Let’s prioritise criminal justice reforms

Kenyans have in the recent few months popularised the expression that on the ground things are different. This implies that while in theory one may hold a certain view of events or situation, this may not always be the reality. The essence is to demonstrate the importance of being aware of the exact situation on the ground so that your decisions are grounded, realistic and responsive.

This past week a group of university students were out in various parts of Kenya carrying out a survey. While they had been trained on sampling, ethical issues and what to expect while in the field, some situations they encountered had not been contemplated. The heavy rains made some areas impassable, the actual cost of transport, insecurity amounts others had to be mitigated as the survey went on.

The above demonstrates why in developing and implementing any interventions, context is important. Without full appreciation and incorporation of realties arising out of the context one operates it, the response to problems may look reasonable and may work in one instance but fail miserably in another.

I attended a conference on the key actors in the criminal justice sector in Kenya last week. The event was an opportunity to appraise the state of criminal justice reforms and strategies for greater impact. During the conference, the discussions reinforced the fact that on the ground things are different. Despite several years of reforms in the sector, citizens still complained of high costs, long periods of incarceration, and a criminal justice sector that was unfair to the citizens.

The Constitution guarantees all persons the right to a fair trial. This requires that those arrested be informed promptly and clearly the reasons for their arrest and treated in a manner that enables them to respond to the charges they are accused of, be tried fairly and a decision made based on evidence.

Despite these guarantees, a study of the Criminal Justice System in Kenya released in early 2017 by the National Council on the Administration of Justice (NCAJ) revealed that the criminal justice system was suffering from several problems, with the greatest being that the system seemed to be punishing only the poor in society.

Majority of these indigent people were held in the criminal justice chain, either due to delays in their cases to be heard, charged for offences which are largely a confirmation and criminalisation of their poverty, held in pretrial detention for unduly long periods, when convicted given custodial sentences even when alternatives would be more desirable and held in congested and poor conditions prison facilities. At the conference while actors in the justice sector spoke about the reforms they had initiated, the reality as captured in the NCAJ study seemed not to have changed much. It demonstrates that reforms should move from legal, institutional and structural reforms to practical interventions. It is at this stage when citizens will feel their impact. First, the country must realise that the numbers of those on detention facilities are way above the numbers that those facilities were designed for and the international recommended ratio. On the first day of the conference it was indicated that the figure as at that day stood at just slightly below 54,000 people.

A review of the statistics over the past few years shows that this figure has largely remained static. Reforms must focus on how to reduce these figures. Every actor in the criminal justice chain from police, investigators, prosecutors, judiciary to probation must ask themselves what their role is in contributing to these figures and implement measures to reduce the numbers. In addition, the country must debate whether there is need for additional facilities. For example, it is necessary to construct another mental hospital to complement Mathari Mental Hospital ,which is overstretched.

The challenges facing the sector are real and huge. Developing a culture of honest dialogue, co-ordination and collaboration is the single most urgent task for actors in the criminal justice sector. It is the surest way to ensuring that the ongoing reforms translate to practical impact on the ground.