No mercy: Did hard-core convicts buy Presidential pardon from warders?

 Inmates make vehicle number plates at Kamiti prison

On October 22, Alexander Karoki Muli escaped from custody at the Yatta Prison where he was being held for possession of bhang.

A week later, the 31-year-old was re-arrested and now faces fresh charges. Upon his capture and conviction, he was thoroughly tortured, claims a fellow prisoner.

“He is in bad shape, he can’t even walk,” says the inmate while describing the horrors of jail. Muli had attempted to free himself after allegedly learning that he was not among the 7,427 convicts released by President Uhuru Kenyatta through the Power of Mercy.

According to the convict (name withheld), Muli, who hails from Kisiiki village, Mavoloni division, was surprised that he had been left out. Muli allegedly believed he had been short listed for freedom.

It’s this that prompted a crestfallen Muli to start plotting his escape. And when an opportunity presented itself, he broke loose, fleeing on foot. Armed with a panga, he threatened warders who had escorted him to the prison farm.

Muli was, however, arrested in July, six months before his six-month term was slated to end on January 6, 2017. He will now spend another one year in prison for the fresh charge of attempted escape from lawful custody.

Sources at the Prison claim the process of identifying those who qualify for amnesty is marred with corruption. Prison authorities forwarded 61 names to Power of Mercy Advisory Committee (POMAC) for consideration, but there are allegations that about half of the 61 names were substituted after President Uhuru officially announced on October 20 that he had pardoned thousands of petty offenders in a move to decongest prisons.

“We were surprised to see some convicts facing more serious offences that attract longer sentences walking to freedom. There is no doubt they bribed their way out,” said a source at the Yatta Prison.

Michael Kagika, POMAC chief executive officer, did not rule out the corruption allegations at prison level, saying that some warders take advantage of prisoners’ vulnerability to con them off money.

“It is expected of a person in a tight situation to fall for anything that is likely to lessen his or her burden. Therefore in prison, convicts are likely to give money to wayward warders on the false promise that freedom will be granted,” he stated.

The inmate who spoke to The Nairobian says he was baffled why he was left out. He was convicted for six months for being drunk and disorderly. By the time Uhuru invoked the power of mercy, the 24-year-old man from Katangi village of Yatta, had barely served for 10 days.

He insists that he deserved to be among those pardoned because of his light offence. “I have come to learn that some hardcore criminals bought their freedom, some of us have even told our parents and relatives about the bribery issue,” maintains the convict.

Article 49 (2) of the Constitution states that a person shall not be remanded in custody if the offence committed is punishable by a fine only or by imprisonment for not more than six months.

But Isaac Mutiso, the Prison’s commandant refuted the bribery claims, insisting the selection decision was influenced by many factors.

“The process is watertight, let nobody claim that money exchanged hands. After we came up with the list, we forwarded it to the committee (POMAC) for further verification and vetting,” said Mutiso, dismissing allegations that Muli was among the beneficiaries.

Events following the presidential pardon, however, raises questions about the veracity of the vetting of reformed prisoners. Barely three months after tasting freedom, Lucas Ngugi Njoroge was caught stealing Sh900, part of the offertory at Ol Jabet African Independent Pentecostal Church in Laikipia West.

Hours later, George Kimani, was found with a stolen sheep hidden in his bedroom in Nyeri while Vincent Komen was beaten to death by residents of Kiboino village in Baringo after he was allegedly caught breaking into a villager’s house.

“Probably the auditing to check on behavioural change of deserving cases was not exhaustive. Secondly, it would appear time was not spared to check whether the convicts would be accepted back in society,” argues Ambose Ngare, former assistant commissioner of prisons.

Ngare, who teaches Security Studies at Kisii University, says he is surprised at the large number of convicts set free at ago, saying the motive and timing is suspect. He blames POMAC, which he accuses of lethargy.

 Some of the inmates who have been serving long sentences at GK Kingongo Prison in Nyeri for committing various offense walk to their freedom on October 26,2016,after being released under the presidential pardon by President Uhuru Kenyatta during the Mashujaa day celebration

“The power of mercy should be a continuous exercise. What has the committee been doing allowing the accumulation of more than 7,000 cases? We can only be left guessing that it is the President who exerted pressure,” stated the ex-prisons boss.

POMAC advises the president on the exercise of the power of mercy that entails granting pardon to reformed and rehabilitated convicts deserving early release. There were three categories of convicts released on parole by the Head of State on the recommendation of the power on mercy agency.

Out of the 7,427 cases, 3,512 were petty or minor offenders of good conduct convicted to a sentence of six months and below. Another 2,761 were first offenders of good conduct while 1,154 were ordinary prisoners of good conduct with a sentence of nine months or less.

According to Kagika, the decision to set free such a huge number was informed by the need to decongest the correctional facilities on the advice and request of Prisons Commissioner General.

“We look at cases critically, especially how well reformed the prisoners petitioning for amnesty are. We also rely on reports from government agencies like NIS, the Judiciary, the Probation department and prison authorities,” said the official.

It is no secret that prisons are choking with low-risk offenders, but as soon as some of them are released, the re-offenders return to crime and are back to prison in no time. This is because the criminal justice system ends up hardening them when they come into close contact with hardcore criminals.

Thousands of convicts face charges like creating a disturbance, loitering, stealing chicken, being in possession of bhang, selling chang’aa, failing to wear a seatbelt or helmet or being drunk and disorderly.

Reluctance to obey and enforce the law, loopholes in the law, contradiction of regulations, lack of coordination among government agencies and failure to embrace alternative dispute resolution mechanisms are some of the factors contributing to unnecessary crowding in prisons.

Law Society of Kenya (LSK) president Isaac Okero is of the view that some of the petty offenders should be put on Community Service Orders (CSO). He faults magistrates for preferring custodial sentences at the expense of other options.

“Magistrates should undergo training on the community service order, which they seem to have abandoned. It is not a question of just giving punishment, but there is need to involve offenders in counseling, allowing them the opportunity to reflect on why their conduct is incompatible in society,” states Okero.