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KENYA:We must stop criminalising poverty

By Collins Odote A fundamental tenet of any civilized society is the guarantee that the rule of law is the basis of governance. This requires that everybody is treated equally before the law. The law is the balancing scale against which every action and individual is weighed. It is not about how mighty or rich one is in society.

When Kenya adopted the 2010 Constitution, there was a democracy deficit in many aspects of governance. Consequently, the Constitution sought far-reaching and transformative changes to the society. One key area of reform focus was in the manner justice was accessed and administered. Evidence of the journey the country has walked since then is easily visible across the country.

Last week I visited Garsen Law Courts in Tana River County. Bordering Lamu and importantly Boni Forest, the area is consequently a security risk area. The court, while a prefabricated structure was not only neat and modern but easily compared favourabe with courts in several parts of the country. It was not only spacious, but very well designed.

To imagine that a few years earlier, residents from this region used to travel even longer distances to access justice, one acknowledges the strides our justice sector has made.

Despite this there are still many hurdles that citizens must face so as to access justice. A recurring theme in several of the challenges boil down to the impact of poverty on accessing justice.

In 2016, the National Council on the Administration of Justice published a report which audited the State of the Criminal Justice System in Kenya. The findings of the report, although not unexpected were startling nonetheless. They confirmed that the criminal justice system was skewed against the poor.

First, the report revealed that majority of those in remand and prisons were the poor. Several facts explained this state of affairs, ranging from the continued existence of offences in the law books whose sole focus is to make a crime to be a poor person.

Take the offence of being drunk and disorderly and related offence that flow from drinking. If one goes to many courts in this country, especially on Mondays, there will be a majority of accused persons taking pleas for this category of offences. Invariably almost all such persons are poor.

Secondly, the Constitution guarantees suspects the right to bail. Bai should only be denied if there are compelling reasons to do so. This issue has become a topic of conversation in light of renewed action by the office of the Director of Public Prosecutions having suspects accused of corruption being arraigned in court.

Courts have denied bail to some of these suspects raising the question about the conditions for the grant of bail.

However, a more disturbing issue remains unaddressed. Many Kenyans languish in remand facilities because of their inability to raise bail. Even when the terms are reviewed to very lows sums, because of the poverty levels in several parts of the country, accused people are unable to meet the bail terms. In such circumstances one ends up staying for long in remand facilities. If one is charged with a petty offence, by the time the case is heard and a verdict issued, the time already served in the remand facility may be more than the penalty one eventually gets issued with by the courts.

Thirdly, the right to legal representation is fundamental to the delivery of justice. Criminal cases are prosecuted by lawyers who are trained and employed by government as prosecutors. In many parts of the country, there are not enough lawyers to represent accused persons.

Unfortunately, due to poverty, several accused persons are unable to afford legal representation. This tilts the scales against such accused persons. It is for this reason that by law, those accused of murder are entitled to an advocate paid for by the state. This though leaves out those charged with other offences. In addition, due to the limited sus paid for such advocates, there is normally reluctance and insufficiency of representation.

It is important that practical steps be undertaken to address the criminalization of poverty. Such steps must include operationalization of the Legal Aid Act though budgetary allocations to guarantee that poor people who need legal representation can access it.

In addition, the laws must be amended to remove offences that only target poverty and poor people. It is also important that courts and society embrace alternative forms of punishment other than just jail terms and fines so that we reduce the number of poor people languishing in jail for petty offences.

Published by: https://www.businessdailyafrica.com/analysis/columnists/We-must-stop-criminalising-poverty/4259356-4675902-1051dy7z/index.html

Photo credits: NMG

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