An audit report in Kenya’s criminal justice system paints a tragic picture on women access to justice.
It portrays state organs as the worst enemy of Kenyan women and reveals that a significant number of women languishing in jails and remand homes have been convicted of petty offences.
These offences include hawking and trading without valid license, loitering and nuisance, which account for 33 percent of women in remand home.
The same audit report commissioned by Resources Oriented Development Initiative-RODI-Kenya, and organization dealing in crime prevention, rehabilitation and integration of ex-prisoners in the community and Legal Resources Foundation Trust states in part “Of concern is the prominence of offences against the state at 13percent among men and 26percent among women. Many of these offences are simply about people attempting to earn a living and involve state interests, which could perhaps be better served using mechanisms other than criminal law and deprivation of liberty.
Incarceration in a prison is a serious deprivation of liberty and questions abound on whether the interest the state supercedes the social and economic impact of such deprivation of liberty.
A recent study on the socio- economic impact of remand imprisonment in Kenya, Mozambique and Zambia, found serious social and economic impacts on families, especially in relation to women detained on remand.
Drunk and disorderly, nuisance and state offences comprised 33percent of admissions of women on remand”.
Equally, the audit report indicates that women facing capital offenses are detained in remands home longer than men, with the report stating that “Many women on remand are typically held in relation to murder charges and these women are held for exceptionally longer periods, with remand warrants showing medians of more than a year for such women.
Experience in other countries suggest such women often have valid defenses to such charges, such as self-defense in the context of domestic abuse, and would secure release if their cases were to come to trial.”
The report further indicates that time spent on remand by women on remand to their next remand date ranged from 0 days to 7 years and 4 months), with a median of 145 days, meaning that half of women on remand by their next remand date will have spent 5 months or more, and half will have spent less than 5 months.
The period under review runs from May 2016 to mid-last year and reveals that women in remand were aged between 16 years to 75 years, with the median age being 29, women’s who are in their most productive age.
About 24percent of women in detention did not have an occupation indicated, while 55percent of those with occupations listed, had their occupation listed on the warrant as “unemployed”. Majority were listed as farmers at 15percent.
Some 30percent of women farmers were held for state-related offences, such as manufacturing or selling alcoholic drinks or being in possession of wildlife trophies.
The report also wonders why some 3percent of women under the age of 18 were not being held in Remand Homes.
Illiteracy levels also appears as a major challenge and contributing factors leading to detention and jailing of women, where the report says that 20 percent of women remanded are illiterate, which seriously compromise their ability to defend themselves in a court of law and that a further 51percent are just literate.
The other worrying trend is increase on the number of women in prisons with the cumulative annual turn-over increasing from 10,857 in 2004 to 18,112 in 2012, according to the report and police statistics.
Most female offenders are from poor backgrounds with low social status.
“The majority of them are illiterate, mainly from broken families. In certain cases, an abusive past and residence in urban centers also predispose some females to commit crimes.
Female crimes in Kenya are diametrically opposed to those of their male counterparts. Whereas males have a
tendency to be involved in violent crimes and other serious acts of subversion, female offences are less severe. It has been established that the majority of female commit offences including assault, loitering, littering, hawking, and illicit alcohol brewing and sale,” further states the report.
It adds that presently, a number of female have been arrested for crimes such as prostitution, child neglect, child trafficking, drug trafficking, economic fraud and homicide.
But, the offences notwithstanding, those arrested find themselves assigned to one of the eighteen (18) women’s correction facilities in the country with Langata and Shimon La Tewa maximum security women’s prisons housing inmate populations of between 2000 and 3500 offenders.
Notably, the category of “state regulated offenses” obtained a prominence and peculiarity that exceeds their standing in comparable studies of this nature in other African countries such as Malawi, Zambia, and Mozambique where this category was almost absent.
“These are offenses that do not typically require a complainant other than the state itself and involves regularization of both formal and informal activities and protection of the environment. They include offenses related to alcoholic drinks regulation, environmental laws, gambling and other forms of regulation like licensing and permit,” reads the report.
RODI-Kenya executive director Ngunjiri Kihoro says that The main objective of the audit was to provide a comprehensive analysis of the Criminal Justice System and make policy, legislative and practice reforms that strengthen service delivery.
“To achieve the intended objective, the audit targeted eighteen Counties which were purposefully sampled. The study relied on respective institutions’ official records, case studies, legal reviews, structured questionnaires and observations. In the Subordinate Courts a sample of 100 observations per official record used was weighted against the actual number over a two- year period; that is, 2013 and 2014. However, on data involving the High Court, a four year-period (2010 to 2014) was used. We verily believe that the findings of this Audit and its subsequent implementation will go a long way in transforming Kenya’s Criminal Justice System to be credible, accessible and humane to “Wanjiku” and the general public. The policy and legal recommendations speak to the need for accelerated legal reforms to enable justice agencies deliver on their mandates,” says Mr Ngunjiri.
He adds that the current justice system is outdated and inhuman, sentiments shared by the Chief Justice David Maraga, who termed the criminal justice system as colonial.
“This Audit gives an independent and objective view of the material aspects of the Criminal Justice System. Subjecting the Criminal Justice System to this Audit was consistent with Kenya’s development blueprint, Vision 2030, and the National Values and Principles of Governance set out in Article10 of the Constitution of Kenya. The Audit identifies institutions bearing a constitutional mandate to deliver justice to Kenyans/persons living in Kenya and areas that require further reforms within the Justice sector.
Key findings of the Audit confirm that Kenya’s Criminal Justice System is largely skewed against the poor. It is an indictment of a system that is expected to guarantee justice to people from all walks of life, including all forms of vulnerabilities. The Audit found that more poor people are arrested, charged and sent to prison as compared to the well to do. It was an interesting finding that economic driven and social disturbance offences which are rated as petty; such as offences relating to lack of business licenses, being drunk and disorderly and creating disturbance form 70% of cases processed through the justice system,” said the Chief Justice.