Why remandees are granted bail but still rot in jail


A majority of remandees are wasting away in custody even though they had been granted bail, some for longer than they would spend in prison were they to be found guilty of the offences they have been charged with.

Nine in 10 suspects in pretrial custody have been granted bail or bond but cannot afford the terms, reveals an audit by the Office of the Director of Public Prosecutions (ODPP). About the same proportion have no legal representation.

Remandees spent an average of 12 months in custody awaiting trial, according to the case review exercise that involved interviewing 2,100 or more than 70 per cent of the pretrial detainees held at the Nairobi Remand and Allocation Prison, and Nairobi Medium Security Prison. At least 13 detainees had been held in remand for seven to eight years while eight had mental illnesses. Another two per cent were minor offenders whose punishment is either non-custodial or punishable by a sentence of less than six months if they are found guilty, e.g. creating disturbance.

The secretary for public prosecutions, Dorcas Oduor, says unnecessary delays of trials go against the principle that one is presumed innocent until proven guilty and constitute a denial of justice.

If a person has committed a criminal offence and suffers from a mental health problem, his or her fitness to stand trial may be questioned. A person is unfit to stand trial if, because of a mental disorder, he or she does not understand the nature, object and possible outcome of a charge or is incapable of communicating with counsel.

An earlier Nation Newsplex review of criminal justice data found that if the State was to confine itself to holding in remand only those accused of violent offences, the number of men in remand would reduce by two-thirds and women by half.

Figures from the survey show that one in eight of the remandees were granted bail and or bond terms of Sh1 million and above, with the highest bond given being Sh10 million. About a third were offered bail terms of between Sh250,000 and Sh500,000 while more than half (53 per cent) were awarded bail worth Sh250,000 and below. Six per cent of those in pretrial custody were granted bail amounting to Sh10,000 and below with the lowest being Sh500.

Among the suspects awaiting trial is Mr John Wawire, 35, who has been in remand for more than nine months despite the court granting him cash bail of Sh30,000.

The father of four landed in remand following a brawl with two other people. He has been charged with preparing to commit a felony, according to the remand committal warrant. On the fateful day, the employee of a flower company in Karen who earned Sh7,800 weekly went out for drinks after receiving his wages before setting off to meet a lady ‘friend’. He found her with another man. They got into a fight and the two thoroughly beat him before calling the police on him.

He thought the police would take him to hospital but they took him to a police cell. He was first arraigned in November 2017 and later transferred to Nairobi Medium Security Remand Prison when he failed to pay the bail. Since then his case has been mentioned in court eight times, with no end in sight almost 10 months later.

Denial of justice

The secretary for public prosecutions, Dorcas Oduor, says unnecessary delays of trials go against the principle that one is presumed innocent until proven guilty and constitute a denial of justice.

The most common reason given for prolonged detention was slow trial process and bureaucracy that affected a third of those interviewed, and witness or complainant-related delays that involved about a quarter of the study participants.

The secretary for public prosecutions Dorcas Oduor during an interview with the Nation at the Shimo La Tewa Prisons in Mombasa County in February 2018. PHOTO | FILE

In the two years and four months that Kevin Sanya, 23, has been in remand at Nairobi Medium Security Remand Prison, his case has been mentioned in court 27 times and each time it ends up being postponed because the complainant fails to show up for the hearings.

Sanya was charged with stealing a motor vehicle in 2016 at a residence along Nairobi’s Lang’ata Road. The former security guard who used to earn Sh8,000 a month was granted cash bail of Sh200,000 before it was reduced to Sh50,000.

Whilst his two co-accused and former workmates paid the cash bail and secured their freedom, he has been unable to raise the amount. The 28th mention of his case is on October 14 this year.

Other major reasons for case postponements include prosecution and investigation-related delays at 14 per cent, hearing date allocations (10 per cent), adjournments (six per cent), court-related and defence-related adjournments (five per cent each), police-related stays (four per cent) and request for withdrawals (one per cent).

Over-reliance on remand custody and non-adherence to mitigating statutory provisions are some of the main challenges highlighted by the audit. Remedies recommended for this challenge include continuous review of bail and bond terms, adoption of alternatives to remand custody and administrative remedies for minor offences such as minor traffic cases.

Inadequate legal representation was another major challenge, mostly because many of the remandees did not understand their rights and could not afford to retain a lawyer. According to the audit, a quarter of the remandees had not completed primary school while 43 per cent had done so. Another quarter (23 per cent) of those in pretrial custody had completed secondary school, and eight per cent had enrolled for college and university education. Education is a proxy often for one’s income level.

When Newsplex interviewed him on September 11, Pwaka Fredi had just returned to Nairobi Medium Security Remand Prison from the 18th mention of his case in court.

The 25-year-old Ugandan has been languishing in remand for almost two and a half years facing a charge of preparing to commit a felony. Prior to his arrest he worked at a hotel located behind the shop he is accused of attempting to steal from. He was first granted cash bail of Sh200,000 before it was reduced to Sh20,000, but he does not have the money. He once had a lawyer to represent him but he disappeared after Fredi had paid him Sh48,000.

“I have gone to court many times, if I was guilty the court should have made that finding a long time ago but every time I go for my case, the complainant does not come,” he says.

Most of the remandees are young and have dependants. Figures from the audit show that more than half (55 per cent) were aged between 18 and 30 and about two per cent were elderly ranging from 60 to 86 years. Two-thirds of the remand prisoners indicated they had dependants.

The family of Joseph Muthee Mabita, 47, is among those who have been left without a breadwinner. For seven months, the matatu driver has been detained at Nairobi Medium Security Prison because he could not afford the Sh40,000 bail granted to him by a magistrate’s court to secure his freedom pending trial.

He was arraigned in February this year and charged with driving a public service vehicle under the influence of alcohol. However, he claims that he was off duty when the police pounced on him.

His three children, mother and five sisters all depended on him. He earned Sh10,500 monthly and his case has been mentioned 10 times. “I do not think my mistake justifies one to be detained this long. If my punishment was to be eight months, I have already served the sentence but it looks as if my case will proceed to next year,” he said.

If he is convicted and receives the maximum sentence for the offence, he will be jailed for two years or pay a fine of Sh100,000 or both and if found not guilty he will have wasted months in detention.

Juvenile offenders

One in nine or 237 cases of petty offences were identified during the audit and prosecutors called for the police files with a view to reviewing and expediting them. Also identified were 18 cases of juvenile offenders where (at the time of the release of the report early this year) one has been released on cash bail, one case was withdrawn and the rest have been accorded legal representation.

Almost 26,000 remandees are awaiting trial at 118 prisons countrywide. FILE | NATION

A team of prosecutors was appointed to peruse both the police and the relevant court files so they could quickly dispose of the cases and develop guidelines for withdrawing cases.

One in eight cases were profiled for mitigation within 30-90 days, according to the data collected during the exercise that took place in January 2018. Cases to be dealt with before the end of 30 days were those where complainants are willing to withdraw (47), children or youth offenders (37), petty offenders (27), non-fatal traffic offences (18), and cases for review of bail and bond terms (14).

Within 90 days the team was also to strive to dispose of cases involving offenders with mental and other serious illnesses (28), offences involving elderly offenders (39) and suits where offenders have sought plea bargain consideration (47).

There are about 54,000 detainees in the prison system, with 25,920 (48 per cent) in remand. These numbers far exceed the current capacity of the facilities. For instance, the Nairobi Industrial Area Remand Prison holds about 2,400 remandees, double its normal capacity.

During the launch of the audit report and the ODPP’s plan of action to remedy the situation, Senior Assistant Commissioner of Prisons Wanini Kireri said it costs Sh2.4 million per day to feed nearly 30,000 suspects awaiting trial countywide, about Sh876 million annually.