Justice Delayed Truly is Justice Denied

Today I spent several hours in Nairobi’s Industrial Area Remand Prison, which houses more than 3000 inmates in a space designed to hold 800.  The vast majority are persons charged with more minor crimes that are slowly – very slowly – working their way through the “trial” process.  

The prison has another relatively small population of convicts found guilty of non-violent crimes.  Their heads are shaved and they wear black and white striped uniforms consisting of short sleeved shorts and drawstring pants.

I sat just inside the prison in a small, open room with a prison cage in one quarter, benches in another, and a table along the other half.  While I was there, several small contingents of convicts came and went through the entry hall next door.  They seemed generally composed.  The guards I saw, and there were many, many guards, were positive, relatively respectful to the prisoners and some very helpful to our small group of interviewers.

The prison also houses several hundred suspects who are charged with capital offenses, such as armed robbery or assault with a dangerous weapon.  Unlike the other inmates, they are dressed in khaki t-shirts and long shorts and are hand-cuffed together when transported outside their cells.  And some of their stories are chilling.  Chilling not because of the accusations against them, but rather because justice has abandoned them.

Earlier in my stay here in Kenya, I noticed in the paper that a person charged with manslaughter might get four years in prison, but then another person who stole $40 was sentenced to hang.  I wondered how that could happen, but learned today that is because a conviction in Kenya for armed robbery has a mandatory death sentence.  Period.  The punishment was initiated in colonial times and has never changed.  (Note that no one actually has been put to death in Kenya for decades; the sentences are commuted to life.)

There also is no chance of bail for a person charged with a capital crime.  So he or she sits in jail until acquitted or convicted.  And that can take years.  (See my blog entry on April 13describing the “trial” process.)

Here are three examples where justice lost its way.

1.         John has a wife and three kids.  He used to operate a pull-cart service during the day, normally working from early morning to early evening.  At night he took a matatu to get home. 

Matatus, a form of public transport, are vans that hold 12-15 people.  They operate on a supply/demand basis; a ride that cost 20 kes (25 cents) at 10 in the morning could cost you 70 kes (83 cents) during rush hour.  The difference is significant when the average daily pay for a Kenyan is 100 kes ($1.19).  The drivers are notorious for ignoring traffic rules and paying off the police to ignore their infractions. 

            One evening last November, John was waiting for a matatu to go home to his family.  Several of them were charging 70 kes, although one driver said he would only charge 50 kes.  That van filled quickly.  The driver then told the people in the bus he had changed his mind and was going to charge them 70 kes.

            Several riders left the bus and started throwing rocks in protest (a person throwing rocks is considered armed), breaking some of the van’s windows.  John remained inside with his brother and a co-worker.

            The driver then closed the door and drove as fast as he could to the police station.  As the driver parked and ran into the station, claiming he had a van full of thugs, the riders started to leave the bus, justifiably fearing what was going to happen with the police.

            John was the last to leave the van.  As he stepped down, the police shot him in his knee and leg, causing serious damage.  John had done nothing other than sit in the van and then step out at the police station; there is no witness who says otherwise.

            The police took John to a hospital.  Although he was medically discharged on January 7 (with a cast and a walker), John was not allowed to leave because his bill had not been paid and because the police had dropped him off.  The hospital insisted the police had to come in order to let John leave. 

            John stayed in the hospital and slept on the floor until the middle of February, when the police finally came and took him to prison.  The next day he went to court and was charged with armed violence, a capital offense.  That is the first time he heard the charges against him.

            There is nothing in the police file identifying anyone who saw John do anything other than sit in the van and leave when it stopped.  There is no one who saw John do anything to justify the police shooting.  Both his brother and his co-worker completely corroborate his version of what happened.

In the meantime, John is still in a cast and must use a walker to get around.  The prison cannot afford to fill his prescription for pain-killers and will not allow anyone else to bring them to him.  John cannot leave until he is acquitted, which could take years.

            There’s been an “indication” that if John paid the matatu driver 50,000 kes ($596) and signed an affidavit that he would not sue the police for his shooting injury, the prosecution would not go forward.  Eventually the magistrate would dismiss the case.  John’s family does not have the money.

2.         William is a 17 year old high school student.  Last August he bought a cell phone from a man on the street.  One day he got a call from a man who asked William to identify himself.  William did so and told the caller that he was at school. 

            Later that day William was arrested at school and taken to the prison in his school uniform.  He was charged in court the next day with armed robbery and attempted murder, both capital offenses.  Because those are the charges, he is not eligible for release on bail.

            The sole evidence against William is the cell phone, which was stolen during the robbery.  The evidence from the cell phone records is undisputed that William was the 4th person to use the stolen cell phone since the robbery.  The first, second and third users have not been arrested.

            Since William was imprisoned last August, the prosecution has not yet called even one witness to support its charges against him.

3.         Steven was in his first year at the University of Nairobi and doing well.  He went to a pub one night to drink beer and watch a soccer game.  The pub was crowded and a good mood prevailed since the game was going well for Kenya.

            Another customer told Steven his phone wasn’t working and asked if he could put his sim card into Steven’s to make a short call.  Steven laughed and gave him the phone.  The man started to talk on the phone, but then said it was too loud in the pub and he was going to step outside.  He disappeared with Steven’s phone.

            A few days later, a man was robbed and beaten by an unknown assailant, who dropped a cell phone.  When the police recovered the phone, it was identified as Steven’s.  Based solely on that evidence, the police went to Steven’s home and took him to prison.  He was later charged with the armed robbery and assault, a capital crime with a mandatory death sentence and no chance of parole.

            Steven eventually was acquitted.  Not only was the phone the only evidence the prosecutor had, Steven had multiple and credible witnesses who placed him far from the crime at the time it happened.

            The very good news is that Steven is now back in the university, and positive and upbeat about life in general.  He tries to forget that he was in jail for more than two years waiting for his acquittal.