Kenya: finding Kafka in the criminal justice system

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07 Jun 2021
Gilbert Mitullah Omware

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Gilbert Mitullah Omware is a pro bono criminal defence lawyer and a researcher focusing on the right to legal aid. He presently serves as the Managing Partner for Mitullah, Shako and Associates Advocates LLP. Here, Gilbert discusses the risks Kenya’s indigent defendants face of being unjustly detained pre-trial and pressured into accepting plea deals.


You are a day labourer, young, uneducated, but still hopeful for a better future.  You leave your house at 6 am every day to look for work. You come back home one day, at about 7pm, with only fifty Kenyan Shillings (about 50 US Cents) in hand. This is all you have for you and your family that day. You go out to buy eggs and meet the police patrolling the area. They order you to lie down, and after a quick interrogation and body search, send you to join a group of other young men already detained. You all squat together in a huddle, numbers in the group swell, and soon you are almost twenty. When the police grow tired, you are all marched to the police station, where you will spend the night. No explanation on why you were arrested, save that you are all young men, away from home after 7pm.  

You find yourself in remand prison two years later, having been charged with the offence of preparation to commit a felony, the police having planted a knife on you, and possession of narcotics, five rolls of bhang which you also never had. You were charged with these offences along with another young man. A young man you don’t know, and only met at the police station. You cannot afford bail because it is set at 100,000 Kenyan Shillings (approximately USD 925): you find it hard enough to pay your monthly rent, which is 3,000 Kenyan Shillings (approximately USD 27).  

Your case has never gone to trial because the police officers who arrested you have never turned up in court to tender evidence. You have never met a lawyer in your life, and probably will not, because they are too expensive, and those who offer pro bono services only ever do so for children. Not the likes of you. This will force you to plea bargain your way out of prison. Better a criminal conviction and resulting record than staying in remand prison, a hellish limbo, where your fate is always pending, indeterminate. Under the plea deal, you will serve a two-year probation sentence so ‘everyone can win’. The prosecution gets a conviction, the magistrate marks your case as closed and files his returns, and you get to go home, grateful that you are out of prison, a place you should never have been in in the first place.  

Now stop imagining, because this diabolical scenario is the life of thousands of young Kenyans in remand prison.  

The young and poor remain unprotected 

Kenya’s criminal justice system is packed with mostly young, poorly educated, indigent pretrial detainees, with no understanding of the criminal justice process and no legal representation. Although the right to legal representation is now protected under Article 50(2)(h), it did not exist before promulgation of the Constitution in 2010, and it is still not guaranteed in practice for a significant majority of suspects and defendants. They consequently have only limited enjoyment of their rights to access to justice and fair trial, leading many to plead guilty or negotiate a plea bargain so they can be set free. Pre-trial detention may thus function as a coercive force for procuring convictions based on shoddy investigations that cannot be challenged through effective legal defence. This may lead to a subversion of justice which weakens the criminal justice system and, with it, the rule of law.  

While the Constitution guarantees the right to bail unless there are compelling reasons not to release an accused person, the Criminal Justice Audit conducted in 2016 by the Legal Resources Foundation Trust, in partnership with the National Council on Administration of Justice and RODI Kenya, found that 90 percent of defendants cannot afford their bail and bond terms and are consequently placed under pretrial detention. Statistically, bail and bond terms set by Kenyan courts are not congruent with the economic circumstances of most defendants, which has resulted in pre-trial detention for indigent people becoming the rule and not the exception.  

Kafka-esque injustice 

Unfortunately, this manifest – and continuing – vulnerability to miscarriage of justice faced by those in pretrial detention has not received any adequate regulatory or judicial response. The only way to guarantee fair trial rights is to ensure state sponsored legal representation for marginalised, indigent and vulnerable pretrial detainees. Research shows that 86 per cent of pretrial detainees in Kenya have no access to legal representation, despite the Legal Aid Act, 2016.  

This Act was put in place to give life to the constitutional right to state sponsored legal representation, by establishing the mechanisms necessary to make it a reality: namely, the National Legal Aid Service and the Legal Aid Fund. Sadly, neither has fully functioned since the commencement of the Act.  The National Legal Aid Service significantly lags behind, leaving thousands of pretrial detainees languishing in remand prisons, facing insurmountable barriers to meeting bail and bond terms. Vulnerable people who do not understand the system and have never interacted with it are caught in its crosshairs, and inevitably pay a heavy price. 

Every day I walk into court, I meet people who are desperate for legal aid and assistance but cannot access it. People who have been convicted who would have been acquitted if legally represented. People eventually acquitted, but grappling with the anxiety of going back to nothing after at least a year in remand prison, which could have been avoided with legal representation. People who remind you that the dystopian fictional events in the life of Josef K. in Franz Kafka’s The Trial really could jump out of books and become reality. Motivated by such injustice, pro bono lawyers step in to help, but we face many systemic and capacity related challenges.  

Kenya has repeatedly acknowledged the dire need for criminal justice reform, and that the present system is particularly skewed against the urban poor and young. Retired Chief Justice David Maraga set up the National Committee on Criminal Justice Reforms in January 2018, with the mandate to comprehensively review the sector and make recommendations to drive reform. A committee was established to oversee the implementation of the Bail and Bond Policy Guidelines. If properly funded, these reforms would produce an efficient and well-coordinated system that guarantees justice to all, at all stages.  

Importing plea bargaining 

The challenge these well-intended criminal justice reforms are now facing is that state agencies including the Judiciary and the Office of the Director of Public Prosecutions (ODPP) are starved of much needed government funding because of other competing (political and national) agendas. This has led them to seek external sources of funding, such as from international aid agencies or foreign governments, with varying results. One example of this is a scheme to promote use of plea bargaining and diversion in Kenya, sponsored by the US Government and implemented through the ODPP. The scheme has led to prosecutors negotiating deals with unrepresented indigent defendants who have no idea what plea bargaining is, apart from a means to leave remand prison quickly if they happen to ‘win’ a non-custodial sentence in exchange for a guilty plea. In practice, this process often happens without defence lawyers, so that vulnerable pretrial detainees may end up accepting unfair deals just to get out of remand prisons – and no backstop as a safeguard. In effect, a dearth of adequate financing for criminal justice reform has resulted in the importation of policies and practices from other jurisdictions without thought for their suitability, and without sufficient safeguards for the vulnerable whose rights are at stake.  

No more quick fixes 

To fix Kenya’s ailing criminal justice system, the discourse needs to move from the board rooms and conference centres into the informal urban settlements where most arrests and over-policing occurs, the police stations where thousands are unjustly held, and abused, and the court rooms where people’s hopes for justice are routinely dashed, be they victims or suspects. That is where Kenya’s criminal justice system must transform – in consultation with the people most affected by it. The inclination to do the bare minimum and find quick fixes for a criminal justice system that is bursting at its seams, will do nothing to improve it. We must all ensure this is not the future of criminal justice in Kenya.

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