Pre-trial Detention and Legal Assistance

1. Pre-trial Detention and Legal Assistance PETER KIAMA EXECUTIVE DIRECTOR INDEPENDENT MEDICO LEGAL UNIT (IMLU) 22ND AUGUST 2012

2. 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

3. STRATEGIES • Supporting Reforms • Effective Rehabilitation/Service Delivery • Promoting Sustainability • Development of Knowledge Based Interventions • Strengthening Internal Capacity

4. 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

5. 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

6. 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

7. 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 .

8. 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.

9. 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;

10. SITUATION IN KENYA

11. 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

12. 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

13. 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

14. Did you know the factors driving torture? • Poverty 48% • Weak enforcement of legislation 43% • Lack of awareness 42% • Perpetrators ignorance of rights 37% • Inadequate legislation 34%

15. 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

16. Sample of Legal Support • Inquests -26 • Cash bail-52 • Criminal Defence-33 • Constitutional application-2 • Public Interest litigation-2 • Total= 115

17. 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

18. 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

19. 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

20. 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

21. 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

22. THANK YOU/ASANTE SANA

23. 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