CRIMINAL JUSTICE REFORMS IN THE NEW CONSTITUTIONAL DISPENSATION: CHALLENGES AND OPPORTUNITIES IN THE ALTERNATIVE MEASURES TO IMPRISONMENT FROM

31ST JULY 2012 TO 3RD AUGUST 2012 DISCUSSANTS / FACILITATORS 1. Dr. Ludeki Chweya (Permanent Secretary/PS Office of Vice President & Ministry of Home Affairs/MOHA) 2. J.W.O. Oloo (Director Probations) 3. Mugambi Kiai (OSIEA) 4. Gene Guerrero (OSI Director, Crime and Violence Prevention Initiative/CVPI) 5. Borislav Petranov (PTD) 6. Bob Brown 7. Josephat Ituka (Assist. Commissioner Prisons) 8. Jedidah Waruhiu (LRF CEO) 9. Clement Oketch 10. Christine Obondi 11. Eliud Ngunjiri (RODI) 12. Ann Kamau (LRF) 13. Daniel Mwaniki (St. Martins) 14. Hanna Maingi (Probation) 15. Cheryl Okeyo (CRADLE) in place of Lena Muyenga 16. Gilbert Onyango 17. Dorcas Kitaa (Lawyer) 18. Hon. Joel Ngeno (Chief Magistrate Nairobi Makadara) 19. Wamundila Waliuya (Zambia) 20. Tabitah Owiya (DPP- Director Public Prosecution Office) 21. Nonceba Lushaba (Phoenix Zulu South Africa) 22. Judge Ouko (High Court of Kenya)

1|Page

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

PENAL CONGESTION: A PROBLEM OF PRISON SIZE OR A PROBLEM OF DECISION MAKING (BOB BROWN) World Prison Population ICPS 9th Edition May 2011 estimates Kenya Prisons to hold 49,757 inmates A ratio of 120:100,000 inmates population The sentencing project in Washington DC showed a 420% increase in Police Sector and 660% increase in correction sector There are 2 types of prisoners Remand (pre-trial) Sentenced (post trial)

The Justice Policy Institute (JPI) Australia by Jeremy Sarkin (2008) quoted that 50% of the population in prisons were in Remand. Special Rapporteur on Prisons and Places of Detention in Africa was present at the 50th Session of the ACHPR (African Commission on Human and Peoples' Rights) and it was found that about 857,994 inmates across Africa Prisons in which there was a ratio of 36.3% that were in pre-trial detention (M.Shaw 2008) Planning and resourcing were key areas read more from L.Muntinah Human rights in African Persons 2008. According to the PEW Center June 2012 1 in 104 American adults are behind bars Refer to Chris Nils Christie (Norway 1966) on How Crime is Penalized David Cayley 1998 consider decision by Police, Judges and Parole Boards. Media bias also contributes negatively to rehabilitation efforts Everyone has an opinion but few have informed opinion There is reluctance by the Court to cap prison population primarily when protection of the community and offender is concerned. UN Standard minimum rules Non-custodial rules (Tokyo Rules) ICPS 10 point rules Oliver Wendel Working Alone 2|Page
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

Plenary Points: Jedidah Waruhiu Study by LRF 2008 attributed congestion in Prisons and Police Cells by petty offenders with petty crimes. Those petty offenders are placed in harsh and life threatening detention with more hardened criminals The LRF study found that there were 47,295 prison inmates then (close to the estimates given by Bob Brown). Of those inmates 18% were petty offenders at a cost of KES 200 per day. In 2004 there were 273,000 court users for 1 magistrate with some walking up to 18km distance. 26% of those lodged cases in court PENAL CONGESTION: A PROBLEM OF PRISON SIZE OR A PROBLEM OF DECISION MAKING (JOSEPHAT ITUKA-ASSISTANT COMMISSIONER PRISONS) Prison versus Correctional Services Discussion Paper MA UON 2010 Penal Congestion (Overcrowding Penal Institution). Penal Institutions were defined as places where offenders are confined for punishment to protect the public. There is a problem of defining how prison population is calculated. It was pointed out that there is no universally accepted standard for determining the criteria e.g. bed capacity is not even considered in Kenya because there are no beds for the offenders. It also becomes a challenge because in the countries where there are beds there are instances where there are double or triple bed decks which also affect the calculation. Another challenge is also determining the floor space, would it be done by space available horizontally or vertically. In a nutshell it is not crystal clear on the standard of measure for congestion whether by bed or floor space. Humane treatment of offenders is a requirement even by European Council Standard rules in which it is specified in square feet but accepted also not less than 4 meters squared. Kenya Standard or official certified capacity is placed at 40 sq. feet (horizontal measurement). There is no clarity on the quality of space provided (decent, sanitary, congested, facilities/amenities etc). The International School of Prison Studies Kings College UK London. European Prison Rules (EPR) Inmate Population or other criteria Rigid versus Release practices are issues to be looked into. Factors such as over securitization and political culture also contribute to penal congestion. These all lead into higher imprisonment rates 3|Page
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

because they recommend imprisonment as a strategy to solve the problem in society leading to congestion. Kenyas highest imprisonment stands at a rate of 108 which is position 140 of the 220 states evaluated. Contextual Problems in the country by evaluating facts is also affected by looking at the bigger picture of Imprisonent Policy versus Crime Deterrence. The International School of Prison Studies Kings College UK London is used by Kenya Prisons. Daily Average Population as the percentage of prison population per 100,000 of national population. Kenyas Blue Print Paper Economic Recovery Strategy for Wealth & Employment Creation 2003 2007 Daily Average Population in 2003 was 41,715.19 and 2007 was 39,371.81 The drop occurred due to a change in strategy 126.86% to 135.29% congestion may have reduced but the rate of jailing went up from 2008 to June 2012 In 2007 the prison rate was at 110.7 but in June 2012 it went 108.3 Excessive use of Pretrial detention where 32% as the acceptable standard. The judiciary is moving faster where do the remandees go from Prison. Management of convicted. Remand numbers are dropping convicted numbers are going up Remand Share Percentage 59.98% to 62.77%. Penal congestion is not a problem of capacity only, there is need for evidence based studies a baseline survey on penal congestion. Evaluating the allocation of funding to Judiciary, Police, Military can establish where focus on investment is on security the prison system cannot adequately handle the penal congestion without investment in facilities, human resource, training on rehabilitation etc Congestion percentage is an issue that is taken into account in the ERS (Economic Recovery Strategy) It would be critical to adopt evidence based strategies that are driven by context specific measures that would be most viable to socio-economic & political realities. Referencing the IBPs International Best Practice. 1. Budget Priorities 2. Interagency partnerships Quality of bringing numbers done by addressing the pre-sentencing strategy. It would be important to define who the target would be on this sensitization exercise 4|Page
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

Penal Decongestion requires concerted effort because: Rehabilitation is done by Prisons Sentencing is done by Judiciary Prosecution is done by Attorney General/Directorate of Public Prosecution Arrests are done by the Police (Law Enforcement)

The Media should be sensitized on the roles played by each as a system and not in pieces Article 28 from the CoK 2010 (constitution of Kenya) is quite clear on the inherent dignity of each and every person. The hearing of every case by a magistrate is at the sole discretion of an individual. There is a need to integrate the National Crime Center and jurisprudence to effect sentencing policies with respect to the nature and type of offence. Due consideration to legal capacity is important ref Section 30 CAP 90 Prisons Act (Prisoner in custody of officer in charge) Article 49(2) of CoK for Parole not used currently by Judiciary and it states: A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months. Plenary Summary Jedidah Waruhiu 1. Need for outreach sensitization on the criminal justice system. Little is known by the society at large i.e. State and Non State Actors (NSA) 2. Inter-agency cooperation. Prison, police and court sector-wide investment and capacity building. Financial support to go into personnel training 3. Argument of building more prisons (budgetary allocation issue) versus sustainability and maintenance as a capital expenditure (costs to run facilities, trained personnel, equipment, water, power, sanitary, food, health etc) 4. Need to develop conditional release (back end solution) 5. Cost of maintaining a person in prison is higher than having the person in the community (Caution emphasized to assess security of the country and public safety but not 'over-securitize' when unnecessary e.g. petty offenders) 6. Concrete paths to respond to problems 7. Review custodial measures and extenuating factors by Probation, Judiciary and Police. For alternative measures its a requirement to invest in structure and effectiveness 8. CoK requires legislation and policy to develop new practices. Structures need to be set up to back decisions. 9. How much information from prisons and judiciary is shared with politicians? 10. How do the politicians understand that information? 5|Page
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

11. Leadership involvement in the political process and evidence based studies key in solving penal congestion 12. Probation can refuse to take a case where the court has committed a person illegally 13. Diversion in justice system should be encouraged at the following levels: a. Community level b. Arresting level (police/law enforcement) c. Trial / Court level 14. Review required of: a. Inmate flow (pre-trial vs. sentenced) b. Inmate Stock (remand vs. sentenced) c. Release / outflow of inmates (pretrial and post-trial) Borislav Petranov The Global Criminal Justice Program is endowed with USD 5 million There are 2 main areas of focus: 1. Rationalize / Prevent Pre-trial detention 2. Review Post Trial Detention Availability of data from research on criminal justice is a challenge There are about 50 projects ongoing across the globe in 3 key areas of focus 1. Research 2. Advocacy 3. Litigation (PIL) Under Pre-trial detention there are 5 key areas that are looked into 1. 2. 3. 4. Serious crime Receptional Not excessive Judicial oversight a. Upon Arrest e.g. 24 72 hrs. detention b. Periodic oversight of detention by the court 5. Humane conditions (injured, healthy, clean area etc) Observations - Borislav Default detention is around pre-trial stage where there is intentional remand beyond sentencing period an area of concern

6|Page

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

Pre-trial detention for minor crimes or infarction e.g. spitting in public etc doesnt require detention of 3-6 months or less. It would be easier for diversion at arresting level or mandatory community service/ Non Custodial (NC) sentence preferred. Consider the effect on that life socially, psychologically, emotionally to alter the course of an individual for a petty offense in the presence of hardened and repeated offenders. Gene Guerrero Crime and Violence Prevention Initiative (CVPI) Crime/violence are key issues that the public are concerned about and the politicians using media have been propagating to lock up people more instead of solving the actual causes of crime. Violent Crime Rates are also at the top of cultural, social and economic forums for which its advocated to lock up as many offenders as possible as the only method of tackling crime. Countries that have gotten alternative methods of solving crime are: 1. Germany 2. Finland 3. United Kingdom Finland has about 5.5 million citizens with only 3 people in prison. What are the decision making dynamics? Or National Attitude for that matter? Public pressure leads most countries to adopt systems that: Shoot more criminals Jail more offenders

Its important to find innovative and transformative ways to invest in people and criminal justice work.

7|Page

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

Dr. Ludeki Chweya PS OVP & MOHA Prison/incarceration of offenders has not always been a part of society Problem is not superficially about decongestion hence the embracing of imprisonment as a panacea to crime. Unnecessary Imprisonment has aggravated / institutionalized keeping otherwise productive members of society in the custody of the State. Prison service is designed for rehabilitation and correction nut just as a punishment. The consequences of imprisonment on the family (basic unit of society) affect: 1. Life and comfort of the family 2. Loss of employment / Job 3. Family Breakdown, loss of school fees, marriage etc Diversion before the case enters court systems is key to solving the congestion problem wholistically e.g. example of a stolen goat. Requires a police investigation, combing the scene/village of witnesses, producing the stolen goat as exhibit, 5-day verdict and 10 20 page ruling on stock theft and conviction of 7 years of stock theft law. That is a huge amount of work and cost to the State of which the cost maintenance of that persons life while in prison keeps adding to the crime. Remember that each person in prison adds to the cost of maintain a prison i.e. water, electricity, food, medical, transport, facilities, sanitary practices, blankets, clothing etc Wouldnt it be easier to apply restitution, have the offender replace the goat (cash equivalent), apologize to the victim and pay a fine (of another goat and/or supervised community service/social work- clean litter, wash toilets etc 8hrs in a day or a week) etc with a monthly, weekly payment plan in case the means are not consistent and then close that dispute off by restoring balance. It would be better to overhaul the system instead of polishing a faulty system. The forum should have had better representation of the key decision makers i.e. Supreme Court Judges, Chief Justice, Police Commissioner, PS Internal Security etc Decongestion issue once more goes back to the community if you put your family together & be a good member of society. Judges / magistrates should use more community service orders Police should arbitrate/adjudicate more cases between offender and victim to the best of their knowledge as mature adults the more minor or petty issues to get the minor offences off the court system task shift the administration of justice to the community level by diversion to leave the more complex and serious cases only at the flow of cases lodged. Include the parents, family and other society members 8|Page
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

Presidential Pardon / Power of Mercy requires a process of vetting people who merit clemency in a way that is not arbitrarily determined but by merit. The parole system has been there but not operationalized since 1963 pending only the gazetting of the notice. There are more people in society that commit crimes that are never punished hence the need to take offenders as human beings capable of reform and change to be productive members of society. There should be complementary contribution in target policy guidelines/action plans i.e. judiciary, law enforcement, parliament e.g. penal sentences are too long. Why is 15 years better than 4 years? How many years does it take to reform an individual? Isnt it on a case by case basis? Prison is doing its best to rehabilitate but requires other agencies to work synergistically to be effective in its work. Everyone in the criminal justice system need to step back and interrogate what each unit / person does. If a person is jobless how do they pay the bill? Depends on economic status and ability to pay. Treasury needs to look more into the rehabilitative wing of criminal justice wing More custodial sentences need to be used How do we manage our crimes? What is our national psyche? Current philosophy? Vengefulness? litigious nature? How much do we invest in inter-agency cooperation?

Plenary Summary Key Points Jedidah Waruhiu Reflect on Article 49(1-2) of the CoK 2010: Rights of the Arrested Persons Reasonable non-custodial sentences Article 35(1) of CoK 2010 on Access to information from the State Article 35(3) Requirement to publish important information to the public Article 28 Human dignity to be respected and protected Article 159(2)(c) Judicial Authority Alternative forms of dispute resolution (reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.

9|Page

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

BAIL INFORMATION AND SUPERVISION (BIS): AN ALTERNATIVE TO REMAND CUSTODY BY CLEMENT OKETCH The BIS was conceived 4 years before the CoK came into force I.e. 2006 and it calls for conceptual reasoning based on: 1. Gravity of offences committed by those granted bail ref Art. 49 (Rights of persons Arrested) 2. Time period in which the accused is detained in remand (pre-trial detention). The oldest case in Court registry was initiated in 1952 and Criminal Remand of up to 6 years waiting for trial. Judicial purge also disrupts court process as another judge has to hear cases afresh 3. Disruption to administration for person(s) failing to appear in court upon getting bail 4. Reducing the Size and growth in prison population as per C.OC. Pretrial detention. Kenyans are vindictive by nature litigious and punitive by lodging all disputes without diversion clogging up case load a. In the UK smoking bhang is a non-issue however selling it attracts a heavy penalty b. Hawking in Kenya attracts a jail term / remand custody hence need for courts to use Article 49(2) BIS Key Objectives 1. Ease Case Backload 2. Ease Prison Remand population 3. Provide room for care of offenders especially SNOs (Special Needs Offenders) 30 40% of the population in prison are in remand (pre-trial detention) Key issue is on incapacitation versus rehabilitation CAP 90 (Prisons Act) Section 39 on Removal of Sick prisoners to hospitals (prisoners of unsound mind) Of key note of mental patients in prison, there were 58 in 2009 and 61 in 2010 (LRF Trust Study) Bail is a judicial interim release of a person charged with a criminal offence Bail information (report) is a social inquiry report that addresses the accused/offender background and community ties. The report is geared toward improving bail NOT as evidentiary as pertains to the trial and conviction process but social to assess the likelihood of appearance at court Provides verified information to the court about the accused to assist in rational decision making regarding the application Bail supervision entails community programs that enable select accused persons complete their period of bail without interfering with the course of justice
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

10 | P a g e

It is an organic community measurement instrument gathered by a community officer

Key determinants of eligibility of Bail are: 1. Danger of flight 2. Danger of retribution / re-offending / revenge 3. Causal reason of the charge(s) e.g. if a person becomes violent when he uses alcohol then alcoholism is the key area to address or remedy if the person is to be rehabilitated 4. Conditions of the charge and individual by the Court Bail information as an inquiry of means to attend court (Sanders & Young 2002). It must be reasonable and subjective (Article 49 CoK) Example of a case of Anjali a security guard, he lost his shoes and took from the company store a pair of boots to go home in. Unfortunately that evening a robbery occurs and it emerges that Anjali is in possession of shoes from work and charged as an accessory Relatives may not be aware of the imprisonment or meet the conditions of bail set by the court. Defendants in remand are more likely to be convicted and more likely to serve a sentence. Its difficult to concretize the relevant facts of the case as thinking/cognition is affected while in jail. There is no socialization or family support or freedom to seek help or consult for legal advice as someone who is posted on bail free to move till court date.

Challenges of BIS (Bail Information System) 1. Policy and legislation gaps 2. Inadequate resources to recruit and retain trained staff .e. funding for human and financial resourcing 3. Need for assessment tools 4. Lack of acceptance and skepticism by other players i.e. hesitation to adapt or change 5. No one communicates to judiciary on how much space is available in prison 6. People in informal settlements are not traceable e.g. Mathare, Kibera, Korogocho etc According to the Probation Service Survey 2009 82% of the inmates are below 35 years (economic generation) Article 53 CoK spells out the children custodial measures as a last resort. What needs to be done by Judiciary for this to occur and become a reality? Investment needs to be made into non-custodial sentences where the court intermediaries of the accused and complainant are taken to account. Refer to CAP 90 Article 57 Prisons Act (Register of Offenders)

11 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

The police force is tasked to keep/enforce the laws. It is not their mandate to adjudicate or arbitrate however there needs to be a multi-dimensional approach that can be used to divert cases where possible on minor offences especially. As far as the budgetary allocation for prisoners, pre-trial/remand prisons are maintained and kept by the Police. Once the case is heard by a court of law and sentence passed then it becomes the responsibility of the prisons department. Key concern for police on issue of bail and bond is to be able to secure the appearance of a person in court. Its costly to arrest suspects then have the court release them on bond then when they fail to show up the same police are called upon to re-arrest and secure the person concerned to appear. What is the impact of the law on the victim? Accused? Family? Community? security? Society? It is important to note that the BIS system is currently being used in Tanzania to assist the court in making those determinations and decongest prisons. BIS Vs. Rehabilitation Where there is no fixed abode for an offender to be granted bail then it is necessary for that person to have a relative with a fixed abode that can be used to trace the person in case they fail to appear in court. Pre-trial detention has resulted in loss of employment and livelihoods for some offenders, where they pay rent they lose accommodation There is a requirement for 2000 probation officers There needs to be special training for probation officers handling Special Needs Offenders (SNOs) on social work and interview techniques as well as Human Rights issues

12 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

OFFENDER RE-ENTRY : AN INTERNATIONAL PERSPECTIVE BY BOB BROWN STICS Canada Re-entry is also known as resettlement (UK) and re-integration (US) Ward committal is based on the ramification of conditional release program Technical violation effect on victim, society and offender. Management must be evidence based and replicatable. i.e. Evidence based: Knowledge Practice Principles Best Practices

4 Key principles of Evidence Based Practices for Treatment Interventions: 1. 2. 3. 4. Risk Principle: WHO to target for intervention Needs Principle: WHAT to target for intervention Responsivity Principle: HOW to target for intervention Individual case plan. a. Offender preparedness b. Imprisonment not as punishment to incapacitate (debasement of humanity)

There are low risk and high risk (re)offenders under the criminogenic needs principle to determine recidivism. The criminogenic needs example are criminal personality; antisocial attitudes; values, and beliefs; low self-control; criminal peers; substance abuse; and dysfunctional family. Focus of attention by probation should be on high risk offender or repeat offender population.

13 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

KLOCKAR 1972 PROBATION OFFICER TOPOLOGIES

Klockars (1972) defined four basic work styles (Probation IS NOT casework vs. Probation IS casework):
1. The Law Enforcer stresses legal authority 2. Time Servers have little aspiration to improve 3. Therapeutic Agents administer treatment 4. Synthetic officers balance treatment and law enforcement 1. Law Enforcer At the probation is not casework pole Officers stress the legal authority and enforcement aspects of the position. Philosophies dictate as essentials of social life Firmness Authority Rule abidance Of prime importance to such officers are the Court order Authority Decision-making power

2. Time Server The functional equivalent of the law enforcer. See their jobs as fulfilling certain requirements until their retirement and they have little aspirations to improve their skills. Conduct on the job is to abide by the rules Meet their job responsibilities minimally but methodically Rules and regulations are upheld but unexamined. They dont make the rules; they just work there.

3. Therapeutic Agent At the other pole are officers that see role as administering a form of treatment Introduce probationer to a better way of life Motivate patterns of behavior that are constructive Give guidance and support to those who are unable to solve their problems by themselves a Provide opportunity to work through clients ambivalent feelings

14 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

4. Synthetic Officer Recognition of both the treatment and law enforcement components of probation officers roles Officers attempts at supervision reflect their desire to balance the needs for therapy and law enforcement Set themselves the task of combining the paternal authoritarian and judgmental with the therapeutic

Further Readings: 1. Case Manager to Change Agent STICS Model Bourgon et al 2011 Traditional Case Manager Change Agent 2. Reentry & unemployment releasing prisoners redeeming communities (Thomson 2008) 3. STICS Research results (Recidivism Dr. Bontas team 4. Supervisory and Releasing Agency. 1. Report reentry policy council 2004 2. (Anderson 1981) 3. Washington State Institute for Public Policy (WSIPP July 2011) 4. Australian Institute Criminology (Borzyscki, Makkai 2007) a) Crime Prevention: i. Primary environmental ii. Secondary high risk iii. Tertiary known offenders to reduce re-offending 5. Reintegration Re-entry Centers (RRC) Federal Bureau of Prisons 6. UN Tokyo Rules Rule 9.2(a) Halfway houses 7. The Sunshine Network China (Chaoyand District Nov 28, 2003) Agreement to share knowledge and practices 5. Civil Society & External Stakeholders 1. Coordination framework, Probation Service Strategic Plan 2008 2012 respective roles, community correction Joint Task force

15 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

CHALLENGES AND OPPORTUNITIES IN OFFENDER REHABILITATION AND RE-ENTRY IN KENYA BY CHRISTINE OBONDI (SNR. ASST. DIRECTOR PROBATION SERVICE) 1. Kenya recognizes the UN Standard minimum rules (Tokyo 1990) 2. Vision 2030 blue print also recognizes issue of rehabilitation Kenya Criminal Justice System Challenges 1. 2. 3. 4. Not Seamless Inter-linkages & legal mandates Planning & coordination Lack of sentencing policy

There is a problem of subjectivity of key terminology across the criminal justice system e.g. diversion-reentry to the police, judiciary and probation mean different things depending on the understanding of each unit of justice. There are institutionalized legal mandate scopes in the criminal justice system (police, judiciary, probation) that limit or hamper progressive solution realization Organizational Approach to Concepts 1. 2. 3. 4. Definition Program support by respective organizations Offenders vs. offence criminal mind Implementation of idea according to core (sustain uniformity across the organization)

Challenges faced by offenders 1. Offender assessment & classification (diverse in training that staff go through e.g. curriculum current vs. curriculum past different schools of thoughts attitudinally) 2. Treatment: multidimensional, criminogenic risk & responsivity 3. Ensuring compliance (supervision intervals, assessment findings & instrument) 4. Client input 5. Professional discretion (bias toward physical features to assess risk or aversion toward certain way of life by way of subjectivity that may not suit the officer to help the offender) 6. Individual treatment plan (ITP) 7. Legal capacity of offenders overwritten Adopting Evidence Based Practice 1. Lack of standardized tools 2. Systems integration 3. Inadequate implementation structures 16 | P a g e
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

Staff Capacity 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Inadequate appropriate training and skills Inappropriate matching of staff to offenders. Subjective Personal attributes Inconsistent application of processes and procedures Minimal on-the-job training Attitude of service providers Special inclination/personal interest relevant to offender history that ideally should bring better service Attitude of service providers, particular mindset influences of outcome and behavior at dock in court room New approaches in offender reentry Sometimes its better to employ on attitude and train on skills. Mentorship on-the-job-training Rehabilitation begins and ends at the community level Stigma on the criminal elements, living arrangements, socialization, social-cultural values

Cultural interests vs. Law Early Marriages. Man locked up for defilement but practice goes on KWS prosecute herdsman who kills a lion that killed 28 of his goats

Opportunities 1. 2. 3. 4. 5. 6. 7. CoK (Constitution of Kenya) revamp and maintain clear Rules of Engagement (RoEs) Networks & Partnerships Communication; informal and formal Cross training of staff Program development Informal justice structures recognition and commission Evaluate critically the role that offenders need to play when back in society; have them not reoffend

17 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

CHALLENGES AND OPPORTUNITIES IN OFFENDER REHABILITATION AND COMMUNITY INITIATIVES BY ELIUD NGUNJIRI (RODI) 1. 2. 3. 4. 5. 6. Resources Oriented Development Initiative (RODI) Prisoner Rehabilitation Program (PREP) Schools Organic Agricultural Program (SOAP) Rights-Based Prison AIDS Prevention & Mitigation Program Pre-trial Detainees & Crime Prevention Project Hygiene Water, Sanitation & Natural Resources

RODI works in 27 prisons in Kenya (new) Key Approaches by RODI target problems instead of solutions. Survival of the common man has been criminalized with frustrated officers and offenders alike. Poverty and need for support to rehabilitate prisoners who while imprisoned are a burden on the society because the State is forced to take care of all their needs (accommodation, food, clothing, medical care, security, space etc) RODI uses RODA (Resources Oriented Development Approach). As was stated earlier the age group of 13 35 yrs. (working group) needs to be taught to focus on resources within their reach and not on what they lack. Another Method that RODI uses is RPRA (Restorative Rehabilitation Approach) Homegrown approach to build self-sufficiency in food PREP program builds hope and self-esteem as a rehabilitation package using CLIG (Community Livelihood Improvement Group. School based crime / Development Approach RODI-SOAP If education cannot be used to improve lives then it fails its core purpose and objective Offender rehabilitation is very expensive

18 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

INTEGRATING NGO/NSA PARTICIPATION IN THE POST PENAL TREATMENT OF OFFENDERS BY HANNA MAINGI NSA Non State Actors SCOs Special Category Offenders e.g. psychiatric offenders Offenders are part of society. They become offenders due to non-conformance to societal rules. Post penal Documents to refer to are CoK, Mental Health Act, Prisons Act (CAP 90) and Community Services Orders Act. There needs to be a mechanism of transiting offenders into society Ann Kamau LRF (Legal Resources Foundation) Types of approaches used: 1. 2. 3. 4. Human Rights Based Approach Capabilities Report Paralegal Approach Practice Approach

There are pro bono lawyers offered. Embu there are halfway homes and probation hostels. Ref Article 159(1) Judicial Authority mandate LRF Capacity builds elders on issues of human rights with community paralegals to monitor. Case of Maleka Mulwa 120 year old man convicted of defiling his 9 year old granddaughter. It so happened that after extensive investigation the fictitious charge was made by his son who wanted to inherit his property before time. LRF was able to reconcile the family after getting him off the charge and reconciled his son and rest of the family using local council of elders and other family members. LRF paralegals are bound by code of conduct in their operations There are: 9 rehabilitation centers 4 rescue centers 12 remand centers Gender & Child Protection (Buru Buru & ,,,,,) also in Nakuru

19 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

INTEGRATING NGO/NSA PARTICIPATION IN THE POST PENAL TREATMENT OF OFFENDERS BY DANIEL MWANIKI (ST. MARTINS) There are 5 key community programs 1. 2. 3. 4. 5. People with Disabilities Street children and needy children Active non-violence & Human Rights (200 volunteers) HIV/AIDS Alcohol and drug abuse Savings and Micro credit

There are 100 staff graduates with 1,300 volunteers involved in legal aid, strategic partnership and capacity building Need for an offender management tool INTEGRATING NGO/NSA PARTICIPATION IN THE POST PENAL TREATMENT OF OFFENDERS BY EDNA NYALOTI (KNCHR) Prison monitoring ongoing as well as follow up on ex-offenders The Kenyan society is known for poverty criminalization most of the time hence the burden falls on prison services. NSAs are complementary and should support constructive areas of mutual interest in rehabilitating this marginalized community and reintegrate them back to society. They need to register and submit to a vetting process to be recognized by the Government. There exists a disconnect between the probation and prison services. Section 66 of the CPC (Criminal Procedure Code) Defence of lunacy adduced at trial. Post Penal Release Opportunities Acquisition of skills e.g. building/construction, carpentry, metal work, farming, tailoring, plumbing, cleaning services, furniture making, business studies etc Important to have relevant ministries e.g. Agriculture, Education UFUNDI-interministerial Coordination Aftercare Services 2007 gazetted 2009 Policy statement guidelines Offender management Requirement for MOU (Memorandum of Understanding) with NSAs (Non State Actors) for ROE (Rules of Engagement) to reduce working in isolation and redundancy on areas of focus MOJICA Ministry of Justice & Constitutional Affairs
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

20 | P a g e

Sentencing reviewing board 7 years and above at the pleasure of the president. Requirement for post release reports for the power of mercy committee using AP (Administration Police) including probation officers Maximum imprisonment of up to 3 years confinement to ensure offender is released and enjoined to living support however not all people are accepted back by their communities Probation to ensure re-integration for community to understand the offender Probation is for social support and NOT for therapy Probation Officer Competence Graduates with second and third degree courses to enhance performance and service provision Provide services given by the government Empowerment of individuals to reintegrate and rebuild their lives Criminal records are an impediment to ex-offenders to get employment. They carry the criminal label to their graves Decriminalization of minor offences and use of ADRs for certain classification of offenders (ADR-Alternative Dispute Resolution by judiciary as a new approach) Power of Mercy Offender data management system (pilot & implementation) Nakuru has electronic reporting court standards with follow ups being done using a referral system Fundus official

TRUST NGO FOUNDATIONS NSA DEVELOPMENT PARTNERS CORPORATE BODIES

21 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

23 prisons with prison paralegals morning and evening Community paralegals who work with the barazas (community elders) Code of conduct that paralegals abide and monitored More than meets the eye in every case and sometimes paralegals have been reported to charge more than lawyers Working with council of elders & local administrators Capacity building for HR to align CoK with PWD, elderly, women, children etc There needs to be a clear definition of what the term life imprisonment means Role of death sentence (short term Community Service Orders-CSOs) Recidivism (UON & Unafric Kampala Report) Urban areas CAP 64 (Arrest to prevent such offences)

22 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

INTERNATIONAL CASE STUDIES AND LOCAL APPROACHES ON DIVERSION, YOUTH/ADULT DIVERSION BY JACKLINE GALLINETTI Alternatives to Imprisonment: International Perspectives South Africa Pre-trial diversion. Child Justice Act (CJA). Alternative sentences (Criminal Procedure Act; Correctional Services Act) Child offender perspective (ref: CROC-Convention on Rights of the Child). This presents an obligation for states to review 1. Ghana section 28 (1992) and 28 (1996) 2. Uganda Section 34(199K) 3. Kenya CoK 2010 Section 53 (Part 3Specific application of rights Children) 4. Kenya CoK 2010 Section 49 (Part 2Rights and fundamental freedoms Rights of Arrested Persons) 5. Kenya CoK 2010 Section 53 (Part 3Specific application of rights - Persons with Disabilities) 6. South Africa Bill of rights (BOR) 2 and Rights of Children 7. Children Justice Act (75 of 2008) [CJA] 8. SV Brandt(2004) 9. DPVVP(2006) Promoting child rights to end child poverty Proportionality children improvement and ubuntu Diversion CJA S.51 and Children Diversion 1. Minor (prosecutorial diversion) 2. Preliminary inquiry through order of magistrate 3. Trial at Children Justice Court Diversion register CJA S.60 Accreditation for diversion CJA S. 56 1. Criteria for evaluation 2. Diversion provisions Quality of diversion services 1. Advocacy awareness raising 2. Public sensitization to build credibility for diversion Alternative sentences Intervention South Africa has had diversion for the past 15 years

23 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

Pros & Cons Regulation Credibility Prosecutorial guidance on divergence (nicro.org.za) Restorative justice center (rjc.co.za) Youth Development Outreach (ydo.org.za) Pre-trial intervention Pre-plea reports i.e. reconciliation, mediation, withdrawals CoK 159(1) on Judicial Authority CPC (Criminal Procedure Code-Kenya) 176 (promotion of reconciliation) CPC-Kenya 202 (Non-appearance of complainant at hearing), 203 (Appearance of both parties) and 204 (Withdrawal of complaint.) Withdrawal from prosecution in trials before subordinate courts CPC-Kenya S.87(a) Nolle Prosequi Restorative justice Canada, EU & New Zealand Restorative justice is different from diversion Youth Justice Model SA Child Act No. 3 of 2001 Problem Solving Courts Therapeutic Justice. Donation can be in form of time, skill, work, assets, money etc) US & Australia have Youth Drug Courts or Minor offences courts ADRC Alternative Dispute Resolution Committees for specialized disputes/tribunals

CRADLE Children Rights Children offenders (petty offences). There are 80% minors in remand and rehabilitation and prisons in Eldoret is street children as well as children treatment in the justice system There are 11 juvenile remand homes under administration of the Children Department with a capacity of 2,500 There is no mechanism to separate troubled kids with serious offences from those with minor offences Recreation and education needs are also not adequately met or addressed effectively restitution and ADR should be used more where it applies

24 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

SPECIAL NEEDS OFFENDER (SNO) DIVERSION BY WAMUNDILA WALIUYA 1951 Mental Disorder Act S.30 repealed section (f) and (g) contained the phrases moron, imbecile and lunatic

Challenges SNOs PWD 1. Accessibility (physical environment, court room, prison, psychiatric unit) especially for those in wheel chairs 2. Appropriate communication mode in the CJS (Criminal Justice System) i.e. for blind and deaf persons i.e. use of Braille and sign language lacking to accommodate those special needs 3. Arresting, investigating, prosecuting, sentencing and probation officers have no capacity to understand or communicate effectively. Failure to communicate can lead to incarceration. The best place for diversion for PWD is at the first contact of the arresting officer taking to account the inherent dignity of the offender. Human rights application key areas of concern especially for those with psychosocial and intellectual disabilities. There are no tools to address those issues. There are no warning and caution statements to a deaf person 4. The Criminal Procedure Code (CPC-Zambia) details that anyone suspected of mental disorder and threat to society placed in custody or prison. Disorderly discretion that criminalizes mental disability with the demonization of psychiatric services 5. Capital offences are referred to mental health facilities for assessments. There are 3 practicing psychiatrists in Zambia so waiting for psychiatric assessments in prison can take a long while 6. There are regulations that prohibit possession of crutches, white cane or wheel chairs for PWD offenders under the pretext of the aids being used as weapons. They are confiscated as soon as one is admitted to the prison facilities thereby depriving them of mobility rights. Most of the facilities have dirty floors, toilets and PWD can be left to crawl in the waste on the floor. CASE 1 There was a case of teacher who shared a house with 2 ladies. They knew he had bipolar (nonviolent) and they neglected to clean up the house after using. One day they had an argument in which he expressed his concerns that he was left to do the entire cleanup yet they made the most mess. The roommates simply reported to the police in which he was sedated for 48 hours there were no tools to divert, investigate, adjudge, mediate or query the report from the complainant. CASE 2 A young man with psychoses was pacing up and down the street. The neighbor didnt like the young man and once they had a confrontation in which the young man threatened the neighbor after being provoked. The police arrested him and locked him up however to his luck a paralegal intervened and the police released him after he was placed on a supervised custodial 25 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

cleaning service for the station for 6 days (sweeping) then he was released. If it were not for the paralegal he would have languished in prison. CASE 3 A man using crutches misappropriated USD 500,000 and was sentenced in a criminal justice court to imprisonment. The crutches were confiscated then he was made to crawl to his cell without the mobility aids. He reported to the paralegal who publicized in media and the DPOs assisted to negotiate with the police to help the person have his crutches while in prison so that he could move around. The UNCRPD promotes inherent dignity of PWDs on an equal basis with others Article 5. Is clear on equal protection and equality before the law. Article 12 of the CRPD recognized equal recognition before the law and legal capacity is presumed. They have the right support to undergo trial the chance to defend themselves with the right support Article 18 also promotes Equal Access to Justice hence a need for adoption of the use of Braille and Sign language. There is no definition of the term unsound mind in the draft constitution and having it there is a big problem as it cannot be easily removed when promulgated There needs to be a committee to survey in prison to determine categories of disability and prison needs to inform policy legislation on change There needs to be physical access in the Supreme Court, Magistrate and Police Station. Building accessibility to audit key offices and access to officials for Persons With Disability (PWDs) There needs to be policies and laws to facilitate that process of ensuring accessibility. Approaches can be: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Community based crisis center psychosocial services Community based crisis center rehabilitation services Community based crisis center microfinance services Community based crisis center psychiatric services Peer support services Crisis center for persons relapsing Physical building including police stations disability law- paralegal assisted diversion Training of paralegals on disability law and disability awareness Exchange of knowledge among criminal justice players Regional databases on what other countries are doing Victims, visitors and witnesses to be involved in the Criminal Justice System
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

26 | P a g e

12. Psychiatric hospitals should not be treated as a diversion. Community Psychiatric diversion or other alternatives even when not known immediately

THE PLACE OF VICTIMS IN THE CRIMINAL JUSTICE SYSTEMS. BY NONCEBA LUSHABA (PHOENIX ZULU) Ubuntu (pronounced umundu) profound sense that we are only human through the humanity of others Restorative Justice (African) e.g. Kenya Harambee Therapeutic intervention consultants. Diagnostic intervention introspection. Personal introspection space to Interpersonal relationship Dangerous dichotomous restoring broken relationships and family conferencing Use of Drama, Music, Visual Arts to communicate and express program evaluated by UKZN university of Kwa Zulu Natal White paper on corrections SA (2005) Conference groups at Phoenix can go up to 45 members. Prison is not for housing offenders but to correct behavior THE PLACE OF VICTIMS IN THE CRIMINAL JUSTICE SYSTEMS. BY DORIS KITAA (FIDA-K) FIDA-K was registered in 1985 The 3rd UN Conference Nairobi as an NGO with 1000 members. FIDA is concerned with womens rights and fundamental in the establishment of gender desk set up. FIDA is well set up in Strategic Government Committees in house/out consultants Balance rights of Victims Vs. Offender There is no standard definition of a victim of an offence. Truth Justice & Reconciliation Act There are victims within the Criminal Justice System (CJS) Department of Probation & Aftercare services: Pre-bail information Counseling Victim notification
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

27 | P a g e

Victim impact statements

Article 49, 50 & 51 arrested persons. Right of suspect highlighted by Constitution more than victims rights Victim protection legislation is required Problems and needs of victims No recognition of emotional crisis for victims of crime (lacking) Ref Article 50(9) Victim safety when bail decision is made.

THE PLACE OF VICTIMS IN THE CRIMINAL JUSTICE SYSTEMS. BY TABITAH OWIYA DPP (DIRECTORATE OF PUBLIC PROSECUTION) DEPUTY PROSECUTION COUNSEL Un General Assembly resolution Basic principles of Justice for victims of crime & abuse of power Resolution 40/34 of November 1985 Avoid inconvenience prosecutor/court investigators Informal resolutions Fair treatment, restitution, compensation and assistance Offender background Situational analysis Plea agreements S. 137A victim needs to be involved at all stages Victim cannot address the court directly use prosecution and defense. Negotiation consultation Mechanism of protection of victim rights

JUDGE OUKO COMMENTS CLOSING CEREMONY Court Budgets/revenue while in the Registrar office was KES 300 million from the exchequer and KES 500 million from Court fees totaling an allocation of KES 800 Million The figure then was upped to KES 3 billion and in 2012 the budget is now a whopping KES 15 billion with magistrates currently at 690 up from 160 There are 83 State Councilors under DPP There is key focus on the judiciary currently however it remains for Probation and Police to get similar focus to strengthen the Criminal Justice System in Kenya. The challenge on reduction of penal population without compromising safety for the offender as well as of the victim. Key Observations 28 | P a g e
Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com

1. 2. 3. 4. 5. 6. 7. 8. 9.

Identify legislation and propose amendments Policy enacted to introduce new criminal justice practices Policy on Sentencing should be crystal clear and not rely on discretion of the magistrate Reduce redundant procedures Reduce lack of specialized skills Modernize record and database keeping Funding key institutions and not selective focus on one part of a system Effective inter-agency Cooperation & Collaboration (Judicial Services Act) Strengthen the National Council of Administrative Justice Offender management with research on government agencies and what they do

Nakuru Criminal Appeal cases, 7 out of 6 are related to sexual offences and from observing empirical group sexual offences act has catalyzed to an extent. Key to remember is that balancing Justice versus Security is not an easy matter to resolve even as we try to decongest our prisons.

29 | P a g e

Compiled by Kanyi Gikonyo: kanyi.gikonyo@uspkenya.com