Petty offenders jam Kenyan prisons as congestion hits crisis level

A crisis is brewing in the prisons as the inmate population rises beyond the facilities’ holding capacity.

More worrying, however, are the thousands of pre-trial detainees and petty offenders languishing in the congested jails holding hardcore criminals.

It is feared majority are walking out of prison worse off, defeating the concept of rehabilitation.

Data from the Prisons Department shows that the total inmate population stood at 54,154 last month. This is more than double the prisons’ capacity of 26,757.

Of the number, 32,266 were convicts while 21,888 were remandees awaiting conclusion of their cases. An additional 312 were children below four years accompanying their mothers behind bars. The number remains high despite 5,596 prisoners being released between September last year and February this year as part of a decongestion programme.

“We have totally no option but to take whoever the courts send to us,” says Benjamin Njoga, an assistant commissioner general of Prisons. “It is a serious problem that all departments involved in the criminal justice system must work together to address.”

Amid the crisis, accusing fingers are pointing at the Judiciary; which is blamed for disregarding crucial provisions in the Constitution that would help ease the congestion. For instance, a significant number of remandees are behind bars despite their offences attracting sentences of less than six months.

According to Article 49 (2) of the Constitution, 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.

Failing to raise bail

Equally significant, over one third of the convicts qualify to be considered for either Community Service Orders (CSO) or Probation since they are serving less than three years, or have less than three years remaining to complete their terms.

This was earlier this year illustrated in a survey by the National Crime Research Centre in the lower eastern region, which showed that 94 per cent of prisoners serving terms of less than three years were petty offenders convicted of crimes such as causing disturbance in public, hawking, possessing bhang, attempted suicide, and theft.

“This is the situation countrywide, with prisons in urban areas the most affected,” says Assistant Director Probation and Aftercare Services Clement Oketch. Official data collated in August 2013 showed that 12,704 out of the 33,194 inmates then qualified for lenient punishment outside prison, or probation.

“The numbers in prisons are hardly manageable and most of these minor offenders have a high risk of being converted into hardcore criminals,” he warns.

Mr Oketch cites cases where some suspects have gone to jail for failing to raise as little as Sh500 bail.

“In such cases, the courts will argue that it is the suspects who have failed to raise the bail. But they also have a responsibility to give reasonable and in excessive bail terms based on circumstances,” he says.

It is the drastic drop in the utilisation of CSO and probation orders that worries Oketch more.

There were 27,528 individuals sentenced to CSO last year, marking a 50 per cent drop from 55,000 such sentences in 1997.

“Our courts currently prefer imprisonment to non-custodial sentences even when the latter is the most appropriate form of punishment,” says Oketch, who describes most young magistrates recruited in recent years as passionate in sending people to jail.

With the Department of Probation and Aftercare Services currently suffering a shortfall of about 9,000 officers, its ability to effectively supervise probation and CSO orders has also been put to question.

Oketch agrees that the department is thinly-stretched. “In recent years, the police and the Judiciary have been well-endowed in terms of resources, but the probation department is still strained and operating on a very lean budget,” he says. “Currently, we have just 600 probation officers. We can do with at least 3,000 more in the meantime”.

Atiang Mitullah, a magistrate and the national coordinator of the CSO programme, admits that most magistrates have not been trained on how to own and utilise the programme.

“Most judicial officers seem not to have appreciated the problem we have in prisons. Currently, CSO is taken as an alternative when a judge or magistrate does not want to take a convict to prison,” he says. “This is wrong as they should see it as a sentence.”

This corroborates a recent report, which revealed that most magistrates have not been trained on CSO since 2004, with most only having interacted with the programme during their days as students.

“Even lawyers rarely request that their clients be put on CSO or probation. There is need for extensive sensitisation and training,” he says, adding that rigorous training of magistrates is currently underway across the country.

He is quick to note that the Judiciary finds itself in a catch-22 when it comes to determining the fate of most petty offenders.

“There is always the option of free bond to avoid detaining them. But if you release most petty offenders, especially traffic offenders, on free bond, they rarely come back to court,” he states.

The coordinator says the dwindling capacity of the probation directorate to handle the high number of convicts who qualify for probation CSO has complicated the situation.

“With just over 300 field officers to supervise those serving CSO, there is uncertainty that the sentence will be completed as per the order. These are the same officers who are supposed to produce pre-bail; and pre-sentence reports for suspects and convicts to the courts,” he says.