Let's reform our criminal justice system and spare petty offenders

Decongesting overcrowded prisons is the least powerful way of framing the potential of the All for Justice project. [iStockphoto]

The launch of the Malalamishi app by the Director of the Office of Public Prosecutions this week offers another glimmer of hope for all criminal suspects and convicts across Kenya’s prisons.

This and the global report on the state of death penalty sentencing and executions must raise our sense of urgency on the need for criminal justice reform.

The Remand and Allocation Prison in Nairobi’s industrial area is over a century old. Established in 1911 by a colonial state obsessed with controlling the political conscience, movement, and labour of Africans, millions of men have been remanded within its walls.

In 2023, it holds nearly 4,000 inmates, four times more than its capacity. Most of remandees are under the age of 35, face petty offences and are too poor to pay bail.

Some will remain there for up to two years or more until their cases are heard. Most will not have legal representation throughout their cases. There have been several state and civil society efforts to decriminalise petty offences and ensure all suspects have the legal information and representation that they need. Legal education and empowerment programmes have tried to transform the reality for more than the two million suspects arrested and remanded each year on drunk and disorderly, commercial sex work, illicit brew, and vagrancy charges.

Decongesting overcrowded prisons is the least powerful way of framing the potential of the All for Justice project. While the project will, if implemented effectively, significantly reduce case backlog and decongestion of prisons, the Malalamishi complaints and case review system offers an opportunity for those wrongly accused and judged to secure justice. The web-based page enables suspects, family-members, lawyers, and members of the public to file a complaint and trigger a review of current cases. Indirectly, it also provides the public an opportunity to provide feedback in English or Kiswahili on cases handled by the ODPP.

Some 1,000 files from Nairobi Remand prisons, Makadara, Kiambu, Milimani, Kibera, Ng’ong and JKIA court stations are set to be reviewed under the Justice for All initiative before the programme is rolled out nationally.

Not all the cases are petty offences, they include those accused of robbery with violence, murder, rape, and defilement. It was heartening to hear the commitment of the Law Society of Kenya President Eric Theuri to work with lawyers and the ODPP to offer pro-bono services to those that need them.

The launch coincides with the release of the 2023 Amnesty International report on the death penalty. Worryingly, more men and women were executed across the world than in each of the last five years.

More encouragingly, governments across Kazakhstan, Papua New Guinea, Sierra Leone, and the Central African Republic repealed death penalty laws for all crimes while Equatorial Guinea and Zambia abolished the death penalty for ordinary crimes.

While no person was executed in Kenya, 79 men and one woman were sentenced to death in 2022. This brings the number of prisoners on death row to 656. Encouragingly, the government exonerated or commuted the sentences. 

Criminal justice systems continue to wrongly convict many people, most of them poor and young. While long periods of pre-trial detention are unjust, the death penalty extinguishes any possibility of review and exoneration. As our investigators, prosecutors and judges continue to strengthen the justice system to ensure that all have the right to representation and a fair trial and only the guilty are incarcerated, we must now press for the abolition of the death penalty also.

The use of the death penalty in Kenya by state prosecutors and judicial officers continues to violate the core principles of the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights and the Constitution. These principles emphasise human life.

Furthermore, Recent Kenya National Commission on Human Rights studies demonstrate public opinion has moved against the death penalty as an ineffective deterrence against criminal behaviour. 

It is time the Attorney General and Parliament initiate a review process to abolish the death penalty in line with global human rights trends.

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