A majority of remandees are wasting away in custody even though they had been granted bail, some for longer than they would spend in prison were they to be found guilty of the offences they have been charged with.

Nine in 10 suspects in pretrial custody have been granted bail or bond but cannot afford the terms, reveals an audit by the Office of the Director of Public Prosecutions (ODPP). About the same proportion have no legal representation.

Remandees spent an average of 12 months in custody awaiting trial, according to the case review exercise that involved interviewing 2,100 or more than 70 per cent of the pretrial detainees held at the Nairobi Remand and Allocation Prison, and Nairobi Medium Security Prison. At least 13 detainees had been held in remand for seven to eight years while eight had mental illnesses. Another two per cent were minor offenders whose punishment is either non-custodial or punishable by a sentence of less than six months if they are found guilty, e.g. creating disturbance.

The secretary for public prosecutions, Dorcas Oduor, says unnecessary delays of trials go against the principle that one is presumed innocent until proven guilty and constitute a denial of justice.

If a person has committed a criminal offence and suffers from a mental health problem, his or her fitness to stand trial may be questioned. A person is unfit to stand trial if, because of a mental disorder, he or she does not understand the nature, object and possible outcome of a charge or is incapable of communicating with counsel.

An earlier Nation Newsplex review of criminal justice data found that if the State was to confine itself to holding in remand only those accused of violent offences, the number of men in remand would reduce by two-thirds and women by half.

Figures from the survey show that one in eight of the remandees were granted bail and or bond terms of Sh1 million and above, with the highest bond given being Sh10 million. About a third were offered bail terms of between Sh250,000 and Sh500,000 while more than half (53 per cent) were awarded bail worth Sh250,000 and below. Six per cent of those in pretrial custody were granted bail amounting to Sh10,000 and below with the lowest being Sh500.

Among the suspects awaiting trial is Mr John Wawire, 35, who has been in remand for more than nine months despite the court granting him cash bail of Sh30,000.

The father of four landed in remand following a brawl with two other people. He has been charged with preparing to commit a felony, according to the remand committal warrant. On the fateful day, the employee of a flower company in Karen who earned Sh7,800 weekly went out for drinks after receiving his wages before setting off to meet a lady ‘friend’. He found her with another man. They got into a fight and the two thoroughly beat him before calling the police on him.

He thought the police would take him to hospital but they took him to a police cell. He was first arraigned in November 2017 and later transferred to Nairobi Medium Security Remand Prison when he failed to pay the bail. Since then his case has been mentioned in court eight times, with no end in sight almost 10 months later.

Denial of justice

The secretary for public prosecutions, Dorcas Oduor, says unnecessary delays of trials go against the principle that one is presumed innocent until proven guilty and constitute a denial of justice.

The most common reason given for prolonged detention was slow trial process and bureaucracy that affected a third of those interviewed, and witness or complainant-related delays that involved about a quarter of the study participants.

The secretary for public prosecutions Dorcas Oduor during an interview with the Nation at the Shimo La Tewa Prisons in Mombasa County in February 2018. PHOTO | FILE

In the two years and four months that Kevin Sanya, 23, has been in remand at Nairobi Medium Security Remand Prison, his case has been mentioned in court 27 times and each time it ends up being postponed because the complainant fails to show up for the hearings.

Sanya was charged with stealing a motor vehicle in 2016 at a residence along Nairobi’s Lang’ata Road. The former security guard who used to earn Sh8,000 a month was granted cash bail of Sh200,000 before it was reduced to Sh50,000.

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