NAIROBI, KENYA – There is no public defender in Kenya. This means that in nearly all cases, if you cannot afford a lawyer, you will not get one.
For the many impoverished men and women who have been accused of crimes they never committed, the absence of a defender can be devastating.
Last month, IJM Kenya and the Nairobi County Prisons Service signed a historic agreement to help address the legal gaps that have kept too many innocent people trapped in prison.
A Broken and Confusing System
The Kenyan legal process can be confusing and quite hostile to prisoners who are awaiting trial. First, there are no preliminary hearings to determine if there is any evidence against the accused person. Many times, the person charged with a crime doesn't even know what the charges are, and court proceedings are held in a language they do not understand. Then, if they cannot afford to hire a private lawyer, the innocent person will be shuffled between the prison and the courthouse and called upon to defend him or herself in court without anyone to explain what is happening.
Even when a judge can see that there is little to no evidence against an accused person, the judge does not actually have the power to dismiss the case. Instead, the police prosecutor must choose to rest or dismiss the case. The police prosecutors—who play a similar role to public prosecutors in the U.S.—are police officers who do not have any formal legal education or training. And yet they are the ones who have sole authority to dismiss or keep pushing a case through the system.
Further adding to the problem is the fact that the police prosecutors' supervisors are the ones who actually charge a suspect, and most police prosecutors are reluctant to tell their boss that they have made a mistake. So even if the police prosecutor doesn't have witnesses to bring forth evidence, he can simply request a postponed hearing. This vicious cycle of sham hearings and postponed court dates can last for years.
Filling the Gaps
In the last few years, IJM Kenya has been working to find innocent men and women who are simply too poor to afford the legal counsel to help set them free. Holding these innocent prisoners affects more than just the individual—whole families struggle when fathers and mothers are trapped for extended periods of time without defenders, and prisons become overcrowded and overburdened.
"It is a justice issue," explains IJM Kenya Field Office Director Shawn Kohl, adding, "It clogs the courts with people who shouldn't be there. And it destroys the fabric of society—the family."
To protect innocent men and women, IJM has been working closely with the Kenyan Prisons Service of Nairobi County to improve basic legal services to prisoners. On July 2, 2013, IJM Kenya formalized its partnership with the Nairobi County Prisons Service by signing a historic Memorandum of Understanding—a huge step toward filling the gaps where the public justice system has been failing.
Under this formal agreement, IJM will provide basic legal rights and advocacy training for prisoners who cannot afford a lawyer. Many of the men and women awaiting trial from prison have received little to no formal schooling. Now, those same poor people awaiting trial will learn about their basic rights under Kenyan law, such as their right to know the charges brought against them and their constitutional right to a translator. The training will strengthen the overall prison system so it is not just a holding ground for men and women who should not be there.
Shawn says the innovative partnership also gives IJM continued access to identify innocent prisoners awaiting trial. "This partnership would have been unthinkable just ten years ago," Shawn says, "but thanks to the leadership of Nairobi County Commander Wanini, the Nairobi County Prisons have started to open up. Commander Wanini has really been a champion for change in the Kenya Prisons System and should be recognized as a pioneer in the field and a champion for justice."