Do not jail petty offenders and let notorious looters walk free

Pardoned petty offenders released after a presidential decree leave the Nakuru GK Prison on October 22, 2016. PHOTO | SULEIMAN MBATIAH | NATION MEDIA GROUP

What you need to know:

  • If you have the money to keep yourself from the clutches of the law, then you can get away with any crime, except perhaps murder.

  • Justice is all about fairness and one can hardly agree that the cause of fairness is served if fellows at the beleaguered NTSA throw the book at you to cover up their incompetence.

I spent the better part of the New Year trying to spring a relative from jail. The guy had been thrown into the slammer over alleged obstruction after trying to move a public service vehicle from one parking lot to another at a time that National Transport and Safety Authority officials were lurking around.

Eventually, a few family members succeeded in arranging the poor guy’s freedom, but not without a little drama of a suddenly missing file and open greed.

However, that is not a very big deal. Hundreds of petty offenders are jailed practically every day and nobody raises any issue.

What was most interesting was the reason the guy gave for admitting the charges even when some wisdom would have warned him not to.

He didn’t have the Sh33,000 fine the magistrate imposed on him, but then again very few touts walk around with that kind of loose change in their pockets.

REMANDED

Even more interesting was the reason he gave for preferring jail to spending even one day in remand, where, of course, he was headed directly should he fail to pay the fine.

Though he did not elaborate on the matter, it appears that over-crowding in the cells, bad food, inability to tell when the case might come up for hearing because of a crowded court calendar, and the enforced socialising with hardcore criminals — all these had a bearing on his decision to go to jail for seven months rather than being remanded.

However, none of this would have been necessary had the magistrate been allowed to use his or her discretion to impose reasonable bail terms instead of mandatory sentences that do not reflect the magnitude of the offence.

This particular verdict seems to have been close to the classic case of a chicken thief being jailed for half a year while a person who steals billions walks free on a technicality after years of litigation.

It happens too often in this country, and no attempts at judicial reforms seem to make any difference.

JUSTICE

The event cited above also made me realise another fact — that justice in this country is not for the poor. Indeed, the sage who said that poverty is in itself a crime got it right.

If you have the money to keep yourself from the clutches of the law, then you can get away with any crime, except perhaps murder. If you don’t have any, you can even be sentenced to death for a crime you never committed.

I am sure there are many undocumented instances of this travesty of justice, but when you are a magistrate, and someone who looks like a habitual criminal is brought to your court and readily admits everything in the charge sheet, your options are very limited.

Something should be done to make the punishment fit the crime. Justice is all about fairness and one can hardly agree that the cause of fairness is served if fellows at the beleaguered NTSA throw the book at you to cover up their incompetence.

PRISON REFORMS

Also, we keep hearing nice things about prison reforms, and we are always told that one of the main objectives of those reforms is to decongest prisons.

But is jailing people over petty offences the way to go? Indeed, any attempt at real prison reform seems to have ended the day former Vice-President Moody Awori called it a day in politics.

This, by the way, is not an attempt to condone crime. The mark of civilisation is to ensure that everyone operates under the rule of law, for without it, there would be utter chaos.

However, prison reform is necessary for when many of these folks are locked up over misdemeanours, they do not cease to be human beings.

HONESTY

One way out, and the idea is gaining momentum with each passing day, is for able lawyers to be paid by the State or to do pro bono work representing those who cannot afford their own lawyers. However, even this hope is far-fetched because you won’t get many of those honest people willing to serve their fellow citizens for minimal or no fees. Lawyers, too, have to eat.

What is clear is that as long as the real criminals keep stealing our tax-money and nothing happens to them because they have the wherewithal to stall court processes for eternity, there will never be real justice in this country.

 Magesha Ngwiri is a consultant editor. [email protected]