductors but their applications were rejected because they lacked a clean Police Clearance Certificate.
The certificates issued to them by the DCI revealed their previous offences.
“The disclosure of their criminal records has as a result affected their ability to work as a driver or conductor of public service vehicles respectively. The denial by the NTSA to licence them due to their criminal records have forced them to intermittently do casual jobs which do not adequately cater for their needs and their family’s needs,” lawyer Njuguna says in the court papers.
She adds that due to lack of employment, Mr Mwaura and Mr Otieno and their children have been condemned to a life of abject poverty.
Consequently, they continue to languish in suffering and be punished for offences they already served sentences for.
“The Petitioners state that the disclosure of criminal records on the Police Clearance Certificate extinguishes their potential to be a productive and vibrant part of society. They are still young and their youth continues to be wasted by them not being afforded the opportunity to work and contribute towards the society,” says Ms Njuguna.
In pushing for the delisting of criminal records, the lawyer argues that a criminal record could follow a person around for a long time and this greatly impacts their chances of employment and many opportunities in life. BY DAILY NATION