Organisation Internationale de Droit du Développement

Rights & Rules on Kenya's Roads

“Having a new Constitution is all very fine,” one guest at an IDLO event memorably said, “but fixing Nairobi’s traffic may be more important.”

Juxtaposing the two may seem incongruous. Look closer, however, and the incongruity vanishes: these are ‘macro’ and ‘micro’ terms of the same rule-of-law proposition.

Just as Kenya’s inadequate Constitutional provisions, pre-2010, made the country prone to stagnation and conflict, its chaotic traffic and arbitrary law enforcement equal paralysis, abuse and loss of life. Road casualties – half of all surgery admissions – clog Kenya’s creaking hospital system. The government estimates that in Nairobi, which concentrates the country’s economic activity, traffic jams cost more than half a million dollars a day in lost productivity. Against this background, traffic police have a reputation for exacting bribes and a documented record of brutality. Offenders are routinely detained and thrown in holding cells until they line the right pockets.

To the extent that it impacts public safety, citizen’s rights and access to justice, Kenya’s traffic conditions and traffic policing have clear constitutional implications. As part of its continued work to help implement the 2010 Constitution, IDLO has supported a cross-institutional effort to draft new regulations on the handling of traffic offenses by police and the courts. The regulations, jointly approved last month by long-standing IDLO partner, Chief Justice Willy Mutunga and Inspector-General of Police Joseph Boinnet, stipulate that no one be imprisoned for offenses that would attract a fine or a maximum 6-month jail term; that cases be processed swiftly and bail readily granted; and that any bail cash collected by police be made available in court.

Chief Justice Mutunga went on to issue a circular mandating that the payment of traffic fines be done in open court. He also urged Kenyans to report any magistrates who violate the new regulations. Observers of Kenyan affairs have described the development as potentially transformative – an example of a rule-of-law approach that could dramatically improve public perceptions of justice and legality.