Broken system: An inside look at wrongful convictions in Kenya's legal maze

Julius Wambua, 48, who was wrongly convicted for 10 years on allegations of raping his daughter. [Robert Menza, Standard] While most prisoners serve sentences for crimes they committed, a few have harrowing tales of injustice that led them there. These stories reveal flaws in Kenya's court processes, where judgments often hinge on evidence presented rather than uncovering the whole truth. Teresa Njoroge, a former bank official, served a one-year sentence at Lang'ata Women's Prison for a crime she insists she did not commit. "I was maliciously arrested, falsely accused, and ultimately incarcerated," Ms Njoroge shares. At the time of her arrest, she had a three-month-old daughter. Her troubles began when she unknowingly handled a fraudulent transaction at a Nairobi bank. A customer from a different bank branch came to where she worked. As long as you are a customer of that bank one could be served at any branch. There were procedures that needed to be followed, checking in with the mother branch, getting authorization, confirming his signature and photo in the system. After the this process, Njoroge cleared him for payment and he left. A week later he came back and was served again. By the end of the transaction the man had received around Sh9.9 million. During her arrest, an officer candidly told her, "You have been handpicked to carry the cross on behalf of the bank." He later demanded a bribe, which Njoroge refused to pay. She faced three counts of theft and one count of conspiracy. Her legal battles spanned two and a half years. Although the magistrate dismissed theft charges due to insufficient evidence, Teresa was convicted on a conspiracy charge and sentenced to one year in prison. "There was no evidence whatsoever that I stole the money. The magistrate dropped all the counts of theft. There was no evidence that I benefited from the proceeds. I was, however, convicted to serve a year in prison on the charge of conspiracy," Njoroge shares. Her life and that of her daughter changed. The scars are still fresh as she fights back tears while narrating the story. "Prison is dehumanising," Njoroge recalls. Sharing a crowded cell with her infant daughter, she endured squalid conditions, including a single shared toilet and lack of basic hygiene products. "Prison life breaks you. From the environment where you are sleeping, the language, food, what you wear... I was in the cell where there were other mothers who had children. There was one little toilet where one would take a bath and clean whatever you needed to wash... so you can imagine the lack of dignity," she says. She adds: " You would find one woman using the toilet, another showering and another cleaning their child. There were no curtains. These children saw everything." Njoroge recalls it was worse for women during their time of the month. Sometimes there was no water. Others lacked underwear while others wore torn ones. They lacked sanitary towels. Women relied on donations for essentials like sanitary towels and underwear. Getting compensation Teresa served eight months of the 12-month sentence due to good conduct. She was released 4th November 2011. She completed her sentence before getting the conclusion of the appeal. She had filed an appeal soon after she went into prison, within 14 days as stipulated by law. In 2013, her conviction was overturned on appeal, paving the way for civil compensation. Two years later, she was awarded Sh5 million for her wrongful conviction. Today, Njoroge uses her experience to advocate for incarcerated women. She founded an organisation that provides psychosocial support and skills training, helping them rebuild their lives. She spent some of her compensation money to launch the organisation.The women are trained on handwork: tailoring, making reusable sanitary towels, beads and bags. In 2017, Dorcas Wambua walked to Standard Group Headquarters with a confession that she gave to one of our publications, The Nairobian. She confessed to falsely accusing her father, Julius Wambua of defiling her-a testimony she says her mother coached her to give during a family feud over land. "My mother made me lie to the court. I regret it every day," says Dorcas, now 28. The court relied on two medical reports and witness accounts from Dorcas and her 10-year-old sister. However, almost a decade later, Dorcas went public claiming her father did not defile her. We invited Dorcas to The Standard Group offices again. This time she was carrying an infant daughter and accompanied by her husband. She still maintains that she was coached to have her father incarcerated so that her mother could acquire their family land. Her parents had a row that resulted in a separation. The mother left Machakos and moved to Nairobi after which Wambua remarried. Dorcas and her siblings lived with their father and stepmother before going back to live with their mother in Nairobi. It was at that time during one of their visits to Machakos that misfortune struck. Her father was arrested. Then followed the coaching by her mother and some people unknown to her. "I testified what I was told to say. The questions presented to me during coaching session were the same as those asked in court. I didn't know it would destroy my family," she tells The Sunday Standard. During the court session she could not look her father in the face while testifying in a private session. "It was messy. Even if I was young, I regret my actions. My family was destroyed because of me," she says. Wambua was sentenced to life in prison. After serving almost a decade at Kamiti Maximum Security prison, one day Dorcas visited him. It was a meeting filled with mixed emotions- regret and pain. "He didn't' speak, I didn't speak, we just cried. He thought I had forgotten about him," she says. According to Section 8 of the Sexual Offences Act, for defilement, there has to be; proof of penetration, proof that the complainant is a child (under the age of 18), proof that the accused was indeed properly identified as the perpetrator. Speaking to The Sunday Standard Wambua said his ex-wife conspired with a clinic whose details he did not divulge, to give a false medical report. "There were two doctor's reports, one was forged in Nairobi, the other one was from Matuu, in Yatta where we used to live," he said and added "But the doctor from Nairobi said in court that it was clear I defiled my daughter. However, the Matuu doctor said that the Nairobi medical report had some contradictions, saying that when they examined my daughter, they did not see any proof," he says Wambua also said his son (who is late now) went to their area chief and told him about how everything was planned to have him thrown into prison and incarcerated. "The sub chief called me to his office, my son was there and he narrated the whole plan. I went with my son to the children's officer and narrated the story again. The children's office gave me a letter, but they refused to appear in court as witnesses," he says. Jacque Gathu, a practicing psychologist says that for a child to take part in incriminating her father, she must have been fed negative things about him. "For her to accept to actually create this kind of story against her father, she must have been fed so many lies, "your dad is a bad person, he does not care about us, he's a womanizer, among others, " says Gathu For a family like Wambua's to heal, Gathu says that they need to have a sit down and unpack all the emotions. Healing may take years, because the way one person processes something is not the way another person does. After being released, Wambua was promised land by different people, while others promised to donate building materials for him to have a fresh start in life at a different location. None of the promises were fulfilled, Wambua says. While serving sentence at Kamiti Maximum Prison, Wambua trained as a cobbler, but getting employment after incarceration has been an uphill task. "There are times I feel like life in prison was way better than life out here. Because the challenges I have faced are not easy. I lost everything when I went to prison so I came out without knowing where to start," he said. Probation Officer Andrew Kanyutu emphasises the importance of reintegration programmes to help ex-prisoners rebuild their lives. These include rehabilitation, counselling, and access to affordable healthcare. He says the State offers reintegration and resettlement interventions. This enables offenders to cope and to overcome various social, economic and psychological pressure. This assessment commences when a referral is received from a court. Kanyutu says there are reports generated at the pre-release stage. "We have provision of specialised rehabilitation programmes such as counselling and enrolment and access to affordable health care such as Social Health Insurance Fund (SHIF) , Community plays a role in offender reintegration. The probation officer also assist in shaping the public perception and providing protection to the offender including managing stigma. Sauda Farooqui, an obstetrician Gynaecologist, says after defilement,the victim should see a medical practitioner at a hospital. "A form which details all injuries is filled. The form also has a human diagram and so you mark where the injuries are. It needs to be indicated if there's any bite marks any lacerations (cuts) any bruises any discolouration, among others," says Dr. Farooqui. Doctors pay attention to the orifices; the vagina orifice and the anal one, checking if there's any cut and bleeding that is active. "Usually, the Doctor who examines will testify in court about the same," he adds. Another test is the vaginal swab, where doctors test for infections and most importantly semen. They do what is called a microscopy and check for sperm. The same swab can be used for testing of DNA of the culprit versus the victim Lawyer Sylvia Morwabe says wrongful convictions stem from wrongful prosecution. "If there's a claim of either rape or defilement the crime scene becomes the body. In most cases, what I have seen that there's DNA to prove yes there was semen but is this semen linked to the person we are claiming to be the perpetrator. It happens in very few cases, mostly with people who have means," says Sylvia Article 50(6) of the Kenyan constitution says a case can be re-opened if there's new and compelling evidence that the accused can prove their innocence. The Prosecution Process Principal Prosecution Council at the Office of the Director of Public Prosecutions (ODPP) Victor Owiti says the investigative role and prosecutorial roles are two distinct roles. One is under the National Police Service and the prosecutorial arm is under the ODPP. "All investigations end up at the DPP. The DPP is empowered either directly or through his officers like myself to independently look at the file. Find out if the witnesses who were brought are credible, do we have exhibits?" he poses. Owiti says when the police are carrying out investigations, they record statements. Initially they will not know who will eventually become a witness or a suspect. The first statement is called a plain statement. "The police during their investigations will analyze the case. Once they realise the person may have committed an offence, they record a second statement. It changes from a plain statement to a statement under enquiry, now they ask targeted questions," he shares. If one is not able to explain himself/herself you become a suspect. You record a third statement cautioning you, meaning you have the right to remain silent because anything you say can and may be used against you before court. "The DPP will look at the file, where there are gaps there will be a back and forth. That is why the period between investigation and prosecution may take more than a year," Owiti explains. Once done and the matter is now before court, it will make a determination on the basis of prosecution testimony, whether there's a case to answer or not. If there's no case, you will be acquitted, if there's a case you will be asked to prepare your defense. According to a 2020 report by research body Statisca, up to 86,000 people are imprisoned annually in Kenya, with many believed to be victims of framed charges. These cases expose the unsettling flaws within Kenya's criminal justice system and highlight the urgent need for reform.

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