You may have missed it, but Kenya is at war with hustlers and petty offenders

The Kenyan system is stack against the ordinary Kenyan. Indeed, we are a nation of drivers and hawkers, smallholder farmers and hairdressers. ‘Kazi Ya Mkono’ should be our national motto.

The informal sector, as we found out over the last few weeks, is responsible for 75-80 per cent of all new jobs created, which presents an arguably dangerous contradiction with ever-increasing education levels.

Now, a new report from the National Council on the Administration of Justice reveals a darker, even more jarring view of how the system does not favour Wanjiku.

The audit report into the country’s criminal justice system reveals that the Kenyan state is essentially at war with informality. In practical terms, poverty is a crime.

National suicide

At best this is an ironic and unfortunate contradiction, because low-paying informal work is the dominant experience in the Kenyan economy today.

At worst, it is a vicious cycle in which the state apparatus – the legal regime, the police, courts and prisons in particular – are working overtime to perform a kind of slow national suicide, a systematic targeting of the country’s majority and most vulnerable.

The report states that on average, 5,000 people are arrested and detained in every police station in Kenya per year. This doesn’t include the thousands more accosted and harassed by police but ultimately not taken into custody.

If we extrapolate for the 450 police stations across the country, it suggests that 2.2 million people are detained in police cells every year.

In other words, a Kenyan adult today has a one in 10 chance of spending some time in police custody in the course of a year, although this skews heavily towards the young and the poor. More than three-quarters of the people processed through the criminal justice system are aged under 35, the report states.

Even when corrected for repeat offenders, it still works out to 1.85 million people, or 7.5 per cent of the Kenyan adult population that has spent time in police custody in any given year.

What is more shocking is the pettiness for which people are locked up, while more serious offences such as murder, organised crime and sexual offences have the highest rates of acquittals and withdrawals.

The most common reason for detention was for the offence of being drunk and disorderly, accounting for 15 per cent of all arrests.

If we include similar offences like loitering, causing a disturbance, being a nuisance and offensive language or conduct, it suggests that nearly a quarter (25 per cent) of all people in police custody are there for what is essentially anti-social behaviour.

What is also shocking is a category of crimes called ‘state offences’, which account for another 10 per cent of arrests. These are crimes against which the state is the ‘aggrieved’, and are related to offences like conducting a business without a licence (hawking and the like), illegal gambling, illegal grazing and hunting, harvesting sand without a licence, and so on.

Police discretion

Nearly half (49 per cent) of the offences ‘against the state’ have to do with the sale and consumption of alcoholic drinks, such as brewing chang’aa or busaa, not having a valid permit to sell alcohol, or opening an establishment outside the regulated hours.

As much as five per cent of detentions are of people simply consuming alcohol outside the legal hours. Many of these offences arise from violation of the ‘Mututho Laws’ introduced in 2010.

In other words, the bulk of arrests (68 per cent) in Kenya today are either criminally petty, nuisance offences, or economically driven, the report states.

Only 11 per cent of offences held an element of personal violence. Half of these were for common assault, and 13 per cent for simple robbery.

The same kinds of trends translate into the cases that are charged in court. In the first place, just one-third (32 per cent) of those arrested are actually charged in court with an offence. The rest of those held in police custody are released without any reason being given for their release; essentially it is at the discretion of the police officer.

One could argue that this is a good thing – because most arrests are for petty offences. But then here is where it gets even more disturbing. Of the cases that actually make it to court, 20 per cent are those involving offences against the state, i.e. violation of business licencing rules, hawking, not having valid certificates to trade, and sale of alcohol. Another 30 per cent have are to do with drunk and disorderly behaviour, causing a disturbance and being a nuisance.

You are most likely to be found guilty of these socially petty crimes – they have conviction rates of more than 80 per cent, the data shows, mostly because those accused plead guilty for fear of spending time in the court process or in remand.

By contrast, only five per cent of sexual offences resulted in a guilty verdict while 30 per cent were acquitted. A staggering 65 per cent of sexual offence cases were withdrawn and never go to a full trial.

Robbery with violence showed a high withdrawal rate of 74 per cent, mostly because the cases were poorly investigated and so prosecutors realise they were actually too weak to go to trial. Or, there could be an element of corruption, in which serious offenders find a way of getting their cases dropped.

The findings suggest 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.

Capital offence cases are also more likely to be successful on appeal – as much as 41 per cent resulted in the liberty of the accused (compared to 25 per cent for all cases) while a further 22 per cent resulted in a reduction of sentence (compared to 13 per cent for all cases).

And in the case of sexual violence cases, the number of guilty verdicts in the country actually equals the number of those set free on appeal.

In other words, the Magistrates’ Courts in Kenya are not primarily in the business of prosecuting classic Penal Code offences such as murder, theft, robbery and assault.

Nuisance offences, state regulation offences and immigration offences comprise more than half of cases before the Magistrates’ courts.

Terrible waste

This is not to say that alcoholism and gambling are not valid social concerns, nor that the government should not regulate business activity.

But using the machinery of the criminal justice system to deal with these social and regulatory issues is arguably crowding out ‘real’ crimes that have a more direct, and more serious, impact on public safety.

Arresting, detaining and jailing people for being drunk could be a form of social discipline, but it really represents a terrible waste of police resources.

Indeed, the study states categorically that it is unclear whether, for example, state regulation of home-brewed alcohol does anything more (such as reduce alcohol harm) than protect the market share of large manufacturers of alcohol.

Indeed, there is some evidence to suggest alcohol consumption has increased in spite of alcohol control laws introduced in 2010.

And on the other hand, regulatory systems and licencing practices have become an end to themselves in Kenya, a cash cow that is no longer actually linked to quality control.

One comprehensive inventory of licencing requirements in Kenya in 2006 found that there are about 1,300 business licences and associated fees imposed by more than 60 government agencies and 175 local governments.

Furthermore, regulators are continually producing new licences, particularly the county governments, which have spent much of this first term in office thinking up creative ways of taxing and licencing everything from chicken rearing to planting trees.

But business licencing violations could be better handled administratively, such as issuing a spot fine or even simple confiscation of goods.

And although there is a clear state interest in protecting the country’s forests, wildlife and natural resources, jailing people for grazing their animals on park land– especially with the frequent droughts and unpredictable weather brought about by climate change – is difficult to justify.

There are other ways to manage these competing interests, such as through time-sharing and rotating grazing practices that acknowledge that the people of Kenya have a right to make use of their own country’s natural resources in time of need.

Deprivation of liberty – even if it is in a police cell for just a night – is not a trivial thing, but the wanton arrests and detentions that are a pervasive feature of Kenyan adult life seem to have desensitised the public to this fact. It is even worse if this translates into weeks, months or even years on remand for petty violations.

It is unconscionable that 10 per cent of the adult Kenyan population will spend time in a cell at least once this year for what is mostly just an attempt to make ends meet in a country where 84 per cent of people are in the informal economy.

What’s even worse is that their ‘hustling’ is simply a function of the structural and policy flaws of the Kenyan state, yet many of them have the skills and education to do much better.

The evidence suggests that if the state were to confine itself to holding on remand only those accused of violent offences, the number of men on remand would reduce by two-thirds and the number of women by one-half.

Uganda, for example, used to impose a poll tax (otherwise called a graduated personal tax) on every adult male. It was an annual tax, the equivalent of about Ksh400. Even so, many did not have the money on hand on deadline day, and would be thrown in jail for non-payment.

But the administrative and political cost of collecting this tax was far higher than its contribution to the national budget. When it was finally abolished in 2005, the country’s rural prisons basically emptied overnight.

- The writer is the executive editor of Africa data visualiser and explainer site