Prison system outdated, punitive

Prisons bus

As Kenya plans to decongest prisons, ask whether every criminal needs to be in prison in the first place.

Photo credit: File

I don’t like prisons. Simply, they have become places where governments hide their failures. Most people who are in prison don’t deserve to be there.

Some of them need to be in psychiatric hospitals or in therapy for drugs and alcohol abuse that led them to commit crime in the first place. Others commit crimes such as stealing food to sustain themselves and not because they set out to be criminals.

The idea that prison is a one-size-fits-all punitive model is causing society more harm than good. It is a place that in Kenya portrays false class system, where a village chicken thief is destined for prison but a thieving Cabinet minister who created poverty for the chicken thief in the first place is exempt from prison.

The modern prison is about creating a revolving door system, where offenders are rarely rehabilitated to wean them off re-offending. Expansion of prisons seem justified to create employment opportunities and billions of dollars for prison constructors. There is nowhere that shows the dark side to prison system than the USA.

Private prisons are a business model that profits construction companies. To justify their use, many more prisoners have got to be sent there on trivial charges for longer than is justified. Furthermore, most prisoners work for multinational companies for a pittance.

One of the US prison reformers, ex-prisoner Johnny Perez, believes exploitation of prisoners in the US for cheap labour is modern-day slavery and he is working to seal what he terms “slavery loophole”.

African prisons are still built on the Western model that was used to incarcerate Africans that opposed the colonial system. Punishment such as hard labour, inhumane as it may be, is remnant of colonial punitive measures used on black Africa. Nelson Mandela had his fair share of hard labour punishment while incarcerated by the apartheid regime of South Africa.

Prisons have become modern-day concentration camps, where the poor, who bear the brunt of archaic and lazy legal systems, end up being sent to already congested prisons rather than offered alternative systems that provide them opportunities for rehabilitation and a chance to re-engage with the society through honest work. The notion that rehabilitation must be conducted within prison walls is a fallacy. In many cases, the environment is too harsh for offenders who may end up suffering even more trauma, including mental health breakdown.

The Kenyan prisons and police cells are also incubators for diseases and risk public health with poor standards of accommodation and facilities. Under funding and corruption has affected its services as it has had many other government services.

Many legal systems believe prisoners have no human rights or deserve dignity. There is nothing further from the truth. As human beings first, prisoners have the right to live with dignity even within the prison grounds. Their human rights don’t end with them being in prison.

Treating prisoners as animals, which many systems still do, only creates more problems for the society in the long run through re-offending. If prisoners are shown respect, dignity and taught to treat others in the same manner within an enabling, safe and loving environment, there will be more benefits accrued from such a policy and these kind acts lessen re-offending. Norway recorded great success on minimising re-offending when it moved away from locking up prisoners to rehabilitation with focus on human rights.

Many low-level crimes don’t necessarily need to end up in prison. Restorative justice and mediation have been used effectively to bring victims and offenders together to amend situations. Such attempts give the offenders opportunities to understand the impact of their action on others and in some cases, it has led to reparation in material or financial form and creates better community relations.

Ideally, it is cost-effective to use prisons only for the more dangerous criminals that could harm the society if let loose. Millions of dollars are used to keep prisons open in Africa. This is money that could be better spent on socioeconomic projects to create opportunities for citizens in the first place. Many countries with better socioeconomic templates to fight poverty and create equitable society have minimal crime cases anecdotally than those that invest less in its people’s wellbeing.

The sentencing guideline in Kenya needs reforming. The rules within it send more people to prison undeservedly or lock them up for longer unjustifiably. For example, robbery with violence crime in Kenya is open-ended in its definition. One who commits robbery with violence without loss of life is jailed for life, just as in the case where life is lost during robbery. It is an anomaly. Mens rea (intention to kill) should be the determining factor in both cases.

As Kenya plans to decongest prisons, ask whether every criminal needs to be in prison in the first place. Above all, whether the money used to punish low-level crime could instead be spent to create socioeconomic programmes that would deter people from committing crime altogether.

Ms Guyo is a legal researcher. [email protected]. @kdiguyo