Inmates numbers keep prisons top brass awake

The population of inmates continues to surpass the prisons’ holding capacity despite attempts to decongest the facilities through alternative dispute resolution.

The official capacity of prisons in Kenya is 26,687 but data from the Kenya National Bureau of Statistics (KNBS) shows that daily average population of prisoners was 53,348 as at December 2019.

The official statistics indicate that of the daily prison population, 29,796 were convicted inmates while 23,552 were remandees.

There have been efforts to decongest prisons through steps like plea bargains and non-custodial sentences.

The number of Kenyans languishing in jail stood at 219,295 out of which 141,948 were unconvicted prisoners as at 2019.

According to the Economy Survey, 2020, a total 77,347 persons were convicted prisoners in the year under review.

Of this number, offences related to liquor accounted for the bulk of the convicts at 22,122.

The Correctional Services says the number of inmates who received basic necessities at taxpayers’ expense rose by 1,667 in the year to June 2019.

The department says 54,500 inmates were provided with basic necessities compared to 52,833 as at August 2018.

Sophistication in crime, including terrorism, extremism or radicalisation, cybercrimes and hackings have combined to keep the numbers soaring, the government says about offender management.

It lists drug and substance abuse as other challenges that have led to more resources being re-allocated to address the problem at the expense of planned programmes.

Austerity measures imposed by the Treasury from time to time also slow down the effective implementation of the planned activities, the Interior ministry says.

The Treasury allocated the Correctional Services unit Sh26.6 billion which was made up of Sh26 billion and Sh639.6 million for recurrent and development respectively.

“The State department made key milestones in terms of achievement of its core mandate of offering effective correctional services as well as facilitating efficient, effective and expeditious administration of criminal justice.

“Key among them are provision of basic necessities to 54,500 inmates, enhanced rehabilitation of inmates through provision of formal education to 6,202, vocational training to 11,884 and professional training to 3,602 contained offenders,” Fred Matiang’i, the Cabinet Secretary for Interior, says in a brief on Correctional Services audit report to Auditor-General Nancy Gathungu.

Dr Matiang’i said the department also enhanced the enforcement of court orders through supervision of 153,691 non-custodial offenders serving probation orders, community service orders and Power of Mercy supervision respectively.

“The State Department also facilitated administration of criminal justice through preparation and submission of 81,847 social reports to courts and other statutory penal institutions,” Dr Matiang’i said.

A report by the United Nations Office on Drugs and Crime (UNODC) titled Baseline Study: Programme for Legal Empowerment and Aid Delivery in Kenya indicates that the number of remandees is higher than those convicted in many prisons such as Eldoret Prisons and the Main Nakuru Prisons.

The UN agency said there are only 121 court stations in the country manned by some 600 judicial officers, placing the ratio of judicial officers to the population at 1:67,000 which compares poorly to some established democracies.

President Uhuru Kenyatta on December 31, 2018 assented to the Statute Law Miscellaneous Amendment Act No. 18 of 2018 which gave effect to many statutes including the Probation of Offenders Act Cap 64 and the Community Service Orders Act. The said amendments took effect on January 18, 2019.

The amendments to the Probation of Offenders Act makes it mandatory for pre-sentence reports to be prepared by a Probation Officer before the making of a probation order.

Further, it grants the court the discretionary powers to ‘consider the view of the victim as contained in the pre-sentence report prepared before making a probation order.

The Community Service Orders Act says the court must get a probation officer's report before making a Community Service Order.

The National Council on the Administration of Justice (NCAJ) has been pushing for alternatives to imprisonment and promotion of their use.

Hundreds of thousands of poor, vulnerable and marginalised individuals without sufficient legal knowledge to defend themselves or to hire a lawyer to represent them have found their way to prison cells.

A 2018 rapid assessment by office of the Director of Public Prosecutions (DPP) contained in a preliminary report titled All for Justice: Remand Action Plan shows that there is a huge population of remandees, most of whom should not be in remand.

Article 49 (2) of the Constitution stipulates that a person shall not be remanded if the offence committed is punishable by a fine only or by imprisonment for not more than six months.

Prison overcrowding is one of the greatest challenges facing the criminal justice system.

A Judiciary task force in 2015 established that stringent bail terms were behind congestion in prisons, leading to a biting food shortage at the correctional centres.

The task force appointed by Chief Justice Willy Mutunga noted that courts are slapping stringent bail conditions on fears that the suspects could abscond, leading to crowding.

“Sadly, the majority of these remand prisoners are accused of petty and non-violent offences,” the team headed by High Court judge Lydia Achode said in a report.

“While most police officers and courts recognise the limited nature of the constitutional right to bail and bond, they are still grappling with the question as to what entails ‘compelling reasons’ to warrant denial of bail. This has led to varied interpretations and application of the provision by courts and police, leading to disparities in bail and bond terms,” Justice Achode said.

The task force established that in most cases where accused persons were released on free bond, they did not attend court, prompting the issuance of warrants of arrest.

This often doesn’t go down well with the police who have to execute the warrants.