Reimagining a More Humane Justice Systemin KenyaBy Patrick Gathara

“Arrest them!” Across the globe, this is the popular demand whenever someone is accused ofwrongdoing. Two weeks ago, the reigning Formula One champion, Lewis Hamilton, appeared beforethe press wearing a T-shirt emblazoned with the words “Arrest the cops who killed Breonna Taylor”– a reference to an incident six months ago in which US police shot and killed the unarmed AfricanAmerican in her own home during a drug bust. In Kenya too, demands for arrests are an almostinvoluntary reflex reaction whenever vices like murder, rape, robbery, poaching or corruption reartheir ugly head.

We rarely give thought to this identification of incarceration with punishment and the consequencesof doing this. Especially on the African continent, confinement as a form of punishment was largelyunknown prior to colonialism. Jails, which did exist in some pre-colonial kingdoms, were establishedfor the purpose of holding either suspects pending trial or convicts awaiting their fate.

Still, for much of the continent, the experience of confinement was a product of colonialism. Yetthere does not seem to have been much resistance to the idea of incarcerating people. It issomewhat strange considering, as historian Daniel Branch observed, “prisoners were servingsentences in institutions with no historically derived meaning, having been convicted for activitiesthat they would not themselves consider offences”.

Places of incarceration did form sites of activism and resistance – one here thinks of the March 16,1922 protests at the Nairobi police station against the arrest of Harry Thuku, which were led byMary Muthoni Nyanjiru and which resulted in the massacre of at least 21 and perhaps as many as ahundred protesters by the police and colonial settlers. However, one does not generally come acrosstales of attacks on colonial prisons in the same manner as, for example, the Nandi attacks on the“iron snake”, the colonial railroad foretold, the legend goes, by their fourth Orkoiyot, Kimnyole (whowould ironically be stoned to death by Nandi following a sequence of failed predictions).

“There’s quite a lot of evidence to suggest that the removal of ‘criminals’ was welcomed – even ifthey had been convicted by a colonial justice system,” says Prof David Anderson. “Colonial goalswere certainly sites of oppression, but they also served a social function of which some Africansapproved.”

Still, for much of the continent, the experience of confinement was a product ofcolonialism. Yet there does not seem to have been much resistance to the idea ofincarcerating people.

The seemingly rapid acceptance of incarceration as a mode of punishment was perhaps aided by therelatively permeable membrane that was the prison wall — at least for petty criminals who made upthe bulk of the inmate population in Kenyan prisons in the early days. Branch documents prisonershosting their families for tea, being allowed to go for strolls in town or brew their own hooch. Andthough life on the inside may have been brutal, so increasingly was life under colonial occupation onthe outside.

Exceptions were made for individuals whom the colonial government viewed as a threat to theircontrol, in which case incarceration was accompanied by deportation following ordinances enactedin 1923 empowering the governor to detain anybody and deport people from one part of the territoryto another. Harry Thuku was, for example, deported to Kismayu following the Nairobi massacre andin the 1930s, as related by Prof Anderson, “the entire Talai clan was deported from the KipsigisReserve and detain[ed] indefinitely in an alien and inhospitable area of Nyanza province in whatwas, in effect, an open prison”. This followed attacks on symbols of colonial authority, includingEuropeans and Asians as well as chiefs and their assistants, including what came to be known as theKinangop Outrage – the killing of a white settler, Alex Semini, and the assault on his wife during abungled robbery.

Even as prison conditions deteriorated markedly during the Mau Mau Emergency and afterindependence, attitudes towards incarceration did not change. Although Kenyan prisons continue tobe heavily criticised by international groups for neglect, violence and abuse of human rights withinthe system, there has not been a popular movement for prison reform. The sporadic attempts atimproving prisoner welfare have been led by a few religious and civil society groups and stateofficials, most notably former Vice President Moody Awori’s reforms in the early 2000s. However,they have yielded few tangible improvements and, more importantly, have not translated into publicpressure for reform or even abolition of the prison system.

On its part, the state’s attitudes towards incarceration have barely budged. The recent arrest anddetention of two legislators for “insulting” the president and his mother were telling. Following amodel of harassment practised against activists, journalists and ordinary citizens, rather thanrequesting the two to come to the police station and without bothering with a warrant, contingentsof cops were sent to haul them in. The courts thereafter sanitised this by allowing them to be heldlonger as police “completed investigations”. This abuse of the police powers of arrest and detention

continues despite constitutional guarantees of liberty, presumption of innocence, freedom fromarbitrary incarceration and bail.

Tens, perhaps hundreds, of thousands of Kenyans who have been convicted of no crime continue tospend days, weeks, months and even years in police or remand jails. The National Council on theAdministration of Justice (NCAJ) points out that the Kenyan police have abused their powers ofarrest “to harass Kenyans, especially the poor, vulnerable and marginalised individuals withoutsufficient legal knowledge to defend themselves or sufficient resources to either bribe the policeofficer to be released or to hire a lawyer to represent them in Court”. The scale of arrests ishumongous. An audit by the NCAJ found that 145,000 people had been detained in just 15 of Kenya’spolice stations between 2013 and 2014. That suggests that a total of 10 million people, or one inevery five Kenyans, are arrested by the police every two years. This is in addition to the nearly30,000 currently being held in remand, who constitute half of the prison population.

There have been recent attempts to decongest the jails by encouraging, for example, alternativedispute resolution mechanisms, plea bargains and non-custodial sentences. However, the efficacy ofthese are undermined by the fact that Kenyan courts, like the police, continue to treat liberty as aprivilege to be earned rather than a right to be protected. Although four years ago the High Courtdeclared unconstitutional the police practice of arresting “suspects” and then asking the courts formore time to complete investigations before charging them, judges and magistrates continue toindulge this practice, as we have seen.

An audit by the NCAJ found that 145,000 people had been detained in just 15 of Kenya’spolice stations between 2013 and 2014. That suggests that a total of 10 million people,or one in every five Kenyans, are arrested by the police every two years.

Even more egregiously, an audit by the Office of the Director of Public Prosecutions revealed thatcourts routinely issue unaffordable bail and bond terms and that 90 percent of the suspects, who arelegally presumed innocent but end up spending an average of one year in pre-trial remand, haveactually been granted bail or bond but are too poor to execute them. In a country where nearly halfof the households earn less than Sh10,000 per month, and where, as we have seen, the poor makeup the vast majority of those targeted by the police, only six per cent of those in pretrial custody hadbeen granted bail amounts below that figure.

In short, in the name of fighting crime, Kenya continues to deprive millions of its citizens of the rightto liberty and to hold many of them in inhumane and deplorable conditions for extended periods oftime. Yet this has not resulted in a significant decline in the crime rate over the last decade, with therate of intentional homicides hovering between 4.5 and 5.5 per 100,000 according to the WorldBank. So if arrests and incarceration are not working, why do we keep doing them? Are there viablealternatives we can explore?

Clearly, the Kenyan state continues to arrest and imprison Kenyans simply because it knows nobetter. From its founding in the colonial period, brutal incarceration has been the primary means bywhich the state has engaged with its citizens. Without fundamentally reforming and rebuilding thelogic of the state, changing how it deals with Kenyans will be impossible. This reimagining of whatthe state could be and its relationship with the people is the work that the 2010 constitution calledon us to do but that seems to have barely begun a decade later.

Faithful implementation of the spirit and letter of the 2010 constitution would end the prison state.Arbitrary arrests would be a thing of the past and confinement would be a last resort. If judges took

the prohibitions against “cruel, inhuman or degrading treatment or punishment” seriously, theywould stop sending suspects and convicts to violent, overcrowded, unsanitary death prisons.

As for alternatives to arrest and imprisonment, these are legion and would immediately becomeapparent once we sorted out the state. For one, Kenya could look to her pre-colonial past for ideason how to deal with crime. At that time, criminal justice systems were more focused on restitutionand reconciliation rather than punishment. They “were victim rather than perpetrator-centered withthe end goal being compensation instead of incarceration” notes Prof. Jeremy Sarkin. It was only onthe rare occasion when the crime was either sufficiently grievous or the offender had exhausted thesociety’s patience that severe penalties, including ostracism, banishment or death were imposed.

Brutal incarceration has the primary means by which the Kenyan state has engaged withits citizens. Without fundamentally reforming and rebuilding the logic of the state,changing how it deals with Kenyans will be impossible.

Saying that we could learn from the past does not necessarily mean we need to replicate theirmethods or that our ancestors had it all figured out. It just means there are lessons and attitudes tobe learned about dealing with crime that could be adapted to modern times. One of this would be todiscard the idea that all, or even most, wrongdoers and suspects have to be walled off from societyand condemned to spaces of unimaginable suffering, humiliation and death.

Non-custodial sentences, especially for non-violent crimes, should be the norm. Community serviceorders in addition to having offenders pay compensation to their victims rather than fines to thestate could be other innovations we could borrow from the past. Restitution, resolution andreconciliation should be preferred above retribution.

Granted, even with such reforms, there might still be a place for police cells, jails and prisons. If so,it would be a much smaller place. And one that is more befitting a space for the rehabilitation forhabitual offenders than what we currently have.

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Reimagining a More Humane Justice Systemin KenyaBy Patrick Gathara

The influx of the Mau Mau transformed the prison population in Kenya from one predominantlymade up of recidivist petty criminals and tax defaulters to one composed largely of politicalprisoners, many of whom had no experience of prison life and who brought with them new forms oforganisation.

Prison life was harsh, with its share of brutalities and fatalities. Between 1928 and 1930, about 200prisoners in Kenya died. According to British historian David Anderson, “Kenya’s prisons werealready notably violent before 1952 [when the Mau Mau uprising began], more violent than otherBritish colonies.”

However, the incorporation of prisons and detention camps into the “Pipeline” (the systemdeveloped by the colonial state to deal with the Mau Mau insurgents and to try and break themusing terror and torture) inevitably led to the institutionalisation of the methods of humiliation andtorture.

As Anderson notes, “Most of the staff in both the Prison Service and in the [Mau Mau] detentioncamps were Africans. Some were even Kikuyu. They certainly ‘learned’ these methods during theirperiods of early employment.” He goes on to say that “those who ran the service by the 1960s andearly 1970s were all men who had been recruited and trained during the Mau Mau period”. Hethinks it “very likely that these individuals practiced what they had learned as cadets and trainees inthe 1950s…I think the Mau Mau experience certainly hardened Kenya’s prison system andintroduced a greater range of punishments and harsher treatment for prisoners as a consequence ofthe conditions off the Emergency”.

Compare, for example, this account of the treatment of Mau Mau detainees in the 1950s publishedin Caroline Elkins’ book, Britain’s Gulag: The Brutal End of Empire in Kenya:

Regardless of where they were in the Pipeline (the system of camps established forderadicalizing Mau Mau detainees and prisoners), roll call meant squatting in groups of fivewith their hands clasped over their heads. The European commandants would then walkthrough the lines, counting and beating the detainees. “The whole thing was just so ridiculous,”recalled one former detainee from Lodwar. “Whitehouse [the European in charge] would justcount us over and over again.”

It bears stark similarities to this account published in the Daily Nation about conditions in Kenyanprisons 65 years later:

Omar Ismael, 64, a former Manyani inmate who served nine years till his exoneration in 2017,says he woke up at 5am, despite his advanced aged. They then squat in groups of five to becounted and checked by guards. “My knees are still hurting to date. I have a joint problem tooas a result,” he says. He says they had at least six head counts per day. The first one at 5am,followed by 10am, noon, 4pm, 6pm and 7pm.

Kenyan prisons today carry the DNA of their forebears – the colonial prisons and Mau Mau detentioncamps. They are about brutalising prisoners into submission and, along with the police and military,scaring the rest of society into compliance with the state. They are places of dehumanisation,abandonment and retribution. And like their colonial parents, they prefer to employ the leasteducated. (At present, out of a staff complement of 22,000, the Kenya Prison Service only has about700 graduate officers.) As of 2015, according to the World Prison Population List prepared by theInstitute for Criminal Policy Research, Kenya has incarcerated more of its citizens per 100,000population than any other country in Eastern Africa with the exception of Rwanda and Ethiopia.

Notably, about 50 per cent of Kenya’s 54,000 prisoners are pre-trial detainees or those held inremand as they await trial – people legally considered innocent. By comparison, the medianproportion of pre-trial prisoners in Africa is 40 per cent and nearly 30 per cent globally. In EasternAfrica, only Uganda and Ethiopia have a higher proportion of pre-trial detainees than Kenya. As incolonial times, pre-trial detention is driven by two factors – the need to extract resources from thepopulace and the subjugation of the native through criminalisation of ordinary life.

In 1933, submissions to the Bushe Commission provided some flavour of how the threat of arrest andimprisonment was ever-present among the natives.

Relates one Ishmael Ithongo:

Once I was arrested by a District Officer on account of my hat because I did not see himapproaching. He came from behind and threw it down. I asked him why because I did not knowhim. He called an askari and asked for my name. It was in a district outside. He asked me,“Don’t you know the law here that you should take off your hat when you see a white man?”Then he asked me, “Have you got your kipandi?’ I said “No, Sir.” So I was sent to prison… Whenan askari thinks that you look smart he asks if you have your kipandi. I have seen natives whoare going to church in the morning who have changed their coat and forgotten their kipandi.They meet an askari. “Have you got your kipandi?” “No.” “Ah right” and they are marched off toprison.

This will sound familiar to many Kenyans today whose encounters with the police often begin withdemands for the production of the kipande (ID card) and end with a stint in overcrowded policecells. However, there are some differences. An audit of pre-trial detention by the National Council onthe Administration of Justice found that police generally arrested and charged people for pettyoffences, with close to half of those arrests occurring over weekends. Most releases from police

custody also happened over the weekend with no reason recorded for two-thirds of those releases.Further, only 30 percent of all arrests actually elicited a charge, the vast majority for petty offences.This implies that most police detentions today are something of a catch-and-release programmedesigned to create opportunities to extract bribes rather than labour.

However, for those who get incarcerated, matters are somewhat different. The exploitation ofprisoners’ labour continues. Like the Mau Mau detainees, they are required to work for a tokenamount determined by the government, which, unlike its colonial ancestor, does not even pretendthat the 30 Kenyan cents per day is meant as a wage, with the Attorney-General declaring in courtthat “prison labour is an integral component of the sentence”. The courts have held that it is entirelycompatible with the protection of fundamental rights for the Prison Service to do this as well as todeny convicts basic supplies such as soap, toothpaste, toothbrushes, and toilet paper. Apparently,the conditions the convicts are experiencing cannot be called forced labour and servitude because,the strange reasoning goes, “the Constitution and the Prisons Act do not permit forced labour orservitude”.

Notably, about 50 per cent of Kenya’s 54,000 prisoners are pre-trial detainees or thoseheld in remand as they await trial – people legally considered innocent…In EasternAfrica, only Uganda and Ethiopia have a higher proportion of pre-trial detainees.

Like in colonial times, the beneficiaries of this prison industrial complex are the state and those whocontrol it. Remandees and convicts are liable to be put to work cleaning officials’ compounds andthere have been persistent rumours of them being compelled to provide free labour for the privatebenefit of prison officers and other well-connected government officials, as is the case in Uganda.

While in 1930 earnings from convicts’ labour accounted for a fifth of the total cost of the PrisonsDepartment, the official goal today, as declared by the Ministry of Interior, is for the Department totransform into a “financially self-sustaining entity”. To achieve this, President Uhuru Kenyatta hascreated the Kenya Prisons Enterprise Corporation with the aim of “unlocking the revenue potentialof the prisons industry” and to “foster ease of entry into partnership with the private sector”.

This basically entails deeper exploitation of prisoners’ labour. And even though Kenyatta speaks ofimproving remuneration, it is notable that this is not a free exchange. Whatever the courts mightsay, it is clear that the state and its owners feel entitled to the labour of those they haveincarcerated, much like their predecessors (the colonial regime and the European settlers) once feltentitled to African labour.

This will sound familiar to many Kenyans today whose encounters with the police oftenbegin with demands for the production of the kipande (ID card) and end with a stint inovercrowded police cells. However, there are some differences. An audit of pre-trialdetention…found that police generally arrested and charged people for petty offences,with close to half of those arrests occurring over weekends.

In this regard, the attitude is very like that of the white settler in Kiambu, Henry Tarlton, who toldthe 1912 Native Labour Commission regarding desertion by African workers that “this is my busiestseason and my work is entirely upset, and it is hardly surprising if I am in a red-hot state borderingon a desire to murder everyone with a black skin who comes within sight”. Another white settler,Frank Watkins, in a letter to the East African Standard in 1927 boasted of his “methods of handlingand working labour”, which included “thrash[ing] my boys if they deserve it”.

This brutality, especially directed towards African males, was paired with forced labour from thevery onset of the colonial experience. (Brett Shadle, Professor and Chair of the Department ofHistory at Virginia Tech, notes that the settlers were much more reticent about their violence onAfrican women, which tended to be sexual in nature.) These settlers were already pushing thecolonial state to institute unpaid forced labour on public works projects in the reserves (which iteventually did) as a means of driving Africans to wage employment for Europeans.

But it was within the prison system and Mau Mau detention camps that the practice of forced labourfound its full expression. According to Christian G. De Vito and Alex Lichtenstein, “Conditions insidethe detention camps created in Kenya in the 1910s and 1920s and in the prison camps opened in1933 depended on the assumption that forced labour, together with corporal punishment, couldactually serve as the only effective forms of penal discipline.” The influx of Mau Mau detainees, theyexplained, overwhelmed the system “since police repression by far exceeded the capacity of thealready overcrowded prisons, and the colonial government decided to establish a network of camps,collectively called the ‘Pipeline’, characterized by violence, torture, and forced labour.”

These are the footsteps in which the Kenyan state is walking. Nelson Mandela once said that anation should not be judged by how it treats its highest citizens but by how it treats its lowest ones.By that measure, the current Kenyan state is no different from its colonial predecessor.

“It is also worth thinking about what happens to the prison at the end of colonialism,” says ProfAnderson. “There is no movement for prison reform in Kenya after 1963 – rather the opposite: theprison regime becomes harsher and is even less well funded than it was in colonial times. By the endof the 1960s, Kenya is being heavily criticised by international groups for the declining state of itsprison system and the tendency to violence and abuse of human rights within the system.”

Prof Daniel Branch stresses that “post-colonial prisons urgently need a history. The Mau Mau periodrightly gets lots of attention, but there’s very little by scholars on the post-colonial period”.

It is critical, as Kenya marks a decade since the promulgation of the 2010 constitution, that we keepin mind Mandela’s words and ask whether, if at all, it has changed how those condemned by society– “our lowest ones” – are treated. That will, in the end, be the true measure of our transformation.

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Reimagining a More Humane Justice Systemin KenyaBy Patrick Gathara

The death of George Floyd in the United States has sparked a number of important conversations,particularly around racial justice and policing. As protests against brutal criminal justice systemsand demands to address colonial legacies have spread around world, the penal system – the oneparticular institution that brings the two strands together – has not received as much attention.

The prisons that litter the African landscape are both a legacy of colonial subjugation and a site foregregious human rights abuses. Yet there have been few calls on the continent for their abolition ordefunding. In fact, even throughout the period of anti-colonial agitation and struggle, there seem tohave been few such demands. This is curious given the fact that incarceration as punishment wascompletely unknown in Africa before the arrival of the Europeans.

Pre-colonial justice systems “were victim rather than perpetrator-centered with the end goal beingcompensation instead of incarceration” notes Prof. Jeremy Sarkin. Though pre-trial detention wascommon and some centralised states, such as the West African kingdom of Dahomey, had permanentprisons, these were not penal institutions but rather facilities for temporary detention as suspects orconvicts awaited justice.

However, even in the pre-colonial epoch, interaction with Europe had begun to influence penalsystems and ideas around confinement. According to Florence Bernault, author of A History ofPrison and Confinement in Africa, “the intensification of the slave trade in the eighteenth andnineteenth centuries, and the violence it entailed at the time of abolition meant that unprecedentednumbers of Africans faced capture and enslavement and that Europeans’ pre-colonial influence overAfrican penal systems came mostly from the diffusion of antiquated devices of bodily restrain andtorture”.

In indigenous systems, corporal and capital punishments were reserved for the worst crimes, while,

according to Leonard Kercher’s 1981 treatise on the Kenyan penal system, “ostracism, religioussanctions and expulsion were … employed mainly against lesser habitual offenders who hadoutraged the conscience and exhausted [society’s] patience”. Such expulsions in some societies tookthe form of enslavement and the slave trade incentivised this punishment to be imposed for anincreasing range of crimes. Those sold off were held in camps where men were shackled, though insome instances, women and children were allowed to wander free in guarded compounds as theyawaited shipment.

Similarly, as the abolition of the slave trade was enforced, both slavers and slave rescuers keptvictims in enclosed compounds – the former to avoid patrols and the latter to house and supervisethem in so-called “villages of liberty”. In this way, the idea of confinement became increasinglyfamiliar to many on the continent, though it was not yet linked to punishment; that came withcolonialism.

There is no evidence of the existence of pre-colonial prisons in Kenya. However, it is notable thatprisons were among the first buildings the British built whenever they went into a future colony.Within 16 years of their arrival in Kenya in 1895, they had built 30 prisons with an average dailyincarcerated population of over 1,500. In the next 20 years, the numbers of both prisons and inmateswould more than double. By the dawn of the Second World War, Kenya was incarcerating a fargreater proportion of its population than British colonies elsewhere in East and Central Africa, with145 out of every 100,000 natives in prison. And in 1951, on the eve of the Mau Mau war, prisonsheld nearly 12,000 people.

Daniel Branch attributes the high incarceration rate to the fact that Kenya was a settler colony andto the fact that, as fellow historian, David Anderson relates, “law and order had been a nearobsession with certain section of the European settler community”. This is another link with the US,where for a long time, the phrase “law and order” has been used to conflate black resistance to theracist hierarchy with criminality, most recently in its use by President Donald Trump with regard tothe Black Lives Matter protests.

Similarly, in Kenya, imprisonment in the service of demands for “law and order” was not aboutdispensing justice. As Branch observes, “Kenya’s prisoners were serving sentences in institutionswith no historically derived meaning, having been convicted for activities that they would notthemselves consider offences”. Prisons were rather an extension of the colonisation project, apunitive device to ensure compliance with the racist colonial order, as well as its dictates andprivileging of white authority.

By the dawn of the Second World War, Kenya was incarcerating a far greater proportionof its population than British colonies elsewhere in East and Central Africa, with 145 outof every 100,000 natives in prison. And in 1951, on the eve of the Mau Mau war, prisonsheld nearly 12,000 people.

Colonial prison differed from its counterpart in Europe. “The body and pain are not the ultimateobjects of … punitive action,” wrote Michel Foucault in his book, Discipline and Punish, whichdetails the long-term changes in the focus of European penology. However, according to Bernault,“while the Western penitentiary reframed free individuals as equal citizens and legal subjects, thecolonial prison primarily construed Africans as objects of power”. It was about the exercise of powerover them and ideas like rehabilitation of offenders that were being propounded in the West by theprison reform movement. These reforms had little impact on how the colonial prison was run.

As Branch notes, from the beginning, Kenyan prisons were deemed by critics to be “insufficientlyharsh”. In his paper, “Imprisonment and Colonialism In Kenya”, he quotes one visitor to Lamu in1909 complaining that the prison was “a farce – the punishment instead of acting as a deterrent onlyencourages the prisoners to commit offences, they have no proper work to perform, they are givenall the holidays”.

Forced labour

Incarceration was not just about punishment; it was also a means to extract labour and resources forthe colonial state. Prisoners were forced to work on public projects and penal labour was considereda vital part of the colonial economy. As Bernault points out, “By 1933, forced labour had becomesuch a frequent sentence that the government began building prison camps entirely devoted toagricultural and public works”.

This reliance on prison labour contributed to a preference for jailing people. In his testimony to theBushe Commission, set up in 1933 to look into the Kenyan justice system following a series ofscandalous incidents, Sydney Hubert La Fontaine, the Ukamba Province Provincial Commissioner,demonstrated the preference for jailing people. He admitted that he would rarely entertainalternatives to putting natives in prison for a first offence, nor give them time to pay fines. “In thevast bulk of cases they are detained.”

Another incident related by British anti-imperialist Norman Leys in his book, A Last Chance forKenya, demonstrates the connivance of colonial authorities in locking up Africans they knew to beinnocent. He tells the story of how one District Officer was shocked, upon taking up a freshappointment, to discover that white settlers were in the habit of getting his predecessor to imprisonand punish their less efficient workers for up to 6 months with hard labour, even though the workershad actually committed no crime! When he tried to stop the custom, the settlers wrote to thegovernor and he was reprimanded and a commission of inquiry set up to investigate his actions.

It is also important to note that settlers were large beneficiaries of the forced labour of convicts ontheir farms, which would establish a precedent for future African elites. In 1954, the KenyanMinister for Defence, Jake Cusack, would say about the use of Mau Mau detainee labour: “We areslave traders and the employment of our slaves are, in this instance, by the Public WorksDepartment.”

Such attitudes, however, inevitably ran up against the limitations of the penal system, which wasseverely undermanned and under-resourced. By the early 1930s, according to Branch, the PrisonsDepartment employed just 20 Europeans (mainly based in Nairobi) and over 400 Africans. Bycomparison, the total number of persons they were expected to watch over in the course of 1930 wasover 21,000. Pay was also pretty poor and a job in the prison service was the preserve of thosewithout other options and so staff turnover was high. Education standards, by contrast, wereabysmally low as the colonial regime preferred to recruit prison staff from among often-illiterateformer soldiers.

Incarceration was not just about punishment; it was also a means to extract labour andresources for the colonial state. Prisoners were forced to work on public projects andpenal labour was considered a vital part of the colonial economy.

Not only were the prisons poorly funded, but they relied on the free labour of inmates to keep themrunning and to finance a significant part of their operations. In 1930, for example, earnings fromprison industries accounted for a fifth of the total cost of the Prisons Department – some £8,856, the

equivalent of nearly £600,000 today, or about Sh80 million.

Further, prison facilities and especially the detention camps that had been introduced in 1926 tocater for petty offenders in a vain attempt to ease overcrowding, were ramshackle affairs. Ingeneral, they tended to be run on the terms of the incarcerated rather than the warders. In manycamps, there was little segregation of the prison community from the rest of society, with inmates insome cases free to come and go as they pleased, which made for some rare comical moments. Forexample, Branch relates an instance where a magistrate in Mombasa, while inspecting a detentioncamp, came across an inmate he had sentenced there earlier in the day “having tea with his wife andchildren just inside the wire”. And in Thika in 1952, inmates would be allowed out for a stroll andcould brew their own booze at the Municipality Club.

However, these momentary escapes perhaps did not make much of a difference as life outside theprison had increasingly come to mirror the conditions within it. As Caroline Elkins notes in herPulitzer Prize-winning book, Britain’s Gulag, “For decades before the [Mau Mau] Emergency, Britishcolonizers sought to control the African population through a complex, apartheid-like set of lawsdictating among other things where Africans could live, where and when they could move, whatcrops they could grow and what social places they could frequent.”

The prison was just a part of the system for enforcing this brutal racist hierarchy, other elements ofwhich included public floggings and extortionate fines. For example, as related by Leys, there werereported cases of African boys being fined the equivalent of a month’s wages for stealing a loaf ofbread.

The predations and impositions of the colonial state and the resentment they evoked were on therise, culminating in the outbreak of the Mau Mau uprising in 1952. This would fundamentally changethe already brutal Kenya prison system for the worse as tens of thousands of Mau Mau detaineesand convicts flooded the system, upending the established hierarchies within it, as well as cementingthe place of the prison within the popular imagination as one of physical desecration and socialdeath. It became a terrifying modern-day chimera that combined the pre-colonial corporal andcapital punishments, ostracisms and expulsions and applied them on a hitherto unimaginable scale.

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Reimagining a More Humane Justice Systemin KenyaBy Patrick Gathara

My abdomen clenched like a fist, my bladder tightened, I wretched and recoiled in disgust. Ireflexively ducked out of the prison cell toilets.

I have grown up in boarding school, and had lived in the poor areas of Nairobi city, but nothing canprepare you for the three-foot-tall mound hill of human faeces that was slowly decomposing, twowalls away from the office of the police officer in charge of Kilimani Police station. How did hesurvive here? How could he allow this in his police facility?

I fled back to my cell, barely three metres away. I realised how important it was that the cell hadonly bars where there had probably meant to be windows, otherwise the odour would have drivendetainees to insanity.

I had never been incarcerated before; I had only heard about prison from reading and watchingpopular television shows and movies. But now my real-life journey through the so-called correctionalsystem had begun.

***

I instinctively hated school all my life. Now in the prison system I knew why. School, like prison, isan instrument designed to break your will, to condition you to surrender. Not just your rights – tofood, to dignity, to being treated like a human – but your free will itself, your right to choose.

In school, we were always asked, “Any questions?” But we knew the questions you could ask and thequestions you couldn’t ask, even when you were deviously encouraged and prodded with, “Ask anyquestion.” After many years of schooling, we intuitively self-censored. You knew that no teachercould actually entertain any question. When they asked if you had understood, you were supposed to

say yes. The school rules, the syllabus, and the textbooks were your truth; they were all that wasrelevant. The truth was irrelevant.

Prison is kind of like school. I was in jail because I had distributed a leaflet containing thoughts andideas that were outside “the approved syllabus” to the public. I had asked why young Muslim menwere disappearing at the rate of four-a-week in Eastleigh, a predominantly Muslim area, and theirtortured bodies turning up the Tsavo National Park. Others lost forever. I had asked why the leaderswho purported to speak for Muslims were silent on the spate of state-sponsored killings but loud onpledges of allegiance and calls to voting during elections. I had read speeches endeavouring to wakemy fellow citizens, my “school mates” in this school of life, up to the fraud being perpetrated uponus.

I had asked “Why?”

“Why?” to the tyrant is “terrorism”. The tyrant feels terrorised. “Why” isn’t just defiance, “why” is tochallenge the basis of his order, the very foundation of his rule.

It is the one question you can never ask, either in school, or outside.

My odyssey was just beginning.

***

I was shuttled between police station’s cells, as my lawyer endeavoured to have me incarcerated inthe Anti-Terror Police Unit’s (ATPU) holding facility, explaining to the magistrate that the devilishintention of the arresting officers to hold me while innocent in police cells was to inflict mentaltorture, as they knew what a few weeks in their stinking decrepit infrastructure would do to ahuman being. The magistrate granted our appeal, but how could she follow-up and monitorimplementation? Once you are out of the magistrate’s court, the police do as they will.

Back to Kilimani Police Station. The cell I was in had a number of steel rings jutting out from thefloor, two thirds of the circumference emerging from the floor, while the other third remainedembedded in the cement floor. None of us in the cell could tell what purpose they served. Theyserved no aesthetic or functional purpose we could think of.

Two days later, an apparent veteran of the prison system made his regular visit. He explained to usthe rings were from the colonial times. Rebellious natives wouldn’t just be locked in, they would bechained to the floors of the cells they were held in. It was horrifying to imagine. But what struck methe most is that the colonial penal infrastructure is still intact. There wasn’t even a cosmeticmakeover. The buildings are the exact same ones, the cells, even the cells doors are the very sameones the British imperialists built. At “independence” no one thought to rip up these degrading ringsthat held our grandfathers down like animals.

I was told Kilimani Police Station was the preferred holding facility where elites asked to be heldwhen arrested. I was afraid to imagine what the rest were like.

I was transferred to Muthaiga Police Station over the weekend, after a week of interrogations abouteverything, except a possible crime or misdemeanour. Not once was I asked or told what crime I wasbeing held for.

Three questions were repeated in different order and context: ”Do you believe in jihad?”, “Do yousupport Kenya Defence Force’s war in Somalia?”, and “Have you ever been to Somalia?”

It was odd, I thought, that they knew I had committed no criminal offence but they were content topersecute me. How did they live with this moral dilemma? How did the police go home everyday totheir children and manage to find sleep knowing they had their fellow human beings locked up ininhuman conditions?

John Laurits writes in this insightful article that police training and institutions are designed tocompletely destroy a human being’s moral agency. Moral agency is the ability to choose betweenright and wrong. The militaristic chain of command takes away individual officers’ sense of moralresponsibility and abstracts it all into the realm of bureaucracy. “The result is that nobody can beheld responsible and the officer becomes an inanimate tool in the spooky hand of an unseen andunaccountable bureaucracy — the police officer becomes no more than a vessel for policies, totallydevoid of agency and free of its consequences.” To know this from reading, and to experience it firsthand, were completely different phenomena. Was this the dissonance Nabii Yusuf suffered as hisbrothers lowered him into a hole in the wilderness?

***

I was brought to Muthaiga Police Station on Friday evening. It was dark, dire and strangely verysparsely populated. I sighed with relief, but my comfort was to be short lived. “Ngoja uone,” (waitand see), my cellmate warned ominously.

At approximately ten o’clock that night there was a loud bang, commotion outside, and shouts of,“Ndani!! ndani!!” (Move in!! move in!!). Over a hundred people flooded in and were crammed intothe three cells, each about nine square metres. A few were stoned but the rest seemed like anyoneyou’d pass by on the street on any day of the week. And as it turns out, they were.

It was dark but we could make each other out in the light reflected from the yard outside. When oneof them established eye contact I asked, “What is going on? Where are you all from? What are you alldoing here?”He explained to me he was netted in an “operation”, while on his way home from work.“How?” I asked incredulously. This world was new to me; his polite tone made me confident enoughto ask him.

He explained that every Friday, the police would randomly cordon off different areas of public roadsin Mathare, a nearby slum area, and sweep everyone caught in between into waiting police trucks. Ifit was your unlucky day, c’est la vie.

“What!? No!” This sounded preposterous; in my mind I thought there must be some legitimatereasons for these so-called “operations”. They could not just be mass shakedowns, it wasunfathomably malevolent, it was simply unbelievable. But quietly, he told me this happened everyFriday.

We fell into silence, with the occasional scuffles and fights as the drunks were disciplined by theirsober comrades, who in this space had little patience for shenanigans. It was so cramped that wehad to lock into each other’s thighs in squatting positions to settle in for the night and try and getsome sleep. But the cramps and the freezing cold wouldn’t let any of us sleep. Why on earth wouldthey do this? Who on earth would do this to his fellow human beings? I knew the police to beinhumane but again, to know and to experience is a world apart.

At Muthaiga Police Station, the outhouse — where one could relieve oneself — was literally outsidethe cellblock. We had to beg, bribe, grovel, hurl insults and vitriol at the on-duty office to let thedesperate visit it. The corridor often ended being the temporary crapper.

At about 2 a.m. there was a loud shouting and banging on the doors. We could hardly see, the lights

in the yard had been switched off. The police stormed the cells with torches and ordered everyonewho heard their name to cross the floor where they stood armed with rifles and batons. Apparently itwas roll call. I felt thankful for the rude interruption, the movement would allow us to walk andrelieve the cramps.

Little did I know the open door was a gateway into another trial. As names were called out the policewould randomly beat up detainees as they crossed the open space between them, roll call wasrunning a gauntlet, literally.

Nights are long when out in the cold, but in Kenya’s jail cells nights last forever. You become certainthat death from cold will find you long before the dawn does. But our will to live is stronger than weoften think, and dawn does come, even in hell for a believer. When morning arrives, you are servedtwo slices of bread and hot tea and a chance to visit the lavatory. Then you are locked up again, tobegin the wait.

“Wait for what?” you might naturally ask. Not for your sins to be read, not for redemption, not evenfor damnation — this is the Kenya Police Force, sorry, Police Service, not God. You wait forextortion; you wait for your ransom to be read.

The caricature of an OCS (Officer in Charge of Station) waddled into the yard outside our cellblockat 9 p.m. We were swept out of the cells double time. Everyone could tell by the obsequiousness ofthe constables that he was the King here; his word was law.

He held out a two-foot-long book like a scroll. He read out the names of about seven of us and wewere escorted back to the cells, where we watched the proceedings through the elevated barredwindows of our cellblock.

The list of approximately one hundred plus detainees was read out without pause. At the end, in theguttural voice of a terribly unhealthy 100kg+ bully, he announced that every single individual whosename he had called out was charged with being drunk and disorderly and would have to payKsh2,000 for their freedom. He cued the police constables to herd them all back into the cellblock.

“Why on earth would they do this?” I had wondered the previous night. Then it hit me; this was whythe cells had been empty when I’d arrived, they’d been cleared for the herd that was to be broughtin for the night!

***

The one thing you have plenty of in jail is time. We all got to know each other. I sat next to the politeyoung man I had talked to the night before and we got talking. Sometimes I intentionally askedprobing questions, looking for contradictions that would reveal deceit, but I found none.

John worked as a temporary worker at the Coca Cola bottling plant in Nairobi Industrial area andwas on his way home from work, the same route he used everyday. He told me he didn’t takealcohol, and I believed him. He had a homely, mommy’s boy kinda feel to him, he struck me as thekind of guy who left work to go straight home to his wife every day, a decent human being in everysense of the word. He told me it was not the first time he had gotten caught in these “operations”.His wife knew what to do; they had a process. He would call her from the Muthaiga Police Post jailcell — the police availed a cell phone for detainees to use to call their loved ones to come and bailthem out. She would go to the drawer where he kept his ATM card, she’d withdraw some money andcome and bail him out. Yes, they had kidnap insurance.

But as luck would have it, his wife’s phone had been stolen a few days before and he had lost his

ATM card. Therefore even if he could reach her, she had no way to access the emergency fundquickly enough to bail him out in time to go and save his temporary job at the Coca Cola plant. Hewas going to lose his money for no reason other than extortion, he was also going to lose his job ashe was not going to report to work the next day — Saturday — and possibly also on Monday. Thisabsence would be without reason, as far as his employer would know.

During the rest of the Saturday and Sunday, all manner of people were brought in for one, sorryreason, or another. From traffic violations, domestic quarrels, exam cheats, business disputes… thelist of problems that brought people in was endless, but the answer that led out was only one: cash.The correctional system was a revolving door with free entry but paid exit.

When I thought about it, it dawned on me, that it everyone was guilty of some offence. If you weredriving and in motion, a traffic violation. If stationary, a potential parking violation. If not driving,just walking was potentially loitering. If standing, you were possibly trespassing. If resisting arrest,well, drunk and disorderly. If in business, tax violation, tripwires criss-crossed everywhere aroundyou. Every single action a human being could possibly perform in public was laced with a potentialfelony or misdemeanour, in a system of menacing laws and by-laws, one that ensured we werealways guilty of one crime or another.

All the police needed to do was walk out into the street and arrest anyone or everyone they could. Ithelps them that everyone has been “educated” to cooperate with the legalised oppressors, it costsless. Therefore ten policemen will easily herd a hundred innocent people like sheep into jail. Once atthe station, they can and do charge you with anything.

The police, the judiciary, the prisons…are all one business, a large extraction industry.

The industry’s mine is the country, its minerals are the people. The entire territory is a large prison,with ever increasing tripwires and contracting walls configured as laws, by-laws and boundaries.The population works to earn money to pay taxes that will keep the walls from contracting on themor their family members, and to prevent the tripwires from triggering the leg-lock traps.

Kenya, the entire Westphalian nation-state-capitalist system with all its glitter and promise is justone large mine of slaves, run by over-glorified guards and taskmasters. The slaves work in differentparts and different levels of the mine, in order to serve time in specific cells and cell blocks withdifferent levels of comfort and space. It is a panopticon equipped with an intricate system of locksand permission levels, to control movement either horizontally or vertically within the cells and cellblocks.

For instance, the other six “terror suspects” I had been brought in with were Maasai herders fromTanzania. They had been picked up in Narok, a town in the southern part of Kenya, for failing toshow ID. They didn’t have passports. How Maasai herding goats in the Rift Valley, something theyhave done for centuries, had become a “terror offence” was beyond me and beyond them, given theydidn’t even know what “terror” or “terror suspect” meant, but here they were.

***

Fortunately, there is nowhere angels sent cannot reach you, even in the darkest dungeons of Firaun.Mine was sent in the form of my Investigating Officer. The Muthaiga chapter of my odyssey endedearly the following Monday morning.

That morning, my name alone was called. It immediately struck me as strange. I stepped out into theyard to find my Investigating Officer waiting for me. He had come to rescue me from my ordeal, Ifelt an overwhelming surge of fraternal affection for him. Now I understand Stockholm syndrome.

I walked out in slow uncertain steps. I was burdened with mixed feelings. Even as my heart soared inwhat it saw as my escape, it was weighed down by guilt. My fellow “terror suspect” detainees, theMaasai herdsmen who had suffered with me throughout the weekend, had looked at me withdesperately hopeful eyes when my name was called out of the first light. “Wametukujia?” (have theycome for us?), they asked desperately, hoping we would all be returned to the Terror Unit holdingfacility, with its working toilets and urine-free floors. I could hear them calling me, but I couldn’tlook back. I still can’t. In hell, no man will care about his fellow man’s plight. You can barely bearheat of your own fires, how can you bear someone else’s?

I do not know if John lost his job at Coca-Cola, let alone if or when he was released.

I was at the Anti-Terror Police Unit holding facility for only a few more days before being promotedto full remand in Kamiti Maximum Security Prison’s Solitary Confinement Block. To await eitherconviction and release into the general prison population of Kamiti Maximum Security Prison, oracquittal and release into the general prison population of Kenya.

This is Hotel California*, “… you can check in any time you like, but you can never leave!”

*”Hotel California” is the title track from the Eagles’ album of the same name and was released as asingle in February 1977.

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Reimagining a More Humane Justice Systemin KenyaBy Patrick Gathara

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Reimagining a More Humane Justice Systemin KenyaBy Patrick Gathara

“When I first became involved in anti-prison activism during the late 1960s, I wasastounded to learn that there were then close to two hundred thousand people in prison.Had anyone told me that in three decades, ten times as many people would be locked awayin cages, I would have been absolutely incredulous.” ~ Angela Davis

In the one hundred years between the mid-1850s and 1980s – a period of nearly 130 years – thestate of California constructed a total of nine prisons and two prison camps. But in the five yearsbetween 1984 and 1989, nine more prisons were constructed. It had taken more than a century tobuild the first nine prisons in California, and less than a decade for that number to double. Today,there are 34 state prisons in California, and this is not counting federal prisons or county jails – theequivalent of Kenya’s police cells. The state of California also has 43 prison “conservation” camps,whose inmates are procured to fight wildfires and respond to other public emergencies.

That the US is running a Prison Industrial Complex has been well documented. America accounts forjust 5% of the world’s population, but 25% of the world’s prisoners. Ava DuVernay’s gripping 2016documentary, 13th, expertly tracks the policies, systems and forces that have pressed more than 2.3million Americans – overwhelmingly black and Latino – into the prison system, so much so that insome neighbourhoods, going to prison is almost a normal rite of passage.

But what the figures above from California reveal is that the processes that produce massincarceration of an entire demographic can be astonishingly rapid and diabolically efficient.

***

“The first thing that happened when we got there is we were told to strip. In the open. Allwardens sitting there watching. I think this was the worst thing to happen to us. We weremany. The indignity of standing naked in front of strangers…” ~ Anonymous submission to#PrisonDiaries (courtesy of @MarigaThoithi)

In early October, a press statement from the Presidential Strategic Communications Unit (PSCU)revealed a plan to establish the Kenya Prison Enterprise Corporation, a “state enterprise” that wouldreportedly expand the scope of prison work programmes “with the aim of unlocking the revenuepotential of the prisons industry, and ultimately turn it into a reformative and financially self-sustaining entity.”

The new corporation will also contribute to the realisation of President [Uhuru] Kenyatta’s Big 4Agenda, particularly food security, affordable housing, and manufacturing,” a statement from StateHouse said. The corporation will be mandated to “organise and manage” the assets of the PrisonsDepartment, including 86 prison farms with a total of over 18,200 acres of land. The corporationwill, at some point, “foster ease of entry into partnership with the private sector on differentspheres” – a vague statement that could include private contracting of anything from construction ofprison facilities to full operations.

As Michael Onsando at BrainstormKE has argued, the plan to “unlock the revenue potential” of theprison industry is linked to the current financial distress in the Jubilee administration, as well as to adesire to make some gains in President Uhuru Kenyatta’s “legacy” term.

However, it is horrifying to think that the way to kill two birds – job creation and industrialisation –is by the deadly stone of expanding the prison sector, corralling people into a pool of cheap labourwith almost no rights. Granted, there are many different privatisation models. Private firms can becontracted to build prisons, to manage them, or both. Countries such as the US, UK and Australiahave privatised the entire chain of operations from construction to day-to-day operations, while inEurope the trend is to outsource specific functions, such as catering, administration, healthcare andsecurity. In many Asian prisons, the private sector is more directly involved in the prison industry bycontracting inmates to work in for-profit factories or firms. Kenya seems to be leaning towards amixed model, where the corporation, for now, remains fully state-owned but is run with a privatesector ethos.

As Michael Onsando at BrainstormKE has argued, the plan to “unlock the revenuepotential” of the prison industry is linked to the current financial distress in the Jubileeadministration, as well as to a desire to make some gains in President Uhuru Kenyatta’s“legacy” term.

Kenya’s prisons house nearly 50,000 people in facilities designed to hold 14,000. Stories of horrific

conditions of disease, vermin and lack of food are common.

Most of the support for the privatisation of prisons is in the form of two arguments: one, that theprivate sector can run prisons better than governments can; and two, and that prisons ought tosupport themselves financially.

The evidence is mixed on the first claim; privatisation does not always save money or improveefficiency. A 2011 investigative report by the American Civil Liberties Union revealed that privateprisons “do not save money, cannot be demonstrated to save money in meaningful amounts, or mayeven cost more than government prisons.”

A value-for-money study commissioned by the Dutch government found that while operational costsin private prisons were reduced by 2-13%, savings disappeared once transaction and other financialcosts were taken into account.

Some countries have rejected proposals to privatise prisons. In Costa Rica, although the governmenthad signed a pre-contract to build a private prison with a capacity for 1,200 inmates at $73 million,it did not proceed with the deal, instead opting to build facilities at its own expense for 2,600inmates at $10million. The Costa Rican government realised that going along with the deal wouldmean being locked into a contract that would spend $37 daily per inmate for 20 years, while in thestate prisons the amount was $11. (Inmates in state facilities made up 80% of the prison population.)The government cancelled the contract, and opted instead to improve the situation of all inmates,raising the daily per capita amount to $16 for all those under confinement.

In South Africa, the government took over a private prison in Bloemfontein because G4S – theprivate security company contracted to run the prison – “had lost effective control of the facility”.Investigations were launched into allegations that some prisoners had been forcibly injected withanti-psychotic medication and subjected to electric shocks.

The second claim – that private prisons should be able to support themselves financially – is deeplyrooted in a neoliberal ethos that judges the value of everything through the logic of the market. Wesee this in the announcement of the plan by PSCU, which stated that unlocking the revenue potentialof the prisons industry would ultimately turn it into “a reformative and financially self-sustainingentity”.

In South Africa, the government took over a private prison in Bloemfontein because G4S– the private security company contracted to run the prison – “had lost effective controlof the facility”. Investigations were launched into allegations that some prisoners hadbeen forcibly injected with anti-psychotic medication and subjected to electric shocks.

The framing of this proposal is curious, particularly in the way it connects reformation with financialindependence. It is neoliberalism offering rehabilitation through success in the market. (No wonderthat the phrase “prominent Nairobi businessman/ woman” is often used to sanitise the reputation ofpeople mired in scandal.)

Moreover, in a place like Kenya, where government contracts are often irregularly awarded andwhere corruption is endemic, privatisation can actually result in degraded services. Already,detectives are investigating a Sh6.2 billion scandal at the Prisons Department. A senior detectiverevealed a few weeks ago that investigators from the Directorate of Criminal Investigations and theanti-graft commission were closing in on suspects behind the suspicious spending on prisoners’ food,which was cleared last year although it is still marked as a pending bill.

Now, by linking the prisons sector with President Kenyatta’s Big 4 Agenda, we are likely to see theemergence of a “hard-working performer” at the helm of the prison corporation who will point to theprofits at the end of the prison pipeline as evidence of “cleaning up” the ailing penal system.

***

“The perpetrator is a product of criminal discourse and a victim of institutions that claimto deter crime, but are actually invested in perpetrating a police state where everyone isunder surveillance and on the border of falling into criminality.” ~ Michel Foucault

All this is happening in a worrying context of a criminal justice system that disproportionatelytargets the young, the poor and the urban. Last year, a damning audit by the National Council on theAdministration of Justice revealed that the Kenyan state is essentially at war with informality. Inpractical terms, poverty is a crime.

Not only that, colonial laws against offences like vagrancy and loitering remain on our statute booksand are vigorously enforced – as Carey Baraka articulated on the perils of being a young man on thestreets of Nairobi and being forced to prove your existence by producing an ID card on demand. Infact, demands for ID documents assume that the black body in the city is not legitimate and must beaccounted for.

“It’s an assumption that Africans can never be urban,” says city planner Constant Cap. “If you areurban, then you are not a real African, and you must explain your presence in the city to the powersthat be. Our cities are actually not planned with us in mind – it is like they are not expectingpermanent residents, just itinerant workers who trade their labour.”

This means that nearly 70% of court cases in our criminal judicial system are criminally petty,nuisance offences, or economically-driven (such as being drunk and disorderly, trading without alicence, loitering, causing a disturbance, or “preparing to commit a felony”). The dragnet is so largeand indiscriminate that a Kenyan adult has a 1 in 10 chance of spending some time in police custodyover the course of a year, although these figures skew heavily towards those who are young, maleand poor.

In some ways, it is a logic that leans towards universal punishment rather than supporting universalprosperity – even for the small street trader who is really not doing anyone any harm, and certainlydoes not deserve jail time. As the economy continues to be depressed, we are likely to see morepeople who are unable to secure formal employment and who turn to informal trading on the street.This will make them more vulnerable to police harassment and arbitrary arrest.

A recent investigation by Nation Newsplex revealed that there are more pre-trial detaineesincarcerated in Kenya than convicted prisoners; 90% of those in remand have been granted bail butcannot afford it even though more than half of the bails were set at less than Sh250,000 (roughly$2,500). In other words, there are immediate better outcomes for being rich and guilty than poorand innocent.

Meanwhile, the Judiciary is reeling from huge budget cuts this year. It had requested Sh31 billion tofund its operations for the current financial year but it was allocated Sh17 billion by the NationalTreasury. The latter figure was further reduced by Parliament to Sh14 billion. This means thatjudicial officers will likely be under more pressure to arrest and fine, as a prosecutor in theDirectorate of Public Prosecutions (DPP) told me. “Petty offences are prosecuted vigorously in thejudicial system because they are quick and easy to prove – the only witness needed in most cases is apolice officer,” she said. “And the fines are now an even important source of money for the

Judiciary.”

A recent investigation by Nation Newsplex revealed that there are more pre-trialdetainees incarcerated in Kenya than convicted prisoners; 90% of those in remand havebeen granted bail but cannot afford it even though more than half of the bails were set atless than Sh250,000 (roughly $2,500). In other words, there are immediate betteroutcomes for being rich and guilty than poor and innocent.

It doesn’t help that the key performance indicators (KPIs) for judicial officers are convictions. Thegravity of the case doesn’t matter because “a conviction is a conviction, and magistrates getpromoted on the basis of the number, not the type, of convictions,” the prosecutor told me, “even ifthe charges are just trespassing, hawking, illegal grazing, and the like.”

How might the profit incentive in the prisons change the trends in convictions and sentencing? “Idefinitely see a possibility for it to be more profitable to send people to jail than to fine them,” theprosecutor said. “Remandees are often given work to do things like sweep the governor’s compound– a profit motive in prisons will escalate this, and it will be framed as a favour to prisoners.”

***

But this is not all. The Kenyan education system is undergoing two major changes. On the one hand,the new curriculum has an increased focus on technical and vocational skills, and less of anemphasis on academic subjects. On the other hand, there is increased surveillance and militarisationof the school system, with authorities, including the Directorate of Criminal Investigations (DCI) andthe Education Cabinet Secretary Amina Mohamed, issuing threats of a criminal record and jail timefor students who protest or who are implicated in anti-social behaviour.

“This is to warn every student from primary school, secondary school, college and university that theDCI is archiving and profiling every criminal act and consolidating charges that may be preferred toeach and every student involved in any crime,” the DCI tweeted in June.

A school-to-prison pipeline is therefore not far-fetched. With the new curriculum putting students onindividual “talent” pathways, it will be easy to explain student failures on their lack of talent, therebyobscuring the bigger structural issues that might be at play. And now, students cannot complain, orthey risk jail time.

“[The] negative characterization of poor and largely nonwhite youth is in sync with the broader pushto replace social services with criminalization,” Alex Vitale writes in “The Criminalization of Youth”,an article in Jacobin magazine. “As more and more deprived neighborhoods are denied access todecent jobs and schools, their young people are criminalized as ‘the worst of the worst’ to ensurethat the problems in these communities are understood as individual and group moral failures,rather than the result of rapacious market forces and a hollowed-out state.”

***

“Companies that service the criminal system need sufficient quantities of raw materials toguarantee long-term growth . . . In the criminal justice field, the raw material is prisonersand industry will do what is necessary to guarantee a steady supply. For the supply ofprisoners to grow, criminal justice policies must ensure a sufficient number ofincarcerated [people] regardless of whether crime is rising or the incarceration isnecessary.” ~ Steven Donziger

Three new menacing forces – the profit motive of privatised prisons, a depressed economy withfewer formal jobs and more informal trade, and a more militarised school system with jail sentencesfor unruly students – are likely to work with diabolical synergy to push an increasing number ofyoung people into the criminal justice system.

This should worry us all because mere contact with the system leaves “a stain of criminality”, myprosecutor friend told me. “I’ve seen children and young people enter the criminal justice system fora small reason that could have been handled at home or in the community – and by the time thesystem is done with them, they are into proper crime: hardened, disillusioned and angry.”

Three new menacing forces – the profit motive of privatised prisons, a depressedeconomy with fewer formal jobs and more informal trade, and a more militarised schoolsystem with jail sentences for unruly students – are likely to work with diabolical synergyto push an increasing number of young people into the criminal justice system.

This is not a feature of a broken state apparatus; on the contrary, the state is acting just as it wasdesigned to act, as Keguro Macharia reminds us:

One reads Kenyans demanding colonial systems work better, and weeps.

– “we need police to do their work properly”

– “we need the laws implemented properly”

– “we need the judicial systems to work properly”

If you are being unhumaned, those systems are working properly.

If you are being executed, those systems are working properly.

If you are feeling frustrated and humiliated, those systems are working properly.

The demand cannot be that systems designed to unhuman Africans work properly.

The demand is abolition.

And as for Uhuru Kenyatta achieving the Big 4 agenda through prison “reform”, it would be worthlooking at how the US government systematically and cynically deprived its black and brown citizensof liberty at a huge cost even to itself. Instead of building good public housing like the Housing Actsof 1949/65/68 mandated, the US rapidly built prisons. So in an evil kind of way, the US did end upinvesting in public housing – in jail.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their societyby interrogating the past, the present, to fashion a future.

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Reimagining a More Humane Justice Systemin KenyaBy Patrick Gathara

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their societyby interrogating the past, the present, to fashion a future.

Follow us on Twitter.