In Kenya, the poor are unlikely to get justice in court

Tuesday December 12 2017

The poor rot in detention while their matters are mentioned, repeatedly delayed on small procedural issues or prosecutorial errors and lose their livelihoods while waiting for their date with a judge.

The poor rot in detention while their matters are mentioned, repeatedly delayed on small procedural issues or prosecutorial errors and lose their livelihoods while waiting for their date with a judge. PHOTO | FILE | NATION MEDIA GROUP 

By LARRY MADOWO
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On NTV’s Sidebar show a fortnight ago, the insightful researcher, Wangui Kimari, made a statement that Assistant Police Inspector-General Charles Owino immediately took issue with.

“This is state violence against poor people,” she said of her work with the Mathare Social Justice Project tracking the number of people who were shot dead by police in suspicious circumstances. He dismissed her as starting out in activism and trying to use unnecessarily alarmist language favoured by civil society types.

Never mind that her comment came as a result of back-breaking, lengthy legwork which they put together into a document whose title captured the enormity of the crisis: Who Is Next? “A Participatory Action Research Report Against the Normalisation of Extrajudicial Executions in Mathare,” the subtext said. Normalisation.

SHODDY POLICE INVESTIGATIONS

When it is people from low-income backgrounds that are dying, their lives don’t mean as much in the grand scheme of things. Their deaths often don’t make the news, flags don’t fly at half mast and important politicians don’t show up at their funerals. The same applies to the entire justice system, which is hopelessly stacked against them.

In the past month, I have been to a resident magistrate’s court twice in a matter in which I am the complainant. Thanks to particularly shoddy investigations by the police, I believe, the two men charged with the crime are completely innocent and I am left with no choice but to drop the case. How that came to be is a story for another day.

Spending time seeing the wheels of justice turn has been an education, but not in the way you would expect. For one, it is immediately evident that this system is not set up to be a fair way of resolving disputes, correcting wrongs and punishing criminals.

The rich can afford fancy lawyers with an army of assistants to make sure that a case goes on forever. When all else fails, and sometimes just because they can, they buy judges and their cases go away.

The poor rot in detention while their matters are mentioned, repeatedly delayed on small procedural issues or prosecutorial errors and lose their livelihoods while waiting for their date with a judge. Their pleas are not heard and most don’t even dare speak up in front of the court, lest they say the wrong thing and offend the important people at the front.

CANNOT AFFORD LAWYERS

That a chicken thief is jailed for several years while those who loot billions of shillings get elected to public office should be proof enough that there is a problem. When a poor person takes what is not theirs, it is called theft but when a rich person helps themselves to other people’s money, it is called corruption.

Even the name of the crime is sanitised when it involves those with means. I watched several women dragged before the magistrate and charged with brewing the illicit alcohol, chang’aa, in some of Nairobi’s informal settlements. They didn’t have lawyers and mostly held their heads down as if in shame at being subjected to this embarrassment for trying to fend for their families .

Nimekubali makosa yangu lakini si kwa kupenda kwangu, ni kwa sababu ya shida (I am guilty of the offence but it is because I am out of options),” one of them told the magistrate. She had no prior record, the prosecutor said, and was sentenced to two months in jail or a fine of Sh5,000. The police led her away.

Several groups of people were brought in and charged with public disturbance. One by one they all pleaded guilty and were condemned to a day of public service and released. I later learnt that many of them had been arrested on flimsy grounds but were too poor to bribe their way out. This court charade was a way of making the police feel powerful by detaining them unlawfully for several days then presenting them for this parade.

They had to be gone to create room for more youths who could be nabbed just for existing, beaten, thrown into a cell for a few days and then forced to bribe their way out. The judges, prosecutors, policemen and the witnesses all know it is an unfair system designed to protect the rich but they still willingly take part in it.

COURTS A JOKE

It is easier for a camel to go through the eye of a needle than for a poor person to get justice in Kenya. Whether you are accused of a crime or you are the plaintiff in a case, you need plenty of money and impeccable English to be even considered in today’s Kenya.

I saw low-level matters get thrown out because the prosecutor, or the investigating officer, or the magistrate, did not care enough and it broke my heart.

Without public defenders to represent those who cannot afford lawyers, performance reviews of judicial officers, timelines by which matters must be concluded and innocent projects to revisit matters with incorrect convictions, Kenyan courts will continue being the joke they currently are.

This current broken setup needs to be dismantled and reassembled if it is to serve those who need it most.

Is he right? Send your comments to Larry Madowo at [email protected]