Prisons are choking with inmates, and most of them were either convicted of petty offences or are pre-trial remandees.
The Office of the DPP has been visiting the correctional facilities to assess cases that can be hastened to ensure faster conclusion. It aims to end unnecessary incarceration and pre-trial remanding of petty offenders because they can't afford bail and bond terms.
Speaking to the Star, secretary of prosecutions at the ODPP Dorcas Oduor said it is not only hastening trials but also finding alternatives to bail and bonds.
Where are the gaps and the problems in the criminal justice system and what are the solutions?
One of the things in our interim report is overuse of remands. After committing an offence and being charged in court, one is given bail or bond. If they cannot afford it, they go to remand.
There is no alternative. In other countries, if it is a petty offence for example, touting or not wearing a belt, if you can't afford bail or bond, you report to the probation department as you go through the trial so you don’t have to go to remand.
But that would depend on other things. For example, your identity and residence are known and there's a way you can be traced, and if you don't go to court, there is a punishment that can be meted out.
In Kenya, if, for example, you are travelling in a matatu and it doesn’t have safety belts, you are arrested. You are charged for not wearing a safety belt. The sentence that should be meted on you if you pleaded guilty is Sh500 fine, but if you pleaded not guilty because you were saying there was no belt in the matatu, you will go to Kamiti or Nairobi area remand.
Therefore, we are asking ourselves, are there alternatives to remand so that for every single case, we don't have to take people to remand? That we only take the serious offenders, who are likely to abscond?
We have also realised that many petty offenders would like to plead guilty but the procedures are not clear.
So we are working on a plea bargain framework so that it is accessible to those people and you can be certain with the sentence. For example, if you know genuinely there was a belt and you did not wear it and if you plead guilty, the sentence will be made community service or a caution. Then people will easily plead guilty than be in criminal records.
We want to use this pre-plea bargaining framework to reduce the number of people that go to court.
The bail and bond terms set by the courts are out of reach for many petty offenders and lead to jailing of pre-trial remandees. What is the ODPP doing about it?
Many remandees are petty offenders. Whether they can afford bail is not the prosecutor’s problem. What the prosecutor ought to have done is to look at the offences they committed.
So as the ODPP, we are reviewing cases of petty offenders in custody because we have realised that we should ask ourselves the purpose of a sentence that is supposed to be rehabilitative and correctional.
Which are the offences classified as petty and what are the costs of keeping offenders in prisons?
Petty offences are diverse. There are offences where you have not committed anything, like preparation to commit a felony.
Most of the young people in Eastlands are arrested for preparing to commit a felony - the police would say that they were preparing to commit a robbery.
In Mombasa, there is an offence called "maeneo". It resembles the preparation to commit felony. Where there is a riot or an outlawed rally, all the youths who can't run are arrested — it is an omnibus offence.
A petty offender can also be a person smoking in public, a tout, a passenger who did not fasten their safety belt, or PSV crew who do not have uniforms.
The punishment meted on these offences is minimal, such that their being in remand does not make sense or is not in the interest of justice.
Somebody who is found touting is given a bail of Sh5,000, which if he cannot afford, he goes in remand and sometimes stays there for a year.
Keeping that person in remand each single day costs Sh240, but if they pleaded guilty at the beginning, their fine is Sh500. Therefore, when you look at the effectiveness of the sentence, it does not make sense.
If there was an alternative, for example, if the fine is Sh500 and you tell somebody or they knew the fine is too low if they plead guilty, they wouldn't have to go to court.
People in remand are there justifiably because they cannot raise bonds or bails, but what is the effectiveness of their being in remand, and how does it affect the criminal justice system? How does it assist the prosecutor and the state?
The ODPP is going to find the effectiveness of the prosecution and punishment for petty offenders. We don't think it is cost-effective to keep them in prison for long and we don't think the sentences being meted out are effective or justified.
People who commit the petty offences are easily ending up in prison, unlike those who commit serious offences. How does the ODPP regard this?
We are concerned because you find that these are young people who cannot afford fines and are in custody because there are no other alternatives in the structures.
The ODPP is looking for the structural gaps in the criminal justice system that are making petty offenders serve prison sentences, yet people charged with serious and complex offences like corruption are neither in remand nor prison.
Most petty offenders are young, don't have money, can't even pay Sh5,000. We think the ODPP can relook at the process and procedures to make them effective and justify the resources being used.
If you can save the government more money by letting people not be in custody or petty offenders not being in prison, that money can assist in another way, and that is why we are going to suggest that the probation department has to be active in the lives of criminals before and after [their experience in the criminal justice system.
Police arrest innocent people in extortion rackets but charge them when they can't bribe their way out. Why does the ODPP okay such charges?
That is what we are addressing now. We are enhancing the capacity of our officers [prosecutors] so that when a policeman brings a case to them, they have to look at the file and evidence, whether it is justifiable. So soon you will be seeing the DPP giving guidelines on what do you need for a file to be admitted to court.
For example, we will be saying before you admit a case for plea taking, you must make sure there is evidence of the accused persons, complainant, arresting officer, and if there's a complainant, expert evidence in the file where necessary.
So police now will be diligent because if those things are not in the file and they are not sufficient, prosecutors are not going to admit.
We have already started. If you go to Makadara, Kibera and Milimani law courts, you will find in the morning that many files are not being admitted because the state counsels have been educated on the need to properly look at the files before they admit the cases to court.
A convict of a traffic offence serving a one-year jail term in Nairobi West Prison because he could not raise Sh5,000 fine suggested an opportunity to pay fines in instalments. Does the ODPP consider this a remedy for congestion in prisons?
I totally agree with him and that is one of the suggestions we will be putting on the table for the justice sector to look at.
If this person had a meaningful job and can find that money within a month or two, it is easier to let him pay because they have agreed they committed an offence.
And you see, when you work and pay that fine, it affects you and maybe it will deter you other than take you to prison for one month.
In fact, there are countries where when you commit traffic offences that are not serous, you work as you pay the fines.
For example, that person, if we compute what he eats in a day, which is Sh240 per day, you could say they work somewhere for five days and we compute it to Sh250 a day, and they do it in a way that it is humane — you don't work from morning to evening because we know they are the sole breadwinner of their family.