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Kenya among countries with highest imprisonment rates

An audit on the Judicial System ranks Kenya at position 17 among countries with highest number of prisoners in Africa.

This means that out of a population of 100,000 Kenyans, 121 will be serving a jail sentence at any given time, while 500,000 will go through the criminal justice system every year.

The survey was conducted in 18 sampled counties, covering the entire criminal justice system, from arrest to police cells, courts and acquittals or jails terms.

According to an audit report by Legal Resources Foundation and Resources Oriented Development Initiative, an organisation dealing with pre-trial detainees and ex-prisoners’ rehabilitation, the audit was conducted to understand pre-trial detention in respect to case flow management and conditions of detention.

“Kenya has a prison population of 57,000 and an imprisonment rate 121/100,000 of the population, making it the 17th highest imprisonment rate in Africa. On an annual basis some 500,000 people move through the criminal justice system placing a significant burden on resources. Some may be in detention for shorter or longer periods and some may be acquitted or convicted.

“The volume of detainees places a significant burden on the state, tapping scarce resources and having significant adverse effects on conditions of detention,” says the report.

Noting that hundreds of thousands of the prisoners should not have been arrested in the first place, the report recommends that all efforts be made to reduce the use of arrest and imprisonment by utilizing existing legal mechanisms to avoid arrest and detention, expediting cases through the Criminal Justice System, granting affordable bail, decriminalizing certain petty offences and using non-custodial sentencing options.

Very many of the detentions in police cells appear to be in relation to non-cognizable offences, which require a warrant to effect arrest.

The reports recommend that both police officials and the general public need to be educated regarding which offences permit a police official to arrest without a warrant, and officials who persist in carrying out or threatening unlawful arrests must be disciplined.

It also highly recommends that persons deprived of their liberty for unlawful arrests would have a claim against the state for such deprivations of liberty.

“It is an overall finding of this project that inconsistencies in policy application and practice in nearly every aspect investigated present significant challenges in adhering to constitutional and human rights prescripts. This is in all likelihood attributable to insufficient staff training and lack of monitoring performance to ensure compliance with existing standards. To remedy this situation, it will require a significant investment in staff training and reforming policies and procedures where there are deficiencies.

“In respect of police and prison officials’ training, the overall impression is that much reliance is placed on the initial training that recruits receive and that there is little refresher training, specifically on human rights standards to ensure that officials are reminded of basic training as well as receiving updated information on new developments in law, policy and practice,” reads part of the report.

Speaking during the launch of the report, police spokesperson Charles Owino acknowledged the audit but attributed the police shortcomings in recruiting of low academic grade to the force.

“It’s time a policy was made to ensure well educated and professionals like lawyers are recruited into the police force. Kenya is the only country where proper academic qualifications are not important in the police recruitment drive,” said Owino. He noted: “The police is a noble profession and well qualified persons should be recruited in the force.”

Also worrying is the conversion rate of arrests to charges in court. Out of the sampled police stations an estimated 144,789 Cell Register admission entries were made, but, by comparison, the two Charge Registers recorded 46,826 charges to court over the same time period.

This suggests around 32 percent of arrests and detentions are converted into charges in court, meaning that 68 percent of arrests do not result in charges in court, and are dealt with through the discretion of the Kenya Police.

Again, most of these arrests and discharges from police stations are made over weekend and the reasons for release are not indicated in the registers.

Noted was that the wheel of injustice does not spare anyone including children, where law is broken at all times in arrests, delayed trials, remand conditions as well as unrealistic bails and bonds given to children standing trials.

“Very few observations recorded whether or not bail was granted. Bail was, however, recorded to be granted in in nine percent of cases. “

This is the same percentage which was recorded in the subordinate courts. Bail amounts ranged from KSh1,000 to KSh100,000. The median amount was KSh15,000 (US$150).

“The lowest monthly minimum wage in cities in Kenya is around KSh11,000 suggesting the median amount of bail for a charge against a child is more than a month’s minimum wage,” states the report.

The audit report says introduction of administrative procedure for regulatory offences is paramount in criminal justice system.

Of concern are state offences that comprise the largest category of cases in courts, and are comparatively highly likely to result in guilty verdicts.

To achieve this, a national conversation needs to be undertaken to fully understand the implications of using criminal justice processes to further the very real public health and other interests of the state.

“This conversation must acknowledge that using the machinery of the police and courts to deal with these interests threatens livelihoods and may bring the Criminal Justice System into disrepute amongst a public over-policed in entrepreneurial activity and under-policed in terms of serious crimes,” the report further says.

Again, in most of the state related offences, a guilty verdict is entered, since most Kenyans fear going jail or spend time in the complex criminal justice system, while police are also said to coerce  suspects into pleading guilty as charged, advising that an option of fine is better than wasting time in court process.

As petty offenders jam the prisons, most serious crimes such as murder and robberies among other capital offenses are often withdrawn, due to poor investigations and inadequate collaboration between the Director of Public Prosecution and the police.

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