Letters

LETTERS: Let’s abolish cash bail rule for petty crimes

COURT

The Milimani Law Courts in Nairobi. FILE PHOTO | NMG

Innocent until proven guilty is perhaps one of the most commonly used phrases among citizens of many democracies worldwide. We try extremely hard to perfect our judicial system in hopes of conforming to this principle, but often, we fail. The cash bail system undermines the equal protection under the law doctrine.

It aims to advance freedom to those who can afford it and deny it to those who can’t; even when the due process mechanism set up to determine your guilt or innocence isn’t completed. At face value, the cash bail system is a process that punishes a cross section of Kenyans for being poor.

The remand jail system -for the most part- is a government operated warehouse for the poor, and money is the ultimate determining factor if or not you are released. There is obviously a case to be made for the need to remand violent suspected offenders in the interest of protecting the public.

While I agree with that principle, majority of remanded suspects are petty non-violent offenders. The cycle of poverty is grossly exacerbated in remanding family breadwinners, primarily because the Kenyan judicial system is severely backlogged.

Therefore, a suspect with no financial means could easily linger in remand jail for months or years before a successful disposition of his case. By the time he gets out -even with an acquittal- he has most likely lost the only means of livelihood he had prior to being arrested. Poverty is thus further propagated via loss of jobs and potential business opportunities, evictions and broken families.

The need to commit more crimes is exponentially heightened as a result. Our judicial system’s dispensation should be uniform because having no money should not determine if you get to spend an extra week in remand or not.It goes against the grain of justice and fair treatment under the law.

It’s an absurd leap of logic to, on one hand, tirelessly strive to create a perfect system that seems fair and just, but on the other hand set parameters purely based on how much a suspect has in their bank account to gain their freedom.A poor person consequently feels that, even though they are innocent until proven guilty, they no longer have the inalienable protections accorded in the constitution.

Because why is not having cash a precursor to a presumed innocent citizen’s freedom?Remanding petty crime suspects also creates an unnecessary burden to Kenyan taxpayers. It costs money to feed, house, supervise and provide healthcare -among other needs. Unnecessary government expenditures like these clearly adds up.

Lost wages and business opportunities also drains potential Kenya Revenue Authority(KRA)tax collection efforts and further dips the purchasing power of thousands of innocent-until-proven-guilty suspected petty offenders.

They are more productive out, than in remand. It makes a lot more sense to have these suspects out participating in economic projects while their cases make their way through the judicial system. Cash bail is not only an archaic practice, it is also illogical and cruel.

The presumption of innocence notwithstanding, this practice creates collateral damage in children and other family members. Something is fundamentally wrong in our country when the only threshold that determines whether you stay in jail or go home, during a petty crime pre-trial phase, is not your guilt or innocence, your character or your positive contribution to society; it is money. A young man can languish in remand for years due to lack of Sh 10,000 cash bail. Wasting thousands of hours of potential income generation, further education, quality time with one’s children, tax contributions and the overall lost economic productivity. We need to search deep within ourselves to ascertain if that is the kind of society we want to live in.

Because if the thought of an innocent person having their freedom taken away does bring a cringe worthy reaction to you, then so should the cash bail system. In the colonial days, the government would set on a village and indiscriminately imprison every young man of a certain age, in hopes of identifying a culprit. In essence, they presumed everyone guilty, until they weeded out the innocent.

The cash bail system is not only fraught with this utter shameful grim of historical irony, but it puts the government in the direct path of mass production of more poor populations. It is not unusual to see a family turn to loan sharks, or dubious agricultural crop brokers for help in raising funds to free a petty crime suspect; further relegating poor families into immeasurable poverty.

We must break this structures that necessitate these kinds of judicial ‘end-justifies-the-means’ exploitations. Unless in war-time, the need for public safety should never supersede the freedoms of innocent people.

Hezron Karanja, VP Finance (Digital Media), Paramount Pictures International, Washington University School of Law.