Dealing with petty offenders: From his family going hungry to a landlord

Maica Ma Thi village, Murang’a County, chang’aa,

In 2008, Susan, 17, got informally married to John, 19, in Maica Ma Thi village in Murang’a County.

The two, raised by single parents who were chang’aa sellers, met as they ferried the bootleg liquor to a market in nearby Maragua town.

In 2009, they were blessed with a baby girl and as life’s demands pressured the new family, John stopped selling chang’aa for his mother and opened his own den.

Making and selling chang’aa is illegal.

As fate would have it, he was arrested three months later and was jailed for two years.

His young wife was left alone with their four-month-old daughter.

“We had no savings, no land to till, no job and I had to pay the Sh400 a month house rent as well as feed my baby. In the hassles to make ends meet, I got myself into a union of convenience with another man and by the time my husband was being freed, I was a mother of another baby, a son,” Susan says.

Separated

John would not take her back.

Today, the two live separate lives. Susan, moving from one union to another, is now a mother of four. John has been in remand and jail three more times and is yet to settle down.

The story is evidence of how the law, in the process of correcting errant individuals, ends up creating more problems for families.

“If the law had not punished John for being an unskilled Standard Eight graduate eking a life in a relatively low risk enterprise, his wife would not have been turned into a tossing ball by village men, and leading the young family to disintegrate,” argues Mrs Cecilia Gitu, the Mt Kenya region official of the Federation of African Women Educationalists (Fawe).

Authorities sometimes ought to choose the lesser evil, she says.

“Arresting a young man who has a young wife and a child for the petty offence of distilling or trading in chang’aa is tantamount to punishing poverty. The only acceptable moment when it would be understandable is if there was a time such a young man was given some paying work to do and refused or was given capital to start a business venture but plundered the cash,” she argues.

Leniency

Reformed bank robber of the 60s and 70s John Kiriamiti says leniency should only be extended to petty offenders “who sincerely engage in felonies for the sole purpose of putting a meal on the table”.

“If we are talking of criminals who are in it as a trade or an enterprise, others for fun, we will have lost it since they can only be rehabilitated by due process,” Mr Kiriamiti adds.

Mr Kiriamiti says there are people from well off families who resort to  crime “for the purpose of feeling unique by making the society bleed — and they cannot be included in any drive of applying leniency as a remedial tool”.

He says those who engage in crime due to need are easily remorseful and are quick to reform upon being empowered.

While Kenyans task the police to tackle crime at the grassroots, says Mr Kiriamiti, “security is a complex issue that also requires us to task the elected leaders controlling devolved development funds on how many jobs they are creating, how many enterprises they are funding and how much conducive trading opportunities they have facilitated.

“While police can be good at enforcing crime deterrent measures, leaders shoulder the burden of the ultimate enabler in keeping many off crime by way of economic empowerment programmes,” he says.

Survival and crime

Retired career administrator Joseph Kaguthi, who is also the immediate former national chairman of the Nyumba Kumi security initiative, says the debate is “refreshingly realistic”.

Mr Kaguthi says he has witnessed many families that were viciously broken by police action that never took cognisance of the thin line that separates survival and crime.

“I encountered a 20-year-old man called Caleb in Kisumu. He had broken into a neighbour’s house and stolen ugali and beef stew. When he was brought before me, in his eyes I saw genuine shame and his demeanour was remorseful,” Mr Kaguthi narrates.

“Back in the village, I had seen a look in my brother’s eyes similar to that of Caleb. That was when he was caught stealing mangoes in a neighbour’s farm,” he says, recalling his childhood in Nyandarua County.

“My brother had left ripe mangoes in our shamba and for adventure’s sake, raided a neighbour’s. He knew it was wrong, but for the mischief characteristic of growing boys, he erred and when he was caught, he looked as remorseful as Caleb looked before me some 30 years later,” he adds.

Given that recollection, Mr Kaguthi says he prodded Caleb to understand why he broke into a neighbour’s house to steal food.

“Caleb told me he had a young wife who had given birth to twins three days earlier. The family had gone for two days without food and he could not bear the shame as he was the breadwinner. He confessed that he was not interested in the money that he had found in the house, or any other valuable goods. He only wanted food,” Kaguthi reveals.

Rehabilitate offenders

Kaguthi, then 54, shed tears.

“I used my networks as a provincial commissioner and got him a job. I kept on following his progress and three years later, Caleb had established his own business and was doing well. What if I had ordered his arraignment, leading to him being jailed? Today I feel great that Caleb is a responsible man, whose twins are in university. He pays me a courtesy call once in a while and for the bond, I recently helped him acquire some two acres of land in Kiambu where he is now busy building rental houses,” he says.

He recommends that the Kenya Police Service be allocated some money to rehabilitate offenders.

“To fund genuine crimes of need … Instead of jailing some of these youths, we are offering them alternative avenues to earn an honest living,” he says.

Supreme Court Judge Njoki Ndung’u, at a recent family welfare function in Nairobi said, “The law, if taken advantage of fully, has a way of meting out unique forms of justice that are correct and shape without the use of handcuffs and courts.”

“The authors of our laws had this in mind when they took precious time to articulate alternative forms of dispute resolution. If this avenue were to be taken advantage of, if it were to be utilised, not to progress infringement of human rights or sanctifying evils, if the purpose in resorting to alternative dispute resolution is to give a credible correctable case a second chance — an opportunity to self-counsel and remorse to revert to good ways — then that too, is justice,” she said.

Taveta MP Naomi Shaban also regrets the obsession with arrests, prosecution and jailing of youth involved in petty offences, but who, with good leadership, can be rehabilitated.

“What I won’t advocate is where we use crime as an alternative way of making a living in the guise of occupying our youths … We dare not go down that line. But the thrust of this argument is that if we have deliberately neglected our youths and on the other hand pressurising them to become responsible Kenyans who will find families and provide for them, then we are being awkwardly ambitious to expect that they will not deviate from good morals. Yet when this happens, it will be sadistic for us to crush them to death.”