Access to JusticeAugust 19, 20200 CommentsKituo Cha Sheria

University of Nairobi egghead, Tom Odhiambo states, ‘indeed, if Kenyans were to remember Moody’s public service in future, his prison reforms will always remain his strongest point.’[1] In his book, Riding on a Tiger, the former vice presidentis rightfully famed for his astute voice and steps towards reforms in prison. The book recounts the systemic challenges he confronted at the time. He is however grateful of the support lent by the then President, Mwai Kibaki and key technocrats in the department. Those in prison at the time felt the difference after years of repression and pain.  Courtesy of his interventions, prisons acquired the reflection of reform credentials than punishment centres. Inmates got respectful buses, could engage more freely with officers and opened facilities to more human rights assessment.

Soon after Moody’s progressive involvement, the paralegals at Shimo La Tewa in collaboration with Kituo Cha Sheria successfully petitioned for their political rights to vote. In 2017, inmates cast votes for their preferred presidential candidates for the first time in history of the Republic of Kenya. Despite that stride, the right to vote is yet to be fully realized in prisons. The infrastructure to facilitate this exercise remains inadequate. In the last elections, they couldn’t vote for other seats other than president. This matter needs urgent address ahead of elections in 2022. In the very elections, less than 10 percent qualified to vote. We are at that moment when IEBC in collaboration with Prison department and the National Registration Bureau should initiate the process of raising these numbers.

You may be seeking to know how voting will improve their standing. Like every Kenyan, the right to vote is enshrined under article 38 of the Constitution. The moment a decision to elect other officers shall be made, candidates will embrace inmates’ interests in their manifestos and into the obligatory policies. Discourses on who ends up in prisons, like whether they are only built for poor, yet billionaire thieves continue plundering public resources with reckless abandon shall ensue. It may speak to rate of crime and improve research. In short, engagement in elections will augment their citizenry participation as enshrined in the constitution.

For the last one year, Kituo Cha Sheria has been implementing a project called Njia Za Haki, supported by European Union and UNDP Amkeni Wakenya. It is part of the novel Programme for Legal Empowerment and Aid Delivery in Kenya (PLEAD), a partnership involving Government of Kenya, European Union, United Nations and the Civil Society. It is framed to enhance access to justice for the poor and marginalized strengthening institutions and sensitizing communities. Kituo has been working closely with the prison department, specifically Shimo La Tewa men and women facilities in Mombasa County. This is besides the community justice centres– KICODI and Stretchers Youth Organization in Kisauni and Changamwe respectively.

Arising therefrom, the organization has trained 60 paralegals, 30 apiece in the prison facilities. Good luck, 35 have exited the facilities. These paralegals are inmates with basic education certificates. They can read and write. The training equips them with basic knowledge of the law. The knowledge empowers them to guide fellow inmates, including those under remand. They draft pleadings and ensure their counterparts have the requisite confidence to articulate perspectives in court, more a time, against state counsels. The remandees and those seeking appeals can cross examine witnesses, offer plausible responses and defenses of matters at hand. Paralegals participate with marvelous vigour. Their work is well structured. They write their own reports and update partners on progress. They conduct competitive moot courts for their practice. In the last one year alone, they have drafted 176 petitions, 205 submissions and guided acquittals of 180 persons. In the same duration, 125 sentences were reduced. Kituo forwards stationery on monthly basis, besides the requisite visits to assess progress. This model can work for all prisons in Kenya if the Legal Aid service is facilitated to work in the replica defined under the Legal Aid Act, 2016. 

Njia Za Haki has provided an opportunity for partners to seek answers on status of reforms, specifically the matter of the death sentence. You recall, in 2017, the Supreme Court delivered an earthshaking finding.  It directed that the mandatory death sentence in the current form be annulled and necessary amendments ensue to the Penal Code. The decision is pending implementation. It is somewhere between the office of the AG and Parliament. While the state agencies remain in the la la land, courts have embraced this precedent. Those who have been in prison for over 20 years, including, under death row are exiting. The chair of the paralegals, Mr. Yusuf Shiunzu equates the judgment to the biblical Paul and Silas.

However, guidelines are essential for clarity. In the current form, there are possibilities of abuse by court and those seeking justice. For instance, at the point of petitioning courts, the positions of the victims are never sought. A report showing extent of progress and reform, from an independent eye are hardly availed or considered. These are gaps that the legislature should be keen to address. 

While at it, the Hon. Attorney General and responsible state officers should strengthen institutions of access to justice for the poor. The Legal Aid Service remains hollow with few staff and inadequate funds to run its affairs.

Finally, it is empirical that those exiting Prison facilities, especially those who served long sentences deserve sustainable and practical solutions to avoid recidivism or neglect and subsequent premature deaths. Even though the path to prison reform is still long, it must embrace access to justice for the poor. Let’s continue walking.

Mr. Zedekiah Adika is a program officer at Kituo Cha Sheria and convener of Coast Civil Society Network,the%20life%20of%20different%20people.

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