Where you live goes a long way to determining whether you get justice or not, a new audit of the criminal justice system reveals.
The length of time detainees spend in police cells, whether they end up being charged in court, the time one’s case takes to be completed and chances of the case resulting in a guilty verdict vary widely, depending where one is located.
In Garissa, according to the audit, all the people detained by police (100 per cent) were released the same day that they were held.
By contrast, in Kondele, Kisumu, only 16 per cent were released the same day. In Lodwar more than a quarter spent more than two days in detention, the highest proportion among the 18 counties audited.
The audit reveals unfairness of the system towards poor defendants. Charges in serious offences are often dropped, while petty offences have high rates of convictions. Robbery with violence cases are most likely to withdrawn before completion, which could suggest initial arrests based on insufficient evidence, or of corrupt practices.
On the opposite spectrum more than 80 per cent of nuisance offenses and violations of state regulations end in a guilty verdict.
Chief Justice Dr David Maraga, told Newsplex that the justice system impacts the poor more. “Part of this unfortunate reality is that justice has a poverty face,” he said. “Rich people can afford expensive and smart lawyers; poor people are disadvantaged in this regard and this is a matter that we must address; the Legal Aid Act is a good beginning in this respect.”
Dr Maraga added that in criminal cases where the defendant was represented by a lawyer, cases have on average 523 days, or one year five months more than when there is no lawyer.
“Rich people who have this representation can therefore afford to tactfully delay cases, which sometimes lead to loss of interests by witnesses which in turn may weaken the prosecution's case,” said the Chief Justice.
DISCRETION OF THE POLICE
The audit also found that large numbers of people are arrested and detained in Kenya. One in 13 adult Kenyans, about 2.2 million people, spend time in police cells each year, according to the report by the National Council on Administration of Justice in collaboration with Legal Resources Foundation Trust and Resources Oriented Development Initiatives.
At the launch of the report, the Chief Justice specifically listed the Judiciary, the Police, Office of the Director of Public Prosecutions, Prisons, Probation and the Children’s Department as having a lot of systemic, structural and agency challenges that require urgent attention.
Persons detained in police cells can only be held for two days for non-capital offences and 14 days for capital offences, according to statutory limits.
Nationally, one in eight detainees are held beyond the statutory two days, and five per cent spend more than five days in police cells. In more than two-thirds (64 per cent) of cases, the reason for release from police cells is not recorded. This could suggest appropriate police practice for petty offences or corrupt practices.
The report that was released this year suggests the police bring just over 200,000 charges to court each year. When the charges are contrasted with the charge registers in police station it means that 68 per cent of arrests do not result in charges in court and are left to the discretion of the police.
Here too there huge are disparities by location. For instance, just seven per cent of cases in the charge registers in Garissa, 12 per cent in Kilimani, Nairobi and 20 per cent in Lodwar, Turkana resulted in charges in court.
The low rates of conversion in the three counties with the worst record suggest a high degree of discretion being exercised by police in arresting and releasing without charging in court, in some instances through withdrawal of complaints by victims.
There was more than 100 per cent conversion of police cell detentions to charges at Kondele in Kisumu and Maua in Meru which suggests transfers from other police stations to the court at those locations, without time being spent in police cells.
A review of the report by Nation Newsplex finds that police cells are full of people accused of petty crimes that could be solved through administrative fines.
Except for sexual offences, victimless offences have a higher than the average rate of translation to charges. Indeed, 37 per cent of cases filed in court are for minor offences such as drunk and disorderly, state offences (involving licensing, certificates or compliance with business rules concerning opening hours, forest produce, etc.), loitering, disturbance or nuisance.
In many countries like South Africa and Australia such offences do not result in arrest and detention but are dealt with through administrative fines.
In South Africa, breaking a local by-law results in notice being given to the offender which leads to the issuing of a fine. Failure to pay the fine results in summons being served, requesting the offender to appear before court. If the summon is disobeyed by the offender, a warrant of arrest is issued by the magistrate’s court.
In Australia, people accused of breaches of tax, environmental or corporate laws receive a summons from the relevant agency and face civil proceedings or an administrative tribunal, rather than face a criminal court.
The reasons why lesser offences are more likely to end up in court in Kenya are not clear but may relate to the evidence available.
According to the report, if the State was to confine itself to holding on remand only those accused of violent offences, the number of men in remand would reduce by two-thirds and women by half.
In Magistrates’ Courts slightly more than half of cases (53 per cent) result in guilty verdicts. But when outcome is looked at by offence, it becomes apparent that more serious cases are more likely to be withdrawn than any other outcome, while less serious offences are highly likely to result in a guilty verdict.
Only five per cent of sexual offences result in a guilty conviction. The rate is 13 per cent for robbery with violence and 19 per cent for serious assault.
The audit found that petty offenders in detention plead guilty based on advice from their peers or police, or to avoid spending extended periods in remand custody.
Guilty verdicts were most likely in Makueni (77 per cent), Kakamega (73 per cent), Voi (71 per cent), Kisii (71 per cent), and Marsabit (69 per cent). Guilty verdicts were least likely in Kisumu (15 per cent).
The time from plea to outcome recorded in completed cases ranged from zero days to two years five months, with a third of the cases being resolved on the same day the plea was taken.
The overall one-year completion rate for all cases was 62 per cent but the percentage varies widely by location. With a completion rate of 87 per cent Kakamega has the highest percentage completed within a single year while Isiolo with three per cent has to lowest completed in one year.
All types of sexual offences accounted for almost a third of the cases that were appealed yet in the Magistrates’ Courts, they comprise only three per cent, suggesting these offences are highly likely to be appealed.
While a third of appeals are dismissed or rejected by the court, as much as a quarter succeed in obtaining their liberty while 13 per cent succeed in having their sentence reduced.
The Chief Justice dismissed suggestions that the numbers suggested incompetence, saying the system was operating as it should. “Magistrates and judges can err, or an appeal may be prosecuted with more clarity and vigor.”
Nevertheless, he acknowledged the find was interesting, and suggested training could be improved for judicial staff.
In five per cent of cases a retrial is ordered while 24 per cent of cases are abandoned or withdrawn by the accused. Less than one per cent results in an increase in sentence, and a similar amount result in a different conviction.
This different duration it takes to complete cases could be because of a mismatch between resources, such as staff, and demand in particular courts, resulting in delays. According to the office of the Director of Public Prosecution, the time cases take to be completed in magistrates Courts varies with location, and depends on different factors.
This factors include transfer of magistrates, lack of witnesses, the number of cases in a certain court station and the manner in which the evidence presented is being recorded among others.
Several lawyers and prosecutors who handle cases at magistrates admit that the time frame for completion of cases before such courts varies with location and is sometimes inevitable.
According to Duncan Okello, the Executive Director of the NCAJ, much of the prison infrastructure is dilapidated, having been built in the colonial era, and must be improved.
“We need to clean it up for the system to serve the public. The ends of justice cannot be met in an environment of human indignity,” he said.