Relief for drivers as good conduct rule thrown out

Drivers who want to operate public service vehicles have been exempted from the mandatory requirement of acquiring a certificate of good conduct from the police.

A transport tribunal yesterday ruled that there is no legal basis to subject matatu and taxi operators the conditionality of the police clearance certificate for them to acquire Public Service Vehicles (PSV) driving licenses or any other form of license issued by the National Transport and Safety Authority (NTSA).

The Transport Licensing Appeals Board (TLAB), a tribunal under the Judiciary that hears and determines appeals against the licensing decisions of the NTSA, has made the ruling following numerous cases they received from the members of the public.

As a result, former convicts and other Kenyans who have not acquired the licenses due to lack of police clearance certificate will be issued with the licenses upon successful application.

Legal basis

TLAB Chief Executive Andrew Kimani, who is also a security expert, said the decision would go a long way in dealing with recidivism, adding that the conditions set before amounted to double jeopardy.

The decision was communicated to the relevant institutions including the Matatu Owners Association on November 9.

“The Tribunal recently made a ruling as per the cases filed and declared that there is no legal basis to subject matatu operators to a conditionality of the police clearance certificate for them to acquire PSV licences (badge) or any other form of licence issued by NTSA,” Kimani wrote.

“We are therefore requesting you to pass the information to Matatu County chairmen and members and advise them to contact the Tribunal when they are affected or aggrieved,” he added.

Kimani said the ruling would ensure that the youth get the licences to enable them secure employment in the matatu sector.

In July, the Tribunal wrote to the then Director of Criminal Investigations George Kinoti seeking clarity and his opinion on the certificate as a requirement.

The Tribunal sought to know how long it took to clear a person who had been jailed and completed his sentence, how long it takes to expunge the fingerprints from the DCI Criminal Register, and records of a minor committed to a Borstal institution are permanent or cleared after a certain period.

Criminal record

The Tribunal also sought to know whether fingerprints earlier taken are expunged from the records where a suspect has been freed by a court of law by being found not guilty or turned a State witness.

Following the response by the DCI, the Tribunal made the ruling and scrapped the police clearance certificate as one of the requirements.

In a letter dated July 18, 2022, the DCI said the enabling provisions of law have not provided avenues and mechanisms for the disposal of these records.

“The same continues to be stored in our databases. However, as a result of numerous concerns, the Principal Criminal Registrar is engaging the Attorney General for police direction,” the DCI said.

The DCI added that they issue every applicant with the Police Clearance Certificate whether they have a criminal record or not. However, the remarks on the certificate will vary depending on whether or not the applicant has a criminal record.

“Police Clearance Certificate is issued either bearing information in the remarks in case of previous criminal record which provides the offence’s result, if available. If the applicant has not been previously convicted of offences, the police clearance should read ‘NIL’,” the DCI said.

He added that if the case is still pending before court or the results of the court case have not been submitted, it will be indicated as “Outstanding”.

In related news, offenders who will be pardoned through presidential mercy will be allowed to get police clearance if a new draft bill is approved.

The bill (Power of Mercy Amendment Bill) 2022, which is in its final stages of validation before it is forwarded to Cabinet for approval, proposes to have criminal records for offenders who are pardoned expunged or sealed.

The Power of Mercy is anchored in Article 133 of the 2010 Constitution where the President, in petition of any person, may in accordance with the advice of the Power of Mercy Advisory Committee, pardon convicted offenders.

The President may grant a free or conditional pardon to a person convicted of an offence, postpone the punishment, or substitute with a less severe form of punishment.

The committee’s joint secretary Stephen Gitau, in an earlier interview, said there has been a view that a person who has reformed and qualified for pardon by the President should be able enjoy their privacy by sealing or expunging their criminal records. “If it is a free pardon, the criminal records may be expunged while if it is a conditional pardon, then the records can be sealed such that if the person can get clearance certificate just like anybody else and they can secure gainful employment,” Gitau said.

“These are the views of the stakeholders whom we have involved in the processes during the public participation processes we have carried out countrywide,” he added.

Parole board

The records to be expunged or sealed according to the draft bill include all police records of complaint, investigation, detention, arrest and conviction, all prison records of the offender’s remand and custodial sentence, and all judicial records of trial proceedings.

The draft further proposes creation of a national parole board, and mental health review board for offenders with mental health issues.

Those who will be able to qualify for pardon include the vulnerable offenders like expectant mothers, women with children, terminally ill persons and the elderly under special circumstances.

However, a prisoner must have served at least one third of their term or five years for those serving life imprisonment before they can qualify for parole.