Kenyans living with mental illness get lost in the criminal justice system


Samuel Macharia Njoroge, 42, refers to his earlier years as the dark ages.

“This is a period that I faced a lot of hardship and stigma while undergoing psychiatric treatment and rehabilitation both residential and out-patient for quite some time. I was in and out of it for about 11 years, ” says Njoroge

Njoroge says he developed Substance Abuse Disorder on top of a pre-existing mental health disorder .

It would make him reckless getting him arrested for the first time on his 24th birthday in 1998 while causing mayhem with college friends at night.

He spent two days in jail, but Njoroge would end up in prison numerous more times after this incident.

It is common for persons with psychosocial disabilities or mental illnesses in Kenya to come in conflict with the law, particularly for petty offences.

Experts say that this is because of social stigma, surrounding mental illness as well as lack of access to care and medical treatment.

Kenya’s Ministry of Health released a Mental Health Policy in April. The policy is meant to provide a framework for creating awareness on the disability and providing better health care and other forms of support for both those living with psychosocial disabilities and their families.

According to Silent Minds, a 2011 study by the Kenya National Commission on Human Rights published in 2011, up to 25 per cent of out-patients, and 40 per cent of in-patients in Kenya’s health facilities suffer from some form of mental illness.

The study states that patients seeking out-patient services for mental health suffer from disorders such as depression, Post Traumatic Stress Disorders (PTSD), panic and anxiety disorders as well as alcohol dependence.

Lack of awareness and professional help

Despite the prevalence of Mental Health Disorders, the report by KNHCR estimates that Kenya has just over 77 psychiatric consultants, 418 psychiatric nurses and 30 clinical psychologists for a population of about 42 million.

Persons with psychosocial disabilities face stigma and discrimination, which is attributed to a lack of awareness .

Elizabeth Kamundia, a rights lawyer specialising in mental health says, most people with psychosocial disabilities will be arrested for petty offences.

Offences such as begging, causing a breach of the peace and indecent acts are penalized under Section 182 of Kenya’s Penal Code.

These acts are further outlawed in county by-laws. Offenders can spend up to a month in prison if they fail to pay a fine of Sh100, or a year for subsequent offences.

Kamundia says, persons with psychosocial disabilities will come in conflict with these laws for offences such as indecent acts, like taking off one’s clothes or causing a disturbance because of a tendency to sometimes get aggressive as a result of the disorder.

“The question is whether our society’s response is to throw that person in prison or to give care? Responding to a crisis like that is a disproportionate response for someone exhibiting their impairment. Police, chiefs and others called to the scene need to be trained on how to de-escalate the crisis,” Kamundia adds.

People found guilty and insane are not granted a definite system after sentencing.

“There are two situations,” explains Kamundia. “Where someone gives a defense of insanity, claiming they were of unsound mind at the time of committing the offence, the second situation is if someone is insane during the trial, where the judge says, this person is of unsound mind.”

Kamundia explains that most petty offenders end up in jail. However, a presidential order can be made to move offenders to a mental hospital.

Person’s found to be of unsound mind during trial can be detained by order of the President, according to Section 166, of the Criminal Procedure Code.

Njoroge is today the Head of Programs advisor of Users and Survivors of Psychiatry (USP) Kenya, an advocacy group for people with psychosocial disabilities.

USP sensitises communities about mental illness including police officers and chiefs in order to eradicate stigma and eradication.

He says that during the time of his numerous arrests, he was out on the streets having been rejected by his family because of his illness.

“I would find myself in odd places during odd hours. Sometimes the police would find me in Changa dens. They would arrest me for being drunk and disorderly, or touting.

 “Sometimes I was lucky not to see beyond the police station because they would let me go after one or two days. Other times I would find myself in court and I would be sentenced for one month or three months If I could not raise the fine,” Njoroge adds.

If sentenced to imprisonment, his family would intervene to avoid the embarrassment, but stigma would drive him out on the streets again, leading to further run ins with the police. Njoroge believes being in jail made his condition worse.

Suffering ridicule and violence

“It really compromised my esteem even further, because of having to conform to prison regulations like taking off your shoes, under wear and jacket. Medical assistance would also take a really long time if one needed it. I would also suffer in their because of the crowdedness and sleeping on the filthy floor.” Njoroge says.

Njoroge says he also suffered ridicule and violence from hardened criminals at the jail.

“When a person is found guilty and insane, this person first and foremost is kept in the prison, these are a special category called Special Psychiatric Offenders.

“They are moved to the mental hospital through a process called an instrument which is under section 166,” Pamela Onyango, the Chief Probation Officer at the Mathari Hospital says.

Their release, from prison or from a mental hospital, requires a presidential pardon.

Onyango’s office is in charge of putting together reports for offenders with mental illness who are going through trial, or are supposed to be released from prison, once the hospital believes they have adequately gone through treatment.

There are 117 probation stations in every court jurisdiction.

The officers are relied upon to visit communities of offenders in order to produce reports on their status. Onyango’s office also deals with offenders who are unable to plead because of their mental illness.

These suspects can be let out of bail, if it is a bailable offence to seek treatment come back to stand trial.

But, if the suspect cannot afford bail, or the case is for a more serious offence, they can be detained until a psychiatrist finds them fit to plead. However, this too is a bureaucratic process that can take a long time.

Onyango says that for offenders found guilty to get a presidential pardon, a petition to the Power of Mercy Committee must show certain requirements have been fulfilled certain requirements including having a community and family that will accept them should they return.

“We have so many patients here whose relatives do not want them because they consider them a burden or others have been disinherited and the relatives do not want to say what is wrong. The family creates so many roadblocks until eventually you find out that this is why they do not want to address the issue which makes reintegration difficult,” she says.

Mental illness in conflict with the law

Acting Director of Mental Health Services at the Ministry of Health, Dr Simon Njuguna, says prevention is key in ensuring people living with mental illness do not come in conflict with the law, through access to health care before the disorder becomes a severe disease.

However due to stigma and discrimination, he says, people are not getting proper mental health care. Njuguna adds that there are gaps in the current Mental Health Act when it comes to protecting the rights of those with the disorder.

“There are disparities in mental health particularly to do with access to equal opportunities and rights including the right to health care and employment. We need to bridge those gaps and ensure that patient and even care – giver is protected,” says Njuguna.

The Ministry is planning to amend the Mental Health act, one suggestion is the first tracking of legal processes by establishing a special tribunal for people with a mental illness. Njuguna notes however, that for the new laws to work, more capacity needs to be built.

“If you are talking about Mathari Hospital, it has eight psychiatrists, dealing with offenders from prisons including Kamiti and Langata Women’s Prison. These doctors have other duties, aside from the forensic psychiatry. We need to train officers of the justice system and correctional officers. Kenya also lacks a doctor trained in forensic psychiatry, we only have general psychiatrists.” He says.

Speaking during an interview on World Mental Health day in Karatina, Nyeri County, local chief George Wanjohi says his office has managed to deal with offenders who have mental health disorder before their matters go to court following sensitisation by USP.

“Most of them commit petty offences like damaging property, and of course they run away. But these days they run to us or the police so we deal with the disputes before they go any further. ”Wanjohi says.

He says that such acts are usually committed because someone made the offender angry by making fun of their condition, calling them mad or throwing stones at them.

“Before we did not know that this condition was a disability, we were not even considering them for the funds that the government makes available for persons with disabilities. But after sensitisation we understand what this illness is.” Wanjohi adds.

Njuguna says through the new policy, the Ministry has identified 11 priority actions including the need to build human resource and have health care facility at both national and community level.

“The next item, is to actualize the policy, by making investment in those areas, we have a five year action and investment plan which will bring in partners from the community and government to assist in implementation. A taskforce has began work on the plan.” he says.


First Published by The Star.

18 November, 2016

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