If you lose your job or shut your business today and fall into the low cadre of the Kenyan society, you are likely to experience police harassments, oppressive laws and unfair courts, a reality that is the everyday lives of Kenya's poor.

In Kenya, the criminal justice system is a major driver of poverty because it mainly focuses on punishing the marginalized and the economically disadvantaged in favour of the rich and the elite. The justice system is skewed in that sentencing for similar offences is based on an individual’s socioeconomic status. Unfortunately, those who cannot afford legal representation in most cases end up receiving harsher sentences compared to those with financial muscle. 

One of the leading schools of thought is that for a nation to survive, we must choose a justice system that restores; not one that merely punishes.  A system that heals; not one that wounds. A system that seeks to improve the law, not one enslaved by the law. We live in and practice an adversarial justice system that is enslaved not only by the law but also by the courts themselves.

Former Chief Justice David Maraga, once said that In Kenya, laws and norms are designed to serve the interests of the social elite, and therefore some behaviors are penalized more heavily than those acts that are penalized more heavily or more frequently are generally those associated with the non-elite and the poor while the laws that affect the elite are less enforced.

It should worry everyone especially under the current economic situation where many Kenyans are likely to loose their jobs or businesses losing the financial protection against the criminal justice system and being equally subjected to unjust laws.

Across the forty-seven counties in major towns, laws or by-laws exist that have the effect of making the poorest and most marginalized in society criminally responsible for their status by making it a criminal offence to perform life-sustaining activities in public spaces.

Unable to pay court fines

This includes, for example, hawking, loitering, and touting for passengers. Most of these people are at the base of the pyramid, where more than 30% are unable to meet their food needs. They cannot afford to pay the amount fined by the courts or legal representation as a result they end up being held in pretrial detention for extended periods thus making the prisons overcrowded with petty offenders every time.

A report by International Commission of Jurists (ICJ-Kenya) published in 2018 titled “Poverty is not a crime” shows that most of the people imprisoned for petty crimes come from poor backgrounds and are between 18 and 35 years old. The report further adds that 70% of the cases handled by the Kenyan judiciary are offenses related to petty crimes such as drunkenness and rioting, demonstrating, and loitering.

The maxims of equity, which is one of the sources of law in Kenya as per section 3 of the Judicature Act, provides that, “equity is equality,” ironically, our justice system functions implicitly on the maxim that stipulates, ‘equity aids the vigilant, and not those who slumber on their rights.’ This brings out and acknowledges the fact that poverty and justice cannot be served on the same plate. In our   system, unsurprisingly, a common mwananchi is unable to access legal representation because they cannot afford to hire private lawyers. This results inadequate defense and unfair legal proceedings, which may further disproportionately affect the poor.

What the Constitutions says

Access to quality legal representation should not be a preserve of the rich and the mighty but a right enshrined in our Constitution, the supreme law, as well as international treaties ratified by Kenya to be enjoyed by everybody.

The Constitution under Article 48 provides for the access to justice for all persons and in reading it together with Article 50 sub article (c) which expressly provides that every accused person has the right to a fair hearing, which includes having adequate facilities to prepare a defence.

Further, Article 52 provides  that an accused person be assigned an advocate and at the expense of the state which is not the case in our justice system. In addition, the Legal Aid Act, under Section 3, provides that its objective is to establish a legal aid and institutional framework to promote access to justice by providing affordable, accessible, sustainable, credible, and accountable legal aid services to indigent persons in Kenya in accordance with the Constitution.

Astonishingly, despite all these provisions, actual access to justice continues to be a pipe dream for many poor. It is almost certain when faced with serious legal challenges that poor Kenyans end up being adjudicated by our justice system in courts of law. In simple words, our justice system criminalizes the poor, not the offence omitted or committed.

What needs to be done?

The state should consider establishing the Office of the Director of Public Defences and its subsequent Act to give the director powers to, primarily, defend the underprivileged and the poor during court proceedings against unfair and arbitrary arrest. This will ensure that the right to fair hearing under Article 50 will not only be done but also be seen to have been done. In addition, this will help to curb future injustices that will continue to be prejudicial not only to the poor but also to the justice system in Kenya.

The courts should expedite the delivery of justice and use alternative sentencing mechanisms to settle disputes other than custodial convictions. The community service order which is available in the country needs to be fully implemented, and petty offenders should be given non-custodial convictions.

Otherwise, if this nothing is done to reverse this trend, which is likely to happen anyway then going by the lyrics of the late Lucky Dube “The poor man will continue to feel the pain all the time”.

By Kithinji Nturibi is a Law Student at Mount Kenya University and Oscar Ochieng is a communication practitioner.