VIA Proxy

An Open letter to the Honorable Chief Justice David Maraga, President of one of the three arms of the Kenya government.

Your Lordship, I trust you are well.

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Never in my few years of this particular lifetime have I ever thought that I would find myself addressing communication of whatever nature directly to your office or your very person, but in this era where the whole world is currently reeling from the devastating effects brought about by the scourge of the novel virus COVID-19 and operating in a state of disturbed normalcy, we find ourselves living in difficult times. These unique circumstances have necessitated this rather informal and peculiar form of communication.

Your Lordship, I am currently a ward of the High court, presently being remanded at the Nyeri maximum prison on a charge of murder which is a capital offence. From the onset I would like to state that this is the first time ever for me to be behind bars, never having been arrested for whatever reason and never having been to a police cell let alone prison prior to my current situation.

Your Lordship, my personal predicament notwithstanding, I find myself moved by the plight of fellow Kenyans with whom I have interacted ever since I was first arrested a couple of months back. With regard to that, I wish to draw your attention to the Constitution of Kenya specifically Articles 49, 50, & 51 which clearly provide for the rights, privileges and limitations of persons arrested, accused, detained or otherwise held in lawful custody as wards of the court.

Contrary to the expectations of the Constitution, prison life or generally life in custody is an experience and not a positive one for the Kenyan remanded. From the initial handling and treatment accorded to a suspect or accused person by the arresting authorities, to the court processers, and finally the welcoming committee at the Kenyan prisons, the expectation of Article 50(2)(a) which is the right to be presumed innocent until proven guilty is met by the harsh reality of ‘guilty until you prove yourself innocent’ and that is just but the easy part. Your Lordship, most remanded or even convicted persons for that matter will openly attest to the fact that they were never informed of their rights at the point of arrest, which is clearly a contravention of Article 49 in it’s entirety. The only clause that most arresting authorities strive to comply with is Article 49(1)(f).

Your Lordship, one of the most contentious issues captured by Article 49(h) is the right of an arrested person to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. While it is fully appreciated that bail or bond is not an absolute right, the grant of the same should never amount to a cat and mouse struggle between the prosecution and the accused or be used as a carrot and stick approach between the arbiter towards the accused. The presumption of innocence supersedes whatever perceptions the public or the court may have – otherwise there would be no need to subject an arrested person to the due process of the law, they would just be sentenced without a hearing. Law enforcement agents face a herculean task of not only preventing crime but also deterring the same but that does not in any way grant them the leeway to trample on the rights of Kenyan citizen presumed innocent until the contrary is proven. Claims of witness interference or tampering with evidence in this modern day and age hardly constitute compelling reasons to deny an accused person their rights. The makers of the Kenya Constitution in their wisdom and foresight provided for establishment of witness protection. Law enforcement agents are also mandated to take appropriate action to safeguard evidence from being tampered with. A civilized society anchored on democracy and the rule of law should never be seen to bend backwards to accommodate the whims of a system that does not want to should and execute it’s given mandate. It hinges on the theatre of the absurd to deny an arrested person their bond/bail on such-like flimsy grounds simply because the prosecution read investigating officers anticipate the arrested persons to behave in such fashion yet they have taken no measures to prevent the same other than curtailing the freedom of persons presumed innocent before the law. Obviously the presumption is an alien concept to them and seems to be irredeemably lost to them.

Your Lordship, there are thousands of Kenyans languishing in remanded simply because they have either been denied bail/bond or been granted unresoanable conditions. For instance a person facing a capital offence of robbery with violence for allegedly having stolen property worth Kshs 1,000 being given a bail/bond of Kshs 200,000 or more. Such a bond/bail term is bereft of logic and is not only unreasonable but downright unjust. A cursory glance at most of the remanded cases clearly such cases to the norm rather than the exception. Article 50(2)(c) grants an accused person the right to have adequate time and facilities to prepare a defence. This read in conjunction with Article 50(2)(e) which is the right to have the trial begin and conclude without unreasonable delay begs so many questions. For instance, an accused person who has been denied bail/bond or granted unreasonable terms they cannot meet has all the time in the world while in remanded but surely what facilities are available to them to facilitate their defence? practically zero. Yet we expect not only a timely conclusion of the trial but a fair one at that. There are remandees who have spent well over 10 years waiting for the conclusion of their cases. Most times due to judiciary constraints and reshuffles, they end up having to restart their trials de novo. The hopelessness and despair amongst such remandees is palpable. Most remandees who have been incarcerated for well over 12 months have no idea of the column of evidence, if any, that awaits them as they are either yet to start their trial and/or are yet to receive that information from the prosecution team contrary to Article 50(2)(j)

Your Lordship Article 51 envisioned a situation where a person in lawful custody would enjoy all the rights and privileges that are inherently theirs except to the extent that any particular right or fundamental freedom is clearly incompatible with the fact of being in custody. So why then are remandees treated like second-rate citizens, being fed on half-cooked food, at times on food that is clearly not fit for human consumption, being squeezed in sleeping spaces that are only fit for poultry, getting proper Medicare is akin to squeezing water from a rock inter alia.

Your Lordship, I have not even mentioned the impact on the wider Kenyan society when it comes to reintegrating these remandees who have been turned into sex objects by their senior counterparts and convicts with whom they interact freely contrary to Article inorder to survive in this harsh reality contrary to Article 49 (1)(e) . Most of these remandees leave the prison system encumbered by terminal health conditions they never had at the point of being placed in remand.

The correction facilities AKA prison department enshrined in our constitution need to clearly delineate between the status and treatment of persons convicted and those in remand. While the aspect of correction, punishment, retribution, rehabilitation,deterrence, punitive or otherwise are applicable to the former category of persons, they clearly do not apply to remandees to whom the presumption of innocence and the benefit of doubt applied at all times until determined otherwise through a fair hearing.

Article 51(3)(a) provides for the humane treatment of persons detained, held in custody or imprisoned. A candidate assessment of our correctional facility would clearly re-define the term ‘humane treatment’. The less said about the conditions of the facilities and treatment of remandees the better, but the long and short of it, is that a large number of Kenyans who happen to be guests of the state for a considerable period of time end up leaving the institutions more hardened, cold-hearted, cruel and inhuman. Inhumane treatment, humiliation, torture (physical, psychological or otherwise) and blatant trampling of human rights is an insult of the highest degree to the collective psyche of a democratic society. I understand we cannot fully redress the injustices of the past, BUT as a civilized society we should emphatically refrain ourselves from compounding the insult.

The essence of a fair hearing especially guided by Article 50(2)(a) dictates that unless an accused person is violent, mentally unstable or has indicated potential of escaping or otherwise being a public nuisance during court hearings, one need not be restrained by handcuffs. That is the clearest indicator from the courts of the presumption of guilt especially the court of public opinion whose value cannot be underestimated.

As the whole world institues a variety of measures to combat the COVID-19 pandemic, social distancing has become one of the favored approaches. Contrary to what the general public has been informed about protective measures in Kenyan prisons, do we honestly expect to have any social distance when remandees are placed 7 or 5 of them in a cell as small as 8ft by 6ft while the general wards which are no larger than an average primary classroom holding upwards of 85 remandees? While efforts are no doubt being made to decongest these places, we need not continue burying our heads in the sand. Our prisons are greatly overstretched. Worst case scenario, Good forbid should the Corona virus find domicile in any of the kenyan prison, rest assured the daily health statistics from the ministry of health will rival those from Western countries hardest hit by the pandemic. Are we really adequately prepared as a country to a virus outbreak in prisons? Are remandees who for all intents and purposes remain innocent before the law, supposed to wait to be infected so that they can leave the prison in body bags?

Your Lordship, these issues which are not exhaustive by any chance, are all addressed to you not by error but simply because, though not all of them fall under your docket, your office is the one that can really address the concerns raised here in.

“The greatness of any nation lies in it’s fidelity to the constitution and adherence to the rule of law and above all respect to GOD” Your Lordship, these words which you uttered have given hope to thousands if not millions of Kenyans amongst other people worldwide. The category of persons known as remandees have no one else to turn to especially during these times of COVID-19 and the uncertainities that abound.

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