Inside Out-Access to justice through Paralegals
Access to Justice / Advocacy Statements / ArticlesOctober 9, 20140 CommentsKituo Cha Sheria
Wilson Harling Kinyua is serving a life sentence inside one of Africa’s toughest jails – Kamiti Maximum Security prison in Nairobi, Kenya. He’s been there for 16 years. The way he tells it, he was an innocent bystander as an armed robbery played out nearby.
But that’s not how the authorities saw it. He was arrested and charged for being involved. Without access to a lawyer and unable to call on a character witness to vouch for his honesty, the young college student was convicted and despatched to Kamiti where he’s protested his innocence ever since.
Without a legal-aid system and with a critical shortage of lawyers and a courts choked with an insurmountable backlog of cases there wouldn’t appear to be much hope of Harling ever overturning his conviction and regaining his freedom.
Unless of course he was encouraged and enabled to make the case himself. Harling is one of many inmates who’ve taken the opportunity to learn about criminal law, participate in mock trials and review and critique judgments to become effective and persuasive paralegals.
Well, with the passion I have, every sentence I read in my book of law brings (a) smile. I now know what should be done. I am able to see wrongs are made even by judges. – WILSON HARLING KINYUA, Prison paralegal
It’s a phenomenon sweeping Kenya’s prisons, relieving the pressures on the nation’s legal system and that’s seeing profound injustices corrected, convictions quashed and prisoners who might’ve languished unrepresented for epic jail terms, set free.
Human rights is very hard. But when you come to a group of people who are ready to be empowered, who take up the knowledge with a thirst you have never seen before and are actually implementing the knowledge that you give them, it’s fulfilling. AIMEE ONGESO, Kituo Cha Sheria, Legal support NGO
Foreign Correspondent’s Sally Sara goes behind bars to explore this unorthodox yet wildly successful criminal justice program working from the inside out.
She gains access to prisoners-turned-paralegals, supporters of the program like Kenya’s Chief Justice and to its architect and principal promoter, one of the highest ranking women in the Kenyan Prison Service, Wanini Kireri.
I’m not a rebel. I’m just an officer with a human heart and a passion for changing the lives of inmates in whichever way, whether it is in the law or not in the law. I will always go out of my way to put in place something that can change their life and something that can rehabilitate them, so they can be able to lead better lives on their release. WANINI KIRERI, Senior Assistant Commissioner of Prisons.
Watch the video here:<http://www.abc.net.au/foreign/content/2014/s4102109.htm>copy and paste the url
SARA: This is Kibera, one of the biggest slums in Africa, home to more than two million people. They live hand to mouth and on the edge. Three quarters of their income goes on food. There’s high unemployment and no social net. The state plays little role in their lives. Sixty percent of Nairobi lives in shanty towns like this. When someone commits a crime, the victims don’t look to the government for help.
AIMEE ONGESO: “A big problem here is tenant issues”.
SARA: Aimee Ongeso works with an organisation that provides legal help to the poor.
AIMEE ONGESO: “So this lady couldn’t pay her rent. So what happens here is when you can’t pay your rent the landlord comes and removes the roof or removes the door”.
SARA: “Takes the roof off the house?”
AIMEE ONGESO: [Kituo Cha Sheria” Justice NGO] “Takes the roof off the house or removes the door. So when you go to your house, how can you…. you cannot sleep without a roof”.
“You cannot have a democratic nation or people who believe in the nation or the system if the justice system is down. People don’t have faith in the judiciary. So my neighbour steals from me. He takes my cow or he takes my TV, oh let me wait and go report to the judiciary. No, that will not work. So what I will do is take justice in my hands and beat him, probably beat him to death. And that is why even mob justice is still being done in the streets of Nairobi, because it’s quick justice for what we feel is unfair”.
SARA: With no legal aid system, there’s next to no chance that anyone here could find the means to pay for legal representation, so even the innocent can find themselves locked up for years.
AIMEE ONGESO: “You find a lot of people in detention do not even know why they’ve been arrested, don’t even have the charge sheets, and it is so sad they cannot afford a lawyer. If you’re rich, if you have the money, yes you can afford justice. Justice has become more expensive, just like petrol, just like buying a loaf of bread. The price of justice keeps going up”.
SARA: If life in Kibera slum is tough, life inside Kenya’s prisons is tougher. This video was smuggled out of the maximum security Kamiti prison in 2008 and shows wardens beating inmates during a search for contraband. The prison still has an infamous reputation, but we’re told it’s now a place of dramatic change and innovation – a place where convicts can take the law into their own hands, in a good way.
Kamiti is home to almost 2000 souls, including convicted terrorists, murderers and armed robbers. We’ve been given special access to meet them. We’re here to witness a ground-breaking program that’s turning convicts into legal counsel, in a kind of do-it-yourself justice revolution. It sounds unlikely, even absurd, but it’s working.
WILSON HARLING KINYUA: “Getting justice in Kenya when you are poor, is really like looking for a needle in a haystack. I can tell you that for sure”.
SARA: Wilson Harling Kinyua has been in Kamiti for sixteen years for a crime he says he didn’t commit.
WILSON HARLING KINYUA: “I did not have a lawyer. Of course my background was such that I could not afford one and therefore had to do it myself and at that time I could not be able to express myself the way I am expressing myself now. I could not even be able. The whole set up of the court itself was very intimidating”.
AIMEE ONESGO: “I’m not a lawyer but I have been to court. It just feels intimidating and I’m a very educated person. I come from at least a somewhat reasonable background you could say compared to these other people and you can imagine them in that situation”.
SARA: Harling was a young college student new to Nairobi when he was arrested for armed robbery. He says he was a bystander caught in crossfire but because his poor rural family couldn’t afford a lawyer and he didn’t know anyone who could vouch for his character, he was sent down for life.
WILSON HARLING KINYUA: “Actually that was too heavy for me. It was unexpected. It’s something I could not have even imagined, let alone even to dream about it”.
SARA: Harling lives in this cell with thirty-five other inmates. There’s no privacy and few comforts. Unless he successfully appeals his case in court, he will be here for the rest of his life.
“Tell me about this, this cell room here. Do you ever miss just having your privacy? Do you ever think I just want my own small space?”
WILSON HARLING KINYUA: “Very much. Definitely, you need sometimes your privacy and somewhere you feel safe and you can do your stuff without interference. Indeed it is difficult. It is difficult. I don’t think an ordinary person, given the same set up would be able to make anything but we have been able to adapt to the situation and we are driven by the ambition”.
(MOCK COURTROOM SCENE PLAYED OUT BY PRISONERS)
SARA: This is no prison pantomime. The inmates are re-enacting a real case.
It’s the trial of a young man accused of sexually assaulting an underage girl. Harling is playing the role of defence lawyer.
WILSON HARLING KINYUA: (MOCK TRIAL) “Your Honour, the accused did not take advantage of the girl. He demanded to know her age, but the girl refused”.
SARA: The prisoners have spent hours studying the hours and legal procedures. They may not be able to afford to pay a lawyer, but they can learn some of the tricks of the trade.
WILSON HARLING KINYUA: (MOCK TRIAL) “Your Honour, the girl dropped out of school on her own decision.”
SARA: The training teaches more than legal skills, it gives inmates like Harling the self-confidence to speak out. Before, he was frightened by authority.
WILSON HARLING KINYUA: (MOCK TRIAL) “Your Honour, anybody could have mistaken her for 18 years because she is too big, and all evidence points to that.”
WILSON HARLING KINYUA: “I did not know anything to do with the law, to do with the courts because I had never been to police station let alone the court itself. Well I feel that is now part of me. I wish somebody had discovered it when I was young, but I have realised that I have that talent and even being a lawyer sometimes may not be about academic. It could be you’ve got something inside yourself and that now coupled with the academic, then you can make, you can do an amazing job”.
INMATE ACTING AS JUDGE: “A prima facie case has been established against the accused person”.
SARA: The inmates are not trained as lawyers but as paralegals. They learn the basics of the law to represent themselves in court or write appeals for their cell mates. They argue the cases as if their lives depend on it.
INMATE IN COURT RE-ENACTMENT: “The physical appearance of the young girl does not allow anybody to defile her”.
INMATE ACTING AS JUDGE: “Ignorance of the law is not a defence. I accordingly sentence the accused to twenty-five years imprisonment.”
SARA: The paralegals work from this tiny office inside the prison. Some of the inmates who have exhausted their own avenues of appeal, work tirelessly for those who still have a chance.
Across Kenya, prison paralegals have won more than three and a half thousand cases in the past decade, allowing innocent inmates to be freed.
WILSON HARLING KINYUA: “Well with the passion I have, for me, every sentence I read in my books of law brings some smile that I now know what should be done. I am able to see even when wrongs are made, even by judges”.
SARA: You only have to spend a day inside a real courtroom here to realise what the accused are up against. It’s chaotic, disorganised and sometimes corrupt. The Kenya Government has drafted a legal aid bill but it’s yet to come into practice. There aren’t enough judges or lawyers and without money, it can take years for defendants to make their way through the system.
WANINI KIRERI: “We must appreciate the fact that most inmates may not be very literate. You will see most of them don’t even understand when they are told this is the charge, this is the offence. They are not even aware of what was happening to them while in court. So now that these organisations have really come up with the good practices, of para-legalism and assisting the inmates, then they do the training and the inmates are empowered”.
SARA: Wanini Kireri is the woman who’s made it possible for so many prisoners to hit the books and win their freedom. She’s worked in Kenya’s prison service for 32 years and is now one of its highest ranking women. After hearing about paralegal training at a conference back in 2002, she invited human rights activists into the prison to give it a try.
WANINI KIRERI: “It takes a lot of courage and risk taking because you are doing things that have not been done before. You’re probably doing things that maybe others will say you broke the laws. So it takes courage. Sometimes it’s painful, sometimes the fruits are also very positive and sometimes you cry and sometimes you’re happy. But for most of the time, it’s been very positive for me and I feel inspired”.
AIMEE ONGESO: “Madam Wanini Kireri, if I could, I could give her a Nobel Peace Prize myself – I would. It’s very difficult to penetrate the prison system because it’s a very strict system. It’s very rigid. It’s very bureaucratic. But because of her help in holding our hand through the system, we had a very easy time”.
SARA: Today Wanini is guest of honour at a talent show in Langata Women’s Prison, a highlight in an otherwise pretty predictable calendar for the inmates. Not too many prison officers would get this kind of heartfelt praise from their charges.
HELEN NYOKABI, INMATE: “She’s a wonderful woman. We love her. Madam Wanini just listen. She has a heart of listening to you, your problems. Just to draw you closer to her”.
SARA: Langata is not just home to female inmates, but to dozens of children, too. The youngsters can stay behind bars with their mothers until they turn five years old.
WANINI KIRERI: “Yeah, they are human beings, and it’s important that people recognise the fact that nobody chooses to go to prison. It can be my sister, it can be your sister, it can be my brother. I’m not a rebel, I’m just an officer with a human heart and a passion for changing the lives of the inmates, in whichever way. And whether it is in the law or it is not in the law. I will always go out of my way to put in place something that can change their life and something that can rehabilitate them so they can be able to lead better lives on release”.
SARA: For decades this was a place of no return – death row. Now, it’s the cell block for inmates serving life sentences at Langata. Carol Shiku was convicted of armed robbery and sentenced to life in 2009.
CAROL SHIKU: “I was in shock actually and my family was there. They were already waiting for me. I didn’t expect that. So it was shocking thing. I didn’t even need to talk to my family because I was wondering how to tell them. Actually, I remember I told my sister not to tell my mum the sentence that I was given”.
SARA: Carol is now one of Langata prison’s paralegals. Despite having little formal education, she excelled in her legal training. It’s an incredible achievement.
CAROL SHIKU: “I’m honoured, because I feel now that I can help others. As for me, if I could have that knowledge, even from the beginning, from the police station, I could have not been here”.
SARA: “Some of the paralegals, are they better than the lawyers?”
CAROL SHIKU: “Yeah… you know they… they are serious. Paralegals are serious in their work. More than lawyers. You know lawyers they feel…”.
HELEN NYOKABI: “They are after money”.
CAROL SHIKU: “Yeah, they are after money”.
(CAROL EXPLAINS LEGAL PROCEDURES TO OTHER INMATES)
SARA: Carol’s cellmate, Helen, was convicted of cattle theft in 2009 and sentenced to nine years in gaol.
HELEN NYOKABI: “Being in prison is like being separated from everything. You don’t have any rights. So even if you had rights before, when you come inside here you don’t have any rights any more. The hardest time that you will ever get in your life”.
SARA: Carol and Helen are now using their legal training to write appeals and give advice. Today they’re helping Janet who has also been convicted of armed robbery. Between them, they have already won dozens of cases, allowing their fellow inmates to go free. The victories are cause for big celebrations.
CAROL SHIKU: “It’s so good. It feels good”.
SARA: “How does it feel in your heart when you’ve helped someone to get out?”
CAROL SHIKU: “We feel good”.
HELEN NYOKABI: “We feel good. We feel good. Even to get somebody that you assisted, and that person is released, you feel good. You feel like you have worked”.
SARA: “That must be the best?”
CAROL SHIKU: “It is the best time”.
SARA: The paralegals don’t just work in the big city gaols. They’re having victories in the countryside too, where their role is even more crucial. Often the situation is even worse out here in the rural areas. There are very few lawyers outside the city and many of the local people here only have limited education. We’re on our way to meet a man who had to spend years to not only clear his name, but to get out of prison. He’s one of the success stories of the paralegal movement here in Kenya.
Martin Munene Mwai is still adjusting to life on the outside. He’s back home with his family now but he lost more than a decade in and out of court fighting wrongful charges of fraud in connection with a land deal.
The school he used to run is derelict, he couldn’t keep it going through all the legal battles.
“So your lawyer didn’t help you, so you started helping yourself is that right?”
MARTIN MUNENE MWAI: “I helped myself, yeah. Even that lawyer, I told him to refund my money. I told him to refund my money. In fact he was very ashamed because I helped myself”.
SARA: “Do you feel sorry for the inmates who are still inside?”
MARTIN MUNENE MWAI: “Yes of course, of course yes because nobody likes to be in prison”.
SARA: Martin has agreed to take us to Nyeri prison where he was held illegally. This will be the first time he’s returned since he was released last year.
“What does it feel like Martin to be coming back into here? Does it feel strange?”
MARTIN MUNENE MWAI: “Yeah, I’m very happy in the first place to visit in the prison once again”.
SARA: “So what about here? This is the… this is the kitchen area here?”
MARTIN MUNENE MWAI: “Yes that is the main kitchen. I cannot forget that place because that’s where we’re getting our food from”.
SARA: He was sentenced to five years gaol for fraud, even though the maximum possible sentence was one year. While he was inside, Martin decided to take part in a paralegal training course. He found he had a talent for the law. He says he will never forget being locked up as an innocent man.
MARTIN MUENE MWAI: “I was afraid and very worried. I even became sick, because I am there and nobody would believe that I’m not a criminal, and I’m innocent. I could not tell anybody, you know, the strictness of the prison. So I’m to keep quiet there”.
SARA: Martin kept writing letters to the chief justice arguing his case. Eventually the judge who wrongly sentenced him was removed from the bench for misconduct, only to be later reinstated.
Martin didn’t just get himself out of gaol. Incredibly, he also won appeals for 36 of his cellmates but many others are still stuck inside.
“How many years have you been inside?”
INMATE #1: “Now 15 years”.
SARA: “15 years. When you see someone like Martin can get out, does it give you some hope that maybe you can get out too?”
INMATE #1: “Yeah it can give me some hope because I’m always having that hope in me, inside. I can’t lose that hope. One day I will do something better in my life also”.
INMATE #2: “Poor people like us, we can stay here for life. But even if I had a big person outside, unfortunately it is very hard to get out. Very hard”.
SARA: “So if you’re poor you will stay here for a long time”.
INMATE #2: “Yeah. Look now, like this one here… have 27 years in prison because he don’t have somebody to follow him. He’s come from a poor family”.
(ENTERNG ‘B’ BLOCK)
SARA: So this is ‘B’ Block, for convicted prisoners?
MARTIN MUNENE MWAI: Yeah, convicted prisoners.
(POINTS) This was my house.
SARA: This cell was Martin’s home during his time in gaol.
“So what’s going through your mind Martin to be back here after a long time, what are you thinking?”
MARTIN MUNENE MWAI: “I’m happy to see where I was sleeping but I would not like to come back here”.
SARA: It’s hard for him to describe the joy he felt when he finally beat the system and won his freedom.
MARTIN MUENE MWAI: “It’s like a chicken when it has been locked in a cage and the door’s been opened for it. I was very happy in the first place. And… let me tell you, nobody would like to look back at that gate. When you’re told to walk, you just walk straight, without looking back, because it’s not a good place”.
SARA: Back in Kamiti prison in Nairobi, Harling is focusing on his own appeal.
WILSON HARLING KINYUA: “I’m very optimistic judges will listen to me and they’ll give me that opportunity, because now I’ve done law, I know what I’m asking in court. I know it has basis in law”.
SARA: He hasn’t wasted any of his 16 years behind bars. He’s in the final year of an accountancy degree and he’s just won a scholarship to study law externally at the University of London.
WILSON HARLING KINYUA: “I was very excited, very, very excited and I am giving it all… my all, and I know I’m going to pass. If I get my degree in law and now get an opportunity to go out there, that will be the happiest moment of my life”.
SARA: For Aimee Ongeso working with people like Harling is a privilege, despite the attitude of many Kenyans towards prisoners. It’s not about guilt or innocence, it’s about equality.
AIMEE ONGESO: “So it is very challenging to go into areas that are seen as do not touch by the rest of the community, but when you come to a group of people who are ready to be empowered, who take up the knowledge with a thirst that you’ve never seen before and are actually implementing the knowledge that you give them, it’s fulfilling. When you’re a human being, you’re a human being irrespective of whether you’re a prisoner or not. So access to justice is a long journey, it is difficult but there is hope”.
Story by Sally Sara of Australian Broadcasting Corporation (ABC).07/10/2014
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