First off, I want it stated that this is not meant to be a scholarly piece on Criminal justice. I do not want to take you through the theory behind it or the policies practiced in it but rather I want to air my views from a layman’s observation (so my thoughts from now on may be peppered with lapses of legal basis and application but please bear with me). This is meant to spark discourse on the matter of criminal justice be it between legal scholars of repute, battle-hardened Criminal lawyers, Freshly-minted legal practitioners and starry-eyed law students.
So let’s dive right into it. What is justice and why is it so elusive? As far as I understand it, one says they have received justice when they are given what they are due. If one commits a wrong, it would then be just to punish them for that wrong or to ensure that he is rehabilitated and will stay away from such acts. In the same vein if one is wrong then he will only receive justice when he is restituted for the harm that he has suffered. This is all well and good, what I have a problem with is the manner in which this justice must be dispensed and that is through court trials. I visited the Nairobi remand Prison recently and realised just how the dispensation of justice has become lethargic or in some cases downright non-existent, take the example of Kevin* a 17 year old male remandee. Kevin has been in custody for the past 18 months. A shocking figure yes but by a long stretch of imagination, one could chalk this down to a backlog in mentioning cases at the courts. No big deal. Now Kevin’s story is that he was arrested after being stopped by policemen on patrol for being “too well-dressed” because only a robber would have access to money for new clothes in the innards of Kariobangi. He then found himself at the police station being booked in with another hapless fellow on the charge of attempted robbery. Fine, this is just a story, all prisoners have one and they are all bound to tug at your heartstrings. However, Kevin has been to court thrice while at the remand prison. The first time he appeared and his case was mentioned, certain items were exhibited as weapons found on his person during his arrest, he says that he requested the court have them dusted for fingerprints and a report of the same presented and that was the last of the process of delivery of justice to him. Since then the arresting officer has not shown up for two mentions of his case and he will languish in remand until the officer decides to. How can we explain away this fact? Isn’t justice delayed justice denied?
Next we have Brian. He’s a little older than Kevin is at 20 but his story is just as fascinating. He says he was headed home in Kangemi one night when he saw a car fishtail off the road and hit a streetlight. As people are wont to do he stopped what he was doing and began to watch the car in earnest with his fellow revellers leaving bars in the area to come investigate. The next thing he remembers is hearing gunshots and waking up handcuffed to a bed in Kenyatta National Hospital with a bullet in his leg. He says he’d only been conscious for an hour when a man walked in accompanied by police officers pointed to him and walked away. Again, a prisoners touching story that you should take with a pinch of salt. But what he says next stops you. He left Kenyatta for the remand, waited two weeks and had his first mention, where not only did he find out he was being charged for carjacking the driver of the said car of 2500KSH, two mobile phones, a car radio and speaker. It becomes interesting when he finds out not only Is the man who identified him at Kenyatta the man who shot him that night, he is a police officer but was off duty that night and he has been put down on record as his arresting officer. Again, I speak as a layman. But shouldn’t justice not only be done but seen to be done?
At the back of my mind something tells me that I should have more examples of a derogation of justice scenario. But then to be honest, something tells me that aren’t those two enough? With all the promises that the state gives its citizens of caring for us, providing for and with us and us honouring that by living within the confines of the law don’t we have the right to justice? Should Brian and Kevin be incarcerated before their trials because of what seems to be a lapse in the courts that they have presented themselves before, courts emanating from the laws that they follow?
I don’t think that they should, and I don’t think that I would trust a system that did that to me. Would you?