Dispatch From Kenya: Justice Delayed

Imagine waiting ten years in prison before ever having the opportunity to appear before a judge and enter a plea of innocence. For some poor in the overcrowded Kenyan prisons, this is not an unlikely scenario. Because of this long wait, some innocent defendants quite literally choose to plead guilty rather than await a trial to prove their innocence. By pleading guilty, they will serve less time for a crime they did not commit than it would take to wait for a trial to establish their innocence. Gives new meaning to the maxim justice delayed is justice denied.

I have just returned from visiting the courts of Kenya in Nairobi in conjunction with my training program with IJM Office in Kenya. During my time with IJM, I was briefed on cases in which it took years for criminal defendants to receive basic judicial process.

For example, in one disturbing case the defendant was framed by a corrupt policeman. The officer demanded a bribe that the defendant could not pay, so in retaliation the officer falsely accused the defendant of robbery. To make his case, the officer went so far as to shoot the defendant in his arm and then justified the shooting by falsely claiming that the defendant was trying to flee from the scene of the crime. The defendant’s arm had to be amputated, and the amputation procedure took place at precisely the same time the officer claimed the defendant was robbing the store. The defendant’s airtight alibi made the case ripe for dismissal, but it took over two years to schedule the hearing in which the charges were dropped. During the entire time, the defendant languished in prison. Not only did the defendant lose his arm, he lost two years of his life waiting in jail for a hearing.

Trial courts are not the only place where justice is delayed. Kenyan Appellate Courts are experiencing problems meting out expeditious justice because of issues arising from preserving the trial record. In the Kenyan magistrate courts, where many criminal cases are tried, the magistrate judge serves not only as judge and fact-finder, but also court reporter. I sat in one trial where the magistrate judge was ruling on objections and handling the court matters, all the while furiously taking handwritten notes that would later become the “official record” of the case. One Kenyan lawyer explained to me that he was working on an appeal that was indefinitely postponed because the Appellate Court Judge could not read the official record of the case. The handwriting of the magistrate judge was simply too sloppy to read. No record, no appeal.

IJM attorneys in Kenya are trying to address these issues, but human rights advocates elsewhere could and should help address such problems as well. Simply facilitating the funding of lower courts to tape record criminal trials is one small but significant way to ensure the preservation of court records, and the pursuit of due process.