Where you live goes a long way to determining whether you get justice or not, a new audit of the criminal justice system reveals.
The length of time detainees spend in police cells, whether they end up being charged in court, the time one’s case takes to be completed and chances of the case resulting in a guilty verdict vary widely, depending where one is located.
In Garissa, according to the audit, all the people detained by police (100 per cent) were released the same day that they were held.
By contrast, in Kondele, Kisumu, only 16 per cent were released the same day. In Lodwar more than a quarter spent more than two days in detention, the highest proportion among the 18 counties audited.
The audit reveals unfairness of the system towards poor defendants. Charges in serious offences are often dropped, while petty offences have high rates of convictions. Robbery with violence cases are most likely to withdrawn before completion, which could suggest initial arrests based on insufficient evidence, or of corrupt practices.
On the opposite spectrum more than 80 per cent of nuisance offenses and violations of state regulations end in a guilty verdict.
Chief Justice Dr David Maraga, told Newsplex that the justice system impacts the poor more. “Part of this unfortunate reality is that justice has a poverty face,” he said. “Rich people can afford expensive and smart lawyers; poor people are disadvantaged in this regard and this is a matter that we must address; the Legal Aid Act is a good beginning in this respect.”
Dr Maraga added that in criminal cases where the defendant was represented by a lawyer, cases have on average 523 days, or one year five months more than when there is no lawyer.
“Rich people who have this representation can therefore afford to tactfully delay cases, which sometimes lead to loss of interests by witnesses which in turn may weaken the prosecution's case,” said the Chief Justice.
DISCRETION OF THE POLICE
The audit also found that large numbers of people are arrested and detained in Kenya. One in 13 adult Kenyans, about 2.2 million people, spend time in police cells each year, according to the report by the National Council on Administration of Justice in collaboration with Legal Resources Foundation Trust and Resources Oriented Development Initiatives.
At the launch of the report, the Chief Justice specifically listed the Judiciary, the Police, Office of the Director of Public Prosecutions, Prisons, Probation and the Children’s Department as having a lot of systemic, structural and agency challenges that require urgent attention.
Persons detained in police cells can only be held for two days for non-capital offences and 14 days for capital offences, according to statutory limits.
Nationally, one in eight detainees are held beyond the statutory two days, and five per cent spend more than five days in police cells. In more than two-thirds (64 per cent) of cases, the reason for release from police cells is not recorded. This could suggest appropriate police practice for petty offences or corrupt practices.
The report that was released this year suggests the police bring just over 200,000 charges to court each year. When the charges are contrasted with the charge registers in police station it means that 68 per cent of arrests do not result in charges in court and are left to the discretion of the police.
Here too there huge are disparities by location. For instance, just seven per cent of cases in the charge registers in Garissa, 12 per cent in Kilimani, Nairobi and 20 per cent in Lodwar, Turkana resulted in charges in court.
The low rates of conversion in the three counties with the worst record suggest a high degree of discretion being exercised by police in arresting and releasing without charging in court, in some instances through withdrawal of complaints by victims.
There was more than 100 per cent conversion of police cell detentions to charges at Kondele in Kisumu and Maua in Meru which suggests transfers from other police stations to the court at those locations, without time being spent in police cells.
A review of the report by Nation Newsplex finds that police cells are full of people accused of petty crimes that could be solved through administrative fines.
Except for sexual offences, victimless offences have a higher than the average rate of translation to charges. Indeed, 37 per cent of cases filed in court are for minor offences such as drunk and disorderly, state offences (involving licensing, certificates or compliance with business rules concerning opening hours, forest produce, etc.), loitering, disturbance or nuisance.
In many countries like South Africa and Australia such offences do not result in arrest and detention but are dealt with through administrative fines.