Pre-trial Detention and Legal
Assistance
PETER KIAMA
EXECUTIVE DIRECTOR
INDEPENDENT MEDICO LEGAL UNIT (IMLU)
22ND AUGUST 2012
IMLU
VISION:
A just world free from torture
MISSION :
To promote and safeguard the rights of all against torture
by holding the state accountable
CORE VALUES:
INTEGRITY, COURAGE,COMPASSION, EMPOWERMENT
STRATEGIES
• Supporting Reforms
• Effective Rehabilitation/Service Delivery
• Promoting Sustainability
• Development of Knowledge Based
Interventions
• Strengthening Internal Capacity
Our Approach
• Training professionals on detecting, reporting, and preventing torture. -Over
150 doctors trained on forensic medical documentation across the country
since 2004; 15 counsellors, over 30lawyers
• Advocating for national legal aid programs that guarantee access to a lawyer
for all detainees including prior to interrogation.
• Strengthening coordination and collaboration among criminal justice
agencies-CUCs, paralegals;
• Increasing the availability of independent health practitioners for those in
pretrial detention-Prisons Health Strategy and Policy
• Thematic and national research to identify trends and patterns-e.g. mental
• Forensic Medical Documentation
• Legal Assistance
What is Pre-Trial Detention?
Pretrial detention is defined as any form of
custody or confinement by law enforcement,
from the time of arrest through police
custody, during transfers, before and after
judicial review of the decision to detain, and
until a person has been formally tried by a
court and convicted, or acquitted and released
OSI , 2011
Global Picture
• Worldwide, some 3 million people are in pretrial detention at any given
time.
• Nearly 10 million people in Pre-trial detention globally
• 1 out of every 3 detainees is awaiting trial and has not been
found guilty of a crime.
• In many countries, half of the detainees in the criminal justice
system are awaiting trial; in some countries the proportion is
over 80 percent;
• In Kenya -about 55,000 inmates-22,000 remandees -33,042
convicts i.e. 40% in pretrial detention
Source: OSJI 2011; LRF 2012
Why Pre-trial Detention?
• Those held in pretrial detention most at risk-incentives and opportunities
for torture are most prevalent during the investigation stage
• Systemic problems:
– criminal justice systems centered on confessions and underpinned by
corruption;
– lack of access to legal assistance while in pretrial detention;
– arbitrary arrests, primarily of poor people without the resources to
defend themselves;
– poorly trained and paid law enforcement officials who do not have
access to modern criminal investigation tools;
– “tough on crime” approach to criminal justice that exaggerates its
benefits and understates its costs .
Why Pre-trial detention? (cntd)
• Torture is most likely to occur at the initial stage of detention,
usually in the first days of police custody when it is applied to
extract a confession;
• Extremely poor detention conditions and serious
overcrowding of pretrial detention facilities often amount to
cruel, inhuman, or degrading treatment or punishment;
• Contrary to the widespread opinion that torture is exclusively
the fate of political prisoners and suspected terrorists most
victims of torture and other ill-treatment are ordinary people
accused of ordinary crimes.
Why pre-trial detainees?
• Members of the poorest and most disadvantaged sectors of
society are more likely to be discriminated against by the
criminal justice system;
• Hence more likely to be confined to pretrial detention;
• In detention, discrimination often continues and exposes
them to an increased risk of torture and other ill-treatment;
•
• Poor or disadvantaged groups in detention are often hindered
from accessing justice, either due to discriminatory attitudes
or to their financial situation and social status;
SITUATION IN KENYA
Did you know that torture is prevalent in Kenya?
• 61% think that torture is very common
• 63% of Kenyans believe that Police are the main perpetrators
• 23% of Kenyans have experienced torture
• Only 25% of these, made a formal report
• Of the 25% who reported torture,
77% say no action was taken when they reported and only 3%
expressed complete satisfaction with actions taken when they
report
Did you know the main reasons for victims’
failure to report torture cases?
• 42% do not believe any action will be taken
• 35% were afraid of reprisals by perpetrators
• 32% said they needed money to get justice
• 17% do not know where to report
Did you know the main Perpetrators of torture?
• 59% of the perpetrators are the Regular Police
• 9% Vigilante groups
• 7% Administrative police
• 5% Local Chief
• 4% Local Council enforcement officers/askaris
Did you know the factors driving torture?
•
•
•
•
•
Poverty
Weak enforcement of legislation
Lack of awareness
Perpetrators ignorance of rights
Inadequate legislation
48%
43%
42%
37%
34%
Interventions
• Medical and psychosocial Rehabilitation
• Forensic medical documentation
• Litigation-criminal defense e.g. pastor, suits for
compensation
• PIL-arusha, ACHPR-newspaper article
• Cash bail-100 IDPs, pastor
• Witness protection-Kabete
• Mobilizing public support against torture
• Supporting and monitoring reforms –e.g. police bills
Sample of Legal Support
• Inquests -26
• Cash bail-52
• Criminal Defence-33
• Constitutional application-2
• Public Interest litigation-2
• Total= 115
SUCCESSES
• Establishment of court users committees
• Provisions against torture and clear penalties
in police legislation
• Establishment of Independent Policing
Oversight Authority
• Constitutional provision on human rights
claims
• Release of pre-trial detainees-Jeremiah
• Award of damages-Rand 727,354/USD 88,700
KEY FACTORS TO SUCCESS
•
•
•
•
•
Victim support
Forensic documentation
Witness protection
Network across the country-ensure vigilance
Constitutional provision for mandatory public
participation
• Previous reports as basis for legal and constitutional
safeguards
• Partnership with media
• Multiple strategies-national, regional and
international mechanisms
What should have been done differently?
• Proactive research and sharing
• More regional networking-EAC
• Timely analysis of trends and sharing
• Enhanced community linkages
• Robust witness protection
CHALLENGES
• ‘If its not recorded’-Abuse by police and security officers
takes place upon arrest & before reaching police premises or
other detention facilities;
• Inadequate legal prohibition of torture -where penalties are
imposed, they are inadequate
• Proceedings against perpetrators of torture are often not
even instigated-culture of impunity
• Stalling of police reforms-strong internal resistance and lack
of political will;
• Shifting trends- culture of fear-intimidation, extortion, EJE
What could be replicated?
• Constitutional and legal safeguards
• Multiple strategies:
– Proactive policy and legislative proposals
– Working the agencies in the criminal justice system around
areas of mutual interest
– Champions of reform
•
•
•
•
Partnerships with professionals/middle class
Partnerships in civil society (synergy ;security; sharing)
Witness protection
Research/evidence based interventions
• THANK YOU/ASANTE SANA
CHANGE OF REGIME-NYAYO HOUSE
LEGAL AND CONSTTIUTIONAL
PROVISIONS
IMPUNITY
SOME GLIMMER OF HOPE-TOO
EXPENSIVE
IMLU SURVEY
Actual cases –case studies-Monson;
Eldoret, Kabete, Kajiado, Kakamega