The country’s criminal justice system leaves a lot to be desired. In yesterday's edition, we reported how convicts are studying law to save themselves and fellow inmates from the shackles of injustice.
On Friday last week, 16 convicts, current and former, graduated with a Bachelor's degree after completing their Bachelor of Law undergraduate course. This is a partnership project of the African Prisons Project with the University of London.
This comes amid a task force's findings that Kenya’s criminal justice system favours the rich but is skewed to condemn the poor. Its findings echo another audit report on Kenya’s Criminal Justice conducted in 2015. The National Council on Administration of Justice (NCAJ) team, led by Chief Justice David Maraga, took 18 months to compile the report.
The taskforce reported that those condemned to die do not work. They wake up each morning, idle the whole day and retreat to their cells, while counting down the hours to their natural death.
This is because Kenya has never carried out an execution since 1987, when Hezekiah Ochuka and Pancras Oteyo were hanged for treason.
The task force reported that Kenya spends Sh4.6 billion each year to feed, clothe and treat these death row convicts. Each convict costs about Sh240 daily, an equivalent of Sh87,600 annually.
There are 4,819 convicts on the death row across the country. The taxpayer incurs Sh422 million each year to enable the Kenya Prisons Services cater for these convicts as they await their fate.
The task force report indicates that Kenya would thus save some Sh613 million each year if, for instance, some 7,000 convicts are released on parole.
“By placing these rehabilitated offenders in the community through parole, the correctional system and the taxpayer will be relieved of a significant burden,” the report said in part.
According to the report, these savings can be redirected to support the released convicts to become productive members of the society.
DEATH SENTENCE
Kenya has had the provision of death sentence as capital punishment since Independence. This trait was borrowed from the British system.
Initially, punishment by death in pre-colonial Kenya was uncommon before hanging was introduced in 1893. It was believed that those who were sent to the gallows were too dangerous to coexist with fellow humans.
The penal code, as created by the British, required a mandatory death penalty for murder, treason and armed robbery. Kenya borrowed the same and added gang robbery and FGM that results in death to the list of the offences that qualify for the death penalty.
Lawyer Shadrack Wambui said trials should be in a language that all parties understand. He said this will help the accused persons understand what they have been charged for and their chances of coming up with a strong bargaining plea.
“If there is any jargon used and either party feels left out, it should be raised on the spot through an intermediary,” he said. "Courts must always be partial. It is wrong to convict anyone because of their status without equal opportunity to submit their plea.”
Wambui said if by any chance there is such an instance, the convict needs to be acquitted through mistrial. "During the trial journey, all parties must be prepared and read from the same page. If anyone is sentenced with insufficient evidence and an independent finding established, the only option is acquittal,” he said.
The lawyer said the major setback to prisoners has been the Kenya Prisons Service Act of 1959. It does not hold water in the modern society, he said.
“It was crafted at a time when prisons were regarded as punishment centres. We have changed that narrative to now rehabilitation facilities, where these prisoners are entitled to certain privileges, but unfortunately there exist so many loopholes,” Wambui said.
He said currently, those on the death row or serving life sentence are not entitled to remission.
“We need to come to appoint where these prisoners are granted all other rights except that of freedom. They have families, they should be allowed to visit. If they lost a father or a son, let them go bury, let them even be allowed to procreate,” he said.
LETDOWN BY JUDICIAL OFFICIALS
Wambui said in many instances, suspects end up being convicted for an offence they did not commit. He said magistrates and judges presiding over these cases have become somehow biased, with self-interests.
“By virtue of being a country, we are related in one way or the other. Imagine if you are accused of having robbed or raped someone related to the judge or magistrate. It is automatic that you will be slapped with the highest penalty on the land, whether you are innocent or not, and the only option is death," he said.
Wambui said competition in the judiciary is so rife that most officers cannot excuse themselves in cases they know they have interests in because at the end of the day, they need to be seen to be working.
This claim was, however, strongly denied by the judiciary. A senior officer who sought anonymity said judges and magistrates can never be biased. He said a case is determined based on evidence provided before the court.
“We have heard such claims of bias, but in the criminal justice system, there must be a loser and a winner. It is not like the mediation process, which is pegged on the win-win situation,” the officer said.
The source further said most lawyers who lose cases are juniors, who are yet to understand how the criminal justice system works. “If they lose, the presiding judge will always give room for the accused person to appeal," he said.
His views were shared by Jacob Ondari, the Deputy Director, Head of Offences Against the Person Department at the Office of the Director of Public Prosecutions. Ondari said the judicial system can never condone anyone deemed biased.
Ondari said the Kenyan criminal justice system is credible, with constitutional safeguards to ensure the innocent are not jailed.
“Where one protests his or her innocence after conviction, there is a clear, robust appellate system in Kenya,” he said.
The second blame goes to the lawyers. Wambui said a large percentage of suspects suffer because of laziness by their legal representation.
Many of the lawyers commit silly mistakes during the trial period, and the end of it is a costly judgement.
“Imagine a lawyer not doing enough research about his or her case. Others come late in court sessions, and some still fail to show up,” he said.
Prosecution lawyers, he said, take advantage and pin suspects with terminologies they do not understand.
To make matters worse, some lawyers do not serve their clients with prosecution statements, or if any, will present volumes of documents and ask them to photocopy.
“It is, therefore, a good thing for such projects to be introduced to allow inmates to learn matters of the law,” Wambui said. "The calling of humanity is to see problems and respond to them. These inmates will be better placed to defend themselves and respond to some of the fundamental rights neglected for so long."
He said initiatives such as the African Prisons Project's are a win-win for criminal justice as they enlarge the legal profession.
However, he said just being a lawyer will not help. The inmates should be facilitated to attend classes at the Kenya School of Law for them to legally practise in the country.
WAY FORWARD
So as to tame the rising cases of people being wrongfully convicted, inmates said more convicts serving life imprisonment should be encouraged to undertake the law classes. This, they said, will play a key role and provide a maximum opportunity to explore and review the current Kenya Prisons Act.
Graduates of the course said the state should look at the cadre of lawyers accorded to those who cannot afford one. Since many lawyers have rent to pay and bills to take care of, they have a tendency to neglect suspects who cannot meet their standards, despite the state taking care of them.
There appears to be a low rate in the prosecution of more serious offences. This could be due to arrests occurring without sufficient cause, or because of withdrawals of complaints, or because of unwillingness to prosecute difficult cases, the Maraga-led task force reported.
In the chapter on the magistrate’s courts, a relatively low rate of convictions for serious offences is observed. The police and the Office of the Director of Public Prosecutions are called on to work in harmony to ensure proper prosecution of cases.
"The ODPP and the police should find a strategy of weaning out the police prosecutors without compromising the quality of prosecution, which happens when inexperienced prosecuting State Counsels handle prosecution," the task force recommended.
Maraga's team said the prosecution should collaborate with the Kenya School of Law to provide specialised training on prosecution to address the capacity gaps in the department.
The team said the widely differing trends in the courts suggest allocation of resources, in terms of magistrates and other infrastructure, do not match demand in the relevant courts.
"This requires further investigation to establish whether this is the case or whether other reasons underpin these trends. If resources are not the problem, magistrates should be held to account for poor time-keeping in their courts," the report quoted.
Finally, the true business of the courts in appropriately addressing crime requires attention.
The report indicated that the data collected suggested that the true crime concerns of communities in Kenya may be receiving less attention than is ideal, and that court time is taken up with state regulation.
The high overturn rate on appeal in relation in particular to sexual offence cases is flagged. "Does this point to inadequate justice in the lower courts? Are deserving cases not adequately supported by evidence? Or is there a tendency to prosecute cases that do not have merit?" the task force asked.
Depending on the outcome of such further research, the task force said interventions may be designed to enhance the situation.
The Maraga team said possible interventions include a review of the police curriculum and better training of police investigators to raise the quality of evidence before the courts.
