Discharged or Acquitted? Colonial Legacies in Post-Colonial Criminal Justice

The setup of coercive and oppressive administrative structures by colonial powers left a lasting impact on post-colonial societies, particularly in the realm of criminal proceedings. These systems prioritized control and domination over indigenous populations. Often at the expense of justice and fairness. Consequently, the remnants of repressive legal structures persist in many post-colonial contexts, contributing to challenges such as unequal access to justice and institutionalized discrimination.

The legacy of colonial rule is evident in the unequal access to legal representation, where marginalized communities continue to face barriers in navigating the criminal justice system. Historical injustices, such as land dispossession and forced labor, significantly contribute to socioeconomic disparities that limit individuals' ability to access quality legal aid. As a result, disadvantaged groups struggle to assert their rights and receive fair treatment within the legal system.

Moreover, the abuse of power and coercive tactics employed by colonial administrations have perpetuated a climate of fear and mistrust within post-colonial communities. Law enforcement agencies continue to deploy oppressive methods that undermine due process and erode public trust in legal institutions. To address these challenges, one ought to confront historical injustices, dismantle discriminatory practices, and promote reforms that prioritize equity, accountability, and respect for human rights, more so within the criminal justice system. Efforts to empower marginalized communities and promote inclusivity are essential for building a more just and equitable society.

A popular perspective when talking about reforms it the police practices and prosecution of petty offences against more serious offence and capital offences. It is agreeable that the police service is more rampant with petty offences. the reasons for these vary widely.

When writing this article, the reference point was Section 87 of the Criminal Procedure Code of Kenya. It provisions are such that, there is a distinct difference in the stages of prosecution. At times, malicious prosecution arises. Reparations are never made especially where the charge was fictitious from the start.

Section 87. Withdrawal from prosecution in trials before subordinate courts

In a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at anytime before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal—

(a) ?if it is made before the accused person is called upon to make his defense, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;

(b) ?if it is made after the accused person is called upon to make his defense, he shall be acquitted.