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REFORM AGENDA FOR KENYAN PRISONS; A CALL FOR DECONGESTION OF PRISONS - BY MICHAEL OMONDI

Nov-28-2023

The Kenyan government has been proactive in its attempts to improve the living conditions within its prisons. This is probably based on the realization that human beings regardless of the offences that they commit deserve to live a dignified life.

The efforts that the government has been putting in decongesting the prison departments are commendable. Nevertheless, this article contends that things are not being done right. The article goes forward and suggests different ways in which the government and other stakeholders can effectively decongest our prisons.

Prisons are basically meant to act as reform centers whereby wrongdoers get another opportunity to reinvent their lives. However, that is close to impossible especially in the current state of Kenyan prisons. Overcrowded prisons make it extremely difficult for prison wardens to offer specialized attention to prisoners. In the contrary, prisoners are forced to acquire certain unethical skills so that they can survive in prisons.

The rationale for this argument is that resources such as food and water are limited in prisons. Therefore, it is more about survival for the fittest while the weak are naturally phased out. Kenyan prisons are in deplorable state and the government should take responsibility to reform the living conditions sin the prisons.

First things first, each and everyone are born equal and consequently have inherent dignity. Article 28 of the constitution of Kenya, 2010 provides that every person has inherent dignity and the right to dignity respected and promoted.

Prisoners are no exception and they have the right to their dignity respected, promoted and protected. To the contrary, the degrading living conditions in the prisons violate the inherent human dignity of prisoners.

That goes without saying that human dignity is the fountain from which other rights flows. With the human dignity of prisoners taken, it is quite impossible to argue that the rests of their rights and fundamentals freedoms are being respected and protected.

Plea bargain

A plea bargain is a negotiated agreement between an accused person and a prosecutor, where the accused agrees to voluntarily plead “guilty” or “no contest” for a concession from a prosecutor in exchange for a plea. Plea bargaining is advantageous and it is quite disappointing at the same time that it is not being sufficiently utilized at the moment.

This article throws a challenge to the prosecution lead by the Director of Public Prosecutions to encourage more accused persons to be open to plea bargaining arrangements.

A contention that not every criminal case should be prosecuted to finality through a trial if it can be resolved by alternative means applies in so far as plea bargain is concerned. Plea bargaining will go a long way in reducing the space occupied by remandees in prison as they wait for their cases to reach logical conclusion.

However, the government should assist the public to better understand how plea bargaining works if they are to accept it moving forward.

Information is knowledge and if the citizens are well armed with the necessary information then they are highly likely to enter into plea bargaining as one of the available legal arrangements of decongesting prisons.

One of the reason as to why plea bargaining is not that popular as it should is that there is a lot of misinformation about the said topic. That, however, can easily be overcome by public sensitization. The role of plea bargaining is assisting the accused to serve a shorter term in prison which consequently means that the prisons will be decongested overtime.

Plea of guilty

It is not a must for accused persons to always plead ‘not guilty’. As a matter of fact, a plea of guilty saves both judicial time and resources. Magistrates and judges are therefore highly inclined to consider such favors as mitigating factors in the judgements and sentencing. Further, it should be well noted that quite a number of accused persons either cannot afford legal representation or they intentionally choose not to be represented by advocates.

As such, opting for a plea of guilty will often save them from the embarrassment they are likely to face while they are undergoing hearings and during cross examinations if they so wish to defend themselves.

However, the government should assist the public to better understand how plea bargaining works if they are to accept it moving forward.

Information is knowledge and if the citizens are well armed with the necessary information then they are highly likely to enter into plea bargaining as one of the available legal arrangements of decongesting prisons.

One of the reason as to why plea bargaining is not that popular as it should is that there is a lot of misinformation about the said topic. That, however, can easily be overcome by public sensitization. The role of plea bargaining is assisting the accused to serve a shorter term in prison which consequently means that the prisons will be decongested overtime.

Plea of guilty

It is not a must for accused persons to always plead ‘not guilty’. As a matter of fact, a plea of guilty saves both judicial time and resources. Magistrates and judges are therefore highly inclined to consider such favours as mitigating factors in the judgements and sentencing. Further, it should be well noted that quite a number of accused persons either cannot afford legal representation or they intentionally choose not to be represented by advocates.

As such, opting for a plea of guilty will often save them from the embarrassment they are likely to face while they are undergoing hearings and during cross examinations if they so wish to defend themselves.

Unconstitutionality of life sentence and death penalty

The Supreme court declared that mandatory death sentence is unconstitutional in the famous case of Francis Karioko Muruatetu & another v Republic [2017] eKLR. That, however, is still insufficient.

There is need to totaling scrap off death penalty in Kenya as that is the current trend all over the world. Death sentence violates many human rights and fundamental freedoms. It denies people an opportunity to enjoy their right to life which is often denied if a person is sentence to death. Furthermore, death is an irreversible experience.

At the same time, judges are human beings and thus their judgments can at times be erroneous. In case an error is made as to the issuance of death sentence then it cannot be reversed.

Of much importance to this article is the fact that as a matter of practice in Kenya, death sentence is often commuted to life imprisonment. It is worth discussing the issue of death sentence as it one of the leading causes of congestion in prisons. Worse still, just like death penalty, life imprisonment violates way too many rights and fundamental freedoms.

The court of appeal took a bold move by declaring that life imprisonment is unconstitutional for its various reasons. One of the reasons raised in the said judgement is the fact that mandatory life imprisonment is a legislative overreach for its failure to respect judicial discretion.

Judges ought to be given wide latitude in their sentencing and judgements. This practice allows judges to consider various issues such as mitigating factors before deciding the sentence that they will give.

Judicial officers should not be forced to make certain decisions by being fixed in a box so to say by prescribing of mandatory sentences. It is thus bad in law to have mandatory sentences since such penalties fail to appreciate the fact that not all cases are alike.

The facts and circumstances around every cases should be well considered before conclusions can be reached on the appropriate punishment that should be given to the offender. Mandatory sentences fail to appreciate as well that first offenders and repeat offenders should be treated differently.

PROBATION

Some offences are not extremely serious and as such the offenders should not be condemned to custodial punishments. A victim impact assessment should be carried out in addition to a thorough analysis of the demeanor of the accused. Judges should consider this before reaching a conclusion n whether custodial sentence is the best option or not. First offenders should greatly benefit from such measures especially if it is evident that they can reform even under minimum supervision.

In addition to probation, judges and magistrates should be open to using community service as part and parcel of the punishment. Community service allows the offender to learn the act of service and thus allows him or her to appreciate the fact that we live in a communal setup.

They are thus more likely to take good care of both the environment and the people that they live with. Communal service will also allow the offender to easily reconnect and reintegrate with the larger community.

Further, judges and magistrates who serve as judicial officers and custodians of the law should be open minded in guiding accused persons. Such guidance is crucial especially if the accused persons cannot afford legal representation.

As such, these crucial judicial officers should encourage petty offenders to plead guilty and consequently discharge them. It makes no sense for petty offenders to serve prolonged time in prison yet these judicial officers can assist them to overcome such unnecessary stress and trauma. Judicial officers should as well sensitize people that it is not a must to plead ‘not guilty’ and consequently waste a lot of judicial time due to endless adjournments and full hearing.

The prosecution is tasked with the duty of ensuring that public interest is served. Wastage of judicial time via several adjournments is neither beneficial to the court nor the public at large. To that extent therefore, the prosecution should not act as the weak link in the determination of cases.

It is often the failure of the prosecution to conclude their case in time that leads to accused persons spending quite a lot of time in remand. This indirectly leads to crowding in prisons as the prison wardens often have divided attention between those service prison terms and those who are in mind. The prosecution should thus do whatever is within their power to avail evidence and witnesses in a timely manner. It is worth noting that the prosecution often delays cases by failing to apply the accused with statements citing the unavailability of police files.

The same way the prosecution is always quick in praying for warrants of arrests, they should also move with speed to withdraw cases from courts.

This should happen especially if the case’s failure to progress is a as a result of the failure of the prosecution. This will go a long way in ensuring that cases do not take forever for them to be solved.

Consideration in the withdrawal of matters should apply especially to cases that have taken prolonged time in courts. This will ensure that not only is justice done but is also seen to be done. Consequently, those who were in custody will be granted back their freedom and as a result, our prisons will decongest overtime.

Our prison departments at the moment have more than they can hold. The net effect of such as a situation is such the supervision of prisoners is greatly reduced as the ratio of prison officers to the prisoners is overwhelming. Needless to say, the goal of reforming prisoners thus becomes quite difficult. In addition, the resources in prisons are limited and the increased numbers makes matters worse.

As if that is not enough, a lot of public resources are spent in maintaining prisons. However, if the concerned sectors are intentional about implementing some of the recommendations herein then the issue will be partially solved.

Over 23, 000 inmates have been freed from correctional facilities across the country in an effort by the government to decongest prisons.

State Department for Correctional Services Principal Secretary (PS) Salome Muhia said at a a past event that an additional 5, 000 cases were under review.

This, she said, was in line with the department’s target to release 35,000 petty offenders by the end of this year as the government moves to improve prison facilities across the country.

The PS said her office was working closely with the judiciary and other stakeholders in the criminal justice system to exploit other avenues to deal with offenders other than the prison system.

“We want to exploit the community service orders, probation and other non-custodial options to decongest prison facilities countrywide,” she said.

To make the program a success, Muhia called for support from development partners to ensure that prisoners live a dignified life as enshrined in the constitution.

Speaking at Kisumu Maximum Prisons during an official visit, the PS added that the government would also tap on the available 135 probation and Aftercare stations across the nation to push the judiciary to put offenders with petty offences under community service.