How Covid-19 saved over 16,000 convicts jail pain

Around 5pm on January 22, last year, a sickly 76-year-old Justo Mwamba m’Irandu woke up from his bed in Giitu village, Meru County, after an afternoon nap.

Mr Mwamba reached for his walking stick, stepped out of the house and ambled over to his son Erick Mwiti’s house within the compound.

Along the way, Mr Mwamba picked up a machete, which he used to unlock the door – which had been secured with two iron nails from the inside. He headed straight to the bed – where his son lay on his back – and slit his throat. Mwiti died instantly.

“I found Mwiti lying uncovered on his bed. I used the panga, which I had used to open the door, to slash his neck. It was narrow and quite sharp. I found a bigger panga near his bed, which I used to make deeper cuts on his neck. I saw blood spurt out and hit the walls of his house. The head drooped and I knew Mwiti was no more. I took a blanket, covered the body, left behind the panga I had found in his house, carried the panga I had picked up outside to my house, wiped it and washed off the blood then went back to sleep. No one saw me kill him,” Mr Mwamba says in court documents.

The elderly man said his son had come home drunk and started an argument over a plan to sell macadamia to help settle his (Mr Mwamba’s) grandchild’s school fees.

The man said his son had troubled him to no end by selling household items, assaulting him and abusing alcohol.

Prior to the killing, Mr Mwamba said his son had come home with a friend, whom he (Mwiti) stabbed with a knife in the thigh. The friend was taken to his home and Mwiti headed to his room to sleep.

The Director of Public Prosecutions (DPP) also said Mwiti had been demanding a share of the money Mr Mwamba received under the government’s cash transfer programme for the elderly.

On July 14 this year, the High Court in Meru convicted Mr Mwamba on his own plea of guilty.

The offence had, however, been commuted from murder to manslaughter after a plea bargain.

Court documents indicate the DPP confirmed the accused was a first offender and called for a pre-sentence report from the probation office.

“The accused is sentenced to serve community service for 12 months at a placement area to be identified and under supervision of a community service officer or any other suitable person as may be determined by the Probation Services Office, Meru County,” the court determined in its July 29 judgment.

Justice Edward Muriithi noted that in his mitigation, the accused had sought a non-custodial sentence, offering to undertake community service at his local chief’s office, while portraying the image of a long-suffering father who had been constantly troubled by his son.

“Having considered the circumstances in which the offence was committed with extreme and protracted provocation by the deceased on his father where he disrespectfully challenged his authority and threatened to beat him while demanding money…the court accepts that the provocation did justify the reduction of the offence to one of manslaughter under Section 207 of the Penal Code,” Justice Muriithi said in the judgment.

“Further, the court considers that the advanced age, ill-health of the accused and the fact that he shall for the rest of life live with the fact of having killed his own son, justify a non-custodial sentence. For his advanced age, probation may not serve its purpose of reforming the offender; a custodial sentence may deter others, but his ill health and advanced age again make him unsuited for the retributive element of deterrence,” the court decided.

And that way the convict, who was 77 at the time of conviction, escaped jail, despite having confessed to killing his own son. Mr Mwamba is expected to do community service up to around August next year.

His case, however, is just a tip of the iceberg. There have been many cases of community-service sentences across the country, especially after the onset of Covid-19.

Data from the Economic Survey 2021, which was released last week, shows the total number of offenders committed to community service last year increased by 151.6 per cent – from 6,614 offenders in 2019 to 16,614 offenders in 2020.

This means 10,027 more offenders were spared the unforgiving prison life in 2020, as compared to 2019.

The report notes the significant increase affirms “the drastic measures taken by the justice institutions to use community service orders as an alternative to jail terms due to Covid-19”.

In another case, a court last year handed a community service sentence to a man convicted of manslaughter.

Legally in Kenya, the offence of manslaughter is punishable by the maximum penalty of life imprisonment under Section 205 of the Penal Code.

The Economic Survey indicated that last year, five people convicted of rape and attempted rape were also committed to serve community-service sentences, as opposed to 2019 where of all the rape convicts went to jail.

As for assault, the number of people committed to serve community sentences increased from 95 to 293, while robbery and related offences saw those committed to community service rise from two in 2019 to 22 last year.

The report further indicates 124 break-in convicts were spared prison life, up from four in 2019, in a trend where avoiding the risk of Covid-19 transmission in congested places ended up handing a lifeline to criminals, while on the other hand showing the effectiveness of alternative sentences particularly for petty offenders.

The law allows for people whose sentences are less than three years to be committed to community service instead of being jailed, as a way of decongesting prisons and reducing stigmatisation of offenders. The free labour involved helps cut costs and avert hardening of petty offenders.

The Economic Survey report notes the number of offenders committed to community service for penal code offences (with the exception of 19 offences) last year increased to 13,389, from a low of 5,319 in 2019.

Cases of ‘Theft by servant’ alone increased from 20 in 2019 to 230 last year, while 439 more ‘General stealing’ offenders were spared jail time, as compared to only 75 who served community service sentences in 2019.

A 2016 National Crime Research Centre (NCRC) survey on delivery of community-based service orders in Kenya found that a majority of magistrates, probation officers, community members and offenders found CSO sentences beneficial, particularly in reconciliation and reintegration of offenders, victims and the community.

“The study established that the major specific offender rehabilitation and supervision activities carried out through the CSO Programme included: supervision in cleaning and maintenance of public facilities, guidance and counselling, as well as skills transfer and training. Tangible projects such as afforestation/tree planting, construction of public utilities such as toilets, and farming, for example, fish and poultry keeping, had also been realised through the CSO sentence,” the NCRC report stated.

The study, however, found out that the sentence was underutilised, noting that the prison population was more than double the CSO placements for similar petty offences in 2016 – that is, 80,614 prisoners against 37,729 CSO offenders – translating to only 31.9 per cent of the offenders who were committed to CSO in comparison to 68.1 per cent who were committed to prison sentencing of less than two years for similar offences.

NCRC made radical policy recommendations, including that the National Council on the Administration of Justice (NCAJ) should put in place sentencing guidelines requiring courts to issue CSO sentences as a first option for petty offences whose prison sentences would have been three years and below.

It also recommended that the Judiciary and the Probation and Aftercare Services Department should undertake to decongest prisons by committing petty offenders to community service.

The NCRC further recommended that the Ethics and Anti-Corruption Commission, the National Police Service, the DPP, the Judiciary and the Probation and Aftercare Service Department address any forms of corruption in the CSO Programme.

[email protected]