Accused persons wasting away in stretched prisons as cases delayed

It is almost four years since the police forced their way into Pauline Elizabeth Njeri Mbugua’s office in South B, Nairobi, and handcuffed her.

Njeri, 59, has not been free since. On that fateful day, she was booked at Lang’ata Women’s Prison remand section, pending hearing of charges drawn against her.

“You only think freedom is a right until you get in here and the wheels of justice turn at such a slow pace,” Njeri says. “It is disappointing.”

Njeri was arrested in August 2014 and charged with obtaining money through false pretence. Seven files (counts) arose from the offence. “Two of the counts attracted a bond of Sh1 million each. The highest was worth Sh9 million,” she says.

It is an amount that Njeri says is beyond her reach. “My family too cannot afford to pay such an amount.” On several occasions, she has applied for her bond to be reviewed but her efforts have not borne fruit.

“I have to continue living here even though as a free citizen I could have been productive economically and still been able to attend court hearings,” she says. Njeri, by law, is presumed innocent until proven guilty. Yet she has been behind bars waiting to prove her innocence before she can be released.

Njeri is not the only Kenyan facing such a predicament.

A recent report, by the Office of the Director of Public Prosecutions (ODPP), shows that court bonds are too high for 99 per cent of accused persons.

The ODPP Preliminary Report of Remand Action Plan, shows that 86 per cent of those in remand had been granted bail or bond but could not afford the terms. Only 87 per cent of those in remand had been granted bail or bond. This means that only one per cent managed to pay bond.

BOND AND BAIL

Deputy Director of Public Prosecutions Dorcas Oduor says bond and bail are incentives to allow accused persons to enjoy their freedom while also acting as security to ensure they do not escape justice when the case against them is concluded.

“The report shows that 47 per cent of those in remand were given bail terms higher than Sh250,000. Only 53 per cent were given bail lower than Sh250,000.

No one should be in remand really – because you are innocent until proven guilty,” Ms Oduor says.

“Only those whose guilt has been proven should be in prison.” According to Ms Oduor, judges and magistrates look at many factors before pronouncing bond or bail.

These factors include age of offender and whether they are first time offenders, the seriousness of the crime, and the financial capabilities of the accused.

Even so, with only one per cent being able to pay bail or bond (the report shows) it begs the question whether they are issued in good faith.

Beyond exorbitant bail terms, other factors – slow trial process and bureaucracy (32 per cent), witness-related delays (23 per cent) and adjournment (6 per cent) – have also been blamed for cases dragging in court. Another accused at Lang’ata Women’s Prison, who asked for privacy, is spending her seventh year in remand. The university graduate of Sociology and Psychology and a mother of one is accused of murder and was denied bail.

What troubles her is the fact that for seven years her case which is being tried in Milimani, keeps getting adjourned and postponed. She blames the change of presiding judges, and prosecution for always asking for more time (which he is always given) to line up new witnesses.

The legal counsel, given to her by the State, has also not been proactive and does not seem interested in proving her innocence. “My lawyer does not even visit to discuss my case. We only bump into each other in court,” she says.

She is lucky though to even be given legal counsel as the report by the ODPP also found that 84 per cent of remand prisoners do not have legal representation despite the law calling for it in the national legal aid scheme.

And hundreds of ‘innocent until proven guilty’ inmates, the ODPP report notes, continue to congest prisons.

All prison facilities can comfortably accommodate 18,600 people, however, the numbers are currently close to 55,800.

“This is a concern to criminal justice agencies because one is presumed innocent until proven guilty,” Ms Oduor says.

The remand prisoners review exercise, from which the report was derived, was conducted towards the end of January 2018 by ODPP after it was launched by Justice Lessit on January 22, 2018.

About 2100 remand prisoners were interviewed. “We wanted to find out: Is it that the system does not look at bail as a right? And if it does, is it affordable?” Ms Oduor poses.

The ODPP hopes their findings will inform legislative and policy reforms in the criminal justice system that will allow for speedy conclusion of cases.