Recently, key criminal justice players in Kenya, led by the Office of the Director of Public Prosecution (ODPP), pitched tent in Lamu County for a service week.
The intention of the state and non-state actors in this part of the All for Justice Project, which seeks to reduce case backlogs in courts and decongest prison population, was to dispense justice without delay but within the realm of the law.
They sought to put into use three “new” prosecutorial tools — plea bargaining, diversion policy and prosecutorial power on whether to charge or not.
The tools have either been in our laws but rarely used or practically used but lacked legal and policy backing. In a country with a prison population way above 200 percent of capacity and a huge case backlog in the courts, 70 percent of them petty offences, alternatives to prosecution must be considered.
Plea bargaining is a legal concept provided for in Section 137(A) to 137 (O) of the Criminal Procedure Code (CPC). The accused person or their legal representative mutually agree with the prosecution to bring a case to an end with the approval of the court. The deal, in writing in the form of a plea agreement, is then filed with the court.
It can be entered in all cases except sexual offences, crimes against humanity, war crimes and genocide. It includes murder and terrorism.
It allows an accused to plead guilty in exchange for a lesser charge — for instance, from murder to manslaughter — softer sentence or alternative charge. It is, therefore, not for the innocent.
But despite being a deal between the accused and the prosecution, the victim’s sentiment is considered, through victim impact assessment, as well as a recommendation of compensation and apology in certain instances.
This method can reduce case backlog since one waives their right to trial. It can also aid the fight against corruption, where the accused has the option of refunding the embezzled public funds for lesser punishment.
And it can be crucial in terrorism- and drug-related cases as the lowest in the chain can provide information about their masters for leniency.
However, there is a need for rigorous sensitisation about plea agreement. The public need to know that the accused are not cutting deals with prosecutors.
The victims’ and public interest must also be at the centre of it. Justice must be served to all.
The second tool is the diversion policy, introduced by the National Prosecution Policy (2015) as an alternative to criminal prosecution.
Is it not more effective to take a drug addict to a rehabilitation facility instead of prison? How helpful is it to jail a young person operating a business without a permit? Wouldn’t it be more useful if they were given two more days to get one? Why not escort someone without an ID to Huduma Centre to get one rather than jail them?
The police and, in some instances, prosecutors have previously used diversion. Rather than go through the entire formal judicial process, and with due considerations, prosecutors are encouraged to wave prosecution or discontinue proceedings either conditionally or unconditionally.
Diversion enhances quick conclusion of criminal matters while offering the accused, who accepts responsibility, a second chance to correct their mistakes and/or reform.
Lastly, prosecutors should be empowered enough to decide which cases to prosecute or not after clear consideration and due diligence.
It is of no use for a prosecutor to proceed with a case that has no evidence — at the expense of the court’s time and public resources.
These alternatives will not only reduce case backlog but also the agony of imprisonment. The public, if made aware of these “quick fix” legal processes, are likely to stop bribing to avoid the long and complex legal processes. Public resources and courts’ time will be saved as judicial officers concentrate on the more complex cases.
Kenya’s criminal justice system need to uphold the spirit of the Constitution, which shifted from retributive to restorative justice. Both the prosecution and defence counsels, and paralegals, must uphold these tools. The public should also be made aware of the availability of these alternatives and how they work.
Mr Muthuri is the legal aid manager at African Prisons Project. [email protected] @MuthuriKathure
Public officers above 58 years and with pre-existing conditions told to work from home: The Standard
Head of Public Service Joseph Kinyua. [File, Standard]
In a document from Head of Public Service, Joseph Kinyua new measure have been outlined to curb the bulging spread of covid-19. Public officers with underlying health conditions and those who are over 58 years -a group that experts have classified as most vulnerable to the virus will be required to execute their duties from home.
However, the new rule excluded personnel in the security sector and other critical and essential services.
“All State and public officers with pre-existing medical conditions and/or aged 58 years and above serving in CSG5 (job group ‘S’) and below or their equivalents should forthwith work from home,” read the document,” read the document.
To ensure that those working from home deliver, the Public Service directs that there be clear assignments and targets tasked for the period designated and a clear reporting line to monitor and review work done.
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Others measures outlined in the document include the provision of personal protective equipment to staff, provision of sanitizers and access to washing facilities fitted with soap and water, temperature checks for all staff and clients entering public offices regular fumigation of office premises and vehicles and minimizing of visitors except by prior appointments.
Officers who contract the virus and come back to work after quarantine or isolation period will be required to follow specific directives such as obtaining clearance from the isolation facility certified by the designated persons indicating that the public officer is free and safe from Covid-19. The officer will also be required to stay away from duty station for a period of seven days after the date of medical certification.
“The period a public officer spends in quarantine or isolation due to Covid-19, shall be treated as sick leave and shall be subject to the Provisions of the Human Resource Policy and procedures Manual for the Public Service(May,2016),” read the document.
The service has also made discrimination and stigmatization an offence and has guaranteed those affected with the virus to receive adequate access to mental health and psychosocial supported offered by the government.
The new directives targeting the Public Services come at a time when Kenyans have increasingly shown lack of strict observance of the issued guidelines even as the number of positive Covid-19 cases skyrocket to 13,771 and leaving 238 dead as of today.
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Principal Secretaries/ Accounting Officers will be personally responsible for effective enforcement and compliance of the current guidelines and any future directives issued to mitigate the spread of Covid-19.
Uhuru convenes summit to review rising Covid-19 cases: The Standard
President Uhuru Kenyatta (pictured) will on Friday, July 24, meet governors following the ballooning Covid-19 infections in recent days.
The session will among other things review the efficacy of the containment measures in place and review the impact of the phased easing of the restrictions, State House said in a statement.
This story is being updated.
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Drastic life changes affecting mental health
Kenya has been ranked 6th among African countries with the highest cases of depression, this has triggered anxiety by the World Health Organization (WHO), with 1.9 million people suffering from a form of mental conditions such as depression, substance abuse.
Globally, one in four people is affected by mental or neurological disorders at some point in their lives, this is according to the WHO.
Currently, around 450 million people suffer from such conditions, placing mental disorders among the leading causes of ill-health and disability worldwide.
The pandemic has also been known to cause significant distress, mostly affecting the state of one’s mental well-being.
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With the spread of the COVID-19 pandemic attributed to the novel Coronavirus disease, millions have been affected globally with over 14 million infections and half a million deaths as to date. This has brought about uncertainty coupled with difficult situations, including job loss and the risk of contracting the deadly virus.
In Kenya the first Coronavirus case was reported in Nairobi by the Ministry of Health on the 12th March 2020. It was not until the government put in place precautionary measures including a curfew and lockdown (the latter having being lifted) due to an increase in the number of infections that people began feeling its effect both economically and socially.
A study by Dr. Habil Otanga, a Lecturer at the University of Nairobi, Department of Psychology says that such measures can in turn lead to surge in mental related illnesses including depression, feelings of confusion, anger and fear, and even substance abuse. It also brings with it a sense of boredom, loneliness, anger, isolation and frustration. In the post-quarantine/isolation period, loss of employment due to the depressed economy and the stigma around the disease are also likely to lead to mental health problems.
The Kenya National Bureau of Statistics (KNBS) states that at least 300,000 Kenyans have lost their jobs due to the Coronavirus pandemic between the period of January and March this year.
KNBC noted that the number of employed Kenyans plunged to 17.8 million as of March from 18.1 million people as compared to last year in December. The Report states that the unemployment rate in Kenya stands at 13.7 per cent as of March this year while it stood 12.4 per cent in December 2019.
Mama T (not her real name) is among millions of Kenyans who have been affected by containment measures put in place to curb the spread of the virus, either by losing their source of income or having to work under tough guidelines put in place by the MOH.
As young mother and an event organizer, she has found it hard to explain to her children why they cannot go to school or socialize freely with their peers as before.
“Sometimes it gets difficult as they do not understand what is happening due to their age, this at times becomes hard on me as they often think I am punishing them,”
Her contract was put on hold as no event or public gatherings can take place due to the pandemic. This has brought other challenges along with it, as she has to find means of fending for her family expenditures that including rent and food.
“I often wake up in the middle of the night with worries about my next move as the pandemic does not exhibit any signs of easing up,” she says. She adds that she has been forced to sort for manual jobs to keep her family afloat.
Ms. Mary Wahome, a Counseling Psychologist and Programs Director at ‘The Reason to Hope,’ in Karen, Nairobi says that such kind of drastic life changes have an adverse effect on one’s mental status including their family members and if not addressed early can lead to depression among other issues.
“We have had cases of people indulging in substance abuse to deal with the uncertainty and stress brought about by the pandemic, this in turn leads to dependence and also domestic abuse,”
Sam Njoroge , a waiter at a local hotel in Kiambu, has found himself indulging in substance abuse due to challenges he is facing after the hotel he was working in was closed down as it has not yet met the standards required by the MOH to open.
“My day starts at 6am where I go to a local pub, here I can get a drink for as little as Sh30, It makes me suppress the frustration I feel.” he says.
Sam is among the many who have found themselves in the same predicament and resulted to substance abuse finding ways to beat strict measures put in place by the government on the sale of alcohol so as to cope.
Mary says, situations like Sam’s are dangerous and if not addressed early can lead to serious complications, including addiction and dependency, violent behavior and also early death due to health complications.
She has, however, lauded the government for encouraging mental wellness and also launching the Psychological First Aid (PFA) guide in the wake of the virus putting emphasis on the three action principal of look, listen and link. “When we follow this it will be easy to identify an individual in distress and also offer assistance”.
Mary has urged anyone feeling the weight of the virus taking a toll on them not to hesitate but look for someone to talk to.
“You should not only seek help from a specialist but also talk to a friend, let them know what you are undergoing and how you feel, this will help ease their emotional stress and also find ways of dealing with the situation they are facing,” She added
Mary continued to stress on the need to perform frequent body exercises as a form of stress relief, reading and also taking advantage of this unfortunate COVID-19 period to engage in hobbies and talent development.
“Let people take this as an opportunity to kip fit, get in touch with one’s inner self and also engage in reading that would help expand their knowledge.