NTURIBI & OCHIENG: Wheels of justice turn slowly for the poor

If you lose your job or shut your business today and fall into the low cadre of Kenyan society, you are likely to experience police harassment, oppressive laws and unfair court rulings, a reality that is the everyday lives of Kenya’s poor

In Kenya, the criminal justice system is a major driver of poverty because it mainly focuses on punishing the marginalised and the economically disadvantaged and letting off the rich and the elite.

The justice system is skewed in that sentencing is based on an individual’s socioeconomic status. Unfortunately, those who cannot afford legal representation in most cases end up receiving harsher sentences compared to those with financial muscle. 

Across the 47 counties and in major towns, by-laws exist that have the effect of making the poorest and most marginalised in society criminally responsible for their status. The by-laws make it a criminal offence to perform life-sustaining activities in public spaces.

These include hawking, loitering and touting for passengers. Most of these people are at the base of the pyramid, where more than 30 per cent are unable to meet their food needs. They cannot afford to pay court fines or pay for legal representation and as a result, they end up being held in pretrial detention for extended periods overcrowding prisons.

A report by the International Commission of Jurists -Kenya published in 2018 titled 'Poverty is not a crime' shows that most of the people imprisoned for petty crimes come from poor backgrounds and are between 18 and 35 years old.

The report adds that 70 per cent of the cases handled by the judiciary are offences related to petty crimes such as drunkenness and rioting, demonstrating and loitering.

The maxim of equity, which is one of the sources of law in Kenya as per Section 3 of the Judicature Act, provides that, “equity is equality”. Ironically, our justice system functions implicitly on the maxim that stipulates, ‘equity aids the vigilant and not those who slumber on their rights.’

This brings out and acknowledges the fact that poverty and justice cannot be served on the same plate. In our system, unsurprisingly, the ordinary mwananchi is unable to access legal representation because they cannot afford to hire private lawyers. This results in inadequate defence and unfair legal proceedings, which may further disproportionately affect the poor.

Access to quality legal representation should not be a preserve of the rich and the mighty but a right enshrined in the Constitution, the supreme law, as well as international treaties ratified by Kenya, to be enjoyed by everybody.

The Constitution under Article 48 provides for access to justice for all persons read together with Article 50 (c), which expressly provides that every accused person has the right to a fair hearing, including having adequate facilities to prepare a defence.

Further, Article 52 provides that an accused person be assigned an advocate at the expense of the state, which is not the case in our justice system.

In addition, the Legal Aid Act, under Section 3, provides that its objective is to establish a legal aid and institutional framework to promote access to justice by providing affordable, accessible, sustainable, credible, and accountable legal aid services to indigent persons in Kenya in accordance with the Constitution.

Despite all these provisions, access to justice needs continues to be a dream for the poor when faced with serious legal challenges that end up being adjudicated by our justice system in courts of law. In simple words, our justice system criminalises the poor, not the offence omitted or committed.

The state should consider establishing the Office of the Director of Public Defences and its subsequent Act to give the director powers to, primarily, defend the underprivileged and the poor during court proceedings against unfair and arbitrary arrest.

This will ensure that the right to a fair hearing under Article 50 will not only be done but also be seen to have been done. In addition, this will help to curb future injustices that will continue to be prejudicial not only to the poor but also to the justice system.

The courts should expedite the delivery of justice and use alternative sentencing mechanisms to settle disputes other than custodial sentences.

The community service order needs to be fully implemented and petty offenders should be given non-custodial convictions. If nothing is done to reverse this trend, then going by the lyrics of the late Lucky Dube, “The poor man will continue to feel the pain all the time”.

Kithinji Nturibi is a law student at Mount Kenya University and Oscar Ochieng is a communication practitioner