Colonial legacies in criminal law: A comparative study of the Kenyan and Tanzanian jurisprudence

Criminal justice systems in many African countries still reflect colonial era practices by punishing actions now widely considered matters of morality rather than criminal offences. This remains the case in Kenya and Tanzania despite progressive post-colonial constitutions. Laws continue to criminalise matters such as marriage, family obligations, and suicide – an enduring legacy that undermines human rights and social justice. Efforts to address this issue have been undertaken by various actors, with judiciaries contributing through what is known as transformative adjudication. Using the Third World Approach to International Law (TWAIL) as a theoretical framework, this chapter situates the analysis within the broader discourse on decolonisation and legal reform. Through a desktop study of both primary and secondary sources, this research examines judicial responses to colonial legal legacies in Kenya and Tanzania. Specifically, the chapter explores how courts in these countries have interpreted and challenged colonial-era legal frameworks, focusing on contemporary rulings that address human rights and social justice concerns. The chapter concludes with a recommendation, drawing on insights from other former colonies that have successfully phased out similar colonial remnants as part of their own decolonisation and legal reform processes.