Inside Kenya’s criminal justice system: Only the tough survive

Brace yourself to encounter the toughness with which colonialists treated Kenyans if you get arrested and detained any time soon, because the country’s justice system has been found to have numerous features that have never changed from the 1900s.

If, by any chance, you are charged in court then remanded, there is a likelihood that you will be detained at a facility that has been in existence for more than a century.

If, for instance, you are detained at the Nairobi Remand and Allocation Prison, you will be inside a building completed in 1911.

If the State remands you at the Shimo La Tewa Men’s Prison in Mombasa County, you will be cooling heels in premises built in 1953 when the country was in a state of emergency.

And if you are remanded at the Isiolo Prison, you will be cooling heels in an enclosure built in 1947, when Kenya was under a governor called Sir Philip Mitchell.

That is not all. In the duration between your arrest and the time you will be out of prison, you will probably have contracted either tuberculosis or scabies or diarrhoea — or all of them — as the diseases have been found to be the most prevalent in Kenyan prisons, according to a survey on the criminal justice system that Chief Justice David Maraga released on Monday.

After poring through the 380-page report titled “Criminal Justice System in Kenya: An Audit,” we attempt to paint a picture of what a Kenyan will go through between the time they get arrested and the time they are jailed.

Not surprisingly, Kenyans are most likely to be arrested on a Friday.

“A greater proportion of all arrests and detentions in police cells occurred on Fridays than on any other days, and the least on Tuesdays,” says the report that was prepared by the National Council on the Administration of Justice (NCAJ).

In the data collected from 18 counties, the researchers found  that 15.94 per cent of a total week’s arrests fell on Fridays, followed by 14.61 on Sundays.

But there is a silver lining for those who are booked on Fridays and Saturdays, days when police have more leeway to detain suspects because they can hold them for more than 24 hours before taking them to court.

LATE FOR SUPPER

The researchers found that those arrested on the two days are likely to be freed by police before having a day in court.

“Somewhat surprisingly, Saturday showed the highest proportion (50 per cent) being released on the same day, suggesting that Saturday arrests may be more likely to result in release on warning, or police bond or bail, rather than being taken to court on Monday,” they say.

The researchers note that for most of the people released that way, the reasons for setting them free were not recorded anywhere.

“Almost two-thirds have no reason for release,” says the report that was prepared by 13 research assistants and co-ordinated by a 29-member panel from various agencies.

“It could be assumed that where no reason is given that the person is simply released on warning. This could suggest appropriate police practice for petty offences. On the other hand, it could suggest corrupt practices,” adds the document that Justice Maraga described on Monday as the first major audit report that comprehensively looks at the criminal justice system.

Assuming the arrested person is not among the 64 per cent who are released before a court date, the police cells they will be held in are most likely filthy and ill-ventilated.

The situation of Kenyan police cells received special attention in June 2014 when six politicians were detained at the Pangani police station on accusations related to fanning tension through their utterances.

“We tried to ask the OCS for food since we had not eaten anything but he said there was no food since other remandees had already had their supper at 5.30 pm,” Suna East MP Junet Mohamed, one of the six, wrote of the harsh system in the cells a few days after being released.

“Everyone appeared shocked at the condition in the cells ... Our colleague [Kitutu Masaba MP Timothy] Bosire could not bear it. He suffered a running stomach shortly after we arrived, forcing him to frequently use the bucket. It was so dehumanising. This is something I will never forget,” he added.

Mr Mohamed’s description was not far from what the researchers found.

And once a person survives the torrid situations at police cells and heads to court, they will probably be huddled into another dinghy enclosure, this time a court cell, as they await appearance before a magistrate or a judge.

The situation of court cells is nothing to write home about as the audit found. Most of such cells do not have access to clean water, have malfunctioning toilets or none at all, and are poorly ventilated among other shortcomings.

“Court cells in particular do not cater for proper separation of categories and women and children are often held in hallways. The fact that detainees do not stay for very long in the holding cells is no excuse for conditions that amount to an affront on human dignity,” the NCAJ audit says.

After going through the perils of filthy police cells and court cells and appearing in court, the next stage for the suspect is remand.

Remand facilities, the audit found, are among the most wanting as far as respecting prisoners’ dignity is concerned.

This is more so because of the Persons Deprived of Liberty Act that President Uhuru Kenyatta assented to on Christmas Eve of 2014. The Act gives guidelines on observing the dignity of a suspect.

The researchers found that the situation in most remands falls short of what is anticipated in the Act.

Some of the shortcomings in the remand system include limitations on detainees speaking with their lawyers.

“Consulting one’s legal representative in private appears to be problematic in the majority of instances for two reasons. The first is that at many prisons the infrastructure is inadequate and there is simply not a consultation room.

VIOLATIONS ACT

“In some instances it was reported that an office can be temporarily made available. Secondly, from a number of prisons it was reported that a Kenya Prisons Service officer must be present during consultations. This is violation of the Persons Deprived of their Liberty Act (2014),” the study notes.

Another problem that a Kenyan in remand will have to contend with is staying in a highly congested place, with most remand facilities holding up to 400 per cent of their capacity.

The researchers calculated the square metres each detainee was covering at the remand facility and found that the most congested remand facility was Meru which was holding 802 people against its capacity of 200.

“This is an unacceptable situation and creates a range of risks associated with prison overcrowding,” they said.

Those in remand are also prone to various pests. The researchers noted that “the presence of lice, bed bugs and cockroaches was reported from Kakamega, Kakamega Women, Kisii, Lang’ata Women, Makueni Remand, Meru, Meru Women, Shimo La Tewa and Shimo La Tewa Women”.

Insufficient food rations are also an all-too-common problem facing those in remand, and the Kakamega prison was found to be the most notorious.

“In the case of Kakamega it was reported that no breakfast is served — lunch at 11.50 am and supper at 4 pm. This is a regrettable situation as it means that prisoners have a lapse of 20 hours between the last meal of the day and the first meal of the next day. It is not clear why Kakamega only serves two meals and follow-up investigations are required,” the researchers said.

The detainees sampled were asked to rate the food they are given in terms of the taste, odour, texture, colour, appearance and nutritive on five metrics between “very bad” and “very good”. It is not surprising that most of them rated the parameters as “bad” at 44 per cent.

The researchers also investigated whether prison authorities are mindful of the health of those in remand. 

From their findings, a Kenyan should be very afraid if they are taken to the Voi Prison for remand, because when researchers visited, there was no one to screen new detainees, meaning anyone with any infection is left to mix with the rest.

“Even though Voi is not a large prison, it is 118 per cent full and this brings a number of potential health risks. It is therefore essential that a solution to the reported absence of a nurse at the facility be found,” state the researchers.

The team also listed the most pressing health concerns among the facilities it toured.

“TB was reported to be a serious problem at eight prisons, diarrhoea at seven prisons and scabies at 12 prisons. Not only was the prevalence of TB reported to be a problem, but also relapse as well as multi-drug-resistant TB which is a direct consequence of incomplete treatment and can have dire consequences for people in densely populated environments,” they state.

PETTY OFFENCES

After the remand system, where suspects stay for varying periods of time, the next stage is a jail term, if the accusations against them are proved beyond reasonable doubt.

Interestingly, though, the researchers found that those charged with petty offences were more likely to be jailed.

“The evidence here suggests that lesser offences are more likely to attract guilty verdicts as compared to more serious offences. Possible reasons could be that guilty pleas account for the trend, perhaps due to police advising arrested persons to plead guilty and be fined,” the report notes.

But even for those jailed for more serious offences, the researchers found that any jailed Kenyan has high chances of being set free once they appeal against the sentence, with sexual offence convictions leading the fray.

“All sexual offence cases are slightly more likely than other cases to result in the case being dismissed or rejected (35 per cent, compared to 31 per cent for all cases) and more likely to be retried (11 per cent, compared to five per cent for all cases),” the report says.

It adds: “The very high rate of success on appeal for completed cases suggests that the appeal process is providing a necessary and robust safeguard in the criminal justice system in Kenya. However it does put into question the quality of the original convictions, particularly on capital offences and sexual offences, where it is known the accused persons face a severe penalty and in all likelihood were held in custody throughout the trial and appeal process.”

The study was commissioned by former Chief Justice Willy Mutunga. It began in May 2015 and took 18 months.

It sampled detention facilities in 18 counties: Mombasa, Taita Taveta, Makueni, Machakos, Nairobi, Nakuru, Kisumu, Kakamega, Kisii, Nyamira, Turkana, Marsabit, Meru, Isiolo, Murang’a, Nyeri, Garissa and Uasin Gishu.

Justice Maraga termed the findings “disturbing” and said no agency could read them and fail to be moved.

“It is an urgent call to action for all the justice sector actors of the inescapable need to align the criminal justice system with the promise of Kenya’s Constitution, 2010,” said Justice Maraga. “I will establish and gazette an NCAJ Criminal Justice Reform and Implementation Committee to follow through on these recommendations.”

Some of the recommendations include looking for ways of detaining only suspects accused of violent offences, teaching soldiers and the police on the consequences of deserting duty as they contributed to the number of those jailed, and speeding up the prosecution of serious offences.

If the recommendations are implemented, then Kenyans can finally witness a criminal justice system that is moving with the times.