When a judge admits that too many people are jailed over charges they could have easily beaten had they known any better, there is reason to worry.
That justice eludes many merely because they think any other course of action could be inconveniencing or even counter-productive is a sad fact of life in Kenya. That many others suffer due to ignorance of the law and their rights is beyond doubt.
So High Court judge David Majanja, a jurist of long experience, wants convicts to be empowered to challenge decisions that go against them in court, especially if they know they are innocent. In so doing, Mr Justice Majanja is only affirming that judges and magistrates are not only fallible, the law itself can be a total ass in certain situations.
Why do suspects fail to fight for their own liberty? One of the reasons is that they admit to charges to avoid spending too much time in police cells.
People who have spent more than a day in those precincts know exactly what it means to be remanded in police custody.
If you are not taken to court the following day, by the time it happens, you already look guilty of something. You are unkempt and dishevelled, stink to high heaven, and have probably contracted pneumonia or worse since they do not offer you beds in those places. And since magistrates are only human, the chances of them reaching the wrong verdict on your appearance alone are pretty high.
The second thing is that some people prefer to take short-cuts. To them, it is easier to bribe a traffic policeman to overlook a minor infraction than to explain in court why you were driving a car without tail-lights. This is more common than people admit, even to themselves. Court appearances are not the most enjoyable of experiences because even if you win the case, you will have lost face amongst your peers.
But suppose you cannot pay the bribe and you believe admitting an offence with alacrity will touch the magistrate’s heart. What you may not realise is that these people only operate within the law and the penalties to be meted out are prescribed by the law. An empathetic response to your predicament is not part of their mandate, and once you admit an offence, they have no choice but to jail you or fine you. Who can really blame them when they apply the law according to the book?
These are probably some of the reasons that the International Commission of Jurists this week organised a paralegal training course for the inmates of Homa Bay Prison during which the High Court judge expressed those troubling sentiments.
If such a course or workshop can be organised regularly for all the major prisons, then perhaps miscarriages of justice can be minimised, and the number of innocent people suffering in jail be reduced.
The other option is to speed up the hearing of cases, especially misdemeanours, so that people are not too eager to admit offences for which there may not be enough evidence.
Giving prosecutors an easy time is not the job of an accused person. It is the job of prosecutors to do their home-work diligently, get iron-clad evidence, and push for the dispensation of justice. To paraphrase a rather hackneyed expression, it is better to let five guilty people go free than to jail an innocent person whose only crime is ignorance.
The news in the run-up to the presidential election in Uganda was not at all encouraging. That a presidential contestant can be arrested in broad daylight on the actual day of voting must mean the outcome had already been pre-determined and there never was any likelihood that Dr Kizza Besigye would rule Uganda any time soon.
We have had our problems here in Kenya, but even when we turned into bloodthirsty hordes and started butchering one another, no presidential candidate was ever “escorted home” by police in such fashion.
Whatever Dr Besigye is supposed to have done, it would have been better to allow the election to go on without such blatant melodrama. Talk about maintaining law and order is not enough; we have heard that one before from our own home-grown dictators.
The issue is about striving to ensure that an election victory gains some legitimacy, however spurious.