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Remarks by Commissioner Shatikha Chivusia during the commemoration of International Prisoners Justice Day on 10th August 2018 at Kamiti Maximum Prison, Nairobi

Commissioner Shatikha Chivusia -International Prisoners Justice Day at Kamiti Maximum Prison

The Permanent Secretary, Directorate of Correctional Services Ministry of Interior and National Coordination;

The Commissioner General of Prisons;

Representatives for the European Union;

Civil Society partners;

All Protocols Observed

Ladies and Gentlemen, Good Morning.

It gives me great honor and pleasure, to join you in commemorating the 2018 Prisoners Justice Day, which is a day set aside to ensure that countries continually endeavor to enhance better standards in prisons and places of detention and ensure these facilities are able to offer adequate and efficient correctional services.

As you all know, the KNCHR is a Constitutional body mandated to monitor the protection and promotion of human rights in Kenya. One of the key principles of human rights is indivisibility which ensures that all persons, free or in prisons as attested today enjoy human rights. Thus the Commission continues to place the work of prisons and places of detention at the heart of our work with a view of assessing and inspecting the conditions under which the inmates are held and make recommendations thereon. This is in line with the prison reforms agenda within which we work closely with the Prison Authorities and other stakeholders in the sector. As late as last week, I led a visit to Mombasa for the Commission staff charged with work that falls under the criminal justice system in order to monitor prisons and other detention centers in the County.

Ladies and Gentlemen, Such inspections are conducted to ensure compliance to various national (The Constitution, Prevention of Torture Act 2017, Persons Deprived of Liberty Act, 2014) and international (The Standard Minimum Rules for the Treatment of Prisoners, The Guidelines on the Conditions of Arrest, Police Custody and pre-trial Detention in Africa, United Nations Rules for the Protection of Juveniles Deprived of their Liberty) among others. After our findings, the KNCHR makes recommendations to the heads of the institutions, the Kenya Prisons headquarters and to the Ministry of Interior and Coordination of National Government for implementation.

An example of KNCHR continuous work on prison reforms is our report dubbed “Beyond the Open Door Policy” published in 2006 which examined the status of penal reforms under the following themes; leadership of penal reforms, philosophy of penal reforms, financing of penal reforms and reforms in the administration of justice sector.

Ladies and Gentlemen, within the last three years, the Commission and partners within the larger Prisons Reform Working Group, have been involved in reviewing Cap 90 and Cap 92 of the Laws of Kenya in order to ensure that prisons systems are managed in a fair and humane manner.  The Prisons Act and the Borstal Institutions Acts in their current state fall short on a number of international principles for the treatment of prisoners specifically pertaining to social re-integration, healthcare, prisoners with special needs such as elderly prisoners, mentally ill prisoners, women with children and prisoners with disabilities and alternative measures and sanctions such as community service and restorative justice. We are happy to note that the Act is currently under review before being tabled at the bicameral houses of Senate and National Assembly.

Ladies and Gentlemen, on access to healthcare, studies show that the rates of communicable diseases in prison are much higher than in the free society due to poor living conditions and overcrowding. In 2017, KNCHR undertook a monitoring exercise in 75 prisons to evaluate the adequacy of the Kenya Prisons Service (KPS) medical services and the effectiveness of its medical service’s quality assurance program. This was against a backdrop of the nationwide doctors strike vis-à-vis the vulnerable position that inmates already find themselves. During the survey, it was noted that in most correctional facilities, only basic care is provided. Inmates who require more intensive care or suffer from chronic conditions are either treated at various Government health centers or specific private hospitals if need be. Being within its mandate, KPS’ Directorate of Medical services, is therefore accountable in providing health care services to approximately 58,000 inmates housed in 118 correctional facilities across Kenya.

Ladies and Gentlemen, with regards to review of the Presidential pleasure sentence the Commission conducted a survey and presented its findings that indicated a trend of indefinite and excessively long sentences of inmates under this sentence. The officers in charge of the various prisons that were visited stated that the prisoners were received directly from court with a committal warrant for the pleasure of the President sentence which is framed as an order to the officer in charge to receive the prisoner and have him/her within his/her facility until any orders to the contrary are issued. We recommend that there should be a committee or any other intermediary that intervenes once the trial court has passed its’ sentence.

The survey further highlighted the frustration faced by the inmates serving under the Presidential pleasure sentencing who feel they are a forgotten lot. Once sentenced, such inmates are not liable to appeal the sentence under any circumstance and would thus be within the detention facility for an indefinite period which causes a lot of mental torture on inmates.

Ladies and Gentlemen, the Freedoms and rights entrenched in the Constitution of Kenya under Article 25, 29, 43, cannot be derogated. Inmates serving the Presidential pleasure sentences in Kenya experience violations of a number of human rights which include; the right to be free from torture and cruel inhuman or degrading treatment or punishment (Article 25), the right not to subjected to torture in any manner, whether physical or psychological (Article 29) and the right to the highest attainable standard of health (Article 43). KNCHR engaged the office of the Attorney General and a consultative committee is in the pipeline to address the various concerns raised by the Commission with regards to the Presidential pleasure sentence.

Capital punishment in Kenya commonly known as the Death Penalty remains a subject that has elicited a lot of debate on the approach that the country should take; either towards its abolition or retention. Whereas as a country there is a moratorium on the sentence, courts still continue issuing this sentence leading to over congestion in the prisons.  Most convictions are done without conclusive evidence and statistics indicate that over 85% of such cases where the accused person has been accorded a pro-bono lawyer by the court amount to convictions while the reverse is true for accused persons who engage the services of private lawyers. This huge disparity is a clear indication that the justice system is not without flaws and therefore the risk of executing innocent people is quite high. The Power of Mercy Advisory Committee (POMAC) together with KNCHR have been engaging members of the public in the debate on capital punishment and their recommendations, with a view of advising the President on the next step for the country.

Ladies and Gentlemen, on Decriminalization and reclassification of Petty offences, KNCHR, working with both the State and non-state actors continue to undertake a holistic assessment of the criminal justice system and advise the State on the reforms needed to decriminalize petty offences in line with international and regional human rights provisions.  It is against this backdrop that the KNCHR is engaged in a campaign to review the county by-laws and other pieces of legislation which criminalize petty offences and instead find alternative punishment such as utilization of Community Service Orders. With the new mandate placed on KNCHR under the Prevention of Torture Act (POTA) 2017, KNCHR will continue work towards ensuring that sentences passed to offenders do not subject them Torture.

Ladies and Gentlemen, We continue to encourage dialogue on the Luanda Guidelines in order to improve the conditions of pre-trial detention in Kenya.

In conclusion, for there to be an effective realization of prison reforms, collaboration between public institutions, actors and stakeholders from civil society is fundamental. More importantly is the participation of citizens in the prisons reforms journey since it is the issues that affect them that lead to imprisonment of its members when they fail to abide by the law.

Asanteni Sana!

Commissioner Shatikha Chivusia

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