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The baseline:
People need improved resolutions

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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.

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Crime affects:

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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).

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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.

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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.