Justice providers reflect:
Challenges for improvement

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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: 

Justice Dashboard

Justice Dashboard