About the authors

About the authors

Photo: © David Mark / Pixabay

Contributing HiiL authors

Armi Korhonen, Justice Sector Advisor

Isabella Banks, Justice Sector Advisor

Prof Dr. Maurits Barendrecht, Director Research & Development

 

About HiiL

HiiL (The Hague Institute for Innovation of Law) is a social enterprise devoted to user-friendly justice. That means justice that is easy to access, easy to understand, and effective. We will ensure that by 2030, 150 million people will be able to prevent or resolve their most pressing justice problems. We do this by stimulating innovation and scaling what works best. We are friendly rebels focused on concrete improvements in the lives of people. Data and evidence is central in all that we do. We are based in The Hague, City of Peace and Justice.

The Hague Institute for Innovation of Law
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www.hiil.org

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Conclusion

Conclusion

Photo: © Oleg.0 / Depositphotos.com

In this report, we have aimed to examine how justice innovation could support Kenyan criminal justice. From the baseline, we can see that new solutions are needed. Crime in Kenya is a big problem: three in four of the over 6000 citizens who we interviewed had dropped their criminal case, or were waiting for their resolution. One in four do not even try to resolve their problem. This is despite the fact that victims report that experiencing crime has a big impact on their well-being. While succeeding in adjudication, the current structure has not been able to tackle low resolution rates or address all the restitutive and restorative dimensions of criminal justice needs. Innovative thinking and working methods can help to bring solutions to the people. This is not a straightforward task: justice innovation and public-private partnerships are still taking only tentative steps in scaling up. New ways of thinking are needed. The recently published AJS policy is a step in this direction, opening up possibilities for more innovative approaches to preventing and resolving crime.

What is working?

From the innovation examples, we see that many already-working innovations have started or operate at the grassroots level and are responding to the needs of targeted communities. Some well-known examples include Nyumba Kumi, which is anchored at the household level in communities across Kenya; Dandora Transformation League, which started in the Dandora region; and Kituo Cha Sheria Legal Advice Centre, which started back in the 1970s by working from under a tree in the Ngara neighbourhood of Nairobi. What these examples have in common is that they all respond to the daily, regional needs of people. 

Hence, many innovations tap into informal, local practices. The justice providers agreed with the added value in this: supporting informal justice mechanisms can bring the focus back from distant courtrooms to having resolutions right where people need them. While in criminal justice formal mechanisms do play an important role, the judiciary is also exploring alternative mechanisms through the AJS policy. Informal justice can also play a role in preventing crime or fact-finding after the crime, as we demonstrated in the work of the 160 Girls Project or Mulika Kenya.

Traditional, informal justice can be paired with modern technology solutions. Leveraging widely accessible technology such as SMS, radio, and the internet, has proven successful in the cases of KITUO’s M-Haki, SNA-K, and 160 Girls Project. While they have used technology to reach and advise people with legal problems, other innovations such as Mulika Kenya and Ushahidi have leveraged this technology to facilitate bottom-up reporting through secure communication lines.

What all the innovations we examined have in common is that they strive to be easy to reach and easy to understand. Innovation’s potential seems to lie in streamlining existing processes that already work well and making new justice services available and accessible.

What challenges could be addressed next?

The criminal justice workers who we interviewed outlined challenges they experience in their work, which could be addressed with an innovative mindset and newly-found solutions. They wanted to encourage actors in criminal justice and justice innovation to use their creative thinking in finding solutions that streamline processes and support people-centred responses.

Particularly in the light of Covid-19, the justice providers called for improvement in technological literacy and infrastructure both in formal and informal justice systems. It was mentioned that there are either no streamlined and/or secure online communication platforms in place, or there is no technological literacy to utilise the systems to their full potential. Another area where the justice providers wanted to see improvement was help in responding to crime and reckoning with its consequences. While many innovations are already delivering legal aid or knowledge about procedures, the justice providers saw there to be more room for improvement in guiding people through criminal justice procedures. This guidance can include not only information about the law, but also on different justice providers, their rights and responsibilities, and what the parties can expect from various justice processes. Incorporating mediation into criminal justice procedures, when appropriate, could be one of the improvements. The justice providers follow international trends when they recommend to explore restorative justice. This includes victim-offender mediation, rehabilitating and reintegrating offenders, and appropriately compensating victims for the harm they have suffered. They saw the way forward towards more restorative approaches to be through improved coordination between formal and informal justice providers. While informal and formal justice systems both have strengths, both also have their unique challenges. Innovative approaches that support the AJS policy by helping the formal and informal systems work better together could help in improving the crime response for people, so that everyone is able to find the most suitable help for their situation. To improve both systems, the justice providers interviewed suggested capacity-building and skills training in particular, alongside initiatives such as interpretation and improved monitoring of agreements.

From idea to innovation?

Innovating is hard work, which does not happen overnight. In access to justice, the importance of private-public partnerships is highlighted. This report has aimed to shed light on challenges in criminal justice that might be addressed by new solutions. As we can see from the reflections of justice providers, solving problems locally is often preferable. We encourage the private sector to explore their options within the criminal justice system, and encourage the public sector to welcome new ways of thinking. Where to start? Identifying the justice outcomes that people need is one way to supports meaningful, evidence-based innovations. Continuously improving these innovations through outcome monitoring helps to ensures that they respond and adapt to a rapidly changing society.

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Justice providers reflect: Challenges for improvement

Justice providers reflect:
Challenges for improvement

Photo: © JLwarehouse / Shutterstock.com

Crime and Justice Innovation in Kenya / Justice providers reflect: Challenges for improvement

During the interviews with justice providers, we asked them to point out current challenges in the criminal justice system that could be explored through innovative solutions. The interviewees brought up topics where they see the current state of affairs underperforming in comparison to citizens’ justice needs, and would like to encourage entrepreneurs, technologists, the public sector, donors, and investors to explore these themes from an out-of-the-box mindset. 

Challenge 1: Building knowledge in the communities

In the past decade, access to justice initiatives have worked towards the recognition of the informal justice sector and the civil society to increase legal empowerment in communities. Multiple justice providers emphasised this need for community knowledge-building around crime and criminal justice. They mentioned that greater public participation could have an impact on the community addressal of crime. 

Specifically, the justice providers stressed the importance of educating people about what is considered a crime and informing them about the consequences of crime, including familial, societal, and criminal sanctions. For example, the justice providers expressed a concern that many people might not be aware that assaulting their husband or wife is a crime. Justice providers felt that empowering people to understand the law and what it means to break the law may help to reduce this behavior. Greater awareness of what constitutes a crime may also empower the community itself to take on a greater role in crime prevention and reporting.

If there were innovative ways to improve community awareness and community education, it would improve the situation... In the community it can be done very easily, because we have ten villages, and in every village there are fifteen leaders.

A religious leader

Community initiatives should also aim to demystify formal and informal justice systems and make people more aware of their rights within them. Increasing understanding of institutions like the police, the prosecution, and the judiciary would help make them better agents of the people. Building trust in formal justice providers may also make people less afraid to report crime and take action towards resolution. Similarly, challenging common perceptions of informal justice providers as biased or corrupt and can facilitate resolution of crime problems outside of the courts through arbitration or victim-offender mediation.

Justice processes can foster peace and harmony in the communities by developing trust between the justice system and communities. Demystifying how it works.

Paralegal

An innovative initiative focused on community education and engagement could leverage the existing forums, such as chief barazas. Chief barazas are administrative meetings conducted on a weekly or monthly basis to discuss administrative issues in society. During barazas, chiefs have an opportunity to bring together key criminal justice actors (for example, police, chiefs, judges, village elders, and Nyumba Kumi members) for a dialogue with residents about crime and what they can do to live in harmony with their neighbours. It could also help in getting people to engage in meaningful activities in the community, as an alternative to criminal behavior. The cost of hosting chief barazas for this purpose is low – only tea is needed to incentivise community participation but the government has so far neglected to finance preventative initiatives of this kind.

Some of the existing forums at community level could probably be through the chief barazas. The chiefs have their monthly or weekly meetings to speak on administrative issues in the society. Probably this would be a good point for an institution or a person who wants to drive an agenda to plug in to. Also, it can be a good way to get ideas from the community on how to prevent the occurrence of crime.

A criminal justice lawyer

In the villages, the chiefs hold barazas. Chiefs’ barazas are community forums in which the chief informs the residents on how to live in harmony with their neighbors. I think one solution for improved criminal justice in the communities could be for the chiefs to conduct more barazas to teach community members about crime. So, for example, that people will understand that assaulting a wife is a crime.

A village elder

Other platforms for community education and engagement that were suggested include radio, which can be particularly effective in reaching people in lower income areas. Social media outreach was also suggested in forms of video clips sharing people’s personal anecdotes with various justice processes. 

Existing innovations in this space that are highlighted in this report: 

Challenge 2: Addressing employment and empowerment

It has been widely concluded in research that in general, giving people the opportunity to engage in meaningful work is one of the ways to reduce the risk of crime – especially the risk of property crime. Formal and informal justice providers alike pointed out the same during the interviews. In their experience, when people are working and busy, crime goes down, and when people do not have work opportunities, crime goes up. The interviewees think that particularly theft and associated stabbings could be reduced by employment. While employment being a part of a larger socio-economic order, some innovations have explored organising local employment activities such as repairing motorbikes and selling water especially to reduce crime in their area. One probation officer mentioned that simply providing young people free driving training helped reduce the number of bhag (cannabis) cases in areas where people enrolled. 

Empowering the youth is important. You see, some are idle, they start taking bhang, then they are introduced to selling. Just being idle especially at this time where the unemployment numbers are high can cause people to resort to crime. So empowering the youth to be busy, to make a life for themselves – I think that could also help.

A probation officer

Some of the interviewees mentioned that empowering young men by bringing them together with mentors is another important element of crime prevention initiatives, especially when focusing on youth. Several justice providers agreed that introducing young people to role models from their community has helped the youth to stay away from crime and seek other opportunities. Inviting sociologists, entrepreneurs, and members of the clergy to participate in motivational workshops for youth has also helped young men learn about their personal career interests and possibilities.

One of the strategies that we deploy is workshops. We also have motivational sessions whereby we invite diverse resource persons from various sectors – the security sector, the clergy, sociologists, people knowledgeable in micro entrepreneurship, the youths, the peer interventions. You see, when you want to have genuine and meaningful exchange, only punitive options will not achieve that. Educational inclusion can instill awareness and sensitization, and result in a more enlightened, more knowledgeable person. These people who have a deficiency of so much, they need somebody who can inspire them, somebody who can transform them, somebody who can instill in them positive hope for tomorrow.

Chief

One village elder described how she meets with a group of young men in her community in the mornings, listens to them, and acts as a point of contact for guidance. This engagement has helped deter the community from future reoffending. Through these meetings, she was able to hear stories of past crimes they had committed, help them take steps to undo the harm they had caused, and develop a more trusting relationship than they had with the chief, whom some of them feared.

Existing innovations in this space that are highlighted in this report: 

Challenge 3: Confidential reporting

In the aftermath of crime, the quality of forensic investigation is highlighted. However, forensic science is an evolving multidisciplinary field, with a continuous need for improvement. The interviewees raised a concern that although the police are the primary criminal justice actors responsible for collecting evidence, this is done on a case-by-case basis. In practice the quality of the forensic investigation might depend on whether or not the police have access to transportation. In the absence of formal police investigation, the community plays an important role in reporting suspicious activity and sharing evidence with their local chief.

Chiefs are key players in crime prevention and criminal investigation due to their networks of trusting community members who share information with them. Chiefs typically have informers among people who work at the marketplace, boda boda drivers, pastors, shopkeepers, and businesspeople. Chiefs’ primary source of information are the Nyumba Kumi, who are vigilant observers embedded within housing clusters in the community. Nyumba Kumi members inform the chief about their neighbors and any unusual activities they witness taking place. When working properly, they are particularly effective at bringing to light the cases that typically take place behind closed doors, such as those involving drugs, illicit brewing, domestic violence, and child abuse. 

Information about criminal activity is typically communicated to chiefs via phone calls, WhatsApp or Facebook messages, or in person. These non-secure reporting leave informants vulnerable to retaliation by the accused person. According to one village elder, members of the Nyumba Kumi who are exposed as informants are sometimes even killed. 

Most of the time, gathering of evidence will depend on your mobility options to reach the crime scene. Sometimes the police improvise on how to collect evidence. There is no definite way to collect the evidence, it is done on a case-by-case basis. Individual police officers have to come up with their own innovative ways of collecting evidence. For example, we have informers living in the community who work on a voluntary basis. Mostly they transmit information to us through telephone calls, and sometimes they send us details on WhatsApp. They do not have access to any other equipment to send us information.

A police officer

Fear of retaliation discourages information sharing in the community and makes it more difficult for chiefs and the police to prevent and respond to crime. A digital system or app that enabled the roughly 31,000 people living in a given community to communicate with the chiefs and report crime confidentially and securely would help solve this problem. It would also leverage the success of the Nyumba Kumi initiative in containing crime and offer its members greater protection from individuals seeking revenge. 

Existing innovations in this space that are highlighted in this report: 

Challenge 4: Technological solutions in criminal justice are not leveraged

The improved use of ICTs in the criminal justice system has been a global agenda for the past decades. ICT  can  be  very  effective  in  addressing  problems such as accessibility, legitimacy, legality, and the economy of judicial systems, however, proper design and management is needed for positive outcomes.

According to one interviewed detective specialising crimes in cyber environments, the introduction of digital evidence has greatly facilitated criminal investigations in the formal justice system due to the amount of data contained in the cloud and the increase in cyber crime (i.e. crimes involving technology, an online platform, or online money transfers). Posting that a suspect is wanted on social media, for example, can help gather intelligence from the community and locate them quickly. 

However, police, prosecutors and lawyers have not yet been able to capitalise on these developments due to low levels of technological literacy and infrastructure within the formal justice system. E-filing exists in criminal courts but has not reached its full potential. Police are not sufficiently skilled in technology and therefore struggle to give evidence online. Prosecutors struggle to make charging decisions in an efficient manner because criminal records are rarely digititised. Similarly, pro bono lawyers who lack the resources to travel to a faraway court find it difficult to gather evidence about their cases, and often have to rely on individuals at the court sending them pictures of documents on an informal basis.

Internet access is a challenge, but Kenya is highly networked. The formal criminal justice system, more so during this pandemic period, has tried to conform with technology online. When there is an online case, I think there is an arrangement for that. The infrastructure is available, but it is a challenge for those officers who have not been educated in technology. Technology is something that is already here, but there is the aspect of knowledge in technology. The officers need to know how to properly manage cases online. There should be training to help the officers to know how to give evidence online.

A police officer

Digitising case files and adopting the use of technology through which case files could be shared confidentially and securely would bridge this gap, which has only expanded as a result of COVID-19 and related court closures. In particular, a platform for the prosecutors to disburse documentary evidence to the accused person at the point of plea in a more seamless way would streamline the charging process, which is a major source of procedural delay and source of frustration for victims.

Criminal justice has partly been forgotten in the judicial system. I'll give an example. Because of Covid-19, we now have the court sessions happening virtually through online sessions. The civil system has been well thought out and partly being actioned on that end. This is partly because most of the parties are being represented by advocates, and the lawyers have their own laptops and their own Wi-Fi. Yet, in criminal cases, most of the people don’t have representation. So, if the hearing is going on virtually, there’s no advocate who will say: I’m coming with my laptop.

A lawyer

Existing innovations in this space that are highlighted in this report: 

Challenge 5: Challenges with interpretation

Language barriers in the criminal justice system have been raised on multiple occasions, both in Kenya but also for example in South Africa, the US, Tanzania, regional courts such as the East African Court of Justice, and international criminal courts. Language can be a significant obstacle for police carrying out criminal investigations. When police do not speak the language of the witnesses or parties to a crime, they need to hire an interpreter. This is essential for building trust and understanding with complainants and ensuring that they feel safe to express themselves.

Currently, police source interpreters from the community they are conducting the investigation in. This may jeopardise the investigation because members of the community may be biased and choose not to interpret what is said accurately. Creating pools of registered and certified interpreters in each community would help increase understanding between complainants and the police and improve the quality of criminal investigations. 

When you are investigating a case in some area where you don’t understand the language of the parties, you need an interpreter. But you can find out that the interpreter might be coming from that particular community and not correctly interpreting what you explained. So, the evidence gets distorted. My suggestion to overcome this challenge is that there should be a pool of registered interpreters with the government, specific people who are assigned in specific areas. It could guarantee that there is no bias. Recently we were handling a case of these Nepalese ladies who were trafficked into Kenya for exploitation. When we rescued them, the interpreter who we hired was a proper expert interpreter, trained in Nepalese language. She had a certificate. So you see, it helps. It also helps to bring justice correctly because you find that if you get a wrong interpreter, then justice will not be served either to the victim or to the offender.

A police officer

Challenge 6: Capacity-building for chiefs and village elders

As we can see from the baseline, also research has found that the Kenyan formal criminal justice system is suffering from long backlogs. According to the justice providers interviewed, the potential for alternative justice mechanisms to resolve crime problems outside of court and reduce case backlog is increasingly recognised. However, they point out that chiefs and village elders do not always have the skills they need to meet the demand for the help they provide.

Chiefs are unique in that they are the only government officers in Kenya who have a role in preventing crime. They do this by gathering information about suspicious activity in the community and interrupting crimes before they take place. They also support the work of the police by making them aware of offenders in the community and referring cases to them when appropriate (or legally required). When confronted with more minor disputes, chiefs work directly with the parties involved to build mutual understanding and work towards reconciliation. 

As part of this work, chiefs may also issue a caution to the accused or advise the complainant on the evidence needed to prove their accusation. Because false accusations are sometimes made, chiefs must approach their work on a case-by-case basis. This means that there is no uniformity in their service delivery across settings. 

Building chiefs’ capacity by training them in arbitration and mediation and compensating them more fairly would help empower them to become the agents of change that criminal justice providers acknowledge they could be. These new skills would make them more versatile in the way they resolve criminal matters and more sensitised to underlying causes of crime such as mental illness and drug addiction.

Prevention and resolution of crime could improve if we build the capacity of the chiefs to be agents of change, agents of transformation, in the criminal justice system. We should advise the chiefs on the important role they are playing in the system. Act as a point of contact for people, advise them, and provide solutions to how the community can crime in the community.

A lawyer

I believe the local administration – the chiefs – could be able to mediate some issues. I think chiefs need to be trained on how to mediate petty criminal cases, like creating disturbance. This could help in addressing the case backlog in the courts. Some petty cases do not really have to be resolved in the courts.

Connect the chiefs to the judiciary. That is the missing link. At times the courts don’t recognize us. The court doesn't recognize the decision of the village elders. And some of the things that are going to court could have been solved at the location level.

A senior chief

Like chiefs, village elders play an important role in reporting crime and bringing parties in conflict together for dialogue. They carry out criminal investigations without protection or compensation and if necessary, report what they learn to the chief or police.  Like chiefs, village elders guide the parties to talk through their issues and generate an agreement based on what they have discussed. This empowers people in the community to resolve petty (non-violent) crimes at a grassroots level and reduces the burden on the formal justice system.

In spite of their important contribution to criminal justice in Kenya, the decision-making authority of village elders is not always respected. Capacity building for village elders would increase the value of their decisions and their authority within the communities where they work. One village elder expressed that training in interrogation techniques and mediation, for example, would help him do his job more effectively. This would empower village elders to resolve more crime problems without escalating them immediately to the chiefs. 

The challenges that I encounter is that some of the men do not recognize my authority as a village elder. They treat me with a lot of contempt and do not want to resolve the matter. Sometimes when we summon the offender to come to the chief’s office, especially in domestic violence cases. Some people refuse to receive the summons that the chief has assigned for me to deliver.

A village elder

We have paralegals who work together with the elders. They have regular meetings to keep the elders abreast of the law, so the elders have a good understanding of what the Constitution says. So, when the elders resolve cases, they're able to find a way to match the culture, the law and whatever issues they're handling. And we've seen that has worked quite well.

A lawyer

Early capacity building efforts have already shown to reduce the court backlogs that get in the way of resolution. In 2016, the Alternative Justice System (AJS) Taskforce was appointed to look at the various traditional, informal, and other mechanisms used to access justice in Kenya. As part of their work, the Taskforce empowered village elders to assist with resolving certain categories of civil and criminal offenses. This initiative was piloted in 6 courts across various countries and has so far had a positive impact. In Isiolo County, paralegals worked together with village elders to ensure they had a good understanding of the law when resolving cases in their community. This resulted in a dramatic reduction in criminal cases in the county’s court system by enabling petty offenses to be resolved at a grassroots level.

Challenge 7: Making victim-offender mediation more accessible

Especially through the Alternative Justice Systems (AJS) policy, also alternative dispute resolution (ADR) in Kenya has received increased traction. The criminal justice providers who we interviewed tend to agree that the best way for parties to reach an amicable resolution in cases that are reported to the police is for them to sit down together and talk, and that the best way to achieve this is through informal (alternative) justice processes. Even so, courts remain a primary forum for the resolution of criminal disputes because the trial process allows the victim to bring evidence, feel listened to, and see the person who harmed them punished. Courts are also the primary referral mechanism for victim-offender mediation.

In criminal justice, mediation is hardly used. The judiciary has fully embraced it in civil matters. But actually, a dialogue to resolve a crime is also possible. We have seen it work. In fact, many countries are already doing it. In my opinion, in Kenya we are coming from a very vindictive background. But in cases where we see that vindication is not serving any sense of justice, we should slowly have to change our attitudes and accept that the victim and the offender can actually sit down and talk. And more so when there’s a third party to mediate.

A lawyer

Crimes caused by underlying family problems – including domestic violence – are considered well-suited for informal resolution because they involve individuals with existing relationships. Low-level offenses such as trespassing, petty theft, and cases involving minors are also considered appropriate for victim-offender mediation. Mediation is generally considered insufficient to address serious offenses such as murder, violent robbery, defilement, and rape. However, its application in such cases has not yet been fully explored. 

If the parties are able to communicate, that will create an environment where both parties feel safe enough to articulate their issues. And I think that's the main thing. Whether you're talking directly to the pastor, or you're talking through the elders, you're able to say, "For me, I was wrong. For me, this is why I did what I did." And once the two parties are able to talk, they can even reach that amicable settlement.

A lawyer

Mediation often takes place through religious leaders, elders, or other informal mechanisms. It can also take place during probation. The sessions are conducted in diverse ways but generally take the form of a conversation between the parties involved. Each side has an opportunity to share their perspective on what happened, identify the root of the problem, and work towards an agreement. Parties usually can also bring a support person who is familiar with the situation. The mediator records the proceedings, and if the case was referred by a court, reports any agreement made back to the court. 

To help ensure that more crime problems can be resolved amicably without first being escalated unnecessarily to the courts, new referral mechanisms for victim-offender mediation and greater collaboration between formal and informal justice providers are needed. According to the justice providers interviewed, police, probation officers, and chiefs are capable of mediating petty crimes before they are brought to court. Empowering them to do so would help the courts reduce their case backlog and focus on more serious crimes. It would also make victim-offender mediation more accessible for those who do not have the time or resources needed to appear in court. A part of the suggestions in the AJS policy is for the judiciary to promote these alternative justice systems. 

One of the ways that the state and non-state systems could work together is that the state system moves away from the very rigid, formal approach. I have observed that for example in court, when someone is taking a plea, and says: “Your Honor, I have something to say”... but they are told “No, no, no, you can’t say it today, you have to wait for your hearing date”. And because the hearing date is many days away, people give up because it is just taking too long. The informal doesn’t have these rigid processes. They allow people to speak, find out the truth, give a warning and tell the offender to pay and apologise. And the offender is expected to honour their word because the whole village will be watching.

A paralegal

Challenge 8: Improved processes around restitution and restoration

As outlined in the first chapter of this report in relation to the AJS policy, more opportunities for restitution within the criminal justice system are needed to restore harm in the aftermath of crime. Numerous justice providers stressed the importance of finding a middle ground between criminal procedure (which primarily provides punishment) and civil procedure (which primarily provides restitution). Restitution can be awarded with money or in kind, but there is currently no provision for this kind of broadly understood support in Kenyan law. 

Requiring restitution in criminal cases that go through the formal justice system would potentially help to deter serial economic crime by reducing the uncertainty around having to pay the stolen amount back in civil court. It would also help victims obtain adequate restitution by providing an unbiased calculation of the harm caused, which is not typically available in the informal justice system. Policy or legal reforms that make way for restitution in criminal cases should be sufficiently flexible to allow for discretion based on the circumstances of each unique case.

Restitution could be a new way to arrange punishments. The problem with economic crime, most of the time, is that someone loses the money. For example, somebody has obtained 300,000 KES from somebody who is really struggling with money. Then the offender is incarcerated for six months – but what happens to this 300,000 KES that the victims lost? They are told to go to the civil court and claim for the balance. The unfortunate thing is that these people either don't have the money or they are not willing to pay for the civil procedure. So… the victim, who already lost the money, has to undertake additional costs from filing a civil case. But if the offender, who were found guilty of economic crime, will be forced to restitute their victims in the criminal procedure, it would bar them from repeating the offence. The fact – that they know – is that another process and another whole trial has to be gone through for the victims to get the money back with interest. It makes the criminals feel sort of emboldened.

A prosecutor

A majority of the crimes have an economic element. I think there's a need to fully apply the provision for restitution. Part of the reason why people may not want to go to court is that they are unlikely to have what has been taken away from them restored. Once you have completed a criminal process, the state system tells you to file another claim in the civil process to get back what you lost. So, finding a middle ground to deal with punishing the offender and restituting would be an effective way to improve criminal justice. I think it could also build more confidence among the parties that there's an effective way of resolving the crime amicably.

A paralegal

Challenge 9: Improving non-custodial sentences and post-sanction reintegration

In Kenya, the formal system makes a little use of non-custodial sentences. According to the interviewees, non-custodial sentences could be an important way of holding offenders accountable while at the same time reducing Kenya’s heavy reliance on incarceration as a form of punishment. The interviewees point out that in practice the quality of non-custodial sentences varies and they are not always complied with. There are no clear parameters for the work that non-custodial sentences should include. When working with offenders who are returning from prison after serving their sentence or completing a non-custodial sentence in the community, probation officers typically focus on their existing skills as a starting point for reform. They sometimes also work to equip returning offenders with new skills or even provide them with small amounts of capital to facilitate the reintegration process. So far the Probation Office has not capitalised on the technological savvy of many of the offenders responsible for economic crimes committed online already have. Non-custodial sentences, for example, typically require offenders to assist with cleaning and other basic tasks, but do not provide opportunities for offenders to use their professional skills for good. An innovative program that helped connect returning offenders and/or offenders serving non-custodial sentences in the community to pro-social opportunities based on their skill set would help take advantage of the growing prevalence of economic and cyber crime in Kenya.

Lesser non-custodial sentences at the moment include work like slashing grass, going to wash the courts, toilets. Those menial jobs. However, at the moment we don't have a definition of those non-custodial sentences. For example if the offender is a professional, can they be required as part of their non-custodial sentence to offer their professional skills in a government department for free? Or, should they be paid a nominal fee for the services offered, while they are serving their non-custodial sentence?

A lawyer

If people attempt to flee, the probation officer must rely on the provincial administration (chiefs) to locate them. This is not always possible because sentenced offenders typically relocate to other parts of Kenya or even cross the border to escape punishment. Surety/bail bonds have also proved ineffective at securing compliance because the authenticity of the documents provided by the surety (i.e. title deeds) is not systematically checked across courts, and fake documents can be provided.

Tracking technology, such as a database where probation could upload information about those serving non-custodial sentences and share it with chiefs, could help to track people more effectively and prevent them from fleeing. A tracking device allowing probation to monitor and identify people who violate their non-custodial sentence may also help. This technology has already been provided by the mobile communications company Safricom for serious offenders but has so far not been extended to those serving their sentence outside of prison.

Sometimes people don't take non-custodial sentences seriously. They tend to think that they are done with court. Once they are sent to the probation office, they don't pay attention to what the probation officer requires of them. So you'll find that the court now has to intervene again, because the probation officer can only do so much without the authority of the police. Maybe… if there was an innovation of sorts, that could help. Like in other countries, they have these trackers that they put on the people who are on probation. The probation officer is able to trace and find the probationers. At the moment it is based on Safaricom, and used only in serious offences. Otherwise they’ll just rely on the provisional administration to look for such offenders.

A probation officer

Challenge 10: Leveraging the capacity of paralegals

Levering the capacity of paralegals in Africa has been brought forward for example in Nairobi through the Regional Paralegal Forum, which recognises paralegals to have untapped potential. According to the interviewees, paralegals, much like village elders, are uniquely positioned to engage with offenders in and outside of prison because they are seen as less intimidating than attorneys and advocates. The fact that paralegals are often stationed in holding facilities where offenders are kept allows them to build trust with offenders by seeing them regularly. This embeddedness in the community allows paralegals to monitor and follow-up on the progress of agreements reached through victim-offender mediation and other informal processes. If parties fail to honour their agreement, paralegals can safeguard offender accountability by referring the matter to the police.

Paralegals are a low-cost and accessible option that can help fill capacity gaps in stabilising and monitoring crime outcomes. Programs that train and empower community paralegals to follow-up on informal agreements and ensure that they are adhered to are therefore likely to reduce reoffending and increase trust in the informal justice system to hold offenders accountable.

Most paralegals are found at community level. And sometimes when people have a violation of their rights, they first get in touch with paralegals. Paralegals also are accessible and available almost at no cost. They are at the community level and they know a bit of the law or they have been trained on the law. They know what action to take when violations happen. So, people in the community feel that they're available and they're able to address their needs.

A lawyer

Existing innovations in this space that are highlighted in this report: 

Examples of successful justice innovation

Examples of successful justice innovation

Credit: Photo: © HiiL

Crime and Justice Innovation in Kenya / Examples of successful justice innovation

Innovations that have scaled up and achieved financial sustainability can provide insight on what defines a ‘good’ innovation. HiiL Accelerator has recognised that innovations have potential to grow and reach sustainability when they have a strong team, a business model that enables them to become financially sustainable, are realistically scalable beyond their current market, and have an evidence-based impact model. For the innovators, innovation means hard work and long-term commitment. An enabling public sector and support from the government can make a big difference to the ecosystem, especially on innovations that operate on inherently public sectors such as criminal justice. The government and its judicial bodies can also support innovation by creating time and space, allowing out-of-the-box thinking, and welcoming innovators to the field with an open mind.

In recent years, Kenya’s innovation ecosystem – including actors from the public and private sectors – has started to explore how justice innovation can support access to justice in Kenya. Justice innovation has not yet taken the legal system by the storm. Still relatively unknown, justice innovations have struggled to define their ideas, business models, obtain funding, and provide services at scale. Despite the challenges, there are bright spots to consider: there are examples of justice innovations that have reached stability and keep delivering daily access to justice. Many of these existing innovations stem from community-based approaches, taking a proactive, holistic, and local approach to prevention and resolution. Others are more targeted in that they are designed to address specific types of crime. Both types of innovations have the potential to support Kenya’s Alternative Justice Systems (AJS) policy. 

Below we discuss some examples of Kenyan innovations which keep supporting the realisation of good criminal justice. The examples present well-known innovations which have gained attention not only locally, but also in international research literature. To collect the examples, we made use of academic research articles, online articles, and our own database of Kenyan innovations. 

Kenyan crime innovations embrace the traditional while make use of the modern

Some crime innovations are part of a broader government shift towards more peaceful and participatory ways of preventing and resolving crime. “This move came in the wake of widespread intercommunity violence, rising crime rates, and the al-Shabaab terrorist attacks in Kenya” and has resulted in the creation of so-called “hybrid” institutions at the community level over the past two decades. These hybrid institutions are modeled on traditional modes of conflict resolution and prevention but developed and rolled out by the state. Community policing initiatives like Nyumba Kumi are intended to create “synergies between state and non-state actors, institutions, and organisations in conflict management and crime prevention” and “allow the different systems to draw strength from one another.” 

Kenya’s shift towards hybrid approaches to crime and access to justice can most recently be seen in the Alternative Justice Policy (AJS) launched by the Chief Justice of the Supreme Court, which aims to “promote robust cooperation and harmony between Alternative Justice Systems and the Court system, as well as enhance access to and expeditious delivery of justice.”

Many innovations in Kenya also make use of internet communication and mobile technology. In recent years, the capital city of Nairobi “has experienced rapid advancement in the use of mobile technology and is today considered a leading hub for ICT innovation in Africa. Open source software such as Ushahidi…have put Nairobi on the global map as a place where tech savvy youth from across Kenya, and around the world, come together to develop innovative solutions to a wide range of social, economic and security challenges.” Increasingly, internet communication and mobile technology is being used to also prevent and resolve crime. 

This approach to crime innovation has considerable potential to improve access to justice for all. Mobile phones in Kenya are increasingly internet-enabled, and mobile phone ownership in Nairobi – including the wider slum population – is “virtually universal” with “stable network coverage throughout the city.” Even in rural areas, mobile technology has proven useful and effective for improving home security, preventing livestock theft, and strengthening neighbourhood cohesion.

Below we highlight eight creative innovations that have made an impact preventing or resolving crime problems in Kenya. These examples range from community justice innovations addressing petty crime and theft to those tackling more serious and intractable crime problems such as sexual violence, bribery and extrajudicial killings.

Community justice innovations

Nyumba Kumi

Nyumba Kumi – or “ten households” in Swahili – is a crime prevention initiative that anchors community policing at the household level.

Nyumba Kumi was launched by the Kenyan government in the aftermath of the al-Shabaab terror attacks in 2013 and 2014. Together with rising crime rates across the country, the attacks highlighted the need for a new policing framework. Nyumba Kumi borrows heavily from the Tanzanian Ujamaa Policy introduced in the 1970s, and aims to increase cooperation between state and non-state actors, institutions, and organisations in conflict management and crime prevention.
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The Nyumba Kumi initiative takes the household as a starting point for surveillance of community activity and crime in particular. This means that every cluster of households – whether that is a residential court, an estate, a block of households, a gated community, or a village – has its own Nyumba Kumi community policing unit. 

Ideally, the members of a Nyumba Kumi unit include: members of the public (with balanced representation in terms of ethnicity, gender, age, and religion); a representative of the business community; a county government representative; the area assistant chief, and a representative from each government policing agency with a presence in the locality. In practice however, it is rare for a Nyumba Kumi unit to include a police officer as a member.

Because Kenyan households are often close together, Nyumba Kumi members are uniquely well-positioned to report crime, conflict, and other out-of-the-ordinary activity that they see occurring in their community to the local authorities.
Innovation
In urban areas, Nyumba Kumi has helped to prevent domestic violence, child abuse, and illicit brewing and drug sales, and in rural areas, it has helped to prevent theft and the trade of stolen livestock. A 2017 study found that 76.7 percent of participants agreed that Nyumba Kumi had an effect on curbing crime in Kenya.
Impact

Dandora Transformation League

Dandora Transformation League is a non-profit organisation that aims to bring about social change by transforming public spaces and empowering youth.

Dandora is a low income neighbourhood in eastern Nairobi. Originally created to provide housing for people working in the surrounding industrial areas, Dandora became to be known as a hotbed for crime after the collapse of a number of industries in the 1980s, which caused a spike in unemployment. It is also Kenya’s largest dumpsite. Every day, Dandora receives more than 2,000 metric tons of waste from Nairobi’s 4.5 million residents.

Facing limited employment opportunities, many young men in Dandora resorted to crime and violence to feed themselves and their families. The neighbourhood’s reputation caused residents to feel unsafe walking around and led to it being overpoliced, resulting in the extrajudicial execution of young people suspected of being criminals.

In 2014, Charles Gachanga and two of his friends created the Dandora Transformation League (DTL) to make a positive change in their community. They started by cleaning up the Mustard Seed housing courts, erecting new fences and gates, and transforming it into a space where residents could feel safe. With support from Robison Esialimba of the Awesome Foundation, they were able to replicate their work and partner with youth groups to create clean, green and safe spaces across Dandora.
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DTL is now an umbrella body for 80 registered youth groups in Dandora. By encouraging youth groups to identify income-generating activities in the spaces they reclaim and transform, it generates new job opportunities for young people. These range from regular maintenance and monitoring of the housing courts to car washing, skate rental, urban agriculture, security and commercial parking. Local residents pay for them with monthly contributions. Through its Changing Faces Competition, DTL has mobilised teams of youth all over Nairobi to compete for the best transformation of a formerly neglected public space into a safe park, garden, or playground. This is known internationally as a placemaking approach to crime prevention.
Innovation
DTL’s work has helped to lower crime rates by improving people’s sense of safety and pride in the neighbourhood. Business has increased and residents spend more time outdoors. By generating job opportunities for young people, it has created alternatives to crime and contributed to a more positive narrative about Dandora and its youth. This has led to better police accountability and reduced the number of extrajudicial killings.

As of 2016, DTL had fenced and cleaned up 139 housing courts, reduced crime levels in the areas by 70 percent, and created jobs for more than 100 young people.

Most recently, DTL has partnered with Safe Hands Kenya to set up sanitation stations at the entrance of Dandora’s housing courts to help contain the spread of the COVID-19.
Impact

Kituo Cha Sheria Legal Advice Centre

The Kituo Cha Sheria Legal Advice Centre (“KITUO") is the oldest, most experienced legal aid provider and human rights NGO in Kenya. It aims to empower the poor and marginalised and increase equity and access to justice for all.

KITUO was founded in 1973 by six young lawyers from the University of Nairobi: Willy Mutunga, David Gachukia, Steve Adere, Murtaza Jaffer, J. V. Juma, and Mary Ang’awa. In the years after Kenya achieved independence and adopted a liberal democratic Constitution, unjust colonial legal legacies, illiteracy, and lack of knowledge of the new laws made it difficult for many  indigenous Kenyans to access justice. Poor Kenyans also struggled to afford lawyers and protect their rights effectively.

At first, the six founders offered free legal advice and education from under a tree in the Ngara neighbourhood of Nairobi. Over the years, KITUO grew its funding base and partnerships and was able to establish permanent offices. These offices are strategically located to be accessible to poor and marginalised communities, including people with disabilities. They include the headquarters in Nairobi, the Mombasa regional office, the forced migration office in the Pangani suburb of Nairobi. 

Since its founding, KITUO has continued to design projects and programmes to address systemic inequality and injustice in Kenya.
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KITUO established and helps operate community justice (“sheria”) centres in nine counties across Kenya, as well as in eight prisons. Each of these centres runs its own unique activities and programs, but many deliver capacity building on self-representation, legal and human rights education, training on alternative dispute resolution (ADR), and training of community paralegals to increase access to justice.  In addition to its partnership with these centres, KITUO offers the following core programmes:

    1. Legal aid and education (LEAP): LEAP provides legal aid to poor and marginalised people in select counties and prisons, who have historically not had access to legal aid and rights protection. Specifically, it offers legal services to walk-in clients at the head and branch offices, provides mobile legal education and outreach country-wide, and helps train community paralegals to increase capacity to deliver legal aid.
    2. Advocacy, governance and community partnerships (AGCP): AGCP aims to empower poor and marginalised communities to access their legal and human rights. It does this through community outreach and mobilisation as well as lobbying, advocacy, and monitoring of pro-poor policies and legislation in Kenya.
    3. Forced migration (FMP): FMP aims to address  the legal and policy needs of refugees, asylum seekers, and stateless people living in urban areas of Kenya. It achieves this public interest litigation and detention and border monitoring. It also offers refugees, asylum seekers, and stateless people various kinds of legal aid, including representation and assistance obtaining work permits, birth and death certificates, and identity cards.
In 2016, KITUO also launched M-Haki, a mobile app that provides legal information. By sending an SMS message to the M-Haki number 0700777333, users across Kenya can receive personalised legal advice and/or referrals from dedicated KITUO advocates within 48 hours. M-Haki reduces the costs of accessing justice by making it possible to receive advice remotely.
Innovation
In recognition of its success in establishing an extensive legal aid and community justice network across Kenya and increasing access to justice for the poor and marginalised, KITUO has received numerous African and international awards over the years. In 2017, KIUTO served a total of 7,460 people through its legal aid clinics. Another 5,543 people received assistance at KITUO’s community justice centres. KITUO’s M-Haki SMS service resolved a total of 2,510 matters that same year.

In the area of crime specifically, KITUO has trained and graduated 451 paralegals in its eight prison justice centres, allowing them to provide free legal aid to other inmates who might otherwise not have access to assistance. In 2017, KITUO’s prison paralegals served a total of 981 inmates.

KITUO has scaled down its activities in response to the COVID-19 crisis, but its legal officers continue to take on all urgent and fixed court matters, participate in virtual hearings, and provide pressing information through social media and the M-Haki blog website. KITUO’s community paralegals are also providing alternative dispute resolution mechanisms to prevent and address cases of gender based violence, which are on the rise as a result of the pandemic.
Impact

Innovations addressing sexual violence and child abuse

160 Girls Project

160 Girls Project is a long-term initiative that aims to hold perpetrators accountable for the epidemic sexual violence experienced by girls in Kenya by working with the law, the police, and local communities.

In 2013, the Kenyan High Court made a historic decision finding police authorities culpable for their ongoing failure to ensure that criminals were held accountable through effective investigation and prosecution of crimes involving sexual violence and child abuse. The decision was a hard-won victory of the “160 Girls Project,” a legal effort mounted by the Canadian charity the equality effect (e²) in partnership with the Tumaini Girls’ Rescue Centre, at Ripples International in Meru, Kenya. It secured access to justice for the 160 girls that inspired the groups to adopt the case and provided legal protection from rape.

Since the 2013 decision, the equality effect and the 160 Girls Project have turned their attention to its implementation and to holding perpetrators of defilement accountable for their crimes.
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In addition to its National Implementation Project, which aims to bring about behaviour change and promote perpetrator accountability for sexual violence, the 160 Girls Project also engages in public legal education. According to the research by the equality effect (e²), community members lack information about girls’ rights and police obligations relating to rape investigation. This is a significant barrier in holding police accountable for the investigation of rape claims. Through its Kenya Public Legal Education initiative, the 160 Girls Project educates community members about the 2013 decision and related equality laws. This involves four groups of activities
    1. training community members in four pilot districts and forming Community Education Committees to spread knowledge though events involving theatre, video, song, dance, public panels, and public declarations of support through the “160 Girls + Me” campaign;
    2. the development and implementation of a “160 Girls” phone app that provides step-by-step advice to victims and their guardians about how a defilement investigation should be carried out according to Kenyan law;
    3. the development and implementation of a “Girls for Justice” peer-led training initiative to educate girls and boys about their rights to equality and right protection from sexual violence - these trainingsare led by young survivors themselves and involve role playing, case studies, song, dance, sports, art, and theatre;
    4. the development and circulation of “160 Girls” public awareness campaign materials including billboards, TV ads and programs, radio programs, social media, and short videos that can be shared online.
The goal of the Public Legal Education initiative is to empower them to engage with the police and demand that the standards of police performance and perpetrator accountability established in the Court’s decision are met.
Innovation
In 2018, the 160 Girls Project started Justice Clubs at schools in four pilot districts. They have since empowered more than 25,000 girls and boys to stand up and speak out against sexual violence through this initiative. When asked about their experience with peer-to-peer legal education, all 180 Justice Club leaders reported that they felt positively about their role. Forty percent of the Justice Club leaders had at least one defilement case reported to them in the academic year and all reported that they knew how to respond. Ninety eight percent of the Justice Club leaders also changed their attitude about working with the police from negative to positive.

Since 2014, the 160 Girls Project has also successfully piloted its Police Defilement Investigation Scale Up initiative in four out of Kenya’s 27 counties. To take this human rights-based rape investigation further, the project has implemented a train-the-trainer model in which 586 middle managers will eventually be trained to train their juniors how to properly investigate claims of defilement. This implementation plan is regularly evaluated in partnership with Kenya’s National Police Service. After three years, the defilement investigation training will be integrated into the curriculum of police colleges and taken over by the National Police Service.
Impact

Innovations addressing bribery and corruption

Mulika Kenya

Mulika Kenya is a community-based crime monitoring and reporting system aimed at promoting and facilitating citizen participation in national security. It does this through Mulika Hongo, a technology platform that allows citizens to anonymously report crime, bribery and corruption by any government official.

“Mulika” means to shine a light on or to highlight in Swahili. Grace Wanjohi launched Mulika Kenya in partnership with the Nakuru County Security Team in 2015, with the goal of contributing to a corruption-free society.
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Through the SMS code 988 or the Mulika app, any individual can anonymously submit information about an incident of crime, bribery, corruption or other misconduct they witnessed or experienced personally. These texts and any accompanying media are automatically forwarded (without the sender’s phone number) to a cross-agency team of security chiefs in the relevant county. These security personnel are expected to act on the texts they receive through the Mulika app in a coordinated manner.

If the report is too large to send via text, it is also possible to submit it using Mulika Kenya’s online portal.
Innovation
Known for its rampant corruption, Nakuru County became the first country to launch Mulika Kenya in 2015. Nakuru County Commissioner Joshua Nkanatha praised the Mulika platform, saying it had “provided a medium through which the public can report incidences of corruption safely and anonymously” given that many fear discrimination for “snitching.” 

Mulika Kenya has since connected security teams in seven counties.
Impact

Innovations addressing political violence and enforced disappearances

Ushahidi

Ushahidi, which means “testimony” in Swahili, is a crowdsourcing online mapping system created to document incidents of violence and help improve the bottom-up flow of information in civil society.

Ushahidi was developed to map reports of violence in Kenya following the post-election violence in 2008. Convinced that the number of deaths was being grossly underreported by the government, the police, and the media, Ushahidi’s founders set out to create a technology to record the truth of what was happening and ultimately facilitate reconciliation. Since then, Ushahidi’s open source tools have enabled marginalised people who would not normally be given a platform to make their voice heard.
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Ushahidi’s open source platform collects, manages, and visualises data. This data can be submitted by anyone at any time and from any place, giving actors who are in a position to help the real-time information they need to understand the situation and respond effectively.

In the aftermath of the 2008 election, this allowed Kenyans to text or email reports of violence from their mobile phones and form an online map of witness reports that “together compiled a more complete picture of the violence than any one organisation.” An analysis by Harvard’s Kennedy School of Government confirmed that the data collected by Ushahidi in 2008 was superior to that reported by Kenya’s mainstream media, and found that it was more effective at reporting non-fatal violence and information from rural areas.

Since its founding, Ushahidi has been used for a broad range of purposes including election monitoring, crisis response, human rights reporting, wildlife tracking, citizen journalism, and public service delivery.
Innovation
The open source nature of Ushahidi’s platform has allowed a number of other organisations to use it. Ushahidi maps were also used to locate survivors of the 2010 earthquake in Haiti, to track the impact of the 2010 Deepwater Horizon oil spill on neighbouring communities, to provide information about the 2010 earthquake in Japan, to count votes in the 2012 US election, and to identify irregularities in the 2019 Nigerian election. Most recently, Ushahidi has helped match those affected by Nepal’s 2015 earthquake to relief efforts and document atrocities in the Syrian conflict

In total, Ushahidi has been used more than 150,000 times across 160 countries, and has crowdsourced more than 50 million reports from people around the world.
Impact

Sisi Ni Amani Kenya (SNA-K)

Sisi Ni Amani Kenya (SNA-K) – which means “We Are Peace” in Kiswahili – is an NGO that uses a combination of traditional and innovative approaches to communication and dialogue to provide civic education and prevent violence in Kenyan communities.

Inspired by the work of Ushahidi to map instances of violence, American undergraduate student Rachel Brown created SNA-K in 2011 to raise awareness about more positive developments in Kenya and promote peace.

In the aftermath of the 2008 elections, mobile phones and SMS messages in particular were used to spread rumors and organise attacks. After conducting a conflict dynamics analysis with local peace leaders in Nairobi’s Eastlands, Brown realised SNA-K could use the same technology to increase local leaders’ effectiveness and make the population less vulnerable to misinformation and rumours inciting violence.

In preparation for the 2013 elections, SNA-K developed partnerships with over fifty local organisations as well as Kenya’s largest mobile network operator, which helped SNA-K create a free mobile subscription service. It recruited and trained many of these partners to conduct community-based subscription outreach in target locations. By March 2013, SNA-K had built an SMS platform with over 65,000 subscribers in more than 20 locations. 
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Throughout the 2013 election cycle, SNA-K subscribers received voter education, peace promotion, and violence prevention messages via SMS. These messages “provided information on how community members could participate in the election process, encouraged positive behavior, and responded to tensions and small-scale violence that occurred in local communities.”

SNA-K identified a number of scenarios in which their messages could be most useful, including cattle theft, rumors of a stolen election, and rumors of an impending attack on the community. For each scenario, SNA-K worked with focus groups in their target communities to co-create customised messages. These messages were further improved with the help of marketing strategist Ogilvy & Mather and ultimately disseminated at strategic points in time to interrupt destructive behaviour in the target communities. 

When exactly the messages were sent depended on a number of factors including: “when the rumor was started, how far it has spread through the community, whether groups were already reacting to the rumor, who was involved, whether there was discussion of arming or violence, and when/if actual violence broke out.

These factors were assessed by a field team of eight full-time SNA-K staff and ten volunteers, who were responsible for monitoring tensions on the ground and gathering information from partners in the weeks leading up to the 2013 elections and throughout the election process.
Innovation
Following the 2013 elections in Kenya, the SNA-K team surveyed its subscribers to evaluate the usefulness of the messages they sent out. 7,347 subscribers completed Phase 1 of the survey - a free SMS-based questionnaire - and 282 different subscribers completed Phase 2, a telephone survey. In their responses, “subscribers indicated that SNA-K messages helped to provide critical election-related information, promote peace, and even helped to prevent acts of violence. For some, SNA-K was the sole source of voter information, and for others it was the only actor encouraging communities to ignore rumors and remain calm.” Ninety-eight percent of SMS survey respondents indicated that they would tell a friend to subscribe to SNA-K.
Impact

Missing Voices

Missing Voices is a group of organisations whose mission is to end enforced disappearances and extrajudicial executions in Kenya. An extrajudicial execution is a violation of international law and can be defined as a killing by governmental authorities without the authorisation of any judicial proceeding or legal process.

The Police Reforms Working Group Kenya (PRWG-K) created the Missing Voices website in response to the denial or dismissal of the existence of government policy on enforced disappearances and extrajudicial killings, and the lack of an existing official database of these crimes. 

The majority of extrajudicial killings in Kenya are “preceded by enforced disappearance, which significantly increases whenever security agencies are engaged in eliminating suspected organised criminal groups.” Security agencies - including the police, the army, and the paramilitary police - “have also been implicated in the enforced disappearances and extrajudicial executions during counter-terrorism operations.”
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Missing Voices aims to fill the gap in evidence on enforced disappearances and extrajudicial killings in Kenya by bringing victims’ testimony together with quantitative data. The majority of these data was collected from published reports by human rights organisations in Kenya from 2007 to present. Missing Voices verifies these data based on set definitions and standardised criterion and makes them publicly available online. The Missing Voices website serves four key functions:

    1. To provide a one stop clearing platform on all issues of extrajudicial killings and enforced disappearances;
    2. To receive live reports of extrajudicial killings and enforced disappearances, which PRWG-K follows up on and seeks to verify;
    3. To promote accountability by sharing reports with oversight authorities and organisations in the working group with the capacity to pursue evidence-based reports in courts
    4. To be a resource and advocacy tool for those interested in learning more by offering stories of individual cases, a trial tracker, and datasets and reports.
Innovation
The stories and data collected by Missing Voices has helped to shed light on enforced disappearances and extrajudicial killings in Kenya. The organisation has so far identified 727 people who have been killed by the police or reported missing since 2007. Fifty-nine percent of these people were shot, and battering and tear gas account for most other deaths. Only 26 people have been charged with a crime in connection to these cases. Young men account for the majority of those who have been killed or forcibly disappeared. Forty-two percent of the victims were killed as part of anti-crime operations, and Nairobi county is where the vast majority of enforced disappearances and extrajudicial killings in Kenya occur.
Impact

The examples above provide outlooks to what innovation can do at its best. Justice innovation does not come only in one type of a package, but stems from an out-of-the-box idea, enthusiastic entrepreneurial mindset, and willingness to improve people’s lives. As we can see from the baseline, the justice innovation market is far from being saturated. However, recognising a viable opportunity is not always easy. Next, we will discuss where the current opportunities for innovations lie, as recognised by the justice providers from informal and formal justice systems.

The baseline: People need improved resolutions

The baseline:
People need improved resolutions

Photo: © lspencer / Depositphotos.com

Crime and Justice Innovation in Kenya / The baseline: People need improved resolutions

Crime is the most common legal problem in Kenya.

In 2017, 13% of all adult Kenyans reported encountering crime in their daily life during the past four years. 

Out of the 13% of people who encountered crime, 42% reported that the most serious problem they encountered was related to theft. Approximately one in five had stated their most serious crime encounter related to violence, and a little over one in ten to cattle raiding.

Theft affects people especially in urban areas. In rural areas, people experience cattle rusting alongside theft. Women are more likely (28%) than men (18%) to say their most serious crime encounter was related to violence.

Click on the charts below to explore criminal justice data based on different demographic selections!

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Crime affects:

Photo: © Ian Battaglia / Unsplash

Reflections from justice providers: What crimes do you encounter in your work?

Kenyan justice providers from both formal and informal systems shared what kind of crimes they most often encounter in their work. Similar to those surveyed in the JNS, justice providers identified theft as a common crime problem. They attributed property crime to social and economic difficulties: weak economy, poverty, and unemployment were all mentioned as causes of theft and burglary, especially among young people. These factors could contribute to violent crime as well, for example when a person struggling to make a living resorts to violent robbery. Other reasons for crime include mental illness, which is not always well understood or handled at the community level.

Justice providers mentioned crime within the family as another type of crime that is common in their communities. In the JNS crime data described above, domestic violence is underrepresented as it is classified as a family problem. However, justice providers reported frequently seeing domestic abuse cases. Another crime issue within the family they spoke about was defilement (the legal term in Kenya for child rape). As the JNS data includes only crimes with an adult victim, defilement is not represented in the numbers above. Justice providers explained that too often, defilement goes unreported or is swept under the rug.

Justice providers also identified illicit brewing and prostution as common crime problems in their communities. They noted that the global COVID-19 pandemic has resulted in a surge in petty crime after many low-level criminal offenders were released from prisons to avoid overcrowding. Additionally, some justice providers reported that criminals have been taking advantage of the declining cost of living and bought properties out of which they can engage in criminal activities.

Encountering crime causes stress and affects overall well-being

In comparison to other legal problems, crime affects people’s lives heavily. Over half of those (57%) who encountered crime say that crime affected their overall well-being to a very large extent (compared to 45% with other legal problems). Violent crime in particular has a big impact: 96% of people who encounter violent crime say that it had a very big or big impact in their lives. For theft, 83% of people report the same.

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Consequences of experiencing crime are primarily related to personal health. Extreme stress or mental health problems, and personal injuries are common consequences. Violence and physical health problems are also more commonly experienced after experiencing crime than other legal problems. Women experience extreme stress as a result of crime more often than men. Loss of income is a slightly more common consequence of crime for rural inhabitants, than for urbanites.

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Three in four seek advice to resolve the situation

After experiencing a legal problem, many people seek advice on what to do. Three in four Kenyans seek advice after experiencing crime – in other words, one in four do not seek or receive any advice. People who receive advice are more likely to also seek and receive a resolution to their crime problem. Of those who do not receive advice, 37% abandon their case (26% for those who received advice). Ensuring available, appropriate and easy-to-digest advice can increase chances of people receiving a resolution to their crime problem.

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67% of people seek advice from informal justice providers and social networks – the most popular sources of advice are friends, family, and neighbours. 68% look for information from professional sources, such as the police, chief and court of law. Kenyans in rural areas look for advice more often from personal networks such as family, friends, and neighbours.

When asked who gave the most helpful advice, 37% replied the police. The second most helpful advisors were chiefs, followed by family and friends. This indicates that helpful legal advice can take multiple forms: while procedural knowledge helps in taking the case forward, people also value advice that helps with communication, adjusts behaviour, and provides reassurance.

For those who did not seek any advice, the most common reason was the belief that nothing could be done to solve the problem.

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In addition to asking advice from others, people seek legal knowledge from publicly available sources. However, they are not popular. Only 14% of people who experienced crime indicated that they sought information from public sources, such as the internet. This reflects the internet penetration rate in Kenya, which according to the World Bank was 22,5% in 2019.

Helpful legal advice can take multiple forms: procedural knowledge, advice that helps with communication, adjusts behaviour, and provides reassurance.

Crime often remains unresolved

Approximately one in four people who encounter crime are able to solve the problem completely. The rest either resolve the problem partially, are waiting for a resolution, or were not able to solve the problem at all. Up to 44% people say that they were not able to resolve the crime problem they encountered and are not taking further action to do so.  In comparison to men, women are less likely to resolve the crime problem.

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46 days, 12 813 shillings

is what people, on average, spend to solve their crime problem

One of the reasons for not resolving problems is simply not taking any legal action. One in four (25%) Kenyans who encounter crime do not take any steps to resolve the problem. Sometimes people say that the problem was not simply serious enough to seek resolution, but more commonly the reasons relate to lack of knowledge about procedures.

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When people do take action, they have a choice to make: How to proceed from here?

Some try to solve the problem themselves, while others engage a third party to help address the situation. For crime, the most common third party to engage is a formal justice provider – namely, the police. People also see the police as the most helpful (36% of respondents), followed by chiefs (16% of the respondents).

Click the buttons in the chart to explore which self-actions, social network (including informal justice providers) avenues, and formal justice providers people use and how satisfied they are with them.

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However, people who seek out third party justice providers to resolve their crime problems often face obstacles along the way. This is true in both formal and informal justice systems.  Neither is able to provide resolutions that in 100% of the cases ensure that the problem is resolved and the solution enforced.

Click the buttons in the chart to explore how people evaluate resolutions achieved via self-actions, social network (including informal justice providers) and formal justice.

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Reflections from justice providers: What are the barriers to reaching resolution in the formal justice system?

The justice providers interviewed shared the following reflections on the barriers people face when seeking resolution in the formal criminal justice system.

A key barrier identified by justice providers is that the individuals who report a crime to the police do not always receive an effective response. Police vehicles are shared across agencies, meaning officers sometimes lack the transportation they need to travel to the scene of a crime and make an arrest. Additionally, they do not always have the necessary training to carry out a proper investigation. This is particularly true for crimes against children, such as defilement, and cyber crime cases, which require technological skills to address.

As in any public service, corruption poses a risk in the formal justice system. Justice providers mentioned that chiefs, village elders, members of the community police and individuals in the community who report crime also risk being counter-reported by the person they accuse, who may attempt to use bribes to influence the justice process in their favor. 

While the case backlog in Kenya has reduced in recent years, the justice providers worried that the resolution of crime problems has not yet reached a desirable pace. They expressed their worries that formal adjudication is frequently delayed by procedural inefficiencies resulting from adversarial procedures, excessive trial length, arbitrary or inconsistent sentencing practices, and a case backlog in the courts. Witness cooperation is low due to the costs of traveling to court, procedural delays on the part of the accused, and a lack of faith in the prosecutor’s office to deliver justice. The trial process could improve in supporting the parties to engage with one another and express their needs. According to the interviewees, victim-offender mediation provides an opportunity for dialogue and meaningful resolution between parties. This has been recently more explored in the criminal justice system, when applicable to the situation at hand.

As outlined in the AJS policy and agreed by the justice providers, the formal justice system is not fully well-equipped to provide restitution: many victims of crime have a need for economic restitution. Because criminal fines are paid exclusively to the state, victims of crime rarely receive financial reparation for the harm they have suffered. Victims who file a civil case after the resolution of their criminal matter may be awarded damages, but the costs of hiring a lawyer prevent most victims from trying. Alongside financial compensation, the victims might need other types of reparation as well in order to move on. The need for non-financial reparation, such as counselling, is particularly great among victims who have been traumatised by the crime they experienced.

Nearly all the justice providers interviewed highlighted the ways in which excessive incarceration rates burden the society and fail to prevent reoffending. Incarceration is costly and can contribute to poverty in Kenya by removing breadwinners from families. Putting people in prison for petty offenses also tends to produce more hardened and sophisticated criminals. Incarceration typically does not address the problem underlying the criminal behavior, whether that be drug addiction or a civil dispute. Prison is a particularly ineffective punishment for white collar criminals and people who commit cybercrime, many of whom continue to commit cyber crime while in prison: Many phone numbers associated with fraudulent text messages are traced to prisons. While incarceration is an essential part of criminal sanctions, the justice providers saw opportunities for improvement through alternative punishments and improved incarceration. Many who are released from prison are excluded from communities and lack the skills they need to start down a better path. This makes re-entry difficult and does not help victims to feel safer. In the words of a chief: “discipline ought to be remedial rather than punitive”. Non-custodial sentences such as community service do exist in Kenya and are used as a way of decongesting the overcrowded prison system but they are not well defined and can vary in quality. Non-custodial sentences and fines are also disproportionately granted to wealthy offenders responsible for white collar crime and corruption, while poor offenders responsible for livestock theft are more likely to end up in prison.

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Reflections from justice providers: What are the barriers to reaching resolutions in the informal justice system?

Kenyans who do not wish to interact with the formal criminal justice system may also seek resolution for their crime problem through informal mechanisms, namely arbitration or mediation by a chief or village elder. 

According to the justice providers interviewed, community arbitration is similar to victim-offender mediation in that both victim and offender are given an opportunity to speak. Other participants are then asked to weigh in with ideas to address the underlying issue or encourage the parties to generate ideas themselves. The chief helps to trigger the brainstorming of possible solutions by informing parties of the law and making them aware of the difficulties they might face if they do not reach a resolution. The chief urges the responsible party to apologise and – if physical damage has been done – to estimate the costs of the damage and repay them. 

In order to arbitrate crime problems effectively, the chief must win the trust of the parties and be sensitive to their gender, tribal identity, education level, age, and communication abilities so he can adapt his communication style accordingly. Decisions and agreements resulting from arbitration at a chief’s office are typically written down and respected by the courts. When an offender is arrogant rather than remorseful about the harm they caused, the chief escalates the matter to the police for resolution in the formal system.

According to the formal and informal justice providers interviewed, resolutions by chiefs and village elders are effective at promoting peaceful co-existence in the community. However, there are some obstacles that make this kind of community-based resolution difficult and provide an opportunity for improvement.

According to the interviewees, chiefs in some areas are overwhelmed by the number of cases brought to them and lack the capacity to resolve them in a reasonable period of time. There is a lack of the specialised knowledge needed to identify when a mental health issue is an underlying cause of crime, or to effectively respond to crimes committed within the family. As a result, defilement and domestic violence cases are often mishandled in the informal justice system. 

As one of the interviewees expertising in solving gender-based violence pointed out, “there is a thin line between resolving cases informally and sweeping them under the carpet.” Particularly in rural areas, this begins with individuals who may feel reluctant to report serious crimes committed within families due to the cultural taboos and the shame it would bring to the broader community. The local administration and police also sometimes refuse to cooperate in arrests because they are a family member and they want the matter to be resolved informally. Members of the community police (Nyumba Kumi) who report such crimes are sometimes harassed or even beaten for “meddling in matters they are not privy to.” 

This can get in the way of criminal investigation and have significant consequences for victims. Domestic violence cases that are brought to the chief are often responded to with an explanation to the offender that their behavior is criminal and a warning that they could be arrested if they do it again. Defilement cases are also arbitrated informally, despite widespread acknowledgement that violent and sexual crimes should be addressed in the formal system. A mother who reports defilement may be arrested for incriminating her husband or be expected to forgive him, and the child may merely be compensated rather than being relocated or receiving psychological support.

Like in the formal justice system, crime victims who participate in informal justice processes rarely receive appropriate restitution for the harm they experienced. In certain communities, the appropriate form of restitution for harm caused is already well-established and understood (for example, a certain number of cows or goats). In communities where it is not well-established however, the parties themselves typically negotiate the right amount of restitution. Pressure from parties on both sides to resolve the case can result in an amount of compensation being awarded to the victim that is not proportional to the suffering they endured. Informal justice actors facilitating such processes may also lack the know-how to determine an appropriate amount. 

Restorative actions – such as the offender offering to rebuild property they damaged – are possible within informal justice processes, but sometimes risk becoming excessive and extortionary. As one interviewed lawyer pointed out: “Restitution should not enrich the victim or bring injustice to the offending party,” as this creates more problems than it solves.

Despite these limitations, justice providers agree that problems that can be resolved neutrally, effectively, and satisfactorily should be dealt with outside of the formal justice system.  Alternative justice mechanisms such as arbitration, victim-offender mediation, and youth diversion are provided for in Kenyan law but not used to their fullest potential. Although the public tends to associate justice with prison sentences, the many inconveniences of the formal system means that there is a strong affinity for informal justice processes in criminal matters. Justice providers note that legal procedures should be made more flexible to accommodate this preference. Excessive supervision by the formal system also limits the capacity of chiefs and village elders to respond to crime problems by bureaucratisation and formalising their resolution processes.

From the JNS and interview data we can see that there is room for improvement in criminal justice. People do not report crime due to lack of belief that anything can be done. When they do, not everyone gets a solution. The data indicates that improving justice journeys from beginning to end can provide better access to justice. Next, we will explore innovative approaches to tackling different kinds of crime problems in Kenya.

Crime and Justice Innovation in Kenya

Crime and Justice Innovation
in Kenya

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Innovation is

Executive summary

This report aims to investigate the potential of using innovative services for the improvement of criminal justice in Kenya. While the booming Kenyan innovation scene, the “Silicon Savannah”, is gaining global attention, it remains as a question for exploration how innovation could support the justice system which traditionally is understood as a public service. 

In this report we approach this exploration through mixing research methods: first we introduce the baseline for crime in Kenya, as reported by the Kenyan citizens. Second we showcase how innovation already responds to some of the challenges faced by Kenyan people. Then, with the help of interviews with Kenyan criminal justice experts, we explore suggestions on what could be done next

In the conclusion, we discuss what elements are common to successful innovations and what challenges in the criminal justice system could benefit from innovation.

The baseline shows that people need improved criminal justice responses. Crime is the most common justice problem in Kenya, yet up to 44% of Kenyans say that they were not able to resolve the crime problem they encountered. One way to improve the situation could be looking at the criminal justice system with an out-of-the-box mindset: Where are the opportunities for improvement through innovation?

Some existing innovations in Kenya already support the criminal justice system; some on a smaller scale, some on a larger scale, but all by delivering solutions where they are needed. Many of them are based on community justice models or utilising technology in a new way. In our interviews, Kenyan justice providers recognised ten points in the criminal justice system where they would like new approaches to be explored:

So, how to explore these issues from an inventive and solution-oriented standpoint? To build evidence-based interventions, it is useful to look at the current state of affairs (the baseline), the current challenges that need attention, and what makes a “good innovation”. There is not one simple solution to this. Innovating is hard work. Some innovations even fail. Yet, some succeed to scale and become remarkable in changing how people access justice. This report does not aim to give a simple answer the complicated question of incorporating innovation to the Kenyan criminal justice system, however we hope that we can help innovative mindsets to move one step further in the process of examining the current system critically, seeing what others are doing, getting excited, and opening up the drafting board. 

Introduction

In recent years, Kenya’s innovation ecosystem has become known as the “Silicon Savannah” due to its booming creativity and high investment potential. It all started in 2007 when a mobile payment innovation called M-Pesa was launched. M-Pesa truly changed the innovation game in Kenya, showcasing the potential within the Silicon Savannah. At the moment, M-Pesa is used by over two-thirds of the Kenyan adult population. M-Pesa not only created a unique, successful business model, but also continues to provide banking services for the most marginalised parts of the population. This is what social innovation has to offer: scalable services that support social cohesion and equal access to services.

Many of the Kenyan innovations have focused on fintech and sustainability. However, there is another category of potential game changers that have stayed under the public radar: justice innovations. Justice innovation has the potential to disrupt the legal industry by not only providing services that are affordable and accessible, but also by making them more innovative and user-friendly. 

According to HiiL data, over one million Kenyans experience a crime problem annually. Many of these problems remain unresolved. Often people do not take any action to solve their crime problem, and when they do, the outcomes of resolution processes are unclear. Could justice innovation provide solutions to this unsustainable crime situation? What are the gaps in Kenyan criminal justice that innovation can bridge?

In 2020, the Kenyan Judiciary published their Alternative Justice System (AJS) policy. The AJS policy aims to bring traditional methods of dispute resolution into the mainstream and promote more affordable, participatory, and inclusive justice processes. Justice innovation has similar goals. While many innovation models make use of modern technology, a number are also focused on improved prevention and resolution of crime using traditional, community-based approaches. Can justice innovation support the realisation of the AJS policy, and if so, how?

In this report we explore the questions above. We start from analysing the baseline: what crimes problems Kenyans encounter, what they do to resolve them, and the quality of those resolutions. We then provide examples of Kenyan innovations that already deliver resolutions to crime problems. Part three introduces opportunities for innovation based on interviews with formal and informal criminal justice providers in Kenya. The final section brings these findings together and explores the most promising avenues for criminal justice innovation in Kenya.

Mixing methods

In this report, we bring together information from various sources to create a nuanced picture of crime innovation in Kenya. This combination includes quantitative nationwide data on people’s justice needs, a literature review on crime innovations in Kenya, and interviews with criminal justice providers.