Families of inmates lose income, forfeit education opportunities and incur generational disadvantages as a result of pretrial detention. Women and children, in particular, are significantly affected. Women in prison can no longer care for their families, either through domestic work or outside employment. Young children are detained with their mothers, left with relatives or forced out of their homes.
Detainees’ spouses must often either quit jobs to care for the family or leave home to work for lost income. Children are less likely to attend school and more likely to engage in crime.
These challenges are just but an example of what unnecessary pretrial causes.
Kenya should shift from a punitive society to a reconciliatory one and a robust awareness on Alternative Dispute Resolution, anchored on Article 159 of the Constitution, embraced.
The public should be aware of alternatives to litigation in cases that allow and are not repugnant to justice or contravene the Bill of Rights. Alternative methods such as mediation, negotiation, arbitration and traditional dispute mechanism should be promoted.
Secondly, the plea bargaining concept, as provided for by the Criminal Procedure Code, should be promoted. Either the prosecution and defence can initiate plea agreement negotiation in instances that the law allows, especially where there are no victims.
Lastly, judges and magistrates ought to give favourable bail and bond terms. Bail and bond are constitutional rights under Article 49(1) (h).
At times, bail and bond terms are equated to the gravity of the offence without considering the accused person’s ability to raise the cash or surety. This defeats the constitutional spirit of the rights to an arrested person and the concept of fair trial.
Notably, accused persons who are out on bail or bond are likely to get acquitted as they can prepare for their cases adequately.
Inmates, whether remanded or convicted, are kept in prison at the taxpayer’s cost. It costs Sh210 a day to keep a person behind bars.
With more than 54,000 prisoners, you can do the math! Add to that the fact that the productivity of the prisoners is impeded.
Mr Muthuri is a legal aid manager at African Prisons Project. [email protected]